Professional Documents
Culture Documents
NCA Notes Short
NCA Notes Short
NCA Notes Short
SOURCES OF CRIMINAL LAW...................................4 R v. York (2005), 193 C.C.C. (3d) 331 (B.C.C.A) INTENTION, ULTERIOR MENS REA....................25
......................................................................12
Frey v Fedoruk, [1950] S.C.R 517....................4 R. v. Vandergraff, [1994] M. J. No. 503 (Man.
R v Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.) C.A.)..............................................................26
R v Jobidon, [1991] 2 SCR 714........................5
......................................................................13 R. v. Murray, [2000] O.J. No. 2182 (Ont. S.C.J)
POWER TO CREATE CRIMINAL OFFENCES...............6
R v Terrence, [1983] 1 S.C.R. 357.................14 ......................................................................26
R v Malmo-Levine, 2003 SCC 74.....................6
R v Morelli, 2010 SCC 8, [2010] 1 SCR 253...14 R v J.S.R., 2008 O.N.C.A. 544........................27
CHARTER OF RIGHTS AND FREEDOMS....................7
Consent as element of Actus Reus...................15 R. v Roks, 2011 ONCA 526............................27
Canada (Attorney General) v. Bedford, 2013
R v Jobidon, [1991] 2 SCR 714......................15 SUBJECTIVE MENS REA WITH OBJECTIVE
SCC 72.............................................................7
FEATURES..........................................................28
R v J.A, 2011 SCC 28......................................16
R v Oakes, [1986] 1 S.C.R. 103........................7
R. v Chase, [1987] 2 S.C.R. 293.....................28
R v Mabior, 2012 SCC 47..............................17
R. v. Labaye, S.C.C. (2005)..............................8
R v Theroux, [1993] 2 S.C.R. 5.......................28
CAUSATION.......................................................18
INTERPRETATION OF CRIMINAL CODE....................9
KNOWLEDGE.....................................................29
R v Smithers, [1978] 1 S.C.R. 506.................18
R v Pare, [1987] 2 S.C.R. 618...........................9
R v Ewanchuk, [1999] 1 S.C.R. 330...............29
R v Nette, [2001] 3 S.C.R. 488.......................19
R. v. Mac, [2002] 1 S.C.R. 856.........................9
R v Levigne, [2010] 2 S.C.R. 3........................30
R v Williams [2003] 2 S.C.R. 488...................20
R. v. Collins, [1987] 1 S.C.R. 265...................10
R. v ADH, 2013 SCC 28..................................31
R v Maybin 2012 SCC 24...............................21
Canadian Foundation for Children v. A.G.
WILLFUL BLINDNESS.........................................31
Canada, S.C.C. (2004) 1 S.C.R. 76..................10 R v Reid, 2003 NSCA 104..............................22
R. v. Currie (1975) 24 C.C.C. (2d) 292 (Ont.
ELEMENTS OF CRIMINAL OR REGULATORY OMISSION- ACTUS REUS...................................23
C.A.)..............................................................31
OFFENCES-ACTUS REUS.........................................11 R v Moore, [1979] 1 S.C.R. 195.....................23
R. v. Vinokurov, 2001 ABCA 113 (Alta C.A.)..32
Definition-Voluntary or Willed Acts..................11 R v Peterson, [2005] O.J. No. 4450 (Ont. C.A.),
R. v. Briscoe, 2010 SCC 13............................32
R. v. J.(D.), 2002............................................11 leave to appeal refused...............................24
RECKLESSNESS...................................................33
R v Gunning, [2005] 1 S.C.R. 627..................12 R v Browne (1997), 166 C.C.C. (3d) 183 (Ont.
C.A.)..............................................................25 R. Theroux, [1979] 2 S.C.R. 5........................33
Act of possession..............................................12
SUBJECTIVE MENS REA..........................................25 R. v. Buzzanga and Durocher [1979] 49 C.C.C.
(2d) 369 (Ont. C.A.).......................................34
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OBJECTIVE MENS REA AND TRUE CRIMES............34 R v Deustch, [1986] 2 S.C.R. 2.......................46 PROVOCATION..................................................61
R. v. Martineau [1990] 2 S.C.R. 633..............34 R v Dery, 2006 SCC 53...................................47 R v Tran, [2010] 3 S.C.R. 350........................61
Marked departure test.....................................35 DEFENCES..............................................................49 ENTRAPMENT....................................................62
R. v. Creighton [1993] 3 S.C.R. 3...................35 MENTAL DISORDER...........................................49 R v Mack, [1988] 2 S.C.R. 903.......................62
R. v. Beatty, 2008 SCC 5................................36 R v Cooper. [1980] 1 S.C.R. 1149..................49 R v Barnes, [1991] 1 S.C.R. 449.....................63
REGULATORY OFFENCES.......................................36 R v Kjeldson, [1981] 2 S.C.R. 617..................50 IGNORANCE OF THE LAW.................................63
R. v Sault Ste. Marie, [1978] 2 S.C.R. 1299...37 R v Oommen, [1994] 2 S.C.R. 507.................50 Lilly v The Queen, [1983] 1 SCR 794.............63
Reference Re B.C. Motor Vehicle Act, [1985] 2 AUTOMATISM AND INVOLUNTARY ACTS.........51 R v Jones, [1991] 3 SCR 110..........................64
SCR 486.........................................................37 R v Swaby, [2001] O.J. No. 2390 (Ont. C.A.). 51 Levis (City) v. Tetreault, 2006 SCC 12...........65
R v Raham, 2010 ONCA 206.........................38 R v Parks, [1992] 2 S.C.R. 871.......................52 R. v. MacDonald, 2014 SCC 3........................65
Levis (City) v. Tetreault, 2006 SCC 12...........39 R v Stone, [1999] 2 S.C.R. 290......................53 ADVERSARIAL PROCEEDING..................................66
R v Wholesale Travel Inc. [1991] 3 S.C.R. 154 R v Fontaine, [2004] 1 S.C.R. 702..................54 Presumption of Innocence and Ultimate
......................................................................39 Standard of Proof..............................................66
R v Luedecke, 2008 ONCA 716.....................54
EXTENSIONS OF CRIMINAL LIABILITY....................40 R. v. Lifchus, [1997] 3 S.C.R. 320...................66
SIMPLE INTOXICATION......................................55
AIDING AND ABETTING.....................................40 R. v. Starr [2002] 2 S.C.R. 144.......................67
The Queen v. George [1960] S.C.R. 871.......55
R v Dunlop and Sylvester, [1979] 2 S.C.R. 881 R v J.H.S., 2008 SCC 30..................................67
......................................................................40 R v Robinson, [1996] 1 S.C.R. 683.................56
OTHER BURDENS...............................................68
R v Logan, S.C.C. (1990)................................41 EXTREME INTOXICATION..................................57
R. v. Arcuri, S.C.C. (2001)..............................68
R. v. Briscoe, 2010 SCC 13............................42 R v Daviault, [1994] 3 SCR 63........................57
R v Cinous, 2002 SCC 29...............................69
R v Thatcher, [1987] 1 S.C.R. 652.................42 R v Bouchard-Lebrun, 2011 SCC 58..............58
R v Cinous, 2002 SCC 29...............................69
R v JF, 2013 SCC 12.......................................43 SELF DEFENCE...................................................58
R. v. Fontaine, S.C.C. (2004).........................70
R v Gauthier, 2013 SCC 32............................44 R v Lavallee, [1990] 1 S.C.R. 852...................58
R. v. Oakes, S.C.C. (1986)..............................70
COUNSELLING...................................................45 NECESSITY.........................................................59
NEUTRAL IMPARTIAL TRIER..............................71
R v Hamilton, [2005] 2 S.C.R. 432.................45 R v Latimer, [2001] 1 S.C.R. 3.......................59
R. v. Gunning, [2005] 1 S.C.R 627.................71
ATTEMPTS.........................................................46 DURESS..............................................................60
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R. v. Hamilton, [2004] O.J. No. 3252 (Ont. R. v. Aucoin, 2012 SCC 66.............................77 JURY TRIAL........................................................85
C.A.)..............................................................71 R. v. Cole, 2012 SCC 53.................................78 R v Williams [1998] 1 S.C.R. 1128.................85
ROLE OF PROSECUTOR......................................72 R. v. Spencer, 2014 SCC 43...........................79 R v Find 2001 SCC 32....................................85
Krieger v. Law Society of Alberta, [2002] 2 R. v. MacDonald, 2014 SCC 3........................80 R v YUMNU, 2012 SCC 73.............................86
S.C.R. 372.....................................................72
ARREST AND BAIL..............................................81 SENTENCING..........................................................87
R. v. Nixon, 2011 SCC 34...............................73
R. v. Hall, S.C.C. (2002)..................................81 R v Nasogaluak [2010] 1 S.C.R 206...............87
R. v. Babos, 2014 SCC 16..............................74
DISCLOSURE......................................................82 R v C.A.M, [1996] 1 S.C.R 206.......................87
R. v. Anderson, 2014 SCC 41.........................75
R v Stinchcombe, [1991] 3 S.C.R. 326...........82 R v Gladue [1999] 1 S.C.R. 688.....................88
GETTING READY FOR TRIAL...................................76
R v O’Connor, [1995] 4 S.C.R. 411................83 R v Ferguson 2008 SCC 6..............................89
POLICE POWERS................................................76
R v McNeil 2009 SCC 3..................................83 R v Morrisey, 2000 SCC 6..............................89
R. v. Grant, 2009 SCC 32...............................76
PRELIMINARY ENQUIRY.........................................84 R v Pham, 2013 SCC 15.................................90
R. v. Suberu, 2009 SCC 33.............................77
R v Acuri [2001] 2 S.C.R. 828........................84
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SOURCES OF CRIMINAL LAW
ISSUE Can someone be arrested for a crime not defined in CC? Can the common law define an offence, not previously defined in CC?
NOTES SC concluded that only Parliament can decide what is an offence in CC otherwise law would be too confusing. “If ay course of
From conduct is now to be declared criminal, which has not upto the present time been so regarded, such declaration should be
judgement made the Parliament and not the Courts”.
S. 9 of CC: No person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great
Britain and Ireland, or
Other Notes (c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or
place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court
judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
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Levis (City) v Tetrault [2006] 1 SCR 420
Common law cannot create criminal offences, only Parliament (statutes) can.
FACTS Peeping tom case.
ISSUE Can someone be arrested for a crime not defined in CC? Can the common law define an offence, not previously defined in CC?
NOTES SC concluded that only Parliament can decide what is an offence in CC otherwise law would be too confusing. “If ay course of
From conduct is now to be declared criminal, which has not upto the present time been so regarded, such declaration should be
judgement made the Parliament and not the Courts”.
S. 9 of CC: No person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great
Britain and Ireland, or
Other Notes (c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or
place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court
judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
Page | 5
PRINCIPLE Consent is not a factor in assault leading to death.
Reasons Jobidon’s argument that both parties consented to the fight and since the charge of assault must ‘lack consent’, he cannot be
For convicted of manslaughter. The court rejects this, citing S 14 CC (you cannot consent to imposition of death). Consent is
judgement recognized when bodily harm is trivial. Jobidon continued to attack the victim after he was unconscious.
CC Section 8 (3). Every rule and principle of the common law that renders any circumstance a justification or excuse for an act
or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act
Other Notes
of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.
PRINCIPLE Criminal law power extends to laws designed to promote public peace, safety, order, health or other legitimate public purpose
For law to be classified as criminal law, 3 requirements:
(i) valid criminal law purpose,
Reasons
(ii) backed by prohibition,
For
(iii) and a penalty;
judgement
Criminal law power extends to laws designed to promote public peace, safety, order, health or other legitimate public purpose
(para. 74)
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Canada (Attorney General) v. Bedford, 2013 SCC 72
The applicants, argued that Canada's prostitution laws were unconstitutional. CC includes a number of provisions, such as
outlawing public communication for the purposes of prostitution, operating a bawdy house or living off of the avails of
FACTS prostitution, even though prostitution itself is legal.
The applicants argued that the laws deprive prostitutes of their right to security by forcing them to work secretly. Court of
appeal ruled that some, but not all, of these prohibitions violated the Charter.
ISSUE Are the laws unconstitutional
The SC ruled in a 9-0 decision that all of these laws are unconstitutional; although, it delayed the striking down of the laws by
JUDGEMENT
one year to allow Parliament to update the laws in accordance with the ruling.
This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the
law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and
gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective)
NOTES
The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently
From
bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.
judgement
Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from
imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the
constitutional rights of prostitutes.
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(i) Rational Connection: connected to the end the government seeks to achieve
(ii) Minimal Impairment: minimally impairs the rights in the Charter
(iii) Proportionality between means and effect: The law does not have a disproportionately severe effect on those
whose rights it infringe
NOTE Opinion of Minority- presumption that statutes are presumed to be constitutionally valid
• Majority: autonomy and liberty of public not affected by unwanted confrontation with sexual conduct in question, only
those disposed to this sort of sexual activity allowed to participate and watch.
NOTES
• Minority: Whether or not serious social harm is sustained has never been the determinative test for indecency. The
From
existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of
judgement
fundamental social and ethical considerations is sufficient.
Community does not tolerate acts of this nature in place of business to which public has easy access, consent of
participants, observers not determinative .
Page | 8
definition provided that "murder is first degree murder in respect of a person when the death is caused by that person while
committing an offence under section . . . 156 (indecent assault on a male)". The Court of Appeal dismissed the accused's appeal but
substituted a verdict of second degree murder for the jury's verdict of first degree murder.
ISSUE This appeal is to determine whether the accused murdered the child "while committing" the indecent assault.
NOTES The words ‘while committing’ do not require both acts to be done simultaneously. They should constitute one continuous
From sequence of events.
judgement Narrow interpretation of statute may not be reasonable or reflect policy considerations underlying provision.
When there is ambiguity in statute, both English and French versions to be read. Ambiguity to be resolved in favor of clearer
PRINCIPLE
version.
NOTES In this case, any ambiguity arising from the English version is resolved by the clear and unambiguous language of the French
From version of s. 369(b). There is therefore no need to resort to further rules of statutory interpretation, such as those invoked by
judgement the Court of Appeal.
Page | 9
police officer, grabbed her throat and pulled her to the floor. The throat hold is used to prevent someone from swallowing
drug. She has a bag of heroine in her hand. Officers did not have warrant for search.
ISSUE Should the drugs found in her hand be excluded from trial under S. 24(2) of Charter?
Difference between English and French versions of S. 24(2)- English version uses the words “Would bring administration of
justice into disrepute” while French uses “Could bring…into disrepute”.
NOTES
As one of the purposes of s. 24(2) is to protect the right to a fair trial, the French text should be favored as it better protects that
From
right.
judgement
S. 24(2) should thus be read as "the evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission of it in the proceedings could bring the administration of justice into disrepute".
JUDGEMENT The Court dismissed the appeal holding that s. 43 of the Code did not infringe ss. 7, 12 and 15 of the Charter.
NOTES S.43 adversely affects children’s security of person, but does not offend principle of natural justice. There were proper
From safeguards under s. 43 to protect child’s interests. Neither is the section unduly vague or overbroad – sets out real boundaries,
judgement delineates risk zone for criminal sanction, avoids discretionary law enforcement
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ELEMENTS OF CRIMINAL OR REGULATORY OFFENCES-ACTUS REUS
Definition-Voluntary or Willed Acts
R. v. J.(D.), 2002
Definition of Actus Reus
Two police officers were investigating a break and enter. Police dog led them to a park where JD matched the description of the
offender. Police officers called JD but he sped away. JD then went to an acquaintance’s house and rang the bell. Friend
answered the door and JD told her to tell the cops that he lived there. JD tried to escape from the back door of friend’s house
FACTS but it was blocked with a couch. The police arrested JD without incident. Ontario C of Justice acquitted JD of charged against
forcible entry for which the police arrested him but the court convicted him for forcible entry into the friend’s house. JD is
appealing that decision.
ISSUE Do the appellant’s actions fall within the definition of ‘breaking and entering’ under S. 72(1) of Criminal code?
JUDGEMENT Acquitted
Other Notes Good case for Actus Reus (No Actus Reus)
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JUDGEMENT The appeal should be allowed. The conviction should be set aside and a new trial ordered.
PRINCIPLE Hierarchy of offences (Murder, Manslaughter, Assault [if victim not dead])
In this case, if the jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would be the
NOTES shooting itself and the accused would be guilty of murder.
From If the Crown failed to prove an intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful
judgement act of careless use of a firearm.
If the jury had a reasonable doubt on this question, he was entitled to an acquittal.
Act of possession
1) Knowledge
PRINCIPLE Possession cannot be proved without knowledge, control and intention at the same time.
NOTES
Act of Possession requires knowledge and control. It also requires intention to use the property for some personal use.
From
Intention could not be established.
judgement
Important [10] In order to prove possession the Crown must establish the following:
paras from (1) manual or physical handling of the prohibited object;
Judgement (2) knowledge; and
(3) control.
Page | 12
Para [11] Thus, the offence of possession is made out where there is the manual handling of an object co-existing with the
knowledge of what the object is, and both these elements must co-exist with some act of control.
[20] I think the law can be summarized as follows. Personal possession is established where 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. The judge convicted the appellant on the grounds that the appellant knew that the goods were
stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The
blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty.
2) Consent
PRINCIPLE Knowledge and control are required to establish possession (or joint possession).
NOTES Accused had the knowledge but no control over the substance. Choice facing accused was to leave car and risk hitch
From hiking to return to school on time, or staying in car with drugs – accused lacked power to control persons in car
judgement possessing drug, not owner of car.
3) Control
FACTS Accused was driving in a stolen car. He testified that he had no knowledge that the car was stolen. He believed that the car
belonged to his friend’s brother in law. Trial court rejected this claim even though there was nothing to contradict the
statement of accused. Court of appeal quashed the decision stating that some element of control is necessary to establish
Page | 13
possession. SC appeal brought by crown against court of appeal’s decision.
ISSUE Whether the word “possession” used in s. 3(4)(b) of the Code imports control as essential element.
under Joint possession in S. 3(4)(b) of CC, ‘knowledge and consent’ cannot exist without some measure of ‘control’ over the
PRINCIPLE
property.
NOTES A measure of control on the part of the person deemed to be in possession is a constituent and essential element of
From possession under s. 3(4)(b) of the Criminal Code. The “knowledge and consent” required cannot exist without some
judgement measure of control over the subject-matter.- (second last para of judgement)
JUDGEMENT No possession.
NOTES Merely viewing in web browser illegal image stored in remote location on Internet does not establish level of control
From necessary for possession – possession of digital images in computer, rather than tangible objects, but possession of
judgement image in computer means possession of underlying data file, not its mere visual depiction.
Jugement [28] Interpreting possession to apply only to the underlying data file is also more faithful to a traditional understanding of
paras what it means to “possess” something. The traditional objects of criminal possession — for example, contraband, drugs, and
illegal weapons — are all things that could, potentially at least, be transferred to another person.
[29] Without storing the underlying data, however, an image on a screen cannot be transferred. The mere possibility of
sharing a link to a Web site or enlarging the visual depiction of a Web site, as one could “zoom in” on a TV screen image, is
insufficient to constitute control over the content of that site. It is indeed the underlying data file that is the stable “object”
that can be transferred, stored, and, indeed, possessed. More broadly, the object possessed must itself have some sort of
Page | 14
permanence.
[30] Thus, while it does not matter for the purposes of criminal possession how briefly one is in possession of the object, the
thing said to be culpably possessed cannot — like a broadcast image flickering across a TV screen or a digital image displayed
transiently on-screen — be essentially evanescent.
R v Ewanchuk
Reasons Jobidon’s argument that both parties consented to the fight and since the charge of assault must ‘lack consent’, he cannot be
For convicted of manslaughter. The court rejects this, citing S 14 CC (you cannot consent to imposition of death). Consent is
judgement recognized when bodily harm is trivial. Jobidon continued to attack the victim after he was unconscious.
Comments: s.265 should be read in light of common law limitations on consent, Code provisions have not ousted common law
Other Notes limitations – victim’s consent to “fair fight” did not preclude commission of offence of assault
Page | 15
R v J.A, 2011 SCC 28
Accused and complainant engaged in sexual activity of asphyxiation. Complainant lost consciousness and accused performed
FACTS anal act. Complainant later filed complained saying she consented to being asphyxiated but did not consent to the act
performed during unconscious period. Later she recanted statement but case still filed.
ISSUE Whether prior consent is applicable in sexual acts.
Page | 16
R v Mabior, 2012 SCC 47
Vitiating consent by reason of fraud-
“Consent a requirement to prevent charge of sexual assault”
CC 265(3)(c ): No consent is obtained where the complainant submits or does not resist by reason of fraud
Accused was HIV positive with low viral load and had sex with several women, with or without condom. Complainants
had all consented to sex but accused did not inform them about his HIV status. Crown brought a charge of aggravated
FACTS assault under S 265(3)(c) of CC.
Trial court found accused guilty of aggravated sexual assault (no consent due to fraud), Appeals court set aside
conviction. Matter went to SC finally.
Whether having sex with a HIV positive person, without being informed about his health, vitiated consent by reason of
ISSUE
fraud.
JUDGEMENT Appeal allowed in part (reference to complainants who had sex without condom)
At para [94]: This leaves the question of when there is a realistic possibility of transmission of HIV. The evidence
adduced here satisfies me that, as a general matter, a realistic possibility of transmission of HIV is negated if:
(i) The accused’s viral load at the time of sexual relations was low, and
(ii) Condom protection was used.
CAUSATION
Page | 17
Trial court convicted accused of manslaughter. Accused appealed, appeal court dismissed appeal. Now appeal in SC.
ISSUE Was the kick a sufficient cause of the death to attract criminal liability?
PRINCIPLE The "thin skull" rule applies in criminal law as in tort law.
Kick had to be an "operating clause outside of the de minimis range" (ie: a contributing cause that is not trivial or insignificant)
in order for it to be deemed the cause of death, that is, the Crown had to prove that the kick caused the vomiting, and that the
vomiting caused the death. Judge accepts the Crown's argument that this was outside the de minimis range, as the thin skull
rule applies in criminal law and therefore the kick led to the victim's reaction that resulted in death. This is a lower standard
than the Smith test, which is what the defence wanted to be used. The Smithers test needs a lower threshold of causation to be
NOTES
proven in order to get the conviction
From
Ratio: An action only has to be an operating cause outside of the de minimis range in order to be deemed the cause of a
judgement
prohibited result in criminal law; a lower threshold of causation than was required in the Smith test.
The "thin skull" rule applies in criminal law as in tort law.
Important judgement part: Death may have been unexpected, and the physical reactions of the victim unforeseen, but that
does not relieve the appellant.
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NOTES [Para 44] In determining whether a person can be held responsible for causing a particular result, in this case death, it must be
From determined whether the person caused that result both in fact and in law.
judgement Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical,
mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established,
the remaining issue is legal causation.
[Para 45] Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the
accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the
wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect
fundamental principles of criminal justice such as the principle that the morally innocent should not be punished. In
determining whether legal causation is established, the inquiry is directed at the question of whether the accused person
should be held criminally responsible for the consequences that occurred.
When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order
to qualify it for legal recognition is not a test of causation but a moral reaction. The question is whether the result
can fairly be said to be imputable to the defendant. . . . If the term “cause” must be used, it can best be
distinguished in this meaning as the “imputable” or “responsible” or “blamable” cause, to indicate the value-
judgment involved. The word “imputable” is here chosen as best representing the idea. Whereas the but-for
cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of
concurring but-for causes is more substantial or important than another, or that one person who is involved in
the causal chain is more blameworthy than another.
[Para 71] The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. In addition, in the
case of first degree murder under s. 231(5) of the Code, Harbottle requires additional instructions, to which I will return. The
only potential shortcoming with the Smithers test is not in its substance, but in its articulation. Even though it causes little
difficulty for lawyers and judges, the use of Latin expressions and the formulation of the test in the negative are not particularly
useful means of conveying an abstract idea to a jury. In order to explain the standard as clearly as possible to the jury, it may
be preferable to phrase the standard of causation in positive terms using a phrase such as “significant contributing cause”
rather than using expressions phrased in the negative such as “not a trivial cause” or “not insignificant”. Latin terms such as
“de minimis” are rarely helpful.
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R v Williams [2003] 2 S.C.R. 488
Accused has unprotected sex with victim, learns after 5 months he is HIV positive but fails to inform victim, however victim
FACTS
likely already HIV positive by this time.
JUDGEMENT The appeal should be dismissed.
To constitute aggravated assault by endangering life of victim, s.268, actus reus and mens rea must coincide – before date
NOTES
accused aware of condition there was endangerment but no intent, afterwards intent but reasonable doubt as to
From
endangerment; accused guilty of attempted aggravated assault, not aggravated assault
judgement
Accused punches victim in head in bar fight, renders him unconscious, third party also punches victim in head, dies from
injuries, issue is whether intervening act by other person severs causation chain, Supreme Court holds that in intervening act
FACTS cases, causation test remains whether dangerous and unlawful acts of accused are a significant contributing cause of victim’s
death
ISSUE issue is whether intervening act by other person severs causation chain
Even where there has been intervening act, question remains whether dangerous and unlawful acts of accused are significant
contributing cause of victim’s death.
Page | 20
“Reasonable foreseeability” approach suggests that where accused undertaking dangerous act contributes to death, he
should bear the risk that other foreseeable acts may intervene and contribute to that death. The harm that actually
transpired must flow reasonably from conduct of accused. Then accused’s actions may remain significant contributing
cause of death.
Whether an intervening act is independent is sometimes framed as a question of whether the intervening act is a response to
the acts of the accused. In other words, did the act of the accused merely set the scene, allowing other circumstances to
(coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party? If the
intervening act is a direct response or is directly linked to the accused’s actions, and does not by its nature overwhelm the
original actions, then the accused cannot be said to be morally innocent of the death.
Victim assaulted in fight with accused, but botched resuscitation efforts result in vomit being forced into lungs, victim dies;
question to resolve is whether acts of accused are significant contributing cause of death, and whether intervening cause
FACTS occurs between accused’s acts and death of victim – any independent, intervening and therefore exculpatory factors that occur
after accused’s acts, thereby severing link in chain that tied them to death of victim (para. 62); explanation of causation para 89
whether acts of accused are significant contributing cause of death and whether intervening cause occurs between accused’s
ISSUE acts and death of victim
NOTES Intervening causes do constitute a unique category of case such that in circumstances like these where, upon the evidence, the
From failed attempts at CPR clearly interrupted and therefore separated the acts of Accused from victim’s ultimate death.
judgement
Causation:
In order to be satisfied beyond a reasonable doubt that the accused caused the death of victim, questions to be considered are:
(i) Whether the accused’s unlawful acts in fact amounted to a significant contributing cause of victim’s death?
(ii) If yes, then whether any intervening cause which resulted in victim’s death occurred between the accused’s acts
and the victim’s death?
(iii)
It is enough for the Crown to prove to the Jury’s satisfaction that the actions of accused, were a significant contributing cause of
victim’s death.
Page | 21
Intervening event:
The next question to consider is whether actions (which has been confirmed by doctors as cause of victim’s death) of those on
scene to resuscitate the victim, an intervening event that broke the chain of causation between accused’s action and victim’s
death- such that actions of accused are no longer seen as significant contributing cause of victim’s death.
If jury was satisfied that the chain of causation was unbroken, or jury was not left with a reasonable doubt about it, jury
would then conclude that this element of the offence of manslaughter was made out. If on the other hand jury decided that the
CPR efforts had severed the chain of causation linking accused to victim’s death, or were left with a reasonable doubt about it,
then the Crown would have failed to establish this essential element of the charge and would therefore be unable to convict
that accused of manslaughter.
JUDGEMENT Majority decision upheld the Appeals court decision. Minority would have upheld trial court decision
Officer under duty to attempt to identify wrong-doer, accused’s failure to identify self constitutes offence of obstructing peace
NOTES
officer in execution of his/her duty, Code, s.129
From
• minority – no duty at common law to identify self to police, refusal to identify self not obstruction of police, absent
judgement
legal duty to answer
Page | 22
See Code provisions notes- 215(1)
R v Peterson, [2005] O.J. No. 4450 (Ont. C.A.), leave to appeal refused.
FACTS Adult son failed to look after his father. Liability under S 215 (2) of CC.
ISSUE Is an adult child under a legal duty to care for his elderly parent(s)?
NOTES [35] Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked
From departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is
judgement objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the
health of the person under the charge of the other. The personal characteristics of the accused, falling short of capacity to
appreciate the risk, are not a relevant consideration. The use of the word “duty” is indicative of a societal minimum that has
been established and is aimed at establishing a uniform minimum level of care.
[40] First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in
the charge of another. The dependency of the parent under a disability on an independent adult child is justified by their
relationship to one another in which an element of trust will usually be present.
The mere breach of a federal or provincial statute, which imposes a duty on a child to support a parent, does not constitute a
crime. It is nevertheless proper for the trier of fact to consider legislation governing the accused in order to determine
whether the accused’s actions or inactions show a “marked departure” from the conduct expected.
[41] Second, the word “charge” is not unknown to the criminal law in other contexts involving adults. One speaks of a person
who is fixed with responsibility of supervision as one who is in ‘charge’”.
[42] Used in these contexts the word “charge” connotes, among other things, the duty or responsibility of taking care of a
person or thing.
[43] In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to
understand and appreciate their circumstances is a factor to consider. A parent who is not in full possession of his or her
faculties may not appreciate that he or she cannot provide himself or herself with the necessaries of life and may not have the
capacity to understand that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury. Just as
some contributory negligence by the victim is not a defence to a charge of criminal negligence, the inability of the victim to
appreciate his or her need for necessaries and the victim’s unwillingness to cooperate is not a defence for an accused charged
Page | 23
with failure to provide necessaries. If the parent is otherwise in the child’s charge and the child cannot care for the parent due
to the parent’s refusal to accept care, the child is obliged to seek the help of a community agency.
[44] A further consideration in determining whether a person is in the charge of another is whether one person has explicitly
assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly
acknowledging to others in the community by words or conduct an assumption of responsibility.
PRINCIPLE Where there is no legal duty under the law, there is no obligation.
There existed no undertaking under S 217 of CC and hence there was no legal duty to care for the victim.
The trial judge found that the relationship between Dexter Browne and Audrey Greiner as partners in drug dealing gave rise to
an implicit undertaking by Browne that he would take Audrey Greiner to the hospital whenever she swallowed cocaine. The
fundamental error made by the trial judge was in reversing the analytical steps under s. 217 by starting her analysis with
NOTES whether a duty of care existed, finding that it did, and then basing her finding of an undertaking on the existence of a legal duty.
From The inquiry should have begun with whether there was an undertaking. Only if there was an undertaking in the nature of a
judgement binding commitment could a legal duty have arisen under s. 217, regardless of the nature of the relationship between the
appellant and Audrey Greiner.
There being no undertaking within the meaning of s. 217 of the Criminal Code, there can be no finding of a legal duty. There
being no duty, there can be no breach contrary to s. 219 of the Code.
Page | 24
INTENTION, ULTERIOR MENS REA
Accused was at a hockey game. He got frustrated with results of the game and threw a jar of peanut butter at field. It hit the
FACTS victim and accused was charged with assault. Trial court found him guilty of assault, stating intention was not necessary. Case
in Manitoba Court of appeal.
ISSUE Whether intention is required to prove accused committed the criminal act that he is accused of.
Assault provisions requires intention under CC. Without proof of intention to apply force to victim, criminal act of assault (with
JUDGEMENT
a weapon) cannot be established.
NOTES
Crown could have brought a charge of criminal negligence causing bodily harm and accused could have been convicted of that.
From
But the charge here was specifically for assault and the required mens rea of intention was not present in this case.
judgement
The statutory provision of ‘attempt to obstruct justice’ clearly states that the accused must ‘willfully intend’ to obstruct justice.
NOTES
Accused’s testimony stating that he only retained tapes with the intention of using them for cross examining the co accused (ie.
From
No intention to obstruct justice or retain tapes permanently) raised reasonable doubt regarding his intention to obstruct
judgement
justice.
READ THE FACT SCENARIO, READ THE STATUTE. IF FACT SCENARIIO STATES THERE WAS NO INTENTION AND STATUTE
Tips
SPECIFIES THAT THERE SHOULD BE SPECIFIC INTENTION TO COMMIT THE OFFENCE, THEN USE ONE OF THE CASES.
Page | 25
R v J.S.R., 2008 O.N.C.A. 544
There is intention to kill someone, but not the person who is killed
FACTS Accused was involved in a street gun fight with another person. While gun shots being exchanged, bystander caught in mid and
killed by other person’s gun. Accused charged under Culpable homicide-murder, S 229 (c) – intention to cause death to
someone and causing death to another by accident.
If accused did not intend to cause death of victim, is he still liable for causing accidental death while attempting to cause death
ISSUE
to another?
Page | 26
conceivable and remote consequence.
3 elements to prove guilt:
(i) Action was taken for unlawful object
(ii) There was ‘subjective foresight’ of death
(iii) Death was thereby caused
What is important is the ‘subjective foresight’ of ‘likelihood’ of death. [para 263]
The common sense proposition that harm or death is natural and even likely is not subjective but objective foresight.
Page | 27
JUDGEMENT Accused guilty of fraud
[Para 27]: Actus reus of fraud can be established by proof of:
(i) The prohibited act, whether it is an act of deceit, falsehood or some other fraudulent means; and
(ii) Deprivation caused by the prohibited act, that may consist of actual loss or placing of victim’s pecuniary interest at
risk
Mens rea of fraud is established by proof of:
(i) Subjective knowledge of prohibited act; and
NOTES
(ii) Subjective knowledge that the prohibited act could, as a consequence, deprive another (which deprivation may
From
consist in knowledge that the victim’s pecuniary interest are put at risk)
judgement
The question is whether the accused subjectively appreciated that certain consequences will follow from his/her acts, not
whether accused believed his/her acts to be moral. The personal feelings of accused about morality or dishonestly about the
act are not relevant.
What reasonable people could consider dishonest helps to determine whether the actus reus of the offence can be established
by particular facts.
KNOWLEDGE
See:
S 265(4) CC: Accused’s belief as to consent
S 273.2 CC: Where belief in consent not a defence
Page | 28
PRINCIPLE There is no defense of implied consent to sexual assault
There is no defense of implied consent to sexual assault
[Para 42] mens rea of sexual assault contains two elements: (1) intention to touch; and (2) knowing of, or being reckless or
NOTES wilfully blind to, lack of consent by person touched.
From Libeman J comments: accused may challenge crown’s evidence of mens rea by asserting honest but mistaken belief in consent –
judgement defence of mistake is simply denial of mens rea, no burden of proof imposed on accused; if accused’s belief found to be
mistaken, then honesty of belief must be considered – to be honest, belief cannot be reckless, wilfully blind or tainted by
awareness of s.273.1 factors, eg., person incapable of consenting.
Accused luring an underage 13 yr old child on internet. Was in fact undercover police officer. Accused was told that child was
FACTS 13 yrs old, even though the profile showed him as 18. Accused set up meeting to meet the child and was arrested. Trial court
acquitted him, appeal court found him guilty.
ISSUE Is the accused required to take reasonable steps to determine age of child.
JUDGEMENT Guilty
[para 31] under S 172.1(4) of CC, it is not a defence that accused believed the person he/she was communicating with was not
underage, unless accused took reasonable steps to ascertain the age of that person.
[Para 32]
(i) Where represented to accused that person is underage, accused presumed to believe that person in fact underage.
(ii) Presumption rebuttable – displaced by evidence to contrary which must include evidence that accused took steps
to ascertain real age of party.
(iii) Objectively considered, steps taken must be reasonable in circumstances.
NOTES (iv) Prosecution fails where accused takes reasonable steps to ascertain age of other and believed he/she not
From underage
judgement (v) Evidential burden on accused, persuasive burden on crown; where evidential burden of accused discharged,
he/she must be acquitted if trier of fact left in reasonable doubt whether accused in fact believed party not
underage
172.1(4) It is not a defence to a charge under paragraph (1) (a), (b) or (c) [telecommunication with underage children] that the
accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen
years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
Comments: Merely asserting that accused did not have knowledge of the real situation is not sufficient. For defence must be able to
prove that accused took reasonable steps to determine the age etc.
Page | 29
R. v ADH, 2013 SCC 28
Accused did not know she was pregnant and delivered the baby in Walmart washroom. Since the baby was blue, she assumed it
FACTS was dead and left him in the toilet. Charged with abandoning a child and endangering life under S. 218 of CC. Trial court
acquitted her.
is it subjective (knowledge of accused that her conduct will endanger the child’s life) or objective knowledge (marked
ISSUE
departure from what a reasonable person would have done in similar situation) important in this case?
Reasons for Under S.218 child abandonment offence, no express fault requirement. Subjective fault restricts broad ambit of the offence
Judgement having regard to text, scheme and purpose of provision.
Comments: Important part from case for subjective v objective mens rea
[para 3] In general terms, when fault element is assessed subjectively, focus is on what the accused actually knew, did she
know that abandoning the child would put child’s health or life at risk?
Comments
Objectively, focus is not on what accused actually knew, but whether a reasonable person in similar circumstances would have
seen the risk and whether accused’s conduct is marked department from what reasonable person would do.
WILLFUL BLINDNESS
NOTES Wilful blindness is only applicable when a suspicion arises and a person omits to make further inquiries. That is not the
Page | 30
case here. Currie was never suspicious. Perhaps Currie “ought to have known” but this does not constitute knowledge for
the purpose of criminal liability.
NOTES
Page | 31
Keep in mind, willful blindness is established only where accused can be proved to have the knowledge that a criminal act
is being done or is proposed but does not ask about it just to not be convicted.
NOTES In this case, Briscoe said, “whatever you guys wanna do, just do it. Don’t do it around me. I don’t want to see nothing I
don’t know what the f+*# you’re gonna do” Briscoe knew his friend wanted to do something illegal with a girl and
generally ‘approved’ of the plan.
RECKLESSNESS
RATIO Théroux had subjective knowledge that others would act on his lie and he thereby put their property at risk.
The mens rea of fraud is established by proof of:
1. Subjective knowledge of the prohibited act (deceit, falsehood); and
2. Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which
deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).
NOTES
The question is whether the accused subjectively appreciated that certain consequences will follow from his/her acts, not
whether accused believed his/her acts to be moral. The personal feelings of accused about morality or dishonestly about the
act are not relevant.
Page | 32
ISSUE Did the trial judge err?
An intention to create “controversy, furor and uproar” is not the same thing as an intention to promote hatred and it
RATIO
was an error to equate them.
willfully promoting hatred offence, Code s.319(2), does not include recklessness but requires intention of promoting hatred –
NOTES FROM
general mens rea required where no mental element mentioned in definition of crime is either intentional or reckless
JUDGEMENT
bringing about result which law seeks to prevent
Lamer C.J.C. – Subjective foresight of death must be proven beyond a reasonable doubt before a conviction for
TEST
murder can be sustained.
[Para 12] Principles of fundamental justice under Charter s.7 require conviction for murder to be based on proof
beyond reasonable doubt of subjective foresight of death.
NOTES special mental element for death necessary before culpable homicide can be treated as murder, give rise to moral
blameworthiness justifying stigma and punishment for murder – phrase “ought to know is likely to cause death” in Code
s.229(c) likely violates ss.7, 11(d) Charter and not saved by s.1, since subjective foresight of death required
Page | 33
common law’s definition of unlawful act manslaughter required the objective foreseeability of the risk of bodily harm which
is neither trivial nor transitory. The foreseeability of death is not required. The S.C.C. confirmed that the common-law rule
does not violate s. 7 of the Charter.
ISSUE What is the meaning of negligence in the criminal law?
• Test for mens rea of unlawful act manslaughter is objective foreseeability of risk of bodily harm which is neither
trivial, transitory (temporary) in context of dangerous act – foreseeability of risk of death not required, this test does
not violate principles of fundamental justice under s.7 Charter
• Mens rea requirement of foreseeability of harm entirely appropriate to stigma associated with manslaughter offence
– by very act of calling killing manslaughter, law indicates that killing less blameworthy than murder; sentence
attached to manslaughter does not require elevation of degree of mens rea for offence
• Standard of mens rea required for manslaughter appropriately tailored to seriousness of offence, accused properly
convicted of manslaughter
[Para 38] Objective test: Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must
NOTES ask:
From (1) Would a reasonable person in the same circumstances be aware that the likely consequences of his or her unlawful
judgement conduct would create the risk of death? If answer is no, then acquittal. If yes,
(2) Was the accused unaware
(a) 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
(b) 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?
Note, frailties relate to things that are beyond the control of the accused (like illiteracy, preventing accused
from reading danger warnings)
Personal
Unlike murder, foreseeability of death not required for unlawful act manslaughter. Objective foreseeability is enough.
notes
Page | 34
unconscious or fallen asleep for a few minutes. Trial judge found him not guilty, appeal court reversed acquittal.
ISSUE Does the accused’s negligent driving also attracts criminal liability under criminal negligence causing death?
There is a difference between civil and penal negligence. Negligent driving does not necessarily constitute dangerous
driving.
Personal Momentary act of negligence insufficient to support finding of marked departure from standard of care of reasonably prudent
notes driver
REGULATORY OFFENCES
NOTES 1. Mens Rea: Offences which consist of some positive state of mind such as intent, knowledge, or recklessness, must be
From proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
judgement Prima facie, public welfare offences are categorised as Strict Liability. They are not subject to presumption of full
Page | 35
mens rea. Offence would fall under mens rea only if words such as ‘willfully’, ‘with intent’, ‘knowingly’, or
‘intentionally’ are used in statute.
Self notes: (eg., Ontario Business Practices Act offence of knowingly engaging in unfair business practice.)
2. Strict Liability: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the
doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving
that he took all reasonable care. This involves consideration of what a reasonable man would have done in the
circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if
true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These
offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
(eg., Highway Traffic Offence (Ont.) of careless driving)
3. Absolute Liability: Where it is not open to the accused to exculpate (exonerate) himself by showing that he was free
of fault.
(eg., Highway Traffic Act (Ont.) offence of speeding – mistaken belief that not speeding no defence, but accused can challenge
proof of actus reus, - radar not working properly, wrong car)
Page | 36
mandatory
• Constitutionality of s.172 – nothing inherent in act of speeding that dictates all speed based offences must be
characterized as absolute liability offences, [para. 31];
• proper characterization of speed based offences as absolute, strict or full mens rea offences depends on Sault Ste.
NOTES Marie analysis – availability of jail suggests strict liability
From
judgement • Due diligence defence to strict liability charge amounts to claim defendant took all reasonable care to avoid
committing offence with which charged; where accused contends he/she operated under reasonable
misapprehension of relevant facts, due diligence takes form of reasonable mistake of fact claim
• Stunt driving offence by speeding is strict liability – while prohibited conduct same as conduct prohibited by
speeding under s.128 of Highway Traffic Act, nothing illogical in treating stunt driving as strict liability, speeding as
absolute liability, para. 51
PRINCIPLE Officially induced error of law is a recognised defence for strict liability
NOTES • Defence of officially induced error of law recognized by Supreme Court for strict liability offences under Quebec
Page | 37
Highway Safety Code, (although not made out successfully by the company)
• Concept of diligence based on acceptance of citizen’s civic duty to take action to find out what his/her obligations are
– passive ignorance not valid defence
• Company failed to establish conditions for officially induced error of law defence:
(1) error of law/mixed law made;
From
(2) person who committed act considered legal consequences of his/her actions;
judgement
(3) advice obtained came from appropriate official;
(4) advice reasonable;
(5) advice erroneous; and
(6) person relied on advice in committing act (para. 26)
Page | 38
AIDING AND ABETTING
A mere bystander cannot be charged with aiding and abetting, lacking evidence of intention or knowledge of the
PRINCIPLE
crime.
Presence at a crime can be evidence of aiding and abetting when accompanied by other factors like prior knowledge of
principal offender’s intention to commit offence or encouraging the principal offender during such presence.
NOTES A person is not guilty merely because he is present at the scene of crime and does nothing to prevent it. An example of this is
From the typical case of an urbanite who stands around at a subway station while someone is being murdered.
judgement Mere presence without anything more not enough; person cannot properly be convicted of aiding and abetting in commission
of acts which he does not know may be or are intended
Page | 39
JUDGEMENT Yes. Crown's appeal dismissed.
Section 21(2) doesn't violate the Charter for most offences. However, attempted murder is one of the few offences
PRINCIPLE for which the Constitution requires subjective intent and therefore the objective component "ought to have known"
contravenes ss. 7 and 11(d) of the Charter without being saved by s. 1.
• Requisite mens rea for murder conviction logically must be same for conviction of attempted murder (subjective
foresight)
• When principles of fundamental justice require subjective foresight in order to convict principal of attempted
murder, same minimum degree of mens rea constitutionally required to convict party to offence of attempted
murder.
NOTES • Where S.21(2) allows for conviction of party to offence (aider/abettor) of attempted murder on basis of objective
From foreseeability [Phrase “ought to have known” in S. 21(2)], its operation restricts s.7 of Charter
judgement • Words “or ought to have known” inoperative when considering under s.21(2) whether person party to offence,
where constitutional requirement for conviction that foresight of consequences be subjective, which is case for
attempted murder
• Once words (ought to have known) deleted, remaining section requires, for attempted murder, that party to common
venture know it is probable that accomplice would do something with intent to kill in carrying out common
purpose.
Page | 40
intends to commit the crime, although not precisely how it will be committed
• Even in case of murder, principal’s intention to commit crime must be known to aider or abettor, but need not be
shared – it is sufficient he/she, armed with knowledge of principal’s intention to commit the crime, acts with
intention of assisting principal in its commission
The accused had knowledge that his friend was going to do something criminal, he was willfully blind, thus
aiding/abetting the crime.
NOTES In this case, Briscoe said, “whatever you guys wanna do, just do it. Don’t do it around me. I don’t want to see nothing I
don’t know what the f+*# you’re gonna do” Briscoe knew his friend wanted to do something illegal with a girl and
generally ‘approved’ of the plan.
At trial, the Crown led direct and circumstantial evidence to prove that T had personally murdered his ex -wife or,
alternatively, that he aided or abetted the killer. In his charge, the trial judge instructed the jurors that T could be found
guilty of murder if they were satisfied beyond a reasonable doubt that he was the principal offender or a party to the offence
FACTS under s. 21 of the Code
The jury returned a verdict of guilty of first degree murder contrary to s. 218 of the Code. Appeal court dismissed appeal from
T.
Should jury be unanimous as to particular nature of participation in offence- whether accused personally committed the act
ISSUE or aided/abetted commission of offence?
Or simply put, is there a distinction between principal accused and aider/abettor?
JUDGEMENT Appeal dismissed. Conviction charges upheld.
PRINCIPLE In criminal law, with regards to liability, there is no difference between principal accused and aider/abettor.
NOTES Provision of S. 21 (1) has been designed to make the difference between principal offender and aider/abettor, irrelevant.
From Either mode of committing the offence is equally culpable.
judgement
In any case where there is doubt whether the person committed the offence personally or aided/abetted the commission of
Page | 41
offence, it may be advisable to prefer indictment against him as a principal. Such indictment is sufficient even if subsequent
evidence points out that the person was accessory or principal before the fact.
S. 21 has been designed to relieve the necessity of crown from choosing between two different forms of participation in
criminal offence- principal or aider/abettor. Crown is under no legal duty to separate different forms of participation in
criminal offence, into two different counts.
Aiding and abetting of conspiracy is where accused aids or abets the actus reus of conspiracy, namely the act of
PRINCIPLE
agreeing.
A person can be found liable as party to conspiracy where he/she aids or abets or assists in initial formation of
NOTES
agreement that comprises essence of crime of conspiracy, or encourages or assists new members to join pre-existing
From
conspiracy, as opposed to aiding or abetting furtherance of unlawful object of conspiracy
judgement
PRINCIPLE Four conditions must be met to qualify for defence of abandonment in aiding and abetting.
Page | 42
[Para 50] Conditions for defence of abandonment or withdrawal by party to offence to others:
(1) intention to abandon or withdraw from unlawful purpose;
NOTES
(2) timely communication to those who wish to continue offence; (3) communication serves unequivocal (clear)
From
notice to those who wish to continue offence;
judgement
(4) taking in manner proportional to his/her participation, reasonable steps to neutralize or cancel effects of
participation or prevent commission of offence
Page | 43
COUNSELLING
JUDGEMENT Trial judge confused “motive” and “intent”, majority orders new trial
Page | 44
ATTEMPTS
JUDGEMENT Crown's appeal dismissed; C.A.'s order for a new trial confirmed.
PRINCIPLE Mens rea for attempted murder cannot be anything less than the specific intent to kill.
Murder involves a killing. Therefore, intention to commit murder must include an intention to kill. Mens rea for an attempted
NOTES
murder cannot be less than the specific intent to kill.
From
A mental state falling short of that level may lead to conviction for other lesser and included offences, eg. Aggravated assaults,
judgement
but not to a conviction of attempted murder. (lesser and included crime)
Personal Section 24 defines an attempt as "having an intent to commit an offence." This is a general provision so we must "read in" the
Notes offence in question.
Page | 45
JUDGEMENT Appeal dismissed.
The actus reus for attempt must be some step towards the actual commission of the crime that goes beyond mere
acts of preparation.
PRINCIPLE The distinction between preparation and attempt is qualitative and dependent on the relative proximity of the act (in
time, location and between the acts under the control of the accused remaining to be accomplished) to the nature of
the completed offence.
• Crown must prove mens rea – intent to commit offence in question, and actus reus – some step towards commission
of offence beyond mere acts of preparation
• The actus reus must be more than mere preparation to commit a crime. When preparation to commit a crime is fully
NOTES completed and ended, the next step towards committing a specific crime constitutes actus reus sufficient to establish
From a criminal attempt.
judgement • Distinction between preparation and attempt is a qualitative one, involves relationship between nature and quality
of act in question and nature of complete offence – consideration must be given to relative proximity of act to
completed offence in terms of time, location, acts under control of accused remaining to be accomplished
ISSUE Is attempt to conspire to commit a substantive offence (theft) an offence under Canadian law?
PRINCIPLE Attempt to conspire to commit substantive offence is not offence under Canadian law
NOTES • Attempt to conspire to commit substantive offence is not offence under Canadian law – criminal liability does not
From attach to “fruitless discussions” in contemplation of substantive crime that is never committed, nor even attempted
judgement by parties to discussion; criminal law does not punish “bad thoughts” that were abandoned before agreement
reached, or attempt made, to act upon them
• Acts that precede a conspiracy are not sufficiently proximate to substantive offence to warrant criminal sanction –
Page | 46
given that conspiracy is essentially crime of intention, it is difficult to reach further than law of conspiracy already
does – not goal of criminal law to catch all crime “in the egg”; conspiracies are criminalized when hatched, and only
hatched by agreement (para. 47)
Page | 47
DEFENCES
MENTAL DISORDER
• For defence of mental disorder, accused must be unable to ‘appreciate’ nature, quality and consequences of act.
NOTES • S. 16 of CC,
From • “Disease of mind” – to be given broad, liberal legal construction, embraces any illness, disorder or abnormal condition
judgement which impairs human mind and its functioning, eg., personality disorder; but excludes self-induced states caused by
alcohol or drugs, plus transitory mental states such as hysteria or concussion (p.8)
• “appreciating nature and quality of an act or omission” – word “appreciate” rather than “know” used to broaden legal,
medical considerations bearing on accused’s mental state, makes it clear cognition not sole criterion –
• “to know” the nature and quality of act may mean merely to be aware of the physical act; while “to appreciate” may
mean to estimate and understand the consequences of the act.
Page | 48
• Code requires level of understanding of act which is more than mere knowledge of act taking place – capacity to
apprehend nature of act and its consequences (p.9)
• Person appreciates nature and quality of act within meaning of s.16 if he knows what he is doing and aware of physical
consequences which will result from his acts in case at bar, that knows he was hitting woman on head with rock, with
great force, and in addition capacity to estimate and understand physical consequences which would flow from his act
NOTES – that he was causing physical injury which could result in death.
From
judgement • [Referring to judgement in R v Simpson] S 16 exemption not available to someone who understands the nature,
character and consequences of the act, but has apathy towards the victim and no remorse or guilt. Even if such apathy
or lack of remorse is due to a disease of the mind.
Page | 49
moments of psychosis losing momentary ability to reason. Trial judge rejected defense (since he could distinguish right from
wrong generally). Appeal court allowed appeal ordering new trial. Crown appealed.
JUDGEMENT Appeal should be dismissed
• meaning of “wrong” in Code s.16; “wrong” means morally wrong, not legally wrong: As confirmed in R. v. Chaulk, S.C.C.
NOTES (1990) – Oommen interprets phrase “knowing that act was wrong”
From • S.16(1) embraces not only intellectual ability to know right from wrong in abstract sense, but also ability to apply that
judgement knowledge in rational way to alleged criminal act – section focuses on particular capacity of accused to understand his
act was wrong at time of committing the act.
PRINCIPLE Voluntary conduct is necessary element for criminal liability. act must be voluntary act of accused for actus reus to exist
(para. 18)
NOTES voluntary conduct is necessary element for criminal liability;
From requirement for voluntary conduct applies even if provision creating offence does not expressly require one
judgement no general Code stipulation that guilty act must be voluntary
act must be voluntary act of accused for actus reus to exist
Page | 50
R v Parks, [1992] 2 S.C.R. 871
Non-insane automatism case, accused drives in sleep 23 km, attacks in-laws. Immediately after the incident, the respondent
FACTS went to a nearby police station, again driving his own car, and told them what he had done. Jury acquits accused. Crown
appeals.
ISSUE
(for our Does sleepwalking constitute non-insane automatism or it is a "disease of the mind" under CC Section 16.
purpose)
JUDGEMENT Appeal dismissed.
Page | 51
R v Stone, [1999] 2 S.C.R. 290
Stone stabbed his wife 47 times with a hunting knife kept in his car. He testified that he blacked out and felt a "woosh" go
through his body. He hid her body in his truck's tool chest, picked up a six pack, drove home, left a note for his daughter, and
took off to Mexico. After a few weeks in Mexico he decided to return to Canada and turn himself in.
FACTS In his defence, Stone pleaded insane automatism, non-insane automatism, lack of intent, and in the alternative, provocation.
The judge allowed for a defence of insane automatism which was presented to the jury. The jury convicted him of
manslaughter and sentenced him to seven years. The verdict was upheld by the Court of Appeal. Crown appealed.
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R v Fontaine, [2004] 1 S.C.R. 702
Fontaine worked "under the table" at a car garage. R, a former employee, called the store and said "we're coming to get you,
pigs". D, the eventual victim, came in to the store and told a co-worker that there was a hit out for Fontaine and himself. Having
been informed of this, when he left work, Fontaine purchased a firearm. That evening, Fontaine saw R outside his house.
During the night, Fontaine smoked marijuana and at some point in the night he freaked out and shot bullets through his
windows and doors, thinking that someone was breaking in to get him. The next day, D came into the garage to pay off a debt
and Fontaine, thinking he was the hitman, shot him seven times, killing him.
FACTS He turned himself into the police. He claimed that he was "frozen" at the time of the murder and only partially recollected it; he
said that his actions were not his own.
Several different doctors testified, and stated that it was possible that Fontaine suffered from paranoia that was triggered by
his habitual smoking of marijuana, making him delusional. The doctor for the defence found conclusively that Fontaine did
have a major psychological disorder and that he was unable to determine right from wrong.
The trial judge did not put mental-disorder automatism to the jury, who convicted him; the Court of Appeal overturned this
and issued a new trial, stating that the defence should be left to the jury.
ISSUE
(for our Standard of evidence for insane automatism
purpose)
JUDGEMENT Appeal dismissed
The evidentiary burden is discharged if the accused raises sufficient evidence that there is an "air of reality" that the defence
PRINCIPLE might succeed; the judge is not to consider the truth of the evidence when deciding if the accused has met the burden.
Page | 53
ISSUE Whether the verdict of not guilty or not criminally responsible due to mental disorder applicable
SIMPLE INTOXICATION
JUDGEMENT Appeal allowed, charge of common assault found, sentenced to time served.
Intoxication often makes it impossible for a person to form the specific intention in specific intent crimes, however only
PRINCIPLE
intoxication to the point of insanity will negate mens rea altogether in cases involving only general intent.
NOTES Intoxication prevented the defendant from forming the specific intent required for the original charge. However, unless
From intoxicated to the point of insanity the accused could still form the intention to strike the man (the charge of assault only
judgement requiring that the defendant have applied force intentionally).
From judgement:
In considering the question of mens rea, a distinction should be made between "intention" for acts done to achieve an
immediate end and acts done for specific and ulterior motive to achieve an illegal object.
Acts for immediate end maybe purely physical manifestations of momentary passion. But acts with ulterior motive involve
Page | 54
forming a specific intent. An intoxicated person may intentionally strike someone at a time when his mind is unable to
formulate a specific intent.
Robbery requires specific intent, but common assault simply refers to physical act of applying force to another person.
Notes for self In this case the court decided that while instructing the jury, judge must make sure that the jury understands that
intoxication is relevant only so long as it has raised reasonable doubt as to crown’s case.
If the jury is mislead to believe that intoxication is relevant if it raises doubt as to ‘capacity’ of accused to form intent,
then it may find innocent person guilty. Eg. Someone who may not be intoxicated enough to lack capacity to form intent
Page | 55
but may have still not had subjective mens rea may get wrongly convicted.
EXTREME INTOXICATION
If an accused is intoxicated to the extent that they have no control over their action and they are acting autonomously
then they cannot form the necessary mens rea to commit crimes, or be said to act voluntarily; thus, being this intoxicated
is a defence to crimes requiring both general and specific intent.
PRINCIPLE
The burden of proof is on the accused to prove this on a balance of probabilities.
• Mental aspect of offence long recognized as integral part of crime – to eliminate it would deprive accused of
fundamental justice; to deny even very minimal mental element required for sexual assault offends Charter (para 47)
NOTES
• Person in state of automatism cannot perform voluntary act – someone in extreme state of intoxication akin to
From
automatism also deprived of that ability; Charter s.7 would be offended if accused who was not acting voluntarily could
judgement
be convicted of criminal offence (para 59)
Page | 56
ISSUE In case of psychosis caused by drugs, can defence of insanity apply?
NOTES • 3 conditions under s.33.1: (1) accused intoxicated at material time; (2) self-induced; (3) accused departed from
From standards of reasonable care generally recognized in Canadian society by interfering or threatening to inference with
judgement bodily integrity of another –
• where these three things are proved accused has no defence to general intent offence on ground that lacked
voluntariness to commit offence; s.33.1 applies to any mental condition that is direct extension of state of intoxication
(para 89)
SELF DEFENCE
Page | 57
circumstances.
Actions that claim to be in self-defence but are too temporally removed or violent in the circumstances to be considered
reasonable will not satisfy the s.34(2) requirements to be a defence.
Expert evidence respecting ability of accused to perceive danger from her partner may go to issue of whether, under s.34(2)(a),
NOTES she “reasonably apprehended” death or grievous bodily harm on particular occasion; such evidence may also explain why she
From did not flee when she perceived her life to be in danger, and thus assist jury, under s.34(2)(b), in assessing reasonableness of her
judgement belief that killing her batterer was only way to save her own life (para 36)
NECESSITY
Page | 58
• Standard to apply to necessity: objective or subjective standard?
• Modified objective test appropriate for first and second requirements, imminent peril and no reasonable legal
alternative: objective evaluation applies, but one which takes into account situation and characteristics of particular
accused (paras 32, 33)
• Third requirement, proportionality, must be measured on purely objective standard – evaluating nature of act is
fundamentally determination reflecting society’s values as to what is appropriate and what represents a transgression
(para. 34)
• No air of reality to three requirements of necessity in circumstances of case
DURESS
The defence of duress is only available when a person commits an offence while under compulsion of a threat made for the
PRINCIPLE
purpose of compelling him or her to commit the offence.
NOTES • Court notes common elements between common law and Code provision for duress (para. 81):
From – Explicit or implicit threat of present or future death or bodily harm proffered against accused or third party
judgement – Accused reasonably believes threat would be carried out
– No safe avenue of escape, to be evaluated on modified objective standard
– Close temporal connection between threat and harm threatened
– Proportionality between harm threatened and harm inflicted by accused; harm caused to be equal or no greater
than harm threatened, evaluated on modified objective standard
– Accused not party to conspiracy or association where accused subject to compulsion and actually knew that
Page | 59
threats or coercion possible result of criminal activity, conspiracy or association.
PROVOCATION
Page | 60
ENTRAPMENT
Entrapment is not dependant on culpability, so an objective assessment of the conduct of police and their agents is
PRINCIPLE
required.
• there is entrapment when (a) authorities provide person with opportunity to commit offence without acting on
reasonable suspicion that person already engaged in criminal activity or pursuant to bona fide inquiry; (b) although
having such reasonable suspicion or acting in bona fide inquiry, they go beyond providing opportunity, induce
NOTES commission of offence (para 130)
From • As far as possible objective assessment of conduct of police and their agents required; predisposition of accused never
judgement relevant as regards whether they went beyond offer, since that is to be assessed with regard to what average non-
predisposed person would have done
• Onus on accused to prove on balance of probabilities that conduct of state is abuse of process due to entrapment –
guilt or innocence of accused not in issue (para 154)
R v Barnes, [1991] 1 S.C.R. 449
Random virtue testing case, accused approached on hunch that in possession of drugs. Undercover officer asked for ‘weed’, accused
denied. She persisted until he agreed to a sell small amount of cannabis resin. Another officer arrested the appellant shortly
afterwards
FACTS The appellant was found guilty of trafficking. The trial judge found, however, that the police officer had engaged in "random virtue
testing" and granted a judicial stay for entrapment. The British Columbia Court of Appeal allowed the Crown's appeal of the finding
of entrapment and ordered a new trial.
Page | 61
ISSUE Was there entrapment?
JUDGEMENT No entrapment.
No entrapment when person is in physical location associated with particular criminal activity for which accused is
PRINCIPLE
arrested.
• Random virtue testing arises when police officer presents person with opportunity to commit offence without
reasonable suspicion that (a) person already engaged in particular criminal activity, or (b) physical location where
person associated is place where particular criminal activity likely occurring.
NOTES
• Accused approached by officer when walking near Granville Mall, notion of being associated with area does not
From
require more than being present in area, accused thus associated with location where it was reasonably believed drug-
judgement
related crimes were occurring;
• Officer’s conduct justified under first branch of test for entrapment set out in R v Mack.
Defence of color of right applies to accused’s belief (did he, at the time of the act, have an honest belief that he had the right to
PRINCIPLE
something) and not upon what his actual rights were.
Legal error about who owns property may afford defence to theft and other property offences as fault element requires
NOTES accused act without colour of right;
From Colour of right based on mistaken belief by accused as to his/her legal entitlement prevents Crown from proving offence –
judgement issue is accused’s belief, not the actual legal entitlement
Page | 62
R v Jones, [1991] 3 SCR 110
The appellants were charged with unlawfully conducting a bingo contrary to the Criminal Code. The charges arose out of gaming
operations at the Indian Reserve, which were initiated under First Nation. Before conducting the lotteries, the appellants had been
FACTS advised by representatives of the province, including the Ontario Provincial Police, that the Criminal Code prohibits lottery schemes,
other than those conducted under the auspices of a provincial licence. The appellants were convicted at trial and their convictions
affirmed by the Court of Appeal.
ISSUE Whether the appellants were entitled to be acquitted by reason of a defence of colour of right. That right was the belief that CC did
not apply to their activities since they were carried out on a reserve which they thought was not subject to the laws of Canada
relating to gaming.
JUDGEMENT The appeal should be dismissed.
Appellants' mistake was one of law, rather than of fact. They mistakenly believed that the law did not apply because it was
PRINCIPLE
inoperative on Indian reserves. A mistake about the law is no defence to a charge of breaching it.
NOTES Accused did not have defence because they believed they were not legally required to have provincial licence to operate bingo on
From Aboriginal reserve – mistake was not a defence as it related to believing law does not apply as being inoperative on the reserves
judgement
PRINCIPLE Officially induced error of law is a recognised defence for strict liability
NOTES • Defence of officially induced error of law recognized by Supreme Court for strict liability offences under Quebec
From Highway Safety Code, (although not made out successfully by the company)
judgement • Concept of diligence based on acceptance of citizen’s civic duty to take action to find out what his/her obligations are
– passive ignorance not valid defence
• Company failed to establish conditions for officially induced error of law defence:
Page | 63
(1) error of law/mixed law made;
(2) person who committed act considered legal consequences of his/her actions;
(3) advice obtained came from appropriate official;
(4) advice reasonable;
(5) advice erroneous; and
(6) person relied on advice in committing act (para. 26)
Page | 64
ADVERSARIAL PROCEEDING
Page | 65
R. v. Starr [2002] 2 S.C.R. 144
Accused convicted of first degree murder. Case was about hearsay evidence and its exceptions. As a side note, issues of judge
FACTS
not being able to charge the jury on ‘beyond a reasonable doubt’ also came up.
PRINCIPLE Reasonable doubt is much closer to absolute certainty than balance of probability
• Trial judges would err if they did not make it clear to jury that the reasonable doubt standard was much closer to
NOTES absolute certainty than the civil balance of probabilities standard
From • Effective way to define reasonable doubt standard for jury is to explain that it falls much closer to absolute certainty
judgement than proof on balance of probabilities.
• Something less than absolute certainty and something more than probable guilt is required to prove BoP.
Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of
PRINCIPLE
credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard.
General instruction on reasonable doubt, without adverting to its relationship to credibility/lack of credibility of witnesses,
NOTES gives rise to confusion or misunderstanding.
From Must be made crystal clear to jury that burden never shifts from crown to prove every element of offence beyond reasonable
judgement doubt. Where credibility is important, jury must not have impression that it must choose between versions of events – lack of
accused’s credibility does not equate to proof of guilt beyond reasonable doubt.
Page | 66
OTHER BURDENS
JUDGEMENT Dismissed
Analysis Elements:
Page | 67
*Unlawful attack, (C has this, both objective and subjective)
*Reasonable apprehension of harm and death, and (C has this both objective and subjective)
*Reasonable apprehension of no alternative to not be hurt or killed (this is where it fails, on the objective part)
→ It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot – the accused must be
able to point to a reasonable ground for that belief
→ The belief he had no option but to kill must be objectively reasonable
→ For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds
that his own safety and survival depended on killing the victim at that moment
Comments:
When doing air of reality test for self-defence, must do it both objectively and subjectively. Therefore you would be looking at
the 3 elements from the test 2 times.
Page | 68
R. v. Oakes, S.C.C. (1986)
Oakes charged with unlawful possession of narcotic for purpose of trafficking. Oakes claims s.8 of Narcotics Act (assumption
FACTS that accused had narcotics for selling unless proved otherwise by accused) violates presumption of innocence contained in
s.11(d) of Charter.
Provision which requires accused to disprove (on balance of probabilities) existence of presumed fact, which is important
NOTES element of offence in question, violates s.11(d) presumption of innocence, not saved by s.1 in this case – no rational
From connection between basic fact of possession, presumed fact of possession for purpose of trafficking, eg., possession of small
judgement quantity of narcotics does not support inference of trafficking
JUDGEMENT The appeal should be allowed. The conviction should be set aside and a new trial ordered.
Page | 69
R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.)
H and M pleaded guilty to importing cocaine. H, a 26-year-old black single mother with no criminal record, agreed to act as a
courier for compensation. She had no financial interest in the cocaine and no involvement in its proposed distribution. H had
a grade nine education and few employable skills, and was unemployed at the time of sentencing. M was a black single
mother, aged 31 at the time of the offence, with no criminal record. Both accused were remorseful. The trial judge found that
FACTS the accused should receive conditional sentences.
The trial judge introduced hundreds of pages of his own statistical research into societal ills into the proceedings, and relied
upon these materials in support of his conclusion that the accused, because of their race, gender and poverty, were
particularly vulnerable targets to those who sought out individuals to act as cocaine couriers. He gave conditional sentence
and suspended sentence with curfew to both. The Crown appealed.
ISSUE Did the trial judge compromise his neutrality?
ROLE OF PROSECUTOR
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Krieger v. Law Society of Alberta, [2002] 2 S.C.R. 372
K was assigned to prosecute an accused charged with murder. Prior to the commencement of the preliminary inquiry, he
received the results of DNA and biological tests conducted on blood found at the scene of the crime which implicated a
different person than the accused. Ten days later, he advised the accused’s counsel that the results of the testing would not
be available in time for the preliminary inquiry. The defence counsel only learned of the testing results at the preliminary
hearing, and complained to the Deputy Attorney General that there had been a lack of timely and adequate disclosure. K was
FACTS reprimanded and removed from the case after a finding that the delay was unjustified. Six months later, the accused
complained to the appellant Law Society about K’s conduct.
K sought an order that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown
prosecutor and an order that the Rule of the Code of Professional Conduct requiring a prosecutor to make timely disclosure to
the accused or defence counsel was of no force and effect. K’s application was dismissed by the Court of Queen’s Bench, but
that decision was overturned by the Court of Appeal.
ISSUE Did Law society have jurisdiction to review Crown’s prosecutorial discretion?
JUDGEMENT The appeal should be allowed and the trial judgment restored.
Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. Decisions that do not go to the
nature and extent of the prosecution, such as the decisions that govern a Crown prosecutor’s tactics or conduct
before the court, do not fall within the scope of prosecutorial discretion, however, but are governed by the inherent
jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.
NOTES Because Crown prosecutors must be members of the Law Society, they are subject to the Law Society’s code of
From professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the
judgement conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a
legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting
dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General
had reviewed it from the perspective of an employer. A clear distinction exists between prosecutorial discretion and
professional conduct, and only the latter can be regulated by the Law Society.
Page | 71
R. v. Nixon, 2011 SCC 34
The accused drove her motor home through an intersection and struck another vehicle, killing a husband and wife and
injuring their young son. She was charged with several CC offences reference to dangerous driving. Counsel initially entered
into a plea agreement which would reduce sentence to a fine under provincial traffic act, in return for which the Crown
agreed to withdraw the CC charges.
The Office of the Attorney General believed that plea to careless driving in the circumstances was contrary to the interests of
justice and would bring the administration of justice into disrepute. Crown counsel was instructed to withdraw the plea
FACTS agreement and to proceed to trial. In response, the accused brought a S.7 Charter application alleging abuse of process and
seeking a court direction requiring the Crown to complete the plea agreement.
The application judge held that negotiations between counsel after charges are laid are matters of tactics or conduct which
are subject to review by the court, and that the repudiation of the plea agreement, in this case, was not justified. He
concluded that the accused’s S. 7 Charter right was breached and he directed the Crown to proceed with the agreement. The
Court of Appeal allowed the Crown’s appeal, finding that the repudiation of a plea agreement is a matter of prosecutorial
discretion not reviewable by the courts, subject to the doctrine of abuse of process.
ISSUE Was accused’s S.7 right violated?
There are two categories of abuse of process under s. 7 of the Charter:
(1) prosecutorial conduct affecting the fairness of the trial; and
(2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of
the judicial process.
While s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be
NOTES
made out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of
From
the justice system.
judgement
Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse
of process.
The situations in which the Crown can properly repudiate a plea agreement are, and must remain, very rare. It is the
circumstances surrounding the repudiation of a plea agreement which should be reviewed to determine whether
that decision amounts to an abuse of process.
Page | 72
R. v. Babos, 2014 SCC 16
The accused was being tried for meth related offences. During the course of the trial, the accused brought an application to
stay the proceedings for abuse of process. They alleged three forms of state misconduct: attempts by the Crown to intimidate
FACTS them into pleading guilty, collusion on the part of two police officers to mislead the court about the seizure of a firearm, and
improper means used by the Crown in obtaining the medical records of one of the accused. The trial judge stayed the
proceedings. The Court of Appeal set aside the stay and ordered a new trial.
ISSUE Did prosecutor abuse the process?
When the residual category is invoked, the first stage of the test is met when it is established that the state has
engaged in conduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial
in the face of that conduct would be harmful to the integrity of the justice system.
At the second stage of the test, the focus is on whether an alternate remedy short of a stay of proceedings will
adequately dissociate the justice system from the impugned state conduct going forward.
Finally, the court must decide whether staying the proceedings or having a trial despite the impugned conduct
better protects the integrity of the justice system.
The court must consider such things as the nature and seriousness of the impugned conduct, whether the
conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he
or she faces, and the interests of society in having the charges disposed of on the merits.
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R. v. Anderson, 2014 SCC 41
The accused was convicted of impaired driving. The offence of impaired driving carries with it a minimum sentence. These
mandatory minimum sentences apply only if the Crown notifies the accused of its intention to seek a greater punishment
prior to any plea. Crown counsel served a Notice of intent to seek greater punishment by reason of the accused’s four
FACTS
previous impaired driving convictions. The trial judge held that Crown counsel breached S. 7 of the Charter by tendering the
Notice without considering the accused’s Aboriginal status. The accused was sentenced to a 90-day intermittent sentence.
The Court of Appeal dismissed an appeal from sentence.
1) Whether S. 7 of the Charter requires the Crown to consider an accused’s Aboriginal status when making decisions
ISSUE that limit the sentencing options available to a judge (2) whet her the decision to tender the Notice is a matter of
“core” prosecutorial discretion, and if so, the standard by which it may be reviewed.
The appeal should be allowed and a term of imprisonment of 120 days should be substituted, with service of the remainder of
JUDGEMENT
the sentence stayed in accordance with the concession of the Crown.
Crown prosecutors are not constitutionally required to consider the Aboriginal status of an accused when deciding
whether or not to seek a mandatory minimum sentence for impaired driving for two reasons.
While it is a principle of fundamental justice that a sentence be proportionate to the gravity of the offence and the
degree of responsibility of the offender, the duty to impose a proportionate sentence rests upon judges, not Crown
prosecutors.
NOTES
Prosecutorial discretion is reviewable for abuse of process. The abuse of process doctrine is available where there is
From
judgement evidence that the Crown’s conduct is egregious and seriously compromises trial fairness or the integrity of the justice
system. The burden of proof lies on the accused to establish, on a balance of probabilities, a proper evidentiary
foundation to proceed with an abuse of process claim, before requiring the Crown to provide reasons justifying its
decision.
Tendering the Notice was a matter of prosecutorial discretion.
POLICE POWERS
Page | 74
R. v. Grant, 2009 SCC 32
Psychological Detention
Police officers were on patrol in school areas. 2 of the officers were dressed in plain clothes. 1 in uniform in a different vehicle.
(3 officers were larger then Grant). 2 officers felt Grant looked suspicious, and asked the other officer to go talk to him.
FACTS He went to talk to him, Mr. Grant was nervous. Grant was told to keep his hands in front of him. The other two officers went to
identify themselves and stood behind other officer and in front of Grant, blocking his way to go forward. Grant was asked a
series of questions, when he told them he had a firearm they immediately arrested him.
What constitutes detention?
ISSUE
Were Grant's rights under ss. 8, 9 and 10(b) of the Charter violated?
PRINCIPLE Psychological detention when reasonable person may conclude that he/she has no choice but to comply.
• Detention under ss. 9 and 10 of Charter refers to suspension of person’s liberty interest by significant physical or
psychological restraint
• Psychological detention establish where individual has legal obligation to comply with restrictive request or demand,
or reasonable person would conclude by reason of state conduct that he/she had no choice but to comply
• In cases where there is no physical restraint or legal obligation, it may be unclear whether person detained – to
determine whether reasonable person in individual’s circumstances would conclude he/she deprived by state of
NOTES liberty of choice, court may consider following factors:
From (a) circumstances giving rise to encounter as they would reasonably be perceived by the individual ( whether the
judgement police were providing general assistance; maintaining order; making general inquiries regarding a particular
occurrence; or, singling out the individual for focussed investigation.);
(b) nature of police conduct, including the language used; the use of physical contact; the place where the interaction
occurred; the presence of others; and the duration of the encounter.;
(c) particular characteristics or circumstances of individual where relevant, including age; physical stature; minority
status; level of sophistication.
(summary para 44)
Page | 75
R. v. Suberu, 2009 SCC 33
Constable R responded to a call about a person attempting to use a stolen credit card at a store. When R went to store, Suberu
walked past R and said he was leaving. R followed Suberu outside and said “Wait a minute. I need to talk to you before you go
anywhere”. While R was talking to Suberu, he received information of description and licence plate number of the van driven
by the men who used a stolen credit card at another store earlier that day. The description and the licence plate number both
matched Suberu’s van. R also saw shopping bags between and behind the front seats.
At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his
arrest and cautioned him as to his right to counsel. S brought an application under s. 24(2) of the Charter, seeking the
FACTS
exclusion of any statements made by him and of the physical evidence seized at the time of his arrest, on the ground that this
evidence had been obtained in a manner that infringed his s. 10(b) right to counsel. Suberu argued that he was detained as
soon as he was told to “wait” and was engaged in questioning by R. He also argued that R’s failure to inform him of his s. 10(b)
right to counsel at that point in time constituted a Charter breach.
The trial judge dismissed the application. S was ultimately convicted at trial on several counts. Both the summary conviction
appeal court and the Court of Appeal upheld the convictions and the trial judge’s ruling that S’s right to counsel was not
violated.
ISSUE Was the accused detained when he was followed for questioning?
Page | 76
ISSUE Was Aucoin’s search unreasonable under S.8 of Charter?
JUDGEMENT Appeal dismissed (though court gave some direction regarding unlawful search)
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was
carried out is reasonable. The question is not whether there was authority to detain accused, but whether officer was justified
in exercising it in the present circumstances.
Whether there were other reasonable means by which the officer could have addressed his concern about A disappearing into
NOTES the crowd. The officer’s actions, though carried out in good faith, were not reasonably necessary. Because A’s detention in the
From back of the cruiser would have been unlawful, it cannot constitute the requisite basis in law to authorize the warrantless
judgement pat-down search.
Note: Despite the above, Court declared that the search was in good faith
There were unusual circumstances that prompted the police officer’s conduct in this case and he acted in good faith. When the
police act in good faith and without deliberate disregard for or ignorance of Charter rights, seriousness of the breach may be
diminished.
The appeal should be allowed. The exclusionary order of the Court of Appeal is set aside and the order of a new trial is
JUDGEMENT
affirmed.
PRINCIPLE Personal use computers (no matter how infrequently used for personal use), have reasonable expectation of privacy.
NOTES Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain
From information that is meaningful, intimate, and touching on the user’s biographical core. While workplace policies and
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practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do
not in themselves remove the expectation entirely. A reasonable though diminished expectation of privacy is nonetheless
a reasonable expectation of privacy, protected by s. 8 of the Charter.
judgement
Accused has reasonable expectation of privacy in use of his computer, even though extent of privacy diminished;
When computer handed over to police accused’s s.8 Charter rights against unreasonable search and seizure violated.
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R. v. MacDonald, 2014 SCC 3
Police responded to a noise complaint at M’s home. When M opened the door, an officer observed that M had an object in his
hand, hidden behind his leg. The officer twice asked M what was in his hand. Because M did not answer, the officer pushed the
door open a few inches further to see. A struggle ensued and M was disarmed of a loaded handgun. M was licensed to possess
and transport the handgun in Alberta, but not in Nova Scotia as he believed he was.
FACTS
At trial, the judge concluded that M’s possession of the gun was unauthorized. He also concluded that the officer’s pushing the
door open further did not breach M’s s. 8 Charter right to be free from unreasonable search. The trial judge convicted M of
multiple accounts related to firearm. Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s s. 8
Charter right, but significantly reduced the sentences.
ISSUE Was M’s S.8 Charter right infringed?
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R. v. Hall, S.C.C. (2002)
David Scott Hall was charged with the murder of a woman in a high-profile case. He applied for bail pending trial. The judge
denied the application—not for reasons of ensuring appearance in court or protecting the public—but in order "to maintain
FACTS confidence in the administration of justice". Paragraph 515(10)(c) of the Criminal Code allows the denial of bail for this reason.
Hall appealed the decision on the basis that section 515(10)(c) violated the right "not to be denied reasonable bail without just
cause" under section 11(e) of the Charter.
ISSUE Did S. 515(10)(c) CC violate Charter right 11(e)?
• S.11(e) Charter guarantees right not to be denied reasonable bail without just cause.
NOTES
From • Portion of s.515(10)(c) permitting detention “on any other just cause being shown” unconstitutional as open-ended
judgement judicial discretion to refuse bail;
• Phrase “without limiting the generality of the foregoing” also void for vagueness;
• But phrase “to maintain confidence in the administration of justice” valid – provides basis for denying bail not covered
by subs.(10)(a) and (b), essential that a means of denying bail be available because public confidence essential to
proper functioning of bail system, justice system as a whole.
DISCLOSURE
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R v Stinchcombe, [1991] 3 S.C.R. 326
Accused was a lawyer charged with breach of trust, theft fraud. His former secretary was defence witness and gave favorable
evidence for him, at prelim enquiry. After that and before trial RCMP official taped her interview. During trial, Crown took her
written statements. Defence counsel was told about the existence of tape and statement but not told about the content. His
FACTS request for disclosure denied.
During trial defence counsel learnt that the witness would not be called upon. He brought an order that witness be called or
Crown disclose contents of statements. Trial judge dismissed application. Trial proceeded, accused charged with breach of
trust and fraud. Stay on theft charges. Appeal court upheld convictions.
ISSUE Is disclosure at discretion of crown?
PRINCIPLE Crown has a legal duty to disclose all relevant information to defence.
• crown has legal duty to disclose all relevant information to defense – fruits of investigation in possession of crown
not property of crown for use in securing conviction but property of public to be used to ensure justice is done; s.7
Charter right to full answer and defence
• Obligation to disclose subject to discretion as to withholding information and timing, manner of disclosure, eg.,
crown has duty to respect rules of privilege, protect identity of informers (paras 18-21)
• Discretion of crown also to be exercised as to relevance of information
NOTES
• Crown’s discretion reviewable by trial judge – to be guided by general principle that information should not be
From
withheld if there is reasonable possibility it will impair right of accused to make full answer and defence – absolute
judgement
withholding of information which is relevant to defence can only be justified on basis of existence of legal privilege
which excludes information from disclosure – accused to bring to attention of judge at earliest opportunity (para 22-
23)
• Initial disclosure to occur before accused called upon to elect mode of trial or plead -subject to crown’s discretion, all
relevant information must be disclosed, whether crown intends to introduce it into evidence, and whether evidence
inculpatory or exculpatory (para 28)
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R v O’Connor, [1995] 4 S.C.R. 411
3rd Party Disclosure- Production
Accused was charged with several counts of sexual assault. He obtained pre-trial order for disclosure of the complainants’
FACTS entire medical, counselling and school records. When accused was unsuccessful in obtaining all these records, trial judge
entered a stay.
ISSUE What is the procedure to be applied when accused seeks documents in the hand of third party?
The Court held that the medical and counselling records of a complainant in a sexual assault case that are held by a third
party can be disclosed by order of the judge if they meet two requirements.
(i) The applicant must establish, without seeing them, that the records are likely to be relevant to the case. (relevant
but not paramount condition)
(ii) The judge must review the records and decide whether to disclose them based on the balancing the right to
make full answer and defence, and the right to privacy. (additional factors)
NOTES
Where trial judge decides whether to order the record or any portion of it, a number of factors should be considered:
From
(a) Extent to which record is essential to make full answer and defence by accused;
judgement
(b) Probative value of record;
(c) Nature and extent of reasonable expectation of privacy in records;
(d) Whether production would be based on any discriminatory belief or bias;
(e) Potential prejudice to complainant’s dignity, privacy or security
- Court lists 5 types of records that fall under this category (Ferguson Five list)
(i) Conviction of guilt u/Criminal Code (CC) or Controlled drugs substances act (CDSA), for which no pardon is
granted;
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(ii) Outstanding charges under CC or CDSA
(iii) Conviction or finding of guilt under any other Federal or Provincial statute
(iv) Finding gilt for misconduct under Police Service Act;
(v) Current charge of misconduct under Police Service Act for which Notice of Hearing has been issued.
- Records like these need to be provided by Crown without prompting (though concerned officer needs to be given
notice of intention to disclose)
- Records not so related and in possession of third parties subject to Code third party record regime, s.278.1, or
common law test; must meet likely relevance test, if so to be produced to court for inspection, then second stage of
test where court balances privacy interests of third party with accused’s right to make full answer and defence
PRELIMINARY ENQUIRY
The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence
PRINCIPLE
upon which a reasonable jury properly instructed could return a verdict of guilty.
In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she
NOTES assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be
From reasonable for a properly instructed jury to infer guilt. This task of limited weighing never requires consideration of the
judgement inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the
inferences to be drawn from the circumstantial evidence.
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JURY TRIAL
PRINCIPLE challenge based on racial prejudice do not require accused to present evidence (para 35)
3 types of juror prejudice:
- Interest prejudice: juror has interest in case or one of the parties;
- Specific prejudice: attitude or beliefs arising from personal knowledge of case, mass media, public discussion or
NOTES
rumors
From
- Generic prejudice (issue in this case): stereotypical attitudes about parties or crime itself- bias against racial or ethnic
judgement
group or persons charges with sex abuse.
It is impossible for accused to evidence that jurors will be unable to set aside their prejudice. Racial prejudice is at community
level and impossible for jurors to set aside their prejudice.
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The appeal should be dismissed. The nature of the charges against the accused did not give rise to the right to challenge
JUDGEMENT
prospective jurors for cause on the ground of partiality.
Absent proof, it cannot be simply assumed that strong beliefs and emotions translate into a realistic potential for partiality,
PRINCIPLE
granting right to challenge for cause
NOTES Many criminal trials involve strong views and can stir up powerful emotions including revulsion and revulsion. This is the
From nature of trial process. However, there needs to be evidence that strong emotions and believes can translate into realistic
judgement potential for partiality, giving rise to challenge for cause.
Authorities are entitled to conduct record checks of potential jury members, till the time it does not impact fairness
PRINCIPLE
of trial.
• Juror eligibility under CC and Provincial statues may render jurors with criminal record to be disqualified or result in
his/her being removed for cause.
NOTES
• Authorities entitled to conduct record checks on potential jury members to see if eligible for jury duty or for basis to
From
bring challenge for cause,
judgement
• But defense should have been provided with information as part of Crown’s disclosure obligation –
• Jury selection or fairness of trial not impacted however
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SENTENCING
NOTES proportionality central to sentencing process; sentencing judge has wide discretion, but constrained by Code provisions and
From determining what is fit sentence for offence and circumstances of offence – Charter breach may be appropriate to consider as
judgement factor on sentencing, in exceptional circumstances sentence might be reduced as result as remedy under s.24(1) Charter
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JUDGEMENT 25 yrs term upheld
PRINCIPLE Judges should look at systemic factors when sentencing Aboriginal Offenders
NOTES Summary of principles for sentencing aboriginal offenders (para. 93):
From • CC s.718.2(e) requires courts to consider all available sanctions other than jail, pay particular attention to
judgement circumstances of aboriginal offenders
• S.718.2(e) remedial in nature, to be used to address problem of overrepresentation of aboriginals in jail, promote use
of restorative justice
• All of principles and factors set out under Part XXIII to be considered on sentencing, attention to be paid to new
emphasis on decreasing use of jail
• Sentencing individual process, court must consider what is fit sentence, but s.718.2(e) directs courts to alter method
of analysis when determining what is fit sentence for aboriginal offender, eg., consider what systemic or background
factors may have played role in offence; judicial notice may be taken of systemic and background factors affecting
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aboriginals
• S.718.2(e) not to be taken as means of automatically reducing prison sentence for aboriginals or imposing more
lenient sentence, although jail term may be shorter in some cases for same offence for non-aboriginal offender
Constitutional exemptions of S. 12 (cruel and unusual punishment) should not be recognised as remedy for law
PRINCIPLE
prescribing minimum sentence
• Mandatory minimum 4 year sentence for manslaughter with firearm not cruel or unusual punishment, s.236(a) Code
• Issue in case was whether sentence should be more than 4 years, or whether facts of case such that 4 year sentence
NOTES
would be grossly disproportionate – on facts of case was not cruel or unusual punishment
From
• In any event constitutional exemption not appropriate remedy for Charter s.12 violation – if law imposing minimum
judgement
sentence is unconstitutional on facts of particular case, it should be declared inconsistent with Charter and hence of
no force or effect under s.52 of Constitution Act, 1982.
JUDGEMENT Appeal dismissed for all counts but one. Accused’s time spent in pre-trial custody given credit towards sentencing.
In applying S.12 charter, court must be satisfied that the punishment imposed is grossly disproportionate for offender such
PRINCIPLE
that Canadians would find the punishment abhorrent or intolerable
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• criminal negligence causing death with firearm minimum 4 year sentence not cruel or unusual punishment, s.220(a)
Code
• Section 12 Charter provides broad protection to Canadians against punishment which is so excessive as to outrage
society’s sense of decency – court must be satisfied that the punishment imposed is grossly disproportionate for
NOTES
offender such that Canadians would find the punishment abhorrent or intolerable;
From
• in assessing whether sentence is grossly disproportionate, court must first consider gravity of offence, personal
judgement
characteristics of offender and particular circumstances of case to determine what range of sentences would have
been appropriate
• If sentence is grossly disproportionate for individual offender, court proceeds to analyze whether infringement of
s.12 can be justified under s.1 of Charter
NOTES • Proportionality is fundamental principle of sentencing, collateral consequences (immigration) may be taken into
From account so long as part of proportionality.
judgement • If offence not too grave for sentencing judge to reject lower sentence.
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