Criminal Law Course Summary

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Criminal law course summary
Canadian Criminal Law (York University)
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Lecture -2(Kent-87-128)
1. Interpreting Criminal Provisions
Assault
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person,
directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or
causes that other person to believe on reasonable grounds that he has, present ability to effect his
purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes
another person or begs.
(a) Definitions
 Def’ns are found in CC s2 (which apply throughout) and there is a def’n s at the
beginning of each Part of the CC
Example: “firearm”
« arme à feu »
“firearm” means a barrelled weapon from which any shot, bullet or other projectile can be
discharged and that is capable of causing serious bodily injury or death to a person, and includes
any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a
firearm;
Primary rule of statutory interpretation is to consider the provision as a whole and

determine what Parliament’s reasonable intention was.
b) French/English(Roach pp 92-93 discussing R. v. Mac)
Federal laws like the CC are passed in both English and French; each is equally official, original
and authoritative .Ambiguities in one language can be clarified by the other:
R. v. Daoust, [2004] 1 SCR 217, 2004 SCC 6 (CanLII)
Held- Under the rules of contextual interpretation, moreover, words that could effectively
broaden the scope of a penal statute cannot be read in. Finally, under the rules of bilingual
statutory interpretation, where, as here, the meanings of the two versions of a provision are clear,

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yet irreconcilable, the common meaning of the two versions of the enactment should be
favoured. Here, the common meaning is the narrower version, which is the French version.
It is therefore the French version that must first be examined to determine whether it accords
with Parliament’s intent. The two versions are divergent because of an error or an omission on
the part of Parliament, but that does not give this Court the authority to amend a clearly drafted
enactment.
c) Strict Construction – (Roach pp 90-95) R. v. Pare, [1987] 2 S.C.R (see Aram note)
Strict construction in favor of the liberty of the accused suggests that offences, but not
defenses, should be given a restrictive meaning.
 Historically, statutes were interpreted strictly in favour of the accused insofar as any
doubts or ambiguity in the matter of interpretation; this is a means of ensuring that the
criminal law is fixed and predetermined. If someone is to be punished, they should know
that some act of parliament requires it in express terms, and not by implications – which
is why any ambiguity in interpreting the statues is given to benefit the accused
 the seriousness of imposing criminal penalties demands that reasonable doubts be
resolved in favour of the accused
 Offences be given a restrictive reading
A truly ambiguous provision should be given the reading most favourable to the accused.
This may include reading defences more broadly as well as offences more narrowly: see R.
v. McIntosh [1995] 1 S.C.R. 686 interpreting:( JR)
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified
in repelling force by force if the force he uses is not intended to cause death or grievous bodily
harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in
repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the
violence with which the assault was originally made or with which the assailant pursues his
purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or
grievous bodily harm.
Held- it is a principle of statutory interpretation that where two interpretations of a

provision which affects the liberty of a subject are available, one of which is more
favourable to an accused, then the court should adopt this favourable interpretation. Section
34(2) , on its face, is available to the accused. It was an error for the trial judge to narrow
the provision in order to preclude the accused from relying on it.

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the strict construction principle still applies but has been modified by the purposive
interpretation
McIntosh-The court invoked a strict construction of an offence as a rationale for giving self-
defense a reading that favored the liberty of the accused ( as opposed to one that expanded
the scope of liability)
(c) Purposive Interpretation ( from note)
 the language that is used in the act in question is interpreted in harmony with the statute as a
whole so as to best accomplish the purpose thereof
 purposive approach to interpretation acknowledges the limitations of grammatical/dictionary-

based interpretation and seeks to look at the broader purpose of the statute in question
 Criminal Law should first be given a purposive reading and the doctrine of strict
interpretation only applies if there are still reasonable ambiguities after such a broad
interpretation. Ask, what is the purpose of the statute.?
the strict construction is applied if there are reasonable ambiguities in the law after it has
been interpreted in a purposive manner. (Pare 1987)(aram-2)
Ignorance of the law is not an excuse

• S. 19 of the Criminal Code says-“ Ignorance of the law by a person who commits an
offence is not an excuse is not an excuse”( for case see Aram-2)
“prohibited weapon”
« arme prohibée »
“prohibited weapon” means
(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand
pressure applied to a button, spring or other device in or attached to the handle of the knife, or
(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon;
R. v. Smith 2008 ONCA 101( Mistake of fact is a defense in case where the accused cannot
establish ignorance of law)
Facts: S.5 of the Narcotic Control Act – (1) no person shall import into Canada or export from
Canada any narcotic. – any person who violates it is indictable of an offence to imprisonment of
no less then 7 yrs. S retuned to Canada with cocaine hidden on his person/sentenced to 8 yrs
in prison

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Defence- Mistake of fact is a defence in this case.
Elements of criminal offences
Every criminal offence has elements that must be proven beyond reasonable doubt in order for
conviction
• Actus reus – physical element, act that must be performed, or omission that is proscribed,
consequences caused by act
• Mens rea – mental element, fault requirement, state of mind
• Crime is where mens rea and actus reus meet
• Crown must prove both the mens rea and actus reus of the offence (See R. v. Cooper
[1993] 1 S.C.R. 146) “Actus rea and Mens rea doesn’t necessarily occur at the same
time, if coincided that should be sufficient”
Facts:
Accused charged with murdering female acquaintance. The two were drinking and got in a fight.
Acquaintance hit Cooper and Cooper remembers strangling the victim, but no recollection of
what happened after that. He had no recollection of causing her death.
Trial:
Trial judge instructed jury that “once the accused had formed the intent to cause the victim
bodily harm, which he knew would likely cause her death, he need not be aware of what he
was doing at the moment she actually died.” The jury convicted the accused of second degree
murder pursuant to s.212(a)(ii) of the Criminal Code.
Court of Appeal:
The conviction was set aside and said a new trial should be held. The Court of Appeal said that
conviction required a persistent and continuing knowledge that the act was likely to cause
death.
SCC Ruling:
The trial judge was correct that viewing that intent to cause victim bodily harm along with
awareness of accused that wrongful act could result in death, regardless of accused’s intent at
exact time of death, warrants murder conviction. Thus, the appeal should be allowed.
Reasons:

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The importance of nature of intent required (subjective intent and subjective knowledge
requirements). The importance of concurrency/contemporaneity of mens rea and actus reus.
Thus, understanding that a series of wrongful acts in close temporal proximity cannot be
subdivided into separate episodes, but must be seen as a whole.
Intent need to convict under s 212(a)(ii) [culpable homicide is murder when…] has 2 aspects: 1)
There must be subjective intent to cause bodily harm; and 2) There must be subjective
knowledge that the bodily harm is of such a nature that it is likely to cause death.
There is an essential element of intending to cause bodily harm of such a serious nature
that the accused knew it was likely to cause the death of the victim.
For this provision, it is not sufficient that accused foresees danger of death. The accused must
perceive likelihood of death following bodily harm.
Concurrency: was it necessary to prove that accused was aware at time of death? No. Mens rea
was present at the beginning when he starts strangling her (which is opposite from R v Fagon).
The distinction is not material. At some point the actus reus and mens rea must coincide.
Thus, the jury could reasonably infer that the actus reus and mens rea coincided when the
accused grabbed the victim by the neck and shook her.
Court refers to the idea of conceptualizing what’s happening as a series of acts, which may form
the same transaction. If requisite intent coincides at some time as fault then that is sufficient.
Crown must demonstrate that accused intended to cause bodily harm that was likely to cause
death. But intend didn’t need to persist during entire event.
Should fault occur at the same time as the act? Fagan case (Aram-2)
The Actus Reus
(a) Acts and statutory conditions - act must be act of accused, and kind of act described in
relevant provision
(b) Act must be committed under circumstances or conditions specified in offence
(c) Act must be committed in Canada (s. 6.2) – see R. v. Greco (2001) 159 C.C.C. (3d) 146
(Ont. C.A.) and Libman v. The Queen [1985 2 S.C.R. 178
R. v. Greco (2001) 159 C.C.C. (3d) 146 (Ont. C.A.)
Facts-Greco was on probation in Ontario for a previous assault charge and was required to
be of good behaviour and keep the peace for the duration. While in Cuba, Greco assaulted his
companion in a jealous rage. He was convicted at trial of a breach of his probation order
which he appealed, stating the court did not have the jurisdiction to convict under s. 6(2).

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Issue-Was the appellant required to comply with the terms and conditions of his probation
order while outside of Canada?
If so, does the court have jurisdiction to try the offence under s. 6(2)?
Decision Appeal dismissed.
Reasons
Requirement to comply
The court held that limitations on the ability to enforce orders should not be confused with
the jurisdiction of the courts at first instance; subject to certain limitations, a state can
extend the application of its laws and the jurisdiction of its courts to persons, property
and acts outside of its territory without offending the principle of territoriality. Various
provisions of the Criminal Code assert jurisdiction over persons who commit certain offences
outside of Canada (see ss. 7, 46(3), 57, 74, 465(4)). These provisions are necessary as
without them, s. 6(2) would preclude convictions or findings of guilt for offences committed
outside of Canada.
He draws a fundamental distinction between a purported enforcement of domestic law in the

territory of a foreign state (jurisdiction to enforce) and an attempt to give effect in domestic
law to actions, people or things outside of the territory governed by domestic law
(jurisdiction to prescribe). Attempts to enforce domestic law directly in the territory of a
foreign state are prohibited in all but the most exceptional circumstances.
Jurisdiction
Moldaver held that all that is necessary to make an offence subject to the jurisdiction of our
courts is that a significant portion of the activities constituting that offence took place in
Canada. It is sufficient that there be a “real and substantial link” between an offence and
this country. If only a single country has an interest in compliance with orders made by its
courts then the real and substantial test is met. In the case at bar, Cuba did not exercise its
jurisdiction, thus Canada can exercise its jurisdiction over Greco.
Ratio
States have no right to enforce domestic law directly in another state (jurisdiction to enforce),
however this does not restrict the ability of a state to bind the conduct of persons both at
home and abroad (jurisdiction to prescribe).
Libman v. The Queen, [1985] 2 S.C.R. 178,
Fact- the accused was charged with seven counts of fraud and one count of conspiracy to
commit fraud arising from a telephone solicitation sales scheme operated from Canada, whereby

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residents in the United States were induced to purchase shares in Central American companies.
Purchasers sent money to the Central American countries and, eventually, some of the proceeds
returned to Canada.
Held: The appeal should be dismissed
La Forest J., on behalf of the court, began by noting that the presumption against
extraterritoriality in criminal law was codified in s. 5(2) (now s. 6(2)) of the Criminal Code,
R.S.C. 1970, c. C.34, which states that no person “shall be convicted in Canada for an offence
committed outside of Canada.” However, he concluded that the offences in question had taken
place in Canada. The commission of the offences had a real and substantial connection to
Canada, in that the scheme was devised in Canada, and the operation and directing minds
were situated in Canada. . . . 27 The reasoning La Forest J. followed is equally applicable to
this case and may be summarized along these lines: Canada has a legitimate interest in
prosecuting persons for unlawful activities that take place abroad when the activities have a “real
and substantial link” or connection to Canada. The fact that the only victims are outside of
Canada does not make the activity any the less unlawful or mean that no crime has been
committed in Canada when there exists “a real and substantial link” or connection to this
country.
1. The court must take into consideration all the facts that give Canada an interest in
prosecuting the offence and
2. then consider whether international comity would be offended in the circumstances. The
principle of extraterritoriality has not prevented courts from taking jurisdiction over
transnational offences whose impact is felt within the country. The purpose of criminal
law is to protect the public from harm. That purpose is not achieved only by direct means,
but also by underlining the fundamental values of our society and, in so doing,
reinforcing the law abiding sentiments of our society. La Forest J. reflected at p. 212 that
utilizing a “real and substantial link” approach is necessary in order to reinforce the
fundamental values of society.
 R v J.(D.). [2002] OJ No 4916 (Ont CA) Liran p-12( No intent)
 Held- an accused cannot be convicted of the offence of break and enter with intent to
commit a criminal offence pursuant to s348(1)(a) unless he “breaks” and “enters”
something that qualifies as a “place” according to the CC, with the relevant mens rea)
R v Gunning [2005] 1 SCR 627 Liran p -12 ( Jury Misdirected)
(b) Voluntary or Willed acts – act must be voluntary in sense that it is willed act of accused,
eg., person suffering seizure who strikes another with his arm not guilty of willed act
Unless physical motion is willful, not fair to say it is act of accused

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Exception- Reflex action.
an unwillful act is the foundation of the automatism defence – see automatism defences
below (pg 48 of Liran and Kent p-124)
R v. Theroux 1993 79 CCC- The act must be voluntary act of the accused for the actus reus
to exist. P 124
R v. King -where having been given drugs at the dentist office which then led to impaired
driving, the court refused to convict because the impairment was caused by involuntarily
consuming the drug and “there can be no actus reus unless it is the result of a willing mind
at liberty to make a definite choice or decision”
( c) Act of Possession – at times part of actus reus for offence has inherent mental element to it,
as it does with the important element, common to many offences of “possession” –This concepts
demonstrates that the divide between the actus reus and mens is not always a solid one.
knowledge and control key elements of possession offence
Constructive joint possession – knowledge and control required under Code, s.4(3)(b) of the
Criminal Code and s. 2 of Controlled Drugs and Substances Act
s. 4(3) For the purposes of this Act,
(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(constructive

possession)
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the
use or benefit of himself or of another person; and (Constructive possession)
(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.(joint possession)
This s creates 3 types of possession: personal possession; constructive possession and joint
possession
In order to be in possession there m/b:
1) Knowledge; (York)
2) Consent (per Marshall); and
3) Control (per Terrance)

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R v. York –( shows an example of manual possession) [2005] BCJ 250 – BC Court of Appeal
– driving away van with property stolen by partner…
“A brief handling of stolen goods with full knowledge of their character solely for the purpose of
getting rid of them does not constitute possession”-Liran..p 13.
Marshall v. The Queen – [1968] AJ 32 – Alberta Supreme Court, Appellate Division – road
trip possession. consent was to riding in the car, but not to the marijuana being present (L-
13)
R v. Pham – [2005] OJ 5127 – Ontario Court of Appeal – roommates with possession of

drugs
Facts: Pham’s neighbour had witnessed several occasions of suspicious behaviour involving
money and plastic bags with white stuff; Pham was heard and seen at some of these
occasions; during a raid when Pham wasn’t home, police found drugs in plain sight and in close
proximity to Pham’s possessions; Pham claimed they were the roommate’s drugs; Pham was
found guilty of possession
Issues: was Pham in possession of the drugs
Held: Pham’s appeal from conviction dismissed, the evidence gave the conviction ample
support
R v Terrence [1983] (States the law of joint possession re s4(3)(b) – there must be evidence of
knowledge, consent and control over the subject matter re: the person who does not manually possess
the stolen goods) (L-13)
Consent as element of actus reus – (Roach pp 107-112)( For section 273.1 CC seeAram-2)
there was consent, or that there was no consent
absence of consent by victim often important actus reus condition required for proof of offence,
eg., assault, s.265(1)(a) defined as non-consensual application of force
Consent is complex notion, animated by statute, eg. s.265(3) definition of consent, s.265(4)
accused’s belief as to consent, and common law
Parliament has defined what is meant by consent in other sections of the code – cannot
consent to own death, a child’s ‘consent’ is not valid in abduction cases (Kent-110)
fist fight death- R. v. Jobidon, S.C.C. [1991] 2 S.C.R. 714 – s.265 should be read in light of
common law limitations on consent, Code provisions have not ousted common law limitations –
victim’s consent to “fair fight” did not preclude commission of offence of assault

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Facts: victim and accused got into a fist fight, was broken up, accused waited outside to
continue the fight; accused hit victim in head with fist so hard that he was knocked backwards,
accused kept hitting him and victim went limp and died; at trial found not guilty of
manslaughter, and since victim has consented to ‘fair fight’ it negated assault (section 265);
Court of Appeal set aside appeal and substituted guilty verdict for charge of manslaughter
Issue: since section 265 sets out that one can’t commit assault if the other person consents
to the application of force; does victim’s consent negate accountability of the accused
Held: appeal to have appeal court’s conviction overturned should be dismissed
victim’s consent did not extend to a continuation of the fight once he had lost
consciousness
• by limiting consent to application of a certain type of force and not beyond that, court
was right
• a person cannot consent to an assault that intentionally causes serious hurt in the course
of a fist fight or brawl
R v. Welch, Ontario Court of Appeal (1995) 101 C.C.C. (3d) 216 – victim cannot consent to
bodily harm sexual assault
R. v. Ewanchuk, S.C.C. (1999) (Explains law on consent in relation to sexual assault, and
gives an overview of the elements of a sexual assault) – actus reus of sexual assault requires
proof of touching, sexual nature of contact, absence of consent; no defence of implied consent to
sexual assault exists in Canada – to be legally effective, consent must be freely given (L-14)
Note- Implied consent cannot be considered as defense in sexual assault. Subjective consent
of the victim is important.
 Consent may not be given in advance to sexual activity while unconscious:
Case- R. v. J.A. 2011 SCC 28 (L- 16)
 Consent may be vitiated if accused is in a position of trust, power, or authority over

the complainant:
Case-R v Budd 2007 ONCA 722
Fact- Mr Budd, 2007 ONCA 722 was a suave, debonair Bay Street Lawyer. He befriended a
woman and her three teenage daughters. He took the girls on trips to England and the USA. He
had consensual sex with them. The court found that he was in a "position of trust" with
respect to the girls, and therefore he was guilty of sexual exploitation.
 Consent may also be vitiated by fraud: s. 265(3)(C).

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Case- R. v. Cuerrier [1998] 2 S.C.R. 371 (HIV disclosure)
Facts: Cuerrier knew he had HIV and that he had to inform all prospective partners thereof and
use condoms every time; he had consensual unprotected sex – but without informing the women
of the same; women claimed they wouldn’t have consented had they known; trial and appeal
court acquitted
Issues: was there consent
Held: new trial should be ordered
• consent provisions in sexual assault cases are based in the protection of people’s personal
autonomy to decide under which conditions they will agree to be touched
• without disclosure, there can’t be true consent – the consent can’t simply be to have sex,
but rather to have sex with a partner who is HIV positive
• the actions of the accused must be assessed objectively to determine whether a reasonable
person would find them to be dishonest
• the consent was vitiated by fraud of such a nature that its nature is attached to a
risk of serious harm if consent is based on that fraud (i.e.; due to the accused failure to
disclose his HIV status; the dishonest behaviour was related to obtaining (consent for)
unprotected sex)
Case- R. v. Mabior 2012 SCC 47 (Rules relating to how fraud vitiates consent)( L-p16)
R. v. Hutchison 2014 SCC 19-(Kent-110)
Fact-The accused was charged with aggravated sexual assault after he intentionally
sabotaged condoms in order to get the complainant pregnant. The ensuing pregnancy
resulted in the complainant suffering medical consequences following an abortion. He
successfully sought a directed verdict, with the court finding that it could not be concluded that
the complainant's consent was vitiated by fraud as there was no evidence of a significant risk of
serious bodily harm. All of the risks presented as possible during pregnancy, childbirth and
abortion were described as 'rare' or 'very rare' and, when compared to exposure to HIV and
AIDS, a treatable infection that is cured within three weeks (as suffered by the complainant)
could not be considered as 'serious.'
Issue
Is there a difference between consenting to protected sex and consenting to unprotected sex?
If so, does the lack of consent to unprotected sex change the act to sexual assault?
Are the effects of the abortion to be included in the harm caused by the sexual assault?

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Held-The Crown appealed. Appeal allowed; new trial ordered.
Reason-The sabotaging of the condoms fundamentally altered the nature of the sexual activity in
question. The complainant's consent could therefore be found not to be reasonably informed and
freely exercised. Even if the trier of fact found that there was consent because the sexual activity
in question was sexual intercourse, and not specifically protected sexual intercourse, the
consequences of Hutchinson's deceit caused serious bodily harm to the complainant, thus
satisfying the test for fraud vitiating consent. There was some evidence that the complainant's
life was exposed to peril, danger, harm or risk as a result of the accused's sexual assault. The
medical evidence supported a finding that there were numerous serious risks to the health and
life of a pregnant woman. Since there was some evidence of endangerment or bodily harm, the
directed verdict of acquittal should not have been granted.
Ratio
Fraud vitiates consent in sexual assault.
Agreement to engage in sexual activity in s.273.1(1) is more than consent to the application of
force under s.265.
De Minimis Defense: The idea that the law should not punish a mere trifle( see Aram -2)–
Accused’s actions to trivial to warrant criminal liability. Discussed in R. v. Kubassek (2004) 188
C.C.C. (3d) 307 (Ont. C.A.)(kent-95 and 96)
Omissions – some offences do not require positive act by accused, but failure or omission to act,
eg., failure to stop at scene of accident, s.252, failure to provide necessaries of life, s.215, failure
to assist a police officer s.129(b) (Kent-121-123)
To be guilty by omission:
1) The offence must contemplate guilt for omissions;
2) The accused must be under a legal duty to do something; and
3) The accused failed to fulfill that duty by his or her omissions.
R. v. Browne (1997) 116 C.C.C. (3d) 183 L-22
R v. Moore – [1979] 1 SCR 195 – SCC – Curiam, Martland, Ritchie, Spence, Pigeon, Beetz
JJ. – L-22
Facts: went through an intersection against a red light; was stopped by a cop and asked for
identification; refused to give name and address; charged with obstructing a peace officer in
execution of his duty; trial judge said there was no evidence of obstruction and acquitted; appeal
court reversed verdict and ordered new trial

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Issues: in not identifying himself, did the accused omit to do what he was legally bound to do
Held: accused’s appeal of the reversal of the acquittal should be dismissed
• the officer in requesting the identification of the accused was carrying out his duty
of enforcing the law; and a failure to identify himself constituted an obstruction to the
officer being able to perform his duties
Causation( Liran -17) Roach pp 114-121

A determination of causation of death requires a finding that the accused caused the death of
another both in fact and in law.
If causation not proved, accused cannot be convicted of offence that requires act to produce
prohibited consequence – accused might be convicted of dangerous driving only, but not
dangerous driving causing death
Causation involves two-stage analysis: (1) factual causation; and (2) legal or imputable
causation.
Factual causation is concerned with an inquiry as to how the victim came to his or her death, in
a medical, mechanical, or physical sense, and with the contribution of the accused to that result.
Was the conduct of the accused a significant contributing cause of the prohibited consequence.
R. v. Smithers [1978 1 S.C.R. 506, L-18
R. v. Nette 2001 SCC 78 L-18 (Thin Skull Test) (Leading decision on the standard for
causation in criminal offences, homicide cases)
The legal causation inquiry concerns itself with the question of whether the accused should be
held criminally responsible in law for the death that occurred—a moral reaction, a value-
judgment as to moral responsibility—whether, in the circumstances, a “blameable” cause ought
to be identified.
R. v. Maybin 2012 SCC 24, R. v. J.S.R. 2012 ONCA 568 L-19
R v. J.S.R 2012
Facts: Charged w 2nd degree murder. Gun battle on street. C died. There was a northbound and
southbound shooter
Issue(s): Can we say “but for” the actions of J either shooting or preparing to shoot at the shooter
would have no shot and killed the girl? – factual causation
Is the causal chain linking J to the death of the girl broken bc the last voluntary cause was the
other shooter shooting girl? – legal causation

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Ratio:
Acts by a 3rd party who is not acting independently but is acting in a furtherance of a joint
activity undertaken by the accused and that 3rd party, will not sever the legal causal connection =
joint endeavour.An intervening, independent act by a 3rd party that is a more direct cause
of a victim’s death then the prior act of an accused may sever the legal causation
connection between the victim’s death and the prior act of the accused even though the
prior act remains a factual or ‘but for’ cause of the victims death.
Analysis:
Where there are multiple wrongful acts it isn’t necessary to know whose wrongful act was
more detrimental to the forbidden consequence.
→ Both were involved in a joint endeavor, a mutual shootout – thus both are responsible for
killing the girl, bc it is only be chance that A kill C and not B
If there is no reasonable basis upon which a jury could find that Js actions caused the girls
death, then J could not be committed of murder or manslaughter.
Legal causation issue satisfied by the finding that they were in engaged in a joint endeavor.
A reasonable jury could find that each shooter induced the other the engage in a gun fight on a
crowded street. “But for” the decision to engage in a gunfight on a crowded street and the
resulting exchange of bullets, girl would not have been killed.
Holding:
Judge did have a basis for concluding that there was reasonable evidence of causation to put to
jury. J is factually and legally linked to the forbidden consequence (girls death)
Comments:
Factual causation: But for test – factual chain of events culminating in the death of the victim.
Legal causation: Is about determining who among those who have factually contributed to an
event should be held legally responsible for that event.
Harbottle – very serious crimes and causation – LEGAL CAUSATION

→ H confined and raped a girl. Accomplice strangled her while he held legs
→ s.231(5) to establish 1st degree murder they have to prove that the accused’s conduct
was a substantial and integral cause of the victims death

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Fact Pattern#1
There is significant contribution to this crime. The accused contributed from the beginning. Here
the accused didn’t have the mens rea at the sametime the actus reas happened. Because of his
co-particiption in the dangerous driving he is criminally responsible. But he cannot be convicted
of causing officers death. It is likely he can be convicted of guilty of dangerous driving.
Reason-
1. Actus rea and Mens rea doesn’t necessarily occur at the same time, if coincided that should be
sufficient (R. v. Cooper [1993] 1 S.C.R. 146)
2. Section 222(1) provides that a person commits homicide when, directly or indirectly, by any
means, he or she causes the death of a human being
• if the accused set off a chain of events that ended in the person’s death, even though
the immediate cause of death was not at the accused’s hands, the courts have concluded
that the accused caused such a death
• the accused actions don't have to be the sole cause of death, but a significant
contributing cause thereof
• the actions of the accused have to be so connected to the death that they can be said to
have had a significant causal effect that continued up to the time of the accused’s death without
having been interrupted by an intervening effect
• but there may be times when intervening factors make it so that the accused’s
actions are no longer the significant cause of death
In the given case, the accused\s action was a significant contributing cause of the prohibited
consequences. Therefore, causation is not established. Accused can be held liable for factual
causation but not for legal causation
R v. Menezes – [2002] OJ 551 – Ontario Superior Court of Justice – car race death (L-17)
(Causation is a two stage analysis, requiring “factual causation” and “legal causation”)
FACTS: Two dudes racing, one dies. Defence says that the accused withdrew from the race at
a material time before the accident, and this created a break in the causal linkage to the victim’s
death. Dude pleads not guilty to criminal negligence causing death
ISSUE: Whether a person who survived a street race in which the second participating party lost
his life can be held criminally liable for that death solely based on his co-participating in the race
REASONING:

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Criminal negligence
 Criminal negligence amounts to a wanton and reckless disregard for the lives and safety of
others: Criminal Code, s.219(1).
 This is a marked and substantial departure in all of the circumstances from the standard of care
of a reasonable person
 In the context of a dangerously negligent act, the mens rea for the offence charged is objective
foreseeability of the risk of bodily harm which is neither trivial nor transitory
 As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking
harm is normally interred from the facts
Dangerous driving
 The crime of dangerous driving, on the other hand, is established where the prosecution proves a
marked departure from the standard of conduct of a reasonably prudent driver in all the
circumstances: Criminal Code, s.249(1)(a). The basis of liability for dangerous driving is
negligence. The question to be asked is not what the accused objectively intended but rather
whether, viewed objectively, the accused exercised the appropriate standard of care
Hazard of Racing
 A death caused as a result of a driver’s involvement in a race on a public street can amount to
criminal negligence causing death
 Racing on a public roadway resulting in the death of a passenger in one of the participating
motor vehicles can also reasonably be found to constitute dangerous driving
 Where the victim is the occupant of a third vehicle, dangerous driving may again be the
appropriate result
Causation
 A determination of causation requires a finding that the accused caused the death of another
both in fact and in law
 FACTUAL causation is concerned with an inquiry as to how the victim came to his or her
death, in a medical, mechanical or physical sense, and with the contribution of the accused to
that result. In other words, were the actions of the accused beyond negligible? Where there are
multiple operative, independent, and significant contributing causes, competing causes need not
be sorted out by the trier of fact in an effort to identify a predominant cause. Regardless of
whether the accused’s conduct is the sole cause, was it a material cause?

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TEST: Was the conduct of the accused a significant contributing cause of the
prohibited consequence? “If the act of the accused is too remote to have caused the result
alleged, causation is not established.” Look at facts of case
 LEGAL/IMPUTABLE causation inquiry concerns whether the accused should be held

criminally responsible in law for that death – a moral reaction, a value-judgment – whether, in
the circumstances, a “blamable” cause ought to be identified (R v Nette). Causation expresses an
element of fault. That, together with the requisite mental element, is in law sufficient to base
criminal responsibility.
 In examining the traceable origin of the chain of events causing death, may become an
issue. If the act of the accused is too remote to have caused the result alleged, causation is
not established. If the accused’s actions are fairly viewed as only part of the history of the
setting in which the prohibited result unfolded, without more, causation is not proven: R. v.
Cribbin
 If the triggering of a chain of events is interrupted by an intervening cause, it can serve to

distance and exonerate the accused (R v Nette). An intervening act terminating the causal
chain of events may be the withdrawal or abandonment by the accused of involvement in
the dangerous enterprise. The abandonment of conduct requires a positive communication
of notice. The sufficiency of the notice is determined by the nature of the offense and the
degree of the accused’s participation
Application
 X can be directly responsible for the death of Z, if X and Y were racing, and Y kills Z as a
natural result of the racing/criminal negligent driving. Each driver bears equal responsibility for
its continued lifespan subject to withdrawal or intervening event. As each driver in effect
induces the other to drive in an unlawfully unsafe manner, each is taken to assume any
consequential risk objectively within the ambit of the danger created. This surely includes a risk
of bodily harm or death to a co-principal arising out of miscalculation or other judgment error by
that individual in the course of, and related to, pursuing the jointly maintained, and unlawfully
conducted, dangerous activity.
 M was not criminally negligent, but was dangerous driving (judge cites the testimony to show
why), but his dangerous operation of the motor vehicle did NOT cause the death of the victim,
who chose to maintain excessive speed after the accused slowed down. In these circumstances,
if the accused slowed his speed to the range of 60% of that of the deceased nearly half a mile
from the point of control loss, there must be a reasonable doubt, although nothing more, that his
withdrawal from the race amounted to a sufficiently dramatic lack of commitment to keeping
pace for it to be known to Jacob Meuszynski
HELD: Guilty only of dangerous driving

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Fact Pattern #2
Section 222(1) A person commits homicide when, directly or indirectly, by any means, he
causes the death of a human being.
R. v. Smithers [1978 1 S.C.R. 506, L-18
R. v. Nette 2001 SCC 78 L-18 (Thin Skull Test)
R. v. Maybin 2012 SCC 24, R. L-19
Lecture-3
MENS REA & REGULATORY OFFENCES
Mens Rea ( Kent p169-218) (Aram -3)

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• Guilty Mind
Two broad categories:
Subjective mens rea, which requires that the Crown prove that the accused had a specific
mental state at the time of the actus reus
Objective mens rea
What a reasonable person in the place of the accused would have done or would have thought.
• Fault Element
Broad Levels of Mens Rea
Intention: Murder requires proof of intent

Knowledge
Wilful blindness-----Subjective as criminal deliberately avoid knowledge
Recklessness
Criminal negligence----------Objective Mens rea
Strict liability & due diligence-----Only applicable to real offence (easy to prove)
Absolute liability---------Real offence(Easy to prove) No mens rea required . crown has to
prove actus rea.
Homicide
Murder s.229(a)(VVI)
229. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or(wilful intent)
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless
where death ensues or not.( Knowledge + subjective mens rea) Punishment is life
imprisonment with chance of parole after 10 years of sentence.
Mens rea: The accused means to cause death to the victim; or means to cause the victim bodily harm
that the accused knows is likely to cause his or her death, and is reckless whether death ensues or not.
 (c) where a person, for an unlawful object, does anything that he knows (subjective) or ought to
know (Objective MR)is likely to cause death, and thereby causes death to a human being,
notwithstanding that he desires to effect his object without causing death or bodily harm to any
human being.
 Mens rea: The accused does anything that he knows or ought to know…

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Second Degree Murder: Criminal Code s 231: Crown must prove:
1. That the accused caused the victim’s death. ( causation issue)
2. That the accused caused the death unlawfully.
3. That the accused had the state of mind required for murder.
a. May have evidence of motive to help show intent
Ex- Homicide
First Degree Murder (Code, s. 231(2))
Crown must prove:
1) That the accused caused the victim’s death; (causation issue)
2) That the accused caused the death unlawfully;
3) That the accused had the state of mind required for murder; and
4) That the murder of the victim was both planned and deliberate.( this makes the difference
between 1st degree and 2nd degree murder)( detail about planned / deliberate at Aram-3)
S. 231. (2) Murder is first degree murder when it is planned and deliberate.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder when the victim is
(a) a police officer…acting in the course of his duties;
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder in respect of a person when the death is caused by that person while committing or
attempting to commit … the following offence:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
Manslaughter (Code, ss. 222(5)(a); 234)
Crown must prove:

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1) That the accused caused the victim’s death; (causation)
2) That the accused caused the death unlawfully; (Aram-3)
• Mens rea is the objective forseeability of non-trivial bodily harm
• Crown does NOT need to prove specific Intent to kill or Recklessness
Defense- Dures is defense if someone is forced to commit murder. \
R. v. Creighton, [1993] 3 SCR 3: (Defines unlawful act and criminal negligence manslaughter) drug
dealer injecting another user with cocaine, the dosage and injection caused her to have a heart attack and
choke on vomit (Test for unlawful act manslaughter Liran -31)
Illegal Act Trafficking in Cocaine
Chain of logic to manslaughter: Illegal act – trafficking cocaine + death caused (causation) +
reasonable person could foresee that bodily harm (non-trivial) might result from injecting someone
with a street drug of unknown quality and potency.
FACTS: Mr. Creighton was convicted of manslaughter, arising from the death of Kimberley
Ann Martin, who died as a result of an injection of cocaine given by Creighton. The TJ found
that the death constituted manslaughter either on grounds that it was caused by an unlawful act,
or on grounds that it was caused by criminal negligence
ISSUE: Is the common law definition of manslaughter offence unconstitutional b/c it req’s only
foreseeabiltiy of the risk of bodily harm, and not forseeability of death?
REASONING:
 Unanimous obiter, that the criminal negligence test was objective, is now the law.
 5-4 on factors to be taken into account. Marked departure is the standard.
 McLachlin P566: Agrees w. Hart on objective standard, regardless of background or

training. Assume no drug experience here. (Exception: Lack of capacity to understand
risk or avoid the situation.
Background
 Manslaughter is a crime of venerable lineage. It covers a wide variety of circumstances.

Two requirements are constant: (1) conduct causing the death of another person; and (2)
fault short of intention to kill
 That fault may consist either in committing another unlawful act which causes the death,
or in criminal negligence s222(5) CC. The structure of the offence of manslaughter

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depends on a predicate offence of an unlawful act or criminal negligence, coupled with a

homicide
 It is now settled that the fact that an offence depends upon a predicate offence does not
render it unconstitutional, provided that the predicate offence involves a dangerous act, is
not an offence of absolute liability, and is not unconstitutional (R v DeSousa)
Unlawful act manslaughter:
(1) Unlawful act : The unlawful act must be
i. objectively dangerous (i.e. one that is likely to subject another person to danger of harm
or injury and non-absolute liability offence) (R v DeSousa) (this is the actus reus)
ii. there must be intent to commit this underlying act (part of mens rea)
iii. as well as objective forseeability of the risk of bodily harm that is non-trivial (R v
DeSousa)
(2) Did the accused possess the requisite capacity to appreciate the risk flowing from his
conduct? If this further question is answered in the affirmative, the necessary moral fault is
established and the accused is properly convicted. If not, the accused must be acquitted.
[NOTE: Personal factors are not relevant in this assessment, except on the question of
whether the accused possessed the necessary capacity to appreciate the risk]
Criminal negligence manslaughter
(1) Criminal negligence manslaughter requires
i. an act that exhibits a marked departure from the standards of a reasonable person in all of
the circumstances (i.e. the definition of criminal negligence in s 219 must be satisfied)
(this is the actus reus)and
ii. objective forseeability of the risk of non-trivial bodily harm (forseeability of death is not
req’d) (this is the mens rea)
(2) Did the accused possess the requisite capacity to appreciate the risk flowing from his
conduct? If this further question is answered in the affirmative, the necessary moral fault
is established and the accused is properly convicted. If not, the accused must be acquitted.
 Personal factors are not relevant, except on the question of whether the accused
possessed the necessary capacity to appreciate the risk.
HELD: The offence is not unconstitutional.
(1) Subjective Mens Rea

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• Subjective mens rea focuses on actual state of mind of accused

• Unless communicated openly, subjective mens rea ordinarily gleaned circumstantially
• common sense inference: persons usually intend natural consequences of their actions
• Ignorance of law no excuse, Code, s.19 – assumed that accused knows elements of
offence unless “defence of mistake of fact” made out( But in drug case so long you
have knowledge that the substance is illegal, you are unable to argue mistake of
fact.)(see Aram-3)
• Exercise of statutory construction to see what mental states required by particular

offence
• Ex - if offence / criminal code provision specifies relevant state of mind, only

such state of mind will suffice.
• Assault - s.265(1)(a) requires intentional touching, not reckless, accidental,

non-intentional touching
S. 265. (1) A person commits an assault when, “(a) without the consent of another
person, he applies force intentionally to that other person, directly or indirectly”
 Bus Example / Sports Example
(a) Intention and ulterior mens rea – (Roach pp 186-193) intention is complex idea,
accused must have very intention required by relevant provision
R. v. Murrray, Ont. S.C.J. (2000) – lawyer intended to hold Bernardo tapes for use at
trial to challenge evidence of key crown witness, but not for purpose of obstructing
justice . The accused was found not guilty of code of offence s. 139 which requires proof
of act which tendency to prevent or obstruct course of justice. The accused had to
specifically have intended to hold the tapes to obstruct justice, but it was shown that the
accused was holding the apes to strategize trial, therefore, the mens rea of the offence
was not found ( Crown was unable to prove beyond a reasonable doubt that the
accused had the mental element of obstructing justice)
Accused not guilty of obstruct justice, s.139 because absence of specific intention:
“wilful attempts in any manner to obstruct, pervert or defeat the course of justice in
a judicial proceeding”
Issues: by withholding the videotapes, did Murray intend to obstruct justice, and thus was the
withholding (since he did finally hand them over) equal to attempt to obstruct justice
Held: found not guilty: Murray’s concealment had the tendency to obstruct justice; he knew
that permanently suppressing the tapes would, in fact, be an obstruction of justice; he may not

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have intended to permanently suppress the tapes; he may have believed he had no obligation to
disclose the tapes before trial; there are reasonable doubts raised as to Murray’s intention to
obstruct justice
• “attempt” has its own mental element; “wilful attempt” suggests a double mens
rea
• attempting to obstruct justice is construed as the doing of an act which has a

tendency to prefer or obstruct the course of justice
• wilfully, then, constitutes the mens rea – that is the act is done for the purpose of
obstructing the course of justice
• the actus reus issue is whether accused’s action in secreting the videotapes had a
tendency to obstruct the course of justice
• secreting the tapes had the tendency to obstruct the police in their duty to
investigate Bernardo’s crimes; it also influenced the way the new counsel for Bernardo
approached the defence; it also had the potential of depriving the jury of admissible
evidence; in short, the concealment of the tapes had the potential to infect all aspects of
the criminal justice system
• although there is no obligation to help the police in an investigation, but taking

positive steps to conceal evidence is unlawful – Murray’s discussions about the tapes
with Bernardo would be covered, but not the actual tapes themselves, under the attorney-
client privilege
• solicitor can retain evidence for examination and testing, but only for a reasonable
time
• Murray knew it was unlawful to suppress the tapes, so then it can be inferred that
by doing so, he intended to obstruct the course of justice
• any argument towards attorney-client privilege fails because it is communication

between the two, and not evidence, that is protected under this doctrine
• there is no duty to hand over all evidence to the crown; just that it cannot be
permanently suppressed
• Murray stated he had planned to use the tapes in his defence case for
Bernardo, and thus to introduce them into evidence at such a time
• accused intended to hold the Bernardo tapes, but not for the purposes of
obstructing justice

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R. v. Buzzanga Ont. C.A. (1979) – Wilful promotion of hatred (Kent-189)
Regina v. Buzzanga and Durocher – 25 OR (2d) 705 – Ontario Court of Appeal – promoting
hatred against francophones ( A requirement that the accused wilfully achieve a prohibited
result is also a high degree of subjective mens rea.) See A-3
Facts: charged with wilfully promoting hatred against an identifiable group by making
statement in handbills; francophones (which the accused identified with) were trying to get a
French language school built; the school board opposed the same; accused printed handbills but
said it was intended to be satire, in order to create a furor that would compel the government to
act, not with any intention to promote hatred; trial judge said ‘wilful’ meant intentional as oppose
to accidental and convicted; court of appeal ordered a new trial
Issues: although they did not intend to promote hatred, did the accused recklessly do so
Held: the trial judge erred in holding that wilfully means only intentional as opposed to
accidental
• wilfully may sometimes include recklessness as well as intention – the accused’s

foresight that a consequence is highly probably, as opposed to substantially certain, is not the
same as intention; but, generally, a person who foresees that a consequence is probable or
certain if an act carried out in order to achieve some other purpose, can be said to intend
that consequence (even if regretfully) in order to achieve his ultimate purpose
• what the accused intended or foresaw must be determined on a consideration of all

the circumstances, including their own evidence, as to what their state of mind or intention
was – as a general rule, a person who foresees that a consequence is certain from an act
which he does to achieve some other purpose, intends that result anyway
(b) Subjective mens rea with objective features –(Roach pp 442-445 discussing Chase and
objective features of sexual assault - Roach pp 460-463 discussing Theroux and objective
features of fraud )– some criminal offences have subjective mens rea – but ALSO
elements of the offence that are objective
• Careful not to confuse subjective mens rea with elements that define actus reus
objectively
• Ex. Fraud – subjective intent to commit transaction BUT nature of the

transaction as being “dishonest”, defined objectively
• If offence required subjective appreciation that actions were dishonest, then

offence would be committed based on individual accused sense of morality /
honesty
• Dishonest people would be held to lower standards than honest persons

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R. v. Theroux, S.C.C. (1993) – Fraud, Code s.380(1) (L-25) (The “dishonesty” in fraud is
determined objectively)(subjective mens rea with objective feature)
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or
not it is a false pretence within the meaning of this Act, defrauds the public or any person,
whether ascertained or not, of any property, money or valuable security or any service
Actus reus of fraud, Criminal Code s. 380(1) established by proof of prohibited act, and proof
of deprivation caused by prohibited act; mens rea consists of subjective awareness that one
undertaking prohibited act which could cause deprivation. Therefore, the fact that accused
feels nothing wrong with what they are doing is not a defense, personal feelings as to
morality or honestly of acts or its consequences is not relevant. Even if the mens rea of the
accused was not to defraud, may still be found guilty as long there is a risk of deprivation,
that establishes objective component. Therefore, the victim need not lose money, only that
there is a risk of deprivation.
• Fraud must look at the intention of the individual and must have objective
component as well (risk of deprivation)
• “Deceit and Falsehood” – viewed objectively – fact that accused feels nothing
wrong with his actions not a defence
R v. Theroux – construction deposit fraud (L-25)
Facts: accused was the directing mind of a company; charged with fraud; entered into
agreements with individuals for the purchase of residences; deposits were taken on the basis of
false representation that the deposits were insured; there was no insurance; company became
insolvent; project wasn’t completed; most depositors lost their money; trial judge found accused,
as the directing mind of the company, was responsible for the misrepresentations – he knew the
deposits weren’t ensured, but he sincerely believed the project would go through; the trial
judge found that the offence of fraud was made out
Issues: did accused’s honest belief that the project would be completed negate the mens rea of
the fraud
Held: trial courts conviction affirmed
• the actus reus of fraud is determined objectively, by reference to what a reasonable

person would consider to be a dishonest act; the mens rea of the fraud is established by proof
of the subjective knowledge of the prohibited act having the possibility of depriving
another of his interests, or at least putting those interests at risk
• where the conduct and the knowledge are established, the accused is guilty regardless
of whether he actually intended that deprivation or was reckless to the deprivation occurring

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R. v. Must (OCA, 2011) – Example – Fraudulent Time Sheets
(c) Recklessness : subjective state of mind – accused “knows and/or foresees” there are
risks that a prohibited consequence will be brought about and proceeds anyway (Kent-198) (L-
29) (See Aram -3)
 Recklessness different from negligence: which applies even if actor does not
personally see risk, provided reasonable person would have
 Recklessness is subjective mens rea with objective features – it exists only where
objectively unjustifiable to take risk accused understood he/she taking; fact that accused
may have felt risk justifiable not a defence. There is a need to look for foreseeability
of a risk; always ask if there is a foreseeability of a risk associated with thhe act in
question.
 Recklessness applies to all criminal code provision that rely on a consequence or

condition, but which does not specifically require a higher form of mens rea
Reckless discharge of a firearm
244.2 (1) Every person commits an offence
(a) who intentionally discharges a firearm into or at a place, knowing that or being
reckless as to whether another person is present in the place; or ( requires knowledge)
(b) who intentionally discharges a firearm while being reckless as to the life or safety
of another person.(no knowledge required)
(d) Knowledge( Roach pp 193-195)– accused must generally know that conditions of
actus reus exist (L-26)(Aram-3)
• I.e. - cannot be convicted of assaulting peace officer if he/she does not know
victim is peace officer (s. 270(1) Code)
Generally unrealistic to expect crown to prove what accused knows. Law will generally presume
accused knows of relevant conditions in the ordinary course, unless mistake of fact defence
argued
• Tacit burden – for instance, in the drug importing context – drugs hidden in
luggage – may need explanation to rebut presumption that accused knew
(e) Wilful blindness – related to but distinct from recklessness (Kent-195. L-28)(A-3)
Imputed knowledge - requires accused to personally see risk but then wilfully avoids
confirmation so as to be able to deny knowledge, deliberately avoids asking questing so
that remains ignorant of answer

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Sansregret v. The Queen, 1985 CanLII 79 (SCC)
R. v. Farmer, 2014 ONCA 823: “The trial judge was only prepared to find that the
respondent was “at least suspicious” that M.R. had accessed or downloaded child
pornography and that but for his relationship with M.R. he “would and should” have
made further inquiries. In my view, while this might support a finding of negligence
or recklessness, it falls short of a situation where it “can almost be said that the
defendant actually knew” so as to amount to wilful blindness.”
(2) Objective Mens Rea and True Crimes (Roach pp 199-208)(A-3)
• The SC held that fault is constitutionally sufficient for unlawful act manslaughter and
other criminal offences less serious than murder/attempted murder and war crimes (
because with murder, as a constitutional matter, a conviction requires subjective
mens rea in form of full scale intention which is full intention to cause death OR
bodily harm likely to cause death )
• Negligence is judged objectively based on what reasonable person would know or

understand or how a reasonable person would act
• Criminal law uncomfortable with objective fault, criminal law responds to “evil mind”,
careless people may be dangerous, but not evil – something more is required than civil
negligence
• Criminal law has come to accept objective fault, but not for crime of murder, which is
most serious offence with most serious penalty
Ex. R. v. Martineau, S.C.C. (1990) (Conviction for murder cannot rest on anything
less than subject foresight of death)(L-31)
– the accused and other set out armed, knowing they would commit crime, accused thinks
it would only be break-in; Accomplice shot and killed victims after robbing them in their
house as they saw their faces, accused had mask on
o Principles of fundamental justice under Charter s.7 require conviction

for murder to be based on proof beyond reasonable doubt of subjective
foresight of death; Special mental element for death necessary before
culpable homicide can be treated as murder, give rise to (the Crown must
prove higher) moral blameworthiness justifying stigma and
punishment for murder.
o The phrase “ought to know is likely to cause death” in Code s.229(c)
violates s. 7 (11) (d) of the Charter and will not be saved by s. 1 since
subjective foresight of death is required . The phrase suggests objectively,
which for murder, will not hold ( need subjective intent)

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R. v. Beatty, S.C.C. (2008) (Defines the elements of the dangerous operation of a

motor vehicle offence, s249)(L-32)(marked departure is necessary to distinguish crim
neg and civil neg)
– accused charged with dangerous driving causing death, accused’s truck suddenly
crossed center-lane into path of oncoming car, killing occupants; vehicle driven properly
before accident
• Acquittals upheld on appeal : Court made a important distinction between civil

negligence and penal negligence: Act of negligent driving does not necessarily
constitute dangerous driving. The Requisite mens rea could only be found when
there was “marked departure from standard of care expected of reasonable person
in circumstances of accused”
• Momentary act of negligence insufficient to support finding of marked departure

from standard of care of reasonably prudent driver
The SC looked at situation as a momentary lapse of judgment; as a society, we don’t want to

incriminate lapse of judgment.
R. v. DeSousa, [1992] 2 SCR 944Important)
 – charge of unlawfully causing bodily harm under Code s.269 . Where a Bystander
injured by piece of broken glass thrown by accused involved in fight
 Term unlawfully in s.269 requires underlying unlawful act, criminal or non-criminal,

be at least objectively dangerous AND reasonable person would know underlying
unlawful act would subject another to risk of bodily harm
 This ensures all prosecutions under s.269 contain at least fault requirement based on
objective standard – there is no constitutional requirement that intention, either
objectively or subjectively, extend to consequences of unlawful acts in general
SC said- you have to look at risk, so long as the person intended to do the unlawful act; if
there is a foreseeable risk that someone will be hurt form that action, that will be a criminal
offence; subjective mens rea is not necessarily required.
Facts: accused was involved in a fight and a bystander was injured when a bottle thrown by him
broke against the wall; accused was charged with unlawfully causing bodily harm (section 269);
at outset of trial, accused claimed section 269 infringed section 7; trial judge granted the motion
and quashed the case; court of appeal overturned;
Issues: in creating a criminal responsibility for causing bodily harm by way of unlawful
conduct, does section 269 contravene section 7 of the charter

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Held: section 269 does not violate section 7, the appeal should be dismissed
• in punishing unforeseen consequences, the law is not punishing the morally

innocent, but rather those who cause injury through avoidable unlawful action (i.e.;
through negligence)
Subjective vs. Objective Mens Rea - SUMMARY
R. v. Creighton (SCC, 1993) – (Defines unlawful act and criminal negligence

manslaughter; and upholds the constitutionality of the manslaughter offence)(L-31)(a-
3)
Subjective mens rea requires that the accused have intended the consequences of his or
her acts, or that knowing of the probable consequences of those acts, the accused have
proceeded recklessly in the face of the risk.
Objective mens rea, on the other hand, is not concerned with what the accused intended
or knew. Mental fault lies in failure to direct the mind to a risk which the reasonable
person would have appreciated. Objective mens rea is not concerned with what was
actually in the accused's mind, but with what should have been there, had the
accused proceeded reasonably.
General intent vs. Specific intent
 Our law distinguishes between offences whose mens rea relates only to the basic
prohibited act (general intent offences) and those that have some additional element
of intent (Specific intent offences)
 Examples
Assault – a general intent - involving the intent to apply force (Kent-256)
Robbery – specific intent - both the actual or threatened application of force and specific
intention to steal through the use of force (Note- Intoxication is not a defense to specific intent
offence)(Kent-256)
Note-( In cases involving either general or specific intent offences, the accused must establish
that there is an air of reality that justifies instructing the trier of fact about the intoxication
defence) Kent -259
Regulatory Offence (L-33)
Regulatory offences can be created by any level of government – “provincial offences” under
Ontario’s Provincial Offences Act
 Common Examples – Highway Traffic Act

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 Not true criminal offence, and person does not get a criminal record for commission
 That said – can result in jail or other punishments
Three categories:
1. Mens rea offences - fault element like criminal offences ( Many of the under Securities
Act)
2. Strict liability offences – defence of reasonable care/due diligence available, once the
Crown establishes the actus reus beyond a reasonable doubt, the burden of proof on
accused on balance of probabilities : For example, the Highway traffic offence of careless
driving
3. Absolute liability offences – no fault element required, Crown must simply show the
actus reus was committed: (Ex-speeding under the Highway Traffic Act, although the
accused can challenge the proof of the actus reus (radar not working)
R. v. Sault Ste Marie, [1978] 2 SCR 1299( Leadingcase that recognized three categories of
regulatory offence) ] (Distinguishes b/w the three types of offences: mens rea offences, strict
liability and absolute liability offences; also discusses the defence of due diligence) (L-33)
– three categories of regulatory offences recognized
1. Mens rea offences – positive state of mind such as intent, knowledge or recklessness,
eg., Ontario Business Practices Act offence of knowingly engaging in unfair business
practice
2. Strict liability offences – no necessity for prosecution to prove existence of mens rea;
doing of prohibited act prima facie imports offence
 Defence of due diligence: prove on balance of probability (more likely than

not) accused took reasonable care, i.e. accused reasonably believed in
mistaken set of facts OR accused took all reasonable steps to avoid particular
event, eg., Highway Traffic Offence (Ont.) of careless driving
3. Absolute liability offences – No mens rea required, does not matter if accused is free
from fault - eg., Highway Traffic Act (Ont.) offence of speeding – mistaken belief that
not speeding no defence, but accused can challenge proof of actus reus, - i.e radar
not working properly
Statutory Construction
 Full mens rea offences only if clear indication that mens rea required in the wording
of the statute – words such as “intentional”; “willful” or “reckless”
 Regulatory offences presumed to be “strict liability” offences

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 Absolute liability offences - also need clear indication that there is no mens rea needed -
clearly intended on part of the legislature
 Reference re S.94(2) B.C. Motor Vehicle Act, S.C.C. (1985) – cannot have an
absolute liability offence if the offence can carry a jail sentence (Aram 3(a))
 Imprisonment with no fault requirement violates s.7 of the Charter
Reference re Motor Vehicle Act (British Columbia) S 94(2) – [1985] 2 SCR 486 –
imprisonment for driving without a valid license
Facts: BC Motor Vehicle Act provided for minimum periods of imprisonment for driving
without a valid driver’s licence or a suspended licence, and the offence was one of absolute
liability as per section 94(2) the act; court of appeal found the section to be of no force and effect
as it was inconsistent with section 7 of the charter; that decision was appealed
Issues: is section 94(2) violate of section 7
Held: the appeal should be dismissed
• absolute liability (in and of itself) does not offend section 7 of the charter
unless it has the potential to deprive life, liberty, or security of the person – the
combination of imprisonment and absolute liability violated section 7 (unless
qualified by section 1)
• generally, no imprisonment may be imposed for an absolute liability

offence, and an offence punishable by imprisonment cannot be an absolute
liability offence
Regulatory Offence Structure Summary (L-37)(A-3 (a)
Lecture-4 (Modes of participations in Crime)

Aiding and Abetting (Kent-153-164) (L-38).
• It is not only person who actually performs actus reus – the “principal offender” – who
can be convicted of offence
• “Secondary offenders” equally liable in law – those who aid (physically support) or
abet (encourage) accused to commit offence

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• Persons who aid and abet one offence can, in some circumstances, be convicted of
offences they did not intend to aid or abet, provided offence is foreseeable outcome of
offence they did intend to aid or abet
Parties to Offence
CCs21. (1) Every one is a party to an offence who(a) actually commits it; or (b) does or omits to
do anything for the purpose of aiding any person to commit it; or (c) abets any person in
committing it and
(2) Where two or more persons form an intention in common(Common Intention) to carry
out an unlawful purpose and to assist each other therein and any one of them, in carrying
out the common purpose, commits an offence, each of them who knew or ought to have
known that the commission of the offence would be a probable consequence of carrying
out the common purpose is a party to that offence.
 Mere presence is not sufficient( Kent-154-155)
Case- R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881 (Mere presence, and passive
acquiescence, at the scene of a crime is not sufficient to ground culpability by way of s 21(b)
and (c) – aiding and abetting. Some active steps m/b taken) – gang rape of victim in isolated
area where members of motorcycle club having party, accused present (L-38)(See Aram4)
R V. Salajko [1970] 1 C.C.C. 352 – gang rape pants down (Subjective mens rea- as an aider the
purpose has to be specific)( kent-155)
 Omissions will only ground of liability where the accused had a legal duty to act.
See R. v. Nixon (1990) C.C.C. (3d) 97 (B.C.C.A.)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 ( Failure to act can amount to aiding and
abetting is strengthened by the fact that section 21(1)(b) provides that one who omits to do
anything for the purpose of aiding any person to commit an offence may be charged as a
party to that offence) – police officer had a duty to protect an inmate from abuse by other
officers.(Kent-156)
R. v. Laurencelle 1999 BCCA 511 – Woman whose residence was used by kidnappers had no
legal duty to intervene
 Presence at commission of offence can be evidence of aiding and abetting if

accompanied by other factors, such as prior knowledge of principal offender’s
intention to commit offence, or attendance for purpose of encouragement – mere
presence without anything more not enough; person cannot properly be convicted of

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aiding and abetting in commission of acts which he does not know may be or are
intended
 Saying or doing something to encourage the commission of an offence for that
purpose. Traditionally requires presence at the scene.
Case- R. v. Barnhardt 2001 BCCA 191
• Abetting may involve conduct and not words: for example
Crown does not need to specify if a person was the aider or abettor or the principal offender of
the offence
Case-R. v. Thatcher [1987] 1 S.C.R. 652 ( L-40) (Charged with murder his wife, hired some
people to commit murder) Crown was able to argue that the accused was guilty of murder on
the alternative theories that he can actually killed his ex-wife or he assisted others to do the
killing.
Trier of fact need not decide whether accused was principal offender or party, only whether
guilt on one or the other bases is established
Case-R. v. Carroll 2014 ONCA 2
Fact-Late one night, two blasts from a shotgun ended a lovers’ relationship in a remote camp
north of Sudbury. One victim, Carolyn Carroll, was the estranged wife of Reg Carroll (the
appellant). The other victim, Tony Comeau, had recently returned to the Sudbury area after an
absence of about two decades.
Nobody saw the appellant shoot the victims. No forensic evidence linked him to the killings.
Investigators never found the shotgun.
The case for the Crown relied on circumstantial evidence. Evidence of motive and
opportunity. Evidence of familiarity with, and access to, the killing ground. Evidence of things
said by the appellant to his girlfriend, shortly before and shortly after the killings. And evidence
of the appellant’s access to, and familiarity with, guns.
Held-The Crown contended that the appellant was guilty of first degree murder on either of
two bases. Each involved a murder that was planned and deliberate. The first was that the
appellant himself shot and killed the deceased in circumstances that amounted to planned and
deliberate murder under s. 231(2) of the Criminal Code. The second was that the appellant hired
two others to kill the deceased and that they did so. On this basis, the appellant committed first
degree murder under s. 231(3) of the Criminal Code.
Reason- First, in cases of domestic homicide, evidence may be admitted during the case for
the Crown, including evidence of extrinsic misconduct, that elucidates the nature of the
relationship between the spouses. This evidence may tend to establish animus or motive on the

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part of one spouse, and thus be relevant to prove that the killer of the deceased was the spouse
with the animus or motive, rather than someone else, and that the killing was murder
Second, where extrinsic misconduct evidence is admitted to demonstrate animus or motive

towards the very person killed, the usual caution associated with such evidence is not required:
Unlawful common purpose
s. 21 (2) Where two or more persons form an intention in common to carry out an unlawful
purpose and to assist each other therein and any one of them, in carrying out the common
purpose, commits an offence, each of them who knew or ought to have known that the
commission of the offence would be a probable consequence of carrying out the common
purpose is a party to that offence.
Intention is subjective( In case of murder, ought to have known does not work)
Ought to have known doesn’t work in case of murder and attempted murder.
Case- R. v. Logan, [1990] 2 S.C.R. 731(dealt with taking out ought to have to have known)
(Analyzes the constitutionality of s 21(2) – common purpose liability – in relation to the
offence of attempted murder) (L-38)
– accused convicted of attempted murder, during robbery one of group shot and severely injured
another, accused admits being one of robbers but states he had no intention to shoot, no
discussion concerning use of guns
• Requisite mens rea for murder conviction logically must be same for conviction of
attempted murder (very important)
• When principles of fundamental justice require subjective foresight in order to

convict principal of attempted murder, same minimum degree of mens rea
constitutionally required to convict party to offence of attempted murder; to extent
s.21(2) allows for conviction of party to offence of attempted murder on basis of
objective foreseeability, its operation restricts s.7 of Charter
• Words “or ought to have known” inoperative when considering under s.21(2) whether
person party to offence where constitutional requirement for conviction that foresight of
consequences be subjective, which is case for attempted murder; once words deleted,
remaining section requires, for attempted murder, that party to common venture know it
is probable that accomplice would do something with intent to kill in carrying out
common purpose (Kent-135..163)
Abandoning common intention (kent-159)
Case- R. v. Gauthier 2013 SCC 32 (L-41)

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Party under s. 21(2) may abandon the unlawful common purpose and no longer be responsible
for subsequent offences committed by his or her accomplices. Abandonment requires
withdrawal from the unlawful enterprise and timely communication of this withdrawal to
the other participants where possible.
Aiders and abettors may also rely on the defence of abandonment, but must not only
withdraw from the offence and give notice, but must act to undo the effect of their participation
in the offence. (L-41)
Counseling (Kent 147-153) (L-42)
22. (1) Where a person counsels another person to be a party to an offence and that other person
is afterwards a party to that offence, the person who counseled is a party to that offence,
notwithstanding that the offence was committed in a way different from that which was
counselled.
Idem
(2) Everyone who counsels another person to be a party to an offence is a party to every offence
that the other commits in consequence of the counselling that the person who counselled knew or
ought to have known was likely to be committed in consequence of the counselling.
Definition of “counsel”
(3) For the purposes of this Act, “counsel” includes procure, solicit or incite
Accused can be convicted of counselling offences, whether or not offences counselled are
actually committed – “counsel” includes procure, solicit or incite, s.22(3) definition for
purposes of Code
Code s.22 operates if offences counseled are committed – where person counsels another to be
party to offence and that other person is afterwards party to offence, person who counselled is
party to offence, even if offence committed in different way from which counselled: s.22(1);
everyone who counsels another to be party to offence is party to every offence that other
commits in consequence of counselling that person who counselled knew or ought to have
known was likely to be committed due to the counselling
Code s.23.1- for greater certainty, ss.21-23 apply in respect of accused, notwithstanding that
person whom accused aids or abets, counsels or procures, or receives, comforts or assists cannot
be convicted of the offence
R. v. Hamilton, 2005 SCC 47 (L-42)(Defines the elements for counselling an offence) – accused
sends “teaser” email on internet marketing sale of “top secret” files; advertising software would
enable purchaser to generate valid credit card numbers, instructions include how to make bombs,

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break into house; accused charged under s.464 with counseling indictable offences not
committed, including fraud(Aram-4)
• Accused testifies he had seen computer generated list of contents of files, but not read
them or used credit card numbers; trial judge finds accused did not have necessary
mens rea to commit counseling fraud
• Actus reus for counseling – deliberate encouragement or active inducement of

commission of criminal offence; mens rea consists of nothing less than accompanying
intent or conscious disregard of substantial and unjustified risk inherent in counseling –
must be shown accused either intended offence counseled be committed, or knowingly
counseled commission of offence while aware of unjustified risk that offence counseled
was in fact likely to be committed as result of accused’s conduct (para. 29)
• Trial judge confounded “motive” and “intent”, majority orders new trial
Party may be liable even where principal cannot be convicted
23.1 For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the
fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or
assists cannot be convicted of the offence.
Enacted in response to R. v. Richard, Man C.A. 1986(kent-151)
Attempts(Roach pp 130-141) (L-42)
Criminal Code provisions:
• S.24 – everyone who, having intent to commit offence, does or omits to do anything for
purpose of carrying out his/her intention, guilty of attempt to commit offence – whether
or not possible to commit offence
• S.239 - Attempt to commit murder is a standalone offence; same with Accessory

after fact to murder, s.240
• S.463 – sets the punishment for attempted crimes; generally a person guilty of an
attempted crime is subject to half of the longest term to which a person guilty of the
offence is liable.
R. v. Ancio, [1984] 1 S.C.R. 225 – (For one to be guilty of an attempt, they must intend to
commit the completed offence, and to have some act toward the accomplishment of that
objective; e.g. for murder, there must be the intent to kill) (L-42)
This case demonstrates relevant mens rea for attempts, charge of attempted murder;
completed offence of murder involves killing, any intention to complete that offence must

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include intention to kill – attempt to murder should have no lesser intent, person cannot
intend to commit unintentional killing.
R. v. Deutsch, [1986] 2 S.C.R. 2 (Sets out how to distinguish between attempts and mere
preparation, which does not constitute an attempt – focussing on the actus reus of an
attempt)(L-42)(Aram-4)
– instructive on when attempt proceeds far enough to constitute a crime; fact that offence
legally impossible in factual circumstances no defence to attempt charge
• Crown must prove mens rea – intent to commit offence in question, and actus reus –
some step towards commission of offence beyond mere acts of preparation
• Distinction between preparation and attempt qualitative one, involves relationship

between nature and quality of act in question and nature of complete offence –
consideration must be given to relative proximity of act to completed offence in terms of
time, location, acts under control of accused remaining to be accomplished
Accused may be convicted of attempting an impossible offence: U.S.A. v. Dynar [1997] 2

S.C.R. 462(Aram-4)
R. v. Dery, 2006 SCC 53 – case exposes limits of “piggy-backing’ incomplete forms of

liability; conspiracy case involving theft, stolen property, trial judge finds no agreement
established between parties and finds them not guilty of conspiracy, however as actions
more than merely preparatory to conspiracy, conviction imposed for attempting to
conspire
• Attempt to conspire to commit substantive offence is not offence under Canadian

law – criminal liability does not attach to “fruitless discussions” in contemplation of
substantive crime that is never committed, nor even attempted by parties to discussion;
criminal law does not punish “bad thoughts” that were abandoned before
agreement reached, or attempt made, to act upon them
• Acts that precede a conspiracy are not sufficiently proximate to substantive offence to
warrant criminal sanction – given that conspiracy is essentially crime of intention, it is
difficult to reach further than law of conspiracy already does – not goal of criminal law to
catch all crime “in the egg”; conspiracies are criminalized when hatched, and only
hatched by agreement (para. 47)
R v. Dery – [2006] SCJ 53 – SCC – attempt to conspire(L-43)(Aram-4)
Facts: charged with conspiring to commit theft and posses stolen liquor; trial judge found no
agreement had been established an acquitted of conspiracy, but finding the actions more than

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mere preparatory to conspire, judge convicted them of attempting to conspire; court of appeal
affirmed conviction; accused appealed
Issues: was there attempt to conspire
Held: appeal allowed; conviction should be set aside and acquittal entered
• an attempt to conspire to commit an offence is not an offence under the law
• conspiracy is essentially a crime of intention, so it is difficult to have the intent to intend

something
• an attempt to conspire amounts, at best, to a risk that a risk will materialize
Conspiracy(Aram-4)(Kent-142-146)
• 465. (1) Except where otherwise expressly provided by law, the following provisions
apply in respect of conspiracy:
(a) every one who conspires with anyone to commit murder or to cause
another person to be murdered, whether in Canada or not, is guilty of an indictable
offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged
offence, knowing that he did not commit that offence, is guilty of an indictable offence
and liable
(i) to imprisonment for a term not exceeding ten years, if the

alleged offence is one for which, on conviction, that person would be liable to be
sentenced to imprisonment for life or for a term not exceeding fourteen years, or
(ii) to imprisonment for a term not exceeding five years, if the

alleged offence is one for which, on conviction, that person would be liable to
imprisonment for less than fourteen years;
(c) every one who conspires with any one to commit an indictable offence
not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the
same punishment as that to which an accused who is guilty of that offence would, on
conviction, be liable; and
(d) every one who conspires with any one to commit an offence
punishable on summary conviction is guilty of an offence punishable on summary conviction
This section set out various conspiracies for different crimes. The Actus reas of a conspiracy is
agreement to commit an offence. Conspiracy doesn’t need to go beyond mere preparation

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R. v. Alexander and Blake (2005) 206 C.C.C. (3d) 233 (Ont. CA) (No agreement of conspiracy
between 2 of them to commit specific offence. There should be an act in furtherance of
conspiracy)
Crown must prove meeting of the minds: ( if one person agreed to commit offence, it is
not conspiracy. Two persons needed. Agreement between two people to commit
offence is sufficient enough)
• [47] It follows from the mutuality of objective requirement of the actus reus that a
conspiracy is not established merely by proof of knowledge of the existence of a scheme
to commit a crime or by the doing of acts in furtherance of that scheme. Neither
knowledge of nor participation in a criminal scheme can be equated with the actus reus of
a conspiracy: see R. v. Lamontagne, (1999), 142 C.C.C. (3d) 561 at 575-76 (Que. C.A.);
R. v. Cotroni (Aram-4), supra, at pp. 17-8. Knowledge and acts in furtherance of a
criminal scheme do, however, provide evidence, particularly where they co-exist, from
which the existence of an agreement may be inferred.
Accessory after the fact
23. (1) An accessory after the fact to an offence is one who, knowing that a person has
been a party to the offence, receives, comforts or assists that person for the purpose of
enabling that person to escape.
• Actus reus includes guilty of the principal offender and mens rea requires
knowledge or willful blindness of the specific offence committed by the principal
• Accused may be convicted of accessory after the fact even where principal offender
is acquitted: R. v. Shalaan [1998] 1 S.C.R. 88
Criminal Organization offences ( Independent offence)
467.1 (1) “criminal organization” means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of
one or more serious offences that, if committed, would likely result in the direct or
indirect receipt of a material benefit, including a financial benefit, by the group or by any
of the persons who constitute the group.
• 467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal
organization to facilitate or commit an indictable offence under this or any other Act of
Parliament, knowingly, by act or omission, participates in or contributes to any activity of
the criminal organization is guilty of an indictable offence and liable to imprisonment for
a term not exceeding five years.

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• Leading case is R. v. Lindsay and Bonnar 2009 ONCA 532( constitutional Challenge
as overbroad, but it was dismissed.)
The crown has to prove
Three people facilitating the offence
It must be proved beyond a reasonable doubt
Lecture- 5 Defences (Aram-5) (Kent-332

145. (1) Everyone who
(b) is, before the expiration of a term of imprisonment to which he was sentenced, at large in or
out of Canada without lawful excuse, the proof of which lies on him,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years
or is guilty of an offence punishable on summary conviction.
Purpose of a Defence

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1. Accused is not guilty of an offence. Necessity. Self Defence. Duress.
2. Accused is guilty of a lesser offence. Intoxication. Provocation.
Select Criminal Defences
1. Justification. Self Defence.
2. Excuse. Officially induced error. Automatism. Necessity. Duress.
Mistake of Fact
• Ignorance of law is not an excuse
• Mistake of fact may be a defence
• No intent to commit crime
Criminal Code
Mistake of age
150.1(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or
173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16
years of age or more at the time the offence is alleged to have been committed unless the
accused took all reasonable steps to ascertain the age of the complainant.
Consent
A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a
reasonable doubt of the actus reus and the mens rea of the offence. A person commits
the actus reus if he touches another person in a sexual way without her consent.
• Consent for this purpose is actual subjective consent in the mind of the complainant at
the time of the sexual activity in question. (R. v. Ewanchuk).
• A person has the required mental state, or mens rea of the offence, when he or she
knew that the complainant was not consenting to the sexual act in question, or was
reckless or wilfully blind to the absence of consent.
• The accused may raise the defence of honest but mistaken belief in consent if he
believed that the complainant communicated consent to engage in the sexual activity.
However, the accused cannot argue that he misinterpreted the complainant saying
“no” as meaning “yes” (Ewanchuk).
• R v. Ewanchuk – [1999] 1 SCR 330 – SCC – Lamer C.J., Cory, Iacobucci, Major,
Bastarache, Binnie JJ. – interview in a van leading to sexual assault

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• Facts: victim was interviewed for a job in the accused’s van; she was hesitant, so left the
van door open; accused told her to come to trailer to see some of his work; she left the
door open, but he closed it (she thought he locked it, though he didn’t); accused touched
victim several times (getting more intimate each time) even though she kept saying no;
victim said if she complied at all it was out of fear and that the accused knew the same;
trial judge acquitted based on implied consent; court of appeal upheld acquittal
• Issues: was there consent; if not, did accused have knowledge thereof
• Held: appeal from acquittal by trial and appeal court should be allowed
• conviction for sexual assault requires that the accused committed the actus reus,
and that he had the necessary mens rea – the actus reus is unwanted sexual touching;
the mens rea is the intention to do so, knowing of lack of consent of the person being
touched
• the absence of consent is purely subjective and determined by reference to the

complainants subjective internal state towards the touching at the time the touching
occurred
• the trier of facts can either conclude that there was consent or that there wasn’t – no third
option, including no option of ‘implied consent’
• the trial judge erred when he concluded there was implied consent (as there can be no
such conclusion)
• consent must be freely given; even if the victim consent, but does so by reason of
force, fear, threat, fraud, then it is deemed to be an absence of consent – even if the
fear is unreasonable
• the accused knew the victim was not consenting (at each encounter) – there was no
consent, since none was given, and the accused knew this – and he did not take any
reasonable steps to ascertain that she was consenting
Consent-
Parliament has enacted provisions that specifically define consent for the purpose of sexual
assault.
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the
purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to
engage in the sexual activity in question.
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

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s.273.1(2) no consent is obtained
(a) the agreement is expressed by the words or conduct of a person other than the
complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of
trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the
activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or
conduct, a lack of agreement to continue to engage in the activity.
(A) this are non- exhaustive . The accused can still argue that although there was no
consent in these situations and the actus reus was committed, he or she did not have the mens
rea to commit the sexual assault.
The defence of honest but mistaken belief in consent was recognized and limited by
Parliament
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused
believed that the complainant consented to the activity that forms the subject-matter of the
charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused
at the time, to ascertain that the complainant was consenting.( Aram-5)
Provocation( Kent-411-433) ( L-63)(Aram -5)
Criminal Code -- former provisions (Prpoovocation Kent p411-432)
232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if
the person who committed it did so in the heat of passion caused by sudden provocation.
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an

ordinary person of the power of self-control is provocation for the purposes of this section if the

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accused acted on it on the sudden and before there was time for his passion to cool.(Amended
later on )
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by

the provocation that he alleges he received
are questions of fact, but no one shall be deemed to have given provocation to another by doing
anything that he had a legal right to do, or by doing anything that the accused incited him to do
in order to provide the accused with an excuse for causing death or bodily harm to any human
being.
Criminal Code -- Newly amended s. 232(2)
Conduct of the victim that would constitute an indictable offence under this Act that is
punishable by five or more years of imprisonment and that is of such a nature as to be sufficient
to deprive an ordinary person of the power of self-control is provocation for the purposes of this
section, if the accused acted on it on the sudden and before there was time for their passion to
cool.
Four required elements:
(1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or
her self-control;
(2) which is sudden and unexpected;
(3) which in fact caused the accused to act in anger;
(4) before having recovered his or her normal control . . . . (R. v. Parent, 2001 SCC 30)
R. v. Thibert (1996) 104 C.C.C. (3d) 1 (S.C.C.) Insults in context of marital breakdown may
satisfy requirements :( old section)
-- R .v Parent 2001 SCC 30: There is no defence of anger negating the mens rea for murder
apart from provocation(Kent-411-412)
-- R. v Tran 2010 SCC 58: “ordinary person” standard has to reflect current social norms
and Charter values (sets the 4 tests for provocation) (L-63)
FACTS: (R. v Tran)

 The accused had knowledge that his estranged wife was involved with another man
 One afternoon, the accused entered his estranged wife’s home, unexpected and uninvited, and
he discovered his estranged wife in bed with her boyfriend

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 The accused viciously attacked them both, killing the boyfriend by repeatedly stabbing him
 Having accepted the defence of provocation, the TJ acquitted the accused of murder, but
convicted him of manslaughter
 The CA allowed the Crown’s appeal and substituted a conviction for second degree murder
HELD: Appeal s/b dismissed
R. v. Mayuran 2012 SCC 31: defence is assessed on a modified objective standard but court
should not overemphasize personal characteristics of the accused ( Aram 5)
Infanticide ( kent-433-434)
233. A female person commits infanticide when by a wilful act or omission she causes the death
of her newly-born child, if at the time of the act or omission she is not fully recovered from the
effects of giving birth to the child and by reason thereof or of the effect of lactation consequent
on the birth of the child her mind is then disturbed
See R. v. L.B. 2011 ONCA 153 for discussion of this offence/defence ( Kent-434)
The elements are currently on reserve at the Supreme Court in Alberta case of R. v. Borowiec
2015 ABCA 232
222. (1) A person commits homicide when, directly or indirectly, by any means, he causes
the death of a human being. (kent-390)
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
234. Culpable homicide that is not murder or infanticide is manslaughter.(Kent-435)
237. Every female person who commits infanticide is guilty of an indictable offence and
liable to imprisonment for a term not exceeding five years. (Kent 434)
SELF-DEFENCE ( kent-336)
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another
person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or
protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances

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34 (2) In determining whether the act committed is reasonable in the circumstances, the court
shall consider the relevant circumstances of the person, the other parties and the act, including,
but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means
available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident,
including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew
was lawful.
Modified objective standard applies: R. v. Lavallee [1990] 1 S.C.R. 852 (L-60) (K-332-349)
The new provisions are discussed in Roach pp. 332-349. In addition, R. v. Lavallee, [1990] 1
SCR 852 discusses the concept of "reasonable belief" in the context of self-defence, and
should still be applicable to the new provision.
R v Lavallee [1990] 1 SCR 852 (discusses the concept of reasonable belief and should still be
applicable to the new self-defence provisions)
FACTS:
 A battered woman shoots husband in the back of the head as he left her room
 Shooting happened after an argument where the woman had been physically abused and
threatened that either she kill him or he would get her
 Psychiatrist prepared a report in support of the appellant for self-defence – he related

many things told to him by the appellant would could not be admitted as evidence
 The appellant did not testify at trial
 The jury acquitted, but the majority overturned the decision in the CA

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ISSUE:
 Whether the evidence of the psychiatrist should have been before the court at all and
were the TJ’s instructions w/ respect to the report adequate?
REASONING:
 Expert testimony is admissible to assist the fact-finder in drawing inferences about an

area a lay person would not otherwise comprehend
 The testimony may go to the issue of whether she “reasonably apprehended” death or
grievous bodily harm on a particular occasion
 The expert testimony does not usurp the jury’s function of deciding whether, in fact, the
accused’s perceptions and actions were reasonable
 As long as there is some admissible evidence to establish the foundation for the expert’s
opinion, the TJ cannot subsequently instruct the jury to completely ignore the testimony
 The judge must warn the jury that the more the expert relies on facts not proved in
evidence, the less weight the jury may attribute to the opinion
HELD: appeal to the supreme court allowed
 Self-defence is not only justified in response to an immediate threat of harm
 the particular experiences and circumstances that the accused faced should be
considered in determining whether the accused acted reasonably
 there is no legal requirement that the accused wait until she faced an imminent
attach from the victim in order to defend her person
 there is no requirement that the accused retreat in order to qualify for the
section 34(2) defence( kent-345)
34 (2) In determining whether the act committed is reasonable in the circumstances…..
“to measure with nicety the degree of force necessary to ward off the attack”
Bruce v. Dyer [1966] 2 O.R. 705-712 (old Principle)
DEFENCE OF PROPERTY (Kent-350)( Aram -5)
35 (1) A person is not guilty of an offence if

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(a) they either believe on reasonable grounds that they are in peaceable possession of
property or are acting under the authority of, or lawfully assisting, a person whom they
believe on reasonable grounds is in peaceable possession of property;
(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by
law to do so,
(ii) is about to take the property, is doing so or has just done so, or
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person
from the property, or
(ii) preventing the other person from taking, damaging or destroying the property or
from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.
See R. v. Szczerbaniwicz 2010 SCC 15 ( Kent 356) ( A man has used more force than was
necessary)
Citizens arrest (Aram-5)
Arrest by owner, etc., of property-494(2) The owner or a person in lawful possession of

property, or a person authorized by the owner or by a person in lawful possession of property,
may arrest a person without a warrant if they find them committing a criminal offence on or in
relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they
believe on reasonable grounds that it is not feasible in the circumstances for a peace officer
to make the arrest.
Necessity
The defence of necessity permits the conduct of the accused to be excused where its elements are
met. The defence is heavily circumscribed.
- R. v. Latimer, [2001] 1 S.C.R. 3 - Roach pp 361-370

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• Viewed as either a justification or an excuse – R. v. Perka [1984] 2 S.C.R. 232 held that
at Canadian law it should be considered an excuse (Class note)
• necessity isn’t a codified defence – rather it is a common law defence and was first
recognized in R v. Perka
• the court, in that case, restricted necessity to circumstances of imminent risk where the
action was taken to, avoid a direct and immediate peril, where the act was morally
involuntary as measured on the basis of society’s expectations of appropriate and normal
resistance to pressure, and where it was clear that there was no reasonable legal alternative to
avoid the peril
• it was first recognized in R v. Perka where drug smugglers were forced to come into
shore because of a storm
• unlike mistake of fact or intoxication, this defence is not derived from the fault element
of the offence and can apply even if the accused voluntarily committed the actus reus and had
the mens rea required for the offence – if proved, the defence operates as a compete
defence that results in acquittal
• arises under circumstances where a person is subjected to an external danger and

commits an act that would otherwise be criminal as a way of avoiding the harm the danger
presents
• the accused must have acted reasonably in response to the external pressures (i.e.; dire
circumstances of peril)
• using a modified objective standard (that the reasonable person be endowed with the
relevant characteristics and experiences of the accused so as to assess the significance of the
threat or insult))
• those who have a valid defence of duress and necessity act in a morally involuntary
manner because in the dire circumstances it was impossible for them to comply with the law
as there was no safe and lawful avenue of escape
• the requirements of proportionality between the harm avoided and the harm
inflicted should be determined on a purely objective standard
• the defence doesn’t necessarily disprove mens rea – although evidence relating to the
defence might be relevant to proving the mental element of some crimes
• the defence must be disproved by the crown as part of its burden to prove guilt beyond a
reasonable doubt

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• the accused’s state of mind at the time of the offence must be examined, and the
accused (not the victim) should be given the benefit of the doubt
• a morally involuntary response to an immediate peril to life or health is required for a

necessity defence
• the defence will not apply if the necessitous situation was foreseeable to the reasonable
observer
• necessity as an excuse only applies when the accused has no realistic choice but to violate
the law
• R. v.Latimer [2001] 1 S.C.R. 3 set out three requirements for the defence:
R v Latimer [2001] 1 SCR 3 (Liran -60)
FACTS: Father killed disabled child and said he did it b/c he didn’t want her to suffer anymore
• The defence of necessity is narrow and of limited application to criminal law
• The accused must establish the existence of 3 elements:
(1) Imminent peril or danger: Disaster must be imminent, or harm unavoidable and near – it
isn’t enough that peril is foreseeable or likely, it has to be on the verge of transpiring (e.g., here,
the accused did not himself face any peril, and T’s ongoing pain did not constitute an emergency
in this case. T’s proposed surgery did not pose an imminent threat to her life, nor did her
medical condition. It was not reasonable for the accused to form the belief that further surgery
amounted to imminent peril, particularly when better pain management was available)
(2) No reasonable legal alternative to the course of action: Ask, given that the accused had to
act, could he nevertheless realistically have acted to avoid peril or prevent harm without breaking
the law? (e.g., here, the accused had at least one reasonable legal alternative to killing his
daughter: he could have struggled on, with what was unquestionably a difficult situation, by
helping T to live and by minimizing her pain as much as possible or by permitting an institution
to do so)
(3) Proportionality between the harm inflicted and the harm avoided (e.g., here, leaving
open the question of whether the proportionality requirement could be met in a homicide
situation, the harm inflicted in this case was immeasurably more serious than the pain resulting
from T’s operation which the accused sought to avoid. Killing a person — in order to relieve the
suffering produced by a medically manageable physical or mental condition — is not a
proportionate response to the harm represented by the non life threatening suffering resulting
from that condition)

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 What standard to employ? For the first 2 of the 3 elements, a modified objective test is
employed (i.e. It involves an objective evaluation, but one that takes into account the situation
and characteristics of the particular accused person, including his ability to perceive the existence
of alternative courses of action). The third requirement for the defence of necessity,
proportionality, must be measured on an objective standard, as it would violate fundamental
principles of the criminal law to do otherwise
HELD: The TJ was correct to remove the defence from the jury since there was no air of reality
to any of the three requirements for necessity
1) There must be an urgent situation of clear and imminent peril;
2) There must be no reasonable legal alternative to disobeying the law;
3) There must be proportionality between the harm inflicted and the harm avoided
• #1 and #2 are tested against a modified objective standard (an objective evaluation that
takes into account the situation and characteristics of a particular accused)
• #3 is tested against an objective standard
Duress (Kent-370) (L-61) (Aram-5)
The defence of duress is available under section 17 of the Criminal Code and at common law.
Section 17 identifies a limited defence, but the common law and Charter have been used to
extend its application so that now the main difference between the s.17 and common law defence
is that the former applies to those who have actually committed the offence (as opposed to
having being parties under ss.21(1)(b) or (c) or 21(2) or 22) and s.17 contains a long list of
crimes that are (subject to Charter challenge) categorically excluded from the defence.
- R. v Ryan, 2013 SCC 3 - R. v. Aravena, 2015 ONCA 250 - Roach pp 370- 382
Excuse from criminal liability
Initial determination of whether s. 17 of Code applies
17. A person who commits an offence under compulsion by threats of immediate death or
bodily harm from a person who is present when the offence is committed is excused for
committing the offence 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, but this section does not apply where the offence that is committed is high
treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a
weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible

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abduction, hostage taking, robbery, assault with a weapon or causing bodily harm,
aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280
to 283 (abduction and detention of young persons).
Common law defence of duress is broader.
The defence has six elements to be met:
1) The accused reasonably believes someone has made threats of death or bodily
harm to the accused or someone known to the accused
2) The accused reasonably believes the threats could be carried out
3) The accused reasonably believed he or she had no safe means of escape
4) There was a close temporal connection between the threat and the threatened
harm
5) The crime committed by the accused is proportional to the threatened harm
6) The threats weren’t made in the context of the accused’s participation in a

conspiracy or association that the accused knew might produce compulsion to
commit an offence
R v Ruzic [2001] 1 SCR 687 (L- 61) imported heroin due to threats to her mother
R v Ryan 2013 SCC 3 (L-62)
R. v. Aravena 2015 ONCA 250
Entrapment (Roach pp 42-45)
Entrapment is a common law defence that applies even where the accused has
committed a crime with the required fault. It results in a stay of proceedings in cases
where a state agent has provided the accused with an opportunity to commit a crime
without either a reasonable suspicion that the accused was involved in crime or a
bona fide inquiry into a particular type of crime in a high crime area. Alternatively
even if there is a reasonable suspicion or a bona fide inquiry, entrapment will apply
and result in a stay of proceedings if the state agent induces the commission of the
crime. (Doesn’t get argued unless the accused found guilty)
- R. v. Mack, [1988] 2 S.C.R. 903 - R. v. Barnes, [1991] 1 S.C.R. 449 - Roach pp

42-45
Two possible routes to entrapment:

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1) the authorities provide a person with an opportunity to commit an offence

without acting on a reasonable suspicion that this person is already engaged in
criminal activity or pursuant to a bona fide inquiry;
2) although having such a reasonable suspicion or acting in the course of a bona

fide inquiry, they go beyond providing an opportunity and induce the commission of
an offence.
“Reasonable suspicion” – something more than mere suspicion and less than
reasonable and probable grounds
R. v. Mack, [1988] 2 SCR 903, (SCC)
R. v. Imoro, [2010] 3 SCR 62 (SCC)
• anonymous tip is not enough to amount to reasonable suspicion unless it’s a

reliable informant
• police got tip that someone is selling drugs out of apartment, COP: can you hook
me up? Accused: yeah, man!
TRIAL JUDGEà people did not have reasonable suspicion
COA; not entrapment, just asking if he was a drug dealer (police actually
witnessed drug deal)
Lecture -6 Mental Disorder and Automatism (Kentp 287-320)(L-45)
(Aram 6)
Section 16 of the Criminal Code codifies and modifies the common law defence of
insanity. To have access to this defence the accused must establish that he has a “mental
disorder” (defined in s.2 as a “disease of the mind” thus incorporating prior common
law 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. Parks (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.”
- R. v. Cooper, [1980] 1 S.C.R. 1149 - R. v. Kjeldson, [1981] 2 S.C.R. 617 - R. v.

Oommen, [1994] 2 S.C.R. 507 - Roach pp 294-309

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Mental Disorder Issues At Trial
1) Fitness to stand trial
• When does a person’s mental disability during the proceeding make it unfair
to prosecute?
2) Not Criminally Responsible on Account of a Mental Disorder (NCRMD or just

NCR)
• When does a person’s mental disability or disease of the mind, make them
unfit at the time of the offence?
3) At Sentencing
• What do we do with offenders who suffer mental disability or disease, but

not to a sufficient level to make them NCR or unfit?
Fitness to Stand Trial
Possible for person who is mentally fit at the time of the offence, to become unfit at the time of
trial or during trial
S. 672.23 (1) – Accused, Crown or Court on its own motion can inquire into mental fitness to
stand trial
Presumption of fitness unless it is proven otherwise (balance of probabilities)
Case law has held that only basis competency required – understand process and have ability
to communicate with counsel.
Section 2 of the Criminal Code:
“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any
stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in
particular, unable on account of 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;
Section 672.22 to 672.33 governs the conduct of fitness hearings
• Permanently unfit accused – S. 672.33

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• Crown has to establish a prima facie every two years to keep accused under control
of the ORB(Ont. Review Board)
• S. 672.851 – Power to entre a stay, if accused is never going to become fit, but “does
not pose a significant threat to the safety of the community”
• Person unfit to stand trial does not face trial at all
R. v. Morrissey, 2007 ONCA 770 – accused shot his ex-g/f and then shot himself in the head,
to attempt a murder/suicide
It was agreed that he had amnesia for a period around and just before the offence and
could not tell counsel what had occurred
“Testimonial competence is not a condition precedent to fitness to stand trial….The

rationale for the test for fitness is that the accused be able to participate meaningfully in
the trial so that minimum standards of trial fairness are met. Fitness to stand trial deals with
the accused's capacity to understand the nature and object of the proceedings, the possible
punishment and to communicate with counsel. The key question regarding communication with
counsel is whether the accused can seek and receive legal advice. There is no additional
requirement that an accused be able to tell defence counsel about the events immediately prior to
the offence, nor an ability to testify about those events.”
NCR Defence ( Not Criminally Responsible) ( Swin case Kent p-289)(Aram-6)( relevant
section 2,16, 627.34)
Swin (Not criminally responsible, The Crown can raise the insanity defence only after the
accused had otherwise been found guilty)
• Code s.16 modifies common law defence of “insanity” Term now used is “mental
disorder”-To have access to this defense the accused must establish that he/she suffers from
mental disorder as defined by case law; AND that it affected him or her in one or both of ways
described in s.16(1)(Test). R v Cooper ( definition of mental disorder) although it has been
modified by r. Park. Cooper stresses the significance of “appreciate”. R v Kijeldson ( sociopathic
and psychopathic). R v. Ommen ( meaning of wrong)
• Unlike Fitness – Crown can only raise after verdict
• S.2 defines mental disorder as “disease of the mind”(Aram-6).However - no Code

definition of disease of the mind
Defense of mental disorder

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S.16(1) – no person is “criminally responsible”for act committed or omission made while

suffering from mental disorder that rendered person incapable of appreciating nature and
quality of act or omission, or of knowing that it was wrong
Important: note two different branches of mental disorder defence in s 16(1)
Presumption-S.16(2) every person is presumed not to suffer from mental disorder so as to be

exempt from criminal responsibility by virtue of sub section (1)Unless contrary proved on
balance of probabilities (presumption of sanity)(see-Aram)
NCR Defence - R. v. Cooper, [1980] 1 SCR 1149 ( see L- 45)( test for mental disorder)
• Case deals with mental disorder; concept of what “appreciates” means
1. Is it a disease of the mind?
“Disease of mind” – broad, liberal legal construction, embraces any illness, disorder or
abnormal condition which impairs human mind and its functioning, eg., personality disorder
Excludes self-induced states caused by alcohol or drugs, plus transitory mental states
such as hysteria or concussion
SCC has also said it excludes conditions like sleep walking – an involuntary action (non-
insane automatism, R. v. Parks (1992), 75 CCC (3d) 287 – but there is some debate on this
issue
2. If yes, judge must ask jury whether D had disease of mind at the time act was
committed
3. Jury must determine whether D was deprived of reasonable foresight of
consequences of the act
“Appreciating the nature and quality of the act” TEST! was the accused by reason of
disease of mind deprived of the mental capacity to foresee and the physical
consequences of the act?
“appreciating nature and quality of an act or omission”

• Word “appreciate” rather than “know” used to broaden legal, medical
considerations bearing on accused’s mental state, makes it clear cognition not sole
criterion
• Code requires level of understanding of act which is more than mere

knowledge of act taking place – capacity to apprehend nature of act and its
consequences
• Lack of understanding of legal consequences OR belief you will not be

caught or punished insufficient: R. v. Abbey, SCC (1982)

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R v. Cooper – [1980] 1 SCR 1149 – SCC – Laskin C.J., Dickson, Beetz, Estey, McIntyre JJ.
– definition of mental disorder, and the significance of the concept of “appreciates” has been
modified by Parks – mental out-patient having killed mental in-patient at a hospital
Facts: accused was out-patient at psychiatric hospital, victim in-patient; accused tried to have
sex with her after a party at the hospital; but then choked her to death; defence of insanity wasn’t
raised, but evidence was called in to establish that he did not have the capacity to form the
intention to kill; expert witness said he didn’t think accused was suffering from disease of the
mind; trial judge charged jury with issue of insanity; jury found him guilty; court of appeal
dismissed appeal; appealed again to supreme court
Issues: did the accused appreciate his actions, and thus have the capacity to form the intention to
kill
Held: the appeal should be allowed
• in order for the accused to be able to appreciate the nature of his conduct, it is more than
that he know (i.e.; have a cognition) thereof
• disease of the mind is an illness, disorder or abnormal condition that impairs the mind
and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as
transitory mental states such as hysteria or concussion because those subject to a one-time mental
disturbance caused by a blow to the head or an extreme trauma because of external factors
should not be subject to the same type of detention or conditions as a person who ‘regularly’
suffer from mental disturbance (from note)
R. v. Oommen, S.C.C. (1994) – meaning of “wrong” in Code s.16; “wrong” means morally
wrong, not legally wrong: R. v. Chaulk, S.C.C. (1990) (The accused should have an insanity
defence if due to the decease of mind they are incapable to know that the act is morally wrong
though they know the act is legally wrong) (p-305)
 Ex. R. v. Landry, [1991] 1 SCR 99 - believed at the time of the murder that he
was acting on God's orders to kill Satan. Accused knew murder was a crime
but believed act was necessary to fulfill ‘his Divine mission’ (p-304)
 Oommen interprets phrase “knowing that act was wrong” – to embrace not only
intellectual ability to know right from wrong, but also ability to apply knowledge in
rational way to alleged criminal act
 S. 16(1) focuses on particular capacity of accused to understand his act was

wrong at time of committing the act
 R. v. Oommen, S.C.C. (1994), continued – “An accused should thus be exempted

from criminal liability where, at the time of the act, a mental disorder deprived him

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of the capacity for rational perception and hence rational choice about the rightness
or wrongness of the act.” ( L-page 46) (see Aram-6)
 Wrongfulness: legal or moral? – Key Distinction
 R. v. Abbey, [1982] 2 S.C.R. 24 – “lack of understanding of legal

consequence”
 R. v. Chalk, [1990] 3 SCR 1303 – “morally wrong” – on the standard of

“ordinary standards of reasonable members of society” (objective standard
again)(p305)
• R v Oommen – [1994] 2 SCR 507 – SCC – edifies about the meaning of “wrong” –
killed victim because he thought victim was conspiring with others to destroy (and kill) him
Facts: accused killed friend who was sleeping in his apartment; apparently no motive; he had
been suffering from paranoia for a number of years; at the time of the killing, his paranoia was
fixed on conspiracy to destroy him; this delusion combined with his belief that victim was one of
the conspirators, made him kill the victim to prevent victim from killing him; raised insanity
defence; expert witness testified that accused had capacity to distinguish right from wrong, but
the night of the murder deprived him of the capacity and made him believe the killing was
necessary/justified; trial judge rejected insanity and saying there was general capacity to know
right from wrong; court of appeal allowed appeal and ordered new trial; crown appealed
Issues: does general capability to know right from wrong override deprived capability at time of
offence
Held: crown’s appeal should be dismissed
• the insanity defence would not apply to a psychopath or a person following a deviant
moral code if such a 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 anyway
• it isn’t just the ability to know right from wrong, but also the ability to apply that
knowledge to the offence
• if at the time of the act, a mental disorder deprived him of that ability, then section 16(1)
may apply
 Why the Public Outrage of NCR defence?
 Rarely used – data suggests 2 out of every 1000 criminal cases
 If accused morally did not mean to commit an offence – why all the outrage?
Treatment vs. Punishment approach

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 Control of ORB – can be worse than jail sentence, for minor offences
ORB Hearings – 45 days after NCR disposition
Panel of Five (lawyers, judge’s and medical doctors)
Annual Reviews
Orders: absolute discharge, conditional discharge, detention in hospital (minimum to maximum

security)
Principles – least restrictive disposition to satisfy public safety; if accused “not a significant
threat” to public safety, should be given absolute discharge into the community
Sentencing Considerations
 Mental disorder may be a mitigating factor on sentence – Deterrence and punishment

take on less importance
 Rehabilitation takes on increased importance
 R. v. Ellis, 2013 ONCA 739, leave to appeal to SCC denied
“There is no doubt that an offender's mental illness is a factor to be taken into account in
sentencing. Where mental illness plays a role in the commission of the offence, the offender's
culpability may be diminished, punishment and deterrence may be ineffective or unnecessary
and treatment and rehabilitation of the offender may be paramount considerations” – para.
117
Automatism (aram-6)
 Accused does not satisfy actus reus requirement unless his/her act is “willed” and
“voluntary” ( r v Swaby) l-46
 Defence operates on theory that accused’s physical motions not culpable if not
voluntary or thought-directed or conscious, e.g., sleep-walking (Parks) (L-48)(K-
314)
R v. Parks – [1992] 2 SCR 871 – SCC – LaForest, L’Heureux-Dube, Gonthier JJ. –

sleepwalking murder
Facts: accused attacked parents-in-law, killing one; he drove to their house to do so; after the
incident, drove to a police station and told them what he had done; had history of deep sleep and
trouble walking up, as well as several family members suffered from sleepwalking issues;

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claimed he was sleepwalking and presented defence of automatism; was charged with first
degree murder ,and attempted murder; trial jury acquitted; judge acquitted of attempted murder;
court of appeal upheld; crown appealed
Issues: should sleepwalking be classified as non-insane automatism (and thus lead to acquittal),
or a disease of the mind (insane automatism), and thus lead to the verdict of not guilty by reason
of insanity
Held: the appeal should be dismissed
•disease of the mind is a legal concept, so medical opinion cannot be relied on blindly – a
condition likely to present recurring danger should be treated as insanity and/or a condition
stemming from the internal make-up of the accused, rather than external factors, should lead to a
finding of insanity
• the distinction between internal and external causes is blurred during sleep because one
who is awake has different perceptions than one who is asleep
• sleepwalking is not a disease of the mind, so that a person rendered unconscious by this
conditioned is entitled to a complete acquittal, rather than possible detention as a person found
not guilty by reason of insanity – though the condition might fall within the broad contours of an
illness of abnormal conditions that impairs the human mind, it will not necessarily be classified
as a disease of the mind
 R. v. Rabey (1977), 37 CCC (2d) 461 “unconscious, involuntary behavior, the

state of a person who, through capable of action, is not conscious of what he
is doing” (k-309)(P-316)
 Divided into 2 categories:
 “insane (mental disorder) automatism”, and;
 “non-insane (non-mental disorder) automatism”
Some types of Automatism that have been litigated:
 Serious blows to the head (R. v. Macklin, 2000 ABCA 293)
 Sleepwalking (R. v. Parks;(P-314) R. v. Luedecke) (P-315)
 Extreme intoxication by alcohol or drugs (R. v. Daviault, [1994] 3 SCR 63)(p-

319)(P-264-265)( self-induced intoxication cannot be defence in sexual
assault)
 Some sort of emotional collapse in the face of a shock or a major event (R. v.
Stone, R. v. Rabey) (P-316)

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insane automatism” – the real defence is mental disorder under s. 16
• Accused who is automatistic due to “disease of mind” cannot appreciate nature

and quality of act or have capacity to understand act wrong
• Verdict of NCR and subject to ORB until safety concerns are satisfactorily
alleviated – then granted absolute discharge
“non-insane automatism” - complete acquittal results, not verdict of not criminally responsible
on account of mental disorder
• Sometimes referred to colloquially as “temporary insanity”
R. v. Stone, [1999] 2 SRC 290 – Reverse onus for non-mental automatism (justified as a
constitutional infringement) (L-50)
 The defence must show on the balance of probabilities (50%+1) that non-mental
automatism is established – prior just need to raise doubt, as in Parks – where
SCC raised concern re: verdict
 ALSO, when automatism raised presumption of mental disorder
 Stone applied in R. v. Luedecke (2008, OCA) – case involving a person who

committed a sexual assault while in a sleep walking type state – experts evidence was
unchallenged (p-314) (L-53)
 Classifying automatism can involve “public safety concerns” and whether “cause
of the automatism was internal to the accused” – defined sleep walking as a
“disease of the mind”
 If an accused raises automatism defence they are deemed to be suffering

mental disorder. All these case requires supporting psychiatric collaborating
automatism state/disassociative state.
For fact pattern see-Page 318 R.V. S.H 2014
R. v. Daviault, [1994] 3 SCR 63)(p-319)(P-264-265)( self-induced intoxication cannot be

defence in sexual assault) (got so extremely drunk he blacked out and sexually assaulted
victim (extreme intoxication case) (L-57)
Facts: elderly victim confined to wheelchair, asked accused to bring some alcohol; she drank a
glass and fell asleep; when she awoke, accused appeared, and sexually assaulted her; victim later
discovered the bottle of alcohol was empty; trial judge found accused had drank the rest of the
bottle, and that he had also been drinking beforehand at a bar; he testified he recalled brining
alcohol to victim and having a glass with her, but that between then and when he woke up naked
in the victim’s bed, he had no idea what happened; expert witness said a person of the

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hypothesized blood alcohol level might suffer a blackout, lose contact with reality, and the brain
would disassociate from normal functioning; trial judge found the act had been committed as
described, but acquitted on basis of reasonable doubt as to accused possessing minimal intent
necessary to commit offence of sexual assault; court of appeal allowed crown’s appeal and
ordered verdict of guilty be entered holding that self-induced intoxication resulting in
automatism is not available as a defence to a general intent offence; accused appealed
Issues: is extreme intoxication due to self-induced intoxication resulting in automatism is

available as a defence to a general intent offence ( Cannot be a defense in sexual assault)
Held: appeal should be allowed and a new trial ordered
• the mental aspect of an offense is an integral part of crime and to eliminate it would be to
deprive the accused of fundamental justice
• the necessary mental element of the intention to commit the assault cannot be substituted
by the intention to become drunk – the voluntary act of becoming intoxicated cannot be
substituted for the voluntary action involved in sexual assault
• extreme intoxication akin to insanity or automatism describes a person so severely

intoxicated that he is incapable of forming even the minimal intent required of a general intent
offence
• a person in a state of automatism cannot perform a voluntary willed act, and someone in
an extreme state of intoxication akin to automatism must also be deprived of that ability
 the Daviault defence of extreme intoxication for general intent offences (that don’t
include an element of assault or interference with the bodily integrity of another
person)
 the Daviault defence to a violent general intent offence – but in response to this,
parliament enacted section 33.1 to give support to the rule that the fault of becoming
extremely intoxicated be substituted for the fault of committing the general intent
crime of violence, even though the accused may have acted involuntarily at the time
of the offence
 Final Non-insane/insane Automatism Defence Framework ** (as per Parks;

Stone; Fontaine)(L-54)

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Lecture – 7 The Adversarial Proceeding (The role of the Judge; the role of defence
counsel; the role of the Crown)
Class#7-Role of the crown, defence & judiciary

Dual Role of the Prosecution: 1) Strong advocates for the prosecution;-want to
forcefully enforce law and 2) “Ministers of Justice” with a duty to ensure that the criminal
justice system operates fairly to all- debate in case law how far this goes
• Crown role is limited – not purely partisan, but a public servant
Role is not to only seek a conviction - cannot adopt a purely adversarial role towards the
defence (rather to see justice is done)
Role to prosecute criminal offences delegated from the Federal Government to
provincial Attorney General
Hierarchy: Attorney General Deputy Attorney General Crown Attorney for
each Region Assistant Crown Attorney (front-line prosecutors)
if a law is struck down, it means Parliament has to go back to the drawing board
difficult for crown to wear two hats: advocate and minister of justice
Crown has obligation to make sure evidence is called and getting to the truth of the
matter

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have to have freedom to call case in manner they see fit

in most cases, the power balance is on state’s side
 How the Crown get’s authority: all criminal law is federal power and gets delegated to
frontline prosecutors through delegation agreement through province
If matters are serious and go to superior court- more experienced crown attorneys that take
the case
Role of Crown Counsel

Leading case is Boucher v. The Queen, S.C.C. 1955
“It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain
a conviction, it is to lay before a jury what the Crown considers to be credible evidence
relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal
proof of the facts is presented: it should be done firmly and pressed to its legitimate strength
but it must also be done fairly. The role of prosecutor excludes any notion of winning or
losing; his function is a matter of public duty that which in civil life there can be none
charged with greater personal responsibility. It is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
 Crown attorneys sometimes step out of line and get bombarded with wanting to win case
versus the duty to see process if done fairly
Crown council can lose sight of the fact that role is not to win the case at ALL costs
Boucher- essentially used inflammatory language and pushed own personal opinion on jury
Crown: insisted they ignore the presumption of innocence and drew conclusion that was
postulated to jury that they did it
Crown cannot personalize case and pass a personal opinion on guilt
Boucher v. The Queen, S.C.C. 1955

• Crown cannot use inflammatory language or play on prejudice of the trier of fact
• Crown cannot express personal opinion of the guilt of an accused (in this case, Crown
said he had reviewed the evidence and was clear that the accused was guilty)
• Crown cannot place themselves on the side of the complainant (Crown represents the
interest of the state, which includes all members of society, including the accused, and
public peace)
Crown cannot use inflammatory language or play on prejudice of the trier of fact
Supposed to push the case but not inflame jury with the facts of the case to ease the burden
of proof
i.e. Autopsy photos- can cause visceral reaction to say this is what this person has done and
the sight of the case can be lost
but what is the relevance of showing jury photos when defence is it wasn’t me,
someone else did it
i.e. swastika crop circle in biker gang execution case
-debate as to whether it was relevant to show jury and help prove these neo-nazis were
responsible
Crown cannot express personal opinion of the guilt of an accused
 Boucher

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 Crown cannot place themselves on the side of the complainant

 Crown isn’t victims lawyer and supposed to be above that and represent state
 Not supposed to make argument to jury and personalize it
 Cook: Crown isn't prohibited to have litigation strategy
 The Limitation on Advocacy – R. v. Bains, [1992] 1 SCR 91 – Stand Aside’s in Jury
Selection
 “In the criminal process, the Crown Attorney is not expected to seek conviction
above everything else, just like the accused attempts to avoid conviction. He or she has
special duties in his or her quality as a public officer. Additional duties are superadded to
his or her duties as representative of the prosecution side, duties that will often lead to
conflicts with the course of action that another lawyer, acting for an individual party,
would take, and that will therefore impose limits on prosecutorial conduct..”
 Depending on seriousness of charge, each other parties get to decide if they want to have
particular person on jury
 Peremptory challenges: 20 on a homicide trial (no reason given)
 Both parties, the crown and accused have same amount of challenges
 Pizzacolo- used challenges to get all female jury
 Some jurisdictions where they tried to impanel all white jury
 Bains: defence brought constitutional challenge that it wasn’t in keeping with jury
selection process to keep stand asides
 Crown: because we have special role in system
 Supreme Court: struck down provisions as unconstitutional
 Jury Vetting in Barrie: getting the jury list in advance of jury selection and set out a cover
letter saying ‘is there anyone on the jury undesirable on the Crown
 Yumnu: crown was trying to get unfair advantage but ultimately it could not be
shown it was prejudicial to jury and conviction: GAVE EFFECT TO
PROVISION AS UNCONSTITUIONAL BUT DID NOT OVERTURN
CONVICTION
 Crown counsel in making arguments to the court should not “engage in inflammatory
rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that
effectively undermine a requisite degree of fairness” - R. v. Mallory, 2007 ONCA 46
 This not in keeping with his or her professional role which is to ensure the court has all
the evidence and arguments to decide whether or not the essential elements of an offence
are made out
Mallory: this drug dealer, Stewart (had Mallory has hit man) and deceased owed Stewart
money and hired Mallory to kill drug dealer
 Horrific case: wanted to send message to pay debts as him and pregnant wife was killed
 One of longest trials in Canadian history
 Crown was criticized because they got to vested in trial: inflammatory comments
 Crown: job suggested Defence’s job in opening: defence wants to blind senses using
elephant example (they were 12 blinded elephants_
 Court critical of this type of language
 Told them defence is a trickster
Two standards for proceeding with criminal case in Ontario:

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1) Reasonable prospect of conviction (RPC) = DISCRETION

• Test is objective - higher than a "prima facie case” evidence whereby a reasonable
jury, properly instructed, could convict
• Does NOT require "a probability of conviction," that is, a conclusion that a
conviction is more likely than not.
2) In public interest for charge to be prosecuted = DISCRETION
• Resources – can play a role
• Is there are resolution short of prosecution (counseling, charitable donations,
community service hours, etc. can lead to withdraw of charges)
Crown needs to consider RPC
 less of this happens and more negotiations happen with regards to why Crown
dismisses charges
Public Interest- accused interest and expense to all of us
 intangibles: if person has addiction and caught with small amount of crack cocaine
a lot of discretion is exercised under here i.e. volunteer work and alternate forms of
punishment
 criminal record has adverse affect on accused
other factor that plays in here: whether Crown feels like its warranted to have trial –really
hard to prove
i.e. fraud 50,000 happens across international borders but how will you subpoena
witnesses
-is this worth hundred thousand dollars on taxpayers?
in Criminal court: 90% is withdraw or plea
some law firms plead a lot of people
General Role of the Defence:

1. “Fearlessly to raise every issue, advance every argument, and ask every
question, however distasteful, which he or she thinks will help his or her
client’s case” AND;
2. to endeavour “to obtain for his or her client the benefit of any and every
remedy and defence which is authorized by law” (Rules of Professional
Conduct, LSUC)
3. A note on ‘Technicalities’
• Have to act ethically AND not simply be a mouth-piece for the client
• Generally Lawyer controls the case – Not the client
completely partisan advocate for the accused
ethically obligated to get client to get results they want
rules of professional conduct
it’s a really hard thing to stay professional and take moral high ground
the temptation to compromise principles s it is distasteful
if you don’t treat every case with above principles, the 10%-20% that is actually innocent
will fall through the cracks
 Jian Ghomeshi- whether defence lawyers are beating up victims
 Defence still has to abide by the law and ethical restrictions
 A note on ‘Technicalities’

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A persons individual rights being infringed are the farthest things from a technicality – Mark
gets upset at that statement of a person walking on a technicality
exclusion is common if evidence is irrelevant
General Role of the Defence:

• Problem of the guilty client?
Presumption of innocence = there are no guilty clients until after the verdict is rendered
“Guilt” is not a moral term, but a legal term (besides you don’t have to like your clients,
just be loyal to them and advance their cause)
• Rights everyone takes for granted were built on the unpopular defence of unpopular
people = PROFESSIONALISM
• never defending ‘guilty’
• guilt is a legal term even the allegation of impropriety can affect your license and
standing with the licensing committee
• rights everyone takes for granted – profesionalism
Two decisions within the absolute control of the client:
1) Whether to plead guilty or not guilty
2) Whether or not to testify
• Guilty pleas must be unequivocal, voluntary and informed and include the
admission of facts that make out the essential elements of the offence: R. v. D.M.G.
2011 ONCA 343- discusses whats required for a voluntary please
No “non-consent plea” like in the United States
whether to plead guilty or not- can be grounds for incompetence on lawyers part before
board
can’t exert undue pressure on a client to testify or not
R. v. D.M.G. 2011 ONCA 343- discusses what is required for a voluntary please
must be willing to acknowledge responsibility
 informed is where a lot of cases breakdown
 Pleading guilty puts higher onus on lawyer as pleading guilty means more work on
lawyers part
 Hard to defend yourself as counsel if you don’t document, advise properly
Withdrawing from a case - R. v. Cunningham 2010 SCC 10
• Court is obliged to permit withdrawal for ethical reasons
• Withdrawal for non-payment of fees will only be refused where it would cause
serious harm to the administration of justice
• Withdraw should always be timely – so as to not prejudice the client
• When is a defence lawyer allowed to fire a client
• Also have reciprocal obligation to the court as you cannot dump a client for
financial reasons the day before their trial is about to start
• R. v. Cunningham 2010 SCC 10
• Lawyer in Yukon who wanted to act for client but week before client the Yukon
legal aid reassessed financial status of client and her position was I am not doing
this trial if I am not getting paid
• Yukon Provincial Court: you can’t withdraw
• B.C. Court of Appeal- can withdraw
• SC- you shouldn't’t be able to withdraw

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• 2 reasons for withdrawal Ethical reasons to withdraw and withdrawal non-

payment of fees
• If non-participatory client- ethical reason
• Client has done something we know about- ethical reason
• Ethical reasons: blank ticket to withdraw
• Fees: court expects lawyers to figure out fee schedule with client well in advance of time
• Retainer is not greed, its to ensure there are no scheduling conflicts or delays
• Courts will not let you withdraw if it impacts accused’s rights
Conflicts of interest:
 Defence counsel owe continuing duty of loyalty to past clients and cannot act against
their interests
 Joint retainers between co-accused are allowed but only where no realistic prospect of
conflict exists – this is very dangerous
Hard to predict where a case is going or where the evidence may lead
 Leading case R. v. Widdifield (1995), 100 C.C.C. (3d) 225 (Ont. C.A.) (sub nom – R.
v. W.W.)
 If you give informal legal advice for example, there can be an issue as a client-solicitor
relationship could have been said to be formed
 Ex. You represent person charged with drug possession and succeeds in not guilty and he
refers fellow drug dealers, you cannot take if you are using the defence that implicates
your other client
 Joint retainer- two people get charged with same offence and you represent them both
 Widdifield- husband and wife accused of both sexually assaulting niece
Represents both but this causes real concern as if you represent two clients that appear
unified at start but mid-way through trial changes tone and says yes, my husband committed
crime and threatened me not to tell
 Marks Advice: don’t end up situation where you have to represent both clients
R. v. Widdifield (1995), 100 C.C.C. (3d) 225 (Ont. C.A.) (sub nom – R. v. W.W.)
 Effective assistance required “undivided loyalty”, i.e. “the lawyer must champion the
accused's cause without regard to counsel’s personal interests or the interests of anyone
else” – this includes co-accused
1) an actual conflict of interest between the respective interests represented by counsel
2) as a result of that conflict, some impairment of counsel's ability to represent

effectively the interests of the appellant.
 the clients ran a common defence and do not turn on each other
 Then when they get convicted, it gets turned on the lawyer even though at the beginning
there was no straying
 COA: did not find the lawyer did not do anything ineffective
 Court said if you do allege a conflict, you have to do two things:
1) an actual conflict of interest between the respective interests represented by counsel
2) as a result of that conflict, some impairment of counsel's ability to represent effectively

the interests of the appellant.

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Role of Judiciary
Independent branch of Government – Judicial Branch (S. 96 of the Constitution Act)
1) Rule of Law – we are ruled by law, not individuals
2) R. v. Zentner, 2012 ABCA 332 – limitated by hierarcy of the court and
binding precedent (see epiologe)
“A judge’s duty is to obey the law and apply all of it, not just the parts of it which he or she
likes. What he or she wishes were the law, is not what a judge is authorized to impose on the
parties or the public. Neither appellate courts nor the two Houses of Parliament are mere
debating societies. Their words contain law which commands the judge. For courts to ignore
that would remove a corner of our society, our constitution, the rule of law, and democracy.”
R. v. Jafarian, 2014 ONCA 9 – “the trial judge erred in principle in using the sentencing of
the appellant as an opportunity to send a message that sentences for this kind of offences
were “ridiculously low” because of the direction of this court. The trial judge is obliged to
accept the direction of this court and should have concentrated on the specifics of the offence
and the circumstances of the offender.”
 Judicial Independence (decision-making, tenure and salary) – appointed, not elected as in
the U.S. (to avoid influence peddling)
 Judge’s Role: Interpret the law and provide impartial decisions (judge’s do not live in an
ivory tower – human factors matter)
 Judge’s have life experience – but are supposed to set it aside personal opinions & more
importantly biases
 Query – how much life experience is too much? Or too little?
 “No one should be a judge who hasn't been thrown out of a beer parlour” – Tom
Hurley
Judicial Role Post-Charter

 ‘Judicial Activism’ vs. Check on Government Power
 Parliamentary supremacy and concept of constitutional dialogue (example –
prostitution challenge, Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101)
 C-36, The Protection of Communities and Exploited Persons Act (buying sex,
profiting from the sale of sex, and third-party advertising).
 “Right to Die” – Carter v. Canada (Attorney General), 2015 SCC 5 (struck down
assisted suicide provision)
 The Justice Nadon Controversy
 SCC decision and fall-out – comments from the Minister of Justice that Chief Justice
attempted to influence the appointment process
 Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21
 Justice Nadon not qualified for appointment because not a member of Quebec bar and not
member of Superior Court in the Province of Quebec
 SCC confirmed Federal Government Cannot Unilaterally change court composition
 Case Discussion- R v AT 2015 ONCA 65

Testimony: Bible references was opened by defence
Hard to say someone cant go in area when defence opened door to religious angle

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Crown in questioning accused, used Corinthians and Bible passages that he thinks he can kill
his wife because she is acting immorally
Mark: questioning is borderline but defence opening door to use religion makes it hard for
Crown to close it
May be prejudicial more then probative but has some bearing on an issue at trial
Duality of language in closing arguments makes it inflammatory and memorable to jury
“jesus-nut”- this will resonate with jury more so than evidence or credibility
Mark: final analogy sent it into improper territory but the Nazi and Terrorism references went
to far but the Jones and cultish references were okay
Les concerning if expert was brought to show similarities between references and case
1/10 inflammatory Crown arguments are successful
Court are not supposed to interfere with prosecutorial discretion( Important)

Liran -76
 Krieger v. Law Society of Alberta – [2002] SCJ 45 – SCC – crown prosecutor not disclosing result of
DNA test
 Facts: K was assigned to prosecute an accused charged with murder; prior to the preliminary
inquiry, he received the results of DNA test that implicated a person different than the accused;
the told the accused’s counsel that the results of the test would not be available in time for the
preliminary inquiry; the defence found out about the test results at the preliminary inquiry; K was
removed from the case and the accused complained to the law society; K said the law society had
no jurisdiction over a crown prosecutor; K’s application was dismissed by the Court of the Queen’s
Bench and it found him guilty; the court of appeal overturned the decision; appeal to supreme
court
 Issues: whether law society has jurisdiction over crown prosecutor
 Held: the appeal should be allowed and the trial judgement restored
 the federal government has jurisdiction over criminal law and procedure and the provinces have
jurisdiction over the administration of justice, including the regulation of lawyers and reviews of
alleged breaches of ethics
 the rules of the law society are not intended to interfere with the proper exercise of prosecutors
and their prosecutorial discretion
 a decision made by the crown prosecutor within the authority delegated to him is not subject to
interference; however, crown prosecutors are subject to the law society’s code of professional
ethics and conduct since they are members of the law society, and in the case of professional
misconduct (which is distinct from prosecutorial discretion), the law society can step in and
regulate

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Class#8- First party disclosure and third party records
Disclosure ( Penny-7) (Aram-8)
Crown Disclosure Duty
R. v. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)
The right to make full answer and defence is a principle of fundamental justice protected by s. 7
and it includes a right to disclosure. The Crown is required to disclose all “relevant information”
in its possession to the defence. “Relevance” is a low threshold, if something is logically
probative of a fact in issue then it is relevant and must be disclosed. Right is triggered by a
defence request, but the Crown must apprise unrepresented accused persons of the right and
courts must not accept a plea from such an individual without inquiring to ensure that accused
knows of right.
Timing - disclosure should be provided before an accused is called on to elect his or her mode of
trial or to plea.

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Form - should include all witness statements, if no formal statements given, police notes of
statements or a “will say” statement setting out name of witness and anticipated evidence.
Withholding disclosure - prosecutors are entitled to withhold or delay disclosure in certain

limited circumstances:
• need not disclose what is clearly irrelevant;
• need not disclose privileged information, i.e. informant’s identity etc.
• may delay disclosure to protect an ongoing investigation;
The decision to either withhold or delay must, however, be disclosed - so that the defence may
seek review. It is the trial judge’s function to decide such disputes.
Defence Disclosure and Exceptions
Not mandated by Stinchcombe, which maintained that defence is entitled to take entirely partisan
and adversarial approach toward Crown.
1. Alibi Disclosure - timely disclosure of particulars of any alibi must be disclosed,

otherwise you risk an adverse inference by trier of fact; R. v. Cleghorn, [1995] 3 SCR
175, 1995 CanLII 63 (SCC)
2. Notice of Charter Application - such notice is mandated by court rules, including a

need to specify bases and grounds for application;
3. Expert Witnesses Notice - under s. 657.3, defence must give 30 days advance notice of
expert’s name, area of expertise and qualifications but a report or will say is only
necessary “not later than the close of the case for the prosecution” .
Accessing Third Party Records ( Financial , telephone, therapeutic)
Where the defence seeks access to records in which a third-party, i.e. complainant etc. has a
reasonable expectation of privacy, the right to make full answer and defence collides with the
right to privacy.
In R. v. O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), the majority set down a
Number of factors to be weighed by a court in balancing the competing interests on such an

application. They established a two-step process:
1. If the defence shows that the records are likely relevant, they’re produced to the trial
judge for review.
2. The trial judge then weighs the salutary and deleterious effects of disclosure of all or part
of the records to the defence

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Note- O’Connor set out the test, it applies for all third party records other than the sexual assault.
Accessing Third Party Records
Parliament eventually responded with Bill C-46, which introduced section 278.1 to 278.9. This
legislated scheme replaced O’Connor’s common-law scheme with respect to private records
relating to a complainant or witness where an accused is charged with one of the offences listed in
s. 278.2 (ie. crimes that violate a victim’s sexual integrity).
With such offences, the scheme in 278.1 to 278.9 controls. With all others, O’Connor
controls
 these records are usually not in the hands of the crown, but rather with a psychiatrist,
doctor, counsellor, so it is actually the production (and not the disclosure) of these
documents that is in question – third parties have no obligation to assist the defence,
and the records are not part of the case (of the crown) that the accused has to meet
 the onus is on the accused to persuade the judge to examine the third party records;
then, if he decides to do so, having looked at the records, the judge must decide whether
to release the same, or some parts thereof, to the accused
 the rights of the accused to make full answer and defence have to be weighed against
the third party’s privacy interest
 section 278.2(2) applies these principles to such counselling records in the hands of the
crown as well
The Crown has an obligation to seek out relevant records in the hands of other Crown
agencies or police forces: R. v. McNeil, [2009] 1 SCR 66, 2009 SCC 3 (CanLII)
 R v. McNeil – [2009] SCC 3 – SCC – disclosure of witness’s (arresting officer) misconduct documents
 Facts: accused was convicted on multiple drug charges; arresting officer was the main witness;
before sentencing, accused found out arresting officer had been involved in drug-related
misconduct, had internal hearings with the department, as well as criminal charges; at preliminary
hearing at the court of appeal, accused sought production of all documents relating to arresting
officer’s misconduct saying he needed it to assist him in preparing an application to introduce fresh
evidence on his appeal; court of appeal ordered the documents to be produced; subsequently, the
arresting officer pleaded guilty to one of the charges that were brought against him, and that
evidence was admitted on the accused’s appeal; the accused’s convictions were set aside and the
crown did not re-prosecute him; the issue of the production of the evidence was rendered moot and
the accused withdrew his participation in the appeal; the court, nevertheless, heard the appeal
despite its mootness
 Issues: do the rules governing third party disclosure apply
 Held: the appeal is allowed and the order in the court below is set aside
 under the Stinchcombe regime, the crown’s disclosure obligation extends only to material relating
to the accused’s case in the possession or control of the crown

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 there is also a necessary and collar obligation on the police to disclose to the crown all the material
it has pertaining to its investigation of the accused – and the police is, although separate from the
crown, an extension of the crown, and as such not a third party from whom the records are sought
 records relating to misconduct by the officers involved in the investigation of the accused,
misconduct that is either related to the accused’s investigation, or can reasonably impact the case
against the accused, falls within the scope of first party disclosure that the crown is under
 (R v. O’Connor) with third party disclosure issues, the person seeking production of the documents
in the possession of a third party has to satisfy the court that the documents are likely relevant to the
proceedings; and if the court agrees, once those documents are produced for inspection by the court,
the court can determine whether production of those documents should be provided for the party
applying
 once the court has inspected the third party records and ascertained that they are relevant to the
accused’s case (that they pertain to an issue at trial), then the Stinchcombe regime applies, of
determining and balancing the interest of whether the disclosure for the purpose of making full
answer and defence will outweigh the privacy interest held by the third party in the material
Police records not part of the investigative file are third party records at least under the
s.278.1 regime: R. v. Quesnelle, [2014] 2 SCR 390, 2014 SCC 46 (CanLII)
Elections, Preliminary Inquiries & Preferring the Indictment (Penny 478-503)
Entitlement ( unless the accused want the preliminary inquiry)
• 469 offences - those charged with s. 469 offences must have a preliminary inquiry followed
by a trial by judge and jury (ss. 536(2), 469, 471) unless the preliminary is waived on
consent of parties (s. 549);
• indictable offences - those charged with indictable offences, other than 553, are entitled to
a preliminary inquiry, including hybrid offences where the Crown elects to proceed by
indictment (s. 536(2));
• 553 offences - those charged with s. 553 (absolute jurisdiction) offences are not entitled to
a preliminary inquiry, they must have a trial in provincial court (but see s. 555(2));
(552 (2)- Discovery preliminary hearing. Direct indictment-AG ia authorized to direct

indictment without preliminary hearing if they find any proceeding time consuming,
expensive. (577a)
• summary offences - no entitlement, trial in provincial court (s. 536(2));
Recent Amendments
1) For a preliminary inquiry to occur the accused or the Crown must now make a formal
request, per the rules of the court (s. 536(4));

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2) The requesting party must provide a statement to the court and the other party setting out
the issues on which the requesting party wants evidence to be given (536.3);
3) Parties can agree to limit the hearing to specific issues, and such agreement will be filed
with the court (ss. 536.4(2) & 536.5);
4) Credible and trustworthy evidence in written form (i.e. written reports etc.) can be admitted
(s. 540(7)), with reasonable notice (s. 540(8)), but the opposing party may request that the
court require the witness to appear for questioning (s. 540(9)).
Preferring the indictment
Waiver of preliminary inquiry or committal will send case to Superior Court
Information is replaced by Indictment which then serves as the charging document (see s. 566(1))
Crown drafts Indictment under authority of s. 574(1), can include those offences that accused was
committed to stand trial on (a) and any other charges founded on the facts disclosed by the
evidence at the preliminary inquiry (b)
Attorney General may personally prefer a “direct” Indictment, sending an accused to trial in
Superior Court without a preliminary inquiry (s. 577(a))
Test for Committal (During Preliminary H. Same is applicable for extradition case also.
Very similar to air of reality defense(p-495) 9.94 (L-100)
The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the
same as that asked by a trial judge considering a defence motion for a directed verdict or an
extradition judge considering whether to commit an individual for extradition, namely:
• whether or not there is any evidence upon which a reasonable jury properly
instructed could return a verdict of guilty: United States of America v.
Shephard, [1977] 2 SCR 1067, 1976 CanLII 8 (SCC)
Section 548 directs the judge at the preliminary inquiry to commit the accused for trial on any
indictable offence if the evidence in support of that charge is sufficient, and that if the evidence is
not sufficient, then the accused be discharged in respect of any charge
• the test of sufficiency is the air of reality test (i.e.; whether a reasonable jury, properly
instructed, could find the charge proved beyond a reasonable doubt – R v. Shephard) – it is not for
the judge at this point to assess the weight or credibility of the evidence, but rather that if the
evidence were to be believed by the judge or jury at trial, would it be sufficient

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• if it occurred in respect to the same events (i.e.; in the course of the same transaction), then
the accused can also be committed to stand trial for an offence or charge not mentioned in the
initial information
Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in
which there is admissible evidence which could, if it were believed, result in a conviction":
Shephard.
The Test In Application (circumstantial evidence) p-496-9.95
The nature of the judge's task, however, varies according to the type of evidence that the Crown has
advanced.
• Where the Crown's case is based entirely on direct evidence, the preliminary hearing
judge's task is straightforward.
• If there is direct evidence as to every element of the offence, the accused must be
committed to trial.
• Where the Crown adduces direct evidence on all the elements of the offence, the
case must proceed to trial, regardless of the existence of defence evidence, as by
definition the only conclusion that needs to be reached is whether the evidence is
true.
• It is ultimately for the jury to say whether and how far the evidence is to be
believed.
However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge
must engage in a limited weighing of the whole of the evidence (i.e., including any defence
evidence) to determine whether a reasonable jury properly instructed could return a verdict of
guilty. R.v. Arcuri, [2001] 2 SCR 828, 2001 SCC 54 (CanLII)( Important for exam)9.96
 R v. Arcuri – [2001] SCJ 52 – SCC

 Facts: accused was charged with first degree under; at the preliminary inquiry, the crown’s case
was entirely circumstantial; and the accused called two witnesses whose testimony was
exculpatory; the judge rejected the accused’s contention that the must weight he evidence; instead,
he viewed the evidence as a whole and committed the accused to trial for second degree murder; the
accused filed a certiorari application that was dismissed; the court of appeal affirmed the dismissal;
 Issues: did the preliminary inquiry judge, in determining whether the evidence was sufficient to
commit the accused to trial, err in refusing to weigh the prosecution’s evidence against the
accused’s evidence
 Held: the appeal should be dismissed
 the justice should undertake a limited weighing of the evidence, including any defence evidence, to
determine whether a reasonable trier of fact could return a finding of guilt; as such, he is not
entitled to draw any inference from the evidence or assess the reliability or credibility thereof
 under section 548, the judge is required to question whether there is any evidence upon which a
reasonable jury properly instructed could return a verdict of guilty

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 where the evidence of the crown is circumstantial, then there is limited weighing of the evidence
that the judge needs to engage in; however, he does not draw inferences from the facts presented or
assess credibility thereof – instead, his task is to determine whether, if the crown’s evidence is
believed, would it be reasonable for a properly instructed jury to infer guilt
 i.e.; it is an assessment of the reasonableness of the inferences to be drawn from the circumstantial
evidence
 the judge in this case did not err in arriving at the result to commit the accused to trial
In performing the task of limited weighing, the preliminary inquiry judge does not draw
inferences from facts. Nor does he assess credibility. Rather, the judge's task is to determine
whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury
to infer guilt.
Task of "limited weighing" never requires consideration of the inherent reliability of the evidence
itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be
drawn from the circumstantial evidence.
Appeal p-498-9.102
There is no statutory right of appeal from a decision made by a preliminary inquiry justice.
The Crown and defence can only challenge such a decision by bringing an application for
certiorari in the Superior Court of Justice.
Review for certiorari from a preliminary inquiry is restricted to jurisdictional errors.
On an application to quash a committal this includes committing an accused for trial in the absence
of any evidence of a charge at all.
On a Crown review of a discharge, it includes failing to consider all of the evidence R. v.

Deschamplain, [2004] 3 SCR 601, 2004 SCC 76 (CanLII)
Evidentiary rulings are unreviewable even if a clear legal error was made
A third party can in some circumstances bring a certiorari from a preliminary inquiry
decision for non-jurisdictional legal error. The SCC has allowed this in three situations:
1) A review of a publication ban (Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR

835, 1994 CanLII 39 (SCC)
2) A lawyer reviewing a decision refusing to allow her to withdraw (R. v. Cunningham,

[2010] 1 SCR 331, 2010 SCC 10 (CanLII)
3) A witness reviewing a decision requiring her to remove a niqab (R. v. N.S., [2012] 3 SCR
726, 2012 SCC 72 (CanLII)

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When the Crown proceed by indictment. Most offences are now hybrid offence due to which jury
trial is decreasing.
The Jury & Its Selection (Penny_-15)
The Charter
11(f) Any person charged with an offence has the right …except in the case of an offence under
military law tried before a military tribunal, to the benefit of trial by jury where the maximum
punishment for the offence is imprisonment for five years or a more severe punishment; Few jury
trials today - most common hybrid offences can now be prosecuted summarily with a potential
maximum punishment of18months imprisonment (i.e. assault causing bodily harm, sexual assault)
General Selection Procedure ( don’t have to agree on the fact. Rather they depend on the
verdict)
Twelve people selected to try the case, summonsed in accordance with the provincial Jury Act.
(Can reduce to 10, but no fewer, without occasioning a mistrial.)
A pool of prospective jurors are summonsed and from this group 12jurors are selected. Procedure
in place to ensure randomness of those called forward (ie. names go into a drum and chosen by
clerk).
Jury collectively is the “trier of fact” while judge is “trier of law”. judge tells jury what the law is,
jury decides what the facts are.
All 12 jurors must agree on the verdict with respect to each count. If they don’t, then there will be
a mistrial on that count and the person may be retried (subject to R. v. Keyowski, [1988] 1 SCR
657, 1988 CanLII 74 (SCC)
Peremptory Challenges
Each side gets an equal number of peremptory challenges (s. 634). P challenges allow the accused
or the crown to dismiss a potential juror without explanation, however they are limited in number.
It allows a party to challenge without showing any cause at all.
If the jury pool is exhausted, talesmen can be sought (s. 642)
Crown is not entitled to investigate prospective jurors beyond confirming Eligibility, and must
disclose any relevant information in obtains. R. V. Yumnu, [2012] 3 SCR 777, 2012 SCC 73
(CanLII)( L-107)
Jury deliberations are secret and disclosure of what takes place in the jury room is a criminal
offence: s. 649 (R. v. Pan;(leading case) R. v. Sawyer, [2001] 2 SCR 344, 2001 SCC 42(CanLII)

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(a Supreme Court of Canada decision on the criminal jury trial system). The Court held that rules
against admitting evidence indicating the decision-making process of a jury were
constitutional. SC considered the origins of the common law jury secrecy rule. It prohibits the
court from receiving any evidence on how the jury came to their decision. However, this does not
include extrinsic evidence to the deliberation process. So evidence of outside forces attempting to
influence the jury is admissible, but testimony from the jury of whether they were influenced is not
admissible.
SC found that the secrecy rule and section 649 of the Code did not violate section 7. The rules are
to help "ensure that jurors feel comfortable freely expressing their views in the jury room and that
jurors who hold minority viewpoints do not feel pressured to retreat from their opinions because of
possible negative repercussions associated with the disclosure of their positions." Evidence of jury
tampering would have a greater effect to undermine an acquittal than a conviction. The erosion of
the secrecy of the jury would have a negative impact on the ability of a jury to decide and would
affect individual's right to jury trial under section 11(f) of the Charter. It is required under the
principles of fundamental justice to have an impartial jury.
SC then examines the rules within the context of the Criminal Code and found that other provisions
of the Code compliment the functioning of the rules to ensure that juries are free of biases.
In conclusion, she found that the Code provision and the common law rule were valid and did not
violate the Charter, but that a comprehensive study of the jury trial process could be revealing on
whether there is any need for a change.
Challenges for Cause
• Each side can challenge an unlimited number of prospective jurors based on the fact
that they are “not indifferent between the Queen and the Accused” (s. 638(b)).
• Language suggests an automatic right, but Supreme Court has read in the need to
show a realistic potential for partiality before a challenge for cause will be
permitted.
• Historically, challenges for cause were restricted to cases involving sustained
negative pre-trial publicity.
• Attempts to challenge prospective jurors for cause based on racial prejudice
• long met with resistance from judiciary
• R. v. Parks, 1993 CanLII 3383 (ON CA)
 R. v. Williams, [1998] 1 SCR 1128, 1998 CanLII 782 (SCC)( Imp) – have all led to
the findings that now allow for challenge for cause by an accused belonging to any visible
minority without further empirical evidence of the bias (L-105)
The Charge to the jury ( Not for exam)

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The SCC in R. v. Daley, [2007] 3 SCR 523, 2007 SCC 53 (CanLII) identified 8 components of
the jury charge.
1. instruction on the relevant legal issues, including the charges faced by the accused;
2. an explanation of the theories of each side;
3. a review of the salient facts which support the theories and case of each side;
4. a review of the evidence relating to the law;
5. a direction informing the jury they are the masters of the facts and it is for them to make the
factual determinations;
6. instruction about the burden of proof and presumption of innocence;
7. the possible verdicts open to the jury; and
8. the requirements of unanimity for reaching a verdict.
Class- 9 -Police Powers (Penny-2) (L-81-85)
Power to arrest and detain

s. 495(1) A peace officer may arrest without warrant:
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes
has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence (summary); or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or
committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial
jurisdiction in which the person is found.
• Police require a Feeney(in the case of hot pursuit, there is a common law exception to
warrantless entries; and it is justifiable even under the charter R v. Feeny) ( Page 131)
warrant to carry out an arrest in a dwelling house: s. 529.3 of the Criminal Code

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The police to enter a private dwelling house the police need either a warrant or there must be
“some exigent circumstances”
Some examples of “exigent circumstances”(page-132)
Hot pursuit(page 132) (R. v. Macooh, [1993] 2 S.C.R. 802) (Police -- Powers of arrest --
Provincial offences -- Peace officer entering private home without a warrant to arrest accused for
a provincial offence -- Common law traditionally recognizing hot pursuit exception to principle
of sanctity of home -- Whether exception should be extended to arrests for provincial offences --
Whether entry by peace officer lawful.)
Fact-A police officer observed the accused going through a stop sign and began to follow him
with the emergency signals on the cruiser activated. The accused accelerated, drove through two
more stop signs and then stopped at an apartment parking lot. The officer, who recognized him,
saw the accused get out of his car and run toward the back door of an apartment. He yelled at
him to stop running and come back, but the accused entered the apartment. The police officer
called out through the door but received no answer. He identified himself as being a member of
the RCMP and, still receiving no answer, entered the apartment. He found the accused in bed
and told him he was under arrest for failure to stop for a police officer. The accused repeatedly
refused to follow the officer. An altercation took place, during which the officer could observe
the usual signs of impairment. The accused was arrested. He refused a demand for a breath
sample and was charged with impaired driving, failing to stop for a peace officer, failing to
submit to a breathalyser test and assaulting a peace officer with intent to resist arrest.
The trial judge held that the officer's entry into the dwelling house in hot pursuit of a person
suspected of a breach of summary legislation contained in a provincial enactment, as opposed to
an indictable offence, was unlawful, and that the arrest of the person within the premises was
therefore also unlawful. The resisting arrest charge was accordingly dismissed. As the evidence
crucial to the impaired driving and breathalyser charges was gathered during the unlawful arrest,
the trial judge refused to admit it on the basis that the administration of justice would be brought
into disrepute and the accused was acquitted on these charges as well. The summary conviction
appeal judge upheld the acquittals. The Court of Appeal found that the right of arrest on
private property was not limited to indictable offences and that the arrest was therefore
lawful. It set aside the acquittals and entered convictions.
Held: The appeal should be dismissed.
Entry is needed to prevent imminent bodily harm
911 calls originating from dwelling (R. v. Godoy [1999] 1 SCR 311)( Police can enter
without warrant according to Water field doctrine if it has reasonable ground to believe)

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To prevent the loss or destruction of evidence
Facts-The police had received a distress 911 call from Godoy's apartment which hung up. When
the police came to check it out, Godoy would not let them in, but they forced their way in and
investigated. They found his wife crying with a black eye, and she said that Godoy had hit her.
The officers arrested Godoy, but in a struggle one of the officers' fingers was broken. Godoy was
charged with assaulting his wife, but that charge was dropped after his wife testified that he had
not hit her, and with assaulting a police officer with intent of resisting arrest. Godoy was
acquitted at trial, but the Court of Appeal ordered a new trial, which Godoy appealed to the
Supreme Court.
Issue-Did the police officers have the authority to enter into the apartment?
Decision Appeal dismissed.
Reasons-If the police officers did not have the authority to enter the apartment, then they could
not have made a lawful arrest and the charge must fall. Godoy says that the police did not have
reasonable grounds to enter the apartment. He is charged under s.270(1)(a), which says that the
police officer must be engaged in the execution of his duty for the charge to stand. Godoy argues
that because the officer was not making a lawful arrest, he was not acting within his duty.
Lamer, writing for a unanimous court, agrees that there is a prima facie case for the police
conduct to be interfering with Godoy's person and property, and therefore turns to the two-part
Waterfield test to decide if the police action was justified:
1. does the conduct fall within the general scope of any duty imposed by
statutes or in common law?
2. does the conduct, albeit within the scope of duty, involve unjustifiable use
of powers?
To determine if this action falls within the officers' duties, he looks to the Police Services Act],
which states that all duties recognized at common law are legitimate. An analysis of the case
law discovers that the duties include the "preservation of peace, prevention of crime, and
protection of life and property". Lamer holds that this conduct fell under the duty to protect
life, as they received a distress call and heard a woman crying – therefore they had a duty to
enter the premises and ensure that everything was alright. After this has been determined it is
clear that the officers' conduct was not an unjustifiable use of powers, as they just entered the
premises to make sure that the woman was not in serious danger. Once they entered the
apartment and found the injured woman, they had the right to arrest Godoy under s.495(1)
(a). They were using reasonable powers to protect life when they entered and discovered
this, so the arrest was legitimate.
Ratio

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• To determine if an officer's conduct falls within his duty you use the Waterfield test,
which asks:
1. was the officer was acting within his duties; and
2. if he was, did he use unreasonable force in enforcing his duty?
The police generally have a duty to protect life, prevent crime, and preserve the peace
If no exception applies, onus shifts to the Crown to establish on a balance of probabilities

that the arrest in the dwelling house was legal and constitutional and that warrantless entry
was pursuant to some constitutionally valid exception (For Example, consent of the owner)
Investigative detention
Police have the common law power to briefly detain suspects for investigative purposes on
standard of “reasonable suspicion”: R. v. Mann SCC 2004(a person can be briefly detained if
there are reasonable grounds to suspect that he is connected to a particular crime and the
detention is reasonably necessary)
• Individual must be connected to a “particular crime” and detention must be “necessary”
• This is to avoid detentions solely for the purpose of random questioning – detained
individuals does not have to answer police officer’s questions
• That said, the police are able to question anyone, provided they are not “detaining
them”
• Police may carry out a limited search incident to investigative detention if they have
reasonable grounds to believe there are officer safety concerns: not to search for evidence.
( should be complied with s. 10 (a) (b) of the Charter)
R. v. Mann SCC 2004
Facts: Police officers got a dispatch about B&E. Went to seen saw man that fit description nearby.
Asked him questions/he agreed to pat down search/found weed and pills/charged with possession for the
purpose of trafficking
Issue(s): 1. Is there a common police power to detain an individual person for the purpose of
investigation?
2. Is a warrantless search incident to investigative detention in violation of s.8?
Ratio: 1. A officer must have reasonable and probable grounds to detain someone (articulable cause).
2. A police officer may engage in a pat down search if he has reasonable grounds to believe that
his or someone else’s safety is at risk. It must be conducted in a reasonable manner.
Analysis:

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FIRST ISSUE
Waterfield Test – Used in Deadman
1. Does it fall within scope of police?
→ a. Police Conduct.
→ b. Whether an invasion of individual rights is necessary in order to perform their duty.
2. If so, Was use of power unjustified? (Was it a justified use of police power associated with the duty?).
→ a. If the detaining officer had some articulable cause (R v. Simpson (1993)) – Must have articulable
cause.
⇒ i. Reasonable grounds to suspect was equivalent to articulable cause standard - “reasonable grounds to
detain” .
⇒ ii. Must be some nexus between this person and the offence – particularize suspicion.
⇒ iii. Was the detention reasonable necessary in the detention? (Must have this to meet the 2nd prong of
the test).
→ 1. Extent the interference with individual liberty is necessary to perform the officers duty
→ 2. The liberty interfered with
→ 3. Nature and extent of the interference
SECOND ISSUE
There is a distinction between search incidental to arrest and search incidental to an investigative
detention.
A search as part of an investigative detention is appropriate if: (limit on search) -Collin:
→ 1. The officer has reasonable grounds to believe that his safety or that of others is at risk.
→ 2. The search must be reasonably necessary in the totality of the circumstances.
→ 3. The search must be confined in scope to the location of weapons or other threats to safety
Holding: The officer had reasonable grounds to detain Mann.
The seizure of the weed was unlawful.
Comments: When trying to determine if a police officer acted within their common law power use the
Waterfield Test
Detention(Penny-76)
S. 9 of the Charter: “Everyone has the right not to be arbitrarily detained or imprisoned.”
• Imprisoned is the easiest classification, “detention” is a bit more difficult to determine –

physical or psychological detention

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• the police physically take control of their movements; or,
• If they are legally required to comply with a police demand (“psychological detention
with legal compulsion”); or,
• If a “reasonable person” would understand that they were required to comply

(“psychological detention without legal compulsion”): Grant (2009) 2 SCR 353, Suberu (2009)
2 SCR 460
Note- Under s.10 of the charter when someone is detained police has two obligations under
section 10 (a) and 10 (b). This is why detention should be carefully observed. Detention
limits the power of the police.
R. v. Grant SCC 2009 – Psychological Detention
• Suspension of the individual’s liberty interest by a significant “physical” or

“psychological restraint”
• Psychological detention is established either where the individual has a legal obligation to
comply with the restrictive request or demand (legal compulsion), or a reasonable person would
conclude by reason of the state conduct that he or she had no choice but to comply (without legal
compulsion)
Examples of Legal Compulsion:
• Request to make a breath demand
• Police stop a motor vehicle
R. v. Grant SCC 2009 – Psychological Detention-At trial, Grant alleged violations of his rights
under ss. 8, 9 and 10(b) of the Charter. The trial judge found no Charter breach and admitted the
firearm. The Court of Appeal concluded that a detention had crystallized during the conversation
with the officer before the accused made his incriminating statements and that the detention was
arbitrary and in breach of s.9 of the Charter, however, it held that the gun should be admitted into
evidence under s.24(2).
Issue
What constitutes detention?
Were Grant's rights under ss. 8, 9 and 10(b) of the Charter violated?
If so, is the admission of the gun permissible under s.24(2)?
Decision

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Appeal allowed on the trafficking charge, acquittal entered. Appeal dismissed on all other
counts.
Reasons-McLachlin and Charron, writing for the majority, found that existing jurisprudence on
detention was unclear and thus decided to lay out a new framework. They hold that the correct
test for detention is whether a reasonable person, placed in the position of the accused, would
conclude that their right to choose how to act has been removed by the police, given their
conduct.
Applying this test to the case at bar, they hold that Grant was detained within the meaning of ss.9
and 10(b) of the Charter before being asked the questions that led him to disclose his possession
of the firearm. Asking him to keep his hands in front of him likely was not sufficient in and of
itself, but a holistic look, including the two plainclothes officers taking up tactical positions,
would lead a reasonable person to conclude they were being detained. They also note the
inherent power imbalance in the situation given Grant's age and inexperience.
They also lay out a test for the admission of evidence obtained under a Charter breach, per
s.24(2). There are three factors which must be analyzed:
the seriousness of the Charter-infringing state conduct - requires an assessment of whether the
admission of the evidence would bring the administration of justice into disrepute, and focuses
on the severity of the state conduct that led to the Charter breach (which includes an analysis of
whether the breach was deliberate or willful, and whether the officers were acting in good faith);
the impact on the Charter-protected interests of the accused - focuses on how the accused
person was affected by the state conduct (which includes an analysis of the intrusiveness into the
person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect
on the person's human dignity); and
Society's interest in an adjudication of the case on its merits - focuses on how reliable the
evidence is in light of the nature of the Charter breach.
Applying this test to the case at bar, they find that Grant's Charter rights were breached,
but the mistake made by the officers was an understandable one. Under the circumstances,
there is no evidence that admitting the gun would bring the administration of justice into
disrepute. The impact of the infringement on Grant's rights under ss.9 and 10 were significant, as
he incriminated himself under questioning from the officers. The evidence itself is highly
reliable, and gun crime is a serious problem with significant societal repercussions, however
Grant argued that the seriousness of the crime made it more important his right's be respected.
On balance, they find that the admission was acceptable, although it was a close ruling.

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Binnie, concurring in part, agrees with a holistic approach but does not like the focus this
definition of detention puts on the perception of psychological pressure, even if filtered
through the "reasonable person" standard.
Ratio-The test for detention is whether a reasonable person, placed in the position of the
accused, would conclude that their right to choose how to act has been removed by the police,
given their conduct.
When performing an analysis under s.24(2) there are three factors which must be analyzed:
the seriousness of the Charter-infringing state conduct;
the impact on the Charter-protected interests of the accused; and
society's interest in an adjudication of the case on its merits.
Physical Detention
• No great definition in the case law, but is limited to situation where the police take
“physical control of the suspect”, in a manner that is “more than trifling”
• More than mere trifling = grasp of arm; handcuffed; taken to the ground; placed in back
of a police car
• Question about blocking path or blocking person in with Car – have been
considered psychological detention
• Non-consensual searches is physical detention and search of person, clothing or

belongings (bags and purses, cellular phone, etc.)
Grant Factors – Non Legal Compulsion
• Objective Test – “reasonable person” feels they must submit to police authority, even if
actually not legally detained (police subjective intentions not considered)
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the
individual: whether the police were providing general inquiries regarding a particular
occurrence; or, singling out the individual for focused investigation.
(b) The nature of the police conduct, including the language used; the place where the
interaction occurred; the presence of others; and duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including
age; physical stature; minority status; level of sophistication.

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Grant vs. Suberu – Different Results based on different facts on the question of
detention(Penny-86-87)(Liran 86)
Grant: Young black man, walking on sidewalk in Toronto at mid-day
• Approached by two plain clothes
• Officers blocked his path
• Asked to “have a chat” – requested ID
• Grant behaved nervously/adjusted his jacket
• Told to “keep hands in front of him”
• Two uniformed officers approached him, coming up from behind
• Grant asked if he has anything on him that “he shouldn’t have”
• Admitted drugs and a gun
Note- It was not an investigative detention, so entitled to 10(a) and 10(b) protection
Suberu: Police attend LCBO re: stolen credit cards (Liran -87)
• As police enter store, Suberu walks by
• Tells officer as he walks by “he did this, not me, so I guess I can go” – referring to other
person in store
• Officer follows him outside and says “wait a minute, I need to talk to you before you go
anywhere”
• By this time, Suberu is seated in a van
• Brief exchange, where Suberu explains his relationship to other person still inside LCBO
• Police get information connecting stolen credit cards to a prior Walmart
• Walmart bags observed in car, Suberu arrested.
Note- It is a real detention.
Corresponding Rights on Arrest or Detention
The Right to Counsel – s. 10(b) of the Charter
10. Everyone has the right on “arrest” or “detention”

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b) to retain and instruct counsel “without delay” and to be informed of that right
Three Duties on the Police:
1) Informational Duty: Reasonable steps to ensure accused understands right to counsel. If

accused say they don’t understand, they must make efforts to ensure they understand
2) Implementational Duty: Police must give accused opportunity to consult counsel –

statements in police car are close to being automatically excluded
3) Duty to Hold Off: Refrain from asking questions until accused has consulted counsel
at point of detention, police must advise you of right to consult counsel
 Police can’t conveniently give person right to counsel at their own pace
 This brings home to person that they are indeed being charged
 As a lawyer, it is important that you do not obstruct justice by providing advice that
conflicts with laws (i.e. do not speak with the police)
Class #10-Illegally and Unconstitutionally Obtained Evidence and Trial Fairness (Penny-3)
(Aram-10)
Principle of Legality
• In order for state officials (normally the police, but could be CBSA or other government
actors) to lawfully interfere with an individual’s liberty or property they must act with
lawful authority
• “Lawful Authority” may come from statute or common law
• Police must have lawful authority and act within its parameters
• In theory, contravention of principle exposes officer to criminal culpability (assault, false

imprisonment, theft) and civil liability (assault & battery, false imprisonment/arrest)
Search: Section 8 of the Charter

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anytime a state actor does anything outside of what a normal citizen would do, they
need lawful authority i.e. if police detain someone without lawful authority, they are just in the
wrong as an ordinary citizen doing the same
 The person does not have standing for bringing that violation- colloquially translated as
‘that person’s rights were not violated”
 Harrara Case- Canadian police asked US authorities to interrogate him while in his
jurisdiction, the US authorities breached his rights and Harrara argued his Charter rights
were violated but he did not have standing because the US authorities are not bound by
Canadian Charter Rights and if they were violated, it was not by a Canadian state actor
Preliminary Principles Regarding Charter Claims (Aram-10)
• An accused can only claim violation of his or her own Charter rights (R. v. Edwards,
1996 SCC)
• I.e. Charter rights are “personal” or “Individual”
• Issues with “standing” – for instance, apartment searches
• The right must be violated by a “state agent” (R. v. Harrer SCC 1995)
• That means that private citizens cannot breach your Charter rights – may be
breach of human rights laws (i.e. discrimination)
Search and Seizure Powers
Section 8 of the Charter provides that:
“Everyone has the right to be secure against unreasonable search or seizure”
• Whenever it is feasible to obtain one, prior judicial authorization (warrant) is required.
• Searches / seizures without a warrant are presumptively unreasonable under s. 8
• Burden on Crown to establish reasonableness
• At minimum, warrants should only issue where there are “reasonable and
probable grounds”, established upon oath, to believe that an “offence has been
committed” and that there is “evidence of that offence at the place of the
search.”
right against unreasonable searches, not all searches in general
general rule: police should always get a warrant when they are searching any place

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any search that happens without warrant, the burden falls on Crown to prove it was
reasonable
 standard is reasonable and probable grounds to: to believe that an “offence has been
committed” and that there is “evidence of that offence at the place of the search.”
 Just because police get a search for a residence, does not mean all space is fair
game, it must be validly connected to their objective
police are a allowed to search phones in a reasonable vicinity where a criminal offence has
been committed recent case Fearon: issue of phone privacy arose – password protected
phones protect privacy
 Computer Searches- cases like Cole and Telus come into play
Many search/seizure powers enacted in Criminal Code
• 184.1 - body packs for safety, tape generally not admissible and must be destroyed
• 184.2 - body pack warrants - note: only judge may issue
• 492.1 - tracking warrants - note: “reasonable suspicion” standard and issuance by justices
of the peace (gps device to track movement)
• 492.2 - dial number recorder warrants - note: “reasonable suspicion” and issuance by JP
(records numbers dialed on a phone only)
• 487.04 / 487.06 - DNA investigative warrants - note: only provincial court judges may
issue - also by “telewarrant” (bodily sample for DNA comparison)
• 487.092 - body impression warrants - note: JP may issue and available by telewarrant
(finger prints, boot prints, etc.)
• 487.01 - general warrant - note: provincial or superior court judges only, no interference
with bodily integrity permitted & must be no other available investigative techniques
(authorizes any investigative technique)
• hierarchy of where police get their warrants from and are usually issued by Justice’s of
Peace
• the lesser the intrusion on your privacy, the lesser the Code intervenes substantially
• For general warrants: police have to prove the have exhausted all other investigative
techniques (i.e. we have done witness interviews etc)

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•  In phone taps, you need a Superior Court Judge to sign off the more intrusive, the
higher up you go to judicial officers and more grounds may be required
Reasonable expectation of privacy (“REP”)
Edwards factors:( whether the search was an unreasonable intrusion on the right to
privacy? Principle-The privacy interest alleged must be that of the accused person; one
cannot object to an unreasonable invasion of another’s property.)
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
Public and police have implied license to approach your front door but not to walk around the
perimeter of your property seeking evidence: R. v. Evans (1996) 104 C.C.C. (3d) 23 (S.C.C.)
(Aram-10)
*** NO REP – No violation of s. 8***
Section 8- protects the right to privacy
 as long as there is some expectation to privacy, Section 8 rights engage
Edwards: contextual test
 ownership: not much controversy here as pretty self-explanatory, “If it is my car, I

have the right to privacy in my car”
The Supreme Court of Canada in Tessling 2004 SCC 67 has established a framework
governing s.8 of the Charter that has three fundamental elements:
1) the accused must demonstrate that police actions infringed his or her reasonable
expectation of privacy in the place which was the subject matter of the search or
the thing seized or both; the privacy interests protected by s.8 include personal
privacy, territorial privacy and informational privacy;

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2) warrantless searches and seizures are presumed to be unreasonable and violate s.8
of the Charter;
3) the presumption that a warrantless search violated s.8 may be rebutted by the
Crown showing, on a balance of probabilities, that the search was authorized by
law, the law is reasonable, and the search or seizure was carried out in a
reasonable manner.
 Tessling- sets out three part test for search/seizure powers
“Reasonable Expectation of Privacy”( Book-145)
• While the highest s.8 protection for territorial privacy is in respect of the privacy interest
in a person’s home, s.8 also protects, in a reduced form, a person’s privacy interest in his
or her motor vehicle
• The determination of whether a reasonable expectation of privacy exists is assessed

having regard to whether the accused has a “direct interest” in the subject matter of the
search, the accused’s subjective expectation of privacy in the subject matter of the search
and whether the expectation is objectively reasonable (Patrick SCC 2009)
• An expectation of privacy can be abandoned: Patrick, Nesbeth (OCA 2008)
Situational – reduced REP at border, airports, courts, jails, etc
 Where the Crown has to justify a warrantless search, they have to justify three things:
 “direct interest” in the subject matter, the accused’s subjective expectation of

privacy of the search and whether the expectation is objectively reasonable
(Patrick, SCC 2009)
 Dwelling houses (homes) have the highest expectation of privacy- “your home
is your castle”
 As long as you have any expectation of privacy, you are in section 8 territory
“Authorized by law”
• A search or seizure is authorized by law where:
(a) there exists statutory or common law authority to conduct the search or seizure;
and
(b) the search is carried out in accordance with the procedural and substantive
requirements that the law provides.

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• You must first find out the procedural and substantive requirements ( see sec 487 0f cc)
Lavigne Case- you are allowed to search someone incident to the arrest but the police have to
show that that offence is connected
Reasonable and probable grounds
• Where the basis for a warrant comes from confidential informant information, RPG
is assessed based on three factors (Debot SCC 1989) – the three “C’s”
(a) Is the informant credible?
(b) Is the information compelling?
(c) Has the information been corroborated?
Because the obtaining of a warrant is done in an ex parte proceeding the police must make full,
frank, and fair disclosure
 Confidential informants- police basing search on informants that they are not
willing to divulge
 Judge knows who informant is but the defence does not
 In this case, police have to go further to justify reasonable and

probably grounds (Debot)
 Police must establish 3 C’s:
 Is the informant credible? (things undermining credibility- criminal

records, informant gave inaccurate information in the past, gave
information in exchange for lesser charges- they made statements to save
their own skin)
 Is the information compelling?- level of detail currency of the

information (whether informant got information first hand or second hand)
 Has the information been corroborated? police need to act on CI

information to investigate validity of statements, perform computerized
checks, stakeouts etc.
Plain view – statutory exception
Plain view – see Buhay (SCC 2003) and Law (2002 SCC)
489. (1) Every person who executes a warrant may seize, in addition to the things mentioned in
the warrant, any thing that the person believes on reasonable grounds

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(a) has been obtained by the commission of an offence against this or any other Act of
Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
(2) Every peace officer, and every public officer who has been appointed or designated to
administer or enforce any federal or provincial law and whose duties include the enforcement of
this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or
otherwise in the execution of duties may, without a warrant, seize any thing that the officer
believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any other Act of
Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
 Has to be limits on Plain View because it can become overly expansive and then things
arbitrarily can be used as a pretext to do further searches
Knock and announce
• Police are ordinarily required to knock on the door and announce their presence, and to
execute search warrants during daylight hours. Leading case on departing from this
standard is Cornell SCC 2010
• Police can do covert searches if authorized by a general warrant under s. 487.01
Search incident to arrest
• Upon arrest police can do a brief search of the accused for weapons or for evidence of the
offence: Cloutier v. Langlois 1990 SCC
• Police have statutory power to take photographs and fingerprints of accused, but other
bodily substances are not permitted under search incident to arrest power: Stillman
• Search incident to arrest may include vehicle if arrestee is driving, and may also include a
cursory cell phone search: Fearon
• Strip searches require reasonable grounds and must be done at the police station except in
exigent circumstances: Golden
• Use of police sniffer dogs is done on lower standard of reasonable suspicion.

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Exigent circumstances
Statutory definition for dwelling-house arrest:
529.3 (2) For the purposes of subsection (1), exigent circumstances include circumstances in
which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent
imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable
offence is present in the dwelling-house and that entry into the dwelling-house is necessary to
prevent the imminent loss or imminent destruction of the evidence
Waterfield doctrine
• Police have ancillary powers to take actions that are justifiable and reasonably necessary
in order to carry out a statutory or common law duty: Dedman (SCC 1985)
• For instance, police may enter a house without a warrant in response to a 911 call: Godoy
• Police may also set up a limited roadblock where they have reliable information of armed
and possibly dangerous men: Clayton and Farmer
• Police may not exercise such ancillary powers where other reasonable options exist:
Kelsy OCA 2011
Power to arrest and detain
Section 495(1)
A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes
has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or
committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial
jurisdiction in which the person is found.
Investigative detention
• Police have the common law power to briefly detain suspects for investigative purposes
on standard of reasonable suspicion: R. v. Mann SCC 2004

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• Police may carry out a limited search incident to investigative detention if the have
reasonable grounds. This could include a search of a car: Plummer OCA
• A person will be considered detained if the police physically take control of their
movements; or if they are legally required to comply with a police demand; or if a
reasonable person would understand that they were required to comply: Grant, Suberu
R. v. Grant SCC 2009:
1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s
liberty interest by a significant physical or psychological restraint. Psychological detention is
established either where the individual has a legal obligation to comply with the restrictive
request or demand, or a reasonable person would conclude by reason of the state conduct that
he or she had no choice but to comply.
2. In cases where there is no physical restraint or legal obligation, it may not be clear
whether a person has been detained. To determine whether the reasonable person in the
individual’s circumstances would conclude that he or she had been deprived by the state of
the liberty of choice, the court may consider, inter alia, the following factors:
• (a) The circumstances giving rise to the encounter as they would reasonably be
perceived by the individual: whether the police were providing general assistance;
maintaining general order; making general inquiries regarding a particular occurrence; or,
singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical
contact; the place where the interaction occurred; the presence of others; and the duration of
the encounter.
(c) The particular characteristics or circumstances of the individual where relevant,

including age; physical stature; minority status; level of sophistication.
Statement of the accused
The Right to Counsel – s. 10(b) of the Charter
10. Everyone has the right on arrest or detention
b) to retain and instruct counsel without delay and to be informed of that right;
and
- Informational Duty: Reasonable steps to ensure accused understands right to counsel
- Implementational Duty: Police must give accused opportunity to consult counsel
- Refrain from Asking Questions until accused has consulted counsel

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Exclusion of Evidence Under s. 24(2) of the Charter
s. 24(2) of the Charter reads:
“Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute.”
A causal link is not required for evidence to be “obtained in a manner. . .” see Strachan
SCC 1988
Exclusion of Evidence Under s. 24(2) of the Charter
The three-part test established in Grant:
1) the seriousness of the Charter-infringing state conduct (admission of the evidence

may send the message the justice system condones serious state misconduct);
2) the impact of the breach on the Charter protected interests of the accused
(admission of the evidence may send the message that individual rights count for little);
and, , what right are we talking about that was abused?
3) society’s interest in the adjudication of the case on its merits how serious is the
charge and what effect of the exclusion of evidence will it have on the Crown’s case.
Grant: what is bringing the administration of justice into disrepute ?
1) The Seriousness of the Breach
• Courts must examine how seriously the police breached the individual’s Charter rights.
• In order to uphold public confidence in the administration of justice, courts must not
appear to support serious violations of individual rights.
• Flagrant and wilful disregard for Charter rights will almost always lead to exclusion of
evidence while minor or inadvertent violations committed in good faith may not.
2) The Impact on the Individual’s Interests
• The courts must always seek to uphold the public’s interest in respecting the
fundamental dignity of individuals when dealing with Charter breaches.

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• An unreasonable search that intrudes on an area in which the individual reasonably

enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious
than one that does not.
• Invasive searches or excessive deprivation of rights will weigh towards exclusion while
momentary delays or inconveniences will not.
3) Society’s Interests in the Adjudication on the Merits
• The public has an interest in a justice system based on finding out the truth, so it may be
important to include useful or reliable evidence even if it is found as the result of
a Charter breach.
• The more useful or reliable the evidence is - for example when there exists no other
evidence to support a charge - the more persuasive the argument to include it will be.
This is especially the case with physical evidence which is relevant and reliable as
opposed to evidence such as verbal statements compelled from a suspect which would
not be considered reliable.
Lecture -11 “Sentencing and Appeals “(penny -17 & 18) (Aram-11)( Liran-109-121)
POST-CONVICTION ISSUES: Sentencing PRINCIPLES & APPEALS
Principles of Sentencing
• Primary principles of deterrence, denunciation, and rehabilitation to craft an appropriate

sentence.

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• Many of the common law principles associated with sentencing were codified in ss. 718
to 718.2 of the Code in 1995
• The maximum sentence for offences is set out in the Criminal Code or CDSA
• Worst Offence Worst Offender R. v. Solowan2008 SCC 62
• Jurisprudence, particular appellate case law, will often establish a defined range
for offences
• Example - R. v. M. (D.), 111 O.R. (3d) 721 (C.A.) – set range of five to six years
for sexual offenders who commit sexual abuse against child or person sitting in
loco parentis
Six fundamental purposes (s. 718 of the Code)
(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done
to victims and to the community.
Sentencing Principles (s. 718.2):
(a) a sentence should be increased or reduced to account for any relevant aggravating or
mitigating circumstances relating to the offence or the offender
Statutorily aggravating factors:
Offence was motivated by bias, prejudice or hate,
Abused the offender’s spouse or common-law partner,
Abused a person under the age of 18,
Abused a position of trust or authority,
Offence committed for the benefit of, at the direction of or in association with a criminal
organization, or,
The offence was a terrorism offence
(b) a sentence should be similar to sentences imposed on similar offenders for similar
offences committed in similar circumstances (proportionality principle);

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(c) where consecutive sentences are imposed, the combined sentence should not be unduly
long or harsh (totality principle);
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be
appropriate in the circumstances (principle of restraint); and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances
should be considered for all offenders, with particular attention to the circumstances of
Aboriginal offenders (principle of jail as last resort).
Mitigating factors recognized in the jurisprudence ( R. V Gardiner)
1) Youthfulness
2) Lack of a prior record
3) Prior good character
4) Guilty plea and/or expressions of sincere remorse
5) Impairment of mental illness (R. v. Ellis, 2013 ONCA 739)
6) Collateral consequences (R. v. Pham 2013 SCC 15)
7) Pre-sentence delay ( right to a trial within a reasonable time . There was

huge time between crime and sentencing. In that case it is mitigating factors)
8) Incidental Charter violations (R. v. Nasogaluak 2010 SCC 6)
OTHER SENTENCING FACTOR
Pre-trial Custody
• A judge may take into account any time spent in custody awaiting trial and
sentencing.
• The Code now limits “any credit for that time to a maximum of one day for each day
spent in custody” unless the “circumstances justify” a greater credit up to a
maximum of 1.5 days. (ss. 719(3)-(3.1))
• In R. v. Summers the SCC gave a broad reading to this section, typically most
offenders will get 1.5:1 now
• Similarly, strict pre-trial bail conditions can be considered: R. v. Downs (2006

OCA), R. v. Panday (2007 OCA) – mitigating factor, not credit
Parole

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• Eligibility of parole for federal prisoners is governed by the Corrections and

Conditional Release Act (1/3rd; 2/3rds)
• Code sets out parole ineligibility murder: first degree murder at 25 years (s. 745(a))
and at least 10 years for second degree murder (s. 745(c))
• For sentences of imprisonment of two years or more on conviction for very serious
offences (set out in Schedule I or II of CCRA); a criminal organization offence or
terrorism offence, a judge can order no parole until one half of the total sentence is
served or ten years, whichever is less. (s. 743.6(1))
• Day Parole 1/3 minus 6 months
EVIDENCE PRESENTED AT SENTENCE
Burden of proof
• Generally, no strict rules of evidence apply at sentencing hearing (for instance,

hearsay is allowed if credible)
• However, if aggravating fact in dispute, Crown required to prove that fact beyond a
reasonable doubt (R. v. Gardiner; R. v. Ferguson and s. 724(3) of the Code)
• Mitigating facts, submitted by the defence, have to be proven on a balance of

probabilities
• Jury Cases: trial judge must accept all facts necessary to the verdict. Other facts,
TJ finds at hearing – does not try to reconstruct jury’s reasoning process (Section
724)
PRIOR CRIMINAL RECORD
• Usually tendered at by the Crown in the form of a “CPIC” record
• Typically defence consents to its admission
• However, if not admitted, the Crown is required to prove the record by way of s.
667 of the Code
Pre-sentence Report (PSR)( VVI)
• A Judge may order the preparation of a pre-sentence report under s. 721 of the
Code
• The report will be prepared by a probation officer
• Private PSR / Psychiatric Reports

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Victim Impact Statement (VIS)
• Section 722 of the Code allows for the introduction of victim impact statements
• A victim has the right to read the victim impact statement in court (s. 722(2.1) of the
Code)
• The “victim” need not be the direct complainant, can be family member if the
“victim” is deceased
• Section 722(4)(a) defines “victim” as “a person to whom harm was done or who
suffered physical or emotional loss”
Joint Submissions
• Sentencing judges should give major consideration to a joint submission agreed to

by the parties
• Can only impose a different sentence where the joint submission is contrary to the
public interest and would bring the administration of justice into disrepute
• This standard applies to both “jumping” a joint submission but also “undercutting”
a joint submission – i.e. imposing a lower sentence: R. v. DeSousa (OCA 2012)
TYPE OF OFFENDER
Youths - Youth Criminal Justice Act (“YCJA”) sets out principles for sentencing youths
• Extrajudicial measures, police warnings, referrals to community programs, crown

caution, etc. (ss. 4 to 12)
• Custodial sentences limited to particular offences – usually violence or repeat

offenders (s. 39(1))
Aboriginal Offenders – particular attention must be paid to their background because of unique
historic factors and over incarceration (R. v. Gladue, SCC 1997)
Organizations/Corporations – can be prosecuted & fined
• Deterrence and denunciation key considerations
• Max fine for summary conviction $100,000 (s. 735(1)(b)); no maximum for
indictable matters
CUSTODIAL DISPOSITION

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Penitentiary Sentences: any sentence of two years or more (s. 743.1(1)(a) and (b))
Reformatory Sentences: any sentence less than two years are served in a provincial institution
(also remand custody)
Intermittent sentences: if sentence less than 90 days, the court can impose a sentence to served
intermittently, usually one weekends
• Court has to consider “age”; “character of the offender” and nature and
circumstances of the offence (s. 732(1)(a))
• Usually to accommodate work or school
Mandatory minimum sentences (ex. murder, various child pornography offences, and many
firearms offences)
• Can violate the Charter, ss. 7, 12
Conditional Sentences - pre-requisites (s. 742.1):(VVI)
(a) serving the sentence in the community would not would not endanger the safety of the
community and would be consistent with fundamental purpose & principles of sentencing (ss.
718 to 718.2);
(b) No minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum
sentence is 14 years or life;
(d) Not a terrorism offence / criminal organization offence, prosecuted by way of indictment, if
maximum sentence is 10 years
(e) Not an indictable offence involving, personal injury; the use of a weapon; or
importing/exporting/trafficking/production of a drug
(g) Other specifically excluded indictable offences (for ex. Sexual assault, kidnapping)
NON-CUSTODIAL DISPOSITION(VVI)
Discharges (s. 730(1))
Absolute (no terms) or conditional discharges (combined with probation order). Available
only with respect to offences that:
(i) have no minimum punishment; and
(ii) are punishable by imprisonment for less than fourteen years

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• No conviction - therefore no criminal record (equivalent of record suspension after

statutory period)
• Cannot be combined with a fine, which does result in criminal record
Suspended Sentence
• S. 731(1)(a) of Code permits a sentencing judge to “suspend the passing of sentence”
and instead place the accused on a period of probation
• Still a conviction, therefore a criminal record
Probation: attached to discharge or suspended sentences
• Can be order in addition to a fine or sentence of imprisonment not exceeding two

years (s. 731(1)(b))
• Probation cannot last more than three years (s. 732.2(2)(b))
• Mandatory and optional conditions as set out in the Code
FINE
• Can be imposed “in addition to or in lieu of any other sanction that the court is authorized
to impose,” such as a conditional sentence or probation
• If offence has minimum term of imprisonment, then fine can only be made in
addition to any other sanction imposed
• S. 734(2) requires the sentencing judge to consider the offender’s “ability to pay”
• A conviction is a pre-condition for a fine - criminal record
• Also notes restitution under ss. 738 and 739 of the Code
ALTERNATIVE TO CRIMINAL SENTENCE
Diversion: Generally the discretion to offer diversion rests with the Crown prosecutor (s. 717)
Peace Bonds:
• Can be ordered at common law or by s. 810 of the Code
• ADD IN OTHER PEACE BONDS
• A peace bond is not a finding of guilt and does not result in a criminal record
• Binds accused to stay away from complainant for a set period of time and keep the
peace / be of good behaviour

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• New Peace Bond Provisions
ANCILIARY ORDERS
• DNA Data Bank Orders for designated offences listed in s. 487.04
• Sex Offender Registration Orders (“SOIRA”) for 10 years, 20 years, or life (s.
490.011(1)(a) to (f))
• Driving Prohibitions – automatic for drinking and driving offences (s. 259(1))
• Firearms and Explosive Prohibitions (ss. 109 and 110)
APPEAL
Route of Appeal : determined by mode of trial, not where trial took place – i.e. indictable
matters tried in lower court, still go to the Ontario Court of Appeal (OCA)
• Indictable matters – OCA (three judge panel)
• Summary matters – SCJ (single judge)
• Provincial offences – OCJ (if JP trial) or SCJ (if judge trial)
Indictable Matters:
• Accused and Crown have the right to appeal
• An accused appeal against conviction on
(i) a question of law alone; or
(ii) a question of fact or a question of mixed law and fact, with leave of the court (s. 675
of the Code)
Appeals of Indictable Matters – Grounds
• Under s. 686(1)(a) of the Code, an appeal against conviction may be allowed only on
the basis that (appeal are statutory):
(i) the verdict is unreasonable or cannot be supported by the evidence;
(ii) an error of law was committed; or
(iii) a miscarriage of justice occurred.

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• Under these three broad areas of discretion, there are a number of issue recognized
in the case law
• Under s. 687 of the Code, a court of appeal has the power to vary a sentence on
appeal
Appeals to the Summary Conviction Appeal Court
• Summary conviction appeals are governed by the provisions of Part XXVII (27) of the
Criminal Code.
• Appeals under s. 813 are heard by a provincial superior court (single judge)
• Both accused and Crown can appeal as of right pursuant to this section, even on question
of mixed fact and law
• A appeal lies to a court of appeal from a summary conviction appeal court on a question
of law alone (S. 839 of the Code)
• Leave of the OCA is required – and is strictly enforced (R. v. R.R., 2008 ONCA 497
Fresh evidence
R. v. Palmer - four part test to admit fresh evidence on appeal:
1) The evidence was not available at trial through the exercise of due
diligence
2) The evidence is relevant to a potentially decisive issue
3) The evidence is reasonably capable of belief
4) The evidence could reasonably be expected to have affected the result
Curative proviso
• An appeal court can dismiss an appeal despite an error of law if convinced that it
caused “no substantial wrong or miscarriage of justice”: s. 686(1)(b)(iii)
Sentence appeals
• Courts of Appeal must defer to the sentence imposed at trial unless the sentencing judge
commits an error in principle or imposes a sentence that is demonstrably unfit: R. v.
Shropshire and R. v. C.A.M. (SCC)
• Fresh evidence is routinely admitted of post-sentencing events concerning the offender’s
progress, though the Palmer test still applies
• Sentence appeals are often difficult because the substantial deference shown to the trial
judge’s decision on the appropriate quantum of sentence

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Criminal Law Course Summary

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Criminal law course summary

Canadian Criminal Law (York University)

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Primary rule of statutory interpretation is to consider the provision as a whole and

b) French/English(Roach pp 92-93 discussing R. v. Mac)

R. v. Daoust, [2004] 1 SCR 217, 2004 SCC 6 (CanLII)

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Held- it is a principle of statutory interpretation that where two interpretations of a

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(c) Purposive Interpretation ( from note)

 purposive approach to interpretation acknowledges the limitations of grammatical/dictionary-

Ignorance of the law is not an excuse

“prohibited weapon” means

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Defence- Mistake of fact is a defence in this case.

Elements of criminal offences

• Mens rea – mental element, fault requirement, state of mind

• Crime is where mens rea and actus reus meet

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The Actus Reus

(b) Act must be committed under circumstances or conditions specified in offence

R. v. Greco (2001) 159 C.C.C. (3d) 146 (Ont. C.A.)

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Decision Appeal dismissed.

He draws a fundamental distinction between a purported enforcement of domestic law in the

Libman v. The Queen, [1985] 2 S.C.R. 178,

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Held: The appeal should be dismissed

 R v J.(D.). [2002] OJ No 4916 (Ont CA) Liran p-12( No intent)

R v Gunning [2005] 1 SCR 627 Liran p -12 ( Jury Misdirected)

Unless physical motion is willful, not fair to say it is act of accused

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Exception- Reflex action.

s. 4(3) For the purposes of this Act,

(i) has it in the actual possession or custody of another person, or(constructive

In order to be in possession there m/b:

2) Consent (per Marshall); and

3) Control (per Terrance)

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R v. Pham – [2005] OJ 5127 – Ontario Court of Appeal – roommates with possession of

Issues: was Pham in possession of the drugs

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Held: appeal to have appeal court’s conviction overturned should be dismissed

 Consent may not be given in advance to sexual activity while unconscious:

Case- R. v. J.A. 2011 SCC 28 (L- 16)

 Consent may be vitiated if accused is in a position of trust, power, or authority over

Case-R v Budd 2007 ONCA 722

 Consent may also be vitiated by fraud: s. 265(3)(C).

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Case- R. v. Cuerrier [1998] 2 S.C.R. 371 (HIV disclosure)

Issues: was there consent

Held: new trial should be ordered

R. v. Hutchison 2014 SCC 19-(Kent-110)

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Held-The Crown appealed. Appeal allowed; new trial ordered.

Fraud vitiates consent in sexual assault.

1) The offence must contemplate guilt for omissions;

2) The accused must be under a legal duty to do something; and

3) The accused failed to fulfill that duty by his or her omissions.

R. v. Browne (1997) 116 C.C.C. (3d) 183 L-22

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