Case
Frey v. Fedoruk, [1950]
S.C.R. 517
R. v. Jobidon,
R. v. Oakes,
R. v. Labaye,
R. v. Pare, [1987] 2 S.C.R.
618
R. v. Mac, [2002] 1 S.C.R.
856,
R. v. J.(D.), [2002] O.J. No.
4916 (Ont. C.A.)
R. v. Gunning [2005] 1 S.C.R.
y 1 uninvited, claimed
627
CC s. 4(3), Controlled Drugs
and Substances Act section
2
R. v. York, (2005),
R. v. Marshall, [1969]
Sum Page Fact Principle Area
Sources
Sources
Charter
Charter
Purposive interpretation to statutes. Statute said muder would be 1st
Accused murdered a degree "while committing" the indecent assault. Did not require 2 Interpreting - Strict
y 1 young boy 2 minutes after
offences be simultaneous - the acts formed part of one continuous Construction
indecently assaulting him
sequence of events forming a single transaction
Proper interpretation of "Where the words of one version may raise an ambiguity, courts
Interpretation -
word 'adapted' in s. should first look to the other official language version to determine
French/English
369(b) whether its meaning is plain and unequivocal."
JD fled police to VB's
Forcible entry occurs only where entry interfered with peaceable Actus Reus - acts
house and was let in,
possession… a known person walking in the front, straight through and statutory
tried to escape through
back door and out the back door does not have such an intention conditions
Accused shot C who
Actus Reus - acts
entered his home The jury must decide if an offence is proven on the facts. Judge
and statutory
cannot give a direction on q of fact.
accident conditions
Accused realized goods
on his property were Had knowledge and exercised control over goods briefly, but did not Act' of possession -
take objects into custody with intention to use in prohibited manner -
stolen and drove vans conduct inconsistent with intention to retain or deal with goods manual possession
away to take off property

R. v. Terrence, [1983]
R. v. Morelli, 2010 SCC 8,
See CC section 265(3)
R. v. Jobidon, [1991] 2 S.C.R.
714
R. v. J.A., 2011 SCC 28
R. v. Mabior, 2012 SCC 47
See CC ss. 224-226
Some evidence of control on the accused's part necessary to establish Act' of possession-
Accused was passenger in possession under s. 3(4)(b) "knowledge and consent" cannot exist constructive joint
stolen car
without some measure of control over subject matter posession
Viewing an image in browser is not possession, nor is creating a
Accused watched child 'favourite'. Automatic caching of a file to hard drive, without more, is Act' of possession -
porn online not possession. File must be knowingly stored in place under one's electronic data
control to constitute possession.
Consent as element of actus reus. S. 256 general rule that one cannot
commit assault if other consents. However CL illuminates meaning of
Accused fought victim in
consent and limits its effectiveness. The weight of jurisprudence and Consent as element
y 2 consensual fight and
killed him s. 256 goes against validity of consent to bodily injury in a fight, as of actus reus
does policy/public interest. Distinction between fight and sports,
medical treatment etc.
Does consent given in advance of being rendered unconscious
Accused performed continue throughout unconscious period? The legislation requires
Consent as element
y 4 sexual acts on ongoing conscious consent. Consent requires a conscious, operating of actus reus
unconscious partner mind capable of granting, revoking or withholding consent to a sexual
act. The relevant period to ascertain is while the act is occuring
The Cuerrier requirement of "significant risk of serious bodily harm"
Accused failed to disclose should be read as requiring disclosure IF there is a realistic possibility Consent as element
y 7 HIV+ status to 9 people. of transmission. If not, failure to disclose will not constitute fraud of actus reus
None got HIV vitiating consent. Sex without condom convicted for, sex with condom
conviction reversed.

R. v. Smithers, [1978] 1
S.C.R. 506
R. v. Nette, [2001] 3 S.C.R.
488
R. v. Williams, [2003] 2
S.C.R. 134
R. v. Maybin, 2012 SCC 24
R. v. Peterson, [2005]
Accused kicked victim and Weight to be given to medical evidence a matter for jury. Substantial
victim died from asphyxia evidence kick "was at least a contributing cause" and more than
caused by malfunctioning minimal - immaterial that death caused in part by malfunctioning
Causation - thin skull
epiglottis - could have epiglottis that accused may or may not have contributed to. Homicide
been cuased by kick or committed when directly or indirectly a person causes death of a
fear human being by any means. Not expecting death not a defence.
Accused left 95 y/o Responsibility for causing death is both factual and legal. Accused
bound. Died sometime action's constituted a significant, operative cause of victim's death. A Causation - legal and
y 8
over next 48 hours from difficulty in establishing a single medical cause of death does not lead factual
asphyxiation to the legal conclusion that there were multiple operative causes.
Consequence must be proved beyond RD. Accused cannot be
Accused did not tell convicted of aggravated assault endangering life in circumstances Causation -
y 10 partner he had tested where partner could alread have been HIV+. Partner could have been prohibited
HIV+ and infected partner infected before accused knew. Mens rea clearly shown so accused consequence
convicted of attempted aggravated assault.
Brothers rendered victim Manslaughter. The test causation test is one of significant
unconscious, bouncer
contributing cause. 'But for' the brothers actions the V would be alive, Causation -
y 11 arrived and struch victim
and the risk of harm caused by an intervening actor/that the fight intervening events
in head - inconclusive
which blow caused death would escalate was reasonably foreseeable.
P's father was unable to P's father was dependant on P and P knew this fact. P controlled the
provide necessaries of life living conditions and kept his father in unsafe environment, and chose
Omissions
for himself - P failed in not to make decisions that would ensure father had necessaries of
duty to provide life. Failed in duty, convicted under s. 215

R. v. Browne, (1997),
R. v. Murray, [2000] O.J. No.
2182 (Ont. S.C.J.)
R. v. Roks, 2011 ONCA 526
R. v. Theroux, [1993] 2
S.C.R. 5
R. v. Chase, [1987] 2 S.C.R.
293
See CC ss. 265(4); 273.2
G swallowed bag Trial judge concluded statement to take to hospital was an
containing crack. Became 'undertaking' and by using a taxi instead of calling 911, accused
y 13 ill, accused said he would showed wanton and reckless disregard for G's life. Appeal allowed - Omissions
take her to hospital and legal duty in 217 does not flow from relationship between parties as
called taxi in 215. Must be a binding commitment, statement did not constitute
Lawyer retrieved and kept Concealment of the tapes had the 'tendency to obstruct justice', and
Subj. MR Intention
for 17 months videotapes he intended to hold the tapes. However on M's testimony it was not
that were evidence of clear he 'wilfully' intended to obstruct justice. Explanation 'might and ulterior mens
rea
crime reasonably be true'
Accused burnt down
1. Subjective foresight of death not enough to sustain murder
building for insurance, Subj. MR Intention
conviction, must have subjective foresight of likelihood of death. 2.
y 14 convicted of murder at and ulterior mens
Cannot reason backwords from e.g. size of fire and fact of death and
trial. Reduced to rea
conclude accused must have known someone would die.
manslaughter
Accused, directing mind
The AR of fraud is established by proof of prohibited act, determined
of company, charged w/
fraud - accused objectively - what would the RP consider a dishonest act. The MR is Subjective mens rea
established by proof of subjective knowledge of the prohibited act,
y 16 responsible for misrep,
and proof of subjective knowledge that performance of the prohibited w/ objective
but sincerely believed features - fraud
act could deprive another. Subjective knowledge of risk may be
deposits would not be
inferred from act itself
lost
Sexual assault in 244(1) - test is whether the conduct has a sexual
Accused grabbed 15 y/o
nature viewed objectively. "… is the sexual context of the assault Subj. mens rea w/
y 18 without consent. Said visible to a RP?" part of body, nature of contact, situation, words, Objective features of
'Come on dear… I know
gestures etc all relevant. Intent or purpose as well as motive may be sexual assault
you want it'
factors in considering whether conduct is sexual

R. v. Ewanchuk, [1999] 1
S.C.R. 330
R. v. Levigne, [2010] 2 S.C.R.
y 23 posing as 13 y/o. Accused unless took reasonable steps to ascertain. Reasonable steps are
3 arrested for 'luring a child' objective - subj belief must be backed up by objective steps. Here did
R. v. ADH, 2013 SCC 28
R. v. Currie, (1975), 24 C.C.C.
(2d) 292 (Ont. C.A.)
R. v. Vinokurov, 2001 ABCA
113 y 26 did he 'know' it was
Accused touched 17 y/o
in trailer after interview.
y 19 She said 'no' on each
occasion and was not
willing
Accused chatted online 172.1(3) presumption accused believed he was communicating w/
with undercover PO
172.1(1)(a) and (c)
Accused gave birth and
thought child was dead,
y 24 leaving in toilet. Baby
recovered. Accused
charged with unlawfully
abandoning a child
accused cashed
fraudulent cheque for
third party in return for
$5. Acquitted
Accused received stolen
property at pawn shop -
stolen under 354(1)
AR of SA is unwanted sexual touching. The MR is knowing or being
reckless or wilfully blind to lack of consent. The AR has 2 obj elements
(touching, sexual nature) and 1 sub: absence of consent. Determined
by ref to victim's subj. internal state of mind towards the touching. Subj. MR: knowledge
accused's perception is not relevant. Depends on waht judge believes
based on Crown obligation to prove absence of consent. Consent
exists or does not, no third option. no 'implied consent'
underage. (4) not a defence to say believed person was not underage
Subj. MR: knowledge
nothing to ascertain true age
s. 218 does not expressly detail a fault requirement. Interpreted to
presume Parliament intends crimes to have a subjective fault
element. Ensures only those with a guilty mind are punished. The Subj. MR: knowledge
words used (abandon, expose, wilful) suggest subj. fault. Also absence
of typical obj. fault lang.
"… the rule is that if a party has his suspicion aroused but then
Subj. MR: Willful
deliberately omits to make further enquiries, because he wishes to
remain in ignorance, he is deemed to have knowledge." blindness
Wilful blindness is imputed knowledge, recklessness is "something
Subj. MR: Willful
less than that." WB is the equivalent of actual knowledge, blindness
Recklessness is not & is insufficient.
 Did B have the mens rea as party to the offence? 'purpose' in s, 21(1)
13 y/o lured and
(b) requires intent and knowledge. Intent to assist principle does not
murdered on golf course. Subj. MR: Willful
R. v. Briscoe, 2010 SCC 13 y 28 require desiration of the offence. WB is sufficient for knowledge
Accused drove everyone blindness
component - does not depart from subj. MR requirement - imputes
out and briefly held victim
knowledge where someone deliberately chooses not to inquire

Accused distributed Subj. MR:

R. v. Buzzanga and as a general rule, a person who foresees that a consequence is certain
phamplets intending to Recklessness (and
Durocher, (1979), 25 O.R. or substantially certain to result from an act that he does in order to
create furore among see R v Theroux
(2d) 705 (Ont. C.A.) achieve some other purpose intends that consequence.
French Canadians above)

Requiring Subj. foresight of death for muder maintains proportionality

between stigma and punishment attached to conviction and the
M & T set out to commit a
R. v. Martineau, [1990] 2
30 robbery. T shot & killed 2 moral blameworthiness of the offender. By eliminating the
Obj MR and true
y
S.C.R. 633 requirement of subj proof 213 violates 7 & 11(d) Charter. 'ought to crimes
people.
know is likely to cause death' in 212(c) violates 7 & 11(d) and not
saved by s. 1

Accused injected cocaine

Manslaughter as death a direct consequence of unlawful act contrary
into deceased (w/
222(5)(a). MR of unlawful act manslaughter is obj. forseeability of risk
R. v. Creighton, [1993] 3 y 32 consent) - accused of bodily harm which is not trivial or transitory, in context of Obj MR and true
S.C.R. 3 convinced companion not dangerous act. Not necessary to foresee risk of death. Does not crimes
to call 911 and tried to
violate s. 7.
clean scene

The manner of vehicle operation is at issue for the AR, not the
Accused charged w/ consequence, which has no bearing on q of whether the offence is
dangerous operation of made out. Objectively dangerous conduct must be accompanied by
R. v. Beatty, 2008 SCC 5 y 35 vehicle causing death MR. Conduct must amount to a marked departure from the standard Obj MR and true
crimes
(249(4)). Crossed centre of care that a RP would observe in the circumstances. Short of
line for no reason incapacity to appreciate risk, personal attributes of accused are not
relevant

R. v. J.F. 2008 SCC 60
R. v. Sault Ste. Marie, [1978] y
2 S.C.R. 1299
Reference re Section 94(2)
of the Motor Vehicle Act
(B.C.), [1985] 2 S.C.R. 486
R. v. Wholesale Travel Inc.,
y 42 SL offence where MR was negligence) nor the imposition of an onus on the accused to establish Regulatory offences
[1991] 3 S.C.R. 154
4 y/o died in foster home. At trial convicted of manslaughter by criminal neg and acquitted of
manslaughter by failing to provide necessities of life. The 1st is more
Foster mother beat him.
serious and requires proof of marked and substantial departure from
Foster father charged w/
conduct of RP where accused recognized risk or gave no thought to it, Obj MR and true
y 38 manslaughter by criminal
the 2nd similar conduct of RP but in circumstances of objective crimes
neg and manslaughter by
foreseeability. Verdicts incomprehensible as signify a less degree of
failing to provide
fault was not established whereas a greater degree was proven
necessities of life
beyond RD
The city had an
agreement with company Regarding MR - crucial distinction between criminal offence and
for disposal of reguse. public welfare offence. In the latter 'absolute liablity' entails
39 Company polluted creek conviction on proof of prohibited act without any relevant mental Regulatory offences
and both charged with element. Crown relieved of burden of proving MR. Virtually
discharging/permitting impossible in regulatory case to prove wrongful intention. Defendant
discharge into water can prove defence of reasonable care.
course
BC Motor Vehicle Act 94(2) was inconsistent with s. 7. An AL offence does not per se violate
94(2) created an AL
s. 7. It does only if and to the extent it has the potential to deprive
offence in which guilt was
life, liberty or security of the person - a combinationof imprisonment
y 40 established by proof of Regulatory offences
and AL violates s. 7 irrespective of the nature of the offence. Public
driving whether a driver
interest might be a s.1 justification but administrative expediency is
knew of suspension or
not, unless in exceptional circumstances e.g. war, natural disasters.
not
Strict liability offences... do not infringe either s. 7 or s. 11(d) of the
Competition Act created Charter. Neither the absence of a mens rea requirement (MR is
negligence due diligence (as defence) on a balance of probabilities offends the
Charter rights of those accused of regulatory offences.
 s. 172 of the Highway
Very clear language needed to create AL offence. In the absence of
Traffice Act created language excluding the defence of due diligence, it is the assumed the
R. v. Raham, 2010 ONCA offence of stunt driving,
defence is available and the offence is one of strict liability. Driving Regulatory offences
206 (C.A.) including offence of
over the speed limit does not necessarily preclude a finding that
driving 50km/h or more
over speed limit person took all reasonable steps to avoid speeding

Company did not pay Diligence is based on civic duty to ascertain obligations. Passive
Levis (City) v. Tetreault, registration fees for ignorance is not a defence. For the defence of officially induced error
y 47 Regulatory offences
2006 SCC 12 vehicle and driver did not the company had to consider legal consequences on the basis of
have valid licence advice, and act in reliance on opinion. This it did not do.

See CC s. 21

R. v. Dunlop and Sylvester,
y 48
[1979] 2 S.C.R. 881
Accused were present at Presence at commission of offence can be evidence of aiding and
abetting but in this case, no evidence that the accused rendered aid,
gang rape by motorcycle Aiding and Abetting -
assistance or encouragment to the rape. No evidence of positive act
club and were identified presence at scene
or omission to facilitate unlawful purpose. Not sufficient to convict
as two of the attackers
that their presence was more than accidental

Accused were part of Conviction for attempted murder requires proof of intent to kill.
R. v. Logan, [1990] 2 S.C.R. robbery at which person Where death does not result, principles of FJ dictate the specific Aiding and Abetting -
731 y 49 was shot, but did not do intent to commit the attempted murder must be proven. Where mere attempts
the shooting attempts are at issue, MR takes a dominant role.

Did B have the mens rea as party to the offence? 'purpose' in s, 21(1)
13 y/o lured and
R. v. Briscoe, 2010 SCC 13 murdered on golf course. (b) requires intent and knowledge. Intent to assist principle does not Aiding and Abetting -
y 28 Accused drove everyone require desiration of the offence. WB is sufficient for knowledge
(reviewed above) wilful blindness
out and briefly held victim component - does not depart from subj. MR requirement - imputes
knowledge where someone deliberately chooses not to inquire

R. v. Thatcher, [1987] 1
S.C.R. 652
R. v. JF, 2013 SCC 12 y 51
R. v. Gauthier, 2013 SCC 32 y
R. v. Hamilton, [2005] 2
S.C.R. 432
See CC ss. 463, 465, 660
Accused charged with
causing death of ex-wife, Where an accused is tried alone and there is evidence more than one
either personally or aided Aiding and Abetting -
person was involved in commission of the offence, it is ok to give the
or abetted killer and was party to an offence
jury the option to find the accused guilty as a party to the offence
a party to the offence
under s. 21
J provided informaion to
T and R to help them
The correct approach to party liability to conspiracy limits liabilty to
murder their mother and
auding or abetting the formation of the agreement, or helps a new
mislead the police - jury Aiding and Abetting -
member join a pre-existing agreement. The offence is made out
instructed J could be where the accused aids or abets the AR of conspiracy - the conspiracy
convicted for conspiracy
conspirators' act of agreeing.
as either principal or
party
Accused did more than merely promise to take part in murder-suicide,
G charged with being a
she supplied the drugs. Therefore she had to do more to either
53 party with spouse to neutralize the effects of her participation or prevent the offence, e.g. Aiding and Abetting -
murder their three abandonment
destroying the drugs, going to police etc. Lack of evidence she had
children abandoned common unlawful purpose
Accused marketed sale of AR for counselling is the deliberate encouragement or active
files purportedly enabling inducement of the commission of a criminal offence. The MR is either
credit card fraud, charged intending the offence be committed or counselling it while aware of Counseling offence
with counselling offences risk offence likely to be committed as a result of the counselling. not committed
not committed including Accused intended others to use the numbers. Dissent: recklessness as
fraud to counselled person's reaction is insufficient.
Attempts
 Accused broke into MR for attempted murder is specific intent to kill and a mental state
apartment with gun to short of that level cannot lead to conviction for attempt. Not illogical
R. v. Ancio, [1984] 1 S.C.R.
y 54 speak to estranged wife. that in some circumstances a lesser intent can suffice for murder. A Attempts - murder
225
Shot at wifes BF and person cannot intent to commit the unintentional killings described in
missed 212 and 213

Accused indicated in job Guilty of attempted to procure female persons to have illicit
interviews that applicants intercourse... "The distinction between preparation and attempt is
R. v. Deutsch, [1986] 2 Attempts - attempt
would be expected to essentially a qualitative one, involving the relationship between the
S.C.R. 2 to procure
have sex with clients or nature and quality of the act in question and the nature of the
potential clients complete offence…"

An attempt to conspire to commit a substantive offence is not an

D & S charged with offence. Criminal liablity does "not attach to fruitless discussions in
conspiracy to commit contemplation of a substantive crime that is never committed, not Attempts - attempt
R. v. Déry, 2006 SCC 53
theft and possess stolen even attempted…" Given that conspiracy is a crime of intention, it is to conspire
liquor difficult to reach further than the law of conspiracy already allows. It
is not the goal of the criminal law to catch all crime 'in the egg'

Out-patient killed in- Defines MD (mod by Parks). Stresses significance of 'appreciates',

R. v. Cooper, [1980] 1 S.C.R. y 55 patient at psychiatric appreciate broadens legal and medical considerations and is more Defences - Mental
1149 hospital. Had lengthy than knowledge - a capacity to apprehend the nature of the act and Disorder
psychiatric history its consequences.

Accused raised insanity On meaning of word 'appreciate' in s.16. A person appreciates the
R. v. Kjeldson, [1981] 2 defence to 1st degree nature and quality of an act if he knows what he is doing and is aware Defences - Mental
S.C.R. 617 murder. He was a of the physical consequences. Not necessary to be able to appreciate Disorder, insanity,
psychopathy
psychopath the subjective or emotional reactions of those affected
 Accused killed, w/out
16(1) embraces not only the ability to know right from wrong in the
motive, a friend in his
apartment. He had abstract, but also to apply that knowledge in a rational way to an act.
R. v. Oommen, [1994] 2 Accused must be able to rationally perceive rightness or wrongness of Defences - Mental
y 56 paranoid delusional
S.C.R. 507 an act at the time of the act and make a rational choice. Accused was Disorder, insanity
psychosis and had
deprived of the capacity to know his act was wrong by the standards
delusions on the night in of the ordinary person
question

Accused was driving a car,

passenger ran into Criminal liablity cannot instantly attach where one is driving and Defences -
R. v. Swaby, [2001] O.J. No.
y 57 backyard and dropped acquires knowledge of an illegal weapon in the vehicle. Some time Automatism &
2390 (Ont. C.A.)
loaded handgun. Accused must be afforded to deal with the situation involuntary acts
drove off

Involuntary act entitles accused to acquital, unless as result of

Accused attacked automatistic condition stemming from disease of the mind rendering Defences -
R. v. Parks, [1992] 2 S.C.R.
y 58 parents-in-law while accused insane (then verdict of insanity). 'Disease of the mind' has a Automatism,
871
sleepwalking medical component but legal considerations are a) scope of sleepwalking
exemption from criminal responsbility and b) protection of public

Accused stabbed wife 47 Two forms of automatism: non-insane (involuntary action not
times but claimed to have stemming from DOM = acquittal) and insane (stemming from disease Defences -
R. v. Stone, [1999] 2 S.C.R.
y 62 done it in automatistic of mind and subsumed by mental disorder defence = NCR) Under Automatism &
290
state brought on by internal cause theory a contextual objective comparison is made to a involuntary acts
insulting words normal person's reaction

Accused was a mechanic The judge decides if evidential burden is met, not by evaluating the
and was told victim was
evidence but by deciding if there is evidence upon which a jury could Defences -
planning to kill him.
R. v. Fontaine, [2004] 1 reasonably decide. In 'reverse onus' defences such as MDA, the
Accused smoked Automatism -
S.C.R. 702
marijuana and maybe had evidential burden is discharged where there is some evidence to put evidence
the defence 'in play' - assertion by accused supported by evidence
delusions… shot victim
from expert will probably suffice
next day
 Accused claimed he If an accused establishes they acted involuntarily while in a Defences -
engaged in non- disassociative state, they will almost always be found NCR. Social
Automatism &
R. v. Luedecke, 2008 ONCA consensual sex with defence concerns dominate - risk of recurrence. Post-verdict the
y 66 involuntary acts -
716 victim but was asleep at actual dangerousness of the NCR accused can be assessed and they
NCR and social
the time - history of may be discharged. Even where significant risk, disposition order must
defence
parasomnia be tailored to circumstances

Accused charged w/
robbery w/ violence and The charge was divisible and accused convicted of common assault. Simple intoxication -
The Queen v. George,
acquitted on basis too Common assault not requiring specific intent - the manner in which not a defence to
[1960] S.C.R. 871
intoxicated to form force was applied to victim not accidental or unintentional general intent
specific intent

Highly intoxicated If jurisprudence has not determined matter, analysis of gen/specific

accused caused a fire intent looks to MR and social policy. Gen intent MR simply relates to Simple intoxication,
67 destroying ex-girlfriend's
performance of illegal act - no requirement of intent to bring about analysis of
R. v. Tatton, 2015 SCC 33 y
home. Left pan of oil for consequences external to the AR. Specific intent involves heightened general/specific
twenty minutes to get mental element - ulterior purpose or actual knowledge of intent
coffee circumstances or consequences

Accused killed a man &
R. v. Robinson, [1996] 1
y 69 claimed to have acted
S.C.R. 683 without intent as was
drunk
Overruling Beard rules providing intoxication not a relevant factor
except where it removed accused's capacity to form requisite intent.
Rules violated 7 and 11(d) as an accused could be convicted despite Simple intoxication -
formation of intent
jury having reasonable doubt on actual intent. Possible accused could
have capacity to form intent, yet did not actually form intent

Strict application of the Leary rule that the MR of a general intent

Accused got drunk to
offence cannot be negated by intoxication violates 7 and 11(d). In a GI Extreme
level that would have
R. v. Daviault, [1994] 3 offence the mental element may be minimal but the substituted intoxication,
y 72 killed most and sexually
S.C.R. 63 intention to become drunk cannot establish the MR to commit overruling of rule in
assaulted victim. Claimed
assault. Presumption of innocence requires Crown to bear the burden Leary
to have no recollection
of establishing the mental element of voluntarines

R. v. Bouchard-Lebrun, 2011
y 74 people while in psychotic question is was there a mental disorder? No - reaction of normal
SCC 58
CC s. 33.1
R. v. Lavallee, [1990] 1
S.C.R. 852
R. v. Cormier, 2017 NBCA 10
Two stage test for insanity defence. 1. Was accused suffering mental
disorder in legal sense at time of alleged events. 2. Was accused
Accused assaulted 2 incapable of knowing act or omission was wrong. 2 made out, Extreme intoxication
raising insanity
condition caused by drugs person to drugs would be toxic psychosis. Symptoms coincided with defence
drugs - external cause, not internal. No continuing danger if accused
abstains. No mental disorder
Extreme intoxication
Expert testimony on battered women goes to issue of whether she Defence of person,
Battered woman shot 'reasonably apprehended' death or GBH. Explains why accused did battered women -
partner in back of head not flee when perceiving danger to life - reasonableness of belief that reasonable
killing was only way to save her own life. apprehension
Accused killed victim after
Opening the door and going outside not a barrier to defence. Accused
exiting apartment to
was legally entitled to try to prevent intrusion. No obligation to
encounter him and others Defence of property
who were attempting to retreat and allowed to use necessary force to remove intruder (actual
unlawfully enter stabbing was not done in defence)

R. v. Latimer, [2001] 1 S.C.R.
3 'mutilation' of operation
R. v. Ryan, 2013 SCC 3
R. v. Aravena, 2015 ONCA
250
R. v. Willis, 2016 MBCA 113 y
Defence of necessity is narrow and limited. Must be imminent peril or
Accused killed 12 y/o danger, no reasonable legal alternative and proportionality between
daughter to prevent harm inflicted and avoided. Here T was not in danger, there were Necessity,
y 75
reasonable alternative's although they may have been sad, requirements
and continued pain demeaning etc and killing a person could probably never be
proportional to avoiding harm
Defence of duress only available when a person commits an offence
while under compulsion of threat made for purposes of compelling
Accused hired undercover
that person to commit the offence. Duress, like necessity, is an excuse Duress, availability
y 77 RCMP to kill her abusive
- the act remains wrong but the law excuses those acting in morally of defence
husband
involuntary manner. SD is a justification on principle it is lawful in
some circumstances to resist force/threat of force with force
The statutory duress defence in s. 17 applies to those who have
8 members of motorcycle
y- "actually committed" an offence. The CL defence preserved by s. 8(3) Duress, availability
gang killed on a farm -
extra 78 applies to those who aid or abett. Elements are essentially the same. to parties to murder
two were charged as
ct CL defence is available to those charged with aiding or abetting a under CL
parties murder. S. 17 may be contrary to Charter
Accused faced death Purpose of s. 17 to prevent anyone deciding who should live or die.
threats over drug debt. Removal of defence in case of murder does not deprive anyone of a
Duress - s. 17
90 Knew dealers wanted realistic choice whether to break the law. Certain death not a availability for
another person dead, so proportionate response to uncertain threat, and act of murdering an murder - read case?
accused killed him to try innocent could never satisfy the proportionality requirement of moral
to avoid threat involuntariness.
 Accused knew estranged Accused must have a justifiable sense of being wronged according to
wife was seeing another the 'ordinary person' standard. Some, but not all of the individual Defences -
R. v. Tran, [2010] 3 S.C.R. man, went to apartment characteristics of the accused can be considered - contextualized, not Provocation,
y 91
350 uninvited, found them in individualized. The subjective element looks at what accused requirements and no
bed and stabbed and believed, intended or knew. Accused must be provoked, not merely air of reality
killed boyfriend provocation existing. In this case no air of reality to defence.

Accused refused Police were not interrupting an ongoing enterprise - they brought
advances of police about the conduct. Went further than providing an opportunity. Most Defences
R. v. Mack, [1988] 2 S.C.R.
y 92 informer to sell drugs importantly the accused was threatened and told to 'get his act -Entrapment,
903
over 6 months. Informer together' when he did not provide the drugs - the average person in requirements
threatened him accused's position might also have committed the offence

Undercover PO targeted An exception to the rule that police can only present an opportunity
Defences
accused on basis of hunch to commit crime to someone who arouses suspicion they are already
R. v. Barnes, [1991] 1 S.C.R. y -Entrapment, bona
95 and appearance and engaged in the criminal activity is when they are conducting a bona
449 fide investigation in
persisted until accused fide investigation in an area where it is reasonably suspected criminal
area
sold drugs activity is occurring - at this point random targeting is ok

CC s 19
Lilly v. The Queen, [1983] 1 Defences - Error of
SCR 794 law

R. v. Jones, [1991] 3 SCR 110
Appellants charged with appellants' mistake was one of law, rather than of fact. They
mistakingly believed that the law did not apply because it was Defences - Error of
unlawfully conducting a
bingo inoperative [page112] on Indian reserves. A mistake about the law is law
no defence to a charge of breaching it.

Levis (City) v. Tetrault, Defences - Error of

[2006] 1 SCR 420 law

Man believed he was

R. v. MacDonald, 2014 SCC licensed to possess M's subjective belief that he could possess the firearm in his Halifax Defences - Error of
3 handgun in NS, but was home is a mistake of law and that mistake is no defence law
not

R. v. Lifchus, [1997] 3 S.C.R.
y 97
320
R. v. Starr, [2000] 2 S.C.R.
144
R. v. J.H.S., 2008 SCC 30
R. v. Oakes, [1986] 1 S.C.R. y
103
R. v. Cinous, [2002] 2 S.C.R 3 y
R. v. Fontaine, [2004] 1
y 102 Garage mechanic murder See other summary above. Judge decides if evidential burden is met. Other burdens
S.C.R. 702
R. v. Gunning, [2005] 1 S.C.R
627
Proof beyond RD is inextricably intertwined with presumption of
Accused charged with Presumption of
innocence. A RD is a "doubt based on reason and commons sense
fraud. Trial judge erred on innocence, proof
which must logically be derived from the evidence or absence of
meaning of 'proof beyond beyond reasonable
evidence." It does not involve proof to absolute certainty, but more is
a reasonable doubt' doubt
required than proof that the accused is 'probably guilty'
jury was not told how a reasonable doubt is to be defined. a jury must
be instructed that the standard of proof in a criminal trial is higher
Accused convicted of Presumption of
than the probability standard used in making everyday decisions and
murder innocence
in civil trials. In this case the jury was not told that something more
than probability was required in order to convict
Presumption of
innocence
Accused charged with A provision which requires an accused to disprove on a balance of
98 unlawful possession of
probabilites, the existence of a presumed fact, which is an important Other burdens,
drugs for purpose of element of the offence, violates the presumption of innocence in reverse onus
trafficking 11(d)
if the accused wants to have a defence considered, he must show that
Accused shot accomplice
in back of head. Thought the defence has an “air of reality” to it. The burden is evidential, not Other burdens, air of
100 persuasive. Is there (1) evidence (2) upon which a properly instructed reality - burden on
they were going to kill
jury acting reasonable could acquit if it believed the evidence to be accused
him.
true
Trial judge wrongly instructed jury that offence of careless use of a
Accused shot and killed firearm had been made out. Judge is entitled to give an opinion on a
Neutral and
trespasser who refused to Q of fact but not a direction. Judge has no duty or right to direct a
impartial trier
leave his home verdict of guilty and the duty to keep from the jury defences lacking
an 'air of reality' does not detract from this principle

R. v. Hamilton, [2004] O.J.
No. 3252 (Ont. C.A.)
Krieger v. Law Society of
y 103 until preliminary hearing.
Alberta, [2002] 3 S.C.R. 372
R. v. Nixon, 2011 SCC 34
R. v. Babos, 2014 SCC 16
The trial judge made use of voluminous raw statistical information
Two poor black women
with young children without the assistance of a properly qualified witness. From this he
drew the conclusion that sentencing practices, as applied to those Neutral and
received conditional
who imported cocaine, reflected systemic, social, racial, and gender impartial trier
sentences for importing
bias against poor black women. His holding that such bias justified the
cocaine imposition of conditional sentences was a reversible error.
The rule requiring timely disclosure is directed at governing the
Prosecutor withheld
ethical conduct of lawyers and is valid provincial law as applies to
exculpatory evidence
professional discipline and does not intrude into area of criminal law
Role of prosecutor
and procedure. Decisions as to tactics and conduct before the court
Accused complained to
do not fall within the scope of prosecutorial discretion but go to
law society
inherent jurisdiction of the court to control its own processes
Crown counsel was Following Krieger, subject to the abuse of process doctrine,
supervising a litigant's decision-making process (rather than
instructed to withdraw
tactics/conduct before the court) is beyond the reach of the court.
y 104 from a plea agreement The decision to resile from the plea agreement was an act of Role of prosecutor
with accused who drove
prosecutorial discretion only reviewable for abuse of process. In this
through an intersection case the crown's conduct was not so unfair, or so tainted by bad faith
and killed 2 people
or improper motive to constitute abuse of process
The test for determining whether a stay of proceedings is warranted...
consists of three requirements: (1) there must be prejudice to the
accused's right to a fair trial or to the integrity of the justice system
Accused brought that will be manifested, perpetuated or aggravated through the
Role of prosecutor,
application to stay conduct of the trial, or by its outcome, (2) there must be no
y 106 application to stay
proceedings for abuse of alternative remedy capable of redressing the prejudice, and (3) where for abuse of process
process there is still uncertainty over whether a stay is warranted after steps 1
and 2, the court must balance the interests in favour of granting a
stay against the interest that society has in having a final decision on
the merits.

R. v. Anderson, 2014 SCC 41
R. v. Grant, 2009 SCC 32
R. v. Suberu, 2009 SCC 33
R. v. Aucoin, 2012 SCC 66
"Prosecutorial discretion" is an expansive term. It covers all decisions
regarding the nature and extent of the prosecution and the Attorney
Crown served notice of General's participation in it. Prosecutorial discretion is entitled to
intent to seek greater considerable deference. It must not be subjected to routine second-
punishment on basis of guessing by the courts. Judicial non-interference is a matter of
accused previous principle based on the doctrine of separation of powers. In contrast, Role of prosecutor
convictions. Tendering tactics and conduct before the court are governed by the inherent
notice a matter of jurisdiction of the court to control its own processes. Deference is not
prosecutorial discretion owed to counsel who behave inappropriately in the courtroom, but a
high degree of deference is accorded to the tactical decisions of
counsel.
Grant questioned after
Meaning of detention in Charter 9/10. Told to keep hands in front of Police powers,
y 107 fidgeting with clothes. him and plainclothes officers took up 'tactical' positions. Intimidating meaning of
Behaved nervously during encounter, power imbalance, RP would conclude detained
detained, Charter
Q's and adjusted jacket
Not every interaction with police amounts to a detention for Charter
PO said told S to 'wait a
purposes, even when a person is asked questions or is physically
minute' and spoke to him
y 110 from outside of minivan delayed by contact with police. Not every encounter will trigger right Police powers, not
while investigating use of to counsel. S was 'delayed' but was not subject to physical or being detained
psychological restraint so as to ground a detention within the
stole credit card
meaning of the Charter
A was stopped by a PO
The detention would have been unlawful as the officer's actions were
and secured in back of
not reasonably necessary, considering other means might have been Police powers,
cruiser on basis officer
y 112 was worried he would used and infractions he was initially detained for were minor. search and seizure,
However the search was conducted in good faith for safety reasons, lawful search
disappear into a crowd of
attenuating the seriousness of the breach, so the evidence of
people. Consensual
posession was admissable under 24(2) Charter
search revealed drugs

Accused (a teacher)
charged with possession
of child porn and
unauthorized use of
R. v. Cole, 2012 SCC 53 y 113 computer. Principal
seized computer and
handed over to police,
who reviewed contents
without a warrant
the lawful authority of the accused's employer to seize and search the
laptop did not furnish the police with the same power. Furthermore, a
third party cannot validly consent to a search or otherwise waive a
constitutional protection on behalf of another. The school board was
legally entitled to inform the police of its discovery of contraband on
Police powers,
the laptop. This would doubtless have permitted the police to obtain a
warrant to search the computer for the contraband. But receipt of the search of computer
computer from the school board did not afford the police warrantless
access to the personal information contained within it. This
information remained subject, at all relevant times, to the accused's
reasonable and subsisting expectation of privacy.

The identity of a person linked to their use of the internet gives rise to
Accused used P2P file a privacy interest beyond inherent in the person's name and address
sharing to acquire child found in the subscriber information. The request to link an IP to Police powers,
R. v. Spencer, 2014 SCC 43 y 114 porn. Police obtained subscriber info was in effect a request to link a specific person to connecting IP to
address details connect to specific online activites. There was a reasonable expectation of person, not wilfully
IP address through privacy in the subscriber info. However police conduct in this case was infringing Charter
warrantless request to ISP not a wilful or flagrant disregard of Charter, and society had an
interest in seeing a full and fair trial based on the evidence.

Man answered door to
police and had a hidden
R. v. MacDonald, 2014 SCC y 115 object in his hand, officer
3 pushed door open further
to see, turned out to be
handgun
Act of pushing the door open further constituted a 'search' for
purposes of Charter s. 8. Constituted an invasion of reasonable
expectation of privacy in the home, however the search was Police powers, safety
reasonable as it was a justifiable exercise of powers associated with search
the CL duty to protect life and safety. Accused Charter rights not
violated

R. v. St-Cloud, 2015 SCC 27 y
R. v. Antic, 2017 SCC 27 y 120
R. v. Stinchcombe, [1991] 3
y 121 other offences. Crown
S.C.R. 326
To determine if the detention of an accused is necessary to maintain
Justice of the peace found
detention of person confidence in the administration of justice, the justice must consider
the apparent strength of the prosecution's case, the objective gravity Interim release, bail
117 charged with aggravated
of the offence, the circumstances surrounding the commission of the review process
assault was necessary on
offence and the fact the accused is liable for a potentially lengthy
basis of 515(10)(b) and (c) imprisonment
A was charged with drug The right not to be denied reasonable bail without just cause is an
and firearms offences and essential element of an enlightened criminal justice system. Two
denied release at bail aspects (1) a person charged with an offence has the right not to be
hearing at 515(2)(e) denied bail without just cause and (2) the right to reasonable bail. Interim release, bail
prohibited the bail review Under (1) a denial must be necessary to promote the functioning of hearings
judge from demanding a the bail system and is not undertaken for a purpose outside of that
cash deposit and surety and (2) the right protects persons from unreasonable conditions and
as he wanted to forms of release
Accused, a lawyer,
The Crown has a legal duty to disclose all relevant information to the
charged w/ fraud and
defence. The fruits of the investigation are not the property of the Disclosure, Crown's
refused to hand over Crown to use to secure a conviction but the property of the public to duty to disclose
witness statements be used to ensure justice is done.

R. v. O’Connor, [1995] 4
S.C.R. 411
CC sections. 278.1 – 278.91
R. v. McNeil, 2009 SCC 3
R. v. Arcuri, [2001] 2 S.C.R
y 122 circumstantial and two
828
To establish a violation of s. 7 due to non-disclosure, prejudice or
adverse effect on the ability to make full answer and defence must be
proven on balance of probabilities. Test is the effect of the non-
Accused, Catholic bishop, disclosure. Here conduct was inappropriate but did not violate
charged with sexual accused's right to full answer and defence. Accused must bring a
Disclosure, lack of
offences. Crown failed to written application for production of docs, notice must be given to disclosure justifying
make adequate disclosrue those with a privacy interest, there must be a reasonable possibility
a stay
of medical, counselling that the info is logically probative. The just views and determined
and school records extent of production by considering the accused's right to full A&D,
probative value, expectation of privacy, whether production based on
discrimination or bias and potential prejudice to complainant's
dignity, privacy or SOP
Disclosure
Accused convicted of
The police have a duty to participate in the disclosure process. A
drug offences, arresting necessary corollary to the Crown's disclosure duty under Stinchombe
officer was Crown main is the police obligation to disclose to the Crown all material pertaining Disclosure
witness. Accused learned
to its investigation of the accused. Records of serious misconduct fall
office was engaged in
drug-related misconduct within the scope of the disclosure due from police to Crown
Accused charged with Prelimary inquiry judge must decide if there is evidence upon which a
murder, evidence was reasonable jury could return a verdict of guilty. Where Crown
evidence consists in part or totally of circumstantial evidence the Preliminary inquiries
witnesses gave judge must engage in a limited weighing but does not draw inferences
exculpatory evidence or assess credibility

R. v. Williams, [1998] 1
y 123
S.C.R. 1128
R. v. Find, 2001 SCC 32 y 125 challenge potential jurors
R. v. Yumnu, 2012 SCC 73
Did the evidence of widespread bias against aboriginal people in the
Accused, an aboriginal, community raise a realistic potential of partiality? Candidates for jury
pleaded not guilty to
are presumed impartial and this presumption must be displaced
robbery. Judge did not
before they can be challenged and questioned. If there is a realistic The jury Trial - bias
warn jury to be aware of
possibility the jury pool may contain people whose racial prejudice
or disregard any bias or
may incline them to favour the Crown, the judge should permit
prejudice they might feel
challenges.
Accused charged with
Nature of the charges did not give rise to the right to challenge
sexual offences against
prospective jurors for cause on the ground of partiality. Establishing a
children. Applied to
realistic poential for juror partiality requires showing (1) that a
widespread bias exists in community and (2) that some jurors may not The jury Trial -
for cause arguing some challenges for cause
be able to set aside this bias, despite trial safeguards, to render an
might not be able to try
impartial decision. The overarching consideration is whether there is a
case impartially, trial
judge rejected app realistic potential for partial behaviour.
Accused learnt of 'jury
vetting' practice in Barrie Jury vetting by Crown and police gives rise to concerns - that they may
join forces to get a favourable jury, juror privacy etc. However some
area, where police would
limited checking and minimal intrusions into private lives of potential The jury Trial -
check if potential jurors
jurors is ok. A potential juror's criminal record, and pending harges, vetting of jury by
were 'disreputable'
may render that person ineligible or result in removal. Self-reporting Crown
and/or had criminal
is 'less than satisfactory'. Limited background checks are permissible
records and would be and any imbalance to defence is overcome by Crown duty to disclose.
undesirable

y 127 representativeness of the
R. v. Kokopenace, 2015 SCC
28
CC sections 606.1, 718,
718.01, 718.1, 718.2, 718.3,
719
y 131 didn't seek medical
R. v. Nasogaluak, [2010] 1
S.C.R. 206. No. 6 (paras 39-
49; 63-64)
y 132
R. v. M. (C.A.), [1996] 1
S.C.R. 500
Possible problems with
the jury roll raised
questions about the
jury in the accused's case
- CA held 11(d) and 11(f)
Charter rights violated. S.
15 claim rejected
RCMP punched accused
many times in course of
arrest, breaking ribs,
attention. Trial judge
reduced sentence as a
remedy under s 24(1) of
the Charter
Father consistently
physically, sexually and
emotionally abused his
children for years
SCC reinstated conviction. The jury requires a representative cross-
section of society, honestly and fairly chosen however with respect to
the jury roll, representitativeness focuses on the process used to
compile it, not its ultimate composition. The question is did the state
provide a fair opportunity for a broad cross-section to participate in
the process. the state must (1) compile the roll using random The jury Trial,
representativeness
selection drawn from a broad cross-section and (2) notify those
randomly selected. If this is followed the jury roll will be
representative and the Charter right to a representative jury will have
been respected. A jury roll containing few individuals of the accused's
race or religion is not in itself indicative of bias.
Sentencing
Where the police or state misconduct relates to the circumstances of
the offence or the offender, the sentencing judge may take the Sentencing,
relevant facts into account in sentencing, without resorting to s. 24(1) consideration of
… as a general rule it is not necessary or useful to invoke s. 24(1) to
police conduct
effect a reduction of sentence to account for harm flowing from
unconstitutional acts of state agents consequent to the offence.
Original 25 year sentence restored. The code is silent as to any upper
limit on fixed-term/numerical terms of imprisonment. The quantum
of sentence should be commensurate with the gravity of the offence
Sentencing
and moral blameworthiness of the offender - consecutive sentences
should not exceed the overall culpabililty. 25 years was a just
sentence on the facts.
 Aboriginal woman The SCC set out a 'methodology' for sentencing aboriginal offenders,
considering the purpose of 718.2(e). Parliament's purpose in
stabbed and killed
instructing sentencing courts to pay 'particular attention to aboriginal
boyfriend, trial judge
circumstances' was threefold: 1) Aboriginal offenders are Sentencing of
y 134 decided no special
overrepresented in crim justice system (2) there is widespread bias Aboriginal offenders
circumstances arose from
against them in Canada and (2) conventional concepts of sentencing
aboriginal status of
are mostly inappropriate as have not responded to needs, experience
accused and victim
and perspectives of aboriginal people or communities
R. v. Gladue, [1999] 1 S.C.R.
688

Accused, an RCMP officer, The law on availability of constitutional exemptions for mandatory
shot and killed a detainee minimum sentences is not conclusively decided however the weight
during an altercation in a of authority is against them. Parliament's intention in passing
cell. The trial judge mandatory minimum's is to remove judicial discretion to impose a
Sentencing,
imposed a sentence lower lower sentence. To allow courts to grant constitutional exemptions
constitutionality of
y 136 than the mandatory would directly contradict parliament's intent and represent an
mandatory
minimum on the basis inappropriate intrusion into the legislative sphere. A constitutional
minimums
that the minimum exemption is in any event an inappropriate remedy for a s. 12
constituted cruel and violation. If a law imposing a mandatory minimum is found
unusal punishment unconstitutional it should be declared inconsistent with Charter and
contrary to s. 12 Charter of no force or effect. This aids certainty whereas exemptions do not.

R. v. Ferguson, 2008 SCC 6

The mandatory minimum sentences imposed by s. 95(2)(a)(i) and (ii)

Two people sentenced for of the Code violate s. 12 Charter and are null & void under s. 52 of the
1982 Act. However the accuseds' sentences were appropriate and
possession loaded
upheld. Two questions arise where a mandatory minimum is
y 137 firearms contrary to 95(1) challenged under s. 12. (1) does the provision impose cruel and unusal Sentencing
appealed their mandatory
punishment (a grossly disproportionate sentence) on the particular
minimum terms set under offender? (2) if no, would the provision's reasonable foreseeable
95(2)(a)(i) and (ii)
applications impose cruel and unusual punishment on other
offenders.

R. v. Nur, 2015 SCC 15


Accused accidentally shot
friend. Spent 5 months in
pre-trial custody. Judge
y 142
found 4 yr minimum
sentence violated s. 12 of
the Charter
R. v. Morrisey, 2000 SCC 39
Accused, non-citizen,
convicted of drug-related
offences. 2 year sentence
meant he would lose the
right to appeal a removal
order against him by one
day
R. v. Pham, 2013 SCC 15
Accused punched a
volunteer at the drop-in
center they both used.
Victim died. Crown and
y 143
defence made joint
submission on custody
which trial judge rejected.
Overturned
R. v. Anthony-Cook, 2016
SCC 43
Under s. 220 a wanton or reckless disregard for lives or safety of other
people has resulted in death. To receive a 4 year minimum,
parliament has specified a firearm must be used. Parliament has set a
very high threshold to meet in order to attract liability under s. 220.
Sentencing
To violate s. 12 a punishment must be grossly disproportionate, which
is assessed considering the gravity of the offence, personal
characteristics of the offender and partiuclar cicumstances of the
case...
Appeal allowed and sentence reduced to two years less a day. A
sentencing judge can use discretion to take immigration
consequences into account, provided the ultimate sentence is
Sentencing,
proportionate to the gravity of the offence and degree of immigration
responsibility of the offender. It remains open to the judge to
consequences
conclude that even a minimal reduction of a sentence would render it
inappropriate in light of gravity of offence and degree of
responsibility.
Joint submissions on sentence -- that is, when Crown and defence
counsel agree to recommend a particular sentence to the trial judge,
in exchange for a plea of guilty -- are vitally important to the well-
Sentencing, joint
being of the criminal justice system, as well as the justice system at
submissions on
large. A trial judge should not depart from a joint submission on
sentence
sentence unless the proposed sentence would bring the
administration of justice into disrepute or would otherwise be
contrary to the public interest.