Charter Determine

1: reas. limits on rights as justified in free/democratic society

7: life, liberty, security of person Omissions 1. Look to wording of offence
11(d): presumed innocent until proven guilty ◦ Prefer to punish (+) acts, not failures to act (Fagan, E-CA, 1968) 2. Look for binding case law
Summary (s 553) Prov crt, judge no jury, no preliminary inquiry ◦ Must be rooted in duty – statutory or common law (Thornton) 3. Presumption: crimes have subjective MR (Beaver, SCC, 1957)
Prov crt, judge no jury, no preliminary inquiry
Indictable – accused
BCSC, judge no jury, preliminary inquiry
◦ Courts uncomfortable w/ common law duties (Moore, SCC, 4. Indicator of subjective MR: covers broad scope of people and
has choice
BCSC, judge + jury, preliminary inquiry (s 469) 1978; Thornton, BCCA, 1991) conduct (ADH, SCC, 2013)
Hybrid Crown chooses summary or indictment 5. Rebut Presumption?
Voluntariness a. Strict Liability – prov/public welfare + harsh penalty
Burden of Proof ◦ Involuntary  negate actus reus (Jiang, BCCA, 2007) b. Absolute Liability – regulatory + low penalty
◦ Crown must prove all elements of offence BARD ◦ Source of involuntary behaviour significant: (i) intoxication; (ii) 6. Does form of offence suggest Objective Fault? (ADH)
◦ On spectrum between BOP and absolute certainty, closer to disease of mind; (iii) automatism (e.g. sudden sleep Jiang) a. Dangerous conduct (Hundal, Beatty, Roy)
absolute certainty (Starr, SCC, 2000) ◦ Also required for omissions (Kilbride, NZ, 1962) b. Careless conduct
◦ Lack of credibility of accused does not equate to guilt (JHS) c. Predicate offence (MR of underlying act, then objective
Causation foresight of consequence) (DeSousa, SCC, 1992)
Credibility – W(D) Test (in JHS, SCC, 2008) ◦ High threshold to break chain of causation (Smith, E-CA, 1959) d. Criminal negligence (Tutton, SCC, 1989)
1. If believe evidence of accused  acquit ◦ “Thin Skull” – take victim as you find them (Blaue, E-CA, 1975) e. Duty-based offences
2. If don’t believe accused, but reasonable doubt  acquit ◦ Victim declining to stop end from coming about doesn’t break 7. If Subjective Mens Rea – Trigger words:
3. Even if accused didn’t raise reasonable doubt, must consider chain of causation (Blaue, E-CA, 1975) a. Wilfully – intent, not recklessness (Buzzanga and
whether on basis of evidence, Crown has proved guilt BARD ◦ For 1° murder - Harbottle Test (SCC, 1993) Durocher, ONCA, 1980)
 Substantial and integral cause of death b. Dishonestly – intent (Théroux, SCC, 1993)
Presumptions – Reverse Onus
◦ For manslaughter, assault, 2° murder (Nette, SCC, 2001), c. Fraudulently – knowledge, recklessness (Théroux)
◦ When accused must disprove presumption on BOP dangerous driving causing death (Romano, ONCA, 2017) - 8. If some elements silent on MR, make argument
◦ Always violates s 11(d) & must be justified under s 1 Smithers Test (SCC, 1978): 9. Crown always argues lower MR; Defence argues higher MR
◦ Exception: Won’t violate when presumed fact inexorably  Contributing cause of death outside de minimus range (or
flows from proven fact (Oakes, SCC, 1986) significant contributing cause Nette, SCC, 2001) Subjective Mens Rea
◦ Evidentiary Reverse Onus: burden on accused to raise  Factors to consider (Maybin, SCC, 2012): ◦ Wilful Blindness ≠
Intention
reasonable doubt–constitutionally valid (Downey, SCC, 1992) (1) Reasonable foreseeability of harm; and Conduct Recklessness (Sansregret,
Recklessness
◦ Triggers: legal - establish, prove; ev - evidence to the contrary (2) Intentional independent act (becomes sole cause SCC, 1985)
Knowledge
of death) ◦ Wilful blindness can sub for
Reasonable Limit Under s 1 – Oakes Test (Oakes, SCC, 1986) Circumstances Wilful Blindness knowledge (Briscoe, SCC,
1. Pressing & substantial objective Recklessness 2010)
Causation – Intervening Acts
2. Rational connection Intention ◦ Recklessness may satisfy
◦ A third party acting in furtherance of joint activity does not knowledge (Schepannek,
a. Oakes: most people do what presumed from proven fact break the chain of causation (JSR, ONCA, 2012) Consequences Knowledge
BCCA, 2012; Théroux, SCC,
b. Downey: makes sense that presumed could be true ◦ Intervening and independent act by a third party that is more Recklessness
1993)
3. Minimal impairment direct cause of victim’s death may sever causation (Maybin) WB = suspects but prefers not to inquire
4. Proportionality between effect on individual and objective
◦ A victim’s negligent actions are likely not sufficient to be an R = knowledge of risk and proceeding in face of it
Principle of Legality – Common Law Offences intervening act severing causation (Romano, ONCA, 2017)
◦ Can’t create common law criminal offences (Frey, SCC, 1950) Categorize – Absolute / Strict Liability (Sault Ste Marie, SCC, 1978)
MENS REA  Overall regulatory pattern of which offence is part;
 Subject matter of legislation;
ACTUS REUS Full Mens Criminal  Importance of penalty; and
Strict Absolute
Rea Negligence  Precision of language used
Determine Liability Liability
True Crime s 219  Defence of due diligence possible? (Raham, ONCA, 2010)
1. Look up offence AR Crown BARD
i. Given section # Crown – Strict Liability (Sault Ste Marie, SCC, 1978)
ii. Use index Crown Objective ◦ Presumption: Provincial/public welfare offences, except:
2. Look for definitions in provision, section, and Code MR -- --
BARD Fault (1) If wording suggests mens rea, or
3. Break offence down into (2) Simple and penalty small  Absolute Liability
i. Conduct
Modified ◦ Rule out above to categorize as SL (Chapin, SCC, 1979)
ii. Circumstances
Fault Subjective Objective -- -- ◦ Elements (Sault Ste Marie, SCC, 1978):
iii. Consequences
Test 1. Crown proves actus reus BARD
4. Look for presumptions
Due 2. Accused has defence of due diligence/reasonable care on BOP
5. Look for included offences Defence
Diligence a. Human error can’t substitute (Pourlotfali, ONCA, 2016)
i. How charge drafted
b. Mistaken belief that is unreasonable not defence
ii. Necessarily committed in commission of offence
(Pourlotfali)
iii. Attempts are always included – s 662(1)(b)
c. Mistake of fact does not satisfy (Québec, SCC, 2013)
6. Omission? – Look for statutory or common law duty
 Objective Fault OFFENCES Establish (Lack of) Consent (Ewanchuk, SCC, 1999):
◦ Triggers: “wanton and reckless disregard” (Tutton, SCC, 1989) 1. Did the complainant, in her mind, want the sexual touching in
◦ Modified (Creighton, SCC, 1993) Objective Fault (JF, SCC, 2008): Parties to Offences – Aiding & Abetting
question to occur?
◦ Criminal negligence – marked and substantial departure 2. Credibility – evidence of full context
s 21
from conduct of reasonable person in the circumstances  Satisfied BARD that did not consent
Doing/omitting to do something that assists or encourages
AR  Reasonable doubt as to consent
◦ For others – marked departure from conduct of reasonable the perpetrator to commit the offence
3. Consider if consent because of fear, fraud or the exercise of
person in the circumstances Full subjective mens rea (Briscoe, SCC, 2010)
authority (s 265(3))
◦ MODIFIED = consider incapacity to appreciate risk 1. Intent to assist the principal in the commission
◦ Proof of subj MR sufficient, not necessary (Beatty, SCC, 2008) MR
of the offence
2. Knowledge (or sub wilful blindness) that the Wilfully Promote Hatred Against Id. Grp (Buzzanga, ONCA, 1980)
Prove Mens Rea perpetrator intends to commit the crime s 281.2(2) Actus Reus Mens Rea
◦ AR and MR must be at same time (Fagan, E-CA, 1968) Minimum MR of principal offence (Logan, SCC, 1990) Conduct Communicate statements Intent
S/G? Specific Intent Offence (Fraser, BCCA, 1984) Circumstance Not in private conversation Knowledge
◦ AR of greater offence and MR of lesser offence cannot be mixed
and matched to create a complete offence (Kundeus d, SCC, 1976) Defence Abandonment Consequence Promote hatred against an “Wilfully”  Intent
identifiable group
◦ Motive – evidence of intent, but not required (Lewis, SCC, 1979)
Attempts
◦ Transferred intent can’t apply to attempts (Gordon, ONCA, 2009)
s 24 (Dynar, SCC, 1997) Fraud (Theroux, SCC, 1993)
◦ Even in absence of NCRMD, may consider evidence of mental AR Perform some act in furtherance of the attempt that is s 380 Actus Reus Mens Rea
disorder for proof of intent BARD (Reeves, BCCA, 2017) beyond mere preparation Conduct Lie/commit dishonest act Dishonesty = Intent
MR Intent to commit completed offence (Ancio, SCC, 1984) Consequence Cause economic harm/risk Knowledge
Test from Re MVA for challenges to s.7: (1) Is there a deprivation ◦ Typically self-evident, but if equivocal, then need Recklessness
of life liberty or security of the person? (if not, no violation of s. 7); extrinsic evidence to prove (Sorrell, ONCA, 1978)
(2) If yes, is that deprivation in accordance with the principles of ◦ No such thing as “legal/factual impossibility”  but an attempt to Objective Fault
fundamental justice? (if not, go to Oakes) commit an imaginary crime cannot be attempt (Dynar)
Failure to Provide Necessaries (JF, SCC, 2008)
Absolute Liability + the Charter Abandoning a Child (ADH, SCC, 2013)
s 215(2) Actus Reus Mens Rea
◦ AL+Imprisonment always unconstitutional (Re MVA, SCC, 1986) s 218 Actus Reus Mens Rea
Conduct Omission – Failed to Modified Objective
◦ Presumption of Constitutionality (Raham, ONCA, 2010) Conduct Abandoning/exposing child Intent
perform duty
 If interpreting as AL makes unconstitutional, but could Consequence Endangered Life --
alternatively interpret as SL, then it must be SL Unlawful Act Manslaughter (Creighton, SCC, 1993)
s 222(5)(a) Actus Reus Mens Rea
Criminal Negligence Causing Death (JF, SCC, 2008)
Strict Liability + the Charter Conduct Unlawful act MR of underlying act
s 222(5)(b) Actus Reus Mens Rea
◦ Reverse onus const. valid (Wholesale Travel, SCC, 1991) Consequence Death Mod Obj – foresight of bodily harm
Conduct Omission – Modified Objective:
Failed to Marked and substantial
Mens Rea of Murder + the Charter (s 7) Murder
perform duty departure from reasonable
s 229(a)(i) Actus Reus Mens Rea
◦ Principle of fundamental justice: Proportionality between standard of care (+ incapacity
Conduct Do some act Intent to appreciate risk?)
stigma and moral blameworthiness (Martineau, SCC, 1991)
Consequence Cause death Subjective foresight of death (Shand)
◦ Subjective fault for offences of special stigma (Martineau) Consequence Causing death --
◦ Subjective foresight of death is the constitutional minimum
Unlawful Object Murder (JSR, ONCA, 2008; Shand, ONCA, 2011) Dangerous Driving (Hundal, SCC, 1993; Beatty, SCC, 2008; Roy, SCC, 2012)
mens rea for murder (Shand, ONCA, 2011)
s 229(c) Actus Reus Mens Rea s 249 Actus Reus Mens Rea
Conduct Did anything Intent Operate a
Mens Rea of Offences Less Than Murder + the Charter Conduct Intent
Circumstance For an unlawful object -- motor vehicle
◦ Predicate offences – no Charter issue b/c requires MR of Consequence Death Subjective foresight of
underlying offence + objective fault (DeSousa, SCC, 1992) Modified Objective: Marked
death departure of standard of care of
◦ s 7 only issue for murder + a few others (Creighton, SCC, 1993)
reasonable person (+ incapacity to
Unlawfully Causing Bodily Harm (DeSousa, SCC, 1992) appreciate risk?)
Participatory Limits – Aiding & Abetting s 269 Actus Reus Mens Rea In a manner Not enough:
◦ Specific intent (Fraser, BCCA, 1984) Conduct Underlying unlawful act Corresponding mens that is ◦ Momentary lapse of
◦ Mere presence without any assistance or encouragement is not (prov/fed statute) rea Circumstance
dangerous to attention (Beatty)
enough; requires something more (Dunlop, SCC, 1979) Consequence Cause bodily harm Objective foresight the public ◦ Momentary lapse of
◦ Causation in joint actions is distinct from party liability (JSR) judgment (Roy)
◦ Don’t need jury unanimity whether convicting as principal or Sexual Assault (Ewanchuk, SCC, 1999) Example of enough:
party – s 21 makes equally culpable (Thatcher, SCC, 1987) s 271 Actus Reus Mens Rea  Passing on double line
◦ Continuing Offence: if offence complete in law, but not in fact, Conduct Application of force Intent (Bélanger, SCC, 2013)
may be party if join at later point (Vu, SCC, 2012) Circumstance Of a sexual nature, without Death
Knowledge Consequence
consent (Hundal)
CAVEAT No defence of implied consent Defence Mistake of Fact
 DEFENCES
Air of Reality (Gauthier, SCC, 2013)
1. There is evidence
2. Upon which a properly instructed jury acting reasonably could
acquit if it believed the evidence to be true
Abandonment (Gauthier, SCC, 2013)
For Party liability (s 21) ONLY
Type Common Law
Burden Air of Reality
1. Intention to abandon or withdraw from unlawful
purpose
2. Timely communication of abandonment or withdrawal
to those who continue
3. Communication was unequivocal notice
Elements
4. Accused took, in manner proportional to his
participation in commission of planned offence,
reasonable steps in the circumstances to neutralize or
cancel out effects of participation or to prevent
commission of offence
Result Acquittal
Policy: Encourage individuals to withdraw and report (Gauthier)
Mistake of Fact
For Any offence with MR = knowledge
NOT For Absolute Liability, Wilful Blindness
Common Law – modified by statute for sexual assault
Type
(reasonable steps s 273.2)
Burden Air of reality (Pappajohn, SCC, 1980)
If subjective mens rea offence:
◦ Mistake of fact just has to be honest, not
reasonable (Pappajohn, SCC, 1980)
Elements
If objective mens rea offence:
◦ Mistake of fact must be honest AND reasonable
(Tutton, SCC, 1989)
Result Acquittal
Mistake of Law
◦ s 19: no mistake of law defence; ignorance of law is no excuse
◦ If awareness of the law is element of offence (e.g. “unlawful act”),
then mistake of law would negate element
◦ Mitigating factor in sentencing – honest mistaken belief less
morally blameworthy (Campbell, Alta Dist Crt, 1973)
◦ Bad legal advice – mitigate sentencing (Suter, SCC, 2018)
Officially Induced Error of Law (Lévis, SCC, 2006)
For All offences – Definitely regulatory; Unclear for CC
Type Common Law
Burden Defendant; Prove elements on BOP
That:
1. An error of law or mixed law and fact was made
2. The person who committed the act considered the
legal consequences of his actions
Elements
3. Advice obtained came from appropriate official
4. The advice was reasonable
5. The advice was erroneous
6. Person relied on the advice in committing the act
Result Judicial stay of proceedings CAVEAT: Intoxication not defence when one of elements of offence is
CAVEAT Does NOT satisfy due diligence (Québec, SCC, 2013) to prove intoxication BARD (Penno, 1990, SCC)
Provocation Following Daviault, amended Criminal Code – s 33.1
For Murder ◦ Wipes out defence for general intent crimes involving violence
Type Statutory – s 232 ◦ Intoxication is form of criminal negligence & morally blameworthy
Burden Air of reality
Objective Elements: Note: s 33.1 constitutionally invalid in Ontario – s 7 and 11(d) (McCaw,
◦ Conduct that is an indictable offence punishable by ONSC, 2018)  reasonable doubt as to voluntariness
5+ years that is of such a nature to deprive an
Elements ordinary person of the power of self control Offences of General or Specific Intent
Subjective Element: ◦ Specific Intent – Triggers (Bernard): With intent to; For the
◦ The accused acted upon that insult suddenly and purpose of; Some general intent + specific knowledge
before there was time for his passion to cool ◦ Categorize (Tatton, SCC, 2015):
Self-induced Provocation – accused’s conduct in inciting 1. Nature of mental element
provocation acts as contextual factor to evaluate the a. Heightened  Specific
above elements (Cairney, SCC, 2013)
i. Ulterior purpose
◦ Subjective not met if could have expected victim’s ii. Knowledge of certain circumstances
Consider
response thus didn’t act suddenly evidencing complex reasoning
◦ Objective not met if victim’s response within range iii. Intent to bring about certain consequences
of predictable reactions meaning ordinary person b. Very little mental acuity  General
shouldn’t lose control 2. Only if not clear answer, then turn to policy considerations
Result Reduce murder to manslaughter a. Whether alcohol habitually associated with the
Don’t conflate with self-defence – contextual factors like commission of the offence
CAVEAT size and stature have nothing to do with maintaining self-
b. Whether lesser included offence
control (Hill, ONCA, 2015)
c. Discretion/inflexibility of sentencing
d. Whether associated with violence
Prior to 2015: Wrongful act or insult of such a nature that is sufficient
to deprive ordinary person of the power of self-control
Not Criminally Responsible by Reason of Mental Disorder (NCRMD)
 Policy Concern: provocation acting to legitimize discriminatory
For All Offences
and problematic practices (e.g. violence – domestic, towards
women) (Thibert, SCC, 1996) Type Statutory – s 16
Form Excuse or Negate Mens Rea
 Attempting to mitigate concern: Provocation not available
where the wrongful act or insult is based on notion that wife On party that raises; BOP
leaving marriage was dishonourable or that women are  Possible onus on accused constitutionally valid so
Burden
property. Objective element must be interpreted in line with as to avoid placing impossible burden on Crown
Charter values. (Tran, SCC, 2010) to disprove insanity (Chaulk, SCC, 1990)
Begin with presumption of sanity (Chaulk, SCC, 1990)
Intoxication 1. Must have a mental disorder, that
 Defined in s 2 as “disease of the mind”
For Specific Intent Offences (Bernard, SCC, 1988)
Type Common Law  Any illness, disorder or abnormal condition which
impairs human mind and its functioning,
Burden Air of reality
Level of intoxication required = high threshold (Drader, excluding self-induced intoxication or transitory
Notes mental states such as hysteria or concussion
Qbc Prov Crt, 2009)
Elements (Cooper, SCC, 1980)
Convict of lesser included general intent offence OR
Result 2. Renders him unable to appreciate the nature and
Acquittal
quality of the act committed, or incapable of knowing
that it was wrong
Extreme Intoxication (Daviault, SCC, 1994)
 Appreciate = ability to perceive the consequences
Specific Intent
of the act (Cooper, SCC, 1980)
General Intent Offences
 Wrong = morally wrong on the ordinary standards
For ◦ Except s 33.1 – interfere with bodily integrity
of society (Chaulk, SCC, 1990)
(assault, sexual assault, manslaughter)
NCRMD can’t be used if the psychosis stems from
Maybe Strict Liability/Absolute Liability? CAVEAT
voluntary intoxication (Bouchard-Lebrun, SCC, 2011)
Type Common Law – modified by statute (s 33.1)
Go before Review Board, picks disposition that is least
Burden Defendant; Prove on BOP; expert evidence
restrictive of liberty that maintains proportionality with
Notes So extreme, near automatism
Result public safety
Result Acquittal  Although NCRMD is a defence, the punishment is
onerous (McBride, ONCA, 2018)
Four Ways to Raise NCRMD (Swain, SCC, 1991): If mental disorder  mental disorder automatism Note Illegal or negligent conduct doesn’t disentitle accused to
1. Accused pleads NCRMD at outset of trial If neither  non-mental disorder automatism (Perka) defence of necessity
a. Accused must prove on BOP Not ◦ Murder (most likely) (Latimer, SCC, 2001)
b. Expert evidence needed Self-Defence Defence ◦ Accused created the situation and should have
2. Accused pleads NCRMD after finding of guilt but before For Violent Offences (e.g. assault, murder, manslaughter) if… foreseen necessity (Perka, SCC, 1984)
conviction entered Type Statutory – s 34 Result Acquittal
a. Gives opportunity to lead other defences and avoid Burden Air of reality
stigma of MD during trial 1. Reasonable belief of force or threat of force against Duress - Statutory
3. Accused brings mental state into issue him or someone else Principal Offenders; All except listed in s 17
For
a. I.e. bringing evidence about delusions or psychiatry ◦ Subjective belief, objectively verified NOT for murder in Manitoba (Willis, MBCA, 2016)
◦ Personalized to accused (e.g. battered by spouse) Form Excuse (Hibbert, SCC, 1995)
b. Then Crown may raise evidence of accused’s mental
(Lavallée, SCC, 1990) Burden Air of reality
disorder during trial
◦ Expert testimony admissible for unique After Ruzic, SCC, 2001, functionally equivalent to
4. Crown raise evidence of MD after finding of guilt but before Elements
circumstances of domestic abuse (Lavallée) common law defence
conviction entered ◦ Reasonable mistaken belief ok (Pétel, SCC, 1994) Result Acquittal
a. Avoid stigma on accused during trial ◦ Possibility of retreat? (Cormier, NBCA, 2017)
b. Crown has burden on BOP Elements
◦ Evidence presented without relying on Ruzic, SCC, 2001 – requirements of presence, immediacy, and threat to
stereotypes (Malott, SCC, 1998) accused rather than third person = unconstitutional
Automatism 2. Purpose to protect oneself or others  PoFJ: The morally involuntary should not be punished
For All Offences ◦ Subjective
Type Common Law 3. Response to the act committed must be reasonable Duress – Common Law (Hibbert, SCC, 1995)
Burden Accused on BOP in the circumstances For Parties (Paquette, SCC, 1977)
1. Sufficient evidence of dissociative state: ◦ Objective Form Excuse
i. NEED expert evidence ◦ s 34(2) – factors to consider (codified Lavallée) Burden Air of reality
ii. May consider (but not determinative): ◦ Possibility of retreat relevant (Cormier) 1. Threat of death/bodily harm (may be future)
a. Severity of triggering stimulus The decision not to leave doesn’t disentitle the accused
Note 2. Reasonably believed threat will be carried out
b. History of dissociative states to claim self-defence (Lavallée, SCC, 1990) 3. Accused not member of criminal organization
c. Bystander testimony Result Acquittal 4. No safe avenue of mistake/No legal way out
d. Whether motive for crime Policy: Increased risk if leave; Barriers to leaving like financial and kids; Elements
e. Whether the trigger is also the victim ◦ Modified objective (Ryan, SCC, 2013)
Cycle of abuse – more attuned to danger; Stereotypes – learned 5. Close temporal connection between threat and act
2. Characterize as mental disorder or non-mental helplessness, reasonable battered woman; Stereotypes disentitle to
disorder automatism 6. Proportionality
defence b/c have to do like idealized white man or battered woman ◦ Modified objective (Ryan)
i. Presumption – dissociative state caused by MD
◦ Evaluate whether evidence of accused rebuts Result Acquittal
Defence of Property
presumption
For Violent Offences (e.g. assault, murder, manslaughter)
ii. Test (Parks, SCC, 1992): SENTENCING – s 718
Type Statutory – s 35
a. Internal Cause Theory 1. Look to provision for min (sometimes) and max (always)
Burden Air of reality
◦ If source internal  NCRMD 2. Look to precedents (non-binding)
Elements Elements No info on proportionality in s 35 (Caswell, SKPC, 2013)
◦ If source external  automatism 3. Higher penalty for greater harm (Smith, BCCA, 2013)
(Stone, No obligation to retreat (Cormier, NBCA, 2017)
◦ Contextual objective test: compare
SCC, What begins as defence of property may morph into self-
accused’s reaction to psychological blow Note
1999) defence (Cormier, NBCA, 2017) Aggravating factors – BARD
to the way would expect normal person
Result Acquittal Mitigating factors – BOP
in circumstances to react
◦ Ordinary stresses of life do not cause
Necessity Aboriginal Offenders – s 718.2(e)
mentally healthy people to go into
states of automatism (Rabey, ONCA, For All Offences Ipeelee, SCC, 2012
1977) Type Common Law ◦ No requirement to prove direct causal link
b. Continuing Danger Theory Form Excuse (Perka, SCC, 1984) ◦ Applies equally to all offences, even violent ones
◦ Probability of recurrence? Burden Air of reality ◦ Difference will be less significant for violent offences
◦ How much risk/severity? 1. Urgent and pressing peril ◦ Not race-based discount, but recognition that certain circumstances
◦ Any condition likely to present recurring ◦ Modified objective standard (Latimer) reduce moral culpability
danger to public should be treated as ◦ Objective, but personalized to: characteristics Gladue, SCC, 1999
NCRMD of person and setting ◦ Mandatory, not optional
Elements ◦ Imprisonment particularly alienating for aboriginal people
c. Other Policy Factors 2. No reasonable legal alternative
(Perka, ◦ Doesn’t matter that an offender is not living in an aboriginal
◦ Ability to fake condition ◦ Modified objective standard (Latimer)
SCC, community
◦ Semantic spin on expert testimony 1984)
3. Proportionality b/w harm avoided & harm caused
◦ Floodgates ◦ Objective standard (Latimer, SCC, 2001) Pelletier, ONCJ, 2016 – exceptional example considering factors
Result Acquittal
HIGH THRESHOLD – only exceptional circumstances
If result of voluntary intoxication  defence of intoxication (Ungar, ONCJ, 2002)