Lynn Muldoon 2018 Winter CAN

Lynn Muldoon 2018 Winter CAN
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Bail
Bail reasons 5
CCC 515(10) justification for detention in custody 5
Forum for bail hearing 5
Conditions of bail hearing 5
Conditions of release 5
Undoing a detention order 5
Presumptions, quantum, and burden of proof

Two types of presumptions 6
Evidentiary and persuasive presumptions 6
Woolmington v. D.P.P., [1935] A.C. 462 6
R. v. Oakes, [1986] 1 S.C.R. 103 6
R. v. Cinous, [2002] 2 S.C.R 3 7
R. v. Lifchus, [1997] 3 S.C.R. 320 7
R. v. Starr [2000] 2 S.C.R. 144 7
Actus Reus
General points on actus reus 7
The principle of concurrency 7
R. v. Cooper, [1993] 1 SCR 146 8
Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439 8
R. v. Miller, [1982] 2 All ER 386 8
R. v. William, 2003 SCC 41 8
The principle of voluntariness 8

Kilbride v. Lake, [1962] NZLR 590 8
R. v. King, [1962] SCR 746 8
Omissions 9
R. v. Thornton, (1991), 3 CR (4th) 381 10
R. v. Browne, (1997) 116 CCC (3d) 183 10
Consequences and causation 10

R. v. Winning (1973), 12 CCC (2d) 449 10
Smithers v. The Queen, [1978] 1 SCR 506 10
Test for legal causation 11
R v Cribben 1994 OCA 11
Causation and murder 11

Substantial and integral cause of death test 11
R. v. Harbottle, [1993] 3 SCR 306 12
R. v. Nette, [2001] 3 SCR 488 12
R. v Maybin, 2012 SCC 24 12
Mens Rea
General points on mens rea 12
Common law presumptions about the fault element 13
R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154 13
R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299 14
Hierarchy of forms of mens rea or fault 14
Subjective mens rea 14
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R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 14
R. v. Briscoe, 2010 SCC 13 14
R. v. Steane, [1947] 1 KB 997 15
Hibbert v. The Queen, [1995] 2 SCR 973 15
R. v. Sansregret, [1985] 1 SCR 570 15
Objective mens rea 16

Objective foresight of knowledge 16
R. v DeSouza, [1992] 2 SCR 944 17
Penal and criminal negligence 17
R. v. Creighton, [1993] 3 SCR 3 17
R. v. Beatty, 2008 SCC 5 18

R. v Roy, 2010 SCC 26 18
R. v. Hundal, [1993] 1 SCR 867 18
Strict liability 18
Absolute liability 19
Reference re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 SCR 486 19
R. v. Vaillancourt, [1987] 2 SCR 636 19
R. v. Martineau, [1990] 2 SCR633 19
Note on the defence of ‘mistake of fact’ 20

Evidentiary and persuasive burdens in mistake of fact 20
Participation offences
Counselling 20
Elements of counselling a crime that is committed 21
Elements of counseling a crime that is NOT committed 21
Conspiracy 21
Attempts 22
R. v. Ancio, [1984] 1 SCR 225 22
Deutsch v. The Queen, [1986] 2 SCR 2 22
Points from the case law 22
United States of America v. Dynar, [1997] 2 SCR 462 23
Parties 23
Elements of aiding in s. 21(1)(b) 23
Elements of Abetting in s. 21(1)(c) 24
R. v. Nixon (1990), 57 CCC (3d) 97 (BCCA) 24
Points from the case law on s. 21(1) 24
Dunlop v. Sylvester v. The Queen, [1979] 2 SCR 881 24
R. v. Jackson, 2007 SCC 52 24
R. v. Thatcher, [1987] 1 SCR 652 25
R. v. Greyeyes, [1997] 2 SCR 825 25
Common intent 25
Accessory after the fact 26

R. v. Duong (1988), 124 CCC (3d) 392 (OCA) 26
Final points 26
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Homicide and Defences
General points 27
Manslaughter 27
Unlawful manslaughter 27
Manslaughter caused by criminal negligence 27
Murder 28
Causation of murder 28
First degree murder 28
R v. Russell, 2001 SCC 53 29
R v. Collins (1989), 48 CCC (3d) 343 29
Provocation 29
General points 29
R. v. Hill, [1986] 1 SCR 313 29
R. v. Thibert, [1996] 1 SCR 37 30
R v Campbell (OCA 1977) 30
R. v. Tran, 2010 SCC 58 30
Self Defence 30
General points 30
Specific points 31
R. v. Lavallee, [1990] 1 SCR 852 31
R. v. Patel, [1994] 1 SCR 3 31
Mental Disorder 32
Fitness to stand trial 32
Mental disorder defence 33
R. v. Chaulk, [1990] 3 SCR 1303 33
R. v. Swain, [1991] 1 SCR 933 34
Disease of the mind 34
Appreciating the nature and quality of the act 34
Knowing that the act was wrong 34
Review board 34
Necessity 35
General points 35
R v Perka SCC 1984 35
Specific points 35
R v Latimer (SCC 2001) 36
Duress 36
General points 36
Burdens 36
The defence of duress at common law 37
Other points from the case law 37
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Bail
The reason for the police to keep the person on arrest:
• reason to believe that the person may not come back to court
• continue to commit crime
• lack of identification
Need to bring the person within 24 hours or reasonable time in front of JP (this changes the complexity of the case) – the
person’s kept in Remand Centre if didn’t get bail; will be kept until trial or sentencing
RTCC is provided in a tight time frame in those cases and Crown makes decision if detention is required
Detention changes the complexity of the case because it’s harder to prepare for trial for the defence but also at the same
time the person is eager to plea guilty.
CCC 515(10) Justification for detention in custody
• Can bail hearing be adjourned? YES – the person who’s detained can request for adjournment (remains in
Remand Centre) as much as the person wants for different reasons
• Crown can adjourn the matter as well for 3 days (CCC s. 516) (remains in Remand Centre)
• Or, Crown can sign the release form in some cases and the person is released on terms; the person appears before
JP instead of Judge in bail hearing
Forum for bail hearing
• s. 469 are serious cases – bail hearing will take place in Supreme Court
• Conference call for bail hearing is also an option
Conditions of Bail
• Deposited money can be forfeited to court if the person doesn’t comply conditions
• Sureties – somebody guarantees the released person’s compliance to conditions
Conditions of release
• “substantial likelihood”
• Crown has the burden to show the “cause” (bail hearing is also called “show cause”); it’s on balance of
probability if the detention is required; One or more grounds is enough to be successful with Evidence that is
considered credible or trustworthy by JP
• Reverse onus s. 515(6) - Having committed indictable offence, the accused comes back again for committing
another indictable offence is the most common reason for the use of this section
Undoing a detention order
1) At the end of preliminary hearing or at the beginning of trial under s 463 (2)(a), you can ask the judge to review
bail decision. This typically happens when the trial happens months after the bail decision (with no priority)
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2) In the case of summary offence after 30 days the matter can be reviewed, for indictable offence, the matter can be
reviewed after 90 days. The court applies the same test under s515(10) and if the circumstance hasn’t changed, the
decision doesn’t change
3) With the consent of the Crown at any time. Crown may agree if material changes that was the case at the time of
arrest but not anymore
4) Seek judicial review of the detention order in Supreme court s.523(2)(c) – it‘s very expensive option and unlikely
to succeed. The test asks whether “anything has changed“ and if the judge made a mistake
Breaching bail
524(1) and (4)) and 145(3)
Presumptions, quantum, and burden of proof

Two types of presumptions:
1. Rebuttable presumption
2. Irrebuttable presumption
If presumption is REBUTTABLE, it can further be categorized as:
1. Evidentiary presumption
• If it’s EVIDENTIARY presumption (CCC states “…evidence to the contrary”), the accused has to
provide SOME EVIDENCE of every element to the contrary to rebut the presumption. Then the Crown
has to prove BARD that those defences do not apply.
2. Persuasive (legal) presumption

• If it’s PERSUASIVE presumption (CCC states “...unless he establishes”), the accused has to prove, on
the balance of probability, the contrary; the Crown does not need to prove anything.
There are IRREBUTTABLE presumption that once the Crown proves the elements of the fact BARD, then certain things
are presumed; evidence to prove the contrary will not be accepted. Examples of irrebuttable presumptions are that
children under the age of 7 are deemed to be incapable of committing a crime; s. 98(1) and (3) of the CCC (CCC states
that “...deemed to”)
(high standard) BARD > Balance of probability > Some evidence (lower standard)
Woolmington v DDP 1935

The accused was alleged to kill his wife who was not returning to their matrimonial home but rather staying at her
mother’s place; was presumed to be guilty of murder unless he could prove to the jury otherwise (accident/provocation).
The court stated that the onus is on the Crown to prove BARD, not presumption. In case of mental disorder, the
presumption in law is that the person is sane; if the accused wants to argue otherwise, the onus is on the accused that he
suffered mental disorder when he committed the crime.
R v Oaks 1986 SCC

The accused was charged with unlawful possession of narcotic for the purpose of trafficking contrary to s. 4(2) of
Narcotic Control Act. The Crown was successful in proving BARD that the accused was in possession; s. 8 of NCA stated
that once the accused is proven BARD of possession, it’s presumed to be purpose of trafficking unless the accused
establish the contrary. The accused challenged s. 8 NCA as violation of his s. 11(d) of the Charter right. SCC stated that
s.8 of Narcotic Control Act violated s. 11(d) of the Charter, presumption of innocence.
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R v Cinous 2002 SCC
The accused was charged with murder of his criminal accomplice M; he argued that killing M was self-defense
considering totality of the circumstances. SCC noted that the trial judge must put to the jury all defenses that has
evidential foundation regardless of whether it was raised by the accused or not. But it should be put to jury if and only if
there is evidential foundation-air of reality- from the facts; otherwise, the judge has a positive duty to keep from the jury
defenses that lack an evidential foundation. The defense that was put to jury in this case lacked air of reality and should
not have put to jury by the trial judge.
R v Lifchus 1997 SCC

SCC defined the meaning of “BARD”- The burden of proof rests on the prosecution throughout the trial and never shifts
to the accused.
A reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it’s based upon reason and common
sense; It’s logically connected to the evidence or absence of evidence. It does not involve proof to an absolute
certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than
proof that the accused is probably guilty. A jury which concludes only that the accused is probably guilty must
acquit
R v Starr 2000 SCC

SCC noted that a jury must be instructed that the standard of proof in a criminal trial is higher than the probability
standard used in making every day decision and civil trials. Unlike absolute certainty or the balance of probability,
reasonable doubt is not an easily quantifiable standard- if standards of proof were marked on a measure, proof “BARD”
would like much closer to “absolute certainty” than to “a balance of probability”
Actus Reus
General points on actus reus:
• The actus reus can be defined as “a physically voluntary act or omission.”
• For an offence to be committed, the actus reus and mens rea must be concurrent on the principle that if not, courts
would punish either conduct without fault or guilty intent not expressed in guilty action.
• The actus reus of an offence must be carried out voluntarily and it can include the failure to act.
• The principle of legality requires that the actus reus for a criminal offence must have been set out in an offence at
the time it was committed (11(g) of the Charter), and that the definition of the offence not be overbroad or vague.
The Principle of Concurrency:
• As a general principle, the actus reus and mens rea must concur. (Fagan, Cooper)
• They need not be “completely concurrent” throughout the commission of an offence, but must coincide “at some
point.” (Cooper)
• Courts may take an expansive view of when the actus reus is completed: a “series of acts [or omissions] may
form part of the same transaction.” (Cooper)
R. v. Cooper, [1993] 1 SCR 146
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C was charged with strangling and killing his wife. C claimed that he passed out while he was strangling her and woke up
to his dead wife’s body. Medical evidence showed that she died 30 seconds to 2 minutes into strangling. He argued that
MR and AR did not coincide when he killed his wife, thus intention lacked at the time of her death. Court stated that MR
does not need to completely coincide concurrent (just concurrent throughout), but need to coincide with AR at
some point. C’s MR to kill her coincided with AR when he started to strangle her and was able to foresee his action is
likely to cause death.
Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439

The accused was pulled over but didn’t pull over close enough to the officer’s satisfaction; he re-parked but parked on the
officer’s foot. The officer told him to get off but the accused turned off the car and told him to wait – he moved the car
when the officer complained again. Defence argued that AR was completed when he stopped the car on the officer’s foot,
and his MR to leave the car was after the car was stopped, thus AR and MR didn’t coincide. The court said some acts are
completed and some acts are continuing – in this case, the accused’s AR (staying on the officer’s foot) was continuing
until he got off the officer’s foot, and his MR coincided during the course of action.
• An act (or an omission) carried out unintentionally at first can be “adopted” by a later decision not to act to rectify
it. If an act is continuous, a person’s adoption of an earlier omission or unintentional act will constitute a
concurrence of the actus reus and mens rea. (Miller)
R. v. Miller, [1982] 2 All ER 386

The accused was squatting in someone’s house and left his cigarette butt on the bed. He fell asleep and woke up to a fire
on the bed – he simply left and went to another room to sleep. The court said the failure to act can sometimes be an
adoption of an act and entire event as a whole should be considered.
R. v. William, 2003 SCC 41

The accused had sex with his partner and later learned that he was HIV positive. His partner was tested for HIV few days
later but came out negative. They continued their relationship but the accused did not disclose his HIV status. The court
acknowledged that the partner could have already been infected of HIV positive when she was tested, but got a negative
result because she was in the “window period”. With this possibility, the accused’s AR (having sex knowing his HIV
positive) and MR (intention to withhold information) did not coincide.
The Principle of Voluntariness:
• The actus reus must be committed voluntarily. (Kilbride, King)
• Voluntariness entails “conscious control of action” or action that is the “product of conscious choice.” This is
premised on the belief that it would be unfair and unjust to punish persons for conduct they did not choose or
could not physically control. (Kilbride, King) → consciousness is not same as voluntariness; conscious
involuntariness can be tripping, falling etc.
Kilbride v. Lake, [1962] NZLR 590

The accused was ticketed for not having a sticker on his plate; the Crown argued that it’s absolute liability and the only
proof required for this offence is that the accused not having a sticker on his plate (AR). The defence said it was
unintentional because the accused had the sticker, but someone must have taken it. The court stated that the Crown still
needs to prove that the accused “voluntarily” committed the AR.
R. v. King, [1962] SCR 746

The accused was charged with impaired driving- he was driving after his teeth was pulled. Although the dental office told
him not to drive after the procedure, this information was told when he was still under the influence of medication. The
accused did not have any recollection of hearing this information and the medical evidence was consistent with his
statement. The court stated that there was no AR – no willing mind to make definite choice to drive.
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• At common law, “a person is presumed to have intended the natural and probable consequences of their actions.”
Thus, where an accused carries out a basic act, forming one or more elements of the actus reus – for example,
pushing or punching another person – he or she is presumed to have acted voluntarily. (Bernard, Daviault)
• An accused may raise a doubt about whether she acted voluntarily by adducing evidence that at the time of the
offence, she was affected by mental or physical disorders or conditions, including sleepwalking, concussion,
delirium, epileptic seizure, or involuntary intoxication.
• The concept of voluntariness in Canadian criminal law refers to choice and control over physical actions. In
Ruzic, the SCC recognized that acts carried out under necessity or duress are “morally involuntary.” But since
these acts may be voluntary in a physical sense, moral involuntariness does not negate the actus reus or the mens
rea. It may, however, excuse the acts (if the elements of the defence of necessity or duress are made out), thus
resulting in an acquittal.
Omissions:
• A failure to act can form the basis of criminal liability only where the failure constitutes the breach of a legal duty
to act.
• There is no general legal duty in Canadian criminal law to be a good Samaritan: i.e., to assist someone in distress,
or prevent a crime from occurring or continuing—even when one can do so easily and without risk or
disadvantage.
• A number of Code provisions criminalize omissions on the basis of duties set out in the offence provision itself—
for example, section 129(b): failing to assist a police officer when requested, or section 252(1): failing to stop,
give ID, and render assistance after being involved in an accident.
• There are 3 types of common law duties codified: 1) relationship of dependency (parents, doctor/patient etc), 2)
situations undertaken (that could have endangered a life), 3) duty to reasonable care
• Other offence provisions include as part of the actus reus the breach of a legal duty set out elsewhere in the law:
e.g.,
o s. 180(2) – common nuisance: “Everyone commits a common nuisance who does an unlawful act or fails
to discharge a legal duty and thereby (a) endangers lives, safety, health, property or comfort of the public
…”
o s. 220 – criminal negligence causing death. This offence draws on the definition of criminal negligence in
219:
(1) Everyone is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for
the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
• The Code itself contains provisions that set out legal duties that can be applied under sections 180 or 219,
including:
o s. 216 – setting out a duty of persons to use reasonable care in undertaking acts that may endanger life.
o s. 217 – stating: “Everyone who undertakes to do an act is under a legal duty to do it if an omission to do
the act is or may be dangerous to life.”
• The Ontario Court of Appeal in Thornton held that the legal duty referred to in section 180(2) can be found in
either federal or provincial statutes or at common law. It also held that a valid duty in this context is the one set
out in Donoghue v. Stevenson to “take reasonable care not to injure one’s neighbour.”
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R. v. Thornton, (1991), 3 CR (4th) 381
The accused, HIV positive, knowingly attempted to donate his blood to Red Cross. RC system screened his blood and no
one was harmed, but he was charged with s. 180 common nuisance (unlawful act + fail to discharge a legal duty and
endangers lives, safety, health, property or comfort of the public). Defence argued that no one was harmed so the accused
didn’t break any law; no law that prevents people from donating contaminated blood + no MR (simply tried to get rid of
his contaminated blood by donating). The court stated that there should have been endangerment, and mere possibility
of hurting someone is enough for s. 180 – RC system isn’t perfect (99.3%) and also the workers who would be dealing
with contaminated blood could have been endangered. MR for s. 180 is simply a marked departure (objective) –
accused’s friend testified that the accused intended to harm people and see if RC catches him.
• The Ontario Court of Appeal in Brown held that for the purposes of section 217, an “undertaking” requires a
commitment to do something that is “clearly made and with binding intent.” The “mere expression of words
indicating a willingness to act” will not suffice.
R. v. Browne, (1997) 116 CCC (3d) 183

The accused and his friend, while dealing with cocaine, encountered police. The friend swallowed a bag of cocaine to hide
it. When they arrived at the accused’ place, the friend attempted to throw up but failed. Few hours later the accused
noticed that the friend wasn’t in a good condition, he told her that he will take her to the hospital and called a cab. The
friend was taken to the hospital but died subsequently. The accused was charged with criminal negligence causing death,
and the Crown argued that he owed the victim a duty when he did undertaking acts (telling the friend that it’s okay to
swallow the bag, and also calling a cab instead of ambulance) but breached the duty. The court stated that what the
accused said to the friend was mere expression of words indicating a willingness to act, not clearly made and with binding
intent.
Consequences and Causation:
General points:
• Where the actus reus of an offence includes the causing of some prohibited result (“dangerous driving causing
death”), the Crown must prove causation BARD.
• Courts distinguish between factual and legal causation. Factual causation refers to a physical or a logical link
between the accused’s conduct and the harm or damage at issue. Where the act of the accused is the direct or main
cause of a prohibited consequence, causation is made out. But where her actions are only a contributing cause, the
court must consider whether act was also the legal cause. (Smithers)
R. v. Winning (1973), 12 CCC (2d) 449 – Factual Causation

The accused was convicted for obtaining a credit from Eaton’ by false pretenses. However, the bank did not rely on the
false information to issue her a credit, thus the accused’s conduct did not affect the issue of a credit (factual causation
missing).
• Legal causation refers to a person’s moral responsibility for a prohibited consequence where his or her acts were a
significant cause but not necessarily the only or main cause. (Smithers, Nette)
Smithers v. The Queen, [1978] 1 SCR 506 – Legal Causation

The accused kicked the victim in his stomach after a hockey game; the victim died in few minutes. Medical evidence
showed that the death was due to choking (caused by vomiting) – expert evidence suggested that the kick or playing
hockey could have caused the vomiting. The court stated that if the accused’s unlawful act contributed to the causation
of the death outside the de minimus range, he is liable for the death of the victim. The kick didn’t have to be the sole
cause of the vomit, but it can be a contributing cause to the death of the victim.
Test for legal causation:
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• The test for legal causation in criminal law is set out in Nette: the act at issue must be “a significant
contributing cause.” The majority of the SCC in Nette held that this was a preferable way of formulating the
same (or equally acceptable) test set out earlier in Smithers (of “a contributing cause beyond the de minimus
range”).
• Legal and factual causes may be distinct, with the accused’s acts forming only one of two or more operative
causes. (Smithers, Harbottle)
• The accused’s conduct therefore need not be the “sole cause,” the “main cause,” or even a “substantial cause” in
order to be the legal cause. (Smithers)
• An intervening act may interrupt the causal chain between the accused and the harm inflicted. (Harbottle,
Maybin)
• The SCC in Maybin held that courts may consider one or both of two possible ‘lines of inquiry’ to assess
whether an intervening act or event severs the causal link between the accused’s actions and the
consequence at issue:
1. was the event reasonably foreseeable – not the specific act, but the general nature of it, from the act of
the accused; and/or
2. was the event a response to the accused’s act or was it an independent, intentional act that
overwhelmed the act of the accused?
• The Smithers/Nette test applies to all offences, including manslaughter and murder, unless the offence
provision provides otherwise. The requirement to establish causation is a principle of fundamental justice under
section 7 of the Charter, as part of the broader principle that the morally innocent should not be punished.’’
• The Ontario Court of Appeal has held that the Smithers’ de minimus test does not offend fundamental justice by
setting too low a threshold for proof of causation, given the fact that for more serious crimes such as
manslaughter, the Crown must also establish objective foreseeability of a risk of bodily harm that is neither trivial
nor transitory. (Cribben)
R v Cribben 1994 OCA – Legal Causation

The accused beat up the victim and left him on the street. The victim drowned on his own blood. The accused was
charged with manslaughter, but the issue was whether the accused’s act caused the death of the victim. The accused
argued that the Smithers test standard was too low that it violated s. 7 of the Charter. The Court stated that Smithers
test did not violate the Charter, because the Crown is also required to prove BARD the objective foreseeability of
harm beyond trivial or transitory for manslaughter (MR).
Causation and murder:
• For the forms of first-degree murder set out in sections 231(5) and (6) (or where terms are used that are similar to
the ones in these provisions), the test for causation is whether the accused’s conduct was “a substantial and
integral cause of death”. (Harbottle, Nette)
o Substantial and integral cause of death test

1) The accused was guilty of the underlying crime of domination or of attempting to commit that
crime
2) The accused was guilty of the murder of the victim
3) The accused participated in the murder in such a manner that he was a substantial cause of the
death of the victim
4) There was no intervening act of another which resulted in the accused no longer being
substantially connected to the death of the victim
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5) The crime of domination and murder were part of the same transaction (the death was caused
while committing the offence of domination as part of the same series of events)
R. v. Harbottle, [1993] 3 SCR 306 – test for s. 231(5) and (6)

The accused held the victim’s legs while his companion strangled her (after his companion sexually assaulted the victim);
the issue was whether the accused’s participation was such that he can be found guilty of first degree murder. The Crown
established that the accused had committed an act or series of acts which were of such a nature that they must be regarded
as a substantial and integral cause of the victim’s death (very active physical role in killing). The court stated that it is
unreasonable to require the accused to have pathologically caused the death of the victim.
• For all other forms of murder (i.e., first and second degree), the test for causation is the one set out in
Smithers/Nette.
R. v. Nette, [2001] 3 SCR 488

The accused was charged with first degree murder for B&E the 95-year-old victim’s house for robbery and “hog-tying”
her, which caused her death. The jury found him guilty of second degree murder. The court confirmed that the causation
standard is Smithers test in all forms of homicide except s. 231(5) and (6).
R. v Maybin, 2012 SCC 24 – Causal Connection

Two accused brothers punched the victim in the face and head; victim became unconscious. Arriving on the scene within
seconds, a bar bouncer then struck the victim in the head and the victim died subsequently.
The court stated that even in cases where it is alleged that an intervening act has interrupted the chain of legal
causation, the causation test remains whether the dangerous and unlawful acts of the accused are a significant
contributing cause of the victim’s death. The intervening acts and the ensuing non-trivial harm must be reasonably
foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of
the accused. If so, then the accused’s actions may remain a significant contributing cause of death. If the intervening
act is a direct response or is directly linked to the accused’s actions, and does not by its nature overwhelm the
original actions, then the accused cannot be said to be morally innocent of the death.
Mens Rea
General points on mens rea:
• There is no single kind or level of fault that applies to all criminal or regulatory offences.
• The Supreme Court has held that it is a principle of fundamental justice under section 7 of the Charter that a
person should not be convicted of a criminal offence without the Crown having to prove a fault element, and one
that is proportionate to the gravity of the offence. (Creighton)
• Section 7 does not therefore require that a conviction for a criminal offence rest on proof of subjective mens rea.
It requires proof of a fault element, and the fault element need only attach to a blameworthy element of the actus
reus. For most crimes, objective mens rea is constitutionally sufficient, so long as it is proportionate to the gravity
of the offence. (DeSousa, Creighton)
• ‘Special stigma crimes’ are a partial exception. The Court has identified a category of offences to be ‘special
stigma’ offences, based on their stigma and penalty. In Vaillancourt, the Court held that it is a principle of
fundamental justice that a person cannot be convicted of such an offence without proof of “a mens rea reflecting
the particular nature of the crime.” For theft: proof of dishonesty; for murder: proof of subjective foresight of
death.
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• In the case of a negligence-based criminal offence, the minimal standard is negligence amounting to a marked
departure from the standard of the reasonable person. (Creighton)
• Section 7 requires that any offence that may result in a deprivation of liberty (jail, probation) cannot be an
absolute liability offence. Such an offence must either require proof of fault or allow for proof of a lack of fault
(as in strict liability). (BC Motor Vehicle Reference)
Common law presumptions about the fault element:
• Where an offence provision is silent on mens rea, the common law presumes that a certain level of fault is
required, depending on whether the offence is criminal or regulatory in nature.
o an offence can be inferred to be “criminal” where it:

▪ carries a serious penalty or stigma; and/or
▪ absolutely prohibits and punishes inherently wrongful conduct.
o an offence can be inferred to be “regulatory” where it:

▪ appears in either a provincial or federal statute;
▪ its predominant purpose is the regulation of a risk or the prevention of harm to public welfare
through the requirement to abide by a minimum standard of care or conduct; and
▪ carries a relatively low penalty and stigma (i.e., a jail sentence of roughly 3 years or less)
(Beaver, Pierce, Sault Ste. Marie, Wholesale Travel)
R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154

Is MR silent? If not, then that’s what is required MR for the offence; If yes, → look at whether the offence is regulatory or
criminal → if it is regulatory, strict liability is the default (unless specifies as absolute liability); if criminal, full MR.
Strict liability does not violate s. 7 of the Charter.
• Offences in the Criminal Code are presumed to be criminal. (Prue, Buzzanga) The same presumption arguably
extends to offences in other criminal law statutes such as the CDSA and the YCJA.
• If an offence is a criminal offence and is silent as to mens rea, there is a presumption at common law that the
offence requires the Crown to prove a subjective form of mens rea (intent, knowledge, willful blindness or
recklessness) for each element of the actus reus. (Sault Ste. Marie, Prue, Buzzanga)
• In the case of offences (aside from murder) that include aggravated assault, unlawful act causing bodily harm and
unlawful act manslaughter, the Supreme Court has held that a distinct fault element may attach to the assault or
unlawful act (subjective or objective mens rea, as the case may be), but the fault element in relation to the
prohibited consequence (bodily harm, death, etc.) may be as low as ‘objective foreseeability.’ (DeSousa,
Creighton)
• If the offence is a criminal offence, the burden rests on the Crown to prove the requisite mens rea.
• Where an offence is a regulatory offence and is silent as to the requisite fault element, there is a presumption that
it is a strict liability offence. In this case, the Crown is required to prove only the actus reus BARD and
negligence is inferred from this in the absence of proof on the part of the accused (on a balance of probabilities)
that he or she took reasonable care to avoid the prohibited consequence. (Sault Ste. Marie)
R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299

City of SSM was charged with dumping pollutant in the water – but the section they were charged under didn’t require
MR. SCC created “strict liability” as a middle ground between MR requirement and absolute liability.
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It was a regulatory offence, so the default was strict liability – the City could prove that they were not negligent.
• Not all regulatory offences are either strict or absolute liability. There is a presumption that regulatory offences
are strict liability where the offence provision is silent as to mens rea. There is a further presumption that an
offence is one of absolutely liability only where Parliament or the legislature makes this intention clear through
either explicit language or other indications, such as subject matter or context (regulatory, minor penalty, no
stigma). However, Parliament and provincial legislatures can also create a regulatory offence that requires the
Crown to prove a mens rea element, either subjective or objective (e.g., knowledge, intent, reasonable
foreseeability, etc.) by including language to this effect.
Hierarchy of forms of mens rea or fault:
1. full or subjective MR (silent MR – intention, knowledge, willful blindness, recklessness)

2. objective foresight or knowledge (the accused ought to have known a consequence would follow)
3. criminal negligence (occurs only where offence is pursuant to ss. 219, 220, or 221; “wanton and reckless
disregard)
4. penal negligence (careless use of a fire arm, dangerous driving, etc.)
5. strict liability (Crown proves AR, accused may establish defence of due diligence or incapacity)
6. absolute liability (Crown proves AR, no fault necessary)
Subjective mens rea:
• If a criminal offence contains a specific term or phrase such as “with intent,” “wilfully,” “knowingly,” etc., this
will generally exclude lower forms of mens rea. For example, a provision requiring that a prohibited consequence
be committed intentionally, willfully, or on purpose will exclude knowledge, wilful blindness, or recklessness as
alternate forms of mens rea. (Buzzanga; Chartrand, SCC 1994)
R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369

The accused was charged with willfully promoting hatred against Francophones by publishing pamphlet that was a satire
of those who opposed bilingualism. The accused argued that it was to combat apathy in the French-speaking community
in relation to the building of a French-language school.
“willfully” = “intentionally” → intent is 1) deliberately intending the outcome; 2) certain or substantially certain of
the outcome.
The court stated that they “willfully promoted hatred” only if 1) their deliberate intention was to promote hatred and 2)
they were certain or substantially certain that disturbing pamphlet will promote hatred.
R. v Briscoe, [2010] 1 SCR 411

The accused was charged as a party to the offence of first-degree murder, kidnapping and sexual assault. The Crown
stated that the accused assisted in the crimes by driving the group to the crime scene, providing a weapon, and holding the
victim and telling her to shut up. The court found that the accused was willfully blind to the crime.
“Willful blindness” = “Knowledge” → knowledge to an accused whose suspicion is aroused to the point where
he/she sees the need for further inquiries but deliberately chooses not to make those inquiries.
• Wherever knowledge is an element of the fault component for an offence, wilful blindness is an acceptable
substitute. (Briscoe)
• Where a provision requires the proof of intention or wilfulness, the Crown may prove this by establishing either:
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i. direct intent: i.e., that the accused consciously or deliberately intended to bring about the prohibited
consequence. (For example, in the offence of ‘wilfully promoting hatred’: a person intends to communicate
and also directly/explicitly intends for his communication to promote hatred)
ii. indirect intent: i.e., that the accused intended to do one thing but subjectively foresaw that a prohibited
consequence was certain or substantially certain to follow from it. (For example, communicating something
that is substantially certain to promote hatred – here a person may intend only to communicate something
satirical, but where he also foresees that it is substantially certain to promote hatred as well, he is deemed to
have intended to promote hatred too, even though his immediate intention might only have been to
communicate a satirical message.)
a. Note that in some cases the Code or statute may provide otherwise: e.g., section 429(1) of the Code
states that in Part XI of the Code, a person may do something ‘wilfully’ where she acts with
knowledge that a prohibited consequence is only probable.
• At common law, in both cases the accused will be found to have intended the prohibited consequence. (Buzzanga)
• Where an offence requires that something be done ‘for the purpose’ of achieving a prohibited result, the Crown
need only prove that a person acted intentionally or deliberately in effecting that result. The Crown need not prove
that the person also desired it. Conversely, where a person carries out a certain act deliberately but does not desire
that it be done (killing, assault, etc.), she does not thereby negate the intentional character of her act (but she may
rely on the defence of duress). (Hibbert)
R. v. Steane, [1947] 1 KB 997

The accused was charged for assisting German Nazi; the law read “if with intent to assist the enemy…” The accused
argued that he was working for German Nazi because they threatened to harm his family; his motive was to save his
family, not to assist them. He claimed that he did not have intention to assist, he was under duress. The court stated that
the guilty intent must be proved by the Crown.
Hibbert v. The Queen, [1995] 2 SCR 973

The accused was charged with attempted murder for luring the victim out of his apartment for principal and stood by
when the principal shot the victim. The issue was whether the accused was acting for the purpose of aiding the principal
under s. 21(1)(b) – party to the offence, aiding.
The court stated that the meaning of “purpose” in this section should not be read as “desire”, but rather it is
synonymous with “intention”. Thus MR for aiding in this section is not susceptible of being negated by duress –
but common law duress can be relied on as an excuse.
• Recklessness is a subjective form of mens rea in which a person is aware of a risk (of a prohibited result) but
decides to take it. (Sansregret)
R. v. Sansregret, [1985] 1 SCR 570

Negligence = objective MR
Recklessness = subjective MR; aware of the risk and by proceeding in the face of it
Willful blindness = subjective MR; deliberately chooses not to make an inquiry when there’s a need to
• Wilful blindness is a form of mens rea in which a person becomes aware of the need for some inquiry but declines
to make it (or is “deliberately ignorant”). (Sansregret, Duong, Briscoe)
• Whether a person was reckless or wilfully blind does not involve a consideration of the perspective of the
reasonable person. Where an offence requires proof of recklessness or wilful blindness, the question for the trier
of fact is not whether the accused ought to have been aware of a risk, or ought to have made an inquiry, but rather,
whether she was personally aware of a risk or deliberately ignorant of the need for an inquiry. (Sansregret,
Briscoe)
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Objective forms of mens rea:
• Objective forms of mens rea are offences in which one or another part of the fault element of the offence is
assessed in terms of the reasonable person.
• The form or level of objective fault may vary depending on the offence. Some offences require only ‘objective
knowledge,’ or the reasonable person’s awareness of the likelihood of a prohibited consequence or risk thereof.
Other offences employ the concept of negligence and are assessed in terms of the accused’s departure from the
standard of care of the reasonable person.
• Criminal offences that involve the concept of negligence take two forms. “Criminal negligence” refers exclusively
to the offences set out in sections 219, 220, and 221. These hold a person criminally responsible for either their
awareness of or failure to be aware of conduct amounting to a marked and substantial departure from the standard
of care the reasonable person (or the risk thereof) and their failure to avoid it where the reasonable person in their
circumstances would have been able to.
• By contrast, all other criminal offences that involve the concept of negligence are referred to as “penal
negligence” offences. A person is held responsible under these offences for the same awareness or failure to be
aware of a risk arising from their conduct as in “criminal negligence” offences, but here the standard is simply
conduct amounting to a marked departure from that of the reasonable person.
• For all criminal offences involving objective forms of fault, the onus remains on the Crown to prove mens rea.
• By contrast, the Supreme Court in Wholesale Travel held that the minimum level of fault required in order for a
regulatory offence carrying a prison sentence to be consistent with section 7 of the Charter is negligence
simplicitor. (Thus, a provincial offence leading to jail can rest on strict liability.)
• In a strict liability offence, negligence may be inferred from the actus reus in the absence of proof that the
accused acted with reasonable care (due diligence). The Crown need not prove a fault element – it suffices for the
negligence to be inferred from the actus reus with the persuasive burden shifting to the accused to prove a lack of
negligence. (Wholesale Travel)
• In criminal offences involving an objective form of fault, courts apply a “modified objective test,” which asks
whether the risk raised by the conduct at issue would have been foreseeable to the reasonable person in the same
circumstances of the accused – but without the reasonable person sharing the personal characteristics of the
accused such as age, education, and experience. (Creighton)
i. Objective foresight or knowledge:
• Forms of objective fault are found in a variety of offences. For example, some might require that a person “knew
or ought of have known” something. Some offences of objective fault entail a dual structure where part of the
actus reus might require subjective (or objective) fault but the prohibited consequence requires only objective
foresight of non-trivial harm. Examples of this include manslaughter, unlawful act causing bodily harm, and
assault causing bodily harm. To be clear, then, in the case of manslaughter (by unlawful act) or unlawful act
causing bodily harm (s. 269), the Crown must prove the mens rea for the unlawful act (intent for assault),
along with objective foreseeability of the risk of bodily harm beyond the trivial or the transitory.
(Creighton, DeSousa)
R. v DeSousa, [1992] 2 SCR 944
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A bottle allegedly thrown by the accused and smashed on the wall injured the victim (due to broken glass pieces); the
accused was charged with unlawfully causing bodily harm under s. 269. SCC stated that “unlawful act” in this section
means “objectively dangerous act”, such as driving without due care.
ii. Penal and criminal negligence:
• In Creighton, the Court set out a general framework for assessing the actus reus and mens rea for penal
negligence offences:
o Actus reus: an act or omission constituting a marked departure from the conduct of the reasonably prudent
person in the circumstances.
o Mens rea: (a) awareness of the risk arising from conduct amounting to a marked departure from that of the
reasonable person in the circumstances; or (b) the failure to be aware of this risk where it was objectively
foreseeable (which may be inferred from the actus reus absent evidence of incapacity or a reasonable mistake
of fact).
• To be clear, where the actus reus has been proved (i.e., conduct amounting to a marked departure), the accused
bears an evidentiary but not a persuasive burden with respect to the defences of incapacity and mistake of fact.
The accused can thus raise a doubt about whether the reasonable person in her circumstances would have been
aware of the risk by virtue of adducing some evidence of:
i. incapacity (i.e., the accused suffered some physical or mental incapacity that would have prevented
the reasonable person, suffering the same condition, from appreciating the risk posed by the conduct
at issue, or abiding by a reasonable standard of care); or
ii. an honest and reasonable belief in a mistaken fact.
• For either defence, once the evidentiary burden is met (some evidence), the persuasive burden remains on the
Crown to prove BARD that incapacity or mistake of fact do not apply (i.e., there is no reasonable possibility that
they do apply). (See note on mistake of fact below.)
R. v. Creighton, [1993] 3 SCR 3

The accused, experienced drug user, injected cocaine to his friend and the friend died of overdose. The accused was
charged with criminal negligence.
The court stated that objective MR is used for criminal negligence, and RP is sharing the same characteristics as the
accused. In this case, RP would be an experienced drug dealer.
• The Supreme Court in R v JF confirmed that a similar framework applies to criminal negligence (s. 219):
o Actus reus: an act or omission “showing wanton and reckless disregard” for the lives or safety of others,
which is assessed on the basis of whether the conduct in question constituted a marked and substantial
departure from the standard of care of the reasonable person in the circumstances [+ causing either bodily
harm or death, depending on whether person is charged under section 220 or 221].
o Mens rea: (a) awareness of the risk to lives or safety of others arising from conduct amounting to a marked
and substantial departure from that of the reasonable person in the circumstances; or (b) the failure to be
aware of this risk where it was objectively foreseeable (which may be inferred from the actus reus absent
evidence of incapacity or a reasonable mistake of fact).
• The defences to criminal negligence would operate in the same fashion as those for penal negligence offences, as
noted above.
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• The Supreme Court’s decision in Beatty entails a slight exception to this framework for negligence-based criminal
offences in that it holds that the actus reus for dangerous driving in s. 249 is driving that is “objectively
dangerous, having regard to all the circumstances.” The mens rea requires proof of a marked departure from
conduct of the reasonably prudent driver and either the awareness of the risk arising from this or the failure to be
aware of it when it was objectively foreseeable (absent evidence of incapacity or a reasonable mistake of fact).
R. v. Beatty, 2008 SCC 5

The accused’s truck crossed the centre line in a two-lane highway and collided with another car, killing the driver.
AR for dangerous driving: driving was objectively dangerous; and

MR for dangerous driving: it constituted a marked departure from the norm and the RP in the circumstances would have
been aware of the danger and, if possible, acted to avert it.
In this case, the driving was dangerous (AR met), but the accused had a momentary lapse of attention and from RP,
momentary lapse is not marked departure (MR not met).
R. v Roy, 2010 SCC 26

The accused pulled into the road to turn left on a foggy day. He saw the oncoming light but he thought it was farther away
and was coming slower; two cars collided and the accused’s passenger was killed. The court stated that for MR, RP would
not have foreseen the risk and it was a misjudgment.
• In a series of cases dealing with penal negligence, the Supreme Court has held that given the criminal nature of
these offences, section 7 of the Charter requires at least proof on the part of the Crown of negligence to the
standard of a marked departure. Put otherwise, the minimal constitutional standard of negligence for a criminal
offence is proof of conduct amounting to a marked departure from the standard of care of the reasonable person—
and either the accused’s awareness of this or their failure to be aware in circumstances in which the reasonable
person would have been aware. (Creighton, Hundal, Beatty)
R. v. Hundal, [1993] 1 SCR 867

The accused’s truck drove into the intersection at red light and killed the other driver. He was charged with careless
driving causing death. The court decided that dangerous driving should be proven with objective MR and the reasonable
person in the objective test shares the context of the circumstances surrounding the accident.
AR for dangerous driving: marked departure from the conduct of the reasonably prudent driver
MR for dangerous driving: 1) whether driver was aware of the risk arising from conduct; or 2) whether driver
failed to be aware of risk in circumstances where the risk was objectively foreseeable, absent evidence of
incapacity.
Strict Liability:
• Where a regulatory offence is silent as to mens rea, there is a presumption that it is a strict liability offence. (Sault
Ste. Marie)
• In a strict liability offence, the Crown must prove only the actus reus beyond a reasonable doubt. The accused
may raise a doubt about the actus reus by adducing evidence that the act was involuntary (or by raising a doubt
about whether it was voluntary). (Sault Ste. Marie)
• In a strict liability offence, once the Crown has proved the actus reus, the accused is entitled to an acquittal if he
can establish, on a balance of probabilities, that he:
i. took all reasonable care to avoid the event (due diligence); or
ii. reasonably believed in a mistaken set of facts.
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• In assessing reasonable care or reasonable mistake of fact here, “the Court considers circumstances that the
reasonable person would have seen, not the circumstances that the accused actually perceived.” (K. Roach,
Criminal Law, 5th edition.)
• Placing the accused in this reverse onus violates 11(d) of the Charter but is justified under s. 1 on the basis of the
importance of strict liability offences as a means of advancing public policy objectives and the difficulty of
requiring the Crown to prove negligence in cases of this nature. (Wholesale Travel)
Absolute Liability:
• In an absolute liability offence, the Crown need only prove the actus reus (beyond a reasonable doubt). The
accused may raise a doubt whether the actus reus has been proved and/or was carried out voluntarily.
• An offence is presumed not to involve absolute liability unless Parliament or the legislature makes this intention
clear through explicit language, or if the subject matter or context implies this. (Levis, Sault Ste. Marie)
• An absolute liability offence that gives rise to the possibility of imprisonment or other deprivations of liberty
(probation) violates section 7 of the Charter and is not justified under section 1. (B.C. Motor Vehicle Reference)
Reference re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 SCR 486
Driving while prohibited (absolute liability) + imprisonment = violation of s. 7 and not saved under s. 1 of the Charter.
This engages the principle that the morally innocent should not be punished.
• An absolute liability offence may be defended by seeking to raise a doubt about whether the actus reus was
committed voluntarily due to automatism, mental disorder, extreme intoxication, or necessity. The defence of
mistake of fact (even if reasonable) is not available. (Hickey, OCA 1976; K. Roach, Criminal Law, 5th edition.)
Constitutional Considerations:
• The Supreme Court has held that certain offences carry a “special stigma” – possibly involving the penalty
attached to them, but not necessarily – and that the principles of fundamental justice require proof of a level of
fault commensurate with this stigma. A conviction for theft would require “proof of some dishonesty,” for
murder, proof of “subjective foresight” of death. (Vaillancourt, Martineau)
R. v. Vaillancourt, [1987] 2 SCR 636

The accused’s accomplice shot and killed a person during robbery; they previously agreed that the robbery would be
committed without a use of gun and the accused ensured that such would be the case (took the bullets from the
accomplice). SCC stated that s. 229 (culpable homicide) requires intent to kill or subjective knowledge that the death is
likely to ensue.
• A conviction for murder cannot be based on proof of an objective form of fault, i.e., what the accused “ought to
have known” or “ought to have foreseen.” (Martineau)
R. v. Martineau, [1990] 2 SCR633

The accused and his accomplice agreed to commit B&E; accomplice was armed without the accused’s knowledge.
Accomplice killed two people during B&E.
SCC stated that s. 7 of the Charter requires nothing less than subjective foresight for stigma offences. In this case, the
Crown should prove that the accused had subjective foresight of death of the victims.
• In the case of ‘war crimes’ or ‘crimes against humanity,’ fundamental justice requires more than the mens rea for
the various crimes committed as part of these offences (murder, kidnapping, etc.). It also requires additional
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subjective mens rea of the fact that the actions in question are carried out in circumstances which bring the
offence within the definition of war crimes or crimes against humanity. (Finta)
Note on the defence of ‘mistake of fact’
• Mistake of fact is a defence in the sense that it may form the basis of a reasonable doubt about mens rea rather
than serving as a justification or excuse where elements of the offence have been established.
• In the case of full or subjective mens rea offences, an honest but mistaken belief in a fact may raise a doubt about
mens rea even if the belief is not reasonable.
• In the case of subjective mens rea offences, “the existence or non-existence of reasonable grounds” for a mistaken
belief “is merely relevant evidence to be weighed” by the trier of fact in assessing whether the belief was honestly
held. (Rees)
• In the context of sexual assault (a subjective mens rea offence), the operation of this rule has been qualified by
section 273.2(b) which states that an accused may not rely on a mistaken belief in consent unless he or she can
establish that they took “reasonable steps, in the circumstances known to the accused at the time, to ascertain that
the complainant was consenting”.
• In the case of negligence-based and objective mens rea offences (objective foresight), mistake of fact is available
as a defence but subject to the requirement that the mistaken fact be both honestly held and reasonable (i.e., in the
eyes of the reasonable person).
Evidentiary and Persuasive Burdens in Mistake of Fact:
For full subjective and objective fault criminal offences:
• The accused bears an evidentiary but not a persuasive burden to rely on this defence. The test for an evidentiary
burden in the case of defences generally is that the accused must simply raise some evidence for each element of
the defence on which a properly instructed jury acting reasonably could acquit if it believed the evidence to be
true (or in this case, if it believed the mistake was honestly held [and also, for objective fault offences,
reasonable]).
• Once the evidentiary burden is met (i.e., ‘some evidence for each element’), the Crown must prove BARD that
the mistake was either not honestly held or, in the context of an objective fault offence, not honestly held or not
reasonable or both. (i.e., that there is no reasonable possibility that…)
For strict liability:
• The Crown bears a burden to prove only the actus reus BARD, and then both the evidentiary and persuasive
burdens shift to the accused to prove, on a balance of probabilities, that she took reasonable steps to avoid the
conduct at issue or acted on the basis of a belief, honestly and reasonably held, amounting to a mistake of fact.
PARTICIPATION OFFENCES
1. Counselling:
• Section 22 renders the liability or jeopardy of a person who counsels an offence that is committed to be the same
as the principal.
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• Counselling can be defined as the act of telling, persuading, inciting, procuring, or soliciting another to commit an
act that is an offence. (Hamilton)
• Section 22 states that where a person counsels another person to commit an act that is an offence, and that person
commits the offence, the counsellor is a party to that offence. The section also states that a person who counsels
will be a party to any other offence the counselled person commits that was reasonably foreseeable from the act
counselled.
• Section 464 sets out the distinct offence of “counselling an offence that is not committed.” It renders the jeopardy
of a person who counsels to be the same as that of an attempt to commit the offence counselled (i.e., half the
jeopardy of the indictable offence, but the same if it’s summary).
The elements of counselling a crime that is committed (section 22):
• Actus reus: active inducement or encouragement to do an act that is an offence + the offence being committed or
an offence that is reasonably foreseeable from the act counseled.
• Mens rea: a knowledge or intention that the offence be committed, or intentionally inciting an act with objective
foresight that the offence would be committed (though this latter possibility would not apply to murder or attempt
murder: Logan).
The elements of counselling a crime that is not committed (section 464):
• Actus reus: active inducement or encouragement of the commission of a criminal offence.
• Mens rea: intent that the offence counselled be committed, or knowingly counseling when aware of an unjustified
risk that the offence is likely to be committed. (Hamilton)
• (The Court in Hamilton distinguishes the second element of the mens rea from mere recklessness on the basis that
it requires an awareness not of the possibility but of the likelihood that the offence will be committed.)
2. Conspiracy:
• The offence of conspiracy is codified in section 465 but defined at common law, consisting in an agreement (tacit
or express) between two or more persons to commit an offence. The offence lies in the fact of the agreement and a
common intention (between two or more persons) to put the common design into effect. No further acts or
elements are necessary.
• The actus reus of conspiracy [in a prosecution against a single conspirator] is the fact of the agreement between
the accused and one or more other persons to commit an offence and the intention on the part of at least two or
more of the parties (including the accused) to carry out the planned offence.
o “…[E]ach of the conspirators must have a genuine intention to participate in the agreement.” Dynar
o The offence is thus unusual in the sense that a co-conspirator’s intention or mental state is part of the AR
of the offence against the accused.
• The mens rea is the accused’s intention to enter into the agreement and his or her intention to put the common
design into effect.
• To convict either or both parties to a conspiracy, the Crown must prove that there was an agreement between two
or more, and that both intended to carry it out; mere words by one party (e.g., an undercover officer) would not
suffice to establish an agreement. (O’ Brien)
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• There must be a ‘common design’ or some general agreement about the nature of the offence to be committed (“a
common purpose of a single enterprise”), though there may be changes to the plan over time. (Cotroni).
• A conspiracy is not established simply on the basis of proof of knowledge of the plan, or of participation in it.
(i.e., the Crown is required to prove an agreement: an intent, among two or more, to enter into it the scheme and
to carry it out.)
3. Attempts:
• Section 24(1) sets out the offence of attempting to commit an offence and renders a person culpable for the
offence regardless of whether it was (factually) impossible to it.
Elements of attempt
• Actus reus: going beyond mere preparation to commit the offence. (Deutch)
• Mens rea: specific intent to commit the predicate offence. (Ancio)
R. v. Ancio, [1984] 1 SCR 225

The accused broke into his wife’s new bf’s house with a gun, and the gun was fired while he was having a physical
altercation with the new bf, injuring him. The court stated that attempted murder also requires the Crown to prove specific
intent to kill (same MR as murder).
Deutsch v. The Queen, [1986] 2 SCR 2

The accused advertised for a position and during the interview he explained that sexual act is required with the clients &
potential clients – no offer was made, he was caught. The Court stated that the AR required is fact-dependent but a key
factor is relative proximity of the act and the completion of the act in terms of time, location, and the acts to be
completed.
Points from the case law
• On the actus reus:
o An act goes “beyond mere preparation” in law when a person takes the first step toward committing the
offence after preparation is complete. (Cline)
o The question of whether preparation is complete is qualitative, with no clear line between mere
preparation and attempt; where it is unclear whether preparation was complete, a court should assess the
relative proximity of the steps taken to the complete offence, in terms of time, location, and acts to be
completed. (Deutsch)
o Where actions (possibly amounting to attempt) are, on their face, equivocal (ambiguous), the mens rea for
committing the offence (or attempting to) cannot be inferred. (Sorrell and Bondet)
o The general attempt provision, section 24(1), precludes as a defence the claim that it was factually
impossible to commit the complete offence (reaching into a pocket to steal a wallet that wasn’t there).
This left uncertain whether section 24(1) still allows for the defence of legal impossibility (if I tried to
steal an umbrella that turned out to be mine, it would not have been a crime in law). The Supreme Court
in Dynar held the distinction between these two forms of impossibility to be false: they are both
essentially forms of factual impossibility.
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o In place of the distinction between factual and legal impossibility, the SCC in Dynar held that the only
relevant distinction to draw here is one between factually impossible offences and ‘imaginary crimes’.
Only the latter are a defence to attempt.
▪ To assess whether a person’s conduct amounted to an offence that it was factually impossible to
commit as opposed to being an imaginary crime, the Court in Dynar asks whether the person’s
mental state is the mens rea of an offence known to Canadian law. For example, where you reach
into a pocket to steal a wallet that isn’t there or try to steal an umbrella that happens to be yours,
you have the mens rea for theft. If you smuggle sugar into Canada knowing it to be sugar but
believing it to be a crime to ‘import sugar’, you do not have the mens rea of an offence under
Canadian law.
United States of America v. Dynar, [1997] 2 SCR 462

The accused, with his accomplice, believed that they were laundering money for someone in the US. It was in fact a FBI
trap and the person was a FBI agent; the accused argued that his crime was factually and legally impossible. The Court
found that the accused had intention for money laundering – this is factual not imaginary. If it was real money, it
would’ve been a real crime; therefore, it’s a crime in Canada.
• Points from the case law on the mens rea of attempt:
o Where an offence might require a lesser form of mens rea to obtain a conviction for the complete offence
(recklessness, knowledge, etc.), a conviction for attempting to commit that offence will require nothing
less than the intention to carry out the complete offence (all elements). (Ancio, Williams)
▪ (e.g., murder allows for a conviction where there is either an intent to kill or an intent to do bodily
harm that the accused knows is likely to cause death; but for attempted murder, subjective
foresight of death will not suffice. A conviction requires an intent to cause death. Similarly, while
aggravated assault requires only subjective fault for assault + objective foreseeability of the
aggravated consequences (maiming, endangerment, etc.), the offence of ‘attempted aggravated
assault’ requires an intent to cause maiming, endangerment, etc.)
4. Parties
• Section 21 renders a person equally culpable for an offence a principal offender commits where he or she aids or
abets the principal (21(1)), or forms a common intention with him or her to carry out an unlawful purpose (21(2)).
• Aiding and abetting are similar and often indistinguishable in practice, but are distinct concepts.
• Aiding means assisting or helping; abetting means encouraging, instigating, or promoting. (Briscoe)
Elements of Aiding in s. 21(1)(b): (from Briscoe)
• The actus reus of aiding is doing or omitting to do something to assist in the commission of an offence.
• The mens rea of aiding has two parts:
1) an intent to assist the principal in committing the offence; and
2) knowledge of the type of offence the principal intends to commit (but not the precise manner).
• In the second part of the test, willful blindness may be substituted for knowledge, but not recklessness. (Briscoe)
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Elements of Abetting in s. 21(1)(c)
• The actus reus of abetting is encouraging another to commit the offence.
• The mens rea is intentionally or knowingly encouraging a person to commit the offence.
• In the case of murder, a party either aiding or abetting would require the additional element of “knowledge that
death is likely.” (Martineau)
• In the case of being a party to attempt murder, the mens rea for aiding or abetting would be intending to do
something to aid or abet + knowledge that the principal will do something with the intent to kill. (Logan)
R. v. Nixon (1990), 57 CCC (3d) 97 (BCCA)

A police officer beat up a person in the cell and broke his knee. Officer in charge at the scene did not do anything when
the assault happened. The court found that the Officer in charge had a duty to act in that case and failure to do so is
omission that aids and abets the assault.
Points from the case law on s. 21(1)
• The line to be drawn between being a party (for aiding or abetting) and being a bystander lies in whether person is
more than merely present at the scene of a crime. Mere presence, or being present and failing to stop or prevent a
crime, does not amount to aiding or abetting. (Dunlop and Sylvester)
• Something more is required in addition to mere presence to amount to aiding or abetting. This can include
encouragement, facilitation (keeping watch, holding victim down), or preventing interference with the criminal
act. (Dunlop and Sylvester)
• Presence may amount to aiding or abetting where a person had prior knowledge of the principal’s intent to
commit the offence or where the attendance was for the purpose of encouraging. (Dunlop and Sylvester)
Dunlop v. Sylvester v. The Queen, [1979] 2 SCR 881

The accused went to a party where he witnessed the victim being gang raped by a bike club members; he dropped off the
beer, stayed a few minutes and left. The Court stated that he was not a party to the offence, but rather he was a bystander.
In order to be a party, there should be more than a mere presence.
• Presence may also establish involvement in a crime based on the cumulative effect of a series of factors including
the accused’s apprehension at the scene, a rejection of his explanation for being there, the nature of the offence,
the context in which it was committed, or other circumstantial evidence of guilt. (Jackson)
R. v. Jackson, 2007 SCC 52

The accused was sleeping in a tent with marijuana grow-op; he was wearing rubber boots and was surrounded by
marijuana equipment. Evidence indicated that he was at the scene that amount to aiding/abetting – more than mere
presence.
• A court may convict a person as a party where the elements of the offence under s. 21(1)(b), 21(1)(c) or 21(2) can
be established, even though the identity of the principal is unknown, and even though the precise role played by
the party and the principal in the commission of the offence is unclear. (Thatcher)
• In such a case, the jury need not be unanimous as to whether the accused was a party or a principal, so long as
jury members are in agreement that the evidence proves BARD that he was one or the other. (Thatcher)
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R. v. Thatcher, [1987] 1 SCR 652
The accused was a wealthy man who was going through a bad separation with his wife; she was once shot through her
kitchen window, and later, she was murdered in her garage. A witness saw someone fled from the scene but didn’t match
with the accused.
There was overwhelming evidence that he was a party to the murder. The court stated that the accused can still be
convicted when the principle is unknown, and the jury doesn’t need to be unanimous on whether the accused was the
principle or the party.
• A person who aids or abets only a purchaser cannot be convicted as a party to trafficking under section 5 of the
Controlled Drugs and Substances Act. But a person who aids both a purchaser and a seller and intends the sale to
be completed, can be found guilty of being a party to trafficking – even though she worked primarily with or on
behalf of the purchaser. (Greyeyes)
R. v. Greyeyes, [1997] 2 SCR 825

The accused acted as a facilitator for the undercover officer to obtain cocaine; he took him to the seller, handed money
over from the officer and paid for the drug, and took the commission for his facilitation. The Court stated that the helper
cannot be convicted of a party to the trafficking; purchaser would be convicted of simple possession, and the result would
be absurd.
Common intent, s. 21(2):
• Under section 21(2), where a person forms an intention in common with another person to carry out an unlawful
purpose (an act that is a criminal offence) and to assist the other person in carrying it out, he or she is liable (as a
party) for offences committed by the other person that he or she knew or ought to have known would be a
probable consequence of carrying out the common purpose.
• Actus reus: forming of an intent in common to carry out an unlawful purpose (a criminal act) and to assist each
other in carrying it out, along with the offence being carried out or any reasonably foreseeable offence (or lesser
included offence).
• Mens rea: an intention to carry out the unlawful purpose and to assist the other person(s) therein, along with
knowledge or objective foreseeability that the (actual) offence would be carried out.
• The objective element of the mens rea in 21(2) does not apply to a party to a murder or attempt murder. These
cases require knowledge that death would likely result from the unlawful act that both intended to carry out. (The
possibility of a conviction on the basis of objective mens rea in the case of murder, attempt murder, offends
section 7: Martineau, Logan.)
• In the case of being a party to attempt murder under 21(2), the mens rea would be: forming an intent to carry out
an unlawful purpose + an intent to assist another therein + knowledge that the principal will do something with
the intent to kill. (Logan)
o A person charged as a party to murder or attempt murder under section 21(2) may be liable for a lesser
included offence such as manslaughter or assault (i.e., if they intended to carry out an act that gives rise to
the reasonable possibility of causing bodily harm beyond the trivial or transitory: Creighton, Logan).
5. Accessory after the fact
• Section 23 makes it an offence to receive, comfort, or assist a person that one knows has been a party to an
offence for purpose of enabling them to escape.
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• Actus reus: receiving, comforting, or assisting a fugitive.
• Mens rea has two components:
1) subjective knowledge that the fugitive has been a party to an offence; and
2) assisting the fugitive for the purpose of helping him escape.
• Willful blindness is a valid substitute for the knowledge element here. (Duong)
R. v. Duong (1988), 124 CCC (3d) 392 (OCA)

The accused helped his friend, who committed murder and escaping from law enforcement, to hide in his apartment. The
accused knew the friend’s situation. He was charged with accessory to the murder.
• The actus reus requires a positive act (receiving, comforting, etc.) rather than just a failure to inform authorities
about a fugitive’s whereabouts. (Dumont)
• Advising a fugitive that police had their names and licence numbers is sufficient for the actus reus.
• It will not suffice to prove that acts of assistance had the effect of helping a fugitive to escape; the Crown must
also prove that they were done for this purpose. (McVay)
• To establish that the fugitive has been a party to an offence, the Crown must prove that the principal has
committed the actus reus of that offence. (R v. S(FJ))
o Section 657.2(2) of the Code states that evidence from a prosecution of another person for the offence is
admissible against the accused and “in the absence of evidence to the contrary is proof that the offence
was committed.”
• The accused can be convicted of being an accessory after the fact even if the principal was acquitted. (s. 23.1 and
Shalaan, SCC 1998)
Final (miscellaneous) points:
• A person accused of being either a party to an offence or attempting an offence may invoke the doctrine of
abandonment to raise a doubt as to whether they had the requisite mens rea. Once raised, the Crown maintains the
persuasive burden to establish BARD that the accused did not intend to abandon the offence.
• In the case of attempt, the abandonment must occur before preparation is complete.
• Section 23.1 of the Code states that a person may be convicted under sections 21 to 23 (i.e., as a party for aiding,
abetting, forming an intention in common; for counselling; or as an accessory after the fact) despite the fact that
the person whom they aid, abet, form an intent in common with, counsel, or assist as an accessory cannot be
convicted of the offence.
HOMICIDE
General points:
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• Section 222 of the Criminal Code defines homicide as directly or indirectly causing the death of a human being. It
also identifies four forms of homicide: non-culpable, murder, manslaughter or infanticide.
• Infanticide functions as both an offence (mother killing baby when still suffering post-partum effects) and a
partial defence to murder (lowering murder to manslaughter).
• Manslaughter may be punished up to life and has no mandatory minimum sentence, except if the act involves a
firearm, in which case it carries a mandatory 4-year minimum.
• Murder carries a mandatory life sentence, with a minimum 10-year parole ineligibility period for second degree,
and 25 years of ineligibility for first degree. (Different rules apply to a ‘young person’ who commits murder, even
when sentenced as an adult.)
Manslaughter
• The most common forms of manslaughter are set out in section 222(5):
o section 222(5)(a) causing death by an unlawful act;1 or (An unlawful act causing death might also be
murder or infanticide, if the elements for those offences are made out (the elements are set out in sections
229 and 233, respectively).)
o section 222(5)(b) by criminal negligence.
Unlawful act manslaughter:
• The actus reus of unlawful act manslaughter is an unlawful act that causes death (causation test is Smithers –
beyond de miniums). The unlawful act may consist of any federal or provincial offence other than an absolute
liability offence, and one that entails a risk of bodily harm.2 (DeSousa) (The Supreme Court’s holdings in
Creighton and DeSousa suggest that if the unlawful act here is a strict liability offence, the court should read in a
requirement of proof on the standard of penal negligence: i.e., the Crown must prove BARD that the act
constituted a marked departure from the standard of conduct of the reasonable person.)
• The mens rea for unlawful act manslaughter is (a) the fault element (intention) for the unlawful act and (b)
objective foreseeability of a risk of bodily harm beyond the trivial or transitory. (Creighton)
• The reasonable person in this test (as in all objective mens rea offences) is one who is in the same circumstances
as the accused and shares any of the accused’s characteristics that would render her unable to appreciate the risk
(i.e., the same incapacities as the accused). (Creighton)
Manslaughter caused by criminal negligence (section 220)
• Actus reus: An act or omission “showing wanton and reckless disregard” for the lives or safety of others, which is
assessed on the basis of whether the conduct in question constituted a marked and substantial departure from the
standard of care of the reasonable person in the circumstances + causing death.
• Mens rea: (a) awareness of the risk presented by this conduct or (b) the failure to be aware of the risk where it
was objectively foreseeable, and absent evidence of incapacity or a reasonable mistake of fact. (R. v. J(F))
Murder
• Section 229 sets out four ways to commit murder:

i. 229(a)(i) causing death where the accused means to cause death;
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ii. 229(a)(ii) causing death where the accused means to cause bodily harm that he knows is likely to
cause death;
iii. 229(b) where the accused means to cause death or bodily harm (that he knows is likely to cause
death) in relation to one person but by accident or mistake kills another; or
iv. 229(c) where a person pursuing an unlawful object does anything that he knows is likely to cause
death and causes death despite the fact that he desired to effect the unlawful object without causing
death or bodily harm.
• The phrase “likely to cause death” in section 229(a)(ii) has been interpreted to mean that death is “probable” and
not simply a possibility, a risk, or a chance. (Roks)
• As worded (but not as paraphrased above), 229(c) allows for a conviction on the basis of objective foreseeability
of death, which is contrary to section 7 and not saved by section 1. (The objective portion of the offence has been
struck down [see Mens Rea Summary] and the portion paraphrased above remains valid.) (Martineau)
Causation for murder:
• In addition to special rules for causation in sections 224 to 226 of the Code, which apply to all forms of culpable
homicide, the general common law test for causation applies to murder: “a significant contributing cause.”
(Nette)
• The exception to this is that a distinct causation test applies to provisions that raise second degree murder to first
degree which contain the phrase “caused by that person”. These include sections 231(5), 231(6), 231(6.01), (6.1),
and (6.2): where death is intentionally caused during a sexual assault, kidnapping, hostage taking, criminal
harassment, terrorism, etc.
• For these provisions, the causation test is a “substantial and integral cause” (Harbottle). Note that this test does
not apply to section 231(2), which states generally that “Murder is first degree murder when it is planned and
deliberate”, or to provisions which raise to first degree the murdering of a police officer (231(4)) or murder in the
case of a contract killing (231(3)).
First degree murder:
• First degree murder is not a distinct offence but a classification of a form of murder for sentencing purposes.
(Thus, the elements of murder must be made out first.)
• Murder is first degree murder when it is planned and deliberate. (Section 231(2))
o planned means a “calculated scheme or design” though either can be simple. A murder may be “planned”
even if it is immediately carried out. (Widdifield)
o deliberate means “slow in deciding,” “considered,” or “not impulsive.” (Widdifield)
o murder can be “planned and deliberate” even where it entails a plan to inflict bodily harm with knowledge
that it is likely to cause death. (Nygaard)
o A murder will be first degree under section 231(5) if death is caused “while committing” a series of
offences including sexual assault and unlawful confinement. In these cases, the victim of the murder need
not be the victim of the listed offence. (Russell)
o Where an accused has the mens rea for murder, and the murder is planned and deliberate but the accused
by accident kills another person, that act is murder in the first degree. (Droste)
R v. Russell, 2001 SCC 53

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The accused was charged with murder of victim A while forcibly confining victim B. The court stated that the victim of
the murder does not have to be the same victim of forcible confinement – legislature could have made it explicitly if it
was their intention.
• Where murder is raised from second to first degree under section 231(4) (murder of a peace officer in execution
of duty, among other circumstances), the Crown must prove subjective knowledge of the facts in the provision
(i.e., the victim was an officer in the execution of his duty, etc.). (Collins)
R v. Collins (1989), 48 CCC (3d) 343

The accused killed a police officer in duty – the Court stated that a person should not be convicted of murder without
planned/deliberate element, but s. 231(4) list requires harsher penalty for greater culpability.
• All murder that is not first degree murder is second degree. (Section 231(7))
PROVOCATION
General points:
• Where a prima facie case for the elements of murder has been established, provocation functions as a limited
defence to reduce murder to manslaughter. It does not apply to an act the accused has provoked or an act that
arises from the victim’s exercise of a legal right—i.e., an officer carrying out a lawful arrest. (232(3))
• The elements of the defence are set out in s. 232(1) and (2). Prior to 2015, subsection 2 allowed that a ‘wrongful
act or insult’ on the part of the victim could be the source of the defence. This has been amended to state that
provocation can be based only on acts that would constitute an indictable offence under the Criminal Code
punishable by five or more years of imprisonment.
• The elements of the defence of provocation are set out in R v. Hill:
1) Would an ordinary person be deprived of self-control by the victim’s act? (objective)

2) Did A in fact act lose control as a result of these provocative acts? (subjective)
3) Was A’s response sudden and before there was time for passions to cool? (subjective)
• The question at stage 1 is not whether the ordinary person would have done what the accused did but whether the
act would have provoked them to lose the power of self-control. (Hill)
• Specific points: In the first part of the Hill test, the ‘ordinary person’ is:
o not exceptionally excitable, pugnacious or drunk;
o the same age, race, and sex as the accused, if these are relevant to a ‘particular feature of the
provocation in question’; and
o subjected to the same circumstances as the accused. (Hill)
R. v. Hill, [1986] 1 SCR 313

The accused’s version – he was self-defending from unwelcome touch of his big brother figure victim; the Crown’s
version – the accused and the victim were in a sexual relationship and they had an argument prior to the accused stabbed
the victim to death. The issue was whether the unwelcome touch was a provocation.
• The ordinary person also shares the background history between the accused and the victim, and this can be
considered when assessing whether the act would suffice to cause the ordinary person to lose self-control.
(Thibert)
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• In the second part of Hill test, when assessing whether the accused lost self-control, the court can consider all
aspects particular to the accused, including intoxication, mental state or psychological temperament, and the
history of the relationship with the victim. (Hill, Thibert)
R. v. Thibert, [1996] 1 SCR 37

The accused tried really hard to get his wife back from her new bf – multiple persuasion – he stewed his thoughts to kill
the new bf for a night. He put his loaded gun in his trunk and went to his wife’s work to persuade her again – her new bf
showed up and provoked him (told him to shoot, shook the wife in front of him, etc) – and the accused shot the bf. The
Court said in order for the accused to raise provocation, he must raise some evidence to each element of provocation. The
court considered the accused’s history with his wife, his character, etc. to assess “ordinary person”.
• Before the defence may be put to the jury, the accused must raise an air of reality for each element of the defence
(i.e., there must be some evidence on which a jury, acting reasonably, might conclude that the accused’s response
was “sudden and before her passions had cooled” [or whatever the element requires]).
• Once an air of reality has been established, the burden shifts to the Crown to prove BARD that one or more
elements of the defence do not apply. (e.g., there was no reasonable possibility that it was sudden…) → The
Supreme Court in Tran: “For the defence to succeed, the jury must have a reasonable doubt about whether each of
the elements of provocation was present.” Put otherwise, the jury must conclude that there is a reasonable
possibility that each element applies.
o provocation is not a defence to attempted murder; but evidence of provocation may be invoked here to
raise a doubt about whether the accused had the specific intent to kill. (Campbell)
R v Campbell (OCA 1977)

Provocation only applies to murder.
• The provocative act must be sudden; it cannot amount to knowledge one already possessed. (Tran)
R. v. Tran, 2010 SCC 58

The accused had knowledge that his estranged wife had a boyfriend – one afternoon he barged into her home and found
them together on the bed, stabbing the boyfriend to death. The court said the victim should do something sudden to
provoke the accused which didn’t happen; the accused also was aware that his wife was dating someone new.
• Acting out of anger alone will not suffice to constitute provocation; all of the elements of the defence must be
made out. (Parent)
SELF-DEFENCE
General points:
• The new self-defence provisions in section 34 of the Code function as a full defence (resulting in acquittal) to any
offence committed with the purpose of defending or protecting oneself or another from the use or threat of force,
if the act committed in defence is reasonable in the circumstances.
• The defense is now set out in section 34(1), containing the following elements:
o committing an offence where

o the accused reasonably believes that force, or a threat of force, is being used/made against her or
another;
o the act constituting offence is committed for purpose of defending or protecting self/another;
o the act committed is reasonable in the circumstances.
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• Section 34(2) sets out factors for assessing whether the act was “reasonable in the circumstances,” but the list is
not exhaustive. (The factors indicate that the objective standard in 34(1) should be contextualized to reflect the
accused’s characteristics and history.)
• Factors in 34(2) include the nature of the force or threat; the availability of alternative means of
responding; imminence; size, age, gender, and physical capabilities of the parties; past history and nature
of their relationship; and proportionality between force used and force or threat defended against.
• Section 34(1) will not apply if the force used or threatened is lawful – unless the person who commits an act (in
self defence) believes on reasonable grounds that the other person is acting unlawfully. [s. 34(3)]
• The accused must raise an air of reality for each element of the defence (in s. 34(1)) before it may be put to the
jury.
• The Supreme Court in Cinous clarified that to meet the ‘air of reality’ standard or evidentiary burden, the accused
must adduce some evidence for each element of the defence “upon which a properly instructed jury acting
reasonably could acquit if it believed the evidence to be true.”
• The burden then shifts to the Crown to prove BARD that one or more elements do not apply (i.e., there is no
reasonable possibility that one or more of them could be true).
Specific points:
• When assessing the reasonableness of a person’s belief in being threatened, expert evidence is admissible if the
perceptions at issue are informed by a psychological syndrome or context (“battered women’s syndrome” or
“prison environment syndrome”) on which a lay person is not likely to be well informed. (Lavallée)
• An accused may rely on self-defence where the threat of force is not immediately imminent, so long as the
apprehension that there is a threat of force is reasonable, and the act carried out in self defence is reasonable in the
circumstances. (Lavallée and section 34(1))
• Where a woman in an abusive relationship invokes self-defence, the fact that she had opportunity to leave the
home or relationship prior to the event in question does not, on its own, render the act (committed in self-defence)
unreasonable. (Lavallée)
R. v. Lavallee, [1990] 1 SCR 852

The accused was in a long-term violent relationship with the victim. On night of incident, the victim assaulted her and told
her that he will kill her after house party’s over. He also gave her a gun and told her to kill him, or else he will kill her.
The accused shot him on the back of his head as he walked out of the room. Medical evidence on battered women
syndrome was admitted to assess her reasonableness of belief on the threat.
• When assessing the reasonableness of a woman’s perceptions of the existence and nature of a threat of force, or
the availability of alternative means of responding, courts should consider a range of possible elements of
women’s social context, including the need to protect children from abuse, the fear of losing custody, pressures to
keep the family together, financial support for abused women, and the fact that leaving may not bring an end to a
partner’s abusive conduct. (Malott)
• An accused may make an honest but reasonable mistake as to the existence of a threat of force or assault (or
whether force was being used with lawful authority) and still rely on the defence of self-defence. (Pétel and
sections 34(2) and (3))
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R. v. Patel, [1994] 1 SCR 3

The victim and his accomplice was living in the accused’s house. The accomplice sometimes assaulted the accused’s
stepdaughter and tension built up among them – accomplice threatened the accused that he will kill her and her
stepdaughter – the accused shot the accomplice, injuring him; the victim laughed at the scene and the accused shot the
victim, killing him.
MENTAL DISORDER
1. Fitness to stand trial:
• The accused, the Crown, or the court on its own motion may raise the issue of the accused’s fitness to stand trial
at any time during a prosecution before the verdict is rendered. (By contrast, the Crown is restricted as to when it
may raise the defence of mental disorder. See below.)
• The accused is presumed to be fit to stand trial unless the court is satisfied on a balance of probabilities that the
accused is not fit. The persuasive burden rests on the party raising the issue of fitness. (section 672.22)
• The test for fitness is set out in section 2 of the Criminal Code. A person is “unfit to stand trial” where, “on
account of mental disorder, [she is unable] to conduct a defence at any stage of the proceedings before a verdict is
rendered or to instruct counsel to do so, and, 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”.
• To be found fit under section 2, the accused need only possess a “limited cognitive capacity to understand the
process and to communicate with counsel.” He need not be “capable of making rational decisions beneficial to
him.” (Whittle)
• A person found unfit can be tried at a later time, if he is later found to be fit. If the Crown seeks to preserve the
status of a prosecution while waiting for the accused to become fit, the Crown must establish a prima facie case
for the offence every two years. (section 672.33)
• A person found unfit to stand trial is remanded to the Review Board for a disposition hearing under section
672.54 (the court can also carry out the disposition hearing but usually remits the matter to the Board). In that
hearing, an accused who has been found unfit to stand trial may be released on conditions or be ordered to remain
in hospital, but may not be discharged absolutely. (section 672.54)
• If the court finds that a person is not likely to ever become fit to stand trial and does not pose a significant threat
to public safety, the court may grant a stay of prosecution. (Demers; section 672.851) → The court may also
grant a stay where a person does pose a significant threat, under a further test in section 672.851(8))
2. Mental disorder defence:
• The mental disorder defence is set out in section 16 of the Code, and the phrase “mental disorder” is a defined
term in section 2. The defence serves to exempt a person from criminal liability based on an incapacity for
criminal intent or excuse what would otherwise be a criminal offence. (Chaulk)
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• Section 16 states that a person is not to be found criminally responsible for an act or omission committed “ while
suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality
of the act or omission or of knowing that it was wrong.”
o (A key element of the test is the causal connection: the failure to appreciate the nature or quality of the
act, or to know it was wrong, must be an effect of the mental disorder.)
• Section 2 defines “mental disorder” as a “disease of the mind,” thus incorporating the common law definitions of
this phrase (see below).
• Either the accused or the Crown may invoke the defence of mental disorder. Before it may be put to the jury, the
party seeking to rely on it must establish an air of reality for each element of the defence.
• Once an air of reality has been established, the burden remains with the party seeking to rely on the defence to
persuade the trier of fact that each element of the defence applies on a balance of probabilities.
o (This violates the presumption of innocence in s. 11(d), because it allows for a conviction where there is a
reasonable doubt about mens rea or the voluntariness of the actus reus. The violation has been held to be
a reasonable limit on the right, under s. 1, because, among other reasons, the accused is in the best
position to present evidence as to their mental state.) (Chaulk)
R. v. Chaulk, [1990] 3 SCR 1303

Presumption that you are sane violates s.11(d) because it forces the accused to prove what the Crown supposed to prove,
and can convict you still with reasonable doubt present.
• While the accused may raise the mental disorder defence at any point during the trial, the Crown may raise the
defence in only two instances:
a) once it has established a prima facie case for the elements of the offence (mens rea and actus reus); or
b) when, in the course of the trial, the accused has raised the issue of his or her capacity for criminal
intent (e.g., voluntariness, automatism, etc.).
• If the court (or jury) finds that the test in section 16 has been met on a balance of probabilities, the accused is
found “not criminally responsible due to mental disorder” (NCRMD) and remanded to the Review Board for a
disposition hearing under section 672.54 within 45 days.
• If the judge or jury finds that the elements of the mental disorder defence have not been established on a balance
of probabilities, the facts supporting the defence may still be considered in assessing whether the mens rea of the
offence has been established beyond a reasonable doubt.
o For example, facts relating to the accused’s mental state at the time of the offence might fall short of the
elements in section 16, but still raise a reasonable doubt about whether a murder was “planned and
deliberate,” or whether the accused had the necessary intent for murder (“means to cause death” or
“means to cause bodily that he knows is likely cause death”). (Swain)
R. v. Swain, [1991] 1 SCR 933

The Crown requested to adduce evidence on the accused’s sanity – which was accepted – the defence argued that it
violated s. 7 of the Charter. The Court agreed; It compromises the accused’s defence; if the Crown raise their sanity, then
it impairs the accused’s credibility. Accused can raise it anytime; crown can raise 1) when they can make a prima facie
case; 2) when accused raises a capacity to form criminal intent issue.
33
‘Disease of the mind’
• Whether a person suffers from a “disease of the mind” is a legal and not a medical issue. Medical evidence assists
in deciding the issue but is not determinative. (Simpson)
• “Disease of the mind” includes “any illness, disorder or abnormal condition that impairs the human mind and its
functioning, [but excludes] self-induced states caused by alcohol or drugs, as well as transitory mental states such
as hysteria or concussion.” (Where a person suffers an abnormal mental condition or impairment due to the
voluntary consumption of intoxicants, the proper defence is intoxication.) (Cooper)
‘Appreciating the nature and quality of the act’
• This refers specifically to an ability to perceive the physical consequences, impact, or results of the act (e.g., that
the act of choking would cause death). (Cooper)
• It does not require that the act be “accompanied by appropriate feeling [such as guilt or remorse] about the effect
of the act on other people.” (Cooper)
Cooper v. The Queen, [1980] 1 SCR 1149

The accused, out-patient of the psychiatric hospital, choked the in-patient after an attempted sexual assault. The Court
stated that appreciating the nature and quality of the act requires not simply knowledge of act being committed, but also
an ability to perceive the physical consequences, impact or results of the act.
‘Knowing that the act was wrong’
• Wrong here means morally wrong or “contrary to the ordinary moral standards of reasonable men and women.” It
does not require that the accused know only that something was “legally wrong.” (Chaulk)
• To fail to know that “the act was wrong,” the accused must lack an awareness that the act was morally wrong by
society’s standards. (Chaulk)
3. Review Board:
• Once a person has been found unfit to stand trial or NCRMD, the Review Board must make the disposition that is
“necessary and appropriate in the circumstances”, taking into account public safety and the needs of the accused –
but with “the safety of the public…the paramount consideration”. (Section 672.54)
• The three dispositions under section 672.54 available to an accused person found NCRMD are:
i. an absolute discharge,
ii. a conditional discharge, or
iii. detention in custody in the hospital.
• The SCC in Winko has held that in a hearing under section 672.54, “If the court or Review Board concludes that
the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.”
• A person unfit to stand trial may only be conditionally discharged or detained in hospital. (This would continue
until a person is found not likely to ever become fit and the charge is stayed [section 672.54] – or if the Crown
decides to stay the charge, or if the Crown fails to present a prima face case at intervals of up to 2 years and the
charge is stayed by the court [s. 672.33].)
• The Review Board scheme allows for indefinite detention in hospital but was held in Winko to be consistent with
section 7 and 11(d) of the Charter, given the requirement in section 672.54 for the least onerous disposition and
34
periodic reviews of detentions or conditional discharges at yearly intervals (or sooner). It is unclear whether this is
still the case, given that amended section now requires the order “necessary and appropriate in the circumstances”,
with “the safety of the public…the paramount consideration”.
NECESSITY
General Points
• The defence of necessity excuses criminal conduct where an accused was in “clear and imminent peril,” and acted
to prevent a greater harm from occurring.
• The defence is recognized at common law in Perka, and applies to all offences in the Criminal Code, possibly
including murder. (Latimer)
• Before the defence may be put to a jury, the accused must raise an air of reality with respect to each element of
the defence (i.e., there must be evidence for each element of the offence and the evidence must be such that a
properly instructed jury acting reasonably could acquit the accused); the burden then shifts to the Crown to prove
BARD that one or more elements of the defence do not apply. (Perka)
• The defence is confined to situations in which the accused’s actions were “normatively involuntary.” (Perka)
• The elements of the defence are set out in Perka:
i. the accused was in a situation of “clear and imminent peril”;

ii. there was no “reasonable legal alternative to disobeying the law”;
iii. the harm threatened was proportionate to the harm inflicted.
• Involvement in criminal or negligent activity is not a bar to the defence. (Perka)
• But an accused cannot make recourse to the defence of necessity where she placed herself in a situation where the
peril was reasonably foreseeable. (Perka)
R v Perka SCC 1984

The accused’s ship hit the rock and stuck; they unloaded their shipment and was charged with importing marijuana. They
argued that they were not trafficking drugs; they had to unload their shipment due to necessity. The court said defence of
necessity is an excuse – rather than justification – which is that the act the accused did is wrong, but there is an “excuse”,
whereas for justification, what the accused did is not necessarily wrong.
Specifics:
• The first two elements of the Perka test (imminent peril and no reasonable alternative) are assessed on a modified
objective basis, or from the perspective of the reasonable person who shares the situation and characteristics of the
accused. (Latimer)
• The third element of the test (proportionality) is assessed on a purely objective basis. (Latimer)
• The harm need not “clearly outweigh” the harm imposed, but must be of “comparable gravity.” (Latimer)
• Necessity may be a defence to murder if the peril faced was “seriously comparable in gravity to death” and other
elements of the defence were established. (obiter in Latimer)
35
R v Latimer (SCC 2001)
Mercy killing case – father killed his 12-yr-old sick daughter who had gone through multiple surgeries but also should go
through a multiple more. She was in severe pain. He was charged with second degree murder and raised necessity
defence, but there was no air of reality to each element.
DURESS
General Points
• Duress generally applies to excuse (and thus acquit an accused person for) a criminal act committed while subject
to a threat or compulsion from another person.
• Duress may apply:
i. as a defence available under s. 17 of the Code to a principal offender who commits the offence;
ii. as a defence available at common law to a party to an offence; or
iii. as a factor which, in some cases, may raise a doubt about whether the accused had the requisite
intent for an offence.
Burdens:
• To rely on either the statutory or common law defence of duress, the accused bears an evidentiary burden to
establish an air of reality with respect to each element of the defence; the Crown then has the persuasive burden to
prove BARD that one or more elements of the defence do not apply
• The defence of duress under s. 17: Section 17 excuses an accused (i.e., allows for an acquittal) where she commits
an offence by compulsion of threats of death or bodily harm and believes that the threats will be carried out. (The
belief is to be assessed on an exclusively subjective basis.) (Mena, Ruzik)
• Section 17 also requires that the threat be immediate and that the person making the threat be present at the time
of the offence. In Ruzik, the SCC found that these two requirements violate section 7 of the Charter; the violation
cannot be justified under section 1; and as a result, these requirements were struck down, but not the rest of the
section.
o (They violate s. 7 because they allow for a conviction in cases involving “morally involuntary” acts.
Whereas the Court had earlier held that it is a ‘principal of fundamental justice’ that a person cannot be
convicted for acts that are involuntary, the Court in this case extended this principle to acts that are
“morally involuntary.” The violation could not be justified under section 1, because the law at issue [s.
17] fails to minimally impair. The availability of the less infringing common law defence was proof of
this fact.)
• Section17 does not require that at the time of the offence, the accused had no safe avenue of escape or that the
offence committed be proportionate to the threat at issue.
• The only remaining restrictions on the defence of duress in section 17 are that the accused may not rely on the
defence if:
i. she is involved in a “conspiracy or [criminal] association” with the person making threat; and
ii. the offence at issue is any one of several offences listed in the section, including murder, robbery, sexual
assault, and aggravated assault.
36
• Given the Charter analysis in Ruzik, these remaining limitations on the defence are likely also to be found
contrary to s. 7 and not a reasonable limitation on that right under s. 1 (due to the failure to minimally impair,
given the availability of the common law defence).
• If section 17 were struck down in its entirety, a principal offender could rely on the defence of duress at common
law. (Ruzik)
The defence of duress at common law:
• An accused may rely on the defence of duress where:
i. she was compelled to commit the offence by a threat of death or bodily harm to herself or another
person;
ii. there was no safe avenue of escape; and
iii. the offence committed was proportionate to the threat faced.
• Threats need not be immediate or made by a person present. (Ruzik)
• The accused’s belief that he or she faced a threat of death or bodily harm must be reasonable on the modified
objective standard (reasonable person, similarly situated but who also shares the characteristics and frailties of the
accused). (Ruzik)
• “The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat.”
(Ruzik)
• Whether the accused had no safe avenue of escape is assessed on the modified objective standard. (Hibbert)
• The proportionality between the threat and the criminal act to be excused is also measured on the modified
objective standard. (Ruzik) (This is in contrast to the way in which proportionality works in the defence of
necessity; in Latimer, the Court held that proportionality is assessed on a strictly objective standard.)
Other Points from the case law:
• Duress applies only to an offence committed under compulsion of a threat (of death or bodily harm) made for the
purpose of compelling the accused to commit the offence. If an accused is threatened without compulsion, her
only defence is self-defence. (Ryan)
• Section 17 applies only to principal offenders, or “a person who commits an offence” (Paquette)
• Where it is unclear whether a person acted as principal or as party, both the common law and statutory defence
should be put to the jury, so long as there is an air of reality for each aspect of each defence (Mena)
• Where a person charged as a party to an offence acts under some form of compulsion, this fact alone would not
negate or raise a doubt about whether he or she had the mens rea for aiding or abetting, or acting with a “common
intention,” in sections 21(1) or 21(2). (This is because those provisions require a basic intent to aid the principal,
but not a desire that the principal’s crime be committed.) Thus a prima facie case may be made out for their being
a party to an offence, but the accused may then rely on the common law defence of duress – if she can establish an
air of reality for each element of the defence. (Hibbert)
• In the case of some offences (aside from those in which a person is charged as a party under s. 21(1) or (2)), the
fact that an accused acted under compulsion may negate, or raise a reasonable doubt about, the particular intent
required for the offence even if the elements of the defence of duress at common law or s. 17 are not made out.
(Hibbert)
37

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Presumptions, quantum, and burden of proof

The principle of voluntariness 8

Consequences and causation 10

Causation and murder 11

Objective mens rea 16

R. v. Beatty, 2008 SCC 5 18

Note on the defence of ‘mistake of fact’ 20

Accessory after the fact 26

CCC 515(10) Justification for detention in custody

Forum for bail hearing

Undoing a detention order

Presumptions, quantum, and burden of proof

If presumption is REBUTTABLE, it can further be categorized as:

2. Persuasive (legal) presumption

Woolmington v DDP 1935

R v Oaks 1986 SCC

R v Lifchus 1997 SCC

R v Starr 2000 SCC

• The actus reus can be defined as “a physically voluntary act or omission.”

The Principle of Concurrency:

R. v. Cooper, [1993] 1 SCR 146

Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439

R. v. Miller, [1982] 2 All ER 386

R. v. William, 2003 SCC 41

The Principle of Voluntariness:

• The actus reus must be committed voluntarily. (Kilbride, King)

Kilbride v. Lake, [1962] NZLR 590

R. v. King, [1962] SCR 746

R. v. Browne, (1997) 116 CCC (3d) 183

Consequences and Causation:

R. v. Winning (1973), 12 CCC (2d) 449 – Factual Causation

Smithers v. The Queen, [1978] 1 SCR 506 – Legal Causation

Test for legal causation:

R v Cribben 1994 OCA – Legal Causation

Causation and murder:

o Substantial and integral cause of death test

R. v. Harbottle, [1993] 3 SCR 306 – test for s. 231(5) and (6)

R. v. Nette, [2001] 3 SCR 488

R. v Maybin, 2012 SCC 24 – Causal Connection

Common law presumptions about the fault element:

o an offence can be inferred to be “criminal” where it:

o an offence can be inferred to be “regulatory” where it:

R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154

Strict liability does not violate s. 7 of the Charter.

R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299

Hierarchy of forms of mens rea or fault:

1. full or subjective MR (silent MR – intention, knowledge, willful blindness, recklessness)

Subjective mens rea:

R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369

R. v Briscoe, [2010] 1 SCR 411

R. v. Steane, [1947] 1 KB 997

Hibbert v. The Queen, [1995] 2 SCR 973

R. v. Sansregret, [1985] 1 SCR 570

Objective forms of mens rea:

i. Objective foresight or knowledge:

R. v DeSousa, [1992] 2 SCR 944