Professional Documents
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Fox, Cameron - LAW 221 - Criminal Law - Perrin, Benjamin - Winter 2020 - FULL YEAR CAN
Fox, Cameron - LAW 221 - Criminal Law - Perrin, Benjamin - Winter 2020 - FULL YEAR CAN
Fox, Cameron - LAW 221 - Criminal Law - Perrin, Benjamin - Winter 2020 - FULL YEAR CAN
Contemporaneity ..................................................................................................................................................................................10
Voluntariness ........................................................................................................................................................................................10
Acts and Omissions ...............................................................................................................................................................................11
Status Offenses .....................................................................................................................................................................................12
Consequences and Causation ...............................................................................................................................................................12
Factual Causation ..............................................................................................................................................................................13
Legal Causation ..................................................................................................................................................................................13
Intervening Act ..................................................................................................................................................................................14
Mental Fault (Mens Rea) ...........................................................................................................................................................................15
Principal Offenders................................................................................................................................................................................21
Aiding and Abetting...............................................................................................................................................................................22
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Common Intention ................................................................................................................................................................................25
Attempts................................................................................................................................................................................................27
Actus Reus of Attempts .....................................................................................................................................................................28
Mens Rea of Attempts .......................................................................................................................................................................28
Impossibility .......................................................................................................................................................................................29
Defenses: ...................................................................................................................................................................................................29
Mistake ..................................................................................................................................................................................................30
Mistake of Fact ..................................................................................................................................................................................30
Mistake of Law...................................................................................................................................................................................30
Oficially Induced Error .......................................................................................................................................................................31
Defence of Person/Defence of Property ...........................................................................................................................................32
Necessity............................................................................................................................................................................................34
Duress ................................................................................................................................................................................................35
Intoxication: .......................................................................................................................................................................................37
Not Criminally Responsible on Account of Mental DIsorder ............................................................................................................40
Sentencing .................................................................................................................................................................................................43
Process ...............................................................................................................................................................................................43
Purposes ............................................................................................................................................................................................43
Principles ...........................................................................................................................................................................................43
Options ..............................................................................................................................................................................................44
Constitutional COnsiderations ..............................................................................................................................................................45
Indigenous Offenders ............................................................................................................................................................................46
Victims ...................................................................................................................................................................................................47
STATUTE
Criminal Code:
- Source of all criminal offenses in Canada
- Subservient to Constitution, Charter
- Therefore requires interpretation by Courts
COMMON LAW
- Common law offenses are not punishable in Canada (CC S.9), except for contempt of court
- Common law defenses may still be used (SS S.8(3)) and created (Amato)
Amato v The Queen (Hair dresser entrapment) [1982] SCC Pg. 1.2-11
- Random hairdresser badgered and arguably threatened into selling him cocaine by a police information who was getting
paid per conviction
- Criminal Code says that existing common law defenses can be used, but entrapment hasn’t been used before
- A allowed to use defense, the common law is always speaking, courts can recognize new common law defenses
Historically, the Doctrine of Strict Construction was the primary mode of interpreting criminal law. This doctrine was developed in
the time of incredibly strict penal codes and harsh punishments.
- Requires all ambiguities in law to be resolved in the favour of the accused
- Today, it survives, but only as a tie-breaker rule when there is genuine ambiguity remaining after the modern purposive
and contextual approach is used.
R v Pare (Rape and murder – Interpretation of “while committing” – Single transaction) [1987] SCC Pg. 1.3-1
- A sexually assaulted a young boy, held him down, and killed him about two minutes after the assault was complete
- Definition of first-degree murder in Criminal Code: “when death is caused by that person while committing [indecent
assault]”
- Court must interpret meaning of “while committing” in criminal law context
- Purposive and Contextual approach:
• Text: May suggest crimes must happen simultaneously
• Purpose: Seems pretty unlikely that Parliament wanted the two minutes Pare spent contemplating the murder
to make the crime less punishable
• Context: First degree murder offenses have a common logic of domination of the victim
- Therefore, after a proper interpretive approach, there’s no real ambiguity to resolve in favour of A.
- “While committing” = “Temporal and causal connection,” “events part of a single transaction”
Bell ExpressVu Ltd v Rex Et Al (Modern approach authority) [2002] SCC Pg. 1.3-11
- Authority for all criminal law interpretation
- Driedger’s modern approach cited
• Words in grammatical + ordinary sense
• Context of act
• Purpose of legislation
• Scheme of act
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• Intention of Parliament
- Only, if, after applying this approach, there is still genuine ambiguity (provision reasonably capable of more than one
meaning) do we apply strict construction and resolve in favour of A (lower courts disagreeing does not prove ambiguity)
- Essential elements of the offense must be proven by the Crown beyond a reasonable doubt (Lifchus)
o Is there a reverse onus? Violates presumption of innocence (Downey)¸ even if related to a defense (Whyte)
o Is the reverse onus saved under S.1? (Oakes, Keegstra)
- Are there trial issues?
o Crown must disclose relevant information (Stichcombe)
o Jury misdirection? (JHS, Boucher)
o Incompetent counsel? (Meer)
o Length of trial (Jordan)
Common Law Presumption of Innocence: The Burden of Proof always lies on the Crown, meaning they must prove the guilt of the
accused beyond a reasonable doubt.
- This principle originally developed to mitigate the harshness of the criminal law, but an important modern consideration is
the power imbalance between the crown and the accused.
- Accused not required to prove their innocence or introduce any evidence (although they may)
Woolmington v DPP (1935): The Golden Thread (Authority for presumption of innocence, Crown burden)
All homicide was presumed to be murder, defendant was required to show that it wasn’t (Crown was required to prove AR, but
not MR)
Viscount Sankey: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of
the prosecution to prove the prisoner's guilt subject to what I have already said as to the defense of insanity and also subject to
any statutory exception…the principle that the prosecution must prove the guilt of the prisoner is part of the common law of
England.”
11. Any person charged with an offence has the right […]
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent
and impartial tribunal;
R v Oakes (Intent to traffic drugs presumed – Oakes S. 1 test) [1986] SCC Pg. 2.1-2
- A was found with hash oil and cash. Charged with trafficking under S. 8 of the Narcotics Control Act, which presumed
that all possession was for the purposes of trafficking and required accused to prove otherwise.
- This presumption definitely violates S.11(d) of the Charter. Is it saved by S.1?
- Oakes Test for Charter infringement [II]
• First, is there an objective of sufficient importance?
▪ Must be related to “pressing and substantial” concerns in a free and democratic society
• Second, does it pass the proportionality test?
▪ Are the measures rationally connected to the important societal objective?
▪ Do they impair the freedom as little as possible?
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▪ Is there proportionality between the effect of the measures and the object of the policy (more severe
effects = objective must be more important)?
- Provision in question fails this test, therefore presumption unconstitutional and provision of no effect
R v Whyte (Test of 11(d) infringement same for defenses) [1988] SCC Pg. 2.1-11
- Irrelevant if we’re talking about elements of the offense, or excuses that A is being asked to raise. If it’s possible to
convict despite a reasonable doubt, it violates 11(d)
- If the accused is required to prove anything on a balance of probabilities to avoid conviction, it’s a “reverse onus” and
violates 11(d)
R v Keegstra (Holocaust denier – Truth defense – Infringement of 11(d) saved by S.1) [1990] SCC Pg. 2.1-11
- Holocaust denying high school teacher charged with promoting hate speech
- There is a “truth defense” to hate speech, but it requires the accused to prove the truth of their statements beyond a
reasonable doubt.
- This definitely violates S.11(d), since A can be convicted despite existence of reasonable doubt (Whyte)
- But reversing the onus of proof is justified under S.1 in this case. There are important free speech reasons why there
should be a truth defense, but only requiring the accused to raise a reasonable doubt would compromise the whole
point of the offense.
- The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a
reasonable doubt. (Woolmington)
- If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or disprove, on
a balance of probabilities either an element of an offence or an excuse, then it contravenes s. 11(d). Such a provision
would permit a conviction in spite of a reasonable doubt. (Whyte)
- A statutory presumption will be valid if the proof of the substituted fact leads inexorably to the proof of the other.
However, the statutory presumption will infringe s. 11(d) if it requires the trier of fact to convict in spite of a reasonable
doubt.
- A permissive assumption from which a trier of fact may but not must draw an inference of guilt will not infringe s. 11(d).
- A provision that might have been intended to play a minor role in providing relief from conviction will nonetheless
contravene the Charter if the provision (such as the truth of a statement) must be established by the accused (Keegstra).
- It must of course be remembered that statutory presumptions which infringe s. 11(d) may still be justified pursuant to s.
1 of the Charter. (Oakes, Keegstra)
R v Lifchus (Meaning of “beyond a reasonable doubt” – Authority for charge standard) [1997] SCC Pg. 2.1-15
- How do you explain “beyond a reasonable doubt” to a jury?
- Definition includes:
• Fundamental principle of justice that burden rests on crown
• Based on reason and common sense, not sympathy or prejudice
• Logically connected to evidence
• Does not require absolute certainty of guilt
• More than “probably”
- Judges should avoid:
• Describing “beyond a reasonable doubt” as an ordinary expression with no special meaning
• Equating with “moral certainty,” or “sure.”
• Qualifying “doubt” with words like “serious” or “haunting”
• Asking jurors to apply same standard as they use in other life tasks
Section 11(d) and (f) of the Canadian Charter of Rights and Freedoms recognize the importance of a neutral and impartial trier of
fact and law:
11. Any person charged with an offence has the right […]
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and
impartial tribunal; […]
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where
the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
Judicial Independence: Judges are free from political interference or improper consequences for their decisions (accomplished via
life tenure). Salaries are decided by an independent commission. Allows judges to ask hard questions, criticize the law, and make
unpopular decisions.
However, there are rare cases where we need a way to sanction judges. The Canadian Judicial Council is made of other judges and
has its own procedures. Only it can recommend that a judge be removed from the bench, which Parliament must then vote on.
Example case: Robin Camp – conduct was found to undermine public confidence in the independence and impartiality of the
judiciary by “getting into the fray” and asking questions to a witness that demonstrated a lack of knowledge about sexual assault
Judicial Impartiality: Judges must be, and be seen to be, objective and impartial. Judges do not comment on cases, participate in
politics, or socialize with lawyers connected to cases they hear.
The Crown Prosecutor is an independent officer of the court. Their job is not to “win,” it’s to ensure a fair trial is had (Boucher, see
also BC Law Society Code of Professional Conduct (2.3-2))
Boucher v The Queen (Crown implies it is neutral) [1954] SCC Pg. 2.3-1
- Crown made a statement made to the jury which implied that the Crown was a neutral investigator, and would only
proceed with a case if it had already determined guilt
- This is misleading – the role of the Crown is a public duty, not a matter of winning or losing. Implying otherwise could
“colour the consideration of the evidence by the jurors”
- “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a
jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to
see that all available legal proof of the facts is presented…The role of prosecutor excludes any notion 'of winning or
losing; his function is a matter of public duty…to be efficiently performed with an ingrained sense of the dignity, the
seriousness and the justness of judicial proceedings”
The defense counsel is also an officer of the court, and cannot mislead it. They still have responsibilities to both the client and the
administration of justice. However, unlike the Crown, they are entitled to take an entirely adversarial role (Stinchcombe).
CLASSIFICATION OF OFFENSES
Summary Conviction: Less serious crimes, less than two years in jail. Simpler and more expedited trial procedure, held in Provincial
Court. Eg: Nudity
- Default maximum in CC (S.787) is $5000 fine or six months in jail,
- Some “super summary” offenses can go as high as 18 months.
Indictable Offenses: More serious, penalty above two years in jail. Can only be created by Parliament. May be heard in Provincial or
Supreme Courts if a jury is involved. Eg: Arson
Hybrid Offenses: Prosecutors get to choose how to proceed. Indictable by default. Eg: disarming a peace officer
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6. Defence Case - The Defence calls a witness to give evidence. After the Defence has examined (questioned) the witness, the Crown may cross-
examine the witness. This process is repeated with all Defence witnesses. Documentary and real evidence (e.g. a photograph) may also be
entered as evidence.
8. Closing Arguments - If the Defence called evidence under step 6, the Defence will make its closing arguments first. If the Defence did not call
evidence, but skipped to step 7, the Defence makes its closing argument last, after the Crown.
9. Judge’s (or Jury’s) Ruling - Guilty or Not Guilty. In a jury trial, the Judge will provide the jury with instructions. If Guilty, the accused will be
sentenced by the Judge after hearing sentencing submissions, receiving any victim impact statements, and giving the accused an opportunity to
address the court. We will address sentencing in detail later in the course.
R v Jordan (Presumptive ceilings for unreasonable delay) [2016] SCC Pg. 2.6-6
- When does a trial delay take so long that it violates the accused’s S.11(b) Charter rights “to be tried within a reasonable
time”?
- Creates a framework of presumptive ceilings, beyond which delays are presumptively unreasonable [V]
• 18 months for provincial court
• 30 months for superior court or provincial court with preliminary inquiry
• Actions of defense aimed at causing delay excluded from calculation
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- If length of trial exceeds presumptive ceiling, there is a presumption of unreasonable delay. Crown can rebut by showing
exceptional circumstances (reasonably unforeseen, Crown could not reasonably remedy)
- If length does not exceed presumptive ceiling, defense can rebut the presumption of reasonableness by showing a
reason why the case took markedly longer than it reasonably should have.
- Not relevant – seriousness of offense
- If shown to exceed ceiling without reason, charges stayed
- This ruling was unexpected and resulted in hundreds of charges being withdrawn. As a result, police are now waiting as
late as possible before laying charges
A criminal offense is not committed unless two components are proven: prohibited conduct and mental fault.
For example, theft is the intentional taking of another’s property. If I accidentally take home the wrong criminal code, I have
committed the actus reus of the offense, but lacked the required intention to make it a morally blameworthy offense.
CONTEMPORANEITY
The two elements must be contemporaneous. This means the actus reus and mens rea occurred at the same point in time.
Fagan v Metropolitan Police Commissioner (Parked on Cop’s Foot) [1969] Eng QB Pg.
- F: Accused accidentally parks his car on a cop’s foot (actus reus). After discovering this, he takes his sweet time before
removing it.
- I: The actus reus and the mens rea, the intention to inflict the prohibited force, appear not to have occurred at the same
time
- R: The accidental parking was not the assault. The assault occurred when the accused became aware, but chose not to
continue to apply the force (actus reus and mens rea were contemporaneous at that point)
VOLUNTARINESS
Ruzic Voluntariness Test: behaviour that is the product of a free will and controlled body.
Ruzic 3.2 – 9 : “It is a principle of fundamental justice that only voluntary conduct – behavior that is the product of a free will and a
controlled body, unhindered by external constrains – should attract the penalty and stigma of criminal liability”
- Acquitted for lack of voluntariness: “there can be no actus reus unless it is the result of a willing mind at liberty to
make a definite choice or decision”
Moral voluntariness requires the act to be an exercise of free will (Ruzic)
- However this is a defense that must be made out by the defendant
R v Thornton (HIV+ blood donation – Common law duty - Outdated HIV law) [1991] ON CA Pg. 3.3-6 [1993] SCC Pg. 3.3 - 12
- HIV+ A donates blood without disclosing – No clear law prohibiting this
- Charged with S. 180 Common nuisance endangering lives of health of public
- Trial court convicts by finding a common law duty to refrain from conduct that may injure another person
- Supreme Court hesitant to uphold – Modern understanding of HIV makes this bad law
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R v Maboir (HIV+ Sexual Assault – Convicted for unprotected only) [2012] SCC Pg. 3.3-12
- HIV+ A has sex with women not disclosing his HIV status. Sometimes used condoms, sometimes didn’t
- Charged with S.265 sexual assault by fraud and S. 273 aggravated sexual assault by endangering life
- Test at the time, Currier [1998]: dishonest act + exposes V to serious risk of significant bodily harm
- More modern knowledge of HIV transmission = Currier test only met if women were exposed to realistic possibility of
harm
- Convicted only in cases where A did not use condom.
R v Hutchinson (Current test for fraud vitiating consent) [2014] SCC Pg. 3.3-18
- A pokes holes in condom before otherwise consensual sex
- Charged with S.265 sexual assault by fraud
- Test for consent in sexual assault by fraud cases:
• Was there voluntary agreement to engage in the activity in question?
• Were there any circumstances that vitiate apparent consent?
- Condom sabotage obviously serves to vitiate consent, A convicted.
STATUS OFFENSES
Criminalizing a state of being instead of an act or omission (Eg, being a member of a terrorist organization)
Difficult both practically and ethically: How do you prove the AR of a thing that you have always been? Instead, Canada makes it
illegal to “participate in” or “contribute” to a terrorist organization.
Policy note: Drug legalization activists would say that drug criminalization basically amounts to a status offense against drug users
Causation Test:
1. Did the accused do (or omit to do) the thing?
2. Did the prohibited consequence occur?
3. Factual Causation: Was the accused’s action/omission a technical or diagnostic cause of the consequence?
- Would it have happened “but for” the action of the accused? (Winning)
- Did the accused contribute in some way?
4. Legal Casusation: Should the accused be held responsible for casusing the consequence?
- All except 1st degree murder: Was the accused’s conduct a significant contributing cause of the consequence?
(Nette)
- 1st degree murder: Was the accused’s conduct an essential, substantial, and integral part of the killing?
(Harbottle)
- Note: Dfference is not that the Harbottle standard requires A to “cause more” the death – it’s a greater
degree of participation needed to raise the level of culpability
General Notes:
- Causation is not restricted to a search for the most proximate, primary, or only cause of death (Menezes)
o However, act must be more than “merely the setting in which another cause operates”
- Intervening events can break the chain of causation (Reid and Stratton)
o But a more immediate cause doesn’t mean no legal causation (Pagett)
- Thin skull rule – Doesn’t matter if result unexpected, as long as A caused it (Smithers)
Some criminal offenses will have, as an essential element, that the accused caused some prohibited consequence.
- Eg: Culpable homicide is to cause the death of another
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- Some statutes will have “cause” written explicitly, but not all (Eg: public incitement of hatred’s AR is “saying something
likely to lead to a breach of the peace”
- Note that the criminal standard of causation is stricter than in tort
To make out a causation offense, both factual and legal causation must be established beyond a reasonable doubt
FACTUAL CAUSATION
Factual: The technical cause of the consequence – Was it the conduct of the accused that led to it?
R v Winning (Credit card application fraud) [1972] ON CA Pg. 3.5-2
- A makes false statements on credit application. False information is not relied on my the company in their decision.
Charged with obtaining credit by false pretenses
- Not guilty – Lack of factual causation. Credit was not given “but for” the false information she provided
LEGAL CAUSATION
Legal: Normatively, should the person be held responsible? Eg, when you kill in self-defense, you are held to have not legally caused
the death, but you of course did factually/technically
• Test for all causation offenses except first degree murder: Was the accused’s conduct a significant contributing
cause of the prohibited consequence? (Nette)
• Test for first degree murder: Accused’s conduct was an essential, substantial, and integral part of the killing
(Harbottle)
• Note that the difference between these two isn’t that the Harbottle standard requires A to “cause more” the
death – it’s a greater degree of participation needed to raise the level of culpability (Nette 3.5-23)
Smithers v The Queen (Hockey fight – fluke death) * [1978] SCC Pg. 3.5-2
- In a fight after a hockey game, A kicks V hard in the chest. V dies due to a rare medical fluke triggered by the kick
- A still guilty of manslaughter:
• Kick was a “contributing cause of death, beyond the de minimis range”*: Unlawful act may not have caused
the death on its own, but it is a legal cause “so long as it contributed in some way to the death”
• Authority for thin skull rule: Just because death was unexpected and V’s reaction not foreseen, does not relieve
A
R v Harbottle (Assisting murder – Substantial causation test) [1993] SCC Pg. 3.5-8
- 1st
A holds down V while his friend strangled her. Charged with degree murder
- Was this degree of causation enough for 1st degree murder conviction?
- Yes
• Since 1st degree murder is so serious, it should have a stricter test for causation than in the Smithers
manslaughter case
• Test should be “actions of the accused form an essential, substantial, and integral part of the killing” (3.5-11)
• A must play an active role – but locking someone in a cupboard while someone else sets it on fire is still an
active role – This POS still guilty
R v Nette (Tied up victim – General legal causation test) [2001] SCC Pg. 3.5-12
- Robbery victim left hog-tied on her bed, dies at some point afterward after falling
- A charged with second degree murder – was the jury charged correctly?
- Majority: Standard of causation from Smithers is correct, Harbottle only added the higher degree of culpability needed
for 1st degree convictions
• Causation standard is “significant contributing cause” (replaces the “de minimis” standard from Smithers)
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- Concurrence: L’Hereux-Dube agrees with the outcome, but Smithers “not insignificant” standard is not the same as
Harbottle “significant” standard
• She’s right about this, but the majority’s formulation remains the clearest elaboration and leading authority
for all non-1st degree causation offenses.
INTERVENING ACT
Pagett v The Queen (Human shield case) [1983] Eng CA
- A uses V as human shield in shootout with police
- A still caused the death. An intermediate cause does not necessarily mean lack of causation
R v Maybin (Bouncer throws punch in bar fight) [2012] SCC Pg. 3.5-36
- V on the way down when the bar bouncer hits him as well
- Impossible to say which punch killed V, does bouncer getting involved break chain of causation?
- No
• Fact that it’s impossible to prove a single cause of death not relevant, A’s actions still a significant contributing
cause per Nette
- Court addresses some analytical aids that may be used to help understand causation (not tests)
• Was the intervening event a reasonably foreseeable result of the act?
• Was the intervening event a result of a third party acting independently?
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R v Buzzanga and Durocher (Francophone pamphlets – Common sense inference) [1979] ON CA Pg. 4.4-7
- Two Franco-Ontarian activists put up some fake anti-French pamphlets
- Charged with a causation offense – “willfully promoting hatred”
- Offense is silent on level of mental fault, so we presume subjective
- Common sense inference: “As a general rule, a person who foresees that a consequence is certain or substantially
certain to result from an act which he does in order to achieve some other purpose, intends that consequence”
- Therefore, A has to have had either:
• Conscious purpose of promoting hatred
• Subjective foresight that promoting hatred was substantially certain to result
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- This means that if A had not intended to promote hatred, and also did not foresee that promoting hatred would result,
they would not have the MR.
R v ADH (Baby in Walmart toilet – Interpreting fault level – Subjective presumption) [2013] SCC Pg. 4.4-10
- A gives birth in Walmart bathroom. Didn’t know she was pregnant, thinks baby is dead, so leaves it.
- Charged with S.218 child abandonment “so that child’s health is endangered…”
- Question is therefore whether this is a subjective or objective fault level – guilty only if objective fault
- Standards for interpreting fault level of an offense:
• Default presumption in criminal law is subjective fault (weaker than presumption of strict liability in Sault Ste
Marie)
• Purpose and breadth of offense
• Text of offense - any language parliament normally uses to indicate objective fault?
• Scheme of criminal code – types of objective fault offenses
▪ Dangerous, regulated conduct (like driving)
▪ Careless conduct in situations that requires reasonable precautions (careless storage of a firearm)
▪ "Predicate offenses", where some of them require objective fault [59]
▪ Criminal negligence - "wanton and reckless disregard" with no proof of intention required
▪ Duty-based offenses - There are objective standards that society imposes
- Applying the interpretive test:
• Start with assumption of subjective fault
• No language to suggest objective fault in text of law
• Not one of the types where objective fault usually found - “duty to preserve life” is a separate offense
• Law is broad and doesn’t relate to duty, so we want a higher fault requirement to protect too many people
from getting caught up in it
- Therefore, subjective offense, A not guilty
- “Reasonable” is an objective assessment
- Case also provides some useful definitions:
- Penal negligence: "That the risk to the child resulting from the accused's acts would have been foreseeable by a
reasonable person in the same circumstances and, that the accused's conduct was a marked departure from the conduct
expected of a reasonable person in those circumstances" [15]
- Levels of subjective mental fault:
• "Intention to bring about certain consequences"
• "Knowledge that the consequences will occur"
• "Recklessness = that the accused persisted in a course of conduct knowing of the risk which it created"
• "Willful blindness = Knowledge of the need to inquire as to the consequences and deliberate failure to do so"
Recklessness: Becoming aware of a risk + proceeding with conduct that creates risk anyway (Sansregret)
- Valid even if prohibited consequence does not happen
- Reasons: Preventative purpose of criminal law, some harms are so serious that even being reckless about them is
morally blameworthy
Deliberate Ignorance (“Willful Blindness”): Becoming aware of the need to make inquiries, but declining to do so as not to
have knowledge (Sansgregret)
- Theoretically less than knowledge, but a doctrine that allows knowledge standard requirement to be satisfied (Briscoe)
- A is subjectively aware of need to inquire, but deliberately chooses not to do so so as to avoid knowledge (Briscoe)
R v Sansregret (“Consensual” sex to calm down assailant) [1985] SCC Pg. 4.5-1
- A breaks into ex-girlfriend’s house, threatens her with knife. She has sex with him to calm him down but complains of
rape after
- A does the same thing again a month later and V uses same tactic– A convicted of everything but the rape, on apparent
mistake of fact
- Convicted on basis of “willful blindness” (now called deliberate ignorance) – A, being aware of what happened last
time, cannot possibly say that he did not know the consent wasn’t genuine.
• Troubling question: could he have been convicted of the first rape? Even an unreasonable mistake of fact is a
defense, if the mistake is honestly held (Pappajohn)
• CC has since been amended, belief in consent is no defense if belief arises from self-induced intoxication, willful
blindness or recklessness, authority or fraud, failure to take reasonable steps to ascertain consent
- Willful blindness distinguished from recklessness [VI]
• Recklessness: Knowledge of a danger or risk, and persistence in a course of conduct which creates a risk that
the prohibited result will occur, even if it does not actually happen
• “Willful Blindness”: Person is aware of the need to make some inquiry, but declines to do so because he does
not wish to know the truth
R v Briscoe (Golf course murder, deliberate ignorance) [2010] SCC Pg. 4.5-7
- A drives a car that the assailants use to pick up their victims. Something was obviously up but A doesn’t want to know.
Charged with S.21(1)(b) “does or omits to do anything for the purpose of aiding…”
- “Purpose” means intent for party liability, not desire. Doing something to assist a crime with knowledge of the perp’s
intention is intent to assist.
- Question is therefore a subjective one of A’s knowledge:
• A was obviously aware something was up, and chose to remain ignorant so that he could deny knowledge. This
is cheating the administration of justice.
• “Willful blindness can substitute for actual knowledge whenever knowledge is a component of mens rea”
• “The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point
where he sees the need for further inquiries, but deliberately chooses not to make those inquiries”
• Test: “Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with
knowledge?”
- Also, “deliberate ignorance” is probably a better term for this doctrine.
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CRIMINAL NEGLIGENCE
Criminal offenses with objective fault level – How can they be made acceptable?
- ADH gives us the rules for interpreting offenses to find objective fault
- The standard may be an objective one (departure from standard of care of reasonable person, foreseeability of harm)
- But there must always be some room for subjective facts as a defense (eg, A lacked capacity) (Creighton)
R v Beatty (Lapse of attention – Car crash – Modified objective test) [2008] SCC Pg. 4.6-10
- Momentary lapse of attention leads to car crash. Charge of dangerous driving causing death. Issue is whether
momentary lapse is sufficient to make out charge
- Modified Objective Test laid out:
• The AR in this charge is falling below the standards of a reasonably prudent driver (civil negligence standard)
• But the MR is a marked departure from the norm (penal negligence standard)
▪ This is made out on an objective test, but where the defense can raise a reasonable doubt about
whether a person in their position would have been aware of the risks
▪ Thus, defenses of incapacity and mistake of fact can still be raised – necessary for principles of justice
- Point: The default standard for objective fault offenses is “marked departure,” but some also have the higher “marked
and substantial” requirement.
Re BC Motor Vehicle Act (NO JAIL TIME WITHOUT MENTAL FAULT) [1985] SCC Pg. 4.3-7
- Statute imposes jail time for driving with suspended license on basis of absolute liability
- Charter is new. Does jail time on absolute liability violate S.7?
- Yes, absolute liability cannot exist for crimes that carry jail time
• Absolute liability doesn’t violate S.7 per se
• But anything that carries jail time must require fault,
• Administrative expediency does not save this law under S.1
R v Wholesale Travel Group [1991] SCC: Suggests that minimum level of fault for jail time to be constitutional is “negligence,” but
not clear if strict liability offenses can be considered negligence for this standard
20
Section 7 requires that certain offences have a constitutionally required minimum subjective fault level
S.7 of the Charter – people cannot be deprived of life/liberty/security of the person except in accordance with the principles of
fundamental justice. No S.7 violation has ever been justified under S.1
- Eg, BC Motor Vehicles: No jail time on an absolute liability basis
- The Supreme Court has ruled, in some other cases, S. 7 requires that there be a subjective level of mental fault for an
offence ("It is a principle of fundamental justice that the moral fault of the accused be commensurate with the gravity of
the offense and its penalty" - McLachlin in Creighton)
- To find these offenses, all we can do is look at what’s been decided and reason by analogy:
R v Finta (STIGMA/PENALTY ANALYSIS & WAR CRIMES AS AN EXAMPLE) [1994] SCC Pg. 4.7-1
- Accused is an officer at a WWII concentration camp. Trial judge tells the jury that he has to be aware of the crimes
against humanity going on. He is acquitted by the jury. (There are huge problems with the international law aspects of
this case, but the stigma/penalty analysis is good law).
- Stigma/penalty analysis:
• Being a war criminal has the greatest stigma imaginable (even more so than being a murderer)
21
• In other to justify this, there must be some subjective fault element to distinguish war crimes from even the
underlying offenses (eg, had to know/be willfully blind about what was going on at the camp)
- The Supreme Court got a lot of things about international law wrong
• Genocide is the intention to destroy a national ethnic, racial, or religious group as such.
• Crime against humanity of murder: The intentional killing of a population, but not of a genocidal way
• War crime of willful killing: Perpetrator was aware of the protected status of the victim (civilian, prisoner of
war, etc)
- These crimes therefore all have a subjective MR requirement, so the Supreme Court was right about that much.
Note: A person convicted under s.21 is not guilty of a separate offence (“aiding a robbery”), but rather of the same offence.
(2): Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other
therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought
to have known that the commission of the offence would be a probably consequence of carrying out the common
purpose is a party to that offence.
PRINCIPAL OFFENDERS
- Both the principal offender and the aider/abettor are equally culpable, although there are differences with the fault
level/actus reus to be noted (Thatcher)
- In cases of group crimes, we apply the Nette test to the conduct of the group, and all can be convicted at co-principals (H
(L.I.))
- A person who commits an offence by means of an instrument “whose movements are regulated” by him actually commits
the offence themselves – “doctrine of innocent agency” (Berryman)
A principal offender is the person who actually commits the offence in question. However this definition can be interpreted broadly:
R v Thatcher (PO OR A/A CASE - MODE OF LIABILITY LEGALLY IRRELEVANT) [1987] SCC Pg. 5.2-1
- Evidence is that A either shot his wife personally, or hired someone to shoot her
- Jury is instructed that they can convict if they believe either was the case – Issue is that it could be possible for a
conviction without jury unanimity on the facts
- Conviction upheld – there is no need for jury unanimity on the mode of liability. Under s.21(1), both a principal offender
and an aider/abettor are equally culpable, it is therefore legally irrelevant.
- Policy note – This case is pre-Charter. Mode of liability is still relevant for Crown burden & sentencing. Different facts
could conceivably lead to different outcome.
R v H (LI) (MULTIPLE CO-PRINCIPALS – BLOW OF ONE IS BLOW OF ALL) [2003] SCC Pg. 5.2-7
- In a group assault, there are multiple accused, but no evidence about who struck the fatal blow
22
- There may be multiple people who “actually commit” the crime - not knowing who actually struck the fatal blow is does
not preclude conviction as co-principals.
- There is no need to separate conduct into “principal” and “aiders/abettors”. Instead, they can all be convicted as co-
principals.
• In such party offenses, we apply the Nette test to the joint conduct of the group when they are acting in
concert.
• “When several persons act together toward a common criminal object, with the “requisite intent,” and any of
them jointly or severally achieves the common object, all who are present at the commission of the crime
commit the crime as joint principal offenders. This principle has been pithily stated in concrete terms that “the
blow of one is, in law, the blow of all of them” [19].
R v Berryman (DOCTRINE OF INNOCENT AGENCY- CAN’T ESCAPE BECAUSE NO PO) [1990] BC CA Pg. 5.2-12
- A works at passport office. Submits falsified forms, knowing that it would cause a fake passport to be made. Can A be
convicted of forgery? Can’t be aiding/abetting, because the person who made the passport didn’t commit a crime,
- Doctrine of Innocent Agency – A is deemed a principal offender because “a person who commits an offence by means
of an instrument whose movements are regulated by him, actually commits the offense himself” [33].
- MR = Knowledge of the PO’s intention to commit the crime, and intention to assist (aiding) or
support/encourage/instigate (abetting) (Briscoe)
o Knowledge does not prove intention, the jury can make a common-sense inference (Buzzanga and Durocher),
but it can always be rebutted on the evidence (Palombi)
o Why? Because as the person’s involvement becomes “more peripheral,” it makes sense to require a higher fault
level (Helsdon)
o Exception: Aiding/Abetting murder can be reduced to manslaughter and convicted on an objective fault level
(Jackson 1993)
- AR = Must be more than mere presence (Dunlop and Sylvester). However, “presence plus” is fairly easy to prove:
o Attendance with knowledge and for the purpose of encouragement (Briscoe)
o “Prolonged and unexplained presence” can be evidence of intention (Jackson 2007)
o Omitting to do a duty for purpose of aiding (Nixon)
Under section 21(1)(b), an accused is a party to an offence if they do or omit to do anything for the purpose of assisting another
person in committing the offence. The actus reus for aiding is therefore to do anything that may provide assistance to the
offender in committing the offence, while the mens rea of “purpose” has been interpreted to require knowledge of the accused’s
intention to commit the crime, combined with intention to assist (Briscoe).
Under section 21(1)(c), an accused is a party to an offence if they do or omit to do anything for the purpose of encouraging
another person to commit the offence. The actus reus for abetting is required to be more than mere presence at the scene of the
offence (Dunlop and Sylvester), but can be made out from a wide range of factors including prior knowledge of the offence or
offering some form of encouragement or support to the offender (Dunlop). The mens rea of “purpose” in the provision has been
interpreted to require knowledge of the accused’s intention to commit the crime, combined with intention to assist (Briscoe).
23
S. 21(1) (b) and (c) make it possible for a person to be convicted of an offense for aiding the principal offender.
- This can be accomplished via acts (being the lookout) or omissions, even when there is no legal duty (leaving the door
unlocked to facilitate a robbery)
- However, the act or omission must be done for the purpose of aiding/abetting the offence.
o Exception: Aiding and abetting murder, without intention, can lead to a conviction for manslaughter on an
objective fault basis (Jackson 1993).
o Exception: Assisting with the purchase of illegal drugs is aiding/abetting possession, not trafficking (Greyeyes)
- Mere presence at the scene of a crime will not be sufficient for a conviction (Dunlop and Sylvester), but pretty much any
additional action/factor will be enough (eg, prior knowledge of crime, contributing to intimidation by standing there)
R v Briscoe (MR FOR AIDING = KNOWLEDGE OF PO’S INTENT + INTENT TO ASSIST) [2010] SCC Pg. 5.3-1
- A assisted in commission of crime. Issue is whether he had sufficient Mens Rea for aiding/abetting conviction
- The purpose requirement of S.21(1)(b) “should be understood as essentially synonymous with intention.” The MR for
aiding/abetting is therefore “the accused intended to assist the principal in the commission of the offence” [16].
• This does not mean that the aider/abettor has to desire the crime be completed, as long as they intend to assist
in it [16].
• The aider must have knowledge of principal’s intent to commit the crime, and act with intention to assist [18].
• Precise knowledge of details not required. The common sense inference (Buzzanga) can be used to get from
knowledge to intention [17].
- The intention to assist in the crime, and the actual assistance rendered must be contemporaneous to satisfy the MR
requirement [17].
R v Dunlop and Sylvester (MERE PRESENCE NOT SUFFICIENT FOR A/A CONVICTION) [1979] SCC Pg. 5.3-5
- Two As are present at the scene of a gang rape. They allege that they showed up with no prior knowledge and did
nothing to assist.
- “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed” [31].
- “Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors,
such as prior knowledge of offender’s intention or attendance for the purpose of encouragement”
• Examples of something more: Encouraging, keeping watch, preventing escape, preventing intervention, having a
duty to act (Nixon – cop beating case), “prolonged and unexplained presence” (Jackson 2007 – grow op).
• However no evidence of any of these in this case – acquitted [43].
R v Jackson 2007 (PROLONGUED AND UNEXPLAINED PRESENCE) [2007] SCC Pg. 5.3.-14
- A is convicted of growing cannabis. He was found camping at a remote grow-op in the forest but there was no direct
evidence that he actually participated in the growing
- Dunlop is clear that mere presence is not enough – but this was prolonged and unexplained presence plus other
circumstantial factors. The accused was there for long enough that they must have gained knowledge at some point and
therefore become guilty in aiding/abetting
- Strong dissent in this case. Prof agrees, thinks there are better ways to deal with issue than party liability – why not make
“being present at a grow op” a crime?
- Authority that mere presence is not guilt, example of conviction under “presence +”
24
R v Nixon (COP BEATING – A/A LIABILITY BY OMISSION) [1990] BC CA Pg. 5.3-18
- A is senior officer present when a suspect is assaulted in custody. No proof that A participated, but is convicted of
aiding/abetting on basis of failing to act under his legal duty to prevent
- When omission is being used for A/A, the accused must have and fail in their duty, but also must have knowledge of the
risk incurred if they fail to act in order to find purpose [61].
- In this case there was clearly duty + failure + knowledge = omission for purpose of aiding. This is a clear 21(1)(b) case
[67].
- Note one does not have to have a duty to be liable for aiding by omission.
R v Helsdon (MUST BE SUBJECTIVE FAULT, REGARDLESS OF UNDERLYING OFFENCE LEVEL*) [2007] ON CA Pg. 5.3-24
- A is a journalist who submits an article to his newspaper about a sexual assault case that had a publication ban.
- The newspaper publishes it, and is convicted of the actual offence on an objective fault standard. Can A be convicted of
aiding an objective fault level offence on an objective fault standard?
- No – acquitted
• S. 21(1)(b) is very clear that the act/omission be for the purpose of aiding another – this means there must be
a subjective fault level (arguably less than “intention”, but definitely still subjective [29].
▪ 21(1)(c) doesn’t specify purpose, but it should be read the same [43]
• There are good policy reasons for having a high fault level when the accused did not commit the offense – the
“more peripheral” someone’s involvement is to the actual completed crime, the more sense it makes to require
a subjective MR (Roach) [35].
- Note two exceptions to this rule:
• Jackson 1993 – An A/A to murder can be convicted of manslaughter on an objective fault standard [36]
• Greyeyes – For policy reasons, a person who A/As a drug purchase should be convicted of A/Aing possession,
not trafficking.
COMMON INTENTION
- S. 21(2) allows for conviction of parties who form a common intention to commit an unlawful purpose, and then one of
them, in carrying out the unlawful purpose, commits an offence that they knew or ought to have known would be a
probable consequence of the unlawful purpose.
o “Probable consequence” is more permissive language than Nette causation standard
o Characterization of unlawful purpose essential, and can be expanded (eg, Kirkness)
o NB: Fault level of unlawful purpose can be lower, but must be common intention to assist
o NB: Cannot be convicted on “ought to have known” basis when there is a constitutionally required minimum
subjective fault level (Logan, Finta is authority for test)
Under section 21(2) of the Criminal Code, a person can be convicted as a party to an offence if they have formed a common
intention with the principal offender to carry out an unlawful purpose, where the person know or ought to have known that the
offence would follow as a probable consequence of the unlawful purpose. In order to secure a conviction via this mode of liability,
the Crown will be required to prove both that the accused intended to carry out an unlawful purpose with XXX, and that the XXX
was an objectively foreseeable consequence of that unlawful purpose (Kirkness).
In order to establish that the result of XXX was a foreseeable consequence, the Crown will seek to characterize the unlawful
purpose as broadly as possible
Importantly, however, the nature of the offence of XXX brings a constitutional consideration into play if the Crown chooses to
proceed under section 21(2). In Logan, the Supreme Court ruled that if an offence has a constitutionally mandated minimum
subjective fault level, then an accused cannot be convicted as a party to the offence on an objective fault basis. Therefore, the
words “ought to have known” from section 21(2) will not apply XXX, and the Crown will instead be required to prove that the
accused actually had subjective foresight of XXX
In this case, the accused may wish to raise the defence of abandonment, arguing that they had sufficiently withdrawn from the
unlawful purpose by the time of XXX (Gauthier). In order to make out this defence, the accused will be required to show the
following elements, one of which the Crown must disprove beyond a reasonable doubt in order to deny the defence to the accused.
First, the accused must demonstrate that they had an intention to abandon or withdraw from the unlawful purpose XXX. Next, they
must demonstrate that they communicated their withdrawal from the unlawful purpose to the other parties, and that this
communication served unequivocal upon those who wished to continue. Finally, as affirmed in Gauthier, the accused must present
evidence that they took, in a manner proportional to XXX degree of participation unlawful purpose, reasonable steps in the
circumstances to neutralize or otherwise cancel out the effects of XXX participation, or to prevent the commission of the offence.
26
S. 21 (2): Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other
therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have
known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that
offence."
- Mens rea for ultimate offence can be objective, but formation of unlawful purpose requires intent. Note language is “an
offence”.
- There does not need to be advance planning – the common intention can be formed at the moment of the crime (Kirkness).
We can infer common intention from facts (parties aiding = obvious common intention)
- We are not applying a Nette or Pare causation standard for the offence that flows – the language of “probable
consequence” is more permissive.
- The unlawful purpose can be expanded while underway (Gauthier).
- Common issue will be what the scope of the common intention was, as this relates to what the probable consequences are.
o The wider the scope of the common intention, the more foreseeable a crime would be.
o If you know your partner is violent, that can relate to the scope of the unlawful purpose (Kirkness dissent).
Example: In an armed robbery, A is going to be the lookout, B is going to look intimidating, and C is going to use a gun to threaten
people.
o C is the principal offender, A and B are aiding and abetting. They all have a common intention to commit armed
robbery.
- Now say C shoots a teller in the foot, unbeknownst to A and B
o A and B are not parties to the assault under S. 21(1) – they did not agree/intend to assist in it
o Under S. 21(2), A and B can be convicted of the assault as long as the Crown can prove that the assault was a
probable consequence of the armed robbery that they either knew or ought to have known about.
▪ Was C known to be violent? If yes, easier to convict A and B. (Kirkness dissent)
▪ If the teller dies, the words “ought to have known” don’t apply - Logan
- Why is this fair?
o It is morally blameworthy to participate in planned crimes with people, and to assist them. It is morally correct to
hold people responsible for any reasonably foreseeable harm that results from their crime.
o There is a charter issue for the “ought to have known” piece, see Logan.
R v Kirkness (DIFFERENT SCOPE OF COMMON INTENTION LEADS TO DIFFERENT OUTCOMES) [1990] SCC Pg. 5.4-1
- A breaks into a house with his friend, with the common intention of committing armed robbery
- When PO finds a woman is home, he rapes her while A steals things and jams the door shut with a chair
- PO then starts to strangle her, which A objects to but doesn’t do anything to stop. Can A be a party to the murder?
- Majority frames the common intention narrowly and acquits – he had common intention to commit armed robbery,
and was probably party to the sexual assault too. But since he had no reason to know that death might result from the
armed robbery/sexual assault, the scope of the common intention was not expanded enough to make him a party to
the murder.
• Wilson J dissent says that unlawful purpose expanded, this approach later picked up.
- Wilson J Dissent – It was at least open to the jury to decide that A was a party to the murder
• There was definitely a common intention for the break and enter (“where one has aided or abetted in the
commission of an offence, there can be little doubt that a shared intention to effect an unlawful purpose
existed”) [73].
• There was probably also a common intention for the sexual assault – it may not have been pre-planned, but
advance planning is not a requirement – A jury could have found that A acquiesced to this common intention
once it became clear what PO was doing (ie, the unlawful purpose expanded) [77].
• From a common intention to commit sexual assault, it’s not hard to imagine a jury deciding that the murder
was a probable consequence of that common intention.
- Abandonment: What is necessary for the defense of abandonment depends on the degree of participation in the crime,
jury could have found A’s objection was not enough. More in Gauthier.
27
R v Logan (CONSITUITONALLY REQ’D SUBJD MR – ALSO REQ’D FOR COMMON INTENTION) [1990] SCC Pg. 5.4-10
- Challenge to the S. 7 Constitutionality of common intention conviction on objective fault standard (“ought to have
known”.
- A is party to an armed robbery where the clerk unexpectedly ends up getting shot. Can he be convicted on an objective
fault standard that an attempted murder was a probable consequence of the robbery?
• Vaillancourt says that certain offences (eg murder) require a subjective fault standard to be constitutionally
permissible (stigma-penalty analysis). See also Finta for how to perform analysis.
- It is not a principle of fundamental justice that Parliament cannot enact different fault levels for principals and parties
(although it seems like a generally sound idea) because the sentencing scheme is flexible [14].
- However, if the offense is one which constitutionally requires a subjective fault level after doing a stigma/penalty
analysis, then that must also apply to party liability
• Therefore, the words “ought to have known” in S.21(2) are read out for offenses where it is constitutionally
required that there be subjective fault
ATTEMPTS
(2): The question of whether an act or omission by a person who has an intent to commit and offence is or is not mere
preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
- This is a general provision that applies to any offence in the Criminal Code. Attempts also existed in the common law.
- Why? Because it still morally blameworthy to commit acts with a criminal attempt. There are also matters of deterrence.
• This can raise policy arguments. How long should the police have to wait before a terrorism plot is put into action?
At what stage of building a bomb to people exceed “mere preparation”? Why should a failed shooter benefit from
his bad aim?
- Attempts are generally punished less severely than completed offences (s. 463). Penalty for attempted murder is up to life,
but with no minimum penalty (unless a firearm is used) and a reduced parole ineligibility period.
28
- Criminal code requires intent for attempts, constitution requires subjective MR for attempts when the completed offence
also requires (Logan).
- Deutsch: Comparing nature and quality of completed offence with nature and quality of the actions of the accused (time,
place, acts remaining)
Deutsch v The Queen (ACTS BEYOND MERE PREPARATION & TEST) [1986] SCC Pg. 5.5-4
- A is charged with attempting to procure a person to have illicit sexual intercourse after he advertises a secretary
permission with big money, interviews candidates and informs them they will be required to have sex with the clients
when necessary.
- But he never actually offered the job to any of them – what is the test for “acts beyond mere preparation”?
- The distinction between preparation and attempt is qualitative and contextual. Factors [27]:
• Relationship between the nature and quality of the act in question and the nature of the complete offence
• Relative proximity of the act in question to what would have been the completed offence (considering time,
location, acts under the control of the accused remaining to be accomplished)
- These are not clear yes/no factors, so this doesn’t always give a clear answer – It is very contextual, with room for
argument and ambiguity.
• In this case, the inducement/persuasion was an important act for the crime of procurement, and it would have
been open to the jury to find necessary intent for a conviction
- Stigma/penalty analysis: S. 7 of the Charter requires subjective fault for attempted murder [23]:
• Stigma for attempted murder is the same as murder, and the punishment is usually very severe
• Therefore the stigma/penalty analysis requires some subjective fault. This is a minimum level. Parliament could
make it anything subjective, even a subjective level lower than intention without violating S. 7
Class Cases:
IMPOSSIBILITY
United States of America v Dynar (FACTUAL/LEGAL IMPOSSIBILITY IRRELEVANT) [1997] SCC Pg. 5.5-19
- There is a distinction in the law of attempts between factual and legal impossibility. Factual impossibility is attempting to
steal from an empty safe. Legal impossibility is that the act wouldn’t have been a crime, even if completed
- Accused got caught attempting to launder money in an FBI sting. He is facing extradition, but argues that it was legally
impossible for him to have completed the offence, since the money wasn’t actually dirty.
- Under the law of attempts, it doesn’t matter is the act was factually or legally impossible, as long as the guilty mind is
the same [73]:
• The distinction doesn’t really make sense. The point of attempts is that the MR is present, and some steps have
been taken toward the commission of the AR. Why is an attempt to do the possible more blameworthy than
an attempt to do the impossible? [67] Why have a defence of mistaken belief? [63]
- Instead, the only thing not covered are imaginary crimes – attempting to do something that you think is a crime, but
isn’t [65].
- A had the guilty mind, and took steps toward the commission. It does not make him less guilty that the money was US
taxpayer dollars, not the proceeds of crime.
DEFENSES:
A true defence operates after the AR and MR have been shown. The Crown will be required to prove BARD that at least one of the
elements of the defence was not present
30
Other “defences” exclude criminal responsibility by negating one of the required elements of the offence (eg, mistake of fact
negates the MR).
“Air of Reality”: Could a properly instructed jury ever find the accused to have made out the defence? (Urquhart)
MISTAKE
MISTAKE OF FACT
When and How Does it Operate?
- Available whenever the accused holds an honest belief in a set of circumstances that, if true, would otherwise entitle them
to an acquittal
- Operates by negating a (usually subjective) fault element (eg, can’t be theft if I thought it was my umbrella)
Burden of Proof:
- If there is an air of reality, judge must instruct jury that this is in play. If there is an air of reality, the Crown must prove
BARD the absence of at least one of the elements defence in order to prevent the defence from applying (Urquhart)
Test:
- Did accused hold an honest belief in a set of circumstances that, if true, would otherwise entitle them to an acquittal?
Issues/Considerations:
- NB: Must show that the offence requires subjective MR about that thing – check the statute!
MISTAKE OF LAW
Criminal Code S.19: "Ignorance of the law by a person who commits an offence is not an excuse for committing that offence."
Issues/Considerations:
- Why not? (discussed in Jorgensen)
• Would incentivize ignorance of the law / Would create different standards for different people
• Would be practically impossible to disprove
• Laws are supposed to reflect moral intuition and societal values, so people should be capable of ascertaining what
the law is
• Ignorance of the law its itself blameworthy
- Critique: The law is always changing, it’s not clear, it’s unreasonable to assume that a responsible citizen will have
comprehensive knowledge of the law.
R v Jones and Pamajewon (MISTAKE OF LAW NO EXCUSE) [1991] SCC Pg. 6.2-2
31
- Two A’s run a bingo game on a native reserve, having passed a resolution purporting to renounce the jurisdiction of
federal and provincial gaming laws
- No, this is a mistake of law, not fact. This is not a “without colour of right” offence. Guilty per S.19.
Burden of Proof:
- Burden is on the accused to make out on a balance of probabilities.
Issues/Considerations:
- Emerged from lower courts in the context of regulatory offenses (R v Cancoil [1986 ON CA]), example of new common law
defences still emerging, consistent with Charter principles
- Theoretically supported by fact that we want people to make an effort to follow the law, and it is unjust to punish and
accused if their fault is a result of this effort
- A fairly narrow carve-out, there is no defence of “reasonable mistake of law”
32
R v Jorgensen (LAMER ARGUES SHOULD BE DEFENCE OF OIE) [1995] SCC Pg. 6.2-4
- A’s films are approved by the Ontario Film Review Board. He is charged with selling obscene material, which technically
isn’t contingent on what provincial review boards say.
- Majority acquits on the basis of knowledge (he didn’t watch the films), but Lamer says this is a good time to create the
defence of officially induced error.
- First, discusses why ignorance of the law is no excuse [5], but notes narrow exceptions already exist in cases where it
would produce manifestly unjust outcomes [6].
- Then, notes that allowing this exception will not undermine the purposes of the rule (doesn’t encourage ignorance,
doesn’t create evidentiary problems due to shifted burden) [7]
- Lays out above test from [28-35], would be available in this case.
Levis (City) v Tetreault (SUPREME COURT AGREES) [2006] SCC Pg. 6.2-16
- Two regulatory offence cases. (1): A is charged with driving without insurance after insurance renewal reminder mailed
to wrong address. (2): A is charged with driving without a licence because he believes his expiry date was a payment due
date.
- Consistent with the principles of Sault Ste Marie, most regulatory offences are presumed to have the defence of due
diligence. When criminal offences involve strict liability, the same principles apply, and the defence of officially induced
error should apply.
- Court affirms Lamer’s formulation in Jorgensen, and fails the cases on it. (1) Did not consider consequences/seek advice,
and (2) Was just dumb, not seeking out advice.
Burden of Proof:
- If there is an air of reality, the Crown must prove BARD the absence of at least one of the elements defence in order to
prevent the defence from applying (Urquhart)
Test: (Related provisions: Excessive force S.26, preventing offences S.27, use of force on aircraft 27.1)
Defence of Person (S.34, replaces old 34-37) Defence of Property (S.35, replaces old 38-42)
Requirement: Requirement:
1. A person is not guilty of an offence if 1. A person is not guilty of an offence if
a. they believe on reasonable grounds that force is being used against them or a. they either believe on reasonable
another person or that a threat of force is being made against them or grounds that they are in peaceable
another person; possession of property or are acting
- Believe on reasonable grounds = subjective/objective under the authority of, or lawfully
- Personal factors (A’s past victimization) come in at reasonableness stage, not assisting, a person whom they believe on
apprehension stage reasonable grounds is in peaceable
b. the act that constitutes the offence is committed for the purpose of possession of property;
defending or protecting themselves or the other person from that use or - Inquiry is reasonableness, so a
threat of force; and mistake does not kill a defence of
- Subjective intention property claim
c. the act committed is reasonable in the circumstances. b. they believe on reasonable grounds that
- Objective contextual test, with reference to below and other factors another person
- Protection of another used to require a close relationship, this has been removed i. is about to enter, is entering or has
entered the property without being
Factors:
entitled by law to do so,
2. In determining whether the act committed is reasonable in the circumstances, ii. is about to take the property, is
the court shall consider the relevant circumstances of the person, the other doing so or has just done so, or
parties and the act, including, but not limited to, the following factors: iii. is about to damage or destroy the
a. the nature of the force or threat; property, or make it inoperative, or
b. the extent to which the use of force was imminent and whether there were is doing so;
other means available to respond to the potential use of force; - All points in time covered on a
- This used to be determinative (requirement of no safe way out). Now it is reasonableness basis
just a factor, but a very significant one c. the act that constitutes the offence is
c. the person’s role in the incident; committed for the purpose of
- We want to know all the events. Did the person claiming self-defense i. preventing the other person from
provoke it? entering the property, or removing
d. whether any party to the incident used or threatened to use a weapon; that person from the property, or
e. the size, age, gender and physical capabilities of the parties to the incident; ii. preventing the other person from
- Not determinative, just a factor taking, damaging or destroying the
f. the nature, duration and history of any relationship between the parties to property or from making it
the incident, including any prior use or threat of force and the nature of inoperative, or retaking the property
that force or threat; from that person; and
i. (f.1) any history of interaction or communication between the
Factors:
parties to the incident;
- Battered spouse? Consider Lavalle discussed below d. the act committed is reasonable in the
g. the nature and proportionality of the person’s response to the use or threat circumstances.
of force; and - An objective inquiry
- Obviously this is pretty important, the force must be proportionate to - Probably informed by the S.34(2)
be reasonable. factors
- The inquiry is generally only into what is necessary under the - Presumably, factors such as the
circumstances value of the property are also
h. whether the act committed was in response to a use or threat of force that relevant
the person knew was lawful.
Exceptions:
- Note the knowledge requirement, technically possible to use self-
defense on an undercover cop (2) Subsection (1) does not apply if the person who
believes on reasonable grounds that they are, or
- Other factors could be: where/when did this happen? Was A approached alone who is believed on reasonable grounds to be, in
at night in a park? Was A allowed to own the weapon they used? peaceable possession of the property does not
have a claim of right to it and the other person is
Exceptions entitled to its possession by law.
(3) Subsection (1) does not apply if the force is used or threatened by another person (3) Subsection (1) does not apply if the other
for the purpose of doing something that they are required or authorized by law to do in person is doing something that they are required
the administration or enforcement of the law, unless the person who commits the act or authorized by law to do in the administration or
that constitutes the offence believes on reasonable grounds that the other person is enforcement of the law, unless the person who
acting unlawfully. commits the act that constitutes the offence
believes on reasonable grounds that the other
person is acting unlawfully.
Issues/Considerations:
- Recent reform means that old case law is of little assistance, we don’t have great case law on the new rules
- Policy reasons: proportional conduct in defence of the self is not morally blameworthy
- Lavallee and battered spouse syndrome: In R v Lavallee [1990 SCC], expert evidence was used to establish why women stay
in these relationships, and may feel that killing is the only way to save their life. Accused able to use law of self defence
after shooting husband in the back. Courts now take judicial notice of these situations, so law of self-defence is modified in
this way.
R v Caswell (NEW LAW APPLIES RETROACTIVLY, AND EXAMPLE APPLICATION*) [2013] SK PC Pg. 6.3-3
- A and V are in an on-again/off again relationship. V’s favorite debate tactic is to smash A’s stuff. This time, she picks up a
tray and threatens his TV. A hits her in the shoulder, causing her to drop the TV.
34
- This happened in 2012. Does A get the benefit of the new law? Yes, the general presumption of non-retrospectivity is
rebutted because the law of defence is remedial, reflects society’s most current views / is the most current iteration of
parliament’s intent, and clears up a messy area of the law. A should get the benefit of it [6-11]
- Application of new provisions*:
• Reasonable grounds to believe he was in peaceful possession of the property, and there was a threat to it? Yes
• Act undertaken for purpose of protecting it? Well, A just has to raise a reasonable doubt, so Yes.
• Objectively reasonable under the circumstances? Judge finds yes, he didn’t do anything else to her that nigh.
Perrin not so sure. There was a history of violence in the relationship, and he ripped the phone cord out of the
wall before this happened.
R v Urquhart (AIR OF REALITY PUTS D IN PLAY – BUT C PROVES BARD THAT A WAS NOT) [2013] BC PC Pg. 6.3-10
- A and V get into a fight (the facts of this case are pretty funny if you have time). A is claiming that V came toward him
and responded in self-defense. Witnesses say he continued hitting even while V was on the ground. Facts are highly
disputed and A is not especially credible.
- Example of air of reality putting defence into play – possible that A can prove, so C must prove BARD that the elements
of the defence do not apply.
• Even if V had a subjective belief that he was acting in self-defense, he provoked the assault and was excessive,
therefore C has proven that the response was not reasonable, so defence not available.
NECESSITY
When and How Does it Operate?
- True defence, air of reality basis
- An excuse based on lack of moral voluntariness (wrong, but should not be punished)
Burden of Proof:
- If there is an air of reality, the Crown must prove BARD the absence of at least one of the elements defence in order to
prevent the defence from applying (Urquhart)
Test (Perka):
- Urgency: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts
cry out for action and make a counsel of patience unreasonable” [40].
• The conduct at the time of peril being negligent or illegal doesn’t disqualify, but the necessitous situation being
clearly foreseeable does [54].
• Must be inevitable, unavoidable, and afford no reasonable opportunity for an alternative legal course of action
[62]
- No legal means of escape: If there is any reasonable legal way to get out of the peril? The importance of this cannot be
overstressed [41].
• Only applies in “circumstances of imminent risk where the action is taken to avoid a direct and immediate peril”
• R v Nelson [2007 BC CA]: Two above elements assessed on a modified objective standard
- Proportionality: The harm avoided must be greater than the harm caused by the illegal act [44].
• This is assessed on a pure objective standard
- Prof: Is the choice “comply with the law, or suffer grave harm/die,” to the point where it’s arguable that there isn’t free will
at all?
Issues/Considerations:
- Historically this was never accepted, but Charter principles (ie, the S.7 principle that morally involuntarily conduct should
not be punished) make this another example of new common-law defenses being found.
- Drug smugglers run into problem off the coast of Van Isle. They pull into a cove and offload the ku$h to save the ship
from capsizing.
- Supreme Court says there should be a defence of necessity:
• Theoretical: Utilitarian argument that it is justifiable to break the law if it results in less net harm, humanitarian
argument that it is excusable to break the law if compliance would impose an intolerable burden.
• Rationale: Just like we don’t punish physically involuntary conduct for fairness reasons, and because it’s
pointless from a deterrence point of view, so let’s extend this principle and excuse moral involuntariness [34].
DURESS
Here be dragons. Tread carefully – there are both statutory and common law duress defences, that apply in different situations.
Follow below flowchart carefully, and note incoherences as policy point.
Test (as surviving, modified by common law, and vulnerable to future Charter challenges):
Criminal Code S. 17: "A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is
present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the
person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence
that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third
party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm,
aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons)"
Since the statutory defence (S. 17) is so restrictive, the Supreme Court has interpreted it narrowly and read it down:
4. Discuss policy
a. Immediacy and presence requirements struck out in Ruzic as being violation of PFJ that involuntary conduct should
not be criminally punished
i. Provision was basically written to cover “gun to your head” situations only. Arguably not consistent with
Charter values (as demonstrated by reading out)
b. Excluded offences vulnerable to Charter challenge:
i. Principle that only voluntary conduct should attract the stigma and penalty of criminal liability (S.7) should
be applied to all criminal offences. Does proportionality requirement from common law not serve this
purpose? (Eg, committing arson with a gun to your head vs committing murder because of a future threat
to a third party)
ii. R v Aravena [2015] ON CA: Murder is not automatically excluded from the common law defence, but will
be extremely difficult to make out on the proportionality basis.
iii. R v Willis [2016] MB CA: Constitutional challenge to exclusion of murder fails, but incredibly
unsympathetic defendant and facts.
c. General incoherence of having two duress defences and difference based on principal/party – called
“unsatisfactory” and “incoherent” in Ryan at [83].
d. Similarity with necessity: why not have a single defence of “moral involuntariness”?
i. Why is proportionality in necessity purely objective, but modified objective for duress? (Ryan at [74])
R v Ruzic (IMMEDIACY AND PRESENCE REQUIREMENTS READ OUT – LACK OF MORAL [2001] SCC Pg. 6.5-1
VOLUNTARINESS IS A PRINCIPLE OF FUNDAMENTAL JUSTICE)
- A is caught smuggling heroin into Canada. She had been approached by a gangster back home in Sarajevo, who
threatened her and her family if she didn’t smuggle the drugs.
37
- The language of S.17 demands that the threat be “immediate,” and the threatener “present when the offence is
committed.” There is a Charter challenge to these limits on the defence of duress.
- Yes, Parliament is allowed to restrict or deny certain offences, but this is subject to constitutional review with defence
[23-26] (Eg., the removal of intoxication as a defence to drunk driving was not a S.7 violation)
- It is a PFJ that only voluntary conduct should be criminally punished because the stigma and penalty of criminal
responsibility is based on voluntariness and the assumption that humans are rational and autonomous. Conduct that
isn’t the result of reason and choice should not be punished [42-45]
- Court says the provisions are a violation of S.7 because the strict conditions allow for persons acting involuntary to be
punished. Instead, the analysis should be informed by the common law principles of absence of moral choice.
INTOXICATION:
When and How Does it Operate?
- Not a true defence, but rather a lack of capacity to form the necessary MR to commit the offence
Tests/Burden of Proof:
1. Determine of intoxication voluntary or involuntary
a. Involuntary – May provide a complete defence
b. Voluntary – Need to proceed with the analysis
2. Determine the degree of intoxication (Daley):
a. Mild – Relaxation of inhibitions and socially acceptable behavior
b. Advanced – Impairment of foresight into consequences of actions sufficient to raise a reasonable doubt about the
requisite MR
c. Extreme – “Akin to automatism,” extremely rare, probably can’t result from alcohol alone, accused may establish
on balance of probabilities
3. Determine the intention level of the offence (Tatton):
a. Overall
i. “Specific intent offences require the mind to focus on an objective further to the immediate one at hand,
while general intent offences require only a conscious doing on the prohibited act” [Daley at 35].
ii. Distinction lies in the complexity of the thought and reasoning processes that make up the mental
element of a particular offence, and the social policy underlying the offence” [Tatton at 21]
iii. Supreme Court notes that this area is confusing, leads to “arbitrary and inconsistent results,” and should
be cleared up by Parliament. Until then, here’s how we interpret: [22-25]
b. General
i. MR = “the minimal intent to do the act which constitutes the AR” [27]
ii. Since there is little thought and reasoning required, intoxication short of automatism will not deprive the
accused of mental fault.
iii. Policy reasons: these are “offences that persons who are drunk are apt to commit” [27]
38
c. Specific
i. MR = “a heightened mental element, for example the formation of ulterior motives and purposes” [28]
ii. Since there is more complicated thought and reasoning required, intoxication short of automatism may
be able to negate the required mental element
iii. Policy reasons: less pressing because drunk people are less likely to be able to commit these, often
include lesser, general intent offences
d. Interpretation (only proceed at each stage if previous step does not produce clear answer)
i. Existing jurisprudence
1. Specific:
a. Murder (Daley)
b. Robbery (Tatton)
c. Assault with intent to resist arrest (Tatton)
d. Possession of stolen property (Tatton)
2. General
a. Manslaughter (Daley)
b. Arson (Tatton)
c. Assault causing bodily harm (Tatton)
d. Sexual assault (Tatton)
ii. Statutory interpretation
iii. Mental fault element
1. How complex is the mental element? Is there need for an intent to bring about certain
consequences, external to the AR, or some special knowledge component? (Eg, assault with
intention to resist arrest, possession of stolen property)
iv. Role of policy [41]
1. Is alcohol habitually associated with the crime in question (sexual assault, property damage,
violence)? [42]
2. Is there a lesser, included general intent offence? [44]
3. Judicial discretion in sentencing (more discretion = more likely to be general) [45]
4. If intoxication extreme and offence general, apply S.33.1
a. Interpret elements of offence for assault, bodily interference, or threats of those
b. If yes, defence of intoxication unavailable, note possibility of Charter challenge
c. If no, defence available
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced
intoxication, lacked the general intent or voluntariness required to commit the offence, where the accused departed markedly from
the standard of care as described in subsection (2)
- Doesn’t matter what your fault level is, if you depart from the objective standard of care set out in (2), you will be denied
the defence
Criminal fault by reason of intoxication
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in
Canadian society and is thereby criminally at fault when the person, while in a state of self-induced intoxication that renders the
person unaware of, or incapable of consciously controlling, their behavior, voluntarily or involuntarily interferes or threatens to
interfere with the bodily integrity of another person.
- You are deemed to be responsible for your conduct, even if you lack voluntariness, if you lack this voluntariness because of
your own self-induced intoxication. That is because getting that intoxicated is morally blameworthy in and of itself
Application
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an
assault or any other interference or threat of interference by a person with the bodily integrity of another person.
- Violent offences: assault, homicide, uttering threats, pointing a firearm, kidnapping/forcible confinement.
- This section might be challenged under S.7, but it stands for now
Issues/Considerations:
- Voluntary intoxication is morally blameworthy to some extent.
DPP v Beard (INTOXICATION MAY NEGATE SPECIFIC INTENT) [1920] UK HL Pg. 6.6-2
- Rape and murder case while A is voluntarily intoxicated.
- Historically, voluntary intoxication was not a defence, and was often in fact an aggravating factor.
- But, “where specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the
accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in
fact formed the intent necessary”
- If a person is, by reason of their intoxication, incapable of forming the intent to kill, they cannot be convicted of murder,
but can be convicted of the general intent offence of manslaughter
R v Daley (DEGRESS OF INTOXICATION – EXTREME MAY NEGATE ALL) [2007] SCC Pg. 6.6-2
- Accused has 30-40 drinks in a night. He is found passed out, with his wife stabbed to death. A remembers nothing.
- Review of the law of voluntary intoxication:
• Beard makes a distinction between specific and general intent crimes (modern test is from Tatton)
• Leary [1978 SCC] held that becoming voluntarily intoxicated was sufficient to supply the MR for a general intent
offence
• Daviault [1994 SCC] ruled that there are cases where a person can be so intoxicated that even a general intent
offence is not voluntary (very rare).
• Parliament responded to Daviault by passing S.33.1(no defence for general intent crimes that interfere with
bodily integrity of another)
• Current state of law for general intent offences is therefore that extreme intoxication is only available for
offences that do not have an element of interference with the bodily integrity of another [39]
• Current state of law for specific intent offences is that intoxication can negate the specific intent and reduce to
lesser general intent
- Reviews law around degrees of intoxication, above.
- Dissent disagrees that this was correctly explained to the jury – judge didn’t explain that Crown had to prove BARD that
A intended to kill, and that extreme intoxication would be a defence to that.
40
R v Tatton (THE BACON CASE – INTERPRETING GENERAL AND SPECIFIC INTENT) [2015] SCC Pg. 6.6-20
- Accused, alcoholic, is living in his ex’s house when she goes to visit a friend. He drinks 52 ounces of alcohol and leaves
her a voicemail about the house being on fire. He decides to make some bacon and puts a pan on the stove. Then he
forgets about it and drives (!) to Tim Hortons. He comes back to find the house on fire.
- Trial judge interprets the arson provision, and finds that it’s a specific intent offence. A’s extreme intoxication serves to
negate his MR for the crime (intentional or reckless), and he is acquitted.
- Court uses above criteria, determines that arson is a general intent offence, therefore A’s intoxication falling short of
automatism is not a defence (no need for special/complex thought).
- This test still isn’t perfect, four judges dissent from it.
- Judge must use Stone [1999 SCC] factors to see if defences exist on an air of reality
• Internal/external cause – More internal (would ordinary person in same circumstances have same reaction?) =
more likely NCR
• Continuing danger – More likely to happen again/need treatment = more likely NCR
• Public safety and policy – More dangerous = more likely NCR
- If overlap with intoxication, note Turcotte: Jury must find what the cause of the incapacity is.
Test:
Section 16:
- Note "act/omission" not offence, "while suffering" contemporaneity requirement, and two branches of test
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility so as to
be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of
probabilities
Burden of Proof
41
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal
responsibility is on the party that raises the issue.
Definition:
- “Mental disorder” is defined in S.2 as “disease of the mind.” This exists to important common law jurisprudence into the
definition.
- R v Cooper [1980 SCC]: “Disease of the mind” in legal sense “embraces any illness, disorder or abnormal condition which
impairs the human mind and its functioning, excluding., however, self-induced states caused by alcohol or drugs, as well as
transitory mental states such as hysteria or concussion…the disease must be of such intensity as to render accused
incapable of appreciating nature/quality of act or knowing it was wrong"
- Commentary:
• A person’s mental capacity can be affected by many things, but not all can lead to a finding of NCR
• With our modern knowledge of substance use disorders, is it still viable to say that self-induced intoxication is
never the outcome a mental disorder?
• What’s up with the “transitory states” stuff? This seems a bit outdated since 1980, are some mental disorders
more “serious” than others
• The mental disorder but be “cognizable to science” and have a name/diagnosis
• Merely having a diagnosed mental disorder does not mean a person is MCR. Our prisons are full of people with
diagnosed mental health conditions
R v Oommen (“INCAPABLE OF KNOWING ACT WAS WRONG” NOT IN ABSTRACT) [1994] SCC Pg. 6.7-5
- A has insane delusions. He genuinely believes that his girlfriend has been recruited into the conspiracy to kill him, and
shoots her in “self-defense”.
- A is totally aware that murder is wrong – what does “incapable of knowing it was wrong” mean?
- Defence is available to the accused – history of the common law insanity provision reveals that the question is “whether
the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice
about whether to do it or not” [26]. If an accused’s mental state is so disordered that they can’t apply right and wrong in
a normal way, they lack capacity.
- This isn’t the same as saying “judged it wrong in light of his own conscience” – It’s about a person’s capacity to apply
their knowledge
spite of the intoxication. In this sense, as previously stated, the instructions must address the degree to which
the self-induced intoxication contributed to the incapacity, so that the greater the effects of the intoxication,
the less likely the acceptance, by the jury, of a defence of mental disorder" [118].
The below material was deleted from the course syllabus due to the COVID-19 pandemic. It was not taught or examined, and I am
therefore less certain of its thoroughness or accuracy. I have outlined it only for the sake of my own knowledge and reference. It
should not be relied upon on its own as I am only guessing what the ratio of each case is.
***SENTENCING ***
PROCESS
The Criminal Code will, for a given offence, lay out the range of possible sentences for a given offence (always a maximum, and
sometimes a minimum). Within this range, the trial judge must fix a sentence that is proportionate to the gravity of the offence and
the blameworthiness of the offender (S. 718.1).
The trial judge will be guided by the factors listed in S. 718 of the Criminal Code, as well as the case law (eg, considering aggravating
and mitigating factors). The principle of parity (718.2(b)) dictates that a sentence should be “similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances.”
Evidence related to sentencing (the accused’s past criminal record, evidence of attempts at rehabilitation) can be introduced by the
Crown and Defence at the sentencing hearing. The Crown must prove any additional facts BARD if not established on the trial
record.
The Crown and Defence may make a joint submission as to the appropriate sentence (usually the result of negotiations), but the
final decision is always with the judge. The only role for the jury to play in sentencing occurs in the case of second degree murder,
where the jury is asked to recommend a period of parole ineligibility.
PURPOSES
Purpose
S. 718: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to
respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the
following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
PRINCIPLES
44
Sentencing Principles
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to
the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin,
language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or
on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the
victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the
victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal
circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal
organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made
under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections
and Conditional Release Act
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar
circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm
done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of
Aboriginal offenders.
OPTIONS
Imprisonment: Only results in about one-third of guilty cases, and less than 4% of guilty cases result in detention in a federal facility
(for a sentence of more than two years). S. 718.2 (d) and (e) dictate that sentences of imprisonment should be avoided if less
restrictive sanctions are appropriate, especially for indigenous offenders.
R v M. (C.A.) (NO CONSITUTIONAL UPPER LIMIT ON LENGTH OF FIXED TERM SENTENCES) [1996] SCC Pg. 7.1-4
- A is convicted of eleven counts of sexual assault, incest, uttering threats, and physical and sexual abuse of children. None
of the individual offences carried a life sentence, but the judge says that these offences were, in total, as bad as anything
he’d seen and sentenced A to 25 years’ imprisonment.
- BC Court of Appeal says that the totality principle means that there is an upper limit of 20 years for fixed-term (not life)
sentences.
- Judges have wide discretion in determining what a "just and appropriate under the circumstances" sentence is [40].
There is no fixed limit, but sentences are limited by the totality principle that consecutive sentences for multiple
offences should not "exceed the overall culpability of the offender" [42]. Although it will be rare, a 25 year sentence can
be just and appropriate.
Conditional Sentence of Imprisonment (S. 742): An alternative to imprisonment for sentences of less than two years where there is
no danger to the community or mandatory minimum.
Meant to be an alternative to imprisonment (with the condition precedent of community safety), and is therefore more restrictive
than probation. Comes with strict surveillance in the community, remainder of sentence can be ordered to be served in jail if terms
are breached. It cannot be paroled out of early, so while it does reduce incarceration and hopes to be rehabilitative, it is not
necessarily much “lighter” than imprisonment.
45
There is no presumption for or against this sentence, but rather must be decided by the judge in light of the principles and purposes
of sentencing in S. 718.
R v Proulx (CONDITIONAL SENTENCE OF IMPRISONMENT PRINCIPLES AND APPLICATION) [2000] SCC Pg. 7.2-2
- A is convicted of dangerous driving causing bodily harm, had been drinking. Sentenced to 18 months imprisonment at
trial. The Court of Appeal substitutes a conditional sentence.
- The conditional sentence of imprisonment is specifically enacted to be more rehabilitating that imprisonment, and to
reduce the rate of incarceration. It has rehabilitative purposes similar to probation, but is distinguished by also having a
valid punitive purpose [33-34], strict surveillance in the community [36], being served in jail if conditions are violated
[39], and no parole [43]. It is therefore not necessarily much “lighter” than imprisonment.
- In deciding whether to apply, the following must be satisfied:
• There must be no mandatory minimum imprisonment, and a sentence of less than two years is appropriate.
• Community safety is a condition precedent, considered in light of both the risk of re-offender, and the gravity of
harm that could result [127.6]
The judge must then consider whether such a sentence is appropriate, in light of the fundamental purposes and
principles of sentencing in S.718. If the purposes of denunciation and deterrence are pressing, incarceration may be the
only appropriate sanction [127.8]
Probation (S. 731): The most common type of sentence imposed on adults. Unlike a conditional sentence, probation is meant to be
solely rehabilitative, so punitive probation conditions may be struck down (Proulx).
Fines (S. 734): The offender is made to pay a fine, and can be imprisoned if in default on it. Money goes to the state, not the victim.
Ability to pay must be considered (S. 734(2), and there are provincial “Fine Option Programs” that allow offenders to work for credits
against the fine (S. 763).
Restitution (S. 737-39): If a victim has “readily ascertainable” pecuniary losses (property damage, lost income from injury), the
offender can be ordered to pay restitution.
Discharges (S. 730): When in the best interests of the accused, and not contrary to the public interest, court can order discharge
absolutely, or with conditions (eg, community service). Cannot be given when there is a mandatory minimum, or a 14-to-life
sentencing option.
Charter S.12: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
R v Smith (1987, SCC): “Section 12 is breached when the punishment or treatment prescribed is so excessive as to outrage standards
of decency"
Examples of S.12 violations:
- Solitary confinement in 24-hour light with 30 minutes exercise per day (McCann, under old Canadian Bill of Rights)
- Excessive mandatory minimums (Smith – seven years for importing narcotics, Nur – Three years for possessing restricted
firearm)
- Imprisonment for default on a parking ticker (Joe).
- Obiter in Smith – other examples could be
• Frequency and conditions of searches within prisons
• Dietary restrictions as a disciplinary measure
• Corporal punishment
• Surgical intervention including lobotomies and castration
• Denial of contact with those outside the prison
• Imprisonment at locations far from home, family, friends – virtual exile (this is relevant to female offenders due to
fewer federal penitentiaries for women)
R v Lloyd (MAJORITY DOESN’T LIKE MANDATORY MINIMUMS) [2016] SCC Pg. 7.3-31
- One-year mandatory minimum for any person convicted of drug trafficking if they have a prior trafficking conviction in
the past ten years
- McLachlin Majority:
• Mandatory minimum penalties for broad offenses that capture a wide range of conduct are constitutionally
vulnerable because they will frequently capture a reasonable hypothetical for which the mandatory minimum
would be unconstitutional [35].
• If Parliament wants to sustain mandatory minimum penalties, it should either narrow their application, or build
in a "safety valve" for outlier cases
- Wagner Dissent:
• There is a very high threshold for infringements of S.12, and for good reason. Parliament has a legitimate role in
the sentencing process and the courts very rarely strike down mandatory minimums (only when they are
grossly disproportionate).
Criminal Code S.718.2(e) - "All available sanctions other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of aboriginal offenders." – A response to the massive
over-incarceration of Indigenous Canadians, added in 1996.
• The fact that courts are called upon to consider these unique circumstances is not unfair to non-aboriginal
people. It just treats aboriginals fairly by "taking into account their difference" [87].
• There is no reason to restrict the application to aboriginals living in a community. The provision should apply at
least to everyone who comes within the scope of S.35 [92].
- Application:
• Judges must undertake a holistic sentencing analysis in every case to determine a fit sentence. In the case of
aboriginal offenders, this means that the unique circumstances of aboriginal Canadians must be taken notice of.
These circumstances include the systemic factors affecting aboriginal people, and which may have played a part
in bringing the particular aboriginal offender before the court, as well as the priority given in their cultures to
restorative sentencing. The pre-sentence report should take into account additional case-specific information,
which may be gathered from the relevant aboriginal community.
• This does not mean that an aboriginal offender will necessarily get a lower sentence, especially as crimes get
more violent and serious [79]. Judges must be flexible, consider all of the circumstances, including the purposes
behind sentencing and the values of the community. But the provision means that judges have discretion and
flexibility in deciding what is just and appropriate for an aboriginal offender [81].
***VICTIMS ***
R v B.P. [2015] NS PrCt: “The criminal justice system is frequently experienced by victims as alienating, confusing, and stressful.
Despite their intimate experience of harm and loss, victims have felt excluded, relegated to looking on as the case proceeds.”
There remain significant problems with how the criminal justice system treats victims, but the emerging body of Victim Law
addresses some of these issues and attempts to advance the rights and interests of victims. Seven core pillars:
1. Although the conceptualization of crimes as against the state is better than the bad old days of private prosecution, we
should avoid moving too far in the opposite direction and shutting victims out of the process completely. Instead, we
should recognize the interests and legal rights of victims as being greater than that of the society as a whole.
2. Prevents secondary victimization that can result from a complainant's experience with the criminal justice system,
especially in cases of sexual assault.
3. Supports victims in recovery, even beyond the criminal law process and in some cases regardless of a successful
prosecution
4. Increases the likelihood that victims will report crime by addressing the reasons what they do not (eg, publication bans to
protect a complainant's identity). This is important because vulnerable victims being less likely to come forward
undermines the equal application of the law.
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5. Encourages restorative justice, such as sentencing circles, mediation, and reparations, where appropriate. The inclusion of
"harm done to victims or the community" in the Criminal Code sentencing principles reflects this.
6. Facilitates the evidence of victims in criminal trials (eg, by allowing them to give videotaped statements if being on the
stand would not be possible).
7. Reconciles the rights and interests of victims and the accused/third parties (eg, via publication bans where appropriate).
This is not a hierarchical approach, but rather a balance (eg, the above testimonial aids still permit the witness to be cross-
examined).
- Defines a victim widely: "an individual who has suffered physical or emotional harm, property damage or economic loss as
the result of the commission or alleged commission of an offence." – therefore includes anyone who suffers, not just a
direct victim, and doesn’t require a conviction or even a charge.
- Gives victims rights to information (status of investigation, plea agreements, parole reviews, release conditions), protection
(security and privacy, eg testimonial aids), participation (eg, right to make a victim impact statement and have it
considered), reparations (eg, right to have courts enforce restitution orders), and remedies (no independent cause of
action, but can file complains under the Victims of Crime Act).