Professional Documents
Culture Documents
Criminal I (Dufraimont) - 2016
Criminal I (Dufraimont) - 2016
Doctrine of Precedent....................................................................................................2
Statutes...........................................................................................................................2
Bilingual Interpretation............................................................................................................... 2
Strict Construction...................................................................................................................... 2
Truths of Criminology................................................................................................................. 3
Division of Powers (32-33)......................................................................................................... 3
Charter of Rights and Freedoms (43-74)....................................................................................3
Section 1 of the Charter............................................................................................................. 4
The Criminal Process....................................................................................................5
Procedural Overview.................................................................................................................. 5
Evidence................................................................................................................................ 6
Victim’s Rights...............................................................................................................6
Presumption of Innocence............................................................................................7
Elements of an Offence (Actus Reus & Mens Rea)....................................................8
Elements of an Offence – The ACT Requirement.......................................................8
Act Element – Consent Making an Act Lawful............................................................................8
Act Element – Consent Vitiated by Fraud...................................................................................9
Act Element – Omissions............................................................................................10
Act Element – Voluntariness......................................................................................11
Act Element – Causation.............................................................................................12
The Fault Requirement – Mens Rea/Negligence.......................................................13
Fault Element – Regulatory Offences........................................................................14
Fault Element – Murder...............................................................................................14
Fault Element – States of Mind...................................................................................16
Fault Element – Objective Fault/Negligence.............................................................18
Predicate Offences – Unlawful Act Manslaughter Creighton..................................19
Rape and Sexual Assault............................................................................................19
Mistake of Consent......................................................................................................19
Mistake of Fact.............................................................................................................21
Mistake of Law..............................................................................................................21
INCAPACITY.................................................................................................................22
Mental Disorder as a Defence.....................................................................................22
Automatism I & II – negates the ACTUS REUS.........................................................24
Intoxication – General and Specific Intent Offences................................................26
Justifications and Excuses.........................................................................................29
Self Defense – justification, not an excuse...............................................................................29
Necessity – excuse, not a justification......................................................................................30
Duress – justification, not an excuse........................................................................................31
Provocation – excuse, not a justification..................................................................................31
Doctrine of Precedent
As there are no common law offences in Canada, legislation is the preeminent source of criminal
law in Canada
A charge must always allege a breach of statutory provision
Many mental elements of crimes and defences are defined by the common law rather than being
specified in the Criminal Code or other statute
The common law helps guide judicial reasoning through a practice of relying on earlier decisions
as “precedents”
The tradition is for decisions of higher courts to be binding on lower courts, with courts of co-
ordinate jurisdiction merely persuasive
Every province has two levels of criminal court:
o Court of Appeal
o Supreme Court of Canada
Ratio decidendi – the point(s) it actually decides
Obiter dicta – other statements made in the course of the decision which are not strictly essential
Statutes
They are a source of criminal law
Criminal offences have to be written in statutes, they do two things:
o 1) Codify and summarize legal principles (usually the principles derive from common law)
o 2) Change common law rules
Judges are given the task of interpreting the legislation and applying it to the activities in their
particular case
The modern principle of statutory interpretation requires that the words of the legislation be
read “in their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of Parliament”
There is the presumption that legislation is enacted to comply with constitutional norms, including
the rights and freedoms enshrined in the Charter
When there are two readings of the provision, the interpretation that resonates most with the
Charter values is the one to be adopted
R v Clark
Bilingual Interpretation
Must look at the common meaning
Strict Construction
A criminal statute can be interpreted to mean two different things, the one you should pick is the
one more in favour of the accused
A criminal punishment can be really severe, so if we are going to punish someone, we want to
make really sure that they’ve done the crime so that we give less severe punishment
o This would be a narrower analysis of the criminal statute
When dealing with someone’s liberty, we want to be as favourable as possible
2
R v Pare; R v Mac
TRUTHS OF CRIMINOLOGY
We must distinguish risk from dangerousness
o Risk refers to the chances that someone will re-offend
o Dangerousness refers to the likely harm caused by an offense
Deterrence works best when you are sure of being caught or the more likely you are for getting
caught
Criminology talks about how deterrence works well for some offences but not others
o Traffic laws v. easier
What effect do we get from making punishments tougher and harsher?
Sensing the severity has no effect on the prevalence of crime
Some people don’t even know about the punishments and whether or not they’ve become more
severe
o No one says “I wish I had robbed this house last week instead of this week because then
I would’ve gotten five years instead of seven”
Other forms of prevention:
o Denunciation and denouncing something to say this is wrong and send a message
o Incapacitation = putting a molester in jail to prevent them from molesting again
o Rehabilitation
o Repairment of reships
3
The Charter is a purposive document, its purpose is to guarantee and to protect, within the limits
of reason, the enjoyment of the rights and freedoms it enshrines
It is intended to constrain governmental action inconsistent with those rights and freedoms; it is
not in itself an authorization for governmental action**
Section 7
There are two requirements
1) Everyone has the right to life, liberty and security of the person
o Basic rights, have to have one of these rights in play to show a violation of section 7
o Has to be a deprivation or a risk of life, liberty or security
2) And a right
o The state can take it away if they do it in accordance with the principles of fundamental
justice
You have to show a deprivation of 1) and a violation of 2)
A lot of the principles of fundamental justice are procedural (example: the right to remain silent,
right to a lawyer)
Four principles (substantive actually put limits on what Parliament can put in an offence)
o 1) A criminal law may not be too vague
o 2) A criminal law may not be overly broad (too wide or expansive)
o 3) A criminal law may not be arbitrary (unfixed or unprincipled)
o 4) A criminal law may not be grossly disproportionate (can have a law that says can’t
spit but can’t send them to jail for life for it)
Summary: Section 7 everyone has the right to life, liberty, and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental justice
To have a violation of section 7 you need to have a deprivation of 1/3 and a violation of
fundamental justice
The Spanking Case (Vagueness) & Bedford v Canada (Arbitrariness, over breadth, grossly
disproportionate
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1) The measures adopted must be carefully designed to achieve the
objective in question must not be arbitrary, over breadth, gross
2) The means should impair “as little as possible: the right or freedom in
question
3) There must be a proportionality between the effects of the measures
which are responsible for limiting the right
Classification
In the Canadian criminal code there are three types of offences
o 1) Summary conviction
o 2) Indictable
Offences triable only on indictment, summary conviction offences, crown election
offences (dual)
o 3) Dual (hybrid)
Indictable offences are triable only judge and jury
o Offences are triable only summarily by justices of the peace sitting without a jury
Dual (hybrid) offences is not actually a category, it means that the Crown has an election as to
whether to proceed by indictment or by summary conviction
Offences triable only on indictment
Serious offences
The accused must be present at all stages of the proceedings
These offences are given into the exclusive jurisdiction of the superior court of criminal jurisdiction
in Ontario, the superior court of justice
The least serious indictable offences are absolutely within the jurisdiction of a provincial court
judge
By s.536 (2), the accused will be put to an election and will be asked to choose to be tried by:
o A provincial court judge without a jury
o A judge without a jury
o By a court composed a judge and jury
The superior court has exclusive jurisdiction: the provincial court judge is absolutely entitled to try
these offences in the sense that she is not dependent on the accused’s electing to be so tried
A provincial court judge may decide that the matter should be proceeded by a judge or jury
Summary conviction offences
o Trial before a provincial judge without a jury and preliminary inquiry
o The max penalty is $5000 or six months or both
o They are always tried in provincial court
o The accused does not need to appear in court unless the judge asks them to
Crown election offences (dual, hybrid)
o The prosecution may choose by way of summary or indictment
o If indictment, forum for trial will depend upon the type of indictable offence involved
o Reasons that may be considered:
The higher available penalty for indictable offences
A prior criminal record by the accused
Desire to require accused’s presence throughout
Sometimes a matter of judge shopping and wanting to get this issue over and
done with as quickly as possible
The criminal jurisdiction of superior courts is shrinking and too many criminal trials are taking
place in provincial courts now
5
Murder and jury trials are confined to superior courts
Questions of law are decided by the judge
Questions of fact are decided by the jury
The judge instructs the jury on the law which governs the case
The jury then applies those instructions to the facts to reach a verdict
Two conflicting requirements:
o The need to state accurately the relevant law
o The need to state the law so that the jury understands it
EVIDENCE
Evidence takes the form of oral testimony or real evidence
There is a fact-finding process
o Considered rational
There must be a rational connection between the evidence brought forth and the proposition
sought to be established
o This connection = relevance
Evidence about a material proposition = proponent seeks to persuade the trier to draw the
interference from the fact led to the proposition
If there is a rational connection and supports the inference then the fact will be adjudged relevant
and received
Two types of evidence:
o Testimonial (witness word/direct)
If witness seen to be sincere and possessed of an ability to observe and
accurately recall, and clearly had the opportunity to see the matter in issue, there
will be reason to draw an inference and the testimony will be credited
o Circumstantial (facts/material facts)
Relevancy
Certain facts connected with material is proved and the trier is asked to infer from
these facts that the material fact exists
If reason and experience support the connection the evidence is relevant
If a witness…
o Testifies that she saw the accused shoot the deceased – direct evidence of that fact
Trial judge then ensures witness’ competence to speak, then evidence is
evaluated according to trier of fact’s assessment of the witness’ credibility
o Testifies that she heard the deceased scream and moments later saw the accused
standing over the body holding a smoking gun = circumstantial evidence
Trial judge will assess the relevance of the evidence led, if received, the trier of
fact will assess its sufficiency
Evidence must be relevant and require materiality
o Materiality = rational connection between the tendered evidence and a fact in issue
The trial of an action is designed to examine a particular slice of life
o The slice is dictated by substantive law and the pleadings of parties
Pleadings are confined to the information and particulars ordered by the court
For evidence to be received, it must be relevant to a material issue
The laws of evidence are concerned with canons of exclusion which render inadmissible
evidence which is both relevant and material
Evidence is information that clears up
o 1) The ability of the trier of fact to adequately assess the evidence
o 2) Concern for values inherent in the adversary system
o 3) Protection of certain relationships in society as we recognize the competition with
values other than truth
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Victim’s Rights
Federal Government Bill C-32, The Victim Bill of Rights Act
Victims have the following rights
o The right to info about the crim justice sys
o Status of investigation
o Security and privacy considered
o Protection from intimidation and retaliation
o Request for testimonial aids
o Conveyance of views about decisions to be made
o Present a victim statement
o Consideration of a restitution order made against the offender
o Right to have the order entered as a civil court judgment
A criminal trial is about determining guilt and just punishment of an accused, not about personal
redress for victims
Constitutional rights for those alleging crimes were recognized in R v O’Connor
Special balancing procedure respecting discovery of medical records in the possession of third parties
The majority saw the need to balance the accused’s right to a fair trial and full answer and defence
with the complainant’s rights to privacy and to equality without discrimination
To designate certain conduct as criminal in an attempt to control anti-social behaviour should be a last
step
Criminal law involves the imposition of a sanction
The infliction of punishment or state interference with human freedom is only justified if evil would
manifest if left unattended
Criminal law is a blunt and costly thing
o Blunt because it does not have human sensitivity
o Costly for imposing suffering, loss of liberty and great expense
It is to be used as the last resort
The key word is restraint – to the scope of criminal law, meaning of criminal guilt, use of criminal trial,
and criminal sentence
Scope of criminal law
o Criminal law must stick to really wrongful acts
o Before counting as a crime, an act should fulfill three conditions
1) Must cause harm to other people, soy, or those needing protection form themselves
2) Must cause harm that is serious both in nature and degree
3) Must cause harm that is best dealt with through the mechanism of criminal law
o Quasi-crimes and violations are offences that are not really wrong but are penally prohibited
because that is the most convenient way of handling them
Presumption of Innocence
Section 11(d) of the Charter: any person charged with an offence has the right to be presumed innocent
until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Reverse onus provisions always violate the presumption of innocence (Oakes). A guilty verdict is
normally about ‘reasonable doubt,’ but reverse onus is on a balance of probabilities.
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RULE: The accused is presumed innocent until the prosecution proves guilty on all elements of the
offence beyond a reasonable doubt (Woolmington1).
BEYOND A REASONABLE DOUBT (Lifchus2, later affirmed by Starr3, and finalized by S. (J.H.)4)
1. GENERAL RULE: based on reason and common sense, not sympathy or prejudice. The
instruction to the jury is that the proof must fall much closer to absolute certainty than proof on a
balance of probability (Starr)
2. If you believe the evidence of the accused, you must acquit
3. If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you
must acquit
4. Even if you are not left in doubt by the evidence of the accused (even if you think the accused is
lying about everything) you must ask yourself whether, on the basis of the evidence which you
do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the
accused (S.(J.H.))
Mullins-Johnson 2007: No such thing as factual innocence, court is only able to determine guilty
beyond a reasonable doubt, OR not guilty beyond a reasonable doubt, which carries a presumption of
innocence, no factual innocence.
1
Woolmington 1935 – Accused got married young, had fights with his wife, she moved out, he went and got a handgun then it
fired accidentally during a fight but no one saw what happened. This case says the Crown must prove both act and intent for
murder.
2
Lifchus 1997 – Accused was charged with fraud and then convicted. This case defined reasonable doubt
3
Starr 2000 – Accused was convicted on two counts of first degree murder and this case defined reasonable doubt with certainty
4
S.(J.H.) 2008 – Stepfather charged with sexual assault of step daughter since she was 4 y/o. credibility contest, lays out 3
requirements for reasonable doubt
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2. Omission where there was a legal duty to act
3. Voluntariness
4. Acting through an innocent agent
5. If the consequences are part of the offence charged, that the act or omission caused the
consequence
BODILY HARM
Section 2: Serious bodily harm is any hurt or injury that interferes in a grave or substantial way with the
physical integrity or well being of the complainant. To constitute ordinary bodily harm, an injury does
not have to meet the standard of “interferes in a grave or substantial way with the physical integrity or
well-being of the complainant”. It is typically an injury that will last a week or two weeks, such as
bruising, pain, or discomfort. The interference with comfort is more than enough to interfere with health.
From the time of the assault and at least until medical treatment was completed, it must be clear that the
victim was deprived of any sense of comfort which they might have had before being assaulted
(Moquin6).
Section 265(3): for the purpose of this section, no consent is obtained where the complainant submits or
does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the
complainant
(c) fraud; or
(d) the exercise of authority
FRAUD with SERIOUS BODILY HARM
GENERAL RULE: Fraud vitiates consent where the deceit deprived the complainant of the ability to
exercise his or her will in relation to his or her physical integrity with respect to the activity in question.
AND when it exposes person to significant risk of serious bodily harm
There are three elements to FRAUD VITIATING CONSENT TEST for Sexually Transmitted Infections
(Cuerrier7):
1. Dishonesty/deceit; AND
2. Deprivation
5
Jobidon 1991 – Leading case on consent. Tow men took fight outside bar, Jobidon hit the man and he fell unconscious, Jobidon
continued to hit him and he died. Both men consented to the fight – consent was vitiated, intention to cause bodily harm is itself
illegal and consenting to fighting is not a valid defence
6
Moquin 2010 – gave the definitions of bodily harm pursuant to section 2 of the Code
7
Cuerrier 1998 – Accused was HIV positive and was told by public health that he must disclose his status to all potential sexual
partners. He had unprotected sex without disclosing that information. Fraud vitiates consent when it exposes a person to
significant risk of serious bodily harm.
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3. The harm in question must be serious and the risk substantial
a. Factors to consider:
i. Higher the risk, higher the duty to disclose (
ii. Contracting HIV would constitute bodily harm
iii. Cuerrier test can be applied broadly to all sexually transmitted infection
iv. Realistic possibility (Mabior8)
Significant Risk (Mabior) = more than any risk but less than a high risk. It requires a realistic possibility
of transmission to show that there is a significant risk for bodily harm
Realistic Possibility = high viral load and no use of condom.
SUMMARY: You still use the CUERRIER test, but add in the requirement of a realistic possibility of
transmission from MABIOR.
R v Hutchinson 2014: Boyfriend poked holes in condoms to keep girlfriend with him. Charged with
aggravated assault. Did the complainant consent? In so, is the consent vitiated by fraud? Serious policy
implications because of the autonomy of a woman’s body. The complainant must agree to the specific
physical act, the Crown must prove a lack of subjective voluntary agreement to the specific physical act.
Depriving the woman of choice to undergo those changes in her body is equally serious as a “significant
risk of serious bodily harm” within the meaning of Cuerrier. Fraud vitiates consent in sexual assault.
Cuerrier is not limited to STIs, risk of bodily harm only applies to STIs.
Fagan v Commissioner of Metropolitan Police 1968: Fagan drives over the officer’s foot, officer tells
him to get his car off his foot. Fagan leaves the car on the foot and tells him to wait, turns off ignition and
exits the vehicle. The question asked was whether this was an assault, but this was an omission not an
act. Assault cannot be done by omission, the act and the fault (knowledge and intention) must occur at
the same time. The act was initially accidental, and at that point it was not assault. But, continued
application of force-by-car was simultaneous with intention/fault.
8
Mabior 2012 – Accused was HIV positive and had sex with multiple people when his viral load was low, sometimes used
condoms, charged with aggravated sexual assault. No realistic possibility with low viral load combined with condom use (Court
called the risk “speculative”). Aggravated sexual assault = s 273 of the Code
9
Peterson 2005 – Arnold was under charge of Dennis. Arnold was unable to withdraw from Dennis’ charge
10
Browne 1997 – Deceased swallowed bag of cocaine to avoid detection, overdosed, and the accused said he would take her to
the hospital. He called a cab, but she was pronounced dead upon arrival. Accused was charged with criminal negligence causing
death. Not guilty. Saying you are willing to do something is not enough to create a legally binding undertaking
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a. An undertaking requires commitment and often reliance on completion of that
undertaking by the other person
R v Miller 1983 HL (Legal duty to act: Arson initiating chain of events): After consuming a few drinks, the
accused went back to a friend’s house, lit a cigarette and fell asleep. He was a squatter and didn’t call
ambulance when fire broke out, just went to a different room. Is the actus reus of the offence of arson
present when a defendant accidentally starts a fire and then fails to take any steps to extinguish the fire?
He was guilty. An omission can be treated as actus reus if a person creates a situation in which harm to
another person property will occur, and he or she intentionally or recklessly fails to take steps to prevent
the harm. If the accused does not live up to the created duty, then it is a crime by omission.
R v Moore 1979 (Legal duty to act: they are sometimes reciprocal): Officer witnessed Moore running a
red light on his bicycle; Moore refused to stop and give name to officer, charged with obstructing justice
under s 129(b) – omission to help a public officer in the execution of his duty. The majority said there is a
duty on police officers to investigate crimes and enforce laws; this legal duty creates a reciprocal duty on
offenders to cooperate. The dissent was strong here because of disproportionality. He was stopped for
red light and now being charged with heftier offence.
R v Thornton 1991 (Legal duty to refrain from conduct that endangers others): Accused tested positive
for HIV and donated blood to Red Cross anyways. He was tried under s 180. Is there a legal duty for an
individual to disclose that they are HIV-positive when donating blood? Guilty. An individual cannot be
found guilty of a crime for violating a common law duty as laid out in s 9 of the Code, they must violate a
duty imposed by statute. SCC classified blood donation as a medical treatment, putting him under a duty
to exercise reasonable care. Offence by omission.
PRINCIPLE: We should only punish people for acts that they choose to commit
1. Seems morally unjust to punish someone who did not choose their actions – absence of moral
blameworthiness
2. There is no argument for deterrence
Cases where a defence for involuntariness exists: Rabey, Parks, Stone. Refer to Automatism.
ABSOLUTE LIABILITY OFFENCES (ALO): In an absolute liability offence there is no fault element. If
there is an ALO and the act was involuntary, a defence of involuntariness can be successful.
R v Lucki 1955 (Voluntariness – Uncontrollable Actions): Accused was driving at a low speed,
skidded onto left side of the road due to black ice and hit another car. Skidding was found to be
involuntary act caused by road
11
King 1962 – there must be willpower to do an act whether the accused knew or did not that it was prohibited at law.
11
R v Wolfe 1972 (Voluntariness – Reflexive Actions): Wolfe was calling the police to have a man
removed from his hotel, the man punched Wolfe and Wolfe reflexively hit him with the heavy phone
causing a serious cut. He was not guilty because it was a reflex action and not a voluntary action.
R v Swaby 2001 (Voluntariness – Sometimes Knowledge): Swaby was in a car with an unlicensed
firearm, but he claims he did not know of it until after his arrest. If one acquires knowledge of an illegal
weapon while travelling in a moving vehicle, it cannot be the law that criminal liability instantly attaches.
All the offence required was that he be an occupant of the car and know that there is a handgun.
Dufraimont agrees with dissent that if on the evidence there was a concern about whether he learned
about the presence of the gun in the middle of the drive, we’d have to give him reasonable time to get
himself out of the situation/car. Act and fault elements must occur concurrently.
Killbride v Lake 1962 New Zealand (Voluntariness – Acts or Omissions): Killbride drove his wife’s
car onto a street and left it parked. When he returned, there was a ticket for a traffic offence stating that
car registration was not displayed but he said it was displayed.
INTERVENING CAUSE
12
Nette 2001 – test applies to homicide. 95 y/o widow was bound with clothes during robbery, left her on bed, died 2 days later
from asphyxiation. Test: the accused actions must be a significant contributing cause.
13
Smithers 1978 – do not use this as the test anymore because it is now NETTE. Hockey fight, Smithers kicks Cobby in the
stomach, Cobby falls to the ground and dies from spontaneous aspiration of his own vomit. Smithers charged with manslaughter.
Thin skull rule – whether or not he had a problem with his esophagus, must take victim as you find them
12
You must establish the FACTUAL (Maybin) cause and the LEGAL (Nette) cause.
Generally, the factual causation test is the “but for…[the act]” (Maybin14)
1. But for not the criminal act would the consequence have occurred?
a. If no and the criminal act is the but for consequence, it is the factual cause
2. In situations where there are multiple causes and the but for test does not lead to a conclusion,
we must determine the legal cause (Nette test).
The causation requirement does not mean that the criminal act has to be the only cause of death. If at
the time of death the original wound is still an operating cause and a substantial cause, then the death
can properly be said to be the result of the original wound (Smith).15
R v Blaue 1975 Not Canada: The thin skull rule applies to religious beliefs. Defendant was stabbed 4
times and then refused blood transfusion that would have saved her life because she is a Jehovah’s
witness. Even though intervention would have saved her life, she could not accept because of religion
and death still occurred from original assault. Negligent acts by the victim will not break the chain of
causation.
MAYBIN TEST:
1. GENERAL RULE: If you don’t find factual causation, you do not need to move on to legal
causation. Causation has to raise a reasonable doubt
2. You start with the “but for” test and then use:
3. Analytical aids of foreseeability and independent act to help determine whether original act is still
significant contributing cause
4. Foreseeability – was the intervening act reasonably foreseeable?
a. Must look at the general nature of the intervening act and the risk of harm
b. If not foreseeable then it breaks the chain of causation
5. Independent – Were the two acts close in proximity?
a. Are there intentional acts of a third party acting independently
b. Was the intervening act a response to the original act
c. Was the act consequential or coincidental? If it was consequential, it “triggered” the act
*In Maybin, the factual causation was about the bouncer’s intervening act. The legal causation was
about the Maybin brothers and not the bouncer.
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SUBJECTIVE/OBJECTIVE
1. Subjective Fault = awareness of the risk or natural consequences of the act, intention
a. Mens rea
b. TEST seeks to determine: What was in the mind of the accused at the moment the
offence is alleged to have been committed? Whether the accused subjectively
appreciated the consequences of the act as a possibility.
c. Moral blameworthiness
d. Sometimes subjective awareness can be inferred from the act itself (GI offences)
2. Objective Fault = failing to meet the objective standard of the reasonable person (this standard
is tougher post-Creighton)
a. Negligence
b. Circumstances matter a lot here (ex: what speed, where were you driving)
c. TEST is concerned with what the accused “should have” or “ought to have” known. It
requires a marked departure from the standard of care of a reasonable person. No
need to establish intention.
ALO – no fault element. Until Sault Ste. Marie, ALO rested merely upon proof of an act with no
requirement of any form of fault. Today, they are strict liability offences.
Beaver v R 1957 (Regulatory Offence – possession is not AL): Beaver thought he had a bag of
sugar of milk but it was heroin, jury believed he didn’t realize what he had was heroine. Judge instructed
jury that it was immaterial if he knew what the thing was, only that he possessed it making possession
an ALO. SCC find that two forms of knowledge are required to be guilty of possession: knowledge that
you possess something and knowledge of what that something is. Possession is now a subjective mens
rea offence, not an ALO.
R v City of Sault Ste. Marie (Regulatory offence – strict liability, due diligence): City contracted
waste disposal, the site the company used for landfill was leaching pollutants into a creek, contrary to
the Ontario Water Resources Act. Changed regulatory offences to SLO Crown must prove unlawful
act beyond reasonable doubt, negligence is assumed. The accused can use a due diligence defence to
prove that on a balance of probabilities, they were not negligent in the circumstances by demonstrating
that they exercised due diligence.
R v Wholesale Travel (Regulatory Offence – mens rea not required for criminal liability, strict
liability is constitutional): Travel agency was charged with misleading advertisement under federal
competition act. They were charged with a SLO. The presence of moral blameworthiness is a crucial
consideration in deciding whether an offence is a crime as opposed to a regulatory offence.
14
R v Beauchamp 1953 (Regulatory Offence – careless driving): this is a regulatory offence that has
an express fault requirement in it. It is an objective standard, the driving has to fall below the conduct
and breach a duty of care owed to the public in general.
You must go through the requirements of murder first. Once they have been met, you discuss first vs.
second. You cannot be guilty of first-degree murder unless you have all the requirements of murder first.
Types of Homicide
1. Non-culpable Homicide = not an offence. Some sort of freak accident happens that causes
death
2. Culpable Homicide – murder vs. manslaughter. The actus reus is the murder/manslaughter.
The difference between the two relies on the fault element (unlawful murder vs. negligent
murder).
a. S 229(a) culpable homicide is murder where the person who causes the death
i. Means to cause his death; or
ii. Means to cause him bodily harm that he knows is likely to cause his death,
and is reckless whether death ensues or not
b. This is a subjective mens rea offence
Types of Murder
1. First-degree
a. Planned and deliberate
b. Had the intention to kill
c. Murder of specific victims
d. Murder while committing specified offences of illegal domination (Pare; Harbottle)
i. Section 231(5) Harbottle test
2. Second-degree
a. Intent to cause serious bodily harm knowing it may result in death
b. A killing done impulsively without premeditation, but with malice aforethought
c. A killing that results from an act that demonstrates the perpetrators depraved
indifference to human life
i. Goes into crowd and shoots gun in air to scare someone and ends up killing
someone by accident
3. Manslaughter
a. Usually heat of the moment
b. Person is strongly provoked
c. No intent for murder shown
15
1. Unlawful object (must be different than to cause death or bodily harm to the victim) – here the
unlawful object was robbery
2. The object has to be an indictable offence requiring mens rea
3. Must intentionally commit a dangerous act – here the dangerous act is brandishing the gun
4. Dangerous act must be distinct from unlawful object, but must also be in furtherance of the
unlawful object
5. Must be a specific act or series of acts that cause death – the act of brandishing the gun
6. When committing dangerous act, the accused must know that death is a likely result – must
know that brandishing a gun is likely to result in someone dying
7. Leading case for definition of “likely”
FIRST–DEGREE MURDER:
GENERAL RULE: Must be planned and deliberate (Smith)16
a) Planned – arranged beforehand according to a scheme
b) Deliberate = means considered, weighed
c) Anti-thesis of planned and deliberate = impulsive murder which would be second degree
d) EXCEPTION: It is possible to have a charge of first-degree murder grounded on section 229(a)
(2) (Nyguard)
a. A person can plan and deliberate to cause terrible bodily harm that he knows will cause
death even if the person did not specifically intend to cause death. There is little
difference in moral blameworthiness in one who intends to kill and one who intends to
cause bodily harm knowing it will probably cause death.
Some parts of the Code require purpose (also context-dependent, intention may mean one thing in one
section of the Code and something else in another section)
Subjective mens rea can be established by: intention, knowledge, recklessness, and wilful blindness
Higher-order mental states Motive
Deeper reasons for action Desire
(not normally required to prove)
16
Smith 1979 – leading case on planned and deliberate. Farm house shoot up and murder
17
Beaver – Narcotic case sugar of milk
18
A.D.H. 2013 – Walmart baby case. Section on childhood abandonment does not set out a specific fault requirement of
objectivity so you automatically turn it into a subjective requirement
16
Subjective mens rea Knowledge/intention
What was in the accused’s mind? Recklessness
(default for criminal offences; required under Willful blindness
Charter for murder and a few other crimes)
DESIRE
INTENTION
R v Buzzanga and Durocher 1979: Activists distributed mean information about French Canadians to
start controversy, intending to create sympathy. They created outrage instead and were charged with
willfully promoting hatred. Wilful promotion of hatred requires intention, does not include recklessness.
Intention can mean one of two things:
1. Actor’s conscience person wants to bring about a prohibited consequence
2. Actor acted despite knowing that the prohibited consequences are
substantially certain to follow
R v Boulanger 2006 (Breach of Trust): Leading case on intention. Public officer gets official to write
accurate but special report regarding daughter’s accident for insurance purposes, charged with breach
of trust. Breach of trust requires subjective mens rea, must have acted with intention to use office for
purpose other than the public good. Personal benefit does not necessarily indicate breach of trust, must
be dishonest.
RECKLESSNESS
R v Theroux 1993: Housing fraud took their deposits and said it was secure but housing project fell
through and they lost their deposits.
WILFUL BLINDNESS
R v Sansregret 1985 & R v Briscoe 2010: does not define the mens rea but it can be substituted for
actual knowledge whenever knowledge is a requirement of the mens rea.
TEST for wilful blindness (Briscoe):
GENERAL RULE: making inquiries does not necessarily negate wilful blindness. If some inquiry was
made, Crown must prove beyond a reasonable doubt that the accused remained suspicious and
refrained from making any further inquiry because they preferred not to know.
17
1. What was the nature of the inquiry?
2. Did the accused remain suspicious?
3. If yes, did the accuse refrain from further inquiry because they preferred not to know?
R v Blondin 1971: Accused imported hashish into Canada via scuba tank. He reported it and said he’s
suspicious of the tank but does not know what it is. Accused can’t be convicted of smuggling drugs
unless he had knowledge or suspected that he was importing drugs. Court said it doesn’t matter which
drugs it was, as long as you suspect it’s a narcotic, if you think you’re importing heroin but it’s actually
hashish, you’re still guilty of importing a narcotic.
Crimes of objective fault = negligence crimes. Crimes of negligence does not = criminal negligence
The “marked and significant departure” test was first established in Tutton19, but later affirmed in F.
(J.20)
MARKED AND SUBSTANTIAL DEPARTURE TEST ONLY FOR CRIMINAL NEGLIGENCE S 219 (F.
(J.)):
1. This test is only applicable to offences under ss 220 and 221 because it requires a higher
threshold given the gravity of the penalty
2. Conduct that reveals a marked and substantial departure from the standard of care, which could
be expected of a reasonably prudent person in the circumstances.
R v Anderson 1990: impaired driver ran red light and killed someone. This case shows how it must be
both a marked departure and a significant departure. This was a marked departure but it was not a
significant one. What you do must be exceedingly criminally negligent to get a conviction. SOPKINA said
if it’s not bad for someone to have been drunk driving and run a red light, it can’t be bad that he just
happened to hit someone as he did it. The test should be applied in the context of the events
surrounding the incident.
18
BEATTY DANGEROUS DRIVING:
1. Actus reus: go to the Code. Was the accused actually driving in a manner that is dangerous to
the public?
2. Fault: on all the circumstances, was there a marked departure from the standard, modified to
allow exculpatory defences?
a. Exculpatory defences = detached retina, sudden and unexpected side effects of
prescription medication
3. EXCEPTION: If there was real mens rea with the intention to dangerously drive then it is
presumably gross negligence
Mistake of Consent
MISTAKE OF CONSENT (Ewanchuk23) it’s a matter of fact
21
Creighton 1993 – regular user of cocaine hosts chill session with two friends, he injected cocaine into the girl and she
overdosed then died. The predicate offence was drug trafficking, it was not manslaughter because she consented to it
22
Chase – gender neutral definition of the offence, no more spousal immunity, emphasis on the violence as opposed to the sexual
aspects of the crime. 15 y/o girl, no parents home and grandpa asleep. Neighbor comes and touches her boobs
19
*CONSENT = means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the
complainant to engage in the sexual activity in question.
*A mistaken belief in consent must be a belief that consent was expressed or communicated24
*Mistake of consent is a true defence, which means that if it is successful, it negates mens rea. The
defence should avail when there is an honest belief in consent or an absence of knowledge that consent
has been withheld. The defence is available only where there is SUFFICIENT EVIDENCE presented by
an accused, by his testimony or by the circumstances in which the act occurred, to found the plea 25
Summary: the defence of honest but mistaken belief in consent is simply a denial of the mens rea of
sexual assault (Ewanchuk;Pappajohn). The actus reus requires touching, of a sexual nature, without the
consent of the complainant. The mens rea requires the accused to intend the touching and to know of, or
be reckless or willfully blind26 as to the complainant’s lack of consent (Ewanchuk). In some circumstances,
it is possible for the complainant not to consent to the sexual touching but for the accused to honestly but
mistakenly believe that the complainant consented. In these circumstances, the actus reus of the offence
is established, but the mens rea is not.27
Section 273.2 and 265(4) where belief in consent is not a defence. It is not a defence to a charge
under section 271, 272, or 273 that the accused believed that the complainant consented to the activity
that forms the subject-matter of the charge, where:
> The accused’s belief arose from the accused’s:
> Self-induced intoxication, or
> Recklessness or wilful blindness; or
> The accused did not take reasonable steps, in the circumstances known to the accused at
the time, to ascertain that the complainant was consenting
23
Ewanchuk – takes 17 year old girl to trailer and doesn’t take no for an answer. She consented out of fear
24
*A belief that no means yes, or that silence, passivity or ambiguous conduct equals consent is NO DEFENCE
25
Pappajohn p.591 – real estate agent runs out of home show with bow tie around neck – air of reality. No air of reality by saying “I
thought she was consenting”
26
RECKLESSNESS = knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited
result will occur
WILFUL BLINDNESS = arises where a person who has become aware of the need for some inquiry declines to make the inquiry
because he does not wish to know the truth
27
All of this came from R v Davis (1999) SCC, same year as Ewanchuk, but use Ewanchuk as authority for mistaken belief, and
use Davis as authority for sexual assault. SEXUAL ASSAULT IS A CRIME OF GENERAL INTENT
28
Davis – air of reality originally came from Pappajohn, but here it was affirmed. It considers the totality of evidence. McIntyre J “to
require the putting of the alternative defence of mistaken belief in consent, there must be, some evidence beyond the mere
assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported y sources other than the
appellant in order to give it an air of reality”
29
R v Cinous 2002 SCC
20
FRAMEWORK FOR SEXUAL ASSAULT (R v A. (J.)30):
A conviction for sexual assault under s 271(1) requires proof beyond reasonable doubt of the actus reus
and the mens rea of the offence. A person commits the actus reus if he touches another person in a
sexual way without their consent. Consent for this purpose is actual subjective consent in the mind of the
complainant at the time of the sexual activity in question (Ewanchuk). S 273.1(2) limits this definition by
stipulating circumstances where consent is not obtained. A person has the required mental state, or
the mens rea, when he or she knew that the complainant was not consenting to the sexual act in
question, or was reckless or willfully blind to the absence of consent.
*So you would still use Davis for air of reality, and Ewanchuk for the actus and mens rea component and
then to raise a defence of mistaken belief of consent.
Mistake of Fact
Mistake of fact: I think it’s a bag of oregano, but it’s actually marijuana. It is a defence, which negates the
mens rea component.
Mistake of law: I think it’s legal to have a bag of marijuana, but it’s not. Generally not a defence.
General Principles:
1. On the issue of whether mistake of fact is a defence, Pappajohn is still the leading decision. It
constitutes a denial that the Crown has proved the fault element.
a. Where there is a subjective mens rea requirement the mistake need merely be honestly
held with reasonableness only relevant to assessment of credibility;
b. Where the fault element requires objective negligence, the mistake must be honest and
reasonable
c. Where there is due diligence, the mistake must be both honest and reasonable, with an
onus of proof on the accused in the case of regulatory offences; and
d. Where the offence is one of absolute liability, mistake of fact is not a defence.
2. The legal effect of a mistake will depend on the fault element of the offence (mens rea)
Fault level of offence Where mistake of fact is a defence
Subjective mens rea Any honest mistake
Objective fault Only an honest and reasonable mistake
Due diligence defence Only an honest and reasonable mistake, with
an onus on the accused to show
reasonableness
Absolute liability Mistake of fact is not a defence
*The mistake is only a defence if their belief is such that the acts that they were doing were not illegal
What happens when even if your mistake was true, you’d still be guilty of an offence? (thought it was
marijuana, but it was really cocaine):
30
A. (J.) 2011 – bondage sex, choked her, she was unconscious for three minutes and consented to being unconscious but not to
the acts performed on her while unconscious
31
Beaver 1957 – leading case on nature of mens rea requirement for possession cases. Sold a package of heroine to police
officer but thought it was sugar of milk. The essence of the offence is the possession of the forbidden substance. You cannot have
possession without knowledge of the character of the forbidden substance – you can’t be guilty without knowing.
21
Mistake of Law
Section 19 of the Code declares: ignorance of the law by a person who commits an offence is not an
excuse for committing that offence.
^This section has to do with policy considerations because if mistake of law were a defence, it would
promote a general wilful ignorance of the law
R v Esop 1836: Guy from Baghdad has anal sex on English boat. He did not have a defence.
R v Campbell and Mlynarchuk 1972: Exotic dancer charged with performing an immoral performance.
Was dancing nude. Mistake of fact is a defence; mistake of law is not. This was a matter of: is it legal or
not to dance naked? She made a mistake of law by relying on the trial judge’s reasons. But she was not
ignorant of the law because she tried to inform herself. She was convicted but was not penalized.
R v Dorosh 2004: Man charged with stealing a trailer belonging to Zaishley. The deal was dead
according to Dorosh because Zaishley was not following through with what he was supposed to give him
in exchange so he went to take his trailer back. Used colour of right. The actus reus was taking the
trailer. The mens rea had to be: (i) fraudulent, (ii) absence of colour of right, (iii) intent for deprivation of
property. For colour of right, it has to be explicitly mentioned in the offence provision.
R v MacDonald 2014: Accused was charged with possessing a loaded and restricted firearm in a place
where he was not authorized to have it. He had the proper authorization in Alberta but not in Nova
Scotia. SCC said it was a subjective mens rea offence but the mens rea does not include that the
accused knew his possession as unauthorized in that place because that’s a matter of knowing the law
INCAPACITY
32
Ladue 1965 – accused attempted to have sex with a dead woman, circumstance element of the offence was that the body had
to be dead. If you mistaken view of the facts would make you guilty of an offence even worse than the offence you are charged
with then you can’t rely on mistake as a defence. Intention to commit a crime although not the precise crime charged will provide
the necessary mens rea. He could not be charged with rape because for rape she would have to be alive and that means that the
ACTUS REUS and MENS REA did not line up so he was not charged with rape but was charged with the other thing
33
Kundeus 1976 – This was a pre-Charter argument. accused sold drugs to a cop, thought it was mescaline but it was actually
LSD. He was not morally blameworthy enough to be guilty of trafficking a more serious drug. Majority said it doesn’t matter
because it was about deterrence, don’t want to create a flood gate. Laskin dissented and said they had the mens rea of a less
serious offence
22
There are some cases where people are not properly held responsible for acts that appear to be morally
blameworthy – they lack the capacity to act responsibly. Common law has always exempted young
children from criminal responsibility. A child between 7-13 can be charged if the Crown can show that
they were competent to know the nature and consequences of their conduct and appreciate that it was
wrong. Now the age has been raised to 12, no person can be convicted of an offence if 12 or younger.
Mental Disorder = disease of the mind34. As a defence, it must be brought up by the defence and the
burden of proof rests on the party to raise the issue (reverse onus provision). The Crown can only bring
it up if the person is otherwise guilty.
Section 1635: (1) No person is criminally responsible for an act committed or an omission made while
suffering from a mental disorder that rendered that person incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(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.
Cooper v R 1980: Leading case on MENTAL DISORDER. Accused was charged with the murder of a
patient at a psych hospital, he had a psychiatric history himself. Case was on appeal because it was
thought that the trial judge erred in dealing with s 16 properly. The judge was correct to bring up defence
of insanity, but the explanation was incorrect. The question should not be whether the accused was
suffering from a disease of the mind; it should be whether this disease rendered him incapable of
appreciating the nature and quality of the act.
34
Cooper v R 1979: leading case on mental disorder, it is a disease of the mind and is a question of LAW. Accused strangled
female friend to death, he had a mental illness for a while. Whether the accused was in fact suffering from the condition is a
question of fact. Appreciating the quality and nature = knowing you are choking them but not knowing they may die from choking
35
Procedurally, s 16 does not result in automatic detention, it allows for an absolute discharge unless that person poses a
significant threat to public safety
23
Kjeldsen v R 1981: While section 16(2) exempts from liability an accused who by reason of disease of
the mind has no real understanding of the nature, it does not extend to one who ahs the necessary
understanding of the nature, character and consequences of the act, but merely lacks feelings of
remorse or guilt for what they have done, even though such lack of feelings stems from “disease of the
mind”. Appreciation of the nature and quality of the act does not import a requirement that the act be
accompanied by appropriate feeling about the effect of the act on other people. Presence of mental
illness does not automatically result in NCR. For disease of the mind to render an NCR verdict,
must be incapable of appreciating nature and quality. Psychopathy is a disease of the mind, but
you can still appreciate the outcomes and consequences of an act.
R v Abbey 1982: He imported cocaine and had a delusional belief rooted in a mental disorder that
nothing bad would befall him. He was acquitted on the basis of insanity. The SCC said the accused must
have the mens rea, the consequences needing to be appreciated are part of the actus reus. Not
understanding penal consequences of action is not the same as not understanding the nature of
the act – if you know you possess a bag of cocaine, you know you possess a bag of cocaine.
R v Chaulk 1990: Accused and friend aged 15 and 16 broke into a house, stole valuables and then
stabbed victim to death. They thought they were ruling the world and the victim did not matter. Wrong in
the context of s 16(2) means more than legally wrong, it means morally wrong according to the moral
standards of society. The person has to know that their act is morally wrong in the circumstances
according to the moral standards of society.
The main issue based on the facts is: was the person really in a state of automatism?
The bigger issue is: the line between sane automatism and mental disorder automatism
You’re either innocent (NCR – not criminally responsible); or
You are remanded to a psych detention center
36
Rabey 1980 – Accused suffered sudden disappointed love, followed by sudden “dissociative state” from emotional shock
wherein he assaulted acquaintance by beating her with a rock. Rule: everyday stresses and disappointments of life do not qualify
as an external source which causes dissociative states in individuals. If internal source + everyday stresses = MD. If external
source (extraordinary event) = NMDA/sane auto.
24
If sane automatism (NMDA) is raised (Parks, later affirmed by Stone below)37, the accused has to lay
evidentiary foundation to show that the accused was in a mental state (air of reality) that led them to
automatism. The judge must then decide if the condition alleged is sane or mental disorder automatism
and this is answered on the basis of policy:
1) Continuing danger theory
a. Any condition likely to present a recurring danger to the public is a mental disorder
b. This means the likelihood of the recurrence of the things that TRIGGERED the
episode38
2) Internal cause theory
a. Objective test, compare the accused with a normal person in the situation
b. May be based on psychiatric evidence
25
1. Accused was intoxicated at the material time of the offence
2. Intoxication was self-induced
3. Accused departed form the standard of reasonable care by interfering or threatening to interfere
with the bodily integrity of another person
R v Bouchard-Lebrun 2011 (self-induced toxic psychosis): when you see a situation of toxic
psychosis, you have to start from the proposition that the toxic psychosis is covered by the exclusion
from Cooper. In Cooper under MD, the exclusion states, “self-induced states caused by alcohol or drugs,
as well as transitory mental states such as hysteria or concussion.” There are situations where the
accused could show that the state caused by drugs is an MD but the accused would have to
show that they had a separate case of MD interacting with the intoxication. Then a holistic
approach from Stone would be used. In terms of internal cause, a normal person would have reacted by
going into a temporary state of toxic psychosis. This was not internal – the drugs were external so that
suggest NON MENTAL DISORDER. In terms of continuing danger, need to look at whether the accused
himself presents a continuing danger.
R v Rabey 1977 (Automatism: MDA v NMDA/sane): accused was infatuated with acquaintance, she
thought of him as just a friend and he found out so he took a rock form his lab and struck her on the
head twice then strangled her. She survived. Defence psych said he was in a dissociative state from the
powerful emotional shock; Crown psych said no mental disorder. Rule: every day stresses and
disappointments of life do not qualify as an external source, which causes dissociative states in sane
individuals. What constitutes a mental disorder is the internal makeup of the person (Cooper). His own
frailties make it non-mental automatism.
R v Parks 1992 (Automatism: Internal Cause and Continuing Danger): Parks did not have any
mental conditions although several of his family members had a history with sleepwalking. He had been
working long hours at work and had recently been charged with theft from employer. He was
sleepwalking when he drove to his in-laws house and killed the mother and stabbed the father. He did
not remember his actions and had no reasonable motive to kill them. Once the D raises automatism as a
defence, the burden is on the Crown to prove voluntariness or insane automatism, which results in no
criminal respy but does result in a psych ward. Here sleepwalking was a separate sane automatism, not
mental disorder. Today, it would have been a mental disorder. A finding of automatism that is internal
and continuing suggests a disease of the mind. In this case, there was no evidence of a recurrence of
sleepwalking causing similar outcomes so he was acquitted.
R v Stone 1999 (LEADING CASE on Automatism): Accused stabbed wife 47 times. A claim of the
defence of automatism has two steps: the accused must establish on a balance of probabilities that
there is sufficient evidence to make the defence operate. In order to do this, the accused must have
expert evidence to go along with the testimony. If this is not met the defence fails. The judge must then
decide if there is a disease of the mind. If there is, then a special verdict is entered and normal s 16
procedures are followed. If there is not, then the question must be left to the jury if the accused acted
involuntarily. If he did, then he is acquitted.
R v Luedecke 2008 (Automatism: parasomnia vs. mental disorder of sexomnia): this case must be
treated as a non-criminally responsible mental disorder instead of automatism. Must look at triggers, if
they are recurring, internal factors. We start from the presumption that is automatism exists, it flows from
mental disorder. Parks asked: what is the likelihood that this event would happen again – the recurrence
26
of factors that lead to episodes like this. This case looks at the possibility of those things occurring
creates a danger and higher risk exposure for those things to occur.
1. General intent – the only intent involved related solely to the performance of the act with no further
ulterior intent or purpose
Example: ordinary assault, slapping somebody, the intent would be to just slap them)
RULE: cannot have a defence of intoxication; GIs require less complicated mental processes
mens rea can be inferred by the act
2. Specific intent42 - involves the performance of the actus reus coupled with some intent or purpose
that goes beyond merely performing that act
Example: slapping the police office trying to arrest you so that he would not be able to arrest
you; murder
RULE: intoxication can be a defence here where there is incapacity to form the intent; Sis
require more complicated mental processes and they are more serious with higher penalties
VOLUNTARY INTOXICATION is a partial defence to murder, “I was too drunk to intend to kill, I was too
drunk to foresee death when kicking him in the head”
42
Bernard 1988 – Accused forced female acquaintance to have sex, punched her in the face and threatened to kill her while drunk
27
a. The mens rea for general intent can be inferred by the act
b. Where intoxication is to the state of automatism/involuntariness, we can substitute intent
to become intoxicated for the mens rea for the general intent
c. UPHOLD common law rule (Leary)
2. WILSON (+2) – Intoxication can be a defence for specific intent, generally not a defence for
general intent
a. But, have to allow for defence in extreme intoxication/automatism because of Charter
b. Normally you would infer mens rea from the act, but we want to avoid punishing the
morally blameless
c. Make common law rule more flexible
3. DICKSON (+2) – Intoxication goes to mens rea for any offence, along with any other evidence
a. In most cases, intoxication will not negate mens rea
b. Parliament should be deciding policy, not the court, this is arbitrary
i. Dufraimont agrees that it is arbitrary
c. ABOLISH common law rule
4. LAFOREST DISSENT (+1) – intoxication goes to mens rea for any offence
a. ABOLISH common law rule
Section 33.1:
1. Abolishes the Daviault defence for violent offences, but does not affect common law defence
available to SI offences such as murder
2. Argument: this section saves people form vulnerable groups – the objective of the removal of the
defence is that we need to protect the physical integrity of specific groups like women and
children. They have a right to have the benefit of the law
3. Proportionality test is this law minimally impairing of section 7?
4. ON AN EXAM: if you have a defence of extreme intoxication for GI, Daviault has a defence, BUT
section 33 removed it, BUT it may infringe section 7, BUT it might be saved by section 1
28
someone in the head, then maybe the defence would work because if they were sober
they would have known that a kick to the head could cause death
3. Extreme intoxication akin to automatism
a. Complete defence to criminal responsibility
b. Daviault defence for GI offences
c. Section 33.1 takes this away for violent offences
d. Also know that there is a Charter defence for section 33.1
*This is not a matter of proving the accused was in the state to rid their guilt; it is about actual intent and
if you were in a state of advanced intoxication because it raises an issue about whether you had the
specific intent
Chaulk (2007 – same year as Daley): the rule is intoxication is considered voluntary if the accused
consumed a substance that a reasonable person would have known is intoxicating. This becomes
difficult to determine involuntariness and voluntariness where someone had the intention of smoking a
joint of marijuana that actually contained a strong dose of PCP.
AIR OF REALITY TEST (Cinous; applies to all defences) to proving/bringing forward a defence:
1. Meeting the evidentiary burden (raising the defence)
a) Is there an air of reality to the defence (question of law for the judge)
2. Meeting the persuasive burden
b) Should the defence apply (question of fact for the jury)?
c) Whoever has the burden of proof on this defence actually has to prove or disprove it beyond a
reasonable doubt
d) Reverse onus defences lie on the accused and they have to prove the defence on a balance of
probabilities
a. Mental disorder, automatism, extreme intoxication
3. Judge must consider the totality of the evidence and assume evidence relied upon by the accused is
true44
44
Cinous 2002 – in this case, the guy would have had to show that his belief that the gang was going to kill him was reasonable,
and that there was no alternative to shooting them first
29
Self Defense – justification, not an excuse
Necessity is applicable to emergencies, normally dealing with the preservation of life. There are certain
cases where you need to break the law to preserve life. To apply necessity, the situation has to be really
limited with clear imminent imperil. The prior authority on necessity was Morgentaler. Today, it is Perka
and Latimer.
JUSTIFICATION = the otherwise criminal act is thought to be the right thing to do in the circumstances
Example: police sniper who shoots a person holding hostages about to kill them
EXCUSE = act was wrong in the circumstances, but there is something about the circumstances that
says we cannot hold the actor responsible
Example: assaulting another person because they have a gun to your head. Wrong to assault
45
Lavallee 1990 – woman shot husband at back of head when walking out door. History of abuse. Imminence requirement
lowered for nattered women, it speaks to the reasonableness of apprehension of grievous harm or death. Question put to the jury:
whether, given the history, circumstances and perceptions of the woman, was it reasonable for her to believe that she needed to
shoot him as self-defense?
46
Malott 1998 – abused woman kills her husband then goes to his girlfriend’s house and tries to kill her. Charged with murder and
attempted murder
30
But in the circumstances it was the right thing to do.
RULE: Breaking the law must be realistically unavoidable. Requirements for NECESSITY (Perka47):
1. Urgent situation of imminent peril
2. No reasonable legal alternative (Morgentaler)
i. Must ask: was there a legal way out?
3. Proportionality between harm inflicted and harm avoided
ii. The harm inflicted must be less than the harm you are avoiding
RULE: it is part of an ordinary offence, which means the CROWN must disprove the defence beyond a
reasonable doubt, BUT the accused has the onus to bring evidence.
STATUTORY DEFENCE: Section 17 applies to people who are charged as principals, who were
actually charged with the offence
COMMON LAW DURESS (Paquette49): defence is for aiders and abettors, other parties to the crime
47
Perka 1984 – the major question is whether the person had a choice. Uses example of alpinist breaking into a cabin because
otherwise would freeze to death. It is no longer a justification as per DICKSON because it would be too subjective and be about a
“choice of evils” too much of a cost-benefit analysis. The accused were smuggling drugs and had to stop in Vancouver
48
Latimer 2001 – severely disabled 12 y/o daughter put in car with carbon monoxide to rid her of suffering. Guilty of second
degree
49
Paquette 1997 – robbery resulting in someone being shot to death, the two robbers plead guilty for second degree, Paquette
was charge for murder as well but he drove the robbers to the scene. Accused was party to offence but not primary actor
50
Ryan 2013 – Leading case for duress. Accused was abused, husband threatened to take lives of her and her daughter, sought
police protection in the past but they did not help, so she hired a hit man to have him killed to protect herself and her daughter
(Self-defense would not have applied under old Code). Duress was not available here.
31
1. No safe avenue of escape (Hill)
a. Modified objective standard test
2. Close temporal connection/ no legal alternative
3. Proportionality
a. Objective standard test
Section 232: This is a STATUTORY defence to reduce the murder charge to manslaughter (in the heat
of passion) – it is only a PARTIAL defence. Must mention section 232.
Two Parts to Provocation:
1. Objective
a. Provoked conduct that was sufficient to deprive the ordinary person of self-control
2. Subjective
a. If the person did not actually lose control, they don’t get the defence
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Hill 1986 – big brother sexual advance. Issue was whether the judge needed to tell the jury about his age and sexe. Page 998
Dufraimont finds DICKSON’s statement extraordinary.
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What is the purpose Doesn’t matter what No requirement of Purpose must be to
behind the threat? the purpose is, so threat compel accused to
long as there is a commit the offence
threat
Is the defence Yes, the requirements Not codified, S 17 codifies defence
codified? are explicitly set out established in for physical
(s 34) common law perpetrator; common
law establishes
defence for parties
Underlying rationale Offence is justified Moral involuntariness Moral involuntariness
given the situation excuses the offence excuses the offence
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