Criminal Mind Map

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com
General
1. The Sources of Criminal Law

 Most Criminal offences are created by the Criminal Code. (exceptions CDSA-Drugs, Firearms)
 Frey v Fedoruk [1950] SCR 51- that no one shall be convicted of a crime unless the offence with which he is charged
is recognized as in the provisions of the Criminal Code or can established by the authority of some reported case as an
offence known to the law.
 s9 Code- No person shall be convicted or discharged under s730 a) common law offence b)any UK offence c)any
act or ordinance from province/territory.
 Common law offences are not allowed (s9) Code, common law defences are allowed s8(3) Code in Criminal law and
can be created by the court. .
 R v Jobidon [1991] 2SCR 71 - Common law principles apply to the extent that they are not inconsistent with the Code
or other Act of Parliament and have not been altered by them. In particular, s. 8(3) of the Code expressly provides that
exculpatory defences continue so to operate to exclude criminal liability.
 Levis (City) v. Tetrault [2006] 1SCR 420. – SCC recognized a common law defence. T, who is charged with driving a
motor vehicle without a valid driver’s licence, raised the defence of due diligence, stating that he was unaware that
the date appearing on his licence was the date the licence expired rather than a payment due date.
2. The Power to Create Criminal Offences and Rules of Criminal Procedure
A. Constitutional Division of Powers- Federal/Provincial both have powers to create non-criminal offences (regulatory
offences) & use jail for enforcement.
 s91 (27) Constitution Act 1867 Federal government- can only create criminal offences “true crimes”
 s92 (14) Constitution Act 1867 Provincial Governments do have jurisdiction over the administration of justice
 Procedural during criminal hearings is governed by Federal Rules and by the common law.
 R v Malmo-Levine 2003 SCC 74- whether the Narcotics Control Act falls under Parliament’s residuary jurisdiction for
POGG, or whether it is an exercise of the criminal law power under s. 91(27) of the Constitution Act, 1867, or whether, as
the appellants contend, it falls within neither head of federal jurisdiction and is ultra vires.
 POGG argument - Court upheld the constitutional validity of the NCA under Parliament’s residual authority to legislate
for POGG: R. v. Hauser, [1979]. In Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] the Court outlined
three instances in which the federal residual power applies: (i) the existence of a national emergency; (ii) with respect to a
subject matter which did not exist at the time of Confederation and is clearly not in a class of matters of a merely local or
private nature; (iii) where the subject matter “goes beyond local or provincial concern and must, from its inherent
nature, be the concern of the Dominion as a whole”. Narcotics fall under the third category of the POGG power.
-s91(27)Argument of the Constitution Act 1867 This case confirms that the NCA in general, and the scheduling of
marihuana in particular, properly fall within Parliament’s legislative competence under s. 91(27) of the Constitution Act, 1867.-
B. The Canadian Charter of Rights and Freedoms
 The Charter impacts criminal law and imposes limits on the jurisdictions of all governments subject s1. (the
reasonable limitations clause) & the seldom used s32 (notwithstanding clause)
 The Charter can be used by courts to invalidate offences that Parliament has created (not common) and used to strike
down criminal procedure (not common)
 R v Heywood [1994] 3SCR 761- ( criminal offence being struck down)- convictions of sexual assault involving
children made him subject to the prohibition in s. 179(1)(b) of the Criminal Code that he not commit vagrancy by
loitering near playgrounds, school yards or public parks. The use of the terms " at or near a playground" and "in or
near a public park"-
Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. They are related in that
both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of
vagueness, the means are not clearly defined. In the case of overbreadth, the means are too sweeping in relation to the
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objective. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate. Overbreadth and thus
the deprivation of liberty it entails is not in accordance with the principles of fundamental justice.
The Supreme Court judge accepted the trial judge's finding that s. 179(1)(b) violated ss. 7 and 11(d) of the Charter,
but like the trial judge found that the breaches were justified under s. 1.
R v Oakes [1986] 1 SCR 103 (rule of criminal procedure being struck down) Issue: a finding that s. 11(d)(presumption of
innocence) of the Charter had been violated, was the issue of whether or not s. 8 of the Narcotic Control Act was a reasonable
limit prescribed by law and demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter.
If a law is found to have breached a Charter right then in it moves to a second stage of analysis under s1. The 2nd stage of JR
is to determine whether the law is justified under s 1 as a “reasonable limit prescribed by law” that can be “demonstrably
justified in a free and democratic society.” (Oakes test below) The reviewing court must decide whether the law should be
upheld despite the fact that it limits a Charter right.
Dickson C.J. stated that s1 performed two functions. It not only provides for limits on the guaranteed rights; it also expressly
guaranteed the rights and freedoms set out in the Charter. R v Oakes (1986
“Reasonably and demonstrably justified”-both must be satisfied. Courts articulate this as a single standard.
“Oakes Test” 38.8(b) Dickson CJ
There are 4 criteria to be satisfied by a law that qualifies as a “reasonable limit that can be demonstrably justified in a free and
democratic society”:
1. sufficiently important objective: The law must pursue an objective that is sufficiently important to justify limiting a
Charter right. (very rare cases will court object to legislative judgment that the object of law is important enough to
limit Charter.
2. Rational connection: The law must be rationally connected to the objective.(very rare that law is not rationally
connect to the objective)
3. Least drastic means: The law must impair the right no more that is necessary to accomplish the objective (most
issues)
4. proportionate effect: The law must not have disproportionately severe effect on the person to whom it applies.
Indecency” R. v. Labaye, [2005] S.C.J. No. 83- - s210(1) keeping bawdy house for practice of acts of indecency. Accused
apartment held to fall within public place and sex exchanges were social harm. SCC set aside conviction. Conduct that causes
harm or presents significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value
reflected in the Constitution by confronting
a) comforting members of the public that significantly interfere with the autonomy and liberty
b) or predisposing others in antisocial behaviour or;
c) physically or psychologically harming persons involved and that harm or risk is of a degree that is
compatible with the proper function of society
 objective analysis based on the evidence
 SCC acquitted the accused bc : public not confronted – only predisposed participants -no evidence of anti-social acts/
attitudes toward men or women (such as pressure, payment for sex, or objectifying participants) -that the
establishment was commercial – does not nec make the sex activities commercial -ony risk factor = STDs but this is
not a factor related to “indecency” harm test embraces attitudinal harm --> conduct that may violate societal norms
protected by the Charter such as equality and digity for humans
dissent: disapproved of new approach taken by majority judges to indecency analysis --> replacing the community standard of
tolerance with a harm based test all new concept to make serious social harm the test for indecency *fundamental social and
ethical considerations are enough to criminalize conduct --> do not req “harm”
(c) Rules of Practice
 s482 Code permits courts to create rules of practice to govern the administrative mechanics of practice in criminal
courts.
R. v. Gundy, [2008] O.J. No. 1410-

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3. The Classification of Offences
2 types of offences:
a) summary offences conviction offences (max 6 months or $2000 fine or both)- only mode of trial for them is in the court
of criminal jurisdiction s469CCC
b) indictable offences (usually more than 2 years imprisonment) s468CC–the accused can choose whether to have a trial by
(called an “election” see below):
I. Superior court judge and jury,
II. by superior court judge alone
III. by provincial court judge
“hybrid offences” - a hybrid classification to allow the prosecutor discretion as to whether to proceed by indictable offence
procedure or summary conviction procedure.
Elections- Code can take away an “election” in a number of situations:
I. section 469 –lists a series of offences that must be tried by judge and jury ( ie murder-public interest demands a jury
trial)
II. section 553- lists offences that will be tried in provincial court so the accused as
Note: if a trial will eventually take place in a superior court (either judge alone or a judge and jury) the matter does not go
immediately to trial-can be first referred to a preliminary inquiry.
 Provincial jails - less than 2 years in jail

 Federal penitentiaries –there to serve sentences for indictable offences.

Classification of offences is important because it can:
a) affected the scope of police powers;

b) Affect the manner in which proceedings are conducted in court;
c) Time limitations – no statute of limitations for indictable offences but a 6 month limit for summary convictions after
the completion of the offence.
d) arrangements for appeal
2 modes of trial:
a) trial in front of “court of criminal jurisdiction”

b) superior court of criminal jurisdiction
-the superior court can hear matters in 2 ways: either without a jury (a judge alone trial) or with a jury
Note: Not all less serious offences get sent to the lower courts and all serious matters to the superior courts
4. Interpreting Criminal Provisions
Definitions
 s2 Code-contains definitions that apply throughout the code.

 Code divided into Parts-each part at the beginning has definitions.
3 common approaches to interpreting criminal provisions:
1. purposive approach- The purposive approach acknowledges the limits of grammatical or dictionary based
interpretation of words and instructs courts to look at a broader purpose or Parliaments intent in making the
provision. R vD’Angelo, [2002]-[sexual]- public swimming area
2. strict construction- The strict construction is a doctrine that laws should be interpreted strictly to the benefit of the accused. It is
sometimes in tension with the purposive approach. R v Pare (1987)- “reasonable doubts be resolved in favour of the accused.
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 R v MacIntosh (1995) - strict construction in favour of the liberty of the accused suggests that offences but not defences should be
given a restrictive reading.
 read English –French versions of code-this practice was used in R v J.(D.), [2002) with s 72 Code “breaks and enter” when the
courts looked at different versions of the “enters” and both copies w ith both official languages were read. Official languages should
be consulted to see if one them resolves an ambiguity. This should be done before doctrine of strict construction. If both versions
are not consistent the court should select the more restrictive version (note: it would not be fair because the court would be
making an undue judicial amendment of the statue
 A court can remedy ambiguities in the law by interpreting the statue in be purposive approach, refer to the English/French copies
or apply the doctrine of strict interpretation.
Examples where courts use purposive even though restrictive construction was possible.
 R vD’Angelo, [2002]-[sexual]- public swimming area-condo pool- court used purposive interpretation for 2 reasons. 1. lost of kids
were in the pool. 2. The societal interest in protecting children from sexual abuse supports Parliament's use of the preventive part of its
criminal law power. I agree with this forceful statement. In my view, it is as applicable to the interpretation of s. 161 of the Code as it
was to s. 810.1.
 R v Pare [1987] 2SCR 618 – This case was about a young boy being sexually assaulted then killed. Accused was charged with 214(5)
but issues with “while committing” was raised. A strict interpretation would have given a ridiculous result as the 2 minute wait in
between the assault and murder would have resulted in a lesser charge. This principle is that where a murder is committed by someone
already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime. Parliament
has chosen to treat these murders as murders in the first degree. Courts used purposive interpretation.
- R v. Richer (1993)- [sexual assault] purposive reasoning was applied to hold that an accused murders a person “while committing” a
sexual assault, even if the sexual assault takes place after the murder.
- R v. Prevost (1998)-[murder] A police is “murdered acting in the course of his duties” when on duty but not actually enforcing the law.
- R v. Hasselwander (1993)[ firearms]- that a fire arm is a prohibited weapon “capable of firing bullets in rapid succession” if it can be
readily converted to do so.
- R v. Russel [2001][murder]- SCC went further than Pare to hold that 1st degree murder can be committed even if the underlying
offence was committed against a 3RD party. s231(5) Code – all that is necessary was that the killing was closely connected, temporally
and casually with an enumerated offence.
- R v Labaye [2005] –no reference to strict construction but has interpret indecency quite narrow. They were charged with keeping a
bawdy house. A bawdy house is defined as a house for prostitution and indency.( see -sex crimes)
“de minimis non curat lex” de minimus- This concept recognizes that the law should not punish the mere triffle. It would allow for
an aquitall of a person even if s/he were
 R. v. Labaye, [2005] S.C.J. – Swingers club in Montreal gave members codes to access thirds floor apartment for groups
sex. No money was paid and no one participated involuntarily. Court - Indecency has two meanings, one moral and one
legal.
 Indecency Test - two steps test ....The first step is concerned with the nature of the harm. It asks whether the Crown has established
a harm or significant risk of harm to others that is grounded in norms which our society has formally recognized in its Constitution or
similar fundamental laws. The second step is concerned with the degree of the harm. It asks whether the harm in its degree is
incompatible with the proper functioning of society. Both elements must be proved beyond a reasonable doubt before acts can be
considered indecent under the Criminal Code.
 “Indecency” Little Sisters at para. 59, this was described as “conduct which society formally recognizes as incompatible with its
proper functioning”. First, the words “formally recognize” suggest that the harm must be grounded in norms which our society has
recognized in its Constitution or similar fundamental laws. This means that the inquiry is not based on individual notions of harm, nor
on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its proper
functioning. Second, the harm must be serious in degree. It must not only detract from proper societal functioning, but must be
incompatible with it.
 Canadian Foundation for Children, Youth & the Law v Canada (A.G.), [2004] “reasonable force” by way of correction in s43 of the
CC. It appeared vague and many lower courts that found that s43 did not provide meaningful standards. The SCC ignored this body of
law and instead relied on expert evidence. “on the basis of expert evidence”- so interpreted she held that s43 “sets real boundaries and
delineates a risk zone for criminal sanction” that is sufficiently clear standard to avoid the charge of unconstitutional vagueness
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THE ELEMENTS OF A CRIMINAL or REGULATORY OFFENCE
General
 To be convicted for an offence found in the Criminal Code, the Crown must prove beyond a reasonable doubt that the accused
committed the prohibited act/omission (actus reus). Actus Reus is one element of an offence and it must coincide with mens
(mental element) which can be often be subjective or sometimes objective state of mind of the accused. Subject to s1of the Charter,
the Crown must also prove beyond a reasonable doubt that the accused did not have a relevant defence. [4 mins]
 Regulatory offences are often in a valid statue/regulation and s9 Code states no person will be convicted of a common law offence
exempt (contempt of court).
Territorial and Age Based Restrictions

 s6(2) Code- No person can be convicted of an offences committed outside Canada. subject to exceptions ( war crimes, crimes on
aircraft, crimes with nuclear devices, sexual offences against children by Canadians abroad)
 s465 Code- conspiracy provisions can apply
 s13 Code- no person will be convicted of an offence while that person was under 12. If 12-18 they can be convicted of Criminal
Code offences but are tried and punished under the Young Offenders Act 2002.
Actus Reus
 The prohibited act depends on how the legislature has worded the offence and how the provision is interpreted. ( see
above in interpretation purposive, strict, French/English)
 self note: What section is relative and describe the actus reus which is prohibited.
 Ie- The first issue is to determine what is the prohibited act/omission/consequence?
 Does this actus reus have anything do with voluntariness, possession, causation, consent?
1. Actus Reus- Voluntariness of the Act
 R v Theroux (1993)- McLachlin J-mens reus of an offence “does not encompass all of the mental elements of a crime “because the
actus reus has its own mental element –namely that “the act must be the voluntary act of the accused for the actus reus to exist.
 R v King (1962) There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision.
This approach builds a minimal mental or fault element into the actus reus and suggests that an accused who acts in voluntarily
may not have committed the actus reus.
2. Actus Reas- Act of Possession
 Actus reus can have inherent mental elements to it as it does with offences dealing with “possession”.
 Control Drugs and Substances Act s. 2 – “possession” means possession in s4.3 of the Code.
Definition s4.3 Code- “Possession”
a) a person has anything in “possession’ when he has it in his personal possession or knowingly
i) has it in the actual possession or custody of another person or
ii) has it in any place whether or not that place belongs to or is occupied by him, for the use or benefit or of
another person; and
b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his
custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession.
 This can be accomplished by direct evidence or may be inferred from circumstantial evidence.
 Possession may be actual or attributed by law.

1. actual – actual possession is proven where it is established that a person has the subject matter in his/her personal
possession.
2. attributed – possession may be attributed to someone in 3 ways.
I. (a)(i)- a person is in possession of a thing when s/he knowingly has it in the actual custody or possession of
another.
II. (a)(ii)- one is in possession when s/he knowingly has the subject matter in a place for the use or benefit of
him/herself. (irrelevant if place neither belongs to nor is occupied by the person.)
III. (b)- “constructive possession” may be attributed to person where one of two persons with knowledge and
consent of the rest, has anything in his/her custody or possession, the thing is deemed to be custody and possession
of each and all of them. (note:- person who has custody-actual possession. Possession is attributed to others or
through actual possession and the knowledge and consent of the rest.
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“Personal Possession” (a)(i) - R. v. York (2005) for the law of manual possession-Man owns warehouse and finds furniture is stolen. Wants
to get rid of the trailer and get rid of stolen furniture. Held: If defendant had physical control over an object with full knowledge of its
character then s/he will be found in personal possession of it. No matter how brief the contact-along with evidence to show the defendant
took custody of the object willingly and with the intent to deal with it in some prohibited way.
Issue York- Whether the Trial Judge Erred in Finding That the Evidence Established Beyond a Reasonable Doubt That the
Appellant Possessed the Necessary Mens Rea for the Offence of Possession of Stolen Property
In order to prove possession the Crown must establish the following:
(1) manual or physical handling of the prohibited object;
(2) knowledge; and
(3) control.
“Consent”- R. v. Marshall, [1969] –hitchhiker with car load of dope smokers-doesn’t smoke and passes the pipe. Did he consent? Although
he did pass the pipe, he did not smoke. Passing the pipe could be due to almost a reflex action. He was not in power of the people controlling
the marijuana. note to self- did he protest, say “no” not consent by words or actions?
Marshall Aiding and Abetting?
 Preston v. The King, [1949] Estey J. in giving a majority judgment stated: "Mere presence does not constitute aiding and abetting
but presence under certain circumstances may itself be evidence thereof."
 National Coal Board v. Gamble, [1958] "Mere passive acquiescence is sufficient only, I think, where the alleged aider and abettor
has the power to control the offender and is actually present when the offence is committed; for example, the owner of a car sitting
alongside his chauffeur when the latter commits an offence."
Marshall had no power to control the persons possessing the marihuana. He was not the owner of the car. In my opinion he could not be
found guilty of aiding and abetting.
 R. v. Pham, [2005] O.J. No. 5127 (Ont. C.A.) for the application of these concepts to possession of materials found in a residence.
Facts- two people shared an apartment. One tenant was busted with cocaine while the other was out. The issue at trial was whether the
appellant had knowledge and control of the cocaine found in the bathroom and therefore had it in her possession. Prosecution must
prove that knowledge had extended beyond mere quiescent knowledge and disclosed some measure of control.
“constructive joint possession s4(b)Code”- R. v. Terrence, [1983] there must be knowledge, consent, and a measure of control on
the part of the person deemed to be in possession.
“The element of knowledge” is dealt with by Watt J. R. v. Sparling, [1988]: There does not have to be direct evidence of knowledge
of drugs in a house to prove the fact. It may be established by circumstantial evidence. The finding of narcotics in plain view in the
common area of residence, the presence of a scale in a bedroom occupied by the applicant and the applicants apparent occupation of
the premises may be the requisite for knowledge.
3. Actus Reus - Consent to the prohibited Act

Sexual Offences
 The existence of consent for the purpose of defining the actus reas of sexual assault depends on the subjective perceptions of the victims
as opposed to external and objective standards of law.
 Consent- “the voluntary agreement of the complainant to engage in sexual activity in question”
 s237.1 Code No Consent where:
1) the agreement is expressed by the words or conduct of a person other than the complaint; ( agreement by third party)
2) the complainant is incapable of consenting to the activity; (The complainant is incapable of consenting)
3) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority
4) the complainant expresses, by words or conduct a lack of agreement to engage in the activity or
5) the complainant having consented to engage in sexual activity, expresses by words or conduct a lack of agreement to
engage. consent is not ???
“No Implied Consent”- R v Ewanchuck (1999)- SCC had rejected the defence of implied consent to sexual assault. The idea that although
the complainant did not actually consent, her conduct failed to meet an objective standard of consent.
 As mattering of determine the actus reas of consent “the absence of consent is subjective and determined by reference to the
complainant subjective internal state of mind toward the touching at the time it occurred. If the trier of fact accepts the complaint
testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is
established.
“Sexual Assault elements”- R. v. Ewanchuk, [1999] - A conviction for sexual assault requires proof beyond reasonable doubt of two
basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted
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sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either
by words or actions, from the person being touched.
 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and
(iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s
actions were voluntary. The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his behaviour.
The absence of consent, however, is purely subjective and determined by reference to the complainant’s subjective internal state of
mind towards the touching, at the time it occurred.
 The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken
belief in consent is raised in the mens rea stage of the inquiry
 The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack
of consent on the part of the person touched.
 The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The defence of
mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused. The accused need not testify in order to
raise the issue.
 R. v. Jobidon, [1991]- illustration common law influence on the reach of statutory provisions) fist fight- with consent issue-
whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.
“Consent to Assault-Sports”s265 Code- a general rule that one cannot commit assault if the other person agrees to the application of force.
( within normal rules of games) It has also set limits on the types of harmful actions to which one can validly consent, and which can shelter
an assailant from the sanctions of the criminal law.
 s8 Code indicates that common law principles continue to apply to the extent that they are not inconsistent with the Code or other Act
of Parliament and have not been altered by them.
“Fraud to get Consent” R. v. Cuerrier, [1998] – HIV accused having sex with people. The common law should thus be changed
to permit deceit as to sexually transmitted disease that induces consent to be treated as fraud vitiating consent under
s.265 Code. s265(3)(c)- consent vitiated by fraud – failure to disclose that he was HIV positive is a type of fraud that may
vitiate consent to sexual intercourse.
“Determine Fraud”- R v Currier (1998)- Cory J stated that in determining whether consent was obtained fraudulently ‘the actions
of the accused must be assessed objectively to determine whether a reasonable person would find them to be dishonest. A person has
a duty to disclose if the failure to disclose presented a significant risk of serious bodily harm
note: dishonest act or behaviour that vitiates consent-“must relate to consent to engage in unprotected sexual intercourse” in
unprotected sexual intercourse. The defendants actions must be assessed objectively to determine if a reasonably person
would find him/her to be dishonest. A dishonest act is either deliberate deceit of their HIV status or non disclosure.
 “Consent not given with threats”- R v D.S. (2004) when a man threatened to distribute nude photographs of his ex-girlfriend if
she did not have sex with him.
 “Consenting to Suicide” - s14 Code- people cannot consent to their own death
 “Consenting to abductions” s286 Code- consent is no defence to the abduction of a child.
 “Consent to sex under 16” s150.1(1)- complainants consent is no defence to various sexual offences involving those under 16
years. Exception if under 16 years old (less than 2 years old than the complainant.
4. Actus Reus - Causation
Causing Prohibited Consequences
 when criminal acts prohibits a consequence or a result, it is necessary to determine if the accused actions have actually caused the
prohibited consequence or result.
 R v Harbottle (1993) where factual situations does not fall within one of the statutory rules of causation in the Code, the common law
general principle of criminal law apply to resolve any causation issues may arise
 “Thin Skull Rule” R v Smither’s” - Canadian law does not take a strict approach to causation and allows a person to be liable even if the
consequences are caused part by victims peculiar and unforeseeable vulnerabilities. - take the victims as you find them.
 Dickson J- Death may have been unexpected and the physical reactions of the victim unforeseen, but that does not relieve the accused...
It is well –recognized principle that one who assaults another must take the victim as he finds him
 Homicide Test Reformulated - R v Nette - Facts-hog tied granny arguably elevated the test for causation in homicide cases. Court
concluded that “the causation standard expressed in Smithers is still valid and applicable to all forms of homicide
(murder, manslaughter and infanticide) to explain the standard as clearly as possible to the jury, it may be preferable to use the phrase
such as “a significant contributing cause” rather than using expressions phrased in the negative such as “not trivial cause” or “not
insignificant”
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 Evidence of the Act R v Talbot (2007)- Evidence that an act was possibly a cause of death cannot provide the evidentiary basis for a
finding beyond a reasonable doubt that the act significantly contributed to the death
 Fundamental Justice- R v Cribbin (1994)- The de minimins causation test and thin skull principles approved in Smithers and
Creighton are consistent with the principles of fundamental justice. [18 mins]
 note: the differences between factual and legal causation.
 Factual causation -medical/physical /actual cause how you died. Legal causation- whether the accused should be held legally
responsible ie- Hog tied granny- factually- asphyxia because of something blocking her mouth caused her death, legally, did the intruder
cause that to happen
Statutory Provisions Concerning Causation
 Parliament has defined causation broadly for the purpose of homicide offences.
 s222 (1) Code- provides that person commits homicide when directly or indirectly by any means he or she causes the death of a human
being. example of scope of this R v Younger (2004)-accused abducted a baby which died of hypothermia in the car
 s231(5)-more stricter causation rules- it requires that the death be caused while the accused is committing or attempting to commit a
list of enumerated offences ( sexual assault, kidnapping, hostage taking)
 remoteness/medical treatment - s224 & s226 Code- specific causation rules to deal with certain issues of remoteness between the
accuser’s actions and the victim’s actually death and some intervening causes such as treatment.
Concurrent Causes and New Acts that Sever the Chain of Causation
 chain of events - R v Kitching (1976)- concluded that an accused caused death when s/he set off a chain of events that ended in
a person’s death, even though the immediate cause of death had not been at the accuser’s hands. The accused conduct need not
shown to be the sole “effective cause of the crime. ( ie accused causes brain damage- doctors pull the plug)
 ‘Causing suicide’- People v Lewis -an accused who shot a person who then cut his own throat was still held to have caused the
persons death.
 “shooting a shot person R v Green (1988)- an accused who shot someone who had already been grievously shot by another
person was still held to have caused the victims death.
 “human shields” R v Pagett(1983)- Accused the victim as a shield and the cops shot the victim.
 s222 (5)(c)- reasonable acts performed by a victim trying to escape are not intervening acts breaking the chain of causation
 police officers enforcing the law are not intervening acts breaking the chain of causation.
Note: The jury may be instructed about whether an intervening event has severed the “chain of causation” in such a manner that the
accused actions are no longer a significant contributing cause of the victim’s death.
Causation- Examples
Causation Street Racing R v Menzines (2002)- a person engaged in an illegal street race may be held responsible for causing the death of a
fellow racer , passenger other vehicles and pedestrians but only as far as the accused s actions constituted a significant cause of death.
Shows that causation is a two-stage analysis, requiring “factual causation” and “legal or imputable causation
 a racer has not been held not responsible for a fatal crash of a fellow racer because of a reasonable doubt that the deceased would have
recognized that the accused “was backing away and had given up the race before the fatal crash.
chain of causation- Impaired Driver/J-walking R v Horton (2003)-an impaired driver had hit a person J-walking and the accused impaired
driving did not cause death.
 The accused’s actions do not have to be the sole cause of death but there may be situations where the chain of causation is broken so
that the accused’s actions are no longer significant cause of death.
Causation in non-Homicide Cases
 Fraud R v Winning (1973)- a conviction of obtaining credit by false pretences was over turned because even though the
accused made false statements in her application for a credit card, the company did not rely on these statements when
issuing the card.
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 impaired driving- R v Ewart (1989)- when a person is charged with impaired driving causing bodily harm or death, the Crown
must show that the accused impairment was a contributing cause outside the de minimis range to the bodily harm or death. It
cannot simply rely on the fact the driver was impaired with alcohol.
 A distinction is sometimes made between legal and factual causation.
 factual vs. legal causation - R v Willimas 2003- a man was charged with aggravated assault on the basis that he had sex with a
women knowing, he was HIV positive. The man learned he got in November but the relationship had started in June. The women
became infected but with no certainty when she became infected. SCC- that man should be acquitted of aggravated assault
because it was possible that the women was infected at the point of time at which the accused had sex with her knowingly.
 note: This means accused with get the benefit of the doubt about factual causation.
5. Actus Reus- Omissions
Offences can be committed by a showing that the accused failed to act, or omitted to act.
To be guilty by omission
(1) the offence must contemplate guilt for omissions,
(2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and
(3) the omission in question must be a failure to fulfill that legal duty.
Statutory Duties
 s215(1)- Duty of persons to provide the necessities of life-everyone is under a legal duty
a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of 16
b) to provide necessaries of life to their spouse or common-law partner and
c) to provide the necessaries of life to a person under his charge if that person
i) is unable by reason of detention, age, illness, mental disorder, or other cause, withdrawal himself from that charge and
ii) is unable to provide himself with the necessaries of life.
“necessities of life” R. v. Peterson, [2005]–“s 215(1) includes not only food, shelter and medical attention necessary to sustain life but also
protection from harm.
“under his charge” R v . Peterson [2005]- in s215(1)(c)- under his charge imposes duty where
i) one person is under another charge
ii) the person is unable to withdrawal from the charge and
iii) the person is unable to provide himself with the necessities of life .
 s 216 Code -Duty of persons undertaking dangerous acts- everyone administering surgical, or medical treatment to another person
doing an lawful act that may endanger (except in necessity) is under a legal duty to have/use reasonable knowledge, skill and care.
 R v. Rodgers (1969) - the standard is objective and based on reasonable knowledge of the medical community.
 s 217 Code- Duty of persons undertaking acts- everyone who undertakes to do an act is under a legal duty it if an omission to do the
act is or may be dangerous. R v. Browne (1997)-Only binding and intentional commitments will suffice to expose an accused to criminal
liability for failing to act. The mere expression of words indicating a willingness to do an act cannot trigger the legal undertaking- “I am
going to take you to the hospital” The word "undertaking" in s. 217 must be interpreted in this context. The threshold definition must
be sufficiently high to justify such serious penal consequences. A mere expression or words will not normally be enough to create a duty
under
 s 217.1 Code- Duty of persons directing work –everyone who undertakes, or has the authority to direct how another does work or
performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from
that task.
 s 218 Abandoning a Child – abandoning a child under 10 endangering life or health or permanently damage –hybrid offence.
 s219 (1)(b)- Criminal negligence- b) omitting to do anything that is his duty to do and shows wanton or reckless disregard.
 R. v. Moore, [1979] - police ask cyclist for id-he refused a refusal to identify yourself to a police officer who saw you commit a crime
has been held to be an obstruction of a police officer under section 129 of the Criminal Code.
Example of where duties were breached
 the duty was breached by a person who donated blood that he knew was infected by HIV
 It is also an offence not to use reasonable care in handling explosives
 to disobey a court order
 to fail to assist a peace officer when requested
 to abandon a child
 not to obtain assistance in child birth
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 to fail to stop when your vehicle is involved in an accident
 to neglect animals
 and to fail to take steps to protect holes in ice or open excavations
Mens Rea
 Mens Rea is the mental fault element of a crime. Like actus reus, it too needs to be proved beyond a reasonable doubt.
 A mens rea can be held to a subjective standard or objective standard.
Standards
Subjective Objective
 ought to have known
 Intention  negligence
 purpose  lower degree- marked departure
 wilfulness  marked and substantial departure
 knowledge o death
 recklessness o grievous bodily harm
 wilful blindness
Subjective
 A subjective fault element ( mens rea) depends on what was in the particular accused mind at the time that the criminal act was
being committed.
 The Crown has to prove beyond a reasonable doubt and establish that the accused subjectively had the required guilty knowledge
in relation to the specified circumstances or consequence.
Note- In order to explain the fault element of any criminal offence accurately, it is necessary to specify
1. the circumstances and consequences to which the fault element is directed, including in relation to the actus
reus of the offence; and
2. the precise fault element required.
subjective fault
 Don’t say- mens rea for murder is subjective.
 Say – The mens rea for murder requires at least subjective knowledge that the victim would die.
objective fault
 Dont say- mens rea for manslaughter is objective.

 Say- The fault is objective forseeability of bodily harm. The degree of negligence should be explained and who
is the reasonable person to apply the objective fault or negligence standard.
1) Relation of the Fault Element and the Prohibited Act.
 R v Theroux ( 1993)- mens rea is concerned with the consequences of the prohibited actus reus.
 R v Creighton(1993)- criminal law “traditionally aimed at symmetry between the mens rea and the prohibited consequence of the
offence. Nevertheless in Creighton- I know of no authority for the proposition that the mens rea of an offence must always attach
to the precise consequence which is prohibited as a matter of constitutional necessity.
 McLachlin J- held that objective foresight of the risk of bodily harm was sufficient fault element for the crime of unlawful act of
manslaughter even though the actus reas of the crime was causing death as oppose to bodily harm.
 Ulterior intent offences – are offences because they require an intent to go beyond the actus reas that is committed.
examples- discharging firearm with the intent to wound also requires the intent to wound.
Subjective and Objective Fault Elements
 Subjective fault or Mental element requires - the Crown to establish that the accused subjectively had the required guilty
knowledge in relation to the specified circumstances or consequences
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 Objective fault element- requires that only that a reasonable person in the accused position would have the required guilty
knowledge or would have acted differently.
 The judge and jury who must determine what was in an accused mind must rely on inferences from the evidence presented in the
case.
 The trier of fact will almost inevitably consider what a reasonable person in the accused’s place would have thought or recognized.
 The trier of fact must remain open to all evidence presented in the case.(especially evidence about peculiarities about the accused,
and acquit the accused if any reasonable doubt as to whether that particular person with all of his or her frailties and experiences,
had the required subjective mental element.
Subjective mens rea operates as a doctrine that prevents the conviction of an accused who, for whatever reason, does not have
the knowledge and foresight that a reasonable person would have. It protects those who because of impaired reasoning or lack of
thought do not recognize or intent what may be obvious to the reasonable observer.
Function of subjective mens rea- R v Theroux ( 1993)- “to prevent the conviction of the morally innocent-those who do not
understand or intend their actions .
Objective-Criminal Code Offences- R v Hundel ( 1993)- there must be a “marked departure from the standard of care that a reasonable
person would observe in the accused situation.”
Criminal negligence for the purpose of criminal fault is distinguished from negligence for the purpose of civil fault in requiring
1. a marked departure from reasonable standards; and

2. R v Beatty 2008- examining the actual mental state of the driver to determine whether it might raise a reasonable doubt
about whether the accused was criminally negligent .
Common law Presumption of Mens Rea
 Courts should presume that criminal offences require some form of subjective mens rea- intent, knowledge, recklessness, or wilful
blindness-in relation to all aspects of the actus reus unless Parliament clearly indicates otherwise.
Constitutional requirements of Mens Rea
 constitutional requirement of subjective mens rea under s7 of the Charter leaves Parliament few options.
 Violation of s7 of the Charter are almost never upheld under s1 of the Charter.
 R v Vaillancourt ( 1987)- Larmer J – expressed preference for a general constitutional principle of subjective mens rea in
relation to all aspects of the prohibited act while recognizing that many crimes were based on objective fault.
 R v Logan( 1990)- subjective foresight of the prohibited consequence is not required for all crimes.
 Subjective mens rea so far has only been required under s7 Charter for:
I. Martineau- murder
II. R v Logan( 1993)- attempted murder
III. R v Finta(1994)- war crimes
SCC ruled subjective mens rea is not required for:
I. DeSousa- unlawfully causing bodily harm

II. Hundal- dangerous driving
III. Creighton- unlawful act manslaughter
IV. R v Finlay- careless use of firearm
V. R v Naglik -failing to provide the necessities of life
Creighton Justice McLachlin indicated the following considerations were relevant in determining constitutional requirements of
mens rea:
more on these 3 factors pg 159-162
I. The stigma attached to the offence and the available mens rea requiring a mens rea reflecting the particular nature of
the crime;
II. whether the punishment is proportionate to the moral blameworthiness of the offender; and
III. the idea that those causing harm intentionally must be punished more severely than those causing harm
unintentionally.
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IV. s7 Charter has a role in shaping negligence standards when they are used to determine criminal liability resulting in
imprisonment.
Fault Element in relation to Defences of mistake of Fact and Intoxication
R v Robinson (1996) -The SCC has made it clear that that the issue is the accused’s actual intent and not his/her capacity for the
intent
The Degrees of Subjective Mens Rea
1. Intent, Purpose or Wilfulness
 The highest level of subjective mens rea is that which requires the accused to act with the intent or purpose to achieve the
prohibited result or to wilfully pursue such a result.
 s229(a)(i)- prohibits murder where the accused “means to cause...death”
 When Parliament uses the words “with intent”, this will generally exclude lower forms of subjective mens rea such as
recklessness.
 R v Hibbert (1995)- intent and purpose is different from motive and desire. Intent and purpose in s21 should not be
equated with motive and desire
 Buzzanaga- knowledge that something very certain to occur however may be equated with an intent or a purpose to
achieve the prohibited result. Martin J- “ as a general rule, a person who foresees that a consequence is certain or
subsequently certain to result to from an act which he does to achieve some other purpose, intends that consequence.
 Buzzanaga - “wilfully”- “conscious purpose in distributing the document was to promote hatred” was “certain or morally
certain”
 R v Docherty (1989)- “wilfully”- stresses intention in relation to the achievement of a purpose
 The use of the word ‘wilfully denotes a legislative concern for a relatively high level of mens rea.
2. Intent, Purpose or Wilfulness Distinguished from Motive
 R v Lewis (1979)- Dickson J criminal law does not require proof of motive for a crime and an argument that the
accused had not motive or some innocent motivation will not exonerate one who has otherwise committed the crime
with the necessary guilty intent.
 USA v Dynar ( 1997)- SCC drew a board distinction between motive and intent. “it does not matter to society, in its
efforts to secure social peace and order , what an accused motive was, but only what the accused intended to do.”
 example- a thief stealing a car so that he can sell it to buy food at a food bank. Motive by hunger to buy food. He
intended to steal the car .
3. Knowledge
 this is a slightly lower form of subjective mens rea than intent or purpose.
 s229 (c) Code- person is guilty of murder if he “knows” that he is likely to cause death to a human being....
 s229(a)(ii)- also emphasizes the requirement of guilty knowledge by providing that a person who intentionally causes
bodily
 The requirement of guilty knowledge of the likelihood of death has been held to be sufficient under s7 Charter to sustain a
murder conviction.
 s229(a)(i)- a person may have guilty knowledge that his or victim will die without necessary desiring or having the motive
of causing death or even intending or meaning to cause death.
 Possession- “knowledge” is a common form of mens rea for possession based offences “
 Beaver- SCC held that a person in physical possession of a substance could not be said to process that substance unless he
or she knew the nature of the substance.
 Cartwright J – a person with an honest belief that a substance was baking soda would not have the mens rea for possession
even if the substance turned out to be heroin. “The essence of the crime is the possession of the forbidden substance and in a
criminal case there is in law no possession without the character of the forbidden susbstance.”
 Lucas- SCC interpreted the requirement that the prosecutor prove that an accused who has been charged with defamatory
libel know that the statements were false as requiring proof of the accused subjective knowledge
 Dynar-SCC that knowledge has “two components-truth and belief” and that only belief is relevant to the determination of
subjective mens rea. The truth of the matter is an objective fact that is required to establish the actus reus not the mens rea.
(ie, a man stabbing a manakin thinking it was a real human-the manikin in truth was not a human being.
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4. Recklessness
 recklessness is a lower form of subjective mens rea then intent, purpose, wilfulness or knowledge.
 Sansregret- “a person acts recklessly if he or she has adverted to or become aware of the risk of the prohibited conduct.”
 Recklessness vs Negligence – O’Grady v Sparling ( 1960)- recklessness requires subjective advertence to the prohibited
risk and can be distinguished from negligence which only requires that a reasonable person in the accused circumstances
would have recognized the risk.
 sexual assault- a person recklessly commits a sexual assault if he recognizes the risk that the women is not consenting.
 Recklessness is a common form of subjective mens rea. Buzzanga- Martin J- has stated that “the general mens rea which is
required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either
the intentional or reckless bringing about of the result which the law, in creating the offence seeks to prevent”
 Sault Ste Marie –common law presumption that a criminal offence have subjective mens rea include recklessness.
 Recklessness vs Knowledge- recklessness requires only subjective awareness of the risk of the prohibited act, as opposed
to knowledge of the likelihood of the prohibited act.
5. Wilful Blindness
 R v Briscoe- 2010- Wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she
sees the need for further inquiries, but deliberately chooses not to make those inquiries
 Sansregret- SCC has stated “wilful blindness is distinct from recklessness because, while recklessness involves knowledge
of a danger or a risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful
blindness arises when a person who has become aware of the need for some inquiry declines to make the inquiry because
he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by
consciousness of the risk and by proceeding in the face of it while wilful blindness it is justified by the accused’s fault in
deliberately failing to inquire when he knows there is reason for inquiry.
 Sansregret- sexual assault- where the accused is deliberately ignorant as a result of blinding himself to the reality the law
presumes knowledge , in this case knowledge of the nature of consent.
 R v Lagace(2003)- stolen property- court stressed that “culpability on the basis of wilful blindness rests on a finding of
deliberate ignorance. An accused who suspects that property is stolen but declines to make the inquiries to confirm that
suspicion, preferring instead to remain ignorant is culpable.
 R v Jorgensen (1995)- SCC defined wilful blindness in similar terms, stressing that it constitutes shutting eye and
“deliberately choosing not to know “ when the accused strongly suspects that such an inquiry would fix them with guilty
knowledge.
 R v Esau (1997) -sexual assault- McLachlin J defined wilful blindness in the context of sexual assault to place some
affirmative duties on the accused to address his mind to the issue of consent. She has stated that “the person who is not
wilfully blind is the person who is appropriately aware, not only of the need to obtain consent ( which he is presumed to
know|) but of what the conduct and circumstances reveal to one who look to see whether that consent was being given or
withheld.
6. Transferred Subjective Mens Rea
 s229 (b)- codifies the common law doctrine of transferred intent.

 The mens rea of intentionally or knowingly causing death to one person is transferred to the killing of the victim even
though the accused “does not mean to cause death or bodily harm” to the victim and does so “by accident or mistake.”
 R v Droste (No.2) (1984)- to convict an accused who in a deliberate attempt to kill his wife , set fire to a car, causing
two children buckled into the back seat to die of asphyxiation, as well as the guilty knowledge that death would result,
could be transferred to the children’s death.
 s229(b)- suicide exception- the court has held that this section should not apply when the accused intends to kill
himself but ends up killing another person. It was held that a person who intends to kill himself does not have the same
moral blameworthiness as a person who intends to kill another person, but then kills yet another person by accident.
 the courts may transfer intent in other contexts. An accused has been convicted of assault causing bodily harm to a
bystander when in an attempt to strike a person, he caused bodily harm to another person.
The Degree of Objective Mens Rea
 The SCC has indicated that objective, as opposed ot subjective fault is constitutionally sufficient for unlawful act of
manslaughter and several other criminal offences less serious then murder, attempted murder, and war crimes.
 Central Issue- how to adjust the objective standard so that it does not apply to those who cannot reasonably be held
responsible for satisfying that standard, while not collapsing objective standards into subjective ones.
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Who is a reasonable person?
 Beatty- definition – “The Court applies a strict reasonable standard with respect to crimes of negligence: short of
incapacity to appreciate the risk of incapacity to avoid creating it, personal attributes such as age, education experience
are not relevant. The standard against which the conduct must be measured is always the same –it is the conduct
expected of the reasonably prudent person in the circumstances.”
 Note to self: The reasonable person will not be invested with the personal characteristics of the accused unless the
characteristics are so extreme as to create an incapacity to appreciate the prohibited risk or the quality of the
prohibited conduct.
MacLachlin J-example would be an illiterate person who mishandled a parcel with a dangerous substance in it.
SCC has not accepted Larmer’s approach:

 Creighton- personalized objective standards- Larmer CJ- elaborated his views and held that the reasonable person
used to determine objective liability should be invested with “any human frailties which might have rendered the
accused incapable of having foreseen what the reasonable person would have foreseen.....
 “enhanced for foresight” derived from the accused special knowledge or skill
 human frailties were defined as “personal characteristics habitually affecting an accused’s awareness of the
circumstances which create risk”
 They had to characteristics that the accused could not control or manage in the circumstances.
 Larmer CJ approach to individualizing approach has been rejected by the SCC. because” this approach personalizes the
objective test, thus eroding the minimum standard of care which Parliament has laid down by the enactment of offences
of manslaughter and penal negligence “
 Only Personal characteristics approved- would be those that establish incapacity to appreciate the nature and
quality of the prohibited conduct and consequence.
Degree of Negligence
 Tutton – McIntyre J - stated that criminal negligence required proof of conduct which reveals a marked and significant departure
from the standard which could be expected of a reasonably prudent person in the circumstances, as oppose to simple negligence.
 Hundel- dangerous driving- although dangerous driving was to be determined on an objective basis “the trier of fact should be
satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in
the accsued’s situation.
 Finlay- SCC has required a marked departure from the conduct of a reasonable person when a criminal offence seems to require
simple negligence.
 Gosset- Firearms/manslaughter- SCC considered manslaughter charges based on the unlawful act of careless use of a firearm.
The court required that a person demonstrate a marked departure from the standard of care of a reasonably prudent person in
the circumstances, even though the offence seemed only to require careless use of a firearm.
 When objective standards of fault are used in criminal offences, something more than mere negligence be required.
 SCC seems to be indicating that a negligent standard when used in the criminal code will only be constitutional if it requires a
marked departure from the standard of care a reasonable person would have exercised in the circumstances.
Marked departure vs marked and substantial departure

 R v J.F. [2008]- SCC distinguished the marked departure standard that Beatty, Finlay and Gosset applies as a
minimal fault requirement to all forms of negligence used for the purposes of criminal liability, from a higher standard
of marked and substantial departure that applies to criminal negligence.
 R v Fortier ( 1998)- criminal negligence causing bodily death or bodily harm from dangerous driving on the basis that
criminal negligence requires a marked and substantial departure from reasonable conduct whereas, dangerous driving
only required a marked departure.
 R v J.F. [2008]- Court held that the offence of failing to provide the necessities of life required a marked departure” from
the standard of a reasonable caregiver whereas offences of criminal negligence causing death or bodily harm would
require “a marked and substantial departure ( as opposed to marked) from the conduct of a reasonably prudent parent
in the circumstances.
The Relevance of Subjective Perceptions and Exculpatory Factors to Objective Fault.
 Beatty (mistake of fact) – a reasonably held mistake of believe of fact may provide a complete defence if based on the
accaused’s reasonable perception of the facts , the conduct measured up to the requisite standard of care.
 Hundal-dangerous driving causing death- Cory J-maintained that objective fault must be determined in the context of the
events surrounding the incident. ‘Although an objective test must be applied to the offence of dangerous driving , it will remain
open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s
conduct.
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 Beatty- suggests that the court should not ignore certain factors subjective to the accused when determining whether the
accused is criminally negligent.
 The purpose of examining these factors is not to determine whether the accused was subjectively at fault but only to determine
whether there is a reasonable doubt about whether the accused conduct in the circumstances constituted a marked departure
from standards of reasonable care.
Mistake of Fact
 If subjective awareness of a prohibited circumstance is required, the Crown will not be able to establish the fault
element if the accused honestly, but not necessarily reasonably believes those circumstances do not exit.
Mistake and the Degree of Fault
 with the rise of subjective mens rea courts began to recognize the possibility that an accused could have an honest but
not necessary reasonable belief in a state of circumstances that would make his activity innocent.
 Beaver- an absolute liability offence would of course allow no defence of mistake of fact.
 Sault Ste Marie- “if the accused reasonably believed in a mistake set of facts which if true, would render the act or
omission innocent.”
Mistake of Fact Drug Charges
 Beaver- an accused would have a defence of mistake of fact if he or she believed that a substance was a harmless substance
and not illegal drugs.
 The courts have been unwilling to apply this strict logic when the accused makes a mistake as the nature of an illegal drug
 R v Burgess [1970]- accused thought he had opium but really it was hashish.
 R v Kundeus (1975)- accused was convicted of trafficking LSD when he thought it was mescaline.
Mistake of Fact and Sexual Assault
 s273.2 the accused’s belief that the complainant consented is not a defence if it arose from the accused’s “self induced
intoxication,” his reckless or wilful blindness,’ or if the “the accused did not take reasonable steps , in the circumstances
known to the accused at the time, to ascertain that the complainant was consenting.
 R v Papajohn (1980)-( old law) SCC held that an accused in a rape trial could have a defence of honest but not necessarily
reasonable mistake that the complainant consented.
 The Criminal Code-s265 (4)- the judge shall instruct the jury when reviewing all the evidence relating to the
determination of the honesty of the accused’s belief, to consider the presence or absence of a reasonable ground for that
belief.
 The denial in s273.2(b) of the mistake of fact unless the accused takes reasonable steps in the circumstances known to him
at the time to ascertain whether the complaint was consenting t the activity in question combines subjective and objective
fault elements in a novel and creative manner.
 this section – bases the accused obligation to take reasonable steps to ascertain consent on the basis of what the accused
subjectively knows of the circumstances. The accused obligation to take reasonable steps is only based on what he
subjectively knows at the time. The section also requires the accused to act in a reasonable person would in the
circumstances by taking reasonable steps to ascertain whether the complaint was consenting.
Mixed Subjective and Objective Fault Elements
 A mixed approach allows the fault requirement to be tailored to the element of the offence
 R v Lohnes- SCC interpreted the offence of disturbing the peace as requiring proof of subjective fault as to the underlying act
such as fighting or yelling but objective fault in relation to the actual disturbance of the peace.
 R v N.S. Pharmaceutical Society (1992)- the offence of conspiracy to unduly lessen completion requires a subjective intention
among parties to agree on a course of action and the objective fault that it is reasonably foreseeable that the course of action
would lessen competition.
 s273.2 (b)- integrated subjective and objective fault elements which provides that the accused subjective belief that the
complainant consented is not a defence to a sexual assault charge “if the accused at the time, to ascertain that the complainant
was consenting.
 s22.2(c)- is another integrated blending of subjective and objective fault elements.
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Aiding and Abetting
 aid (physically support)
 abet (encourage) the accused to commit the offence.
 persons who aid and abet one offence can, in some circumstances, be convicted of offences they did not intend to aid or abet,
provided that offence is a foreseeable outcome of the offence they did intend to aid or abet.
 s21 CC- everyone is a party to an offence who “actually commits it; or does or omits to do anything for the purpose of aiding any person
to commit it; or abets any person in committing it.”
 aiding/abetting can make you- guilty of the same offence as the person who actually commits the offence.(the same liability and the
same maximum penalties in some cases
 limited participation in a crime may be a mitigating factor
 not necessary for the Crown to prove who is the principal of the offence and who is the aider and abetter.
 Chow Bew v The Queen [1956}- a number of accused could be convicted of murder if they all knowingly assisted in the victims death
even though it was unclear who one of the accused killed the victim.
Actus Reas of Aiding and Abetting
 the distinction between aiding and abetting is difficult to define.

 s21(b)- provides that anyone who omits to do anything for the purpose of aiding any person to commit an offence may be charged as a
party to an offence.
 Aiding –refers to giving someone assistance in the commission of the crime
 Abetting- R v Greyeyes (1997) includes encouraging, insisting, promoting, or procuring the crime to be committed.

 Dunlop v R (1979) present at rape- a person is not found aiding or abetting a rape merely because he is present at the scene of a
crime and does nothing to prevent it. If there is no evidence of encouragement by him, a man presence at the scene of the crime will not
suffice to render him liable as aider and abettor.
 Dickson J –mere presence with knowledge- did indicate that presence at the commission of an offence can be evidence of aiding and
abetting if accompanied by other factors such as prior knowledge that the crime was going to be committed.
 R v Black [1970] preventing victim escape/assitance-preventing a victim to escape or receiving assistance is sufficient actus reas.
 R v SalaJko [1970]- men present at a rape with his pants down was not aiding or abetting. SCC disagrees with this case.
 Dunlop- man asleep at plantation-that an accused’s mere presences at the scene of a crime in circumstances consistent with
innocence will not support a conviction. (man fell asleep in tent with fertilizer at marijuana plantation.)
 The position that mere presence and passive acquiescence in a crime is not sufficient to make a person an aider or abettor mirrors the
criminal law’s traditional reluctance to penalize omissions.
 R v Jackson [2007]-car owner does nothing-owners of cars who do nothing while others engage in dangerous driving have been held
to have abetted the dangerous driving because they did not exercise their power to control the use of their vehicle.
 R v Nixon (1990)- police watch jail beating- a senior officer in charge of a police lock-up has also been found to have aided and
abetted an assault on a prisoner by failing to exercise his statutory duty to protect a prisoner in charge.
Mens Rea for Aiding and Abetting
 R v Morgan (1993) assist with intention -To be convicted as an aider or abettor the accused must not only assist the principle, but
also intend to assist the principle.
 s21 (1)(b)- requires the accused act or omit to do anything for the purpose of aiding any person to commit an offence.
 a person who unwittingly delivers a bomb or administers a poison would not be found guilty as party to an offence even though the
actus reas of assisting is present.
 Dunlop - Dickson J- one must be able to infer that the accused had prior knowledge that an offence of the type committed was planned.
 R v. FW Woolworth Co (1974)- it is not necessary that the aider or abettor know all the details of the crime committed; it is sufficient
that s/he was “aware of the type of crime to be committed.”
 R v Roach ( 2004) - s21(1)(b)- Ontario Courts – has concluded with respect to s 21(1)(b) that “purpose is synonymous with intent and
does not include recklessness.
Duress
 R v. Hibbert ( 1995)- the mens rea for aiding under s 21(1)(b) is not susceptible of being “negated by duress”
 The jury should not be confused by being asked to consider duress in both the relation to mens rea and in relation to the separate
defence of duress.
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Murder
 Kirkness- SCC that an accused aiding or abetting a murder “must intended that a death ensure or intend that he or the perpertrator
cause bodily harm of a kind likely to result in death and be reckless whether death ensures or not.”
 no one will be convicted of murder without proof of at least subjective foresight of death.
 Jackson- Could be manslaughter if the “ a reasonable person in all the circumstances would have appreciated that bodily harm was the
foreseeable consequence of the dangerous acts which was being undertaken.
Drugs
 R v Poitras (1974) courts are reluctant to find purchase of drugs guilty of aiding and abetting trafficking on the basis of the purchase
alone.
 usually convicted of possession of narcotics or possession with the intent to traffic-either as a principal offender or an aider or abettor.
 Greyeyes- the SCC upheld a drug trafficking conviction of person who located a seller for a purchaser, negotiated the purchase price
and accepted $10 for his efforts.
 R v Chan ( 2003) – man intercepted substance thinking it was heroin. Held what matter in determining the mens rea was the accused
belief that he was dealing with heroin and the truth of the matter. (actus reas- probably not)
Firearms
 R v. Steele (2007)- where one offender has a fireman and another threatens to use it , both offenders can be guilty of offence of using
firearm.
CC s. 21
- R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881
- R. v. Logan, [1990] 2 S.C.R. 731
- R. v. Briscoe 2010 SCC 13 (reviewed above) The mens rea requirement reflected in the word “purpose” under s. 21(1)(b) of the Criminal
Code has two components: intent and knowledge a more recent and controversial form of subjective mens rea is wilful blindness
Federation of Law Societies of Canada
National Committee on Accreditation
Counselling
An accused can be convicted of counselling offences, whether or not the offences counselled are actually committed. If the offences
counselled are committed, CC. s. 22 operates. If they are not committed, CC. s. 464 operates.
Counselling a Crime that is not Committed

 where a person attempts to solicit another to commit a crime and the second person is unwilling to do so. This is an offence under s
464CC and is subject to punishment as attempt.
 this is different counselling an offence that is committed which is under s22 CC
Actus Reas (not committed)s464

 s22(3)- counsel- includes procure, solicit, or incite
 R v Glubisz ( no 2 ( 1979) It does not matter whether the person counselled either acts on the solicitation or has any intention of doing
so.
 This means that a person can be guilty of counselling an undercover cop to commit a crime, even if the person so solicited would never
commit the offence.
 R v Hamilton [2005]- The SCC has indicated that “the actus reas for counselling will be established where the materials or statements
made or transmitted by the accused actively induce or advocate- and do not merely describe-the commission of an offence.”
 R v Gonzaque ( 1983)- can be guilty of counselling even if the person solicited immediately rejects the idea of going through with the
offence.
Mens rea (not committed) s464

 R v McLeod (1970)- a publishing company was convicted of counselling the illegal growing of weed to its readers by publishing an
article on how to grow it. Court of Appeal- the paper was deliberating counselling readers to grow weed but held the evidence was
insufficient to prove that the editor of the paper had this intent.
 R v Janeteas ( 2003)- Moldaver J- stated that as with the other inchoate crimes of attempts and conspiracy the accused must intend the
commission of the offence in order to be guilty of the crime of counselling an offence that is not committed.
 Alberta court of appeal has likewise stressed the requirement of intent as opposed to lesser forms of subjective mens rea such as
recklessness or wilful blindness for the section 464 offence.
 Hamilton- SCC decision held that the mens rea of counselling an offence included not only an intent to commit the substantive crime,
but also a lesser form of mens rea in the form of knowingly counselling a crime while aware of an unspecified risk that the offence was
likely to be committed as a result of the accused s conduct. Should not be see as encompassing recklessness.
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 Mugesera- court considered s464 in immigration law. The accused knowledge of a speech given during a Rwanda genocide would be
understood as incitement to commit murder demonstrated that “Mr Mugesera intended to give the speech but also that in result of that
speech he intended it to result in murders.
Impossibility and Counselling

 Impossibility would not be a defence to a crime of counselling that is not committed.
 exception- R v Richard (1986)- held that an adult accused could not be convicted of counselling the commission of an indecent
assault because the child he attempted to procure was incapable of committing the completed offence because she was under 12
years of age.
Counselling a Crime that is Committed

 s 22(1)- provides that a person who counsels a crime that is committed becomes a party to that offence and such is subject to the
same punishment as if he or she had actually committed the offence. – The provision applies “notwithstanding that the offence was
committed in a way different from that which was counselled.
Actus Reus
 The crime need not be committed in the same way as was counselled or even be the same crime that was counselled. It must
however be a crime that was reasonably foreseeable from the counselling.
 s 21(b) Logan- the SCC declared the phrase “ought to have known” to be an unjustified violation of the Charter when the
accused is charged with murder or attempted murder. s7 Charter requires subjective as opposed to objective foresight of death for
a conviction of murder or attempted murder.
Accessory After the Fact

 s 23 Codes- this is a separate offence for receiving , comforting or assisting a person that one knows has been a party to an offence
for the purpose of enabling that person to escape.
 not a party to an offence but is punish under s 463.
Actus Reus- R v Dumont (1921) this requires more than the mere failure to inform authorities about the fugitives whereabouts.
Young v R ( 1950) At the same time, advising fugitives that the police had their names and license number is enough.
Mens Rea- s23(2) requires two distinct mental elements.
1. subjective knowledge that the person assisted a party to an offence, and
2. assisting the fugitive for the purpose of assisting him or her escape.
 R v McVay (1982) It is not sufficient that the acts of assistance have the effect of helping the person to escape or Rv Morris ( 1979)
that they have undertaken for the purpose of not being suspected for the crime itself
CRIMINAL DEFENCES
 Mental Disorder S16 of the Criminal Code modifies the common law defence of insanity. To have access to this defence the
accused must establish that he has a “mental disorder” as defined by the case law and that it affected him in one or both of the ways
described in s.16 (1). R. v. Cooper provides a definition of mental disorder, although it has been modified by R. v. Park (discussed
below). Cooper also stresses the significance of the concept of “appreciates” while R. v. Kjeldson describes how the defence works
for sociopathic or psychopathic offenders. R. v. Oommen edifies us about the meaning of “wrong.”
Note that “automatism” is divided into two categories, “insane (or mental disorder) automatism” and “noninsane (non-mental disorder)
automatism.”
 Where a court finds “insane automatism” the real defence it is applying is “mental disorder,” since an accused person who is
automatistic because of a disease of the mind cannot appreciate the nature and quality of his act or have the capacity to understand
that the act is wrong. If the defence that applies in “non-insane automatism,” a complete acquittal is appropriate, although Stone
has stacked the deck against this kind of defence succeeding.
pg 256
 This defence of mental disorder and automatism apply to accused who commit criminal acts but who cannot be found criminally
responsible because their mental process were impaired.
 They are incapable of appreciating the nature and quality of a criminal act or knowing that is wrong should not be convicted.
 The verdict is not purely acquittal but rather a verdict of not criminally responsible on account of mental disorder.
 the accused does not go free and can be subject to detention or release with conditions until he or she is determined no longer to be a
significant danger to society.
 Defence of automatism is more novel then mental disorder. It applies to an accused who has committed a criminal act while in a state of
impaired consciousness that results in a involuntary behaviour. If the cause automatism is some other factor such as a blow to the head,
an extraordinary psychological shock such as sleepwalking, the present disposition is to acquit the accused.
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s16(1)- No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that
rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
The provision indicates more clearly that accused must have committed the act or omission charged.
“disease of the mind “ S2 CC- defines mental disorder as a disease of the mind preserving old jurisprudence on the issue.
s16(1) preserves the traditional 2 prong test that allows the defence on the basis that
1) a mental disorder “rendered the person incapable of appreciating the nature and quality of the act or omission...or
2) a mental disorder “rendered the person incapable...of knowing that it was wrong.
Step one- mental disorder and “disease of the mind” Internal factors- disease of the mind
external factors- not disease of the mind
policy considerations –protecting the public, influenced by medical developments,
 R v Stone- up to trial judges to find new policy considerations to influence their interpretation of what constitutes disease of the mind.
 Bratty v AG for Northern Ireland (1961) disease of the mind often defined in relation to whether there is a continuing danger to the
public.
 R V Stone- continuing danger or an internal cause are legitimate and non mutually exclusive factors indicating that the accused may
suffer from a mental disorder.
 The existence of either a continuing danger or an internal cause are simply factors that suggest the accused may have a mental disorder.
“Disease of the mind”
 R V Cooper (1979)- Dickson J defined disease of the mind. This broad definition of disease of the mind includes all medically recognized
disorders except those in which transitory disturbances are caused by external factors such as drugs.
 R v Simpson( 1977) psychopathic personalities
 R v Rabey (1977)- personalities disorders
 R v Revelle (1979)- brain damage including alcohol fetal alcohol spectrum disorder and severe mental disability may be considered.
 R v Malcolm (1989)- delirium tremens (deterioration of brain cells) by chronic alcoholism, and toxic psychosis produced by extended
drug use.
Not “disease of the mind”

 Parks- sleepwalking is not a disease of the mind so that person rendered unconscious by this condition was entitled to a complete
acquittal.
 Daviault- extreme intoxication will not qualify as a disease of the mind but chronic conditions produced by drug abuse may.
 Note- People subject to a one-time mental disturbance because of external factors such as a blow to a head or an extraordinary trauma
should not be subject to potential indeterminate detention or conditions as a person found not criminally responsible on account of a
mental disorder.
 Rabey- disassociated state by being romantically rejected- was found to have been derived from internal factors within the accused that
could constitute a disease of the mind. “If the accused had been subjected to the extraordinary events” such as being involved in a
serious accident, escaping a murderous attack or seeing a loved one killed ...
 Step Two- Capacity to appreciate the nature and quality of the act.
 16 CC refers to an inability to appreciate the nature and quality of acts. The ability to appreciate the nature and quality of the act
involves more knowledge or cognition that the act is being committed. It includes the capacity to measure and foresee the consequences
of the conduct.
 an accused who is unable to appreciate the physical consequences of his/her actions because of mental disorder will have a valid s16
defence.
 In murder cases this mirrors the mens reas requirement that the accused subjectively know that his or her actions would cause death.
Note: a successful s16 defence could result in a disposition far more intrusive than an acquittal in a murder case.
 Not mental disorder- R v Simposn (1977)- no mental disorder- unable emotionally to appreciate the effect of their actions on the
victim. Martain J- the defence does not apply” to who has the necessary understanding nature, character and consequences of the act,
but merely lack appropriate feelings for the victim or lacks feelings of remorse or guilt even those feelings stem from “disease of the
mind”
 An inability to appreciate that a victim may die can result in a mental disorder defence.
 R v Abbey- held that an inability to appreciate the penal consequences of an act does not render an accused incapable of appreciating
the physical consequences of the act.
 Landry- a defence only if a mental disorder prevented him from appreciating the physical, as opposed to moral consequences of an act.
Step three- Capacity to know the act is wrong
This is the second limb-when a disease of the mind renders the accused incapable of knowing that the act as wrong.
 R v Chaulk- insanity defence of a disease of mind if they were incapable of knowing that the act was morally wrong, even if they
were capable of knowing that the act was legally wrong.
 make the distinction between the accused moral code and his or her ability to know society’s moral standards .
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 R v Ratti (1991)- not insanity defence -to a “psychopath or a person following a deviant moral code if such person is capable of
knowing that his or her acts are wrong in the eyes of society and despite such knowledge, chooses to commit them.
 R v W(JM)- no defence-the accused understands society’s views about right and wrong but because of a delusion chooses to do the
wrong thing.
 R v Oommen [1994]- if capable of knowing that killing was wrong, could have an insanity defence if his paranoid delusion at the
time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of
the act.
 R. v. Oommen- wrong means moral wrong and not legal wrong- was the accused because disease of the mind was rendered
incapable of knowing that the act committed was something that he out not to have done.
 Irresistible Impulse-long recognized irresistible impulse as a separate category of the insanity defence. May be evidence of (like
delusions)-could get the mental disorder defence. or proof be relevant to proof of non mental disorder automatism or the required
mens rea.
 R v NG (2006)- multiple killings-accused stated that “ he lost control”- trial judged told jury to consider such testimony in relation
to the Crowns burden of intent in relation to the accused claims of dissociative state.
Effect of Mental Disturbance Short of Insanity on Mens Rea

 may fall short but may raise a reasonable doubt as to whether the accused had subjective mental element required for a particular
offence.
Automatism
 This is a legal term that refers to unconscious or involuntary behaviour. Court has recently noted that an accused acting as an
automaton may not necessarily be actually unconscious but that his or her consciousness must be so impaired that he or she has
not voluntary control over that action. (sleepwalking/dazed by concussion- are examples of those who may be acting in an
automatic state.)
Relation to Mental disorder and Consequences of an automatism defence- pg 277

 Automatism and mental disorder are related because both involve conditions in which the accuse cannot be held criminal
responsible for his or her actions owing lack of mental capacity.
 Procedure- if an accused leads with evidence of automatism the Crown can counter with evidence that the cause of the
automatism was a mental disorder. Because an accused who acts in automatic state will generally satisfy either arm of the mental
disorder defence , the crucial issue is automatism cases is whether the cause of the automatism is mental disorder or some other
factor.
 Relevance- if it is established that the cause of automatism is the disease of the mind the accused is held not criminally responsible
by reason of a mental disorder and is subject to a disposition hearing and potential indeterminate detention or conditions. IF not
automatism is not caused by mental disorder –the verdict is a simple acquittal.
 R v Bleta (1964)- while dazed from a blow to the head killed another person.” SCC held- the question of whether or not an
accused person was in a state of automatism so as not to be legally responsible at the time when he committed the cats which he
was charged is a question of fact for the jury.
 Stone- SCC made a requirement that the accused establish the defence of non-mental disorder automatism on a balance of
probabilities and by indicating that automatism will be presumed to be the cause by mental disorder unless the accused establishes
otherwise.
Burden of Proof- Stone-SCC held that an accused claiming a non-mental disorder defence of automatism must establish on a balance of
probabilities that he or she acted in an involuntary manner.
Automatism and Sleep walking-Parks- SCC upheld the acquittal of a man who drove 23 km to his in-laws house and attacked them,
killing one of them.
Automatism and Emotional blows- Rabey only have a defence of non-insane automatism if he or she went into an automatic state
because of an “extraordinary event” such as being in a serious accident or seeing a loved one killed. Such an event “might reasonably be
presumed to affect the average normal person without reference to the subjective make-up of the person exposed to such experiences.”
Procedural Considerations in the Mental Disorder Defence
Unfit to stand trial – the mental disorder defence applies to an accused who, at the time that the criminal act was committed suffered from
a mental disorder that made him her incapable of appreciating the nature or quality of the act or omission or of knowing that it was wrong.
 it possible still suffers from the mental disorder for trial and is unfit for trial.
 Someone who may be sane during the crime may suffer a mental disorder that would make it unfair to have a trial.
 s672.23(1)- allows the court on its own motion or on an application from the accused or the prosecutor to determine whether an
accused is fit to be tried. A person is unfit to stand trial if he or she is unable to conduct a defence at any stage of the proceedings before
a verdict is rendered or to instruct counsel to do so and unable to account of mental disorder to
a) understand the nature or object of the proceedings
b) understand the possible consequences of the proceedings or
c) communicate with counsel.
20
 The accused is presumed to be fit to stand trial and unfitness must be proven on a balance of probabilities. s672.22
 R v Whittle (1994) It is not necessary that the accused be able to act in his or her own best interest or to employ analytical reasoning
but it is necessary that he or she have “limited cognitive capacity to understand the process and to communicate with counsel.
 Where an accused is found unfit to stand trial the Crown may not have proven beyond a reasonable doubt that the accused committed
the criminal act.
 If the accused is unfit to stand trial the Crown is required to establish a prima facie case against the accused every two years until the
accused is either fit to be tried or is acquitted because the crown cannot establish a prima facie case.
 Person with Down Syndrome accused of sexual assault who was found un fit to stand trial and released two months later challenged the
constitutionality of the provision. The SCC held that rejected the argument that it violated the s11(d) but it agreed that it violated s 7.
Who can Raise the Mental Disorder Defence?

 Canadian courts are more willing to allow the prosecutor to raise the mental disorder defence.
 The rationale is that society has an interest in not convicting an accused who may not be responsible because of mental disorder but
who has chosen not to advance the insanity defence.
 Presents dangers in 1) The Crown could bolsters a weak case and 2) an accused could be exposed to indeterminate detention as a
person found not guilty on ground of mental disorder when he or she may want to plea guilty or to contest their innocence.
 R v Swain (1991)- SCC found that the common law practice of allowing the crown to raise the insanity defence violated the accused
charter rights under s7 to control his her own defence. The SCC concluded that the Crown could raise the defence after the accused
had otherwise plead guilty. Exception- can raise the defence in rebuttal if the accused has placed his her capacity for criminal intent in
issue.
Burden of Proof
s 16(2) and 16(3) of the CC provide that every person is presumed not to suffer a mental disorder so as to be exempt from criminal
responsibility and that the party who raised this issue must prove it on the balance of probabilities
Disposition of an Accused Acquitted by Reason of Mental Disorder

 In the wake of Swain the SCC held that such automatic detention without hearing and with no criteria to authorized detention
violated the accused rights under s7 and 9 of the Charter. The accused did not want wish to plead insanity as a defence, was found
to have been insane during the crime
15. Simple Intoxication

This so-called defence of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in
reasonable doubt over whether the accused formed the relevant mens rea. It therefore limits the defence to “specific intent” offences.
Thus, for “general intent” offences, the question of whether the accused had the relevant mens rea will be assessed on the
assumption that the accused was not intoxicated - even if he was. In other words, the law of simple intoxication operates less as a defence
than as away of limiting cases where the judge or jury can factor intoxication into mens rea determinations. The concept of a “specific intent”
and “general intent” offence is described in the extreme intoxication case of R. v. Daviault below. Please note that in Canada, the inquiry is
no longer into “capacity to form the intent” as it was in common law England – the defence applies if intoxication prevents the formation of
the specific intent required by the relevant section.
 R v. Robinson, [1996] 1 S.C.R. 683 SCC held that traditional intoxication defence for specific intent crimes violates the Charter by
requiring a reasonable doubt about the accused’s capacity to form the intent rather than the actual formation of the intent.
National Committ
16. Extreme Intoxication

This defence was created in R. v. Daviault under the influence of the Charter. Extreme intoxication is distinct from the simple
intoxication defence. Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent.
- R. v. Daviault, [1994] 3 S.C.R. 63
- C.C. s. 33.1
 R. v. Daviault, [1994] 3 S.C.R. 63- Extreme Drunkenness inducing a state akin to insanity or automatism is a defence to a general
intent offence. However the burden is on the accused to prove the defence on the balance of probabilities and the accused
testimony would have to be supported by expert evidence.
 Concerns about possible acquittals in cases following Daviault let to the quick enactment of s 33.1 to s33.3. These provisions deny the
Daviault defence in cases where an accused was charged with sexual assault or indeed an offence involving an assault or
interference with bodily integrity.
17. Defence of the Person pg298

 The basic elements of all self defence claims are the accused’s apprehension of harm and their perception of the force required to avoid
the threaten harm. Self defence is concerned with both with the accused subjective perceptions and the reasonableness of those
perceptions. s34CC applies where the accused is being or about to be unlawfully assaulted. There are four different sections for different
scenarios.
21
• Section 34(1) applies where the accused does not provoke the assault being defended against, and defends against it without intending to
cause death or grievous bodily harm, whether or not death or grievous bodily harm is caused.
 R v Nelson ( 1992 )Unlawfully provoked assault by blows, words and gestures

 R v Paice [2005] It is only available to “innocent victim” and not when the accused engaged in a consensual fight.
 s265- unlawful assaults- includes not only application of force but also attempts or threats the person on reasonable grounds that the
aggressor has the present ability to realize his purpose.
 Therefore- they may be unlawfully assaulted without being struck.
 R v Kong (2005)- SCC Held- the existence of an actual assault is not a prerequisite for self defence: it is enough that the accused
reasonably believed in the circumstances that he was being, or was about to be unlawfully assaulted.
 The accused (person self defending)- is justified in using force provided :

1) the force used is not intended to cause Grievous bodily harm. (This means R v Bayard (1989) not a defence to murder which requires
intent to cause death. It may however be a defence of manslaughter when the accused (self-defender) caused death but did not intend to
do so. and,
2) it is no more than necessary to enable the accused to defend himself or herself. (does not require the accused to “measure with
nicety the degree of force necessary to word off the attack or to retreat.
 R v McIntosh (1995) In summary, a jury should acquit an accused under s 34(1) if it has at least a reasonable doubt that
I. the accused was unlawfully assaulted
II. the accused did not provoke the assaulted
III. the force used by the accused was not intended to cause death or grevious bodily harm and
IV. the force used by the accused was no more necessary to enable him to defend himself.
• Section 34(2) applies whether or not the accused provoked the assault being defended against and
intends to cause death or grievous bodily harm.
 R v McIntosh (1995) this section can apply in cases where the accused provoked the assault and was the “initial aggressor” and
when the accused intended to cause death and grievous bodily harm.
 This section does not require the accused to use no more harm than is necessary, but requires the accused to believe on reasonable
grounds that s/he couldn’t otherwise be preserved from death or grievous bodily harm.
 R v Herbert (1996) It also does not require that the force used be proportionate to the assault that the accused defends against.
 There are 3 elements to s34(2):
I. the existence of an unlawful assault
II. a reasonable apprehension of a risk of death or grievous bodily harm and
III. R v Reilly ( 1984) a reasonable belief that it is not possible to preserve oneself from harm except by harming one’s adversary.
This test has objective and subjective factors.
NOTE:
 The jury is to be guided by the accused’s subjective beliefs “so long as there exists an objectively verifiable basis for perception.
 A mistake by the accused as to the existence of the assault, the harm threatened or the force needed is not fatal to a self defence
claim-but the mistake must be reasonable.
Reasonably apprehension of an unlawful assault

- an honest but reasonable mistake as to the existence of an assault is permitted.
- The question for the jury is not “ was the accused unlawfully assaulted? but rather ‘did the accused reasonably believe, in the
circumstances, that she was being unlawfully assaulted?
- jury should consider Petel- prior threats and violence received by the accused from the victim and Mallot- expert evidence in Battered
wife syndrome.
Reasonable apprehension of death or GBH

- Lavallee- SCC held that there was no legal requirement that the accused wait until she faced an imminent attack from the deceased. ie)
women suffering BWS shot husband in the back of the head after he threatened to harm her after their guests leave.
- Expert evidence for BWS helps “it may in fact be possible for a battered spouse to predict to accurately predict the onset of violence
before the first blow is struck, even if an outsider to the relationship cannot.”
- Look for prior threats and beatings as evidence.
Reasonable believe in lack of Alternatives to Prevent Death or Grievous Bodily Harm

- Lavallee- expert evidence was also relevant to prove someone reasonably believed there was a lack of alternative means to persevere
oneself from death or GBH.
- It explains why a women did not leave an abusive relationship earlier. Wilson J stated the jury should look at the women situation and
experience when determining whether she could safe herself expect by using deadly force.
22
- Lavallee- suggests that the courts should not consider retreat as a reasonable alternative to the accused’s use of force.
- The jury should not be instructed about s34(2) if there is no air of reality to the accused claim that he reasonably believed he had no
alternative but to act in self defence.
- Reiley Intoxication will not be considered in determining whether they reasonably apprehended harm.
• Section 35 applies where the accused provoked the assault, but this defence has lost much of its
relevance given that section 34(2), which is less restrictive than section 35, can be used where
assaults are provoked.
- this attempts to restrict self defence for those accused who without justification assaults another or provoke an assult by words, blows,
or gestures.
- The elements are :
I. a reasonable apprehension of death or BH
II. and a reasonable belief that the force was necessary to preserve the accused from death or GBH
III. it requires the accused not have the intent to cause death or GBH before the necessity of self preservation arose
IV. and that the accused retreat as far as feasibly before the necessity of self preservation arose.
- This section seems designed to deprive an accused who initiates or provokes a fight with the intent to cause death or GBH of the
defence.
- Pintar- An absence of evidence with respect to any of its multiple requirements, including its requirement to retreat before necessity of
self preservation arrives may justify withholding the defence from the jury.
- The concept of provocation is defined for the purposes of self-defence in section 36.
• Section 37 operates as a general defence that is broad enough to subsume the other defences but courts tend not to use it if any of the
other provisions apply.
- s37CC- “everyone is justified in using force to defend himself or anyone under his protection from assault, if he uses no more force than
is necessary to prevent the assault or the repetition of it.”
- Thus a parent could be justified under s 37 to protect their child.
- 37 does not require reasonable apprehension of death or grievous bodily harm, or a reasonable belief that the force used was necessary
to prevent death or GBH.
- Force can not be more than necessary.
Excessive self defence- Canadian courts have not recognized a partial defence for accused who engage in excessive and unreasonable self-
defence, which in some other jurisdictions reduces murder to manslaughter.
R v Faid (1983) Dickson in the context of s34(2)- where a killing from excessive force occurs the accused loses the justification provided
under s34.
Pintar explains the relationship between sections 34(1) and (2), and the general approach that should be taken to using the various
defences. As Cinous shows, each of these defences has both subjective and objective components that have to be satisfied. Lavallee illustrates
the defence applied in the battered women context.
- R. v. Pintar, [1996] O.J. No. 3451 (Ont. C.A.)
- R. v. Cinous, [2002] 2 S.C.R. 3
- R. v. Lavallee, [1990] 1 S.C.R. 852
18. Necessity
 Perka- Dickson CJ was careful to restrict necessity to “circumstances of imminent risk where the action was taken to avoid a direct
and immediate peril” where the action was morally involuntary as measured on the basis of societies expectation of appropriate
and normal resistance to pressure and where it was clear that there was no reasonable legal alternative to avoid the peril.
 Perka- the court rejected the argument that an accused who is engaged in illegal conduct should be disentitled to the necessity
defence.
 Will not apply if: “the necessitous situation was clearly foreseeable to the reasonable observer if the actor contemplated or out to
have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law.
 Necessity and duress are recognized in Canada only as excuses.
 Latimer SCC- articulated 3 elements of necessity.
I. the requirement of imminent peril or danger(modified objective standard)
II. the requirement of no reasonable legal alternative (modified objective standard)
III. the requirement of proportionality between harm inflicted and the harm avoided.
“Imminent peril or danger” element 1

- Ruzic- the requirement of imminence in the related defence of necessity should not be restricted to immediate threats.
ie) breaking into a cabin for food before they die of starvation
23
- R v Latimer SCC affirmed- the requirement that” disaster must be imminent or harm unavoidable and near. It is not enough that the
peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. “
“no legal way out or safe avenue of escape “ element 2

- Perka- if there is an alternative to breaking the law then the decision becomes a voluntary one.
- Latimer- the legal alternatives must be perused even though they are demanding sad or unappealing.
-
- IMPORTANT- this determination should be made on a modified objective standard so that any past experiences that the accused
had in pain, pain management surgeries should be relevant determining the reasonableness of legal alternatives.
- Latimer- The modified objective standard applies to the first two elements and does not apply to 3 element proportionality
“proportionality between harm inflicted and harm avoided” element 3
- the harm avoided clearly outweighed the harm inflicted but only that the two harms be “of comparable gravity”
 The defence of necessity permits the conduct of the accused to be excused where its elements are met.
The defence is heavily circumscribed.
 Canadian criminal law allows for a common law defence of necessity. The leading case for the defence is Perka v. The Queen [1984]
2 S.C.R. 232 in which Dickson J. described the rationale for the defence as a recognition that: a liberal and humane criminal law
cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-
preservation or of altruism, overwhelmingly impel disobedience.
 However, it must be "strictly controlled and scrupulously limited." and can only be applied in the strictest of situations where
true "involuntariness" is found. Three elements are required for a successful defence :
1. the accused must be in imminent peril or danger

2. the accused must have had no reasonable legal alternative to the course of action he or she undertook
3. the harm inflicted by the accused must be proportional to the harm avoided by the accused
 Each element must be proven on an objective standard. The peril or danger must be more than just foreseeable or likely. It must be
near and unavoidable.
 At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action
ad make a counsel of patience unreasonable.
 With regard to the second element, if there was a realistic or objectively reasonable legal alternative to breaking the law, then there
can be no finding of necessity. Regarding the third element requiring proportionality, the harm avoided must be at least
comparable to the harm inflicted.
 In R. v. Latimer (2001), the Supreme Court of Canada affirmed that the defense of necessity is not available to a defendant when
(1)the killing occurred when there was no imminent danger to either the defendant or the victim, (2) reasonable legal alternatives
are available besides killing, and (3) the harm inflicted is not in proportion to the harm avoided
19. Duress
The defence of duress is available under section 17 Code and at common law. Section 17 identifies a limited defence, but the common law
and Charter have been used to extend its application.
Duress can refer to :

1. statutory defence available under s17 of the CC to the principal offender who commits the offence and as modified by s 7 of the
Charter
2. the common law defence available to parties to an offence and would be available in all cases should s 17 be found in its entirety to
violate s 7 of the charter
3. a factor that may in rare cases prevent the Crown from proving the mental element for some crimes.
1. s17 – defence of duress is available only when the accused “commits an offence under compulsion by threats of immediate death or
bodily harm from a person who is present when the offence is committed”
- R v Carker (No 2) [1967]- SCC interprets threat of immediate death or bodily harm literally. ( ie prisoner argued duress, stated
prisoner was going to kill him, prisoner was locked up though- no immediate harm)
-
I. Threats Of Immediate Death of Bodily Harm from a Person who is Present
- R v Ruzic [2001]- requirements of immediacy and presence violated s7 of the Charter because they could result in punishment of a
person who committed a crime in a morally involuntary manner.
- The courts remedy in Ruzic was to sever these requirements from s 17 so that the statutory defence of duress no longer requires that
the threat of immediate death or bodily harm or that the person issuing the threats be present when the crime is committed.
24
II. Threats can be Directed against the Accused or Third Party

- R v Ruzic [2001]- The SCC clarified that threats of death or bodily harm against third parties such as the accused family may be
considered under s 17 of the CC
- R v Mena (1987) The threats need not be express from words or gestures but can be reasonably implied from the circumstances.
- III. Subjective Belief That Threats of Death or Bodily Harm Will be Carried Out
- R V Mena (1987) s17 only requires the accused to subjectively believe that the threats will be carried out and does not require a
reasonable basis for such a belief.
- NOTE: other defences ( not duress) like self defence the reasonableness is a modified objective standard that takes into account the
accused’s characteristics and experiences.
- s17 defence does not explicitly require either that the accused have no safe avenue of escape or that there be proportionality between
the harm threatened and the harm accused.
- Excluded Offences – s 17 is not available if the accused is charged with a long list of offences including murder, attempted murder,
sexual assault, forcible abduction, assault with a weapon or causing bodily harm aggravated assault, robbery , arson, and abduction of a
young person.
- R v Ruzic Questions Remain because on whether or not s7 can justify a crime such as these.
- IV. No Defence If Accused is Party to a Conspiracy or Criminal Organization

R v Li ( 2002) - The use of the word “association” suggests that the accused may be deprived of the defence because of prior contact
with those who issue threats, even though he or she had not entered into an agreement to commit a crime.
This could breach their s7 Charter rights- should focus on – whether the accused had any realistic choice but to commit the
offence at the time it was committed and not on the prior acts or associations of the accused.
- Ruzic- The SCC appears to have struck down the “immediacy and presence requirements” and the reformulated s17 thus applies to
those who commit an offence “under compulsion by threats of death or bodily harm....if the person believes that the threats will be
carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion.
2. The Common Law Defence of Duress 327
 s17 was often read down to apply to principle offenders and the common law duress would apply to aided and abetted or formed
a common law purpose to commit an offence.
 Since it is not often clear who is the principle offender and who acted as an accomplice juries sometimes have to instructed about
both s7 and the common law duress.
 The common law defence of duress continues to apply to all accused who act as accomplices to crimes under s21(1)(b) and (c) and
21(2). In addition it would apply to all accused should s 17 be held to be unconstitutional in its entirety.
 The common law defence of duress is characterized by the general requirement that the accused respond reasonably and in a
morally involuntary manner by threats and by the absence of the categorical exclusions placed on the s17 duress defence.
 Hibbert- SCC has indicated that the common law defence of duress has the same juridical basis as the common law excuse of
necessity
 Ruzic- restrictions on the common law defence or duress indicating that there was a “need for a close temporal connection
between the threat and the harm threatened” The courts will interpret the imminence requirement in a flexible manner and there
is no magic in any particular time between receiving the threat and committing the crime. The second and primary requirement of
the common law of duress :the requirement that the accused have no safe or realistic avenue of escape.
 Ruzic- a threat that was “far removed in time”, would cast doubt on the seriousness of the threat and more particularly, on the
claims of an absences of a safe avenue of escape.
 No Safe Avenue of Escape and No Legal Way Out

 Hibbert- SCC concluded that the defence of duress will not apply to parties who had a safe avenue of escape and could have
safely extricated themselves from the situation of duress.
 The lack of alternatives is not determined solely on the basis of the accsued’s subjective perception of the available choices but on
the basis on what a reasonable person in the accsued circumstances would have perceived as a safe avenue of escape and a legal
way.
 R v Keller (1999)- the question is whether a reasonable person, with a similar history, personal circumstances, abilities,
capacities, and human frailties as the accused would, in the particular circumstances, reasonably believe there was no safe avenue
of escape and that he had no choice but to yield to the coercion, after taken reasonable steps like contact the police to discover his
full range of options.
25
 Proportionality and the Question of Excluded Offences

 Ruzic- The SCC hinted their may be a requirement of proportionality in the common law defence of duress. Le Bel J –“the law
includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-
subjective standard of the reasonable person similar situated.
 Latimer- The court stated that proportionality should be determined on a purely objective standard.
 Note: the standard in Ruzic and Latimer are two different standard. Latimer-holding that a purely objective standard should
apply is the more considered opinion of the two and arguably makes conceptual sense.
Latimer- the court refused to rule out killing as always a disproportionate response.
Duress and Mens Rea
 Duress will not negate the mens rea required to be a party to an offence. The fate of those who reluctantly assist in crimes will
depend on the common law defence of duress.
 Hibbert- The SCC narrowed instances in which duress could raise a reasonable doubt about mens rea. It held that duress could
negate the accused’s intent required to form an unlawful purpose under s 21(2) or the intent required for doing something for the
purpose of aiding an offence under s 21(1)(b)
Defences in Summary
 In general they apply if the accused subjectively and reasonably responds to external pressures such has threats from other people
(self-defence and duress) and circumstances of peril (necessity
- R. v. Hibbert, [1995] 2 S.C.R. 973

- R. v. Ruzic, [2001] 1 S.C.R. 687
Federation
SENTENCING
33. General Principles of Sentencing
For the most part, the general principles of sentencing have been codified in the Criminal Code.
CC sections 718, 718.01, 718.1, 718.2, 718.3, 719
 R v. C.A.M., [1996] 1 S.C.R. 500 Facts- Retribution/sentencing The accused pleaded guilty to a number of counts of sexual assault,
incest and assault with a weapon, arising from a largely uncontested pattern of sexual physical and emotional abuse inflicted upon his
children . The judge stated that the offences were as egregious as any he had ever had occasion to deal with, sentenced the accused to a
cumulative sentence of 25 years imprisonment with individual sentences running both consecutively and concurrently.
 The issue of “retribution” in sentencing was raised. People often see it with association with vengeance. In fact it bears little
resemblance to the word. Vengeance represents –an uncalerbreated act of harm upon another, frequently motivated by emotion and
anger, as a reprisal for harm upon another , frequently motivated by emotion and anger, as a reprisal from harm inflicted upon oneself
by that person.
 Retribution in a criminal context by contrast represents an objective, reasoned and measured determination of an appropriate
punishment which properly reflects the moral culpability of the offender, having regard to the international risk taking of the offender.
Unlike vengeance, retribution incorporates restraint. It is also distinguished from denunciation. Retribution requires that a judicial
sentence properly reflect the moral blameworthiness of that particular offender.
 R v. Priest, [1996] O.J. No. 3369 Circumstances not Exclusive Facts- 19 year old broke into a convenience store and stole 2700
worth of goods. He was confronted and returned everything. He had no record and pleaded guilty. He represented himself and had no
information about him with him. The judge sentence him to 1 year in jail as a general deterrence because of the amount of break and
enters in the area of Hearst. On appeal, the court cited R v Rohr and R v Sears and stated that in those similar cases it was made clear
that that even where break and enters is prevalent in a particular area, it is a circumstance to be taken into consideration but
not exclusive consideration.
R v. Boucher, [2004] O.– domestic violence- sentences principles of denunciation and deterrence are of paramount significance in cases
involving domestic violence. Sentences imposed in domestic violence cases must foster an environment in which individuals can feel free to
leave romantic relationships without fear of harassment, harm or violence directed at forcing a return of relationship.
26
Procedure
CC sections 720, 721, 722, 723, 724
 R. v. Bremner, [2000] - Victim Impact Statements Victim impact statements should not contain any recommendations for sentence, or
use any psychiatric term. Victims are not permitted to have a role in suggesting the length or kind of sentence, nor is it intended that
these statements erode the usual roles about expert evidence (per Proudfoot and Huddart JJA)
 R v. Cromwell, [2005] - (plea bargain and joint submission)- The interests of justice are generally well served by the acceptance of a
joint submission on sentence, accompanied by a negotiated plea of guilty, provided the proposed sentence falls within an acceptable
range.
A trial judge has discretion to reject a joint submission where the proposed sentence:
1. Is contrary to the public interest; or
2. Would bring the administration of justice in disrepute; or
3. Is otherwise reasonable.
Incarceration
CC section 732, 743, 743.1, 745, 718.3(4)
Conditional Sentence of Imprisonment

CC section 742, 742.1, 742.3, 742.6, 742.7
 R v. Proulx, [2000] - pg 1118 (NOTE - the range of offences eligible for conditional sentences has been altered since R v. Proulx was
decided, yet the principles continue to apply)
The court in this case outlined 13 principles to conditional sentences.
1. to reduce reliance on incarceration as a sanction and to increase the use of restorative justice.
2. Conditional sentence should be distinguished from a probationary measures. Probation is primarily a rehabilitated sentencing tool. By
contrast, Parliament intended to conditional sentences to include both punitive and rehabilitative aspects, Therefore, conditional
sentences should be generally include punitive conditions that are restrictive of the offender’s liberty. ( ie house arrest should be the
norm, not the exception)
3. No offences are excluded from the conditional sentencing scheme except those with a minimum term of imprisonment, nor should
there be presumptions in favour of or against a conditional sentence for specific offences.
4. S742.1 (a) If the judge determines that a term of less then two years imprisonment , then the judge should also consider whether it is
appropriate for the offender to serve his or her sentence in the community.
5. A conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed.
The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
6. The requirement in s 742.1(b) that the judge be satisfied that the safety of the community would be endangered by the offender . The
judge should consider the risk posed by the specific offender, not the broad risk of whether the imposition of a conditional sentence
would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law.
7. Once prerequisites are satisfied-judge should give serious consideration whether the conditional sentence is consistent with the
fundamental purpose and principles of sentencing set out in ss718 to 718.2 –follows clear message to the judiciary to reduce the use
of incarceration as a sanction.
8. More serious the offence, the longer and more onerous the conditional sentence may be. In some cases incarceration is still
appropriate.
9. Conditional sentences will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the
victim and the community and promotion of a sense of responsibility in the offender.
10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more
appropriate than incarceration. Where denunciation and deterrence are particularly pressing, incarceration will be only suitable
way in which to express society’s condemnation of the offender conduct and deter future conduct.
11. A conditional sentence may be imposed even when there are aggravating circumstances, although the need for denunciation and
deterrence will increase in these circumstances.
12. No party is under the burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the
circumstances. The judge should consider all relevant evidence , no matter by whom it is adduced.
13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to a considerable deference from
appellate courts.
Probation and Community Service

CC section 731, 732.1, 732.2, 733.1
27
 R. v. Ziatas, [1973] O.J. No. 726 (Ont. C.A.) pg 1113– the trial judge on an assault charge, fined the accused and placed him on probation
for one year with the condition that he not operate a motor vehicle during that period. The condition was struck on appeal because-
had really nothing to do with the offence and did not have power to do this under s663(2)
 R. v. Ziatas, [1973] The terms of probation order are not to be imposed as additional punishment, but rather with a desire to secure the
good conduct of D, and to prevent the repetition of by D of the same offence or the commission of other offences.
Fines
CC sections 734, 734.6, 734.7, 736 (note – there is no fine-option program in force in most provinces, including Ontario), 787
Discharges
CC section 730
 R v. Fallofield (1973), pg1112 facts-defendant had been convicted of possession of stolen goods of a value of less than 200. He stole
some left over pieces of carpet ($33.07) while delivering a fridge to a home. He was in going to be a corporal in the Navy, married and
had no previous record. Now S730 (see for limitations)
 The granting of a discharge does not mean that the accused has no criminal record. Under s730(3) of the criminal code a discharged
could apply to the Parole Board, subject to a shorter waiting period, for a pardon. A pardon “vacates” a record. Amendment in 1992-
under s 6.1- after 1 year following absolute discharge and three years following a conditional discharge, no disclosure of such record
can be made without the approval of the Minster and all reference must be removed from the automated criminal conviction records
retrieval system maintained by the RCMP. If someone asks have you been convicted-the answer is “no.” If the question is do you have a
criminal record-it seems the answer has to be yes unless the time period of disclosure has arrived. After the pardon-the answer would
be no.
Recognizance Orders
CC section 810, 810.1 and 810.11
 R. v. Budreo, [2000] pg 193, leave to appeal to S.C.C. refused Few provisions in the CC contemplate future behaviour by an accused,
rather then responding to a past act. The “peace bond” provisions in s810 allows a person who reasonably fears for personal injury or
property damage at the hands of another person to obtain a “recognizance” in which that other person promises dealing with fear of
intimidation offences, criminal organizations, terrorism offences, sexual offences and serious personal injury. A person refusing to sign
this can receive 12 months in prison. Other provisions which are similar 810.01, 810.1, 810.2- differ from a personal remedy offered
by a peace bond in that they do not require that the person seeking the order fear that he or she personally will be the victim.
 Rv Budreo challenged this on the basis that it creates a “status offence”. And violated the Charter s7. The court upheld the provision.
This case relied upon by supreme court when dealing with Karla Homoka after she got out of jail. Prosecutors applied for a 810.2
recognizance placing stringent conditions on her movements. It was quashed on facts but the constitutionality of it was upheld.
Restitution
CC sections 738 – 741.2 inclusive
Victim Surcharges
CC section 737(1)
Sentencing Aboriginal Offenders TAB 1111

CC section 718.2(e)
 R v. Gladue, [1999] 1 S.C.R. 688-see Tremars 718.2 Canada has a very high rate of incarcerating people. The courts held that the
traditional approach to many aboriginal people correspond well the new amendments which aim at incorporating more restorative
principles. The laid down a 13 point guideline to assist judges in applying s718.2(e) ( see page 1109-1111Stuart Text)
1. The CC codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in determining a
sentence that is fit for the offender and the offence.
2. section 718.2(e)-makes it mandatory that sentence judges to consider all available sanctions other than imprisonment and pay attention to
particular circumstances of aboriginal.
3. Its purposes is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, encourages judges to have recourse to a
restorative approach to sentencing.
4. 718.2(e) must be considered with all other factors in determining a fit sentence. Attentions should be given that provisions have placed new
emphasis on decreasing incarceration.
5. sentencing is an individual process and judges must alter the method in which they sentence an aboriginal because of 718.2 ( e)
6. directs sentencing judges to sentence aboriginal offenders different and the judges must consider the unique systematic background which
brought the aboriginal to the courts and the types of sentencing procedures and sanctions which may be appropriate.
7. other information may be provided about the offender and the offender may waive this gathering of information.
8. If no alternative to incarceration the length of the term must be carefully considered.
9. s718.2(e) is not an automatic reduction in sentence no should it be assumed that the offender is getting a reduction of sentencing because
incarceration is not imposed.
10. The absence of alternative sentencing programs for aboriginal communities does not eliminate the ability of a sentencing judge to impose a
sanction that takes into account principles of restorative justice.
28
11. 718.2 (e)- applies to all aboriginal offenders whether they live on or off the reserve. The term community must be defined broadly, including
support and interaction-residence of an aboriginal in an urban centre that lack support does not relieve the sentencing judge of the obligation
to try and find an alternative to prison.
12. a jail term for an aboriginal offender may in some circumstances be less than a term imposed on a non-aboriginal offender of the same
offence.
13. It is unreasonable to assume that aboriginals do not believe in traditional sentencing goals. The more serious the crime, the more likely it will
be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders.
Punishment of Organizations
CC sections 718.21, 735
Parole
CC sections 743.6, 745.2
 R. v. Zinck [2003] S.C.J. No. 5 delayed parole is out of the ordinary and must be imposed in a manner that is fair for the D. The
sentencing judge must first decide the appropriate punishment for the crime, after a consideration of all relevant factors, but without
any consideration of parole eligibility. The judge must next consider parole eligibility, again applying the sentencing factors, but
assigning priority to general and specific deterrence and denunciation.
APPEALS AND REVIEW

34. Appeals of Final Decisions and Judicial Review of Interim Decisions
Final verdicts can be appealed. Interim decisions cannot be. Interim decisions can, however, be the subject of judicial review applications where
jurisdictional errors occur. Judicial review may be necessary, for example, to challenge preliminary inquiry results, to seek or quash publication
bans, or to suppress or access third party records; in these cases if we wait until the end of the trial, the damage sought to be prevented may
have already occurred, hence the judicial review application. In the case of appeals, different grounds of appeal and procedural routes apply,
depending on whether an offence has been prosecuted summarily or indictably.
Coughlan, pp. 351 – 370; 372 – 375 (appeals)
Coughlan, pp. 247 – 249 (judicial review, exemplified in the context of preliminary inquiries)
29

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1. The Sources of Criminal Law

2. The Power to Create Criminal Offences and Rules of Criminal Procedure

B. The Canadian Charter of Rights and Freedoms

(c) Rules of Practice

R. v. Gundy, [2008] O.J. No. 1410-

3. The Classification of Offences

Elections- Code can take away an “election” in a number of situations:

 Provincial jails - less than 2 years in jail

a) affected the scope of police powers;

a) trial in front of “court of criminal jurisdiction”

4. Interpreting Criminal Provisions

 s2 Code-contains definitions that apply throughout the code.

3 common approaches to interpreting criminal provisions:

Territorial and Age Based Restrictions

 Possession may be actual or attributed by law.

Marshall Aiding and Abetting?

3. Actus Reus - Consent to the prohibited Act

4. Actus Reus - Causation

Causing Prohibited Consequences

Statutory Provisions Concerning Causation

Causation in non-Homicide Cases

5. Actus Reus- Omissions

Example of where duties were breached

 Dont say- mens rea for manslaughter is objective.

1) Relation of the Fault Element and the Prohibited Act.

Subjective and Objective Fault Elements

1. a marked departure from reasonable standards; and

Common law Presumption of Mens Rea

Constitutional requirements of Mens Rea

SCC ruled subjective mens rea is not required for:

I. DeSousa- unlawfully causing bodily harm

more on these 3 factors pg 159-162

Fault Element in relation to Defences of mistake of Fact and Intoxication

The Degrees of Subjective Mens Rea

1. Intent, Purpose or Wilfulness

2. Intent, Purpose or Wilfulness Distinguished from Motive

6. Transferred Subjective Mens Rea

 s229 (b)- codifies the common law doctrine of transferred intent.

The Degree of Objective Mens Rea

SCC has not accepted Larmer’s approach:

Marked departure vs marked and substantial departure

The Relevance of Subjective Perceptions and Exculpatory Factors to Objective Fault.

Mistake and the Degree of Fault

Mistake of Fact Drug Charges

Mistake of Fact and Sexual Assault

Mixed Subjective and Objective Fault Elements

Actus Reas of Aiding and Abetting

 the distinction between aiding and abetting is difficult to define.

Mens Rea for Aiding and Abetting

Counselling a Crime that is not Committed

Actus Reas (not committed)s464

Mens rea (not committed) s464

Impossibility and Counselling

Counselling a Crime that is Committed

Accessory After the Fact

Not “disease of the mind”

Effect of Mental Disturbance Short of Insanity on Mens Rea

Relation to Mental disorder and Consequences of an automatism defence- pg 277

Procedural Considerations in the Mental Disorder Defence

Who can Raise the Mental Disorder Defence?

Disposition of an Accused Acquitted by Reason of Mental Disorder

15. Simple Intoxication