CRIMINAL LAW

DECEMBER 2015
Professor Dufraimont

REMEMBER:
Actus non facit reum nisi mens sit rea - there is no guilty act without a guilty
mind.

COVER ALL ISSUES THAT COULD COME UP

BE SURE TO ADDRESS THE ACT AND THE FAULT

Objective/Subjective?
Marked Departure?
Causation?
Defences?

Code takes precedence over common law – you need to cite the Code when it
applies.
2 fact patterns (2x1 hour), 2 (2x30 mins) policy questions
Use IRAC tool for structure
1. Identify the issues, state the rules, show a clear understanding how law applies to
these facts (and don’t forget to state the law)
2. Focus on the big issues.
3. If fact pattern is about manslaughter, go to law on that, look at offences,
3a. If you think it’s necessity, set out the rules for necessity. Apply the right test.

Essay questions: Don’t fall into trap of only giving an opinion – refer to the law,
explain the law that you are discussing. Make sure you have precise statements of
legal principles.
Table of Contents
INTRODUCTION...................................................................................................................... 11
R v Dudley and Stephens (1884) Necessity (not held).......................................................11
Necessity= some extreme emergency requires the act – peril is immediate.....................11
SOURCES OF CRIMINAL LAW............................................................................................. 11
COMMON LAW............................................................................................................................... 12
R v Sedley (1663) - Historical starting point for common law........................................12
Frey v Fedoruk (1950) - SCC decided that peeping wasn’t an offence at the time.....12
1955 revised criminal code - common law taken away and criminal offences must be
found in a statute........................................................................................................................................ 12
R v Henry (2005) - Some SCC obiter dicta should be authoritative................................12
STATUTES....................................................................................................................................... 12
DIVISION OF POWERS UNDER CONSTITUTION.................................................................... 15
The Constitution Act, 1867..................................................................................................................... 15
CHARTER OF RIGHTS AND FREEDOMS – the supreme law of Canada..........................16
2 types of Charter challenges:............................................................................................................... 17
Principles of Fundamental Justice: Law cannot be vague, general, against the
Charter............................................................................................................................................. 17
Bedford V Canada (AG) 2013 – Section 7 challenge............................................................18
R v Oakes (1986) – Test for Charter challenge..................................................................... 19
THE CRIMINAL PROCESS..................................................................................................... 20
Classification of Offences........................................................................................................... 20
Offences triable only by indictment (most serious) 3 kinds.....................................................21
LAW REFORM COMMISSION OF CANADA, THE JURY IN CRIMINAL TRIALS.................21
PRESUMPTION OF INNOCENCE................................................................................................. 22
Woolmington v DPP - House of Lords (1935) – 1st presumption of innocence...........22
R v Lifchus (1997) - Proving the guilt has to be tied to the evidence............................23
R v Starr (2000) - beyond a reasonable doubt is closer to absolute certainty...........23
R. v S.(J.H.) (2008) SCC - thinking the accused is lying isn’t enough reason to convict
............................................................................................................................................................ 23
Code: Section 11 D..................................................................................................................................... 23
Powers of the Court of Appeal.................................................................................................. 24
CRIMINAL JUSTICE POLICY........................................................................................................ 26
a) Victim’s rights:.......................................................................................................................... 26
b) Scope: When is the state justified in making conduct into a crime
(philosophically)?......................................................................................................................... 26
Harm Principle.............................................................................................................................. 27
R v Malmo-Levine (2003) SCC - (Marijuana laws) harm principle.................................27
ADVERSARY SYSTEM................................................................................................................... 28
Steve Coughlan “The Adversary System: Rhetoric Or Reality”.......................................29
Carrie MENKEL-MEADOW (1985) Portia in a Different Voice........................................29
Judicial Impartiality..................................................................................................................... 29
The Advocacy-Adversarial Model............................................................................................ 29
ABORIGINAL PEOPLES AND CRIMINAL JUSTICE Law Reform Commissions of
Canada, report no 34 (1991)..................................................................................................... 30
RUPERT ROSS, DANCING WITH A GHOST Exploring Indian Reality (1992)................30
 R v RDS (1997) SCC - reasonable apprehension of bias....................................................31
THE ACT REQUIREMENT..................................................................................................... 32
ACTUS REUS (GUILTY ACT)........................................................................................................ 32
Criminal Law can only be applied to definite overt acts or omissions capable of being
distinctly proved” JF Stephen (1883)................................................................................................ 32
Actus non facit reum nisi mens sit rea = there is no guilty act without a guilty mind......32
EXTERNAL ELEMENTS - ACT................................................................................................................ 33
FAULT ELEMENTS..................................................................................................................................... 33
POSSESSION OFFENCES............................................................................................................... 33
Code: Section 4: Possession.................................................................................................................... 33
Marshall v R (1969) - Knowledge and consent (weed).....................................................33
To be in possession, requires: TEST....................................................................................... 34
R v Terrence (1983) - leading case on possession control...............................................34
Code: Section 4(3)(b)................................................................................................................................ 34
R v Morelli (2010) – internet porn........................................................................................... 34
R v Pham – joint and constructive –......................................................................................... 35
R v Chalk (2007) This case defines control in possession (child pornography).......35
CONSENT MAKING ACT LAWFUL - CONSENT HAS TO BE VALID.....................................35
R v Jobidon (1991) SCC – (bar fight) bodily harm - consent cannot be used as a
defence............................................................................................................................................. 36
Code: Consent to death Section 14...................................................................................................... 36
Code: assault and manslaughter: S 222............................................................................................. 36
Code: Bodily harm is defined in s. 2.................................................................................................... 37
R v Moquin (2010) – Man.CA - assault causing bodily harm............................................37
Code: Assault Section 265:...................................................................................................................... 37
Code: Assault with a weapon or causing bodily harm Section 267:.......................................37
R v Cuerrier (1998) SCC – leading case - failure to disclose HIV status constituted
fraud................................................................................................................................................. 38
Code: Section 265(3)(c) fraud – no limits to definition of fraud.............................................38
CORY J – lays out the new test: Section 265(3)(c)...............................................................38
R v Mabior (2012) SCC – Did not spread HIV/AIDS - what constitutes “significant
risk”.................................................................................................................................................. 38
R v Hutchinson (2014) SCC - Consent vitiated by fraud (holes in condoms)...............39
Code: Consent s.265(3)(c)...................................................................................................................... 40
R v Kubassek (2004) - de minimis, the law does not concern itself with trifles.........40
OMMISSIONS – legal duties to act............................................................................................ 40
Moral and Legal Duties............................................................................................................... 41
Buch v Amory Mortgage co (1898)........................................................................................... 41
H.R.S Ryan criminal responsibility for omissions..............................................................41
Quebec Charter of Human Rights and Freedoms RSQ 1980............................................41
French Penal Code (1958)......................................................................................................... 41
What is an omission? Actus reus when person found guilty of failing to perform
legal duty (care for a child)....................................................................................................... 41
O.W. Holmes, The Common Law (1963)................................................................................ 41
Fagan v Commissioner of Metropolitan Police (1968) - Typically mens rea and actus
reus have to occur at the same time....................................................................................... 41
How do legal duties arise? Code s 215.................................................................................... 42
Legal Duties In Statute................................................................................................................ 42
Code - Duty of persons to provide necessaries s.215..................................................................42
R v Miller (1983) - omitting to put out his own fire = arson............................................42
Moore v R (1979) Leading Ommissions case in Canada – guy on bike ID....................43
Code: Offences relating to public or peace officer s.129.............................................................43
R v Thornton (1991) Ommission – gave HIV tainted blood:.............................................44
R v Browne (1997) – leading case – not recklessly breaching a legal duty.................45
Code Criminal negligence causing death - s. 219 – reckless disregard.................................45
R v Peterson (2005) - The duty to a person under your charge – s.215 (1)(c)...........45
OMMISSIONS – PAGE 286 BEARDSLEY.............................................................................................. 46
VOLUNTARINESS: Only a criminal act when it is done voluntarily...............................46
** Involuntariness is a defence to both criminal and absolute liability offences..............46
R v King (1962) – (intoxication dentist) actus reus requires willpower.....................47
Rabey v R (1980) - Automatism means an unconscious involuntary act.....................47
R v Parks (1992) – sleepwalking - Automatism is a subset of voluntariness.............47
R v Stone (1999) - accused had to prove any defence of automatism..................................47
(p. 289) HLA HART, acts of will & responsibility (1968)...........................................................48
(p. 291) I.H. Patient - Remarks (1968).............................................................................................. 48
OW Holmes – The Common Law (1963)........................................................................................... 48
HL Packer – Limits of criminal sanction (1968)............................................................................48
Examples NOT associated with mental disorder: Involuntariness...............................48
R v Lucki (1955) - car slides, can’t control action - acquitted..........................................48
R v Wolfe (1975) – hit by phone – trifling & just reflex - acquittal.................................49
R v Swaby (2001) - Voluntariness question – gun in the car - suddenly in a criminal
situation.......................................................................................................................................... 49
R v Ryan (1967) Australian kid copies book, kills a guy – can’t claim involuntary. .50
Killbride v Lake (1962) – lost the papers, can’t be guilty – no act..................................50
CAUSATION - Is the act connected closely enough to the consequence?.....................50
Criminal Code actus reus requires the causing of certain consequences.............................51
Our Code contains no general principles concerning causation but only a number of
special rules concerning homicide (ss. 222 and 224-228)........................................................51
BC Electric Rwy v Loach (1916)................................................................................................. 51
Smithers v R (1978) SCC Leading case: causation for homicide – outside de minimus
range................................................................................................................................................. 51
R v Harbottle (1993) SCC Substantial Cause Test for First Degree Murder.................52
Code s. 231(5) Hijacking, sexual assault or kidnapping.............................................................53
R v Nette (2001) SCC TEST: standard for causation in criminal offenses – significant
contributing cause........................................................................................................................ 53
R v Nette - SUBSTANTIAL CAUSE TEST............................................................................................. 53
Causation is distinct from mens rea – Cause not an issue if Act and Fault are present..54
R v Talbot (2007) ON CA - BUT FOR the act the consequences would occur...............54
Charter – Drag Racing................................................................................................................. 55
R v F (D.L.) (1989) Alberta CA test for cause – drag racing...............................................55
Code s 249(3) - bodily injury Thereby Caused by dangerous driving...................................55
INTERVENING CAUSE – between the Criminal Act and the Consequence lives the
intervening cause......................................................................................................................... 55
Code: Statutory homicide rules where intervening causes are stated not to break the
chain of causation: ss 222(5)(c), 224, 225, and 226. Otherwise courts have to figure it
out..................................................................................................................................................................... 56
R v Smith (1959) UK Doctrine/Test: INTERVENING CAUSE.............................................56
How would Canadians courts treat this? - Stabbing would be a significant contributing
cause (Nette)................................................................................................................................................ 56
 R v Blaue (1975) - intervening act/not sever the chain of causation/thin skull.......56
R v Maybin (2012) SCC Test for INTERVENING CAUSE. “But For”...................................57
The Maybin brothers are the “but for” - if they were taken out of the equation the
bouncer’s punch probably wouldn’t have killed him...................................................................57
2 approaches to analyzing intervening causes:..............................................................................58
The TEST the court stated was: The question was whether the dangerous, unlawful
acts of the accused were a significant contributing cause of the victim's death...............58
Use Smithers, Nette:................................................................................................................................... 58
THIN SKULL RULE (Blaue, Smithers)...................................................................................... 59
THE FAULT REQUIREMENT (Mens Rea).........................................................................60
Introduction - J.F. Stephen, A History of the Criminal Law of England (1883)..................60
subjective/objective distinction.............................................................................................. 60
Creighton, Hundal – SCC says there should be a clear distinction between........................60
R v Hundal (1993) - “The state of man’s mind is as much a fact as the state of his
digestion”........................................................................................................................................ 60
R v Theroux (1993) – meas rea – subjective & objective.....................................................61
R v Mulligan (1974) How do we find intention.................................................................... 61
REGULATORY OFFENCES – quasi-criminal, not traditional criminal offences...........61
Beaver v R (1957) - Should not have absolute liability for true crimes: Still a leading
case * - all drug offences require subjective mens rea section 4(3)..............................61
R v City of Sault Ste. Marie (1978) leading case on fault for regulatory offences –
Strict Liability................................................................................................................................ 63
STRICT LIABILITY: Accused must prove that they were not negligent and took
reasonable care........................................................................................................................................... 64
3 categories of offences are therefore now recognized:.............................................................65
R v Wholesale Travel (1991) Test for criminal/regulatory..............................................65
Important NOTE: what you take from Wholesale Travel is that the reverse burden
associated with strict liability is constitutionally acceptable...................................................66
Reference re Section 94(2) of the B.C. Motor Vehicle Act.................................................66
This case shows how Charter rights can be more important than regulatory rules.......66
R v Beauchamp (1953) - Test for careless driving fault requirement..........................69
Charged with second degree murder – DO not talk about first degree, talk about
manslaughter............................................................................................................................................... 70
Code: Sections 229 and 230 Section 229 (a) is VERY IMPORTANT...............................70
Murder.............................................................................................................................................. 70
Simpson v R (1981) – Subjective Fault is required for murder.......................................70
R v Edelenbos (2004) - Jury can define “likely” for themselves......................................71
Constructive Murder: ss 229(c) and 230............................................................................... 71
Vaillancourt v R (1987) - Death must at least be objectively foreseeable – under
section 7 of the charter............................................................................................................... 71
Code: Murder in commission of offences s.230..............................................................................72
R v Martineau [1990] – Lamer: all murders should require subjective intent..........72
Code: Section 230 (a) he means to cause bodily harm for the purpose of..........................73
L'Heureux-Dubé, writing a lone dissenting opinion:...................................................................73
Code: Culpable Homicide is Murder: 229(c)...................................................................................73
R v Shand (2012) – 6 part test – unlawful object murder.................................................74
FIRST DEGREE MURDER............................................................................................................. 75
Distinguishing First Degree Murder from Second Degree Murder........................................75
Charging Stages in 1st degree murder............................................................................................... 75
R v Smith (1979) Planned and deliberate murder.............................................................76
McLachlin CJC - language for Jury Instructions.............................................................................76
R v Nygaard and Schimmens (1978) - Planned and deliberate infliction of bodily
harm likely to cause death is 1st degree murder................................................................. 76
R v Collins (1989) ON CA - Leading Case: Murder of specified victims.........................77
R v Arkell (1990)........................................................................................................................... 77
An Offence may require SUBJECTIVE MENS REA if:.....................................................................78
3 TYPES OF FAULT FOR CRIMES............................................................................................... 78
1. SUBJECTIVE MENS REA...................................................................................................................... 78
2. OBJECTIVE NEGLIGENCE................................................................................................................... 78
3. OFFENCES BASED ON PREDICATE OFFENCES.........................................................................78
CRIMES REQUIRING SUBJECTIVE AWARENESS.................................................................... 78
R. v H. (A.D.) (2013) - Abandoning a child in a Walmart bathroom because she
thought the baby was dead........................................................................................................ 78
Code CRIMINAL NEGLIGENCE – SECTION 219 – MARKED & SUBSTANTIAL....................78
Motive: Mens rea is different than motive........................................................................................79
MOTIVE.......................................................................................................................................................... 79
PURPOSE/DESIRE...................................................................................................................................... 79
R v Hibbert (1995) LAMER CJ – “Purpose” definition.........................................................79
INTENTION OR KNOWLEDGE.................................................................................................... 80
R v Buzzanga and Durocher (1979) - “Intention” definition...........................................80
R v Theroux (1993) - Mens Rea, 2 steps for Fraud...............................................................81
2 Steps of mens rea of Fraud.................................................................................................................. 81
FAULT LADDER.............................................................................................................................. 81
R v Boulanger (2006) - Breach of trust (not a marked departure)................................81
Recklessness and Wilful Blindness......................................................................................... 82
Recklessness................................................................................................................................................. 82
Wilful blindness.......................................................................................................................................... 82
In some cases Code expressly relies on recklessness as fault: Eg - Murder under 229(a)
(ii)..................................................................................................................................................................... 82
Sansregret v R (1985) - Authoritative definition of recklessness and willful
blindness......................................................................................................................................... 82
WILFULL BLINDNESS............................................................................................................................... 83
R v Briscoe (2010) - Further defined as deliberate ignorance........................................83
R v Lagace (2003) - What does this mean about making inquiries (test)?..................84
R v Blondin (1971) - What mens rea did the accused have to have in order to be
liable for the crime of importing hashish?............................................................................ 84
CRIMES OF OBJECTIVE FAULT: Reasonable person ought to know...............................84
Code: Criminal negligence s. 219, 220, 221.....................................................................................84
O’Grady v Sparling (1960).......................................................................................................... 85
R v Tutton and Tutton (1989) – Objective/Subjective criminal negligence................85
Waite v R (1989) - Companion case to Tutton - Objective/Subjective criminal
negligence....................................................................................................................................... 86
R v Anderson (1990) - dangerous driving requires a marked departure....................86
Criminal Negligence causing death..................................................................................................... 86
MARKED DEPARTURE................................................................................................................. 86
R v Creighton (1993) – OBJECTIVE Test for Criminal Negligence..................................86
R v Beatty (2008) – Dangerous driving= modified objective test – Gross negligence
............................................................................................................................................................ 88
 R v F (J.) (2008) – Criminal Negligence - CURRENT STANDARD - resolves Tutton – 3
standards of objective fault crimes......................................................................................... 88
There are 3 standards of objective fault crimes - NEGLIGENCE.............................................88
CRIMES BASED ON PREDICATE OFFENCES – unlawful act manslaughter....................89
UNLAWFUL ACT MANSLAUGHTER.................................................................................................... 89
R v Creighton 1993 SCC Unlawful act manslaughter..........................................................89
Code. Homicide Section 222(4)............................................................................................................ 90
Constitutional Question – Lamar thinks Death has to be foreseeable –...............................91
R v Krushel 2000 Ont CA Not a predicate offence case, but upholds no need for
symmetry....................................................................................................................................................... 91
*Code - AGGRAVATED ASSAULT – s.268. SCC in Godin...............................................................91
Debate on Fault for Aggravated Assault and Assault Causing Bodily Harm...............92
RAPE AND SEXUAL ASSAULT............................................................................................. 92
In the Code: Assault s. 265...................................................................................................................... 92
Code Sexual assault s.271....................................................................................................................... 93
Rape Laws in Context:................................................................................................................. 93
Alan Young – When Titans Clash: The limits of Constitutional Adjudication.....................93
Definition of the Crime of Rape............................................................................................................ 94
Pappajohn v R (1980) – defence of mistake of fact, there must exist some
reasonable evidence, which would convey a sense of reality.........................................94
Sansregret v R (1985) SCC - wilful blindness = knowledge..............................................95
A. Manson, Annotation (1985).............................................................................................................. 95
CRIMES OF SEXUAL ASSAULT.................................................................................................... 95
No definition in the code of sexual assault – CHASE is the leading case...............................96
From the Code: Sexual assault s.271.................................................................................................. 96
Aggravated sexual assault....................................................................................................................... 96
Actus Reus of Sexual Assault:..................................................................................................... 97
R v Chase (1987) – covers all of sexual assault - still the leading case.........................97
Code: Section 265 – Assault................................................................................................................... 97
The main definition of assault = intentional application of force without consent. 98
Rules/Test Based upon Chase:.................................................................................................. 98
S 265(4) Accused’s belief as to consent............................................................................................. 98
R v Bulmer (1987) – sex worker case...................................................................................... 99
R v Davis (1999) – Leading Case “air of reality” mistaken consent...............................99
Estrich article (1992)................................................................................................................................ 99
Consent - See Code - s273.1(1) – definition of consent for sexual assault..........................99
Code Meaning of “consent”..................................................................................................................... 99
Where in the Code consent is vitiated – s265(3) and s273.1(2).............................................99
MISTAKEN BELIEF IN CONSENT (MBIC).............................................................................. 100
R v Ewanchuk (1999) – Touching, Of a sexual nature – (Determined objectively),
and Absence of consent – Leading Case MBIC.................................................................... 100
Mens Rea – sexual assault is a crime in the absence of victim’s consent...........................101
Rules............................................................................................................................................................. 101
1) Consent Requires Outward Communication...........................................................................101
2) There are 4 limitations on the defence of mistaken belief in consent..........................101
3) Fear vitiates consent (not applied here but discussed in obiter)...................................102
Section 273.2 of the Code – where belief in consent not a defence.....................................102
R v A (J.) (2011) - Couple experiments with choking – need ongoing conscious
consent.......................................................................................................................................... 102
 Defines consent: the conscious agreement of the complainant to engage in every sexual
act in a particular encounter. Para [31].......................................................................................... 103
Code: Meaning of “consent” 273.1.................................................................................................... 103
Policy is that you always have to be able to revoke consent and you can’t do that if you
are unconscious........................................................................................................................................ 104
MISTAKE................................................................................................................................ 104
a) MISTAKE OF FACT................................................................................................................. 104
Subjective MR  any honest mistake can negate.......................................................................105
Objective MR  a reasonable mistake............................................................................................ 105
Strict liability  only a reasonable mistake and the onus is on the accused..................105
Absolutely Liability  Mistake is not a defence..........................................................................105
Constitutional Concerns........................................................................................................................ 105
R v Hess; R v Nguyen (1990) underage sex, Charter challenge.....................................105
Current law in the Code: Mistake of Age........................................................................................ 106
Nature Of Offence....................................................................................................................... 106
R v Tolson (1989) only allow if accused believes they are innocent of any offence
what so ever................................................................................................................................. 107
R v Ladue (1965) sex with a corpse...................................................................................... 107
R v Kundeus (1976) LSD * Leading case as to nature of the substance – Drugs -....107
b) MISTAKE OF LAW.................................................................................................................. 108
In the Code section 19 – not an excuse............................................................................................ 108
R v Esop (1836) UK - native of Bagdad................................................................................. 108
R v Campbell and Mlynarchuk (1972) - Nude dancing.....................................................108
R v MacDonald (2014) SCC – restricted firearm - ** Important to distinguish
mistake of law and mistake of fact........................................................................................ 108
INCAPACITY.......................................................................................................................... 108
AGE................................................................................................................................................. 109
MENTAL DISORDER................................................................................................................... 109
Mental Disorder under the Criminal Code.....................................................................................109
Cooper v R (1979) Leading Case on mental disorder – Test - Disease of the Mind.110
Disease of the Mind Test:...................................................................................................................... 110
Kjeldsen v R (1981) SCC - Mental disorder doesn’t always = NCR................................110
R v Abbey (1982) - delusional................................................................................................. 111
Mental Disorder Defence......................................................................................................... 111
R v Oommen (1994) – Sometimes MD can go to mens rea..............................................111
AUTOMATISM.............................................................................................................................. 112
Acts reus: act can only be criminal act if it is voluntarily done....................................112
R v Rabey (1980) Sane automatism and MD automatism: external/internal factor
used to differentiate the two (likelihood of repetition).................................................113
Internal trigger= mental disorder, External trigger = sane automatism...........................113
R v Parks (1992) SCC – sleepwalking - key example of sane automatism.................115
R v Stone (1999) SCC Leading case on MD/Sane automatism.......................................116
Accused has to show automatism on balance of probabilities..............................................117
Steps for valid claim of automatism................................................................................................. 117
R v Luedecke (2008) – mental disorder automatism – had sex in his sleep – Stone
analysis......................................................................................................................................... 119
What we get after this case  mental disorder automatism for sleepwalker................120
Sane automatism is kind of gone now – only used maybe in head injury or huge shock…
......................................................................................................................................................................... 120
 INTOXICATION............................................................................................................................ 120
R v Bouchard-Lebrun (2011) SCC – TEST mental disorder/intoxication dividing line
-........................................................................................................................................................ 120
Code: Defence of mental disorder s. 16.......................................................................................... 120
Code Self-induced Intoxication 33.1................................................................................................ 120
Use the same test to distinguish intoxication from mental disorder:.................................121
SM Beck and GE Parker, The Intoxicated offender – A Problem of Responsibility (1966)
......................................................................................................................................................................... 121
R v Bernard (1988) – common law starting point for intoxication – 3 Views – no
clear majority on the law in Canada here –........................................................................ 122
1. McIntyre (and Beetz)......................................................................................................................... 122
Specific intent and general intent......................................................................................... 122
2. Justice Wilson – she agrees with McIntyre...............................................................................123
Rule = specific intent offences intoxication can be a defence......................................123
3. CJ Dickson (and Larmer).................................................................................................................. 123
Code - Sexual assault with a weapon, threats to a third party or causing bodily harm
272(1).......................................................................................................................................................... 123
Charter Standards...................................................................................................................... 123
R v Daviault (1994) – new rule made into law – defense of extreme intoxication. 123
Sopinka dissents:..................................................................................................................................... 124
Response from legislature - Bill C-72............................................................................................... 124
Charter problems with 33.1................................................................................................................ 125
Code 33-1(1) removes the Daviault defence..................................................................... 125
Intoxication that isn’t extreme isn’t a defence Code 33.1..............................................125
Common Law meets legislation meets Charter problems.......................................................125
R v Daley (2007) – Actual intent for specific intent offences – 3 levels intoxication
(mild, Advanced, Extreme)...................................................................................................... 126
R v Bouchard-Lebrun (2011) – Daviault defence still ok for property offence – 33.1
has to interfere with bodily integrity.................................................................................. 126
JUSTIFICATIONS AND EXCUSES...................................................................................... 127
Introduction................................................................................................................................. 127
Code 8(3) Common law principles continued..............................................................................127
Air of Reality: Have to meet evidential burden............................................................................127
Reverse Onus Defence = Mental Disorder, Automatism, Extreme Intoxication.............127
R v Cinous (2002) – Air of Reality Test – applies to all defences..................................127
1. DEFENCE OF PERSON (aka self defence) S. 34...............................................................128
DEFENCE OF PERSON................................................................................................................... 128
R v Lavallee (1990) SCC - Classic case on self-defence (old legislation)....................129
R v Malott (1998) SCC - Battered Woman experience – objective test has subjective
elements....................................................................................................................................... 129
OBITER by the 2 women on the court - L’Heureux-Dube (McLachlin)..............................130
2. NECESSITY................................................................................................................................ 130
Dudley v Stevens.......................................................................................................................... 130
Perka v R (1984) SCC - Leading case in Canada - test for necessity - NORMATIVE
INVOLUNTARINESS.................................................................................................................... 130
Excuse/Justification Test stated on page 931 – clear, demonstrable, imminent peril…
......................................................................................................................................................................... 130
He give 2 reasons for not to punish.................................................................................................. 131
THE 3-part TEST:..................................................................................................................................... 131
R v Latimer (2001) SCC – Father kills very disabled daughter.....................................132
3. DURESS..................................................................................................................................... 133
Code: Section 17 Code – Compulsion by threats.........................................................................133
R v Paquette (1977) – Murder charge brought defence of Duress (party to a crime).
– Common Law defence of Duress is available to aiders and abetters......................134
R v. Hibbert (1995) SCC - common law defense of duress – aider/abettor – new
common law requirement – no safe avenue of escape...................................................134
IMMEDIACY AND PRESENCE ARE NO LONGER REQUIRED PARTS OF THE DEFENCE IN
THE CODE................................................................................................................................................... 134
R v Ryan (2013) SCC – re-defines the statutory defence of Duress ** current law. 134
Necessity, Duress, Defence of Person................................................................................... 136
4. PROVOCATION: Partial defence to murder (only for murder)................................137
Criminal Code – New Provocation section 232...........................................................................137
What counts as provocation – 3 things** this is what has changed in the act –.............138
There are 2 elements to the test: Objective & Subjective........................................................138
R v Hill (1985) SCC Dickson – Leading Case on Provocation.........................................138
Ordinary person standard:.................................................................................................................. 138
Sample policy questions:......................................................................................................... 140
Involuntary intoxication – DO NOT LOOK AT INTOXICATION – go to automatism......142
INTRODUCTION
R v Dudley and Stephens  (1884) Necessity (not held)
(1884) 14 QBD 273
Special verdict – Jury found the facts and wrote them down – purpose was that then
judges would review and decide the law for this.

Trier of law – judge

Decides what the law is, explain the law to the jury
Trier of fact – jury
Decide the facts and apply the law
Then decide the verdict

Facts: 4 people in a life boat, they run out of food after 7 days, they decided to eat
one of the four, Dudley did the killing, Stephens helped, all 3 ate, cabin boy did not
consent. Jury is sympathetic, they would have died probably. D&S are both charged
with murder.
Issue: Is it okay to kill someone to save your own life? Is necessity a defence for
murder?
Holding: No, necessity is not a reason for murder when you are starving and might
die. p.927: does not give you the right to take a life when the other is not threatening
your life or doing something illegal
Reasons: There is no duty to save your own life, sometimes you should sacrifice
your life for others. One life has no more value than another.
Maritime tradition allows for cannibalism – but not in these facts of the case.

Look at the link of morality to criminal activity. Judge talks about how it’s just really
wrong to kill a boy to eat him.

In subsequent cases lawyers could argue more or less specific needs. Maybe
sometimes necessity is a case for murder.

Necessity= some extreme emergency requires the act – peril is immediate

SOURCES OF CRIMINAL LAW

1. Constitution
2. Statutes
3. Common Law (case law)
(hierarchy)
COMMON LAW
what parts of criminal law are governed by case law?

R v Sedley (1663) - Historical starting point for common law

Sedley was drunk and yelling and throwing bottles of urine – charged with
misdemeanours against the King’s peace. This wasn’t an offence before he did it, so
the convict him under this catch-all. Back in the day – it was open to judges to just
convict people of whatever they thought was immoral – Judges decided what was a
moral offence. Historical starting point for common law –

Frey v Fedoruk (1950) - SCC decided that peeping wasn’t an offence at the time
Facts: guy looked into mum’s window, son chases him with a knife, detained him,
police came, arrested him with no warrant.
Issue: Was the “peeping” an offence (no crime called peeping tom at the time)? If
not an offence, then falsely imprisoned.
SCC decided that peeping wasn’t an offence at the time and not established under
common law.

If something isn’t already a crime, then Parliament has to call it an offence, not the
courts. No more crimes to be decided by the judges.
- people need to know what are crimes beforehand not after
- democracy, legislation, gov’t has to keep up with crimes.

1955 revised criminal code - common law taken away and criminal offences must be
found in a statute.
Except – Statute – one common law offence = contempt of court
Trespassing at night and voyeurism since added to the code.

R v Henry (2005) - Some SCC obiter dicta should be authoritative

Obiter Dicta – if more of what is said is binding, less room for interpretation.

STATUTES
- There are no longer common law offences.
- All offences except contempt of court are codified in Criminal Code or other
statutes.

How should the courts understand what the words of a statute mean?
Principles of statutory interpretation:
- i. In their context.
- ii. Grammatical and ordinary sense.
- iii. Harmoniously with the scheme of the act.
- iv. Harmoniously with the objective of the act.
- v. Harmoniously with the intention of Parliament.

R v Clark (2005) SCC - Statutory interpretation

Facts - Clark was convicted of indecent exposure for masturbating near the
uncovered window of his illuminated living room. Mrs. S saw him, was uncertain
what was happening, but went to a different window to look at him. She used a
binoculars and telescope. She called the police and from the bedroom, Clark could
be seen from the abdomen up and was masturbating. These facts were agreed upon
by all parties.

Issues:
 Was Clark’s living room a public place per the statute?
o This requires statutory interpretation.
 Was the S family in Clark’s presence?
o Recall he was convicted under section requiring their presence.
 Did he willfully do an indecent act if he did not know the S family was there?

Holding: No. This is because access to a place means physical access and not just
visual access.
- Statutory interpretation of the act.

Charges: The charge was indecent exposure.

Clark was convicted under 173 (1)(a).
He was acquitted on 173 (1)(b). The trial judge found he did not have intent to
insult or offend.
- Public place is defined as “any place to which the public have access as of right or
by invitation, express or implied”

Reasons:
s. 174 contrasts a public place and a place exposed to public view. The distinction
negates the fusion of these two descriptors. This distinction is reinforced in s.
213(1).
Ordinary meaning of the word of “access”
The distinction in s. 173 itself.

Bilingual interpretation. Basic principle where clash: where meaning is unclear

in one language, but clear in the other, we prefer meaning that is clearer.

R v Goulis (1981) Interpretation more favourable to the accused should be

adopted
(page 18) Rule: Where a criminal statute can be reasonably interpreted to
mean two different things, then the interpretation more favourable to the
accused should be adopted.
R v Pare (1987) SCC - strict construction

Facts: 17 year-old sexually assaulted and then killed 7 year-old boy after thinking
boy would kill him.

Charge: Charged with first degree murder.

- Typically when planned and deliberate. This was not
- Argument here was it was FDM under s. 231(5) in status quo. Death is
caused while committing certain offences and one is indecent (now sexual) assault.

Issue: What does the phrase “while committing” mean when committing indecent
assault?
- Defense argued it has to be exactly simultaneous. Argument would be that at least
this interpretation could be a reasonable one. So strict construction applies.

Holding: Martin single transaction analysis applies. Consistent with that section of
s. 231(5).

- i. Not intention of Parliament.

- ii. Leads to distinctions that are arbitrary and irrational.

Criminology and deterrence (policy)

- Overall trend toward punishment in US/CAN has been to increase severity.
- Theory that underlies that trend is this reduces incidence of crime.
- Is this claim true? You probably cannot.

- Criminology is the study of crime as a social phenomenon. Key claims:

- i. Crime is heterogenous. The causes are therefore different.
- ii. Limitations on what researchers can do because of ethical constraints.
- However, research on recidivism is inconclusive.
- iii. Strength of conclusions on future danger is also limited.

- Deterrence = punishment by fear.

- Two kinds of deterrence: general and specific.
- Specific is that I will be deterred from committing a crime again if I was
punished for that same crime in the past.
- General is societal deterrence by punishment from examples.
- Deterrence probably works better for some criminal offences than others.
Might be more effective in traffic offence than murder.

Doob & Webster (Tonry, p. 27) (policy)

- They argue sentencing severity has no effect on the level of crime in society.
- Concern here is about general deterrence: proportional increase in punishment
does not deter crime.
- They suggest that there might be marginal effects of deterrence. You are not
getting a greater effect for every unit of deterrence. They are not talking about $1
fine versus 5 year sentence. They are talking about 5 year vs 7 year sentence. This is
what the research does not support.

- Few things that support conclusion: people have to know what the
punishments are.
- As long as punishments are reasonable, no benefit to harsher than less
harsh sentences. Important to acknowledge because deterrence arguments
make false promises to the community.

- General deterrence is still a principle operant in jurisprudence.

DIVISION OF POWERS UNDER CONSTITUTION

The Constitution Act, 1867

page 32
- Constitution structures the division of powers. We have several documents that
comprise our constitution, two most important are Constitution Act, 1867 and
Constitution Act, 1982. -

- Two big topics: division of powers (CA, 1867) and Charter (CA, 1982).

- Citizen is subject to laws of Ontario and Canada jointly. Generally speaking, no

conflict.
- Division of powers addressed in s. 91 and s. 92 of CA, 1867 lists these as heads of
power.
- A law is intra vires when the government that enacts it is under head of
power. It will be ultra vires when it does not.

- What are heads of power related to criminal law? Main one is s. 91 (27) in CA,
1867 which refers to criminal law power.
- Federal govt. has power over criminal law, including procedure. Both
substantive criminal law (valid defences) and procedural criminal law (how do you
arrest, sentence etc.)
- Provincial offences are known as regulatory offences and not criminal ones.
- Both federal govt. and provincial govt. have power for jails and prisons.
- Rule of practice in sentence of 2 years or more in fed pent. and more than
that is provincial.
- Provinces have jurisdiction over courts.

Reference Re Firearms Act (2000)

- This is an inquiry into whether legislation is constitutionally valid.
- Alberta wanted opinion that the firearms registry was ultra vires.
- AB claimed this was under head of power of property. Feds said under head of
peace, order, good government or criminal.
- Court says two steps to analyze federalism problem:
- i. Determine the pith and substance of the law, viz. what the law is
fundamentally about. It’s matter or core.
- ii. Determine which head of power pith and substance falls under.
- Law concludes pith and substance is concluded by: (i) purpose of law and (ii) its
effect.

- Parliament’s purpose, the court concludes, was to protect public safety.

- AB argued that gun control was going to be ineffective, this just burdens people etc.
- Court says efficacy is not a matter of the constitutionality of the law.

- Firearms Act’ pith and substance was public safety, public safety falls under
criminal law head power — because this head has three purposes: valid criminal
law purpose, prohibition, and penalty.
- It is a broad power (head of criminal power).

Firearms act Canada (p. 33)

– registration – about public safety – valid criminal law legislation –
Alberta hates this law, says its about freedom and farmers etc. – But is what we are
arguing about the real thing we are arguing about – like are you anti guns and so try
to make policy arguments to take you there. Not about the goodness or badness of
policy choices.

Owning a firearm is not immoral but shooting someone is.

Purposes of criminal law statutes

- Codify and summarize legal principles.
- These emerged from the common law.
- Change common law rules.

CHARTER OF RIGHTS AND FREEDOMS – the supreme law of Canada

P43 - Constitutional bill of rights – has to be respected by governments – laws that
validate the rights are invalid

Law can be constitutionally in valid – not in the legislative jurisdiction

Hunter v Southam (1984) SCC called on to interpret s. 8

– protection against unreasonable search and seizure.
– very early SCC charter case
Judges are the guardians of the constitution –
Have to have PURPOSIVE APPROACH – THIS IS ABOUT PROTECTING THE RIGHT TO
PRIVACY.
 - Court determined that police need a search warrant to search.
Police need a warrant (the precedent set here) there has to be a reason for it; a
judge has to issue a warrant -

2 types of Charter challenges:

to conduct – typically a police infringed on rights
to the law – law is on trial, not looking at evidence but where the charter
contravenes statutes.

Charter limits on substantive criminal law:

Section 7: Prevents governments from depriving life, liberty, and security of the
person

Procedures are also in the charter, like bail and detention. Charter can’t just
criminalize any thing

Charter violation = deprivation and violation (you can make laws but they have to
be done fairly) Fair trial etc – SUBSTANTIVE (not just procedure)

Section 1: Charter guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.

Principles of Fundamental Justice: Law cannot be vague, general, against the

Charter
Law cannot be:
Vague – Like Sedley – misdemeanour against the Kings peace
General def’n – scope unclear, imprecise, inexact,
Contrary to charter in 2 ways – deprives you of liberty – also – if a law violates
another section of the Charter –

Criminal laws can’t be vague – people need to know if what they are doing is illegal –
Fair notice Law – and cops (all legal profession) need to know clear criteria on the
crime – this is point of rule of law versus law of persons.

Cdn Foundation for Children v Canada - The Spanking Case (2004) – Vagueness
Charter Challenge
(page 47) Providing a defense for what might otherwise be assault – Section 43 –
teachers, parents, or person standing in for parent – can spank if it is corrective and
reasonable in the circumstances.

Vagueness: (p.47) - must be intelligible to both citizens and those enforcing

the law
Leading decision – law around punishing a kid too vague.
Force reasonable under the circumstances

Test for this: law is not too vague – corrective purpose has meaning & child
must benefit (ie you can’t hit a baby or a teenager)

Statutory interpretation – very detailed interpretation of what is reasonable – when

she is done with the law it is not vague.

DISSENT – Louise Arbour Doesn’t pass debate vagueness test. Human rights issue
for children. It’s the drafting a law where there reasonable doesn’t exist
What is risk zone for the victims. Violates children’s security of the person

Do we need section 43?

Worldwide there are lots of laws that abolish hitting your kids.
Doesn’t the weight of protecting the children outweigh the parents rights.

Bedford V Canada (AG) 2013 – Section 7 challenge

Impuned provisons: keeping a common bawdy house, making money of others
prostitution (about pimps), communication in a public place (like flagging down a
car)

Struck down unanimous – appeal – that this law actually make sex work even more
dangerous – and sex work is not illegal – this affects the security of the person under
S 7.

Over breadth- General def’n – Too wide or expansive. Beyond what can be defined
as criminal
Arbitrariness - General def’n – unfixed, dependent on discretion instead of a
principle - Arbitrary when the law voliates section 7
Gross disproportionality- General def’n – punishment WAY too harsh for the crime
– life in prison for spitting on the sidewalk.

Common Bawdy house – what is the purpose of the law? Prevent community
disruption, protect public health - effect on s 7 made them not safe sending them
outside – so its G.Dis –
Money – objective to target pimps – Section 7 – security – like being able to pay a
body guard and a driver – overly broad –
Communicating – to prevent streets, nuisance – deter prostitution in general – not a
good reason – S7 security – forces them to dangerous remote places.

(Review)
Bawdy house/communicating/ making money off prostitution
Effect of the law on the security of the person –
 Don’t regulate nuisance at the cost of sex workers lives.
  Moneymaking was seen ass too broad – good to crack down on pimps, but
what about being able to hire drivers and security people?
 Objective about nuisance, doesn’t override the fact that sex workers were put
in danger by having to go into the dark.
 This was a way for court to strike down irrational legislation – judges in
policy making – controversial case- rationality – security of the person at risk
for sex workers.

New legislation – see notes after the case (p. 67) – C-36 - Act for exploited persons –
sex work, just like any work and shouldn’t be made more dangerous by legislation –
(other view – prostitutes (loaded word) inherently harmful to women and
exploitative – would suggest higher level of regulation)
 Asymmetrical criminalization – crime to pay for sex, not a crime to take
money for sex. Criminalized making money – the pimping offence – attempt
to limit this to punish pimps – communicating provision now – criminalizes
for communicating near kids (school, daycare etc.)
 Purchasing sex is now criminal – makes working in a bawdy house more
complicated. Same safety issues still exist – Harder to strike down now, not
about nuisance, now its about protecting against violence and exploitation –
 No support system to back it up – Nordic Law (asymmetrical) but in Nordic
countries social services are much stronger. No harm reduction strategies in
this.

R v Oakes (1986) – Test for Charter challenge

Oakes Test
In R v Oakes, the police caught the accused, Oakes, with hashish oil and cash. They
charged him with possession for the purposes of trafficking under the Narcotic
Control Act (NCA).[4] He claimed that the drugs were his own and that he was not
planning to sell them. At that time, under section 8 of the NCA, anyone found with
illegal drugs was presumed to be trafficking. Usually, the Crown must prove guilt
beyond a reasonable doubt, but under the NCA it was up to the accused to prove
that he was not guilty. This is called a “reverse onus.”

Oakes challenged the law, arguing that it violated the presumption of innocence
guaranteed under section 11(d) of the Charter. The SCC agreed, but could the law be
demonstrably justified in a free and democratic society, or could the government
justify a need for this law?

The Test:
1. First, the government must establish that the law has a goal that is both
“pressing and substantial.” In other words, is the law both important and
necessary? Governments are usually successful in this first step. In Oakes, the NCA’s
limit on the accused’s rights passed this step because the government argued that
its goal in creating the law was to combat the public health and safety risk that is
created with the selling of narcotics. The law was found to be pressing and
substantial;
2. The second step (with three sub-tests) is a proportionality analysis.

a. In this step a court first considers whether the law’s limit of a Charter right is
rationally connected to its purpose. If it is arbitrary or unfair, it is not rationally
connected and will fail. In Oakes, the government successfully argued that limiting
Oakes’ section 11(d) rights was rationally connected to its purpose to deter drug
trafficking.

b. The second sub-test involves minimal impairment. A law that limits a Charter
right will be constitutional only if it impairs the Charter right as little as possible
and is “within a range of reasonably supportable alternatives. “In Oakes, the accused
was immediately presumed guilty rather than innocent, and therefore his section
11(d) right to be presumed innocent was almost completely and unfairly impaired.

c. Finally, the court examines the law’s proportionate effects. Even if the law
satisfies the above steps, the limit may be too high a price for the individual to pay in
order to preserve the law. In Oakes, the law failed at the minimal impairment stage,
and so the court did not consider this final step. Still, it established that in future
challenges the law must strike a balance between the negative effects of the law
weighed against its beneficial purpose.

Section 1 of the Charter guarantees the rights – rights are not absolute they are
subject to reasonable limits of a free and democratic society
S. 1 has 2 functions – guarantee the rights and limitations must be measured.
S1 is about law’s impact on society as a whole, it might be important how many
people are affected by the law.
S7 there’s no quantitative analysis; a breach of one person is a breach of S7

THE CRIMINAL PROCESS

Classification of Offences

1. there has to be a charge (charging documents: place, time, nature of charged

conduct) Indictment (or in less serious case its called an information)
2. classification of offences (see attached flow chart) the more serious the
crime, the more elaborate procedures
Procedural classification of offences
- In Canada 3 types of offences: summary conviction, indictable, dual
(not actually a third category – Crown can chose b/w first 2 for this one)

How the offence is classified matters how it will be handled.

Ex. S. 266 in the code – assault is a hybrid –
Offences triable only by indictment (most serious) 3 kinds
1. S 469 – the most serious offences (used to be the death penalty offences) – have to go to
superior court – in the list, it’s basically just murder (not piracy) all murder trials are in
superior court of justice – option for prelim and jury. Rare for murder not to be tried by jury.
2. S 553 – least serious indictable offences – provincial court - 536 sub 2 – accused can choose -
ie 344 robbery –

449 counterfeit money – indictable -

3. Others in between –

Summary conviction offences – (judge and no jury)

Almost Always tried in provincial court, Ontario Court of Justice, does not have to
appear, lawyer can go – no jury, no prelim inquiry – s 787 of the Code: , maximums –
175 disturbing the peace (summary conviction)
271 sexual assault (hybrid offence)

Crown election offences (dual/hybrid)

Prosecution can choose how to proceed.
Various tactical decisions affect this – highest penalty, priors, etc.

LAW REFORM COMMISSION OF CANADA, THE JURY IN CRIMINAL TRIALS

(P. 78)
Questions of law are decided by judges, questions of facts decided by juries – who
applies the laws of the facts?
Judges instruct the jury.
Instructions must do 2 things: state the relevant law accurately & state the law so
the jury understands it.
Because instructions will be scrutinized at appeal judges often give very long,
repritious and disjointed instructions – This conflicts with being able to understand
it. Generally agreed that something must be done about this according to a survey of
judges.

b) What is evidence?
Crown has to prove the allegations. How do they do this? Evidence can be anything
but it has to be relevant. Testimony, objects, video, etc
Early days looked to God to heal hands or make the honest strong in a fight.
Norman Inquest, late 13th century – started looking at fact finding.
Relevance is what makes evidence count – a rational connection between it and the
crime – must be relevant to a material issue, must be a way to show it does this.
Circumstantial – I heard the gun go off and I heard the body fall to the ground
(mostly on 5% of cases go to trial)

Jury delivers the verdict – must be unanimous

If no jury then judge delivers

Sentencing – fine, imprisonment, conditional discharge (curfew etc, there are

conditions)
Appeals – sections 686 and 687 Criminal Code - Usually about error of law instead of
error of facts.

Error of law can be found in the statements of the law – judges reason for decision,
also in judges explanation of the law to the jury –

Jury trial requires a new jury trial – you can’t be convicted by anyone other than a
jury.

If you are acquitted, and then found guilty in appeal, then you can go right to the SCC

PRESUMPTION OF INNOCENCE
(pp 81-103)

Woolmington v DPP - House of Lords (1935) – 1st presumption of innocence

Page 81. Woolmington sentenced to death after jury couldn’t decide if he was guilty
of killing his wife. She left him after she had a baby and went to live with her mother.
He claims that he was only going to threaten suicide if she didn’t come home, but the
gun went off by accident and killed her by accident. When he was arrested he
confessed.
Judge’s summation: killing someone is homicide & all homicide is presumed to be
murder.
Crown has to prove that the woman died at the prisoner’s hands – Beyond a
reasonable doubt. If the crown does that then he has to show that it was an
accident – manslaughter.

LEGAL ISSUE: Does the accused have to prove that it was accident? This is what the
trail judge told the jury

“The Crown has got to satisfy you that this woman…dies at the prisoner’s
hands. They must satisfy you of that beyond any reasonable doubt.”

Why is the presumption of innocence so important?

It’s better to set 10 guilty people free than convict one innocent one. Society sees
this as a foundation.

(p. 87) CK Allen – legal duties and other essays in jurisprudence

Its better to set 10 guilty people free than convict one innocent one.
But really setting free 10 guilt people is still a huge miscarriage of justice.
The law has to be properly explained.
R v Lifchus (1997) - Proving the guilt has to be tied to the evidence.
(P 88) Accused charged with fraud and convicted – appeal was about the judge not
properly explaining proof beyond a reasonable doubt.
Court of appeal allowed the appeal and ordered a new trial. SCC dismissed Crown’s
appeal.
CORY J. (P89) SEE LIST OF definitions for the phrase and the words
Suggested phrase: If based on the evidence you hear in court you are sure that the
accused committed the offense you should convict
Proving the guilt has to be tied to the evidence.
Not proof to an absolute certainty - no one would ever be convicted. But requires
more that just probably guilty.
Avoid proof to a moral certainty. Not a magical incantation – not like a spell that you
have to say the same way every time.

R v Starr (2000) - beyond a reasonable doubt is closer to absolute certainty

(P 91) Accused convicted of 2 counts of 1st degree murder – same problems, jury
likely misled in instructions
IACOBUCCI J.
Jury not told how reasonable doubt is defined.
Standard of proof in criminal is higher - Look at proof on a balance of probabilities
and beyond a reasonable doubt is closer to absolute certainty than just 50%

It’s not just about who to believe – just a contest of who is more believable.
See p. 93 - The W. (D.) instruction to be used in a credibility contest case – It’s a
guideline – but if you do not use it you risk appeal.

R. v S.(J.H.) (2008) SCC - thinking the accused is lying isn’t enough reason to
convict
Question about whether the crime took place. This case goes to SCC. SCC found that
trial judge had explained it well – (p95)

Just thinking the accused is lying isn’t enough reason to convict – you need evidence.

People who are guilty can still be acquitted. System skewed to protect innocent.
Once acquitted entitled to be treated as innocent. They are innocent in the standard
of the law.

Never found innocent only ever found not guilty.

Code: Section 11 D
Any person charged with an offense has the right be presumed innocent.

Reverse onus - R v Oakes

Key question: DOES IT PERMIT SOMEONE TO BE CONVITED DESPITE THE
EXISTANCE OF PROOF BEYOND A REASONABLE DOUBT? IF YES THEN VIOLATES
SECTION 11.

Powers of the Court of Appeal

See sections 686 and 687 of the Criminal Code

Appeal from: Appeal by: Dispositions available:

Sentence Either side (with leave) Dismiss – uphold sentence Allow –

adjust sentence

Conviction Defence Dismiss – uphold conviction

Allow – order new trial Allow – enter
acquittal

Acquittal Crown Dismiss – uphold acquittal

Allow – order new trial
Allow – enter conviction (except jury
cases)
Classification of offences: Overview
Summary conviction Hybrid offences Indictable offences
offences (Crown elects)

Section 553 Other (most ) Section 469

indictable indictable offences indictable
offences (accused elects) offences

Trial by Provincial Court Trial by Superior Court Trial by Superior Court

Judge, no preliminary Judge alone, option for a judge and jury, option for
inquiry preliminary inquiry a preliminary inquiry

Increasingly serious offences, increasingly elaborate procedures

CRIMINAL JUSTICE POLICY
(pp 108-118)

Issues: The victim is just another Crown witness (as opposed to a Tort case)
Victims have little influence on the outcome.
Humiliating cross examination (esp. in sexual assault cases)

Creation of victim services organizations

Rape shield (exclude sexual history/past of the victim)

a) Victim’s rights:
In the past rights have been ignored or not respected. More is being done like rape
shield laws.

Bill C-32 – Victims Bill of Rights Act has passed second reading.

Trying to right previous wrongs for victims. Important high priority and hard to
judge how far victims rights can go – the accused is the one on trail and risks going
to jail.

Victim impact statement – how as the crime affected their life? This is part of
sentencing –

Hit and run – 17-year-old girl with 2 parents who have sad powerful impact
statement, versus old homeless man with no one to give an impact statement.

Criminal court is about guilt and punishment, not about redress for victim

1996 SCC R v O’Connor need to balance the accused right to a fair trial and
complaints rights to privacy
First, the applicant must establish, without seeing them, that the records are likely
to be relevant to the case. Second, the judge must review the records and decide
whether to disclose them based on the balancing the right to make full answer and
defence, and the right to privacy. (under ss 7 and 8)
S 15 – equality rights for complaints in sexual assault cases R v Mills (1999) – rape
shield law –

b) Scope: When is the state justified in making conduct into a crime

(philosophically)?
(p 110) Ouimet report (1969)
1. no act should be called a crime unless its incidence is substantially damaging
to society
2. no act should be criminal where its incidence may be controlled outside of
the criminal process
 3. no law should give rise to social or personal damage worse that what it was
designed to prevent.
State interference with human freedom should only happen where manifest evil
would result.

Law reform (1976) Criminal law should be instrument of last resort. RESTRAINT

SCOPE OF CRIMINAL LAW – in reaffirming values crim law denounces acts

considered wrong – so it has to stick to really wrongful acts. But not all wrongful
acts should be crimes – It is a necessity but it is not sufficient.

Harm Principle
Not all harmful conduct has to be criminalized, but only harmful conduct can be
criminalized

Criminal law should be use sparingly.

3 conditions:
1. Cause harm to other people or society
2. Harm must be serious in nature and degree
3. Harm is best dealt with through criminal law

R v Malmo-Levine (2003) SCC - (Marijuana laws) harm principle

(p 112) (Very long case, several arguments – focus here on the harm principle)

GONTHIER AND BINNIE JJ: Marijuana laws – M-L was arrested for having pot – he
ran programs for harm reduction – claimed the no harm rule – SCC decided that the
no harm rule isn’t a rule that they have to use. It’s not written anywhere that it can’t
be illegal if it causes no harm.

Harm principle (john Stewart Mill) trying to set standards for the state invasion into
private life.
- Harm has to be to others (or a vulnerable group)
- Moral harm (smoking pot is just wrong and there’s the harm)

Is the Harm Principle a Principle of Fundamental Justice? (See p 114)

There has to be societal consensus and it has a measurable standard/

Determines that this is a not of principle of fundamental justice – There are offences
in the code already that do not conform to the Harm Principle.
We make rules like people wear helmets when they ride a motorcycle whether they
want it or not.

Prohibition of conduct that harms only to actor and excludes moral harm.
This is a philosophical essay though not an interpretation of a constitutional
document.

See Feinberg – harmless wrongdoing – Is the harm principle a principle of

fundamental justice? Court did not think so – lies in the tenets but not in the public
policy.

a) Even if the harm principle was a legal principle it still doesn’t meet the
requirements
b) Court did not think that a consensus that harm principle was the SOLE
justification for criminal prohibition
c) There is no distinction b/w harm to self and harm to others
d) Harm principle is not a manageable standard against which to measure
deprivation of life, liberty and security of the person.

It becomes a battle of Harm against Harm -

ADVERSARY SYSTEM
(pp 128-148)
ROLES AND RESPONSIBILITIES OF JUDGES AND LAWYERS
Three elements of the system:

Party control – Prosecutor brings the charges, the parties on in control of the
proceedings.

Passive Judge – More umpire than judge – watch contest unfold and keep the parties
to the rules – Judge should jump in, question witnesses. Mostly silent

Highly formalized rules – criminal procedure

Basic notion – the trail is a battle between the contending parties – important value
is that is has to be FAIR

Advantages?
- Better way to find the most facts – fact finding process
- No bias from the judge- can stay above the fray
- Satisfaction of having one case put forward strongly from one’s own point of
view.
Challenges?
- Both parties can’t win
- Only works if the 2 sides are equal – especially in criminal – the power of the
state against someone with limited resources. – It shouldn’t matter how rich
you are. Equity issues – first nations, women, low income.
- Because of combat structure, fighting to win might fight dirty like hide the
truth.
Steve Coughlan “The Adversary System: Rhetoric Or Reality”
(p 131)
Structural issue – no one of talking on behalf of the victim

Carrie MENKEL-MEADOW (1985) Portia in a Different Voice

(P 134)
The law is based on male psych and behaviour – values of the system are male – one
sided advocacy, binary results

Women approach – ethic of care, preserving relationships, caring for others,

inclusive,

Example – kids are told a man has to steal drugs to save his dying wife.
Boy says steal the drugs
Girl asks are there other ways to do this? Maybe the druggist can help him out?

A lot of Canadian Law is more feminine law – we take more into consideration and
look for balance.

Judicial Impartiality
Judges are supposed to be impartial – so how can it matter how diverse they are – it
should all be neutral

Calls to make the Judiciary more diverse

Cultural, racial, gender,
2003 - 25% judges federally are women
You need to see people who look like you in positions of power in justice.

The Advocacy-Adversarial Model

Two sides presenting to an impartial third party watching over – like sports: rules, a
ref, and a winner.
Using the Heinz model (sick wife/steal drugs?) Amy looks to change the process. She
sees communication as the way to resolve the conflict. Direct communication
without a third party and no clear victor…
Hilary (a female lawyer in the study) sees a document opposing counsel could use
against her, but in the adversarial system she cant tell her about it – Gilligan’s study
shows that this system can be bad for both sides.

Madam Justice Bertha Wilson, Will Women Judges Really Make A Difference?
(1990), 28 Osgoode Hall L.J. 507
Current literature tells judges to be impartial, leave biases at home, have no feelings,
no preconceived ideas about law or policy.
Socrates – 4 things belong to a judge: hear courteously, answer wisely, consider
soberly, and decide impartially.
Many have criticized saying this is unreal when exercising judicial function.
ABELLA doubts this is realistic – they are armed with relevant legal texts but also
with a set of values, experiences, and assumptions that are embedded.
If you think existing law is the product of neutrality then you think women judges
wont make a difference.

Whether more makes a difference depends on if you think all the white men who
made the laws have influenced existing law.

ABORIGINAL PEOPLES AND CRIMINAL JUSTICE Law Reform Commissions of

Canada, report no 34 (1991)
(p. 143)

Why is this important topic? They are over represented in the system, especially
prisons – 23% are aboriginal in federal jails – 10x higher incarceration rate. And this
is getting worse – 43% in crease in the last 10 years – women even more than men –
1/3 of federal inmates in Canada.

Courts must take judicial notice of the history of colonialism and residential schools
– higher poverty, higher substance abuse,

THEMES that come back when reading about Aboriginal peoples belief that the
criminal justice system does more harm than good in their communities. They want
to deal with their own criminal activity in their own communities.

Discussion:
First nations taking jurisdiction over crimes in their own community:
Removes systematic biases and racism

Similar punishment to similar acts – within an aboriginal system laws are not
uniform or homogenous
Why would they have other rights? They were here first – Rights are recognized
under the constitution – and right for self government (ongoing)

RUPERT ROSS, DANCING WITH A GHOST Exploring Indian Reality (1992)

Excerpt text p. 145
An exercise about a boy robbing a store – session had 2 elders, one per the boy, one
rep the store, they keep talking in private to each other until both feel that balance
to the community has been restored. If the re is restitution it’s up to them to decide
on it. No testimony, no facts, no evidence, no witnesses.
If you look through the lens of the dominant criminal justice model this doesn’t
make sense – where are the facts and the record etc?
Look at what are the traditional system is about – reintroduce harmony and put
offending behaviour in the past.

About restoring harmony, finding peace and forgiveness.

Very different set of cultural imperatives.

Harmony is the natural state.
Now they are asking us to leave them alone
Less about what was done and more about what caused it and how to restore the
community.
Our system is of no use to them – we are confrontation and perpetuation of
disruptive issues.

R v RDS (1997) SCC - reasonable apprehension of bias

(P148)
[1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353, 10 CR (5th) I
1197 CARSWELLNS 301, 1997 CARSWELLNS 302

Black kid was arrested for interfering with the arrest of another kid, by a white
police officer in Nova Scotia – Judge Sparks (trail judge), the first black judge in NS,
acquitted saying that the judge believed the kid over the cop because what the kid is
saying (he was told to shut up or be arrested) is “in keeping with the prevalent
attitude of the day” – state of mind that is questionable. No other choice but to
acquit. Apprehension of Bias is the issue at SCC.

TEST: Would a reasonable well-informed person aware of all the circumstances

conclude that there was a reasonable apprehension of bias?

There is nothing about police officers that makes them not capable of lying – it is
improper of te crown to say, you can’t question the truth of the police officer – Trail
judge could say, yes I can think of a reason to not trust the police, look at other
behaviour.

CORY J (IACOBUCCI J concurring)

Yes, minorities have been the victims of racism by police; a judge can’t be seen to
say that no cops are to be believed when a black kid claims to have been treated
badly. Judge can’t be seen to Asses credibility instead of evaluating the facts. The
words are worrisome and close to the line.
The only basis here for unfair trail is: did the remarks of the judge give rise to a
reasonable apprehension of bias?
In isolation the comments look bad. But in context, no reasonable person would say
the represent a bias.

MAJOR J (LAMER CJ and SOPINKA J concurring) DISSENT

They say there was not enough evidence to support this idea of racism in this case.
They want a new trail – it is an error of law for the judge to infer her general view.
Life experience is not a substitute for evidence.
The trial judge’s words were unacceptable. Stereotyping police as liars and racists is
unacceptable.
(They compare it to saying that in a rape case a prostitute is likely to be lying and to
have consented) Agree with the CORY J test but come to a different conclusion.

L’HEUREUX-DUBÉ J (MCLACHLIN J concurring) (2 women)

While judges can never be neutral, they must strive to be impartial. Experiences can
be relevant to the case. They find no reasonable apprehension of bias. They disagree
with CORY that the words were close to the line, or unnecessary, they are an
appropriate recognition of the facts in evidence in this case and in context.
Contextualized judging. Judges can’t ignore their life experience. Social context also
matters.

GONTHIER J (LAFOREST J concurring)

Agree with CORY to hold acquittal and wrt to bias. Agree with L’H-D wrt to social
context. Thinks remarks are appropriate.

RDS keeps is acquittal. 6-3 – BUT 5 of the Judges think that the comments were
“worrisome”. Look at CORY judgement as the lead one because his finding holds
plus he addresses worrisome remarks (as per dissenters).

Very usual to challenge an acquittal based on racial bias.

THE ACT REQUIREMENT

ACTUS REUS (GUILTY ACT)
Introduction (pp 169-171)

Crime at common law broken into 2 parts

 Actus reus, guilty act
 Mens rea, guilty mind.

Criminal Law can only be applied to definite overt acts or omissions capable of being
distinctly proved” JF Stephen (1883)

Actus non facit reum nisi mens sit rea = there is no guilty act without a guilty mind.

Guilty act must coincide in time with a guilty mind.

Elements of the offense – Elements have to be proven
THERE MUST BE AN ACT ELEMENT AND A FAULT ELEMENT
EXTERNAL ELEMENTS - ACT
 Always has an ACT element: Externally manifested act – utter threats, touch
someone w/o permission
 Can have a CIRCUMSTANCE element: trespassing at night time is a diferrent
crime, the night time is the circumstance
 CONSEQUENCE element: I’m not guilty of murder if I try to kill someone but
the doctors save them.

FAULT ELEMENTS
 MENS REA – mental element
 NEGLIGENCE
Example: Escape from lawful custody: you have to actually escape, it has to be
lawful, you have to intend to escape – ACT element is always found in the provision.

Why do we require an ACT? Everyone would be a criminal if we could be arrested

for thoughts. Stretch the system too far -

POSSESSION OFFENCES
(pp 184-205)

Code: Section 4: Possession

(3) For the purposes of this Act,
 (a) a person has anything in possession when he has it in his personal possession or
knowingly
o (i) has it in the actual possession or custody of another person, or
o (ii) has it in any place, whether or not that place belongs to or is occupied by him, for
the use or benefit of himself or of another person; and
 (b) where one of two or more persons, with the knowledge and consent of the rest, has
anything in his custody or possession, it shall be deemed to be in the custody and possession
of each and all of them.

Definitions of possession
MUST HAVE SOME FORM OF CONTROL
PERSONAL POSSESSION s.4(3)(a) – I have it on me
CONSTRUCTIVE POSSESSION s.4(3)(a)JOINT POSSESSION s.4(3)(b) – my husband
is holding it for me, it’s on him, but it’s mine too. Or leave something behind – like
bury a car key under a rock while you swim.
JOINT POSSESSION s.4(3)(b)

ACT ELEMENT OF POSSESSION

Do these cases show possession?

Marshall v R (1969) - Knowledge and consent (weed)

(p184) Knowledge and consent – kid catches a ride, there is a LOT of pot in the car.
Marshall is charged with joint possession – Marshall knew it was there (after he got
in the car) He did not consent it to being there. He had a choice. He could have
gotten out of the car. C.A. says he would have been wiser to leave, but he didn’t
consent to it being there – he only consented to being in the car himself.
Was he in possession when he passed the pipe? Defense suggested it was just a
reflex.

Issue(s): Was Marshall in joint possession? What is necessary to meet the

requirements of possession in s.4(3) of the Criminal Code (Canada)?

Ratio: In determining possession, per s.4(3) of the Criminal Code, there must be
evidence of consent to prove the unlawful act.

Holding: Decision in favour of Marshall

Comments:
There are three types of possession defined in s 4(3):
1. Personal;
2. Constructive (e.g. illegal material in a locker; control over something); or
3. Joint (possession with someone else).

To be in possession, requires: TEST

1. Knowledge of the criminality associated with the item; (per Beaver v R (1957)
2. Consent (per Marshall v R (1969)); and
3. Control (per R v Terrence (1983)).

R v Terrence (1983) - leading case on possession control

33 CR (3d) 193 [1983] 1 SCR 357, 4 CCC (3d) 193
Page 188 - Terrence went for a joy ride in car that was stolen. Question is was he in
possession?

Code: Section 4(3)(b)

RATIO - There has to some measure of control over the possessed thing. Terrence
had no control over where the car went - Control is required for any form of
possession.

R v Morelli (2010) – internet porn

(p 191) – he didn’t download they got cached after viewing – is that possession?
Viewing is not possessing – he did not have the data files, law needs control over
underlying data file – (Accessing is a law now, but wasn’t then) Things are
possessed if they are capable of being transferred. In a cache you can look at it again,
but this would only be possession if you were consciously using your cache to access
files.
R v Pham – joint and constructive –
(p 195) Pham dealing drugs out of her appointment – March 3 she left until March 5
– while she was gone, cops came in a found drugs in the bathroom – someone had
been in the house while she was away. Conviction upheld – she had constructive
possession – cocaine was left in the bathroom – either she left it there or he did –
** DISSENT – SOMEONE COULD HAVE BROUGHT THE DRUGS IN CJO MCMURTRY.
This shows how wide proof can go on possession – because she was a dealer, she
had control over drugs in her apartment even if she wasn’t there. Circumstantial –

R v Chalk (2007) This case defines control in possession (child pornography)

Page 202 - Claimed Control for the purpose of destruction
Innocent possession is about having something with the purpose of destroying
them – HAD KNOWLEDGE AND CONTROL.

Facts:  Case concerning child pornography. Chalk did not delete the materials, but
said that he had planned to delete them.
Issue(s):  What is necessary to meet the requirements of possession in s.4(3) of the
Criminal Code (Canada)?
Ratio:  Knowledge of the criminal aspect of the material is adequate to constitute of
possession.
Holding:  Decision in favour of Crown (R).
DOHERTY JA - a person has anything in possession when he ..knowingly .. has it in
any place .. for the use of benefit of him or another person.
Court does not accept innocent possession –
They were on his computer for months, and he only wanted to delete them because
he was arrested.

CONSENT MAKING ACT LAWFUL - CONSENT HAS TO BE VALID.

(pp 205-242)
Consent is part of the ACT for many offenses.
In the Code – assault defined as force without consent.
The ACT of applying force is an offence without consent.

Defense of consent: try to get an acquittal with the defense of consent – Most likely
to be the issue in sexual assault cases.
Narrowly defined – true defense refers to a circumstance that justifies the conduct

Consent has to be valid. There could be an age of consent, could be made invalid in
the eyes of the law – vitiated.

Apparent consent can be vitiated (considered to be of no legal effect) because of

policy limits or because consent was induced by fraud.
R v Jobidon (1991) SCC – (bar fight) bodily harm - consent cannot be used as a
defence
(p 205-218) TWO MEN GET INTO A BAR fight and take it outside – Jobidon stated
that he did not know that Haggart was unconscious when he continued to hit has it
all happened so fast.

Manslaughter – death caused by an unlawful act.

Trail judge: They had clearly consented to a fistfight. But there was no intention to
kill. He didn’t know H was unconscious. There was no unlawful act here, because
there was consent.

Code: Consent to death Section 14

14. No person is entitled to consent to have death inflicted on him, and such consent does not
affect the criminal responsibility of any person by whom death may be inflicted on the person by
whom consent is given.
Section 14 – no one can consent to being killed Are there limits not set up in the
Code?

SCC HOLDING: An accused cannot rely on a defence of consent for causing

serious hurt or non-trivial bodily harm.

Code: assault and manslaughter: S 222

Causing death by criminal negligence
220. Every person who by criminal negligence causes death to another person is guilty of an
indictable offence and liable
 (a) where a firearm is used in the commission of the offence, to imprisonment for life and to
a minimum punishment of imprisonment for a term of four years; and
 (b) in any other case, to imprisonment for life.

Gonthier J (for 5 of 7) - Policy based limits are fact dependant – better to balance
them under each case and let them develop with the common law
Right to autonomy against other policies like interest in public safety

1. Limits of defence in common law still stand

2. Case law – looked to English case law (p. 211)
3. Existing limits are good policy

There is no social value to 2 people having a fistfight and one of them dying. They
can also lead to larger brawls. Law should not sanction this – unseemly.

RATIO: “ vitiates consent between adults intentionally to apply force causing

serious hurt or non-trivial bodily harm to each other in the course of a fist
fight or brawl.” This is a narrow ratio

In order for consent to be vitiated – bodily harm has to be both intended AND
caused.
SOPINKA J (not dissent but….) Scrutinize the consent – says there is no policy
based decision on consent. P. 217 – 218 – he questions the facts found by the
trial judge. Consent cannot be read “out” of the offence

Code: Bodily harm is defined in s. 2

bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the
person and that is more than merely transient or trifling in nature;

R v Moquin (2010) – Man.CA - assault causing bodily harm

(p 218)

Code: Assault Section 265:

 265. (1) A person commits an assault when
o (a) without the consent of another person, he applies force intentionally to that
other person, directly or indirectly;
o (b) he attempts or threatens, by an act or a gesture, to apply force to another person,
if he has, or causes that other person to believe on reasonable grounds that he has,
present ability to effect his purpose; or
o (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.

Code: Assault with a weapon or causing bodily harm Section 267:

267. Every one who, in committing an assault,
 (a) carries, uses or threatens to use a weapon or an imitation thereof, or
 (b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an
offence punishable on summary conviction and liable to imprisonment for a term not exceeding
eighteen months.

The accused and the complainant formed was called a “good snapshot of a classic
abusive domestic relationship.”
1. As part of a greater assault, the accused pulled the complainant’s hair so hard
as to pull some out, leaving her with a sore scalp for a few days;
2. As part of another greater assault, the accused grabbed the complainant by
the throat, thereby choking her hard enough to make it difficult for her to
breathe and leaving her with a sore throat and causing difficulties when
swallowing for a few days;
3. The accused squeezed the complainant’s hand so hard so as to bruising,
soreness, and an inability to bend it for a week or so; and
4. The accused committed an assault leaving the complainant with bruised
arms and a sore throat.

The MBCA Decision - Under s. 2 of the Criminal Code, “‘bodily harm’ means any hurt
or injury that interferes with the health or comfort of the person and that is more
than merely transient and trifling in nature.”
R v Cuerrier (1998) SCC – leading case - failure to disclose HIV status constituted
fraud
(p. 221) Knowingly exposing a partner to HIV constitutes aggravated assault.
Happened in 1992.

Code: Section 265(3)(c) fraud – no limits to definition of fraud.

Consent Section 265 (3) For the purposes 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.

There can be no consent if HIV not disclosed. Historically common law – fraud as to
the nature and quality of the act or to the identity of the partner.

The nurse told him he had to disclose. He did not. He had sex.

CORY J – lays out the new test: Section 265(3)(c)

1. Dishonest act &
2. Deprivation – not letting someone have info that would change his/her decision.
Fraud that presents a Risk of significant bodily harm vitiates consent.

L’HEUREUX-DUBE – She thinks This is too restrictive - p. 224 – any fraud that
makes you consent to something you would not have otherwise, should vitiate
consent.

But if a guy lies and says I’m rich and I love you but he’s poor and married? But
really we are looking at the criminal Code here.

MCLACHLIN: We have to be careful to criminalize trivial situations – like lying to get

laid, Concern about extending criminal law too far – let’s make a special rule for HIV
transmission.

R v Mabior (2012) SCC – Did not spread HIV/AIDS - what constitutes “significant
risk”
(p. 227) Question of when fraud based on non-disclosure when viral count is low.
Trial judge found him guilty when sex was unprotected, bt not guilty when condom
was used.

Cuerrier is still the leading case on this. Using the Cuerrier test – what constitutes
“significant risk” and “serious bodily harm”
If there is no realistic possibility of transmitting HIV, then failure to disclose will not
constitute fraud vitiating consent to sexual relations. The Court held that a realistic
possibility of transmission of HIV is negated if (i) the accused's viral load at the time
of sexual relations was low, and (ii) condom protection was used (94).  If both
elements are present, there is no requirement to disclose HIV status.

No one contracted HIV from him.

MCLACHLIN CJC (for the court)

Cuerrier is still the leading case on this.
Using the Cuerrier test – what constitutes “significant risk” and “serious bodily
harm”
- Realistic possibility of HIV Transmission. – if viral load is low and condom is used –
low risk. – Realistic possibility is negated.
Cuerrier requirement is not met. CJC: Further explain what the Cuerrier test means:
Question of law reviewable
Significant risk arises where there is a real possibility of transmission.
Para [82] & [84]
Para [103] conclusion by the court (page 236)
Criticism from 2 sides – protecting those with HIV who are treated and have low
viral load (a marginalized group) AND HIV should always be disclosed to = consent.

R v Hutchinson (2014) SCC - Consent vitiated by fraud (holes in condoms)

(P. 238) Girlfriend did not want to get pregnant, boyfriend poked holes in condoms
(only told her after they broke up) she got pregnant, has an abortion, and had
complications.

1. Is there a difference between consenting to protected sex and consenting to

unprotected sex?
2. If so, does the lack of consent to unprotected sex change the act to sexual
assault?
3. Are the effects of the abortion to be included in the harm caused by the
sexual assault?

Everyone agrees there was no effective consent here.

There has to be consent and it also has to be valid in law.

Consent not vitiated because she didn’t consent to sex without a condom.
OR
Consent but vitiated by fraud.

Criminal code defines sex – voluntary agreement to the sexual activity in question.
(the activity in question could be sex without a condom)
MCLACHLIN CJC and CROMWELL J (for the majority)
Matter of statutory construction.
Wording in the Code, jurisprudence and common law, objectives of the law.
Ordinary meaning = sexual activity in question
Consent vitiated by fraud.
Jurisprudence: conflict with Cuerrier – serious harm - and Mabior?
Objective of the law: what about women who lie about taking the pill?

Contraception (the condom) was critical to her consent.

Fraud = dishonesty and deprivation
Dishonesty, for sure and proven too.
Deprivation – “ deceptions that deprive her of the benefit of her choice by making
her pregnant by removing effective birthday control, may constitute a sufficiently
serious deprivation for the purposes of fraud vitiating consent under s 265 (3)(c)

[71] woman chooses not to pregnant, anything that interferes with that choice can
be fraud

Code: Consent s.265(3)(c)

Consent Section 265 (3) For the purposes of this section, no consent is obtained where the
complainant submits or does not resist by reason of (c) fraud;

R v Kubassek (2004) - de minimis, the law does not concern itself with trifles
(P.244) de minimis non curat lex
1. (law) Literally, the law does not concern itself with trifles

Halpern v Canada (2003) allowed same sex marriage – a union for life between 2
persons.

Kubassek thought the Lord wanted her to go to Met community Church and tell
them homosexuality was bad – while she yelled at the congregation Rev Hawkes
stood in front her – she pushed him but he wasn’t hurt. She was escorted out and
charged with assault. Dismissed on trifles – Crown appeals – trifles shouldn’t even
be a factor in criminal law. She did push him with intent and he could have been
hurt.
Find for the Crown

OMMISSIONS – legal duties to act

(pp 248-287)
All crimes have an overt act – can be identified as an omission
General rule: Failures to act do not give rise to criminal liability.

OMMISSIONS – PAGE 286 BEARDSLEY

She was under his charge,
Exception: An omission can ground criminal liability where there is a legal duty to
act. IE In a statute or in the common law.

Moral and Legal Duties

Buch v Amory Mortgage co (1898)
CARPENTER CJ: If you see a child on the tracks and you do not save it, you are not
guilty of a crime.
It would make you a bad person, but not a criminal.
Should there be a general duty to rescue?

H.R.S Ryan criminal responsibility for omissions

(1967), study note (p.249)
Bentham – there should be a duty to save someone whenever you can do it to no
harm to yourself.

McCauley – there should be no duty to rescue – how can you define the conditions
and limitations of guilt. Omissions should only be illegal if they cause or intend
harm. Otherwise it’s a moral judgement.

This comes up in real cases – Jeremy Stromayer – friend saw the murder and just
walked away – not responsible to do anything under Nevada law at the time. (has
since been changed)

Quebec Charter of Human Rights and Freedoms RSQ 1980

(p. 251) There is a general duty to assist people who are in peril – either help or call
for help.

French Penal Code (1958)

You must help if you can without risk to yourself or others. Neglect to do so is a
crime.

What is an omission? Actus reus when person found guilty of failing to perform
legal duty (care for a child)
O.W. Holmes, The Common Law (1963)

Fagan v Commissioner of Metropolitan Police (1968) - Typically mens rea and

actus reus have to occur at the same time
(p. 252) - Fagan parked on a cop’s foot. Didn’t mean to, but then didn’t pull away
and yelled at the cop and said Fuck you, you can wait! – so then he meant to. The act
and the desire don’t need to happen at the exact same time.
Fagan convicted of assault on police; all appeals were overturned.

JAMES J: A mere omission to act is not an assault. If this is just omission then it’s not
assault. In order to be assault, both act and fault have to occur at the same time.
Typically mens rea and actus reus have to occur at the same time. SIMULTANITY.

Argument is that the two did not happen at the same time. Court says that they
happened close enough together. Car was on the cop’s foot and stayed (continuing
act) there the whole time, when the Defendant got rude and stubborn and wouldn’t
move.

BRIDGE (DISSENT) Agrees with legal principles, but says there was no simultaneity
– this was just an omission to not move the car off the foot -

How do legal duties arise? Code s 215

An omission can ground criminal liability where there is a legal duty to act. IE In a
statute or in the common law.

Legal Duties In Statute

Code - Duty of persons to provide necessaries s.215

 215. (1) Every one is under a legal duty


o (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of
life for a child under the age of sixteen years;

o (b) to provide necessaries of life to their spouse or common-law partner; and

o (c) to provide necessaries of life to a person under his charge if that person
 (i) is unable, by reason of detention, age, illness, mental disorder or other
cause, to withdraw himself from that charge, and
 (ii) is unable to provide himself with necessaries of life.

when can an offense be done by omission – Code creates a duty and makes it an
offense not to act. Failing to provide the necessaries of life to those we are
responsible for – child, spouse, person in your charge… – offense in s. 215(2)

Some offenses are broadly worded enough that they can be done by omission. Then
the legal duty to act arises from some other source (s. 217) or in the common law.

S 180: offense of common nuisance – includes fails to discharge a legal duty…

R v Miller (1983) - omitting to put out his own fire = arson

(H.L.) Got drunk passed out while smoking in an unoccupied house – lit mattress on
fire, so went into next room and then house set fire – Guilty of arson – looks like an
omission, can we have liability for this omission, and also simultaneity issue – he
was asleep when his cigarette caught fire.

LORD DIPLOCK: two ways to analyse this – Continuous act (Fagan) the act was
seeing the fire and ignoring it. Use this chain of events as ACTS and so omission
doesn’t come into play here.
- owe a duty to act – LEGAL DUTY ANALYSIS – where a person sets up a chain
of events that will destroy property they owe a duty to try to stop it. Duty
would have been fulfilled just by calling the fire department.

**** classic case, but not clear that this exists in Canada –

Moore v R (1979) Leading Ommissions case in Canada – guy on bike ID

(p. 258) -Moore went through a red light on his bike and wouldn’t stop – Obstruct
Police offense. Is the failure to give his name the offense of obstruct Police? Cyclist
has a duty to give the cop his name. Guilty of that.

Code: Offences relating to public or peace officer s.129

129. Every one who
 (b) omits, without reasonable excuse, to assist a public officer or peace officer in the
execution of his duty in arresting a person or in preserving the peace, after having
reasonable notice that he is required to do so, or

SPENCE J: Emphasis – Police saw Moore do the infraction of running the red light.
Duty to give name arises because the cop saw him commit an offense. Police officer
has a duty to enforce the law, so Moore cant get in the way of the Police trying to
execute their duty. Reciprocal duty limited to when the police has seen the crime.

DICKSON J (DISSENT); There is no statutory reason to have to identify yourself.

Concern about disproportionality of the offense. It was a small offense.
P 263 - no duty at common law to identify oneself to police.
No one is required to incriminate himself or herself or help the police. Short of
arrest a citizen has a right to refuse to help police. Rejects the reciprocal duty
analysis – Police has a duty to try to identify him, but that does not create a duty to
Moore on the other side. There needs to be notice about what is a criminal offense –
you can’t criminalize conduct after the fact.

Carding issue – practice seems to be getting away from the principles of common
law in which you do not need to identify yourself to police.

Dissent is more persuasive in this case – but majority and dissent are not that far
apart – Criminal law is supposed to be the same across the country – but if they are
looking at BC motor vehicle code then provincial law bumping into criminal law that
is federal - Concern about common law duties (section 9) turning omissions into
offences where none existed before.
Majority
→ Under the Motor Vehicle Act – every driver of a vehicle and every pedestrian shall
obey the instructions of an applicable traffic-control device.
→ Say it is a major inconvenience (not in public interest to inconvenience the police)
– this is absurd – but is the law

Dissent
→ Any duty to identify oneself must be found in common law or by statute.
→ The fact that a police officer has a duty to identify a person suspected of an
offence says nothing about whether the person has the duty to indentify himself on
being asked
⇒ They are entirely independent
→ Criminal law is no place within which to introduce implied duties, unknown to
statute and common law, breach which subjects a person to arrest and
imprisonment

Holding: 
M had a duty to give S his name, he was obstructing S’s performance

R v Thornton (1991) Ommission – gave HIV tainted blood:

(p. 266) - Gave blood to the Red Cross knowing he was HIV positive and did not
disclose.
Blood was caught in the screening – He was charged with common nuisance – he
failed to disclose and put people in danger.
 why is this an omissions case? Donating blood is an act. The court is
questioning if we was under a duty to just not donate the blood at all.
 It is not a crime to donate contaminated blood – there was no free-
standing offense.

What common law duty did Ontario court of appeal find: duty to refrain from
conduct that can cause harm – Tort law – Duty of Care – that is the legal duty that is
omitted in this court. ** this is problematic – take tort duty of care into criminal –
does that not just swallow up all of tort law into Criminal? Is it appropriate to pull a
common law duty out of Tort? When this went to SCC they did not address this at all.

SCC p. 270: Thornton breached a duty under section 216 of Code – went the medical
route. SCC read section 216 literally.
Section 216 imposed upon Thornton a duty of care (Supreme Court thereby accepts
the trial judge’s analogy to a medical procedure) which he breached by not
disclosing that his blood was HIV-infected. He created a common nuisance.

(ed) this seems to establish a new wide measure of criminal responsibility for
ommissions.
R v Browne (1997) – leading case – not recklessly breaching a legal duty
(p. 270) Leading case in Canada Section 217 – if an omission is dangerous to life you
have to do it –

He is charged with Criminal negligence causing death

Code Criminal negligence causing death - s. 219 – reckless disregard

Drug dealing partners. She swallowed a plastic bag of crack – she tried to throw it up
unsuccessfully – He said he would take her to the hospital but cab took 10 minutes,
15 minute trip to the hospital – she died right away.

Trial judge: He undertook to care for her – calling a taxi and not 911 was criminally
negligent.

Defines as a binding commitment – clearly made with binding intent.

His expression of words does not constitute an undertaking – he was not bound by
saying he would take her to the hospital.
Reliance would be put into the undertaking – shown by a change in way they do
based on reliance – Greiner doesn’t call 911 because he says he will take her (this
did not happen)

Restrictive definition of “undertaking” – his words hardly constitute an undertaking

But then at what point would there be an undertaking? What would a binding
commitment look like?

No. Appeal allowed; Browne acquitted.

Before someone is convicted of recklessly breaching a legal duty generated by his or

her undertaking, that undertaking must have been clearly made, and with binding
intent. Nothing short of this can give rise to a legal duty as per s. 217 of the Code.

Trial judge erred when she started by determining whether there was a duty of care.
She should have started her analysis by determining whether there was an
undertaking.

R v Peterson (2005) - The duty to a person under your charge – s.215 (1)(c)
(p. 273)The duty to a person under your charge – section 215 (1)(c)
Elderly man (Arnold) and middle aged son (Dennis) – Dennis was told by police to
get help from agencies. Arnold is found by the road and taken to a home but Dennis
was still charged with Failing to provide the necessities of life.
WEILER JA: To be under someone’s charge = control exercised by one person and
dependency by the other person. Dennis was the person who Arnold would be
returned to.
Factors to be under charge: Dennis controlled living conditions, Dennis chose not
to call in help, Arnold was not capable of withdrawing from Dennis’s care.

You have a legal duty to provide the necessities of life to someone under your
charge.

We have to use these laws right now because there is no legislation regarding elder
care and elder abuse.

(p. 283) Dissent: Borins: Legislation is required for this – we are trying to use
criminal law duties to deal with eldercare.

Note: p. 285 not all elderly folks are incompetent – careful not to treat them too
quickly as children.

OMMISSIONS – PAGE 286 BEARDSLEY

She was under his charge,

VOLUNTARINESS: Only a criminal act when it is done voluntarily

(p. 287) defining conduct that is not voluntary.
Has to be an act that matches the will power - A willing mind making a choice or
decisions.

Involuntary when unconscious, has not control over his/her actions.

Accused has no ability to act otherwise. You can be conscious and do acts that are
involuntary.

If you jump when startled, sleep-walking (automatism – actions done when a person
is in an altered state of consciousness), seizure, someone else physically makes your
arm move, attacked by a swarm of bees and your hands flail and you hurt someone.
Why is this a basic rule that you don’t punish involuntary under criminal law? There
isn’t even an act. No element of choice. You can’t contemplate the consequences of
your actions. You can’t deter people from doing something they didn’t choose to do.
When they could not have done otherwise. It’s pointless – they have no moral blame.

CRIMINAL OFFENCES REQUIRE AND ACT ELEMENT AND A FAULT ELEMNT.

ABSOLUTE LIABILITY OFFENCES – ONLY REQUIRE ACT, NO FAULT IS REQUIRED.

Like getting a ticket for parking illegally. You are still guilty even if you didn’t see the
sign to not park there.

** Involuntariness is a defence to both criminal and absolute liability offences.

R v King (1962) – (intoxication dentist) actus reus requires willpower
TASCHEREAU J; there can be no actus reus unless it is the result of a willing mind at
liberty to make definite choice – there must be willpower to do an act whether or not
the accused knew it was prohibited by law. The crown has to prove a voluntary act
to get a conviction.

Rabey v R (1980) - Automatism means an unconscious involuntary act

RITCHIE J: Automatism – unconscious, involuntary behaviour, the state of a person
who is not conscious of what he is doing – an unconscious involuntary act where the
mid does not go with what is being done.
DICKSON J: The Crown bears the burden of proving a voluntary act. Consciousness is
absolutely needed for criminal liability.

Rabey v. R. [1980] 2 S.C.R. 513 (concerned a disassociated state)

Automatism means an unconscious involuntary act and it is a basic
This case
principle that absence of volition in respect of the act involved is always
stands for:
a defence to a crime.

R v Parks (1992) – sleepwalking - Automatism is a subset of voluntariness.

R. v. Parks [1992] 2 S.C.R. 871 (concerned sleepwalking)
Rather than being a “defence”, automatism is actually part of the actus
This case
reus component of criminal liability because it is a subset of the
stands for:
voluntariness requirement.

R v Stone (1999) - accused had to prove any defence of automatism

R. v. Stone [1999] 2 S.C.R. 290
Bastarache preferred to define automatism as a state of impaired
consciousness, rather than unconsciousness, in which an individual is
This case
capable of action but has no voluntary control over that action. He also
stands for:
held that the accused had to prove any defence of automatism on a
balance of probabilities.

BASTERACHE J: Automatism is a state of impaired consciousness as opposed to

unconscious

Note: Voluntariness, rather than consciousness, is the key legal element of the
automatistic behaviour since a defence of automatism = denial of voluntariness of
the actus reus.
  A lack of voluntariness is not the same as a lack of mens rea. There can be a
voluntary act without there being mens rea.
 Involuntariness is a more fundamental defect than lack of mens rea. There is not
even an actus reus. You cannot be said to “have shot” someone if doing the act
was beyond your control (such as when a stronger person forces your hand).
 The law holds people to account for acts that they think they can control. This is
the basic definition of “voluntary” that circumvents any controversies between
proponents of determinism vs. free will.

Cobb – foundations of neuropsychiatry (p. 289) (1958)

BASICALLY THERE IS NEVER A STATE OF FULL CONCIOUSNESS.
why have voluntary requirement for the ACTUS REUS?

(p. 289) HLA HART, acts of will & responsibility (1968)

Test for involuntary vs. lack of knowledge of circumstances.
If you have palsy you can break a glass that you are holding without meaning to.
Involuntary = unconscious and therefore unable to do action OR conscious but
unable to make the particular movements demanded of the law.
They do not occur as part of conscious act. - Lack of knowledge of the consequences
(goes to fault element) is different from involuntary.

(p. 291) I.H. Patient - Remarks (1968)

Involuntariness can go beyond Mens Rea: Lists examples of A shooting B in
voluntary ways.

You can have caused a death, but not be criminally liable – ie – someone takes your
hand while you hold a gun and shoots a person dead. Or at a target practice
someone walks in front of you.

OW Holmes – The Common Law (1963)

(p. 292) You need to require an act because an act shows choice. The choice has to
contemplate the consequences.

HL Packer – Limits of criminal sanction (1968)

(p. 292) - Voluntary by conduct (not by various philosophical decisions)

Examples NOT associated with mental disorder: Involuntariness

R v Lucki (1955) - car slides, can’t control action - acquitted
(p. 293) Sask. Lucki slides over on to the wrong side of the road due to black ice –
Not guilty because if another car had pushed him over it wouldn’t be his fault –
involuntary act for which he is not to blame.
A person who by an involuntary act for which he is not to blame gets onto the
wrong side of the road is not guilty under the section in question.
• What conceivable purpose can legitimately be served by imposing a sentence
on someone who can't control his actions?
Charged with inconveniencing other drivers by being on the wrong side of the road.
Judge situates this in mens rea – but this is not about fault – it HAS to be about ACT.

R v Wolfe (1975) – hit by phone – trifling & just reflex - acquittal

R. v. Wolfe [1975] 20 C.C.C. (2d) 382 (Ont. C.A.)
Wolfe had good reason to not want the complainant in his bar. The
complainant came to the bar and refused to leave. As Wolfe was calling
FACTS the cops, the complainant punched him and Wolfe turned in a reflex
action and struck the complainant in the head with the telephone receiver.
Wolfe was charged with assault causing bodily harm.
ISSUE Is Wolfe liable for the injuries that the complainant suffered?

HELD No. Appeal allowed; trial decision overturned.

As a finding of fact, the trial judge characterized the receiver
RATIO incident as a reflex action on Wolfe’s part so the necessary ingredient
of intent is lacking in order to uphold this charge.

R v Swaby (2001) - Voluntariness question – gun in the car - suddenly in a

criminal situation.
(p. 295) Swaby and J were in a car- The cops got a tip to follow them. J got out of the
car and ran into a backyard, Swaby drove away. They were both arrested. In the
backyard the cops found a loaded unregistered handgun. Both claimed the gun
belonged to the other.

Swaby is charged with being an occupant of a vehicle while knowing there is an

unregistered gun in the car.

Voluntariness question here: You find out about the unregistered restricted gun
while you are driving. Can you be immediately guilty? You should be given some
kind of opportunity to get out of it or get him out of the car. Some opportunity to
deal with this before you are criminally liable.

Important *** there can be a voluntariness problem when someone finds

themselves suddenly in a criminal situation.

SHARPE J.A.: Criminal Code s. 91(3) – You are guilty if you are in car with an
unregistered gun, indictable offense, summary conviction.
To establish guilt the Crown had to show voluntary conduct. This applies even if the
provision creating the offence does not expressly require it. If you found out about
the gun while the car is already moving, is there a set amount of time before you are
guilty? If he only found out about the gun when J was getting out to go hide it then
he should be acquitted. Allow the appeal because trial judge didn’t properly explain
the necessary elements of the offense. – New trial ordered.
R v Ryan (1967) Australian kid copies book, kills a guy – can’t claim involuntary
[1967] (Aus HC) (p. 297) Kid follows the story of a book and robs a gas station
with a gun. When he goes to tie up the attendant, the attendant makes a sudden
movement and the gun goes off and kills the attendant. The kid was found guilty –
But they appealed saying that the jury should have been told about involuntariness.

At trial: He wanted this to be judged as an accident and convicted him of murder.

Foreign cases are usually shown for facts – raise factual scenarios that we haven’t
seen in Canada.

Appeal was because they wanted to jury to hear about possibility of involuntariness.
WINDEYER J: The words are hard to sort out. Unwillfull, involuntary…”reflex action”
But this guy got a gun, loaded it, cocked it, and held in a dangerous way. He created
the situation and put himself in it.

This is a situation of grave danger, quite foreseeable that this could happen. The
complex set of actions to get us here were all clearly voluntary. The one last thing
does not raise involuntariness.

Presented as murder or accident – Murder or acquittal. It’s not like that in Canada.
Foreseeability does = voluntary.
(Yes, Ryan is guilty of a serious criminal offence, but in Canada for murder you need
a fault element. Ryan had no intention of killing anyone. Pointing a firearm at
someone is a criminal act. Guilty of manslaughter, Reckless disregard for another
person)

Killbride v Lake (1962) – lost the papers, can’t be guilty – no act

NZ (p. 299) Guy got a ticket for not showing his proper registration – But he has
proven that he has the proper papers and doesn’t know when it fell off the place
where it should be displayed. Is there mens rea? But this statutory offence doesn’t
need mens rea. He must be shown to be guilty of the act – Issue – whether or not the
physical element in the offence was produced by the appellant? I do not think that
the act of not showing the permit was the result of his conduct. Choice is absent.

Ratio: the physical ingredient of this charge was not proved against the appellant.
Involuntary omission? Failing to display the warrant card.
If there is no act, then you can’t even look at fault.
The accused had no choice to commit this act. The card was just gone.

CAUSATION - Is the act connected closely enough to the consequence?

(pp 305-325) Is the act connected closely enough to the consequence?
Factual causation & legal causation – both must be proven

Causation in Tort – Tort of negligence have to show damage caused by

negligence – Causations always HAS to be shown in negligence.

In criminal law – only has to be proven as an element of the crime –

consequence crime.

Criminal Code actus reus requires the causing of certain consequences.

All homicides (s 222)
Wilful damage to property (s 430)
Arson (s 433)
Causing bodily harm (s 221) or Death (s 220) by criminal negligence – holds
different penalties – our law takes the view that the actual consequences are
important in sentencing – even if I kill you or hurt by the exact same act of driving
onto the sidewalk.

Our Code contains no general principles concerning causation but only a number of
special rules concerning homicide (ss. 222 and 224-228)
**** Causation is held to be accountable – situation specific
S 224 death that might have been prevented
S 225 death from treatment of injury – causation I stabbed them, but they died in
the hospital.

BC Electric Rwy v Loach (1916)

(p. 306) LORD SUMNER: Can’t we just look at the cause of something without
qualifying the word all the time? Real cause, proximate cause, inducing cause etc….

Smithers v R (1978) SCC Leading case: causation for homicide – outside de

minimus range
(p. 306) DOCTRINE: “A CONTRIBUTING CAUSE OUTSIDE THE de minimus RANGE”
This is a very low standard for causation.

Smithers beat up Cobby after a hockey game – Cobby died from aspirating after
being kicked in the stomach. The assault was an element but was the act of assault
the cause of death? But could they prove beyond a reasonable doubt that the kick
caused the vomiting?

- Rare and unusual cause of death.

- Unlawful act manslaughter – assault results in death

Was the jury properly instructed – Is this about the kick or the medical condition?
DICKSON J: Issue: Was the kick sufficient enough cause of death to make him
criminally liable?
Thin skull – The kick had enough to do with the choking that it caused the death.
Take your victims of assault as you find them.

Issues: distinction b/w expert and lay witnesses

Medical experts said the kick made the vomiting likely.
Lay people said they saw a kick and then death.
Jury should have been confined to hearing only from experts _ SCC rejects this – jury
entitled to hear ALL of the evidence.
Not limited to experts when determining causation

Factual/legal causation? Factual

What is the test for causation?

Was there evidence the jury could find on causation?

De Minimis The only thing that might have broken causation is the malfunction
vomiting – But everything contributed. Even if the kick only caused the vomit, it
was still a contributing factor

HELD Yes. Appeal dismissed; manslaughter conviction confirmed.

RATIOThe evidence showed that the kick was at least a contributing cause of
death, outside the de minimis range, and that is all that the Crown was
required to establish. “Thin skull” rule may also apply in criminal matters as
it does in civil matters.

Problem on page 312: Neighbour kills a guy who is prone to strokes by shoving him
Section 226 acceleration of death –

R v Harbottle (1993) SCC Substantial Cause Test for First Degree Murder
(P. 313) - Rape and murder. Accused and companion – companion raped her then
they discussed how to kill her. Accused held her legs while companion strangled her.
Standard for causation when murder is subsequent to a predicate offence.
(first degree murder is planned and deliberate)

At issue for SCC: Whether the accused participation was such that he could be
found guilty of first degree murder pursuant to s. 214(5) [s. 231(5)] of the
Criminal Code.

He killed her will holding her down – criminal act.

CORY J: Object of the section

Doctrine: Substantial Cause Test Requires that the accused play a very active role –
usually a physical role – in the killing. Must be Essential, Substantial, and Integral.

Code s. 231(5) Hijacking, sexual assault or kidnapping

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is
first degree murder in respect of a person when the death is caused by that person while committing
or attempting to commit an offence under one of the following sections:
 (a) section 76 (hijacking an aircraft);
 (b) section 271 (sexual assault);
 (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily
harm);
 (d) section 273 (aggravated sexual assault);
 (e) section 279 (kidnapping and forcible confinement); or
 (f) section 279.1 (hostage taking).

R v Nette (2001) SCC TEST: standard for causation in criminal offenses –

significant contributing cause
(p. 316) Accused robbed a widow and left her with a ligature around her neck. She
died because of it 24-48 hours later – her clothes were wrapped around her neck.

R v Nette - SUBSTANTIAL CAUSE TEST

** this is the current test being used
Factual causation – how did the victim come to her death?
Legal causation – is it a crime?

 Factual causation concerns how the victim came to death in a medical,

mechanical, or physical sense and the accused's contribution.
 Legal causation concerns the accused's responsibility in law and is informed
by legal considerations such as the wording of the offence and principles of
interpretation.
 It will rarely be necessary to charge the jury on the standard of
causation if the requisite mental element for the offence exists
because the mens rea requirement usually resolves concerns about
causation.
 Where a factual situation does not fall within a statutory rule of causation,
the criminal common law applies.
 The causation standard expressed in Smithers is still valid and
applicable to all forms of homicide.

SMITHERS – CONTRIBUTING CAUSE OUTSIDE OF THE DE MINIMUS RANGE

Smithers causation standard still applies to all forms of homicide.

NETTE- SIGNIFICATE CONTRIBUTING CAUSE (meant to have same meaning as

above)

HARBOTTLE – SUBSTANTIAL CAUSE FOR FIRST DEGREE MURDER (MUST

ALREADY HAVE ACT AND FAULT FOR MURDER) UNDER 231(5)
ARBOUR J: Significant contributing cause.
SUBSTANTIAL CAUSE TEST
** this is the current test being used
Have to look at both Fact & Law. Factual causation – how did the victim come to her
death?
Legal causation – is it a crime? Should the person be held responsible in law for the death
that occurred?
She refers to G. Williams in Textbook of Criminal Law: further test to but-for cause is the
morality. Can the result be imputable? Must use cause to mean, responsible for,
blameable, to show the value-judgement.

A jury does not engage in a 2-part analysis - the judge explains how they are to read the
law.

Causation is distinct from mens rea – Cause not an issue if Act and Fault are present
- causation expresses an element of fault that is law sufficient.
- When actus reus and mens rea are present, causation is generally not an issue. If
someone heads out to kill someone and then kills them, unlikely to look at the
causation. Causation is basically judicially developed but you can see it in the
Code  too. EG - s 225 - cause bodily harm and death results, then that person
causes the death. When it’s not in the Code you have to look at the common law.

Smithers - Appeal is asking if trial judge erred in jury instructions when used the
Smithers test as a slight or trivial cause - claims that judge incorrectly explained
causation for 2nd degree murder.
Harbottle - Really is not stricter, but has a higher degree of participation required to raise
murder to the first degree (Code s 231(5)) ARBOUR does not like the use of the term
“substantial cause”

Once the jury has found that it is murder, have to find causation to make it first degree.
Need a high degree of blameworthiness (CORY in Harbottle).

Explaining causation the the Jury - (p. 320)

L’HEUREUX-DUBE - problem with the changing of the phrasing in the jury instruction
from "not insignificant" to "significant".

R v Talbot (2007) ON CA - BUT FOR the act the consequences would occur
(p. 324) Notes (p. 325) Talbot shows that Ontario C.A. uses “significance” as the sole
test. Fight outside a restaurant - there was a punch and then a kick. Which caused the
death? Re Nette if you have caused the death should be liable for the death.
Crown did not sufficiently prove that it was the kick that caused the death.
Law is a bit vague
DOHERTY JA: BUT FOR the act the consequences would occur – but this test is not
enough. Causation can be established anyway.
Who Among those who have factually caused the death should be held liable for
causing that death in the eyes of criminal law

EG: if a bunch of people beat on a person and the person dies, one of the people can’t say
he is innocent with “but for” me. Covers bot factual and legal so juries can understand the
law.

Charter – Drag Racing

R v F (D.L.) (1989) Alberta CA test for cause – drag racing
(p. 325) Youth drives a car dangerously and hits someone who is jaywalking - at trial the
judge acquits saying the guy shouldn't have been jaywalking, the harm was inattention,
not dangerous driving.

Code s 249(3) - bodily injury Thereby Caused by dangerous driving.

Dangerous driving Code s 249(1) - Trial judge wants to break down each component
separately.
Code s 249(3) - bodily injury Thereby Caused by dangerous driving.

Ontario Crown Libman sets out a test for cause in this section:
 was the driving proven to be dangerous as definition in s 249(1)?
 do the injuries meet the test of bodily harm defined in s 267(2)?
 if yes what correlative link exists between the dangerous driving and the bodily
harm?
de minimus continues to be used in case law, but this judge isn’t sure it applies to all
aggravated driving offences. How do you figure it out when there are 2 competing
causes?
Here they find it is properly defined under s 249(3) - convicted on appeal.

NOTES: Drag racing in Canada – you need more than one driver to make it a race.

I’m drag racing and I hit and kill a pedestrian.

Did the person I was drag racing with also cause the person’s death?
We are both doing the same thing.
“But for” the other racer? If no race, no death?

Courts say that a drag race is a singular dangerous event – so all the damages are
caused by both drivers.

INTERVENING CAUSE – between the Criminal Act and the Consequence lives the
intervening cause.
Code: Statutory homicide rules where intervening causes are stated not to break the
chain of causation: ss 222(5)(c), 224, 225, and 226. Otherwise courts have to figure it
out.

R v Smith (1959) UK Doctrine/Test: INTERVENING CAUSE

(p. 329) IN ORDER TO BE THE THING THAT BREAKS THE CHAIN OF
CAUSATION – the second cause must be so overwhelming as to make the original
merely part of the history.

A soldier in King’s regiment was found guilty of murder and sentenced to life, in
Germany. No one had noticed the back stabbing so they were treating the arm.
Doctrine/Test: INTERVENING CAUSE
Facts: There was a fight at a military base and Smith stabbed three people with a
bayonet. He stabbed one of the men in the back, and when he was being carried to the
hospital he was dropped twice. On top of this, they failed to give the victim a saline
solution, could not perform a blood transfusion, and gave him artificial respiration when
his lung was collapsed. The victim died. The doctor said that the victim would have had a
75% chance of survival if proper treatment had been given. Smith was charged and
convicted of murder at a court martial.
Ratio: If an initial cause remains a significant cause when the death occurs, then it is still
considered the cause of the outcome.

How would Canadians courts treat this? - Stabbing would be a significant contributing
cause (Nette).

Code: Death from treatment of injury s.225

225. Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and
from which death results, he causes the death of that human being notwithstanding that the immediate
cause of death is proper or improper treatment that is applied in good faith. (in this case, the CPR was
improper treatment but it would not break the causation chain)

In Jordan the Crown could argue that section 225 applies here. But the stabbing had
almost been healed…death has resulted, but is it from the stabbing or from the drugs?
Notes: If you get stabbed but go to hospital and Get SARS? An airplane crash explodes
the building?

R v Blaue (1975) - intervening act/not sever the chain of causation/thin skull

(p 332) The case of Jehovah ’s Witness who decided not to take blood after being
stabbed. The court said this was an intervening act but not enough to sever the
chain of causation.

But when is the intervening event sufficient? The SCC ruled on that in R. v. Maybin
below.

Facts:  Victim was an 18-year-old devout Jehovah’s Witness.  Defendant came into her
house and asked her to have sex.  She declined.  He stabbed her with a knife, inflicting
four serious wounds, one of which pierced her lung.  She ran away, collapsed outside a
neighbor’s house, and was taken to hospital.  Surgery was required, but she would need a
blood transfusion.  She was aware that without a transfusion she would die, but refused
because of her religious beliefs.  She died.
Issue:  (the main issue) Was the judge required to leave room for the jury to consider the
possibility that unreasonable conduct on the part of the victim may have broken the chain
of causation?
Ratio: The judge was entitled to tell the jury what the application of the law would be –
in this case, that the defendant’s stab wound was an operative cause of death.
Analysis: Application of the “thin skull rule” to the whole of the person, not just the
physical person – “it does not lie in the mouth of the assailant to say that his victim’s
religious beliefs which inhibited him from accepting certain kinds of treatment were
unreasonable”
There can be more than one cause of a death.

LAWTON L.J.– the whole man, not just the physical man – Take the person as you find
them including their beliefs.

The operative cause of death was the stabbing. Appeal dismissed.

Code: Death that might have been prevented s.224

Where a person, by an act or omission, does any thing that results in the death of a human being, he causes
the death of that human being notwithstanding that death from that cause might have been prevented by
resorting to proper means.

R v Maybin (2012) SCC Test for INTERVENING CAUSE. “But For”

(p. 337) FACTS:
 3 accused:  TM, MM (brothers) and BG (bouncer) charged w/ unlawful
manslaughter s.222
 victim touched ball on pool table - T punched victim in head and face
 M assisted
 victim unconscious on pool table
 BG (bouncer) was told that victim started fight - BG punches the victim in head
and carries him outside
 victim taken to hospital (later dies in hosp) due to a “subarachnoid haemorrhage”
 Important to note -  less than 1 minute elapsed from T’s first blow to BG’s blow
-p346
Acquittal for the bouncer was upheld the whole way through.

The Maybin brothers are the “but for” - if they were taken out of the equation the
bouncer’s punch probably wouldn’t have killed him.

The S.C.C.’s unanimous judgment here still leaves a lot of discretion in the hands of
the trier of facts (judge or jury) to decide whether subsequent acts or events in the
case before them did or did not constitute “an intervening cause” in law.
2 approaches to analyzing intervening causes:
Majority:
 Reasonable foreseeability: Was the intervening act reasonably foreseeable?
Dissent:
 Independence: Was the intervening act sufficiently independent and
overwhelming to sever the impact of the accused’s actions?

The TEST the court stated was: The question was whether the dangerous, unlawful
acts of the accused were a significant contributing cause of the victim's death.

KARAKATSANIS J. - First you have to apply the BUT FOR test.

Look at legal causation – should the wrong-doer be held criminally responsible?
Look at the contributing cause – did an interveneing act break the chain of causation.

Was the intervening act reasonably foreseeable? Then it does not break the chain.
What exactly has to be foreseeable? A bouncer punching? Or Broad? Once they started
beating him, someone else would hurt him too?

SCC says – was the general nature of the intervening act foreseeable?
Intervention by bar staff is foreseeable. Chain is not broken
Independent acts – 3rd party acting should not be laid at the feet of the Maybins.
Don’t look at foreseeability in this case, are they so independent of the brothers that they
could cause the death on their own? Not independent at all. Closely aligned in time and
totally due to their actions

Look at the moral connection of the crime to the death. Need to make sure they are not
morally innocent.

Use Smithers, Nette:

 decided not to choose between the “reasonable foreseeability” and “independent
act” theories of intervening causes Karakatsanis said that they are
“merely tools to assist in addressing the test for legal causation set out
in Smithers v The Queen and confirmed in R v Nette”

 Rather, she asks the question - were the unlawful acts a significant contributing
cause of death?

 T/M assault was either direct medical cause of death or it rendered victim
vulnerable to bouncer’s attack [Factual Causation established]
 Intervening Act - did BG’s punch break chain of causation
 could it be seen as a new event with the purpose of reducing criminal liability
 argues that neither the majority’s approach “reasonable foreseeable” or the
dissents’ approach “independent act” are sufficient to break the chain of legal
causation and also neither establish legal causation.
 Rather - the Causation Test remains - “were the dangerous acts of accused a
significant contributing cause of victim’s death”
  in order for the intervening act to be applied must be extraordinary or unusual i.e.
a tidal wave
 K is not outlining a new Test - up to TJ and courts to assess
 she agrees w/ CofA “general nature of intervening act and accomp risk of harm
were reasonably foreseeable - and this was open to the trial Judge –

THE GENERAL RULE IS: multiple causes, and contributing causes, does not matter,
you still ask whether the act of the accused was a significant contributing element. Is
the causational link strong enough to say you are responsible for this act?
 The test for causation in manslaughter was "a contributing cause of
death, outside the de minimis range".
 The trial judge erred in the factual causation inquiry. He stopped with his
assessment of the medical cause of death and did not consider the
contribution of the appellants to that result by asking whether the
deceased would have died "but for" the actions of the appellants.
 With respect to legal causation, neither an unforeseeable intervening
act nor an independent intervening act was necessarily a sufficient
condition to break the chain of legal causation.
 Even in cases where it was alleged that an intervening act interrupted
the chain of legal causation, the causation test remained the same.
 The question was whether the dangerous, unlawful acts of the accused a
significant contributing cause of the victim's death. It was the general
nature of the intervening acts and the accompanying risk of harm that
needed to be reasonably foreseeable.
 Legal causation did not require that the accused had to objectively
foresee the precise future consequences of their conduct. Nor did it
assist in addressing moral culpability to require merely that the risk of some
non-trivial bodily harm was reasonably foreseeable. Rather, the intervening
acts and the ensuing non-trivial harm had to be reasonably foreseeable
in the sense that the acts and the harm that actually transpired flowed
reasonably from the conduct of the appellants.

THIN SKULL RULE (Blaue, Smithers)

Is there a thin skull rule in criminal law? Absolutely, and one good example is R. v.
Blaue above and Smithers. The question here too would be: were the actions of the
accused a significant contributing cause of the death?

The criminal code does not have specific provisions on causation but on death it
does have a few very specific provisions that govern causation in instances of
homicide: 222(1), 222(5), 224, 225, 226, and 228.
THE FAULT REQUIREMENT (Mens Rea)
(p.349) The act that looks the same varies in criminality according to intention.
Did I hit a kid by accident or did I run the kid down?

Introduction - J.F. Stephen, A History of the Criminal Law of England (1883)

Actus non facit reum nisi mens sit rea - there is no guilty act without a guilty mind.

You have to prove fault – there is no one state of mind intended by the phrase.
All crimes have and act element and a mental element differing for different crimes.

Mens Rea requirements vary by crime.

Ie drugs you have to have knowledge.
Homicide; fault differs per crime
act = person is dead,
fault= intend death, or know that death could result.

Fault mirrors the Act - Fault is the act of touching a person, you have to know that
you are touching a person

Death or bodily harm, consequences maybe need to be foreseeable.

Moral blameworthiness.

subjective/objective distinction
(p. 351) Fault requirement can be either:
Some offences have no fault element – absolute liability offence.

In sexual assault - You can’t have a purely subjective distinction and you can’t have a
purely objective standard either – In most crimes you have a combination.
MODIFIED STANDARD.

Creighton, Hundal – SCC says there should be a clear distinction between

Subjective Standard: accused actually aware of a risk
Objective Standard: accused failed to measure up to the external standard of the
reasonable person.

R v Hundal (1993) - “The state of man’s mind is as much a fact as the state of his
digestion”
Dangerous driving – how do you tell state of mind?
(p 352) Actions can show state of mind
R v Theroux (1993) – meas rea – subjective & objective
It has to be voluntary for there to even be an act.
What is the Guilty mind for fraud.
Have to protect people who mentally can’t know
MCLACHLIN - Not about your system of values –

R v Mulligan (1974) How do we find intention

Guy stabs his wife, did he mean to kill her?
Fact at issue was his intention
Acts, utterances, - Language and action

Natural consequence – shooting a point blank, then shows murder intent. What would a
sane and sober person expect?

What are the principle consequences of this action?

Fault ladder: Harsher punishments the higher you go up the ladder.

1. (most fault must be shown) Subjective mens rea

2. Objective fault – Crown has to prove negligence – negligence offences
3. Strict liability
4. Absolute liability (objective mens rea)

REGULATORY OFFENCES – quasi-criminal, not traditional criminal offences.

All valid provincially enacted offences – like highway act
Also federal non-criminal: like fisheries.
Require lower level of fault than criminal

Beaver v R (1957) - Should not have absolute liability for true crimes: Still a
leading case * - all drug offences require subjective mens rea section 4(3)
(p. 357)

Judges thought there were 2 choices – Subjective mens rea

And
Absolute liability – the Crown did not have to prove fault

As we can see in Beaver below, the court does not approve of absolute liability for
true crimes:
FACTS Beaver charged with possession of heroin and he thought he was
trafficking powdered milk. Statute was silent on necessary mens rea. The Crown
argued there was absolute liability and no need for mens rea.

REASONING One who has physical possession of a package which he believes to

contain a harmless substance but which in fact contains a narcotic drug, cannot be
convicted of being in possession of the drug under s. 4(1)(d) of the Opium and
Narcotic Drug Act.
The essence of that crime is the possession of the forbidden substance in a
criminal case there is in law no possession without knowledge of the
character of the forbidden substance.

Per Fauteux and Abbott JJ., dissenting: The statute creates an absolute prohibition
and mens rea is therefore not an essential element of the offence of possession.
Beaver appealing convictions on selling and possession. Said he didn't know they
were drugs, that his brother told them they were not. Sold the drugs to an RCMP
officer. He was charged with possession and selling. Trial judge said it didn’t matter
if he believed it was heroin or not – Judge said this was absolute liability and
eliminated the fault element.

Offence under the Act (p. 358) Anyone possessing the drug is guilty (this was how
the trial judge would have read this)

Was there mens rea? This is a question of the law.

Is this an absolute liability case? SCC decides that you need knowledge.

CARTWRIGHT J (RAND & LOCKE JJ concurring)

IN the Drug Act  of the time s 4(1)(f) says you are guilty if you a representing
something to be a drug.  4(1)(d) says if you have it, you are in possession - But this
court asks the question if you ask for and buy baking soda, but are given heroin, and
you take it home and keep it, thinking it is baking soda, are you guilty of having
heroin?

He was found guilty of selling still (section 4(1)(f)), but not of possession.

Knowledge that you possess it, and knowledge of what it is.

This is Criminal Law and in Criminal Law you need subjective mens rea.
Fundamentally unjust not to have knowledge element to drug possession – if you
are facing prison then you need to know that you have done the crime.

It’s unfair – can’t punish moral innocence.

Court says this is more akin to criminal because they apply to actions that are wrong
in themselves (malum in se)
Malum prohibitum is conduct that is prohibited. Like parking on the street after
midnight without a permit.

*** IN the statute there is no mens rea requirement (keep in mind there is rarely
mens rea in any offences) If fault element is not mentioned in the Code common law
might still need it.

DISSENT - FAUTEUX (ABBOTT CONCURS) The crime is having it in your possession.

Language is clear on prohibition of drugs.
This is not a criminal offence it’s a statute offence and so mens rea not required.
This was made absolute liability in the Act because drugs are bad.

Main Point - although the court was split 3-2 on BEAVER - it has since been accepted
that all drug offences require subjective mens rea section 4(3) of the Code expressly
requires KNOWLEDGE.

R v City of Sault Ste. Marie (1978) leading case on fault for regulatory offences –
Strict Liability.
(p. 364) This is still the leading case on fault for regulatory offences.
Judges thought there were more options in between the 2 choices:
Subjective mens rea
And
Absolute liability – the Crown did not have to prove fault

The disposal company was also found guilty, City said it’s them not us, not our
fault…

FACTS
The respondent City entered into an agreement with a company for the disposal of
all refuse originating in the City. The company was to furnish a site and adequate
labour, material and equipment. In dismissing the charge against the City the trial
judge found that the City had nothing to do with the actual operations, that the
company was an independent contractor and that its employees were not
employees of the City. On appeal by trial de novo the judge found that the offence
was one of strict liability and he convicted. The Divisional Court set aside the charge
as duplicitous and also held that it required mens rea with respect to causing or
permitting the discharge. The Court of Appeal, while rejecting the ground of
duplicity as a basis to quash, as there had been no challenge to the information at
trial, agreed that mens rea was required and ordered a new trial.

DECISION: The appeal and cross-appeal should be dismissed. There should be a

new trial to determine whether the City was without fault.

REASONING – DICKSON J:
  Regarding mens rea the distinction between the true criminal offence and the
public welfare offence is of prime importance.
 Where the offence is criminal mens rea must be established and mere
negligence is excluded from the concept of the mental element required for
conviction.
 In sharp contrast "absolute liability" entails conviction on mere proof of
the prohibited act without any relevant mental element.
 The correct approach in public welfare offences is to relieve the Crown
of the burden of proving mens rea, having regard to Pierce Fisheries,
[1971] S.C.R. 5, and to the virtual impossibility in most regulatory cases of
proving wrongful intention, and also, in rejecting absolute liability,
admitting the defence of reasonable care. This leaves it open to the
defendant to prove that all due care has been taken. Thus while the
prosecution must prove beyond reasonable doubt that the defendant
committed the prohibited act, the defendant need only establish on the
balance of probabilities his defence of reasonable care.

Is the default of regulatory offences.

They are not fully governed by the principles of criminal law

Why you might want to use absolute liability:

Pro: There for the public good, like food safety and LCBO. Requires a high standard
of care – In society’s interest to take a high standard of care, like not polluting creeks
– There should be no fault – you pollute, you are guilty – the action makes you guilty.

Con: This could work against you though – if you aren’t even allowed to show how
you tried to take care, then why bother at all. Doesn’t actually create incentives to go
higher standard of care. Maybe it’s cheaper just to pollute and pay the fines?

Pro: If everything goes to court them that’s hard on the courts administratively.

Pro: Less social stigma attached, less serious to be unjustly convicted of speeding
than of murder.

DICKSON prefers the reasons against:

It’s always important to be able to fight for your rights in court.
Stigma is still attached if you are tied up in courts fighting for your rights.

Absolute Liability punishes the morally innocent!

But he creates a third way to look at this – the halfway house of offences.

STRICT LIABILITY: Accused must prove that they were not negligent and took
reasonable care.
the Crown has to prove the act – the polluting – but then the accused has to show
due diligence, due care – show that they did everything they could to make sure the
company didn’t pollute. (This is different because the accused can have a say to
prove that they are not criminally responsibility). Accused must prove that they
were not negligent and took reasonable care.
This is now the default rule for regulatory offences. Legislation can change it with
language – there would need to be very precise language to take it into absolute
liability or require mens rea.

This pollution is regulatory (provincial) offenses and so the default is Strict Liability.
New trial ordered.

3 categories of offences are therefore now recognized:

1) offences in which mens rea must be established,
2) offences of "strict liability" in which mens rea need not be established but
where the defence of reasonable belief in a mistaken set of facts or the defence
of reasonable care is available, and
3) offences of "absolute liability" where it is not open to the accused to
exculpate himself by showing that he was free of fault.
 Offences which are criminal are in the first category. Public welfare
offences are prima facie in the second category. Absolute liability
offences would arise where the legislature has made it clear that guilt
would follow on mere proof of the proscribed act.

R v Wholesale Travel (1991) Test for criminal/regulatory

Reverse burden associated with strict liability is constitutionally acceptable

FACTS Misleading advertising. Severe penalties. Regulatory or criminal.

37.3 ... (2) No person shall be convicted of an offence under section 36 or 36.1, if he
establishes that1,… (b) he took reasonable precautions and exercised due diligence
to prevent the occurrence of such error;”

DECISION: appeal by Wholesale dismissed.

However, this is not to say that if the same provisions were enacted so as to
apply exclusively to corporations, a corporation would be entitled to raise the
Charter arguments which have been raised in the case at bar.

REASONING
How to distinguish – this was a federal offence (if it was provincial then you would
not have to test)
CORY – Malum in se or Malum prohibit?
Regulatory is about selling meat and getting driving licenses – we don’t think of
these as inherently wrong, criminal.
Reg. offences – shift in emphasis – not about punishing moral fault, in these it’s
about protecting the public interest. Regulation is about protecting against future
harm, criminal is looking back at an act that was done.
Crimes are more morally culpable –
1
Legislative way of saying “strict liability”.
Imprisonment can be a factor to show a criminal offence.

Court: Notes that regulatory offences are important provincially and federally – how
they induce us to live up to certain standards. We are regulated from cradle to
grave: Doctors to morticians. Regulation seriousness based on how big the risk is –
Air Traffic is super important and highly regulated.

The competition act – misleading advertising is a regulatory offence.

p. 376 Was taken out of the Code (not determinative but a good indication)
Conviction of misleading ads stigma is not that high

Licensing – you can choose to take part in that industry and opting into those rules.
If you get a drivers license you have to opt-in to the rules of the road.

Vulnerability – Regulations help protect the vulnerable.

*** there are 2 questions:

Default strict liability at common law in regulatory and criminal

Important NOTE: what you take from Wholesale Travel is that the reverse burden
associated with strict liability is constitutionally acceptable

Reference re Section 94(2) of the B.C. Motor Vehicle Act

[1985] 2 S.C.R. 486

This case shows how Charter rights can be more important than regulatory rules.

Page 388
FACTS - The B.C. Motor Vehicle Act provided for minimum periods of imprisonment
for the offence of driving on a highway or industrial road without a valid driver's
license or with a license under suspension. Section 94(2) of the Act, moreover,
provided that this offence was one of absolute liability in which guilt was
established by the proof of driving, whether or not the driver knew of the
prohibition or suspension. The Court of Appeal, on a reference by the provincial
government, found s. 94(2) to be of no force or effect as it was inconsistent with s. 7
of the Canadian Charter of Rights and Freedoms: "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." That decision was appealed to this
Court.

DECISION: appeal dismissed.

REASONING Per Dickson C.J. and Beetz, Chouinard, Lamer and Le Dain JJ.:
  A law with the potential of convicting a person who really has done nothing
wrong offends the principles of fundamental justice and violates a person's
right to liberty under s. 7 of the Charter if imprisonment is available as a
penalty.
 The analysis of s. 7 was limited to determining the scope of the words
"principles of fundamental justice". That phrase is not a protected right but a
qualifier to the protected right not to be deprived of "life, liberty and security
of the person"; its function is to set the parameters of that right.
Interpretation of the term must be with reference to the protected rights but
not so as to frustrate or stultify them.
 An interpretation equating "fundamental justice" with "natural justice"
would not only be wrong, in that it would strip the protected interests of
most of their content, but also would be inconsistent with the affirmative
purposive expression of those rights. Sections 8 to 14 address specific
deprivations of the "right" to life, liberty and security of the person in breach
of the principles of fundamental justice, and as such, violations of s. 7. Legal
rights.
 The principles of fundamental justice are to be found in the basic tenets and
principles not only of our judicial process but also of the other components of
our legal system. These principles are not limited to procedural guarantees,
although many are of that nature.
 To cast the interpretation of s. 7 in terms of the comments made at the Joint
Committee Proceedings would freeze the rights, values and freedoms
expressed in the Charter as of the moment of adoption and deny it growth
and adjustment over time. Living Tree.
 Absolute liability does not per se violate s. 7 of the Charter. An absolute
liability offence violates s. 7 only if and to the extent that it has the potential
to deprive life, liberty or the security of the person.
 Generally, no imprisonment may be imposed for an absolute liability offence
and an offence punishable by imprisonment cannot be an absolute liability
offence. Public interest cannot be a factor in determining if absolute liability
offends the principles of fundamental justice but only as a justification under
s. 1.
 Administrative expediency, invoked as a justification for sacrificing s. 7
rights, should only succeed in cases arising out of exceptional conditions such
as war, natural disasters or epidemics.

Very basic fundamental right - Innocents should not be punished (cites Beaver)

So, if you conclude that the offense is not a true crime, a welfare and public interest,
and the statute is not explicit as to mens rea, then strict liability. But if explicitly
imposes absolute liability it is okay as long as there is not risk of loss of liberty
through prison or probation, it is unconstitutional.

For a regulatory offense any form of mens rea from top of subjective to down to
absolute liability will do.
  Sections 7 and 11(d) of the Charter Per Lamer C.J. and Sopinka J.:
The offence of false/misleading advertising is punishable by imprisonment.
The offence therefore must not be one of absolute liability and must command
at least a fault requirement of negligence, in that at least a defence of due
diligence must always be open to an accused.
 The issue here centred on the fault requirement constitutionally
required where an accused faces possible imprisonment.
 It is the fact that the state has resorted to the restriction of liberty
through imprisonment for enforcement purposes which is
determinative of the principles of fundamental justice.

 Per McLachlin J.:

Combined with the sanction of imprisonment, the application of this onus of
proof on the accused violates s. 11 (d) of the Charter.

3. Constitutional constraints;
If anyone is to be deprived of their liberty, then at least you need some level of fault
or else it will violate Charter provisions in particular section 7.

IMP: The court in the Reference re Section 94(2) of the B.C. Motor Vehicle Act says
section 7 on the fundamental principles of justice is also substantive. That section 7
is only a parent to sections 8-14.

According to the court, section 7 constitutionalizes the Sault Ste. Marie

requirement of fault for convicting anyone only based on some level of mental fault.

“A law that has the potential to convict a person who had not really done anything
wrong offends the principles of fundamental justice and, if imprisonment is
available as a penalty, such a law then violates a person’s right to liberty under s. 7”
(loss of liberty includes both imprisonment and probation).

ANY OFFENSE THAT CARRIES IMPRISONMENT THE MIMUN HAS TO BE STRICT

LIABILTY – YOU CAN’T HAVE ABSOLUTE LIABILTY BECAUSE OF RISKING
LIBERTY TO AN INNOCENT PERSON.

The constitution holds us to basic norms of fairness – punishment shouldn’t be

higher than how small the actual offence was.

This area of law feels abstract.

How do they look at due diligence?

Waiting for the reminder to come in the mail to renew car registration is not due
diligence.
CanCoil thermal – machine cuts sheet metal (giant paper-cutter for sheet metal) it
was dangerous so it had a hand-guard on it.
Workers safety – legislation requires the hand guard to be on the machine
That company took it off the machine – to make clean up easier (and safer?) – safety
inspector came through and they showed him the hand guard was off and the
inspector said no problem. Did they do due diligence?

“Taking reasonable care to meet the standard” The Safety Act required them to have
that hand guard on.

Regulatory Offences
Express fault requirements = Crown must prove act & fault –
Strict Liability = Crown proves act – accused must prove due diligence
Absolute Liability = Crown proves act

R v Beauchamp (1953) - Test for careless driving fault requirement

p. 412 Express fault requirement
No reverse onus
Accused has to prove negligence

Bus backed up and crumpled a car. He was charged with careless driving. Express
fault in the language “being careless”
Justice MacKay – fault requires breach of standard of care – would a reasonable
driver have done the same thing?
Fault requirement for careless driving.
The driving has to fall below the standard AND deserve punishment – not every
error of driving will result in careless driving.
CA allowed appeal, driver not deserving of punishment.

NOTE THAT THIS IS THE TEST FOR CARELESS DRIVING FAULT REQUIREMENT

MURDER: Fault for Murder

Section 222 of the Code
Homicide is defined as causing a death to a human – it can be non-culpable – that is
not an offense.
Culpable = Murder & manslaughter

Manslaughter is the default rule – anyone charged with murder can argue for
manslaughter
Includes causing death by criminal negligence

MURDER = requires a higher level of fault than manslaughter

Charged with second degree murder – DO not talk about first degree, talk about
manslaughter

Code: Sections 229 and 230 Section 229 (a) is VERY IMPORTANT
Murder

229. Culpable homicide is murder

 (a) where the person who causes the death of a human being

o (i) means to cause his death, or

o (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) where a person, meaning to cause death to a human being or

meaning to cause him bodily harm that he knows is likely to cause his
death, and being reckless whether death ensues or not, by accident or
mistake causes death to another human being, notwithstanding that he
does not mean to cause death or bodily harm to that human being; or

 (c) where a person, for an unlawful object, does anything that he knows

or ought to know is likely to cause death, and thereby causes death to a
human being, notwithstanding that he desires to effect his object without
causing death or bodily harm to any human being.

2 FAULT ELEMENTS: MEANING TO CAUSE DEATH OR BODILY HARM THAT

COULD CAUSE DEATH
You don’t have to want to kill them –

Example – I’m in a drag race and I’m winning and a guy runs into the street but
I don’t slow down, I don’t want this person to die, but by not slowing down I
knew it could happen.

Simpson v R (1981) – Subjective Fault is required for murder

p. 414
229. Culpable homicide is murder
 (a) where the person who causes the death of a human being
o (i) means to cause his death, or
o (ii) means to cause him bodily harm that he knows is likely to cause his death, and is
reckless whether death ensues or not;
Trial judge makes a mistake in jury instructions –
Rule:
• Saying “ought to have known” changes murder from subjective intent to
objective intend
• Ought to connotes due care
• Subjective, not objective, mens rea is required for murder

FAULT ELEMENT OF MURDER IS SUBJECTIVE

Subjective knowledge is required for murder
What the accused ought to have known can be evidence of subjective state of mind.

R v Edelenbos (2004) - Jury can define “likely” for themselves

• Accused was charged with first degree murder
• He admitted that he had gone to the victim’s home and sexually assaulted
and strangled her
• Claimed that he only strangled her to stop her from screaming and did not
intend to kill her
• Judge gave the jury an explicit definition of the word “likely” in relation to the
intention requirement of murder
• Did the judge err in his charge to the jury?
• Jury can define likely for themselves, not necessary to define it explicitly
• Likely understood in ordinary sense
• The judge’s definition of “likely”, while unnecessary, was not sufficient cause
for a new trial

Constructive Murder: ss 229(c) and 230

- What in the eyes of the law amounts to murder, even though its not the
ordinary form of murder
- Typical situation for constructive murder is when, for example, 4 people job a
bank and one of the 4 shoots and kills someone in the process of the robbery. All 4
will be charged with murder because they engaged in the act together.
- Constructive murder (s.230) has been held to be unconstitutional in Canada;
it is still in the code but cannot be applied
- Why? Constitutional minimum fault requirements for murder

Constructive murder – be sure to apply the factors that apply to your issue
Because murder penalty so high has to have subjective issue of causing death.

Vaillancourt v R (1987) - Death must at least be objectively foreseeable – under

section 7 of the charter
p. 421 Vaillancourt was convicted of second-degree murder resulting from a
robbery of a pool hall. He had a knife and thought that his friend also had a knife
when in fact his friend had a gun. He explicitly told his friend before the event that
he did not want to have guns involved. During the robbery, his partner fired a shot
and someone was killed.

Lamer, writing for the majority, clearly decides that this section is contrary to
the Charter as it establishes an absolute criminal liability. He states that it is a
principle of fundamental justice that there must be at least a minimal mental state
requirement before criminal liability can be imposed. A failure to require this is
contrary to s.7. He goes on to say in obiter that all crimes of murder require a
subjective fault element to be proven because of the limits on freedom that their
punishments impose.

p. 429 stigma, mens rea – conviction requires proof of dishonesty.

Harshest penalty in our law
Murder requires subjective mens rea (this is obiter)
Section 230 (d) – death does not have to be foreseeable

Code: Murder in commission of offences s.230

230. Culpable homicide is murder where a person causes the death of a human being while
committing or attempting to commit high treason or treason or an offence mentioned in section 52
(sabotage), 75 (piratical acts), 76 (hijacking an aircraft), 144 or subsection 145(1) or sections 146 to
148 (escape or rescue from prison or lawful custody), section 270 (assaulting a peace officer), section
271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily
harm), 273 (aggravated sexual assault), 279 (kidnapping and forcible confinement), 279.1 (hostage
taking), 343 (robbery), 348 (breaking and entering) or 433 or 434 (arson), whether or not the
person means to cause death to any human being and whether or not he knows that death is likely to
be caused to any human being, if
 (a) he means to cause bodily harm for the purpose of
o (i) facilitating the commission of the offence, or
o (ii) facilitating his flight after committing or attempting to commit the offence,
and the death ensues from the bodily harm;
 (b) he administers a stupefying or overpowering thing for a purpose mentioned in
paragraph (a), and the death ensues therefrom; or
 (c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in
paragraph (a), and the death ensues therefrom.
 (d) [Repealed, 1991, c. 4, s. 1] – this is about this case

AT LEAST DEATH MUST BE OBJECTIVELY FORESEEABLE – UNDER SECTION 7 OF

THE CHARTER

All crimes with significant stigma attached, such as culpable homicide and
constructive murder, require proof of the mens rea element of objective foresight of
death.

Section 7 violation – Charter minimum is created here.

R v Martineau [1990] – Lamer: all murders should require subjective intent

p. 431 Martineau and a friend were out with weapons (a pellet gun and a rifle), and
they knew that they were going to commit a crime. Martineau thought that they
were only going to commit a "B & E". They broke into a trailer, robbed the occupants
at which time Martineau's accomplice shot and killed the husband and wife living
there.
Fault for murder – section 229
Martineau – is about constitution – Code is clear about fault for murder

SCC – need to keep a balance between morally blameworthiness before we find

them for murder

Code: Section 230 (a) he means to cause bodily harm for the purpose of
o (i) facilitating the commission of the offence, or
o (ii) facilitating his flight after committing or attempting to commit the offence,

L'Heureux-Dubé, writing a lone dissenting opinion:

She believes that there was in fact objective foresight in this case, particularly with
the second killing, and therefore that the conviction should be reinstated. She also
states that policy considerations in the legislation indicates that crimes such as
those listed in s. 230 should be considered murder as a deterrent. She thinks that
requiring only objective foresight is not contrary to the principles of fundamental
justice.
She was the great dissenter!
She agrees that there should be a Charter requirement for murder – foreseeable,
and she says the language is all in there.
Policy – p 437 – we want to deter these crimes, and these crimes are crimes where a
lot of people get killed.
She thinks stigma is over-emphasised – she says it’s inapplicable.
You should be called a murderer if you kill someone while doing a very bad crime.
They are stigma-worthy.
She thinks the SCC is going too far – it’s not legitimate to make this ruling just
because Lamar thinks that’s how murder should be judged.

We are arguing about semantics – we are arguing about calling something murder –
we should not argue about labels – it’s a legal concept – parliament decides it – then
if the person does this thing then they have done murder. Charter violations should
not flow from applications of a label. P. 442

It would not cover accidental deaths – Vaillancourt was appropriate but this is not.

Sopinka agrees with Lamer that s.230(a) should be struck down as contrary to

the Charter. However, he does not agree that all instances of murder must require
subjective intent to be proven in order to obtain a conviction, as the scope of this
case is not wide enough to justify such a far-reaching policy decision (leaning on the
ideas of judicial restraint).

Code: Culpable Homicide is Murder: 229(c)

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to
cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his
object without causing death or bodily harm to any human being.
“ought to know” is unconstitutional – maybe this part of the Code s/b read without
this – “READING DOWN”

R v Shand (2012) – 6 part test – unlawful object murder

p. 443 First you have to figure out if you have a murder. Section 229(a)
Then you have to figure out if it’s first degree section 231
Is section 229 (c) unconstitutional under s 7 of the Charter?
Facts:  Defendants went to drug dealer’s home to rob marijuana
 They saw a woman with a bad of marijuana and followed
her into the basement of a house where there were many
people
 The accused pulled out a gun and it went off and shot a
man
Issue(s):  Was the gun should deliberate? Even if the actual shot was
accidental, but other parts of s.229(c) are met, can this
qualify as murder? Is s.229(c) constitutional?
Rule:  S.229(c) “ought to know” is unconstitutional
 S.229(c) has been read down to exclude the phrase “ought
to know”
 **The SCC has not ruled on the acceptability of reading
down this section, in the future the SCC may rule that even
with reading out “ought to know”, the section is still
unconstitutional**
 Subjective foresight of death is required
 Instead of causing bodily harm which is likely to cause
death, this section details “some other thing[s]” which are
enough to amount to murder
 6 part test to satisfy s.229(c)
1. Accused must pursue an unlawful object other than to
cause the death of the victim or bodily harm likely the
cause death
2. The unlawful object must be an indictable offence requiring
mens rea
3. In furtherance of the unlawful act, the accused must
intentionally commit a dangerous act
4. The dangerous act must be distinct from the unlawful
object, only in the sense that the unlawful object must be
something other than the likelihood of death, which is the
harm that is foreseen as a consequence of the dangerous
act
5. The dangerous act must be a specified act or a series of
closely related acts, that in fact results in death, though the
dangerous act need not itself constitute an offence
6. When the dangerous act is committed, the accused must
have subjective knowledge that death is likely to result
[likely means 50% plus 1]
Conclusion/Holding:  Still qualifies as murder as s.229(c)

REASONS:
Rouleau, writing for a unanimous court: A reading of the decision to render the
entire section unconstitutional would conflict with the pains Lamer CJ went to to
clarify that section. 229 c is still constitutional as long as we read down words ought
to know Foresight of death

FIRST DEGREE MURDER

Distinguishing First Degree Murder from Second Degree Murder
- 1st is more serious charge, based on aggravating factor, makes murder more serious than
average murder
- 1st versus 2nd degree matters for sentencing
- All murders requires imprisonment for life
- But 1st degree murder gets automatic parole ineligibility period for 25 year
- While 2nd degree caries 10-25 years automatic period
- What factors make a murder 1st degree murder? S. 231

First degree murder includes s. 231:

1. Planned and deliberate murder
2. Murder of specified victims (eg. police officer or prison guard)
3. Murder while committing specified offence (eg. while during sexual assault)

Second degree murder includes:

s. 231(7) all murder that is not 1st degree murder is 2nd degree murder (2nd degree is just a
default category, not a strict definition for this, simply when doesn’t fit as 1st degree)

Planned and deliberate murder s. 231(2): Most important of all first-degree murders
- note: s. 231(3) contract killings will always be considered planned and deliberate

Charging Stages in 1st degree murder

1. Start with Homicide s. 222
Using di mininus range in Smithers, we only get accused to manslaughter.

2. For murder, go to s. 229

This only satisfies second degree murder
Life sentence

3. For first degree murder, go to s. 231

Must satisfy planning and deliberation s. 231(2)
OR s. 231(3) contracting a murder;
OR s. 231(4) murder peace officer
OR while committing s. 231(5) subsections a (hijacking plane), b (sexual assault), c
(sexual assault with a weapon), d (aggravated sexual assault), e (forcible
confinement), f (hostage)
Life sentence (with parole only after 25 years)
231 (7) all murder that is not first degree is second degree murder
Punishment for all murder is life in prison, difference has to do with parole.
R v Smith (1979) Planned and deliberate murder
p. 450 Two guys kill their friend in Sask – question is first or second –

Traditional definition of first degree murder= PLANNED AND DELIBERATE

Facts:  Friends were partying in an abandoned farm house and
they began shooting up the place, breaking windows, and
destroying the place just for fun
 Accused and victim get in stand off, both pointing guns at
each other
 Accused shoots victim in the arm, victim starts screaming
and yells take me to the hospital
 Accused goes to car to think it over, reloads gun, calls
victim over and shoots victim several times until he is dead
 Smith was found guilty of first degree murder

Issue(s):  Was there enough planning and deliberation to make this

murder first degree?
Rule:  To be first degree murder, it has to be both planned
(arranged beforehand according to a scheme) and
deliberate
 First degree murder requires more than just that the killing
was intentional
 Sudden impulse doesn’t equal planning
Conclusion/Holding:  Second degree charge substituted for first degree charge

Prof: But doesn’t it seem like he is planning it right then and there at the farm?
He’s all like hang on, I’m trying to figure out my plan.

McLachlin CJC - language for Jury Instructions

P. 455 - McLachlin CJC in R v Banwait: language for Jury Instructions - Planned
murder is the result of a scheme or plan that has been previously designed. It is the
implementation of that plan. A murder committed on implulse is not a planned
murder. Deliberate means carefully thought out – the actor has deliberated on the
outcomes.

R v Nygaard and Schimmens (1978) - Planned and deliberate infliction of bodily

harm likely to cause death is 1st degree murder
Facts:  N and S went to victim’s apartment and beat him with a
bat; victim later died of skull fractures
 They wanted violent retribution, they had a plan and they
carried out this plan
 Both were convicted of first degree murder
 Appealed arguing the judge erred in instructing the jury
that a verdict of first degree murder could be based on a
combination of s229(a)(ii) and 231(2)
Issue(s):  Can someone commit a planned and deliberate murder if
they never intended to kill?
Rule:  Planning and deliberating justifies the harsher sentence of
 first degree murder (s.231(2))
 Mens rea required for s.229(a)(ii) is “intending to cause
bodily harm of such a grave and serious nature that the
accused knew that it was likely to result in the death of the
victim”
 Combining the two= planned and deliberate infliction of
bodily harm knowing it would likely cause death, qualifies
as 1st degree murder
Conclusion/Holding:  Planned and deliberate causing of bodily harm likely
to cause death counts as 1st degree murder

CORY J: You can plan and deliberate to do something that is likely to result in death
- beating them with a bat knowing they might die is the same as going there to kill
them.

If section 229 (a)(ii) didn’t exist, people would probably still be guilty –
Fault – did they intend to cause death or did they intend to cause bodily harm
knowing it could cause death.

 ISSUE: CROWN WANTS TO ARGUE FIRST DEGREE MURDER ON 229(a)(ii) and you
combine it with 231(2)
SCC says yes you can combine them

R v Collins (1989) ON CA - Leading Case: Murder of specified victims

p. 458 Murder of specified victims (s 231(4)) – Rule: Must know that the victim
was in that group – in this case, Cop.
the onus is on the crown to prove that the accused knew the victim’s professional
identity and that he was acting in the course of his duty
GOODMAN thinks not knowing would be a Charter issue.
Murder while committing specified offences (s 231(5))
(look at Harbottle)

R v Arkell (1990)
Facts:  The accused was convicted of first degree murder pursuant
to s.231(5)
 It was the theory of the crown that the victim was killed
while the accused attempted to sexually assault her

Issue(s):  Does s.231(5) contravene s.7 of the Charter?

Rule:  “I can find no principle of fundamental justice that prevents
Parliament from classifying murders done while committing
certain underlying offences as more serious, and thereby
attaching more serious penalties to them”
 Crimes of illegal domination deserve more serious
punishment
 There must be, and is in this case, an appropriate
proportionality between the sentence and the moral
 blameworthiness of a crime
Conclusion/Holding:  S.231(5) is constitutional

An Offence may require SUBJECTIVE MENS REA if:

1. THE CHARTER REQUIRES THAT THE OFFENCES REQUIRES SUBJ MENS REA
– this list is very short – murder, attempted murder, war crimes, crimes
against humanity, theft (maybe? Check obiter in Valiaincourt) – FEW

2. Statute – requires subjective mens rea for theft (so don’t need it in the
Charter, since statute already requires it) – “wilfully” “intentionally” - MANY

3. Common Law presumption – criminal offences require subjective mens rea –

this is the default rule – MOST

Beaver, Sault Ste Marie,

If there is no express fault requirement then offences require subjective mens rea

3 TYPES OF FAULT FOR CRIMES

1. SUBJECTIVE MENS REA

2. OBJECTIVE NEGLIGENCE

3. OFFENCES BASED ON PREDICATE OFFENCES

CRIMES REQUIRING SUBJECTIVE AWARENESS

R. v H. (A.D.) (2013) - Abandoning a child in a Walmart bathroom because she
thought the baby was dead.
Page 461 – Criminal Code = Subjective (unless stated otherwise)

Code CRIMINAL NEGLIGENCE – SECTION 219 – MARKED & SUBSTANTIAL

– wanton or reckless disregard – CRIMINAL NEGLIGENCE CAUSING DEATH

CROMWELL J – presumption does not always determine the outcome of stat

interpretation
Morally innocent should not be convicted

MOLDAVER – AGREES BUT How can we measure if the accused saw the risk – this
doesn’t give enough protection to children –

WHAT ARE SOME SPECIFIC STATES OF MIND?

WHAT IS ACTUALLY SUBJECTIVE MENS REA?

There is a common law presumption that all criminal offences require subjective
mens rea, unless the statute explicitly states otherwise
o Charter requirement: subjective mens rea required in very serious criminal
crimes
o Where the Criminal Code definition of an offence include a clear mens rea
word such as “intentionally”, “willfully” or “knowingly”, Parliament has made
its choice of the subjective test clear
o Where there are no mens rea words, but also no indication that the crime
should be interpreted as one of objective negligence, it should be interpreted
in favour of subjective mens rea
o Bottom line: In the absence of an express legislative provision it should be
presumed that subjective mens rea is a requirement of criminal offences

Motive: Mens rea is different than motive

Mens rea Motive
Intention, the exercise of a free will to That which precedes and induces the
use particular means to produce a exercise of the will
particular result - Comes first
- Comes after - Not a requirement, but can be helpful to
- Often a requirement Crown’s case

MOTIVE
Not the same thing as intention – intention to cause death meets fault requirement
for murder. Not why they did it. COURT DOES NOT NEED TO PROVE MOTIVE.
But evidence is always admissible, maybe it can show intent and even the act – if X
has a motive for murder, it can show intenet –
Typically motive is not an element of the crime
A reason why the person chooses to act but parliament can require motive – like in
terrorism (ugh)

PURPOSE/DESIRE

R v Hibbert (1995) LAMER CJ – “Purpose” definition

Facts
S.21(1)(b)- criminal liability on anyone who “does or omits to do anything for the
purpose of aiding any person to commit it”
Issues
1) What is the definition of purpose for the sake of this provision?
Rules
Two possible meanings of purpose:
1. Purpose can indicate the ultimate ends an actor seeks to achieve, importing
 the idea of desire
2. Actors reason for doing what he did, importing the idea of intention
Conclusion
In s 21 (1) (b), purpose means intention, not desire
In some of the criminal code purpose could involve asking what the accused
desired, but not in this case

If they hold a gun to your head, you have a defence of duress. – Main meaning –
purpose as intention, might have other meanings in other parts of the Code

INTENTION OR KNOWLEDGE
Subjective mens rea
1. intention
2. knowledge
3. recklessness
4. wilfull blindness
Knowingly, wilfully, intentionally,

R v Buzzanga and Durocher (1979) - “Intention” definition

Memo sent out as a joke, satire showing how racist the other people are, but they get
charged with HATRED

Ontario CA
Was the HATE wilful ?
No it was not proven that the hate was wilful

Rules
- RULE- Willful promotion of hatred requires intention, and lower states of
mind will not be enough; does not include recklessness
Intention can mean 1 of 2 things
- 1) Actor’s conscious person wants to bring about a prohibited consequence
- 2) Actor acted despite knowing that the prohibited consequences are
substantially certain to follow

A person has intention when the consequence is the intended purpose

Actor knows consequences were going to be the results of that ACT

R v Theroux (1993) - Mens Rea, 2 steps for Fraud

Page 484
He knew it wasn’t insured but he thought for sure the project would go and they
wouldn’t lose money
MCLACHLIN J - Actus reus of Fraud
Offence of Fraud
Requires dishonest act and deprivation
Subjective awareness of undertaking the prohibited act

Minimum level of mens rea here is recklessness.

It’s no help that he hoped they wouldn’t lose the money
It doesn’t help that he thought he was morally blameworthy

2 Steps of mens rea of Fraud

1) Accused has knowledge of likelihood of the prohibited consequences
2) With such knowledge, accused commits acts which may bring about these
prohibited consequences, while being reckless as to whether or not they ensure

FAULT LADDER
Higher Order Mental States
(Not normally part of Mens Rea)
 Motive
 Desire
Subjective Mens Rea Standards
o Default for criminal offences
(Crown must only prove 1 to establish subjective mens rea)
 Knowledge/intention
 Recklessness
 Wilful blindness
Objective Fault Standards
o Mens rea imputed to the accused
 Negligence
 Strict Liability (reverse onus)
No Fault Requirement
 Absolute Liability

R v Boulanger (2006) - Breach of trust (not a marked departure)

p. 486 Public person abuses their office to their own benefit
Facts - Municiple employee asked insurance company to say his daughter was not at
fault in an accident (she wasn’t at fault)
Rules
- Breach of trust requires subjective mens rea: accused must have acted with
the intention to use his or her office for a purpose other than the public good
- Mere fact that the accused obtained a personal benefit does not mean that
they are guilty of breach of trust
Application
- Boulanger did receive a personal benefit, but the court is careful to say that
the mere fact that the accused obtained a personal benefit does not mean
that they are guilty of breach of trust, sometimes you can use office
professionally and gain a personal benefit without breaching trust, abusing
their office
- This was not a false report, it was an accurate report
- Boulanger did not act in a dishonest way
Conclusion
- Accused’s conduct only amount to an error in judgment, so was not charged
with breach of trust, mens rea was not established

Recklessness and Wilful Blindness

In general- recklessness and wilful blindness will satisfy subjective mens rea
requirement because they both require knowledge of risk by the accused

Recklessness
RULE: anyone who, aware that there is danger that his conduct could bring about
the result prohibited by the criminal law, nevertheless persists, despite the risk. In
other words, one who sees the risk and who takes the chance. (Sansregret)
o Is sometimes explicitly required by the code

Wilful blindness
RULE: The accused subjectively sees the need for further inquiries about the
existence of prohibited consequences or circumstances but deliberately fails to
make such inquiries because he or she does not want to know the truth.
(Sansregret) (Briscoe)
o Common law standard of mens rea
o Can be subbed in to replace a knowledge requirement (Briscoe)

In some cases Code expressly relies on recklessness as fault: Eg - Murder under 229(a)
(ii)

Sansregret v R (1985) - Authoritative definition of recklessness and willful

blindness
p. 490 - Not the same as negligence (that is objective)
Defined as the person who sees the risk and proceeds anyway.

Rules
Recklessness and Willful blindness are not the same as negligence, negligence is an
objective standard whereas these are subjective standards

RECKLESSNESS- found in the attitude of one whom, aware that there is danger that his
conduct could bring about the result prohibited by the criminal law, nevertheless
persists, despite the risk. It is, in other words, the conduct of one who sees the
risk and who takes the chance.

WILLFUL BLINDNESS- a person who has become aware of the need for some
inquiry but declines to make the inquiry because he does not wish to know the
truth. He would prefer to remain ignorant. Willful blindness imputes knowledge on
the accused (basically constructive knowledge)

WILFULL BLINDNESS
a person becomes aware of a need of inquiry, but declines to inquire because he/she
does not want to know the truth.

Example – can you take this bag back to Toronto for me? I don’t want to know what
is in the bag – I’m choosing to remain ignorant.
Don’t want to know because not having knowledge will stop me from being guilty of
a crime. Where knowledge is required. This isn’t true because of wilful blindness

It makes accused culpable because they are not asking = Tantamount to knowledge.
Avoiding confirmation of a fact that you suspect already, but don’t want to know in
case you get caught.

Involves an attempt to cheat the pursuit of justice

You can’t also hide someone after a crime – If your friend shows up with blood on
them and ask if they can stay over, you have to ask why the blood?

Deliberate suppression of suspicion – you could ask your friend if he killed someone,
and he could say no, it’s not JUST about not asking questions.

R v Briscoe (2010) - Further defined as deliberate ignorance

SCC uses this language
Willful blindness does not define the mens rea required for particular offences,
rather it can be substituted for actual knowledge whenever knowledge is a
requirement of the mens rea
 Imputes knowledge to an accused who suspicion is aroused to the point where
he or she sees the need for further inquiries, but deliberately chooses not to
make those inquiries
Distinct from recklessness in which knowledge of danger or risk is required

R v Lagace (2003) - What does this mean about making inquiries (test)?
If the accused remains suspicious after asking questions, they are still culpable.
Test becomes:
1. What was the nature of the inquiry?
2. Did the accused remained suspicious?
If yes, did the accuse refrain from further inquiry because they preferred not to
know

R v Blondin (1971) - What mens rea did the accused have to have in order to be
liable for the crime of importing hashish?
– at trial judge instructed that they had to show he knew he was importing Hash –
he said he knew it was something illegal, but didn’t know it was Hash.
– SCC It would be enough if the accused knew it was a narcotic to establish mens
rea
– Jury should have been told guilty = if he was reckless about what was in the
tank, or that he was wilfully blind, if he suspected it could be drugs.
– If he wilfully shut his eyes that is tantamount to knowing
– Mens rea is not established if ALL he knew is that it was illegal – Maybe he
thought it was something that they didn’t want to pay customs on – cigarettes,
rum, watches.
– Importing narcotics much more serious than not paying duty

– RATIO – ACCUSED CAN’T BE CONVICTED OF SMUGGLING DRUGS IF THEY

DON’T KNOW IT’S DRUGS –

CRIMES OF OBJECTIVE FAULT: Reasonable person ought to know

What matters is what a reasonable person would have done
Statutory markers and judicial interpretation
Ought to know
Reasonable
Careless

Points towards objective fault

“criminal negligence” is not a specific crime under 219 definition
Has to cause harm or death
Shows wanton disregard
Duty as imposed by law

Code: Criminal negligence s. 219, 220, 221

219. (1) Every one is criminally negligent who
o (a) in doing anything, or
o (b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
 Definition of “duty”
(2) For the purposes of this section, “duty” means a duty imposed by law.
Causing death by criminal negligence
220. Every person who by criminal negligence causes death to another
person is guilty of an indictable offence and liable
 (a) where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of imprisonment for
a term of four years; and
  (b) in any other case, to imprisonment for life.
Causing bodily harm by criminal negligence
221. Every one who by criminal negligence causes bodily harm to another
person is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years.

O’Grady v Sparling (1960)

p. 500 Careless driving contrary to prov. Legislation – argued that such legislation
was inoperative as being in relation to criminal law.

R v Tutton and Tutton (1989) – Objective/Subjective criminal negligence

p. 501 The Tuttons believed that their diabetic son had been cured by divine
intervention – faith healing - so they did not give him his insulin and he died. They
had attempted this in the past and their doctor had told them that if their son did
not receive his insulin then he would die. They honestly believed that he had been
cured by divine intervention. They were charged with manslaughter by criminal
negligence 
Issues
Were the Tuttons criminally negligent?
It criminal negligence an objective or subjective standard?
Rules
SCC splits about objective versus subjective
McIntyre (+1)
The objective test must be employed where criminal negligence is considered, for it
is the conduct of the accused, as opposed to his intension or mental state, which is
examined in this inquiry
TEST: conduct that reveals a marked and significant departure from the
standard which could be expected of a reasonably prudent person in the
circumstances

Lamer
Agrees with objective standard but must also take into account the personal
qualities of the accused (Age, intelligence, education etc.)
- This view is somewhere in the middle between objective and subjective
TEST: conduct that reveals a marked and significant departure from the
standard which could be expected of a reasonably prudent person, with
specific qualities taken into account, in the circumstances

Wilson (+2)
Subjective fault is the appropriate standard for criminal offences, should apply here.
The offence does not clearly require objective fault, and courts should err on the
side of caution for ambiguous offences.
TEST: wanton or reckless disregard signifies more than gross negligence in
the objective sense, it requires some knowledge of the danger or threat to
lives of others OR willful blindness
Conclusion
Tutton is deeply inconclusive. Don’t get a real answer about subjective versus
objective, new trial ordered.

Waite v R (1989) - Companion case to Tutton - Objective/Subjective criminal

negligence
p. 512 Drunk driver drove fast towards some kids and a hayride and hit 5 kids, and
killed 4 of them. At trail judge told jury to look at subjective understanding – for
criminal negligence as opposed to dangerous driving.

This is a good example of criminally negligent – good example of this

SCC WILSON – subjective mens rea is pretty minimal
“Minimal intent of awareness of prohibited risk or wilful blindness to the risk”

R v Anderson (1990) - dangerous driving requires a marked departure.

p 514 When the conduct is super risky it gets easier to see that a reasonable person
would have seen it – objective OR subjective
Impaired driving, ran a red light, killed someone

Criminal Negligence causing death

SOPINKA – When they make a marked departure from the norm we can assume
they saw the risk – but not here – being drunk and accidentally running a red light is
not the same as being drunk and turning around to speed past a bunch of kids.

Rule: In either case (objective or subjective) we have to look at whether conduct

constitutes a marked departure from a reasonable person
 The easier it is to conclude that reasonable person would have
perceived the risk, the easier it is to prove fault under either standard
A marked departure from the norm indicates subjective awareness of the
risk

MARKED DEPARTURE
R v Creighton (1993) – OBJECTIVE Test for Criminal Negligence
An experienced drug user, Over an 18 hour period – the deceased consented to the
accused to having cocaine injected into her – she overdosed - the other friend other
wanted to call the cops, but the accused bullied him into not calling and they cleaned the
place and ran. Creighton is charged with manslaughter – based on the unlawful act of
injected cocaine – the crime of drug trafficking – caused her death by means of an
unlawful act – unlawful act manslaughter (Jobidan)

Rules
OBJECTIVE Test for Criminal Negligence
1) Was the activity a marked and substantial departure from the standard of a
reasonable person?
2) Were there any individualized excusing conditions?
 Only comes into play when the accused is shown to lack the capacity to
appreciate the nature and quality or consequences of his or her acts

Objective fault is acceptable under the Charter because some grossly negligent
behaviour justifies criminal culpability

Personal factors in the objective test:

CJ Lamar – for unlawful act manslaughter the Crown has to prove that a reasonable
person would have foreseen the risk of death. The accused must be seen as any enhanced
foresight –
Example (Gossett – cop charged w/ careless use of a firearm, held to a higher standard
because he’s a cop and is trained on guns)
Hold Creighton to a higher standard here because he was an expert drug user OR is it
lowered because of impairment?
Would a reasonable person be aware of the risk of death? Then we have to ask why
wasn’t the accused aware of the risk? Did he not turn his mind to the risk? Or was he too
impaired to be able to turn his mind to it? A human frailty?
It would be Unjust to hold someone responsible if they were incapable of seeing the
death.
We need to construct a reasonable person who reflects the accused.
Look at context, do not include self-induced intoxication, it has to do with the persons
level of control – we have to only look at the “frailties” that the accused can control.

Test is objective but takes into account the accused personal factors that impair judgment
of the reasonable person.

McLachlin J: MAJORITY JUDGEMENT IN THIS CASE

(Crimes of negligence = objective fault crimes, not the same as Criminal Negligence
which is a type of objective fault s 219 CN causing death, causing bodily harm)
– This should be about holding people to a minimum standard – by making it SO
personal it is now becoming a subjective test
– This is a wide application of the marked departure test
– Negligence must constitute a MARKED departure
– All objective fault crimes require a marked departure from the standard of the
reasonable person. (p. 524)
– How can the accused personal characteristics come into criminal fault?
Page 525 - People who do something risky have to be held to a minimum standard of
care – gun clubs –
Exceptions: have to be careful not to punish the morally innocent – they have to be
capable of knowing what they are doing.

Page 526 – key phrasing in this case

R v Beatty (2008) – Dangerous driving= modified objective test – Gross
negligence
Page 528
Accused driving a pick up Truck and for no apparent reason jumped across the lanes and
killed 3 people – no mechanical problems, no intoxication - he is charged with Dangerous
Driving causing death –

Issue: How does the objective test apply?

Fault element for dangerous driving Beatty

Rules
Dangerous driving is an objective fault crime, but the civil objective standard is
modified in 2 ways (Hundal):
1) Actus reus of dangerous driving requires marked departure from standard
of care of a reasonable person, not just a departure
 There is a continuum of dangerous driving ranging from civil to
criminal liability
2) Allows for exculpatory defences
Accused is able to offer explanation to absolve liability

If there was real mens rea, intentional then it would be gross negligence -

R v F (J.) (2008) – Criminal Negligence - CURRENT STANDARD - resolves Tutton –

3 standards of objective fault crimes.
Page 541 – lays out objective fault requirements and marked departure, marked and
substantial departure –criminal negligence under s 219

Marked and substantial departure cite to JF

There are 3 standards of objective fault crimes - NEGLIGENCE

1) Simple Negligence - due diligence with the onus reversed for regulatory offences
(Sault Ste Marie)
2) Gross Negligence - marked departure from the objective norm, for objective
fault offences (Beatty)
3) Beyond Gross Negligence - marked and substantial departure for offences based
on s. 219 (F(J)) – GO TO SECTION 219

CRIMES BASED ON PREDICATE OFFENCES – unlawful act manslaughter

Main offence and a predicate offence
Main offence needs other offence to be proven
Guilt for the predicate offence is required element for the main offence.

UNLAWFUL ACT MANSLAUGHTER

Death by means of an unlawful act – predicate offence is the unlawful act

R v Creighton 1993 SCC Unlawful act manslaughter

The law does not lightly brand a person as a criminal
Facts
- Over an 18 hour, the accused, a companion, and the accused shared a large
quantity of alcohol and cocaine at the deceased’s house
- The accused was very involved in the drug scene (knew a lot about drugs)
- The deceased overdosed
- Accused thought about taker her to the hospital, but instead pressured the friend
into not calling an ambulance
- Accused cleaned apartment of fingerprints and left apartment
- Creighton charged with unlawful act manslaughter
unlawful act= trafficking drugs, injecting drugs into her arm
Issues
1) What is the fault requirement for unlawful act manslaughter? (Foresight of harm?
Or of death?)
Rules
ACTUS REUS:
1) Accused committed an unlawful act
2) Accused’s act was a substantial cause of death of victim

MENS REA:
Two part fault requirement:
1) Fault requirement of the predicate offense which is more than absolute liability
and must be constitutionally valid
2) Addition fault requirement for manslaughter specifically- objective
foreseeability of risk of causing bodily harm which is not trivial or transitory
as a result of the dangerous act

R v Creighton (1994)
Does the objective test for unlawful act manslaughter require reasonable
ISSUE
foresight of death or only reasonable foresight of bodily harm?
PRINCIPLE  Death is a serious consequence and therefore the mens rea that
the common law has adopted—foreseeability of harm—is entirely
appropriate to the stigma associated with the offence of
manslaughter.
 The thin-skull rule is a useful principle in helping us recognize
that the risk of bodily harm is not appreciably different from the
 risk of death because the wrong-doer must take his victim as he
finds him.
 There is no authority for the proposition that the mens rea of an
offence must always attach to the precise consequence which is
prohibited as a matter of constitutional necessity.

McLachlin – Majority

Code. Homicide Section 222(4)

Homicide
 222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the
death of a human being.
 Kinds of homicide
(2) Homicide is culpable or not culpable.
 Non culpable homicide
(3) Homicide that is not culpable is not an offence.
 Culpable homicide
(4) Culpable homicide is murder or manslaughter or infanticide.
 Idem
(5) A person commits culpable homicide when he causes the death of a human being,
o (a) by means of an unlawful act;
o (b) by criminal negligence;
o (c) by causing that human being, by threats or fear of violence or by deception, to do
anything that causes his death; or
o (d) by wilfully frightening that human being, in the case of a child or sick person.
 Exception
(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this
Act by reason only that he causes the death of a human being by procuring, by false evidence, the
conviction and death of that human being by sentence of the law.

You have to be guilty of the predicate offence

You have to have the fault element for the P offence
3 requirements for that

1. dangerous act
2. can’t be abso. Liability act
3. has to be constitutionally valid

page 554 – the actual consequence does not have to be foreseeable, it has to be non-
trivial bodily harm is foreseeable.

Result: if the person has caused death by means of an unlawful act, and they aren’t
guilty of murder, in most cases it is manslaughter.

Constitutional Question – Lamar thinks Death has to be foreseeable –

1. Manslaughter is not that grave that it needs objective foreseeability.

It is implicit in the charge of manslaughter that the person did not intend to kill, it’s
in contracts to murder. So yes stigma, but you are being marked as “not a murderer”
– you can’t just convict someone of aggravated assault if someone has died. This
about unintentional harms. Punishments can be very flexible.

2. Symmetry – there does not have to be perfect symmetry between fault and act
and it is not required. Anything that can harm someone in a non-trivial way could
result in death (thin skull rule)

Page 559 – It has to be about Justice being satisfied – gravity and blameworthiness
of an offence must be commensurate with the moral fault engaged by that offence.

R v Krushel 2000 Ont CA Not a predicate offence case, but upholds no need for
symmetry
Facts - Accused convicted of Criminal harassment under s. 264 ‘Stalking’ provision
Act element: engage in prohibited conduct, victim must be harassed and reasonably
fear
Fault element: intentionally or recklessly engage in the stalking behaviour and
have some subjective mens rea that the victim as been harassed (but no requirement
re: victim’s fear)
Rules
There does not have to be symmetry between the act and mental elements of an
offence

All that’s required is a sufficiently blameworthy element in the actus reus to which
the mental requirement attaches

Godin - section 219 – undertaking, required when not doing it is a danger to life.

*Code - AGGRAVATED ASSAULT – s.268. SCC in Godin

Aggravated Assault now (per DOHERTY) REQUIRES proof of the mens rea required
for assault – applying force intentionally ALSO objective foresight of the risk of
wounding, maiming, disfiguring or endangering life. YOU HAVE TO HAVE
OBJECTIVE FORESIGHT OF BODILY HARM AND HAVE TO PROVE THE OFFENSE OF
ASSAULT -

Debate on Fault for Aggravated Assault and Assault Causing Bodily Harm
pg. 564
o Courts are currently in disarray over s. 268’s requirements (aggravated)
o Traditional view (prior to Creighton): necessary to prove intent to assault, and
then that the consequences listed under aggravated assault were caused. So it was
absolute liability with respect to the consequences of maiming and wounding (no
need to prove foreseeability)
Aggravated Assault
Godin 1993 NB CA ANGERS: AA requires intent to wound/main
o Aggravated differs from assault-bodily harm (strict liability for consequences) in
that it wounding/maiming in the course of assault was not defined in assault-
bodily harm AND it was not an offence which expressly caused certain
consequences, which aggravated does – requires intent to wound/main

Godin SCC 2014: LEAD/DISARRAY AA requires objective foresight of bodily

harm
o reversed the CA view re aggravated assault:
o cited DeSousa and Creighton without analysis and said fault element is objective
foresight of bodily harm is all that is required (not maiming etc)
o reference to bodily harm may have been a slip of tongue as Creighton
requires only foresight of RISK of bodily harm
o express fault in assault generally 265(1) does not say anything about
bodily harm, just intent for force/assault
o need not just intent to assault but intent to wound, main, disfigure or endanger
different from unlawful act causing bodily harm

L. (S.R.) 1992 Ont CA DOHERTY: AA requires objective foresight of

wounding/maiming
o applies DeSousa (objective foresight of bodily harm) to aggravated assault
o need objective foresight of wounding/maiming

RAPE AND SEXUAL ASSAULT

We no longer have a crime called rape – sexual assault covers it all

In the Code: Assault s. 265

 265. (1) A person commits an assault when
o (a) without the consent of another person, he applies force intentionally to that other
person, directly or indirectly;
o (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he
has, or causes that other person to believe on reasonable grounds that he has, present
ability to effect his purpose; or
o (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.
Application
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon,
threats to a third party or causing bodily harm and aggravated sexual assault.
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist
by reason of
o (a) the application of force to the complainant or to a person other than the complainant;
 o (b) threats or fear of the application of force to the complainant or to a person other than
the complainant;
o (c) fraud; or
o (d) the exercise of authority.
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the
subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the
jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence
relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of
reasonable grounds for that belief.

Code Sexual assault s.271

271. Everyone who commits a sexual assault is guilty of
 (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if
the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years
and to a minimum punishment of imprisonment for a term of one year; or
 (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not
more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a
term of not more than two years less a day and to a minimum punishment of imprisonment for a
term of six months.

Rape Laws in Context:

Rape was a gender issue – accused are adult women, victims are women or children
Rape myths – it’s uncommon, she was asking for it, etc

a) prior sexual history – This can become the focus of the trial – Movie: The Accused –
(the crimes get under reported because victims don’t trust the system to do punish them twice. It
appears to not be prevalent since it is under reported.)
This was relevant in terms of evidence – the notion was that it spoke to consent, and to whether she
was telling the truth – unchaste women were un trust worthy witnesses. Accused lawyer had
unrestricted right to ask victim about this -

b) doctrine of recent complaint – the assault had to be reported at first available moment and
spontaneously – absence of an early complaint was told to the jury as evidence of adverse
influence – This is not the case anymore – this doctrine has been abrogated. But – accused lawyers
can still ask when your reported the rape and to whom -

c) Corroboration – who else can back up your story?

Alan Young – When Titans Clash: The limits of Constitutional Adjudication

(page 580) Essay – trend for looking counselling records to use against the victim.
Neutral article –
Extension of the old idea that the victims are not to be believed
Also – much more commonly in these trials there is no other evidence – sometimes all
you have is the two sides of the story –
Issue of Fault Allegations –
The Crown has to prove the case – this is exceptionally difficult.

Definition of the Crime of Rape

(p 582) Until 1982 – Wife could not be raped. Had to be sexual intercourse.
Pappajohn v R (1980) – defence of mistake of fact, there must exist some
reasonable evidence, which would convey a sense of reality
Page 583 - She was the real estate agent selling the house, he was the client – they
went out for a boozy lunch – once they get back to the house, the stories diverge
completely. After 3 hours she ran out of the house naked and her hands were bound
– he claimed consent, she said not.

Jury convicted him at trial.

Goes to SCC: Should the judge have said that if he believed she consented then he
should be acquitted?
Judge was not wrong in instructions; there was no evidence of consent to talk about.
There has to be evidence to put to the jury.

Issue What is the required mens rea for rape?

Is actus reus a pertinent factor in this case?

Reasons McIntyre J, writing for the majority, first discussed the question of when a
defence should not be put to a jury. He held that a defence should be used when
there is "some evidence which would convey a sense of reality in the submission."
On the facts, he found that there was no evidence, other than the statement of the
accused, that if believed, would have allowed for the possibility of consent.
Accordingly, the lower court ruling was upheld.

Dickson J, concurred with legal but dissented on application to the facts - and stated
that the defence was derived from the mens rea requirement which is an
objective standard, and consequently the mistaken belief did not need to be
reasonable, it just needed to exist. Mistakes of Fact negating mens rea –

He says there was evidence here, her clothing was folded, there was no damage to
her her or her clothing -

Ed note – how can he talk about ambiguity in this situation – she ran from the house
screaming and bound.

Ratio For a defence of mistake of fact in consent to be available to the accused, there
must exist some reasonable evidence, which would convey a sense of reality.

Sansregret v R (1985) SCC - wilful blindness = knowledge

Page 596 Issue Is willful blindness relevant to a mistake of fact in consent in a sexual
assault charge?
Reasons McIntyre, writing for the majority, entered a conviction on the basis that even if
the accused was not subjectively aware that there was no consent, he was wilfully blind
to the lack of consent. The culpability of wilful blindness is the accused’s refusal to
inquire whether the complainant was consenting, when he was aware of the need for
some inquiry, but decided not to inquire because he did not want to know the truth.
Because the appellant was wilfully blind to the consent of the complainant, the defense of
mistake of fact cannot apply.
Ratio The defense of mistake of fact does not apply in a sexual assault case where the
accused was wilfully blind to the lack of consent.

Court discusses what mistaken belief requires – consent given because of threats or fear
(used to be in section 143)
He knew that she wasn’t consenting based on the first time.
Wilful blindness from Trial Judge
SCC says wilful blindness = knowledge
SCC relies on the trial judge’s use of wilful blindness and says that if he was wilfully
blind then he has to have known.

Editor of the book does not like SCC decision – Trial judge found fact at trial that the
attacker honestly thought there was consent – that it is inconsistent with wilful blindness

A. Manson, Annotation (1985)

Page 604: An annotation by A. Manson criticizes McIntyre’s decision pointing out that
the Supreme Court only has jurisdiction to hear issues of law. Since the trial judge found
as a matter of fact that the appellant held the honest belief that consent had been freely
given, a finding that the appellant was wilfully blind to whether consent had been given
involved a judgement on an issue of fact.
–
If there was belief of consent then he wouldn’t know to ask more to see if she was
consenting.

CRIMES OF SEXUAL ASSAULT

p. 606 - 1983 – changes to the law – Rape & indecent assault taken out of the code.
There too much emphasis on penetration and the sexual nature of the crime – the idea
was it to reflect the notion of rape as a crime of Violence – became Assault

New offences are gender neutral, no more spousal immunity –

Introduction of Rape Shield laws
Recent complaint and corroboration were abrogated

No definition in the code of sexual assault – CHASE is the leading case.

From the Code: Sexual assault s.271

271. Everyone who commits a sexual assault is guilty of
 (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if
the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years
and to a minimum punishment of imprisonment for a term of one year; or
 (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not
more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a
term of not more than two years less a day and to a minimum punishment of imprisonment for a
term of six months.
Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (1) Every person commits an offence who, in committing a sexual assault,
o (a) carries, uses or threatens to use a weapon or an imitation of a weapon;
o (b) threatens to cause bodily harm to a person other than the complainant;
o (c) causes bodily harm to the complainant; or
o (d) is a party to the offence with any other person.

Aggravated sexual assault

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds,
maims, disfigures or endangers the life of the complainant.

Aggravated sexual assault

(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
o (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or
if any firearm is used in the commission of the offence and the offence is committed for
the benefit of, at the direction of, or in association with, a criminal organization, to
imprisonment for life and to a minimum punishment of imprisonment for a term of
 (i) in the case of a first offence, five years, and
 (ii) in the case of a second or subsequent offence, seven years;
o (a.1) in any other case where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of imprisonment for a term of four
years; and
o (a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a
minimum punishment of imprisonment for a term of five years; and
o (b) in any other case, to imprisonment for life.

Meaning of “consent”
 273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of
sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual
activity in question.

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
o (a) the agreement is expressed by the words or conduct of a person other than the
complainant;
o (b) the complainant is incapable of consenting to the activity;
o (c) the accused induces the complainant to engage in the activity by abusing a position of
trust, power or authority;
o (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the
activity; or
o (e) the complainant, having consented to engage in sexual activity, expresses, by words
or conduct, a lack of agreement to continue to engage in the activity.

Actus Reus of Sexual Assault:

Complex: Generic definition of assault, specific definition of what constitutes
consent, Court seeing consent os SUBJECTIVE view of the victim, common law
restrictions that vitiate consent.

1/ Assault as per 265 of the Code

2/ Courts: sexual assault – circumstances viewed OBJECTIVELY as sexual
Intent/motive of the accused is to have sexual gratification (factor, not a
requirement)
Chase – courts will look at: where the touching happened, words & gestures, and other
circumstances around the conduct

R v Chase (1987) – covers all of sexual assault - still the leading case
FACTS - Respondent was convicted of sexual assault contrary to s. 246.1(1)(a) of the
(OLD) Criminal Code. He entered the home of the complainant, a fifteen year-old
girl, without invitation, seized her around the shoulders and arms and grabbed her
breasts. When she fought back, he said: "Come on dear, don't hit me, I know you want
it." She testified at trial that he tried to grab her "privates" but did not succeed. On appeal,
the Court of Appeal expressed the view that the modifier "sexual" in the new offence of
sexual assault should be taken to refer to parts of the body, particularly the genitalia.

Because there was no contact with the complainant's genitals, the conviction at trial was
set aside and a conviction for common assault substituted. Goes to the SCC

ISSUE - The only question arising in this appeal is that of the definition of the offence
of sexual assault.

DECISION: Appeal allowed. Sexual assault is an assault within any one of the
definitions of that concept of the Criminal Code which is committed in circumstances
of a sexual nature, such that the sexual integrity of the victim is violated.

REASONING
 The TEST to be applied in determining whether the impugned conduct has the
requisite sexual nature is an objective one: "Viewed in the light of all the
circumstances, is the sexual or carnal context of the assault visible to a
reasonable observer".
 The accused's intent or purpose as well as his motive, if such motive is sexual
gratification, may also be factors in considering whether the conduct is sexual.
Implicit in this view of sexual assault is the notion that the offence is one
requiring a general intent only.

Code: Section 265 – Assault

 265. (1) A person commits an assault when
o (a) without the consent of another person, he applies force intentionally to that other
person, directly or indirectly;
o (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he
has, or causes that other person to believe on reasonable grounds that he has, present
ability to effect his purpose; or
o (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.

The main definition of assault = intentional application of force without consent

The SCC says – how we differentiate assault and sexual assault?
Added sexual component – NB court of appeal is ridiculous and says touching breasts =
touching a man’s beard – they go for very literal meaning – sexual organs/genitals

Sexual assault is in circumstances that are sexual and an affront to the dignity of the
victim.

Court says this is an Objective Test if the assault is sexual in nature.

Factors do include the part of the body touched, the nature of the contact, words and
gestures of attacker. Intent of the actor, sexual gratification (not determinative but is
relevant).

Rules/Test Based upon Chase:

Actus reus:
1. Physically voluntary;
2. Un-consented to;
3. Touching;
4. Of a sexual nature.

Mens Rea:
1. Intent to touch;
2. Knowledge (or willful blindness) as to a lack of consent.

Following the general rule above, a mistake of fact would have to be honest but need not
be reasonable. This is precisely the result we saw in Pappajohn.

S 265(4) Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the
subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the
jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence
relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of
reasonable grounds for that belief.

p. 612 – Problem of parent disciplining child by grabbing his testicles to show it hurts –
Court decided this was a sexual assault even though it wasn’t the father’s intention –

R v Bulmer (1987) – sex worker case

p. 613 - Sex worker had one client but then more men showed up – she said it was
not consent they said it was after they haggled over the price.

“air of reality” test - mistaken belief need not be reasonable – the jury just has to
consider the reasonableness.
Lamar J – need to see something in the evidence, can’t just be the lawyer saying it, if
the accused testifies, that can count as evidence. Accused assertion should NOT be
enough.

After the case – note page 617 Osolin

Mere assertion by the accused won’t be enough

R v Davis (1999) – Leading Case “air of reality” mistaken consent

p. 618 Mistaken belief
“Air of reality” = complainant did not consent AND accused has to honestly believe
that she did.
The accused MERE assertion that she consented is NOT enough to raise an “air of
belief”
Sometimes the only 2 ways to read the facts are: This was a consensual event or this
was a case of sexual assault –
Evidence can from any evidentiary source
Most useful note – page 619 – There must be evidence of a situation of
ambiguity

Estrich article (1992)

p. 621 Difficult questions about how the only way to defend an accused is to make
the complainant believable. Should we be able to also look at accused previous
behaviour?

Consent - See Code - s273.1(1) – definition of consent for sexual assault

p. 649 You would not use this definition in other sections.
Sexual assault is touching without consent of a sexual nature:

Code Meaning of “consent”

 273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of
sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual
activity in question.

Where in the Code consent is vitiated – s265(3) and s273.1(2)

265(3) – applies to ALL assaults

Where no consent obtained – This ONLY applies to sexual assault

273.1 (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
o (a) the agreement is expressed by the words or conduct of a person other than the
complainant; (Morgan case seen in notes for Pappajohn)
o (b) the complainant is incapable of consenting to the activity; (unconscious, drunk)
o (c) the accused induces the complainant to engage in the activity by abusing a position of
trust, power or authority;
o (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the
activity; or (no means no)
 o (e) the complainant, having consented to engage in sexual activity, expresses, by words
or conduct, a lack of agreement to continue to engage in the activity. Withdrawal of
consent.

Subsection (2) not limiting ( = can be other circumstances that are not on this list)
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is
obtained.

MISTAKEN BELIEF IN CONSENT (MBIC)

s265(4) – ALL assaults

s273.2 – Sexual assaults –
can not claim this if
(a) you are drunk or stoned or if reckless and wilful blindness, or
(b) accused did not take reasonable steps

R v Ewanchuk (1999) – Touching, Of a sexual nature – (Determined objectively),

and Absence of consent – Leading Case MBIC.
SILENCE IS NOT CONSENT
MBIC IS A MENS REA DEFENCE
Sexual touching, complainant said no each time, the accused would stop, then would
try it again – this is a teen on a job interview – she thinks she is locked in the trailer
– she is afraid and gives him the massage and then he massages her, touches her
breast, then she says no, he stops, goes to her feet, and then goes up her legs, then
there is pelvic grinding. She goes home and calls the police.
Defense at trial says that is not a sexual assault – acquitted in the view that this was
not a sexual assault. Trial judge found that she was trying not so show she was
afraid so we can’t look at her subjective feelings and consent is implied, based on
her actions. And then this was upheld at Court of Appeal.

So then it goes to SCC and they impose a conviction!

Major J for the majority

1. Touching
2. Of a sexual nature - Determined objectively
3. Absence of consent

(In an exam start by looking at the code)

Mens Rea – sexual assault is a crime in the absence of victim’s consent.

Crime of GENERAL INTENT – Crown need only to prove the accused intended to
touch the person.
Page 657 Here the SCC looks at her internal subjective state of mind – either she
consented or she did not (at trial it looks like they thought there was a third option)

Consent vitiated by fear as exists under the Code – but don’t need this here because
at trial facts showed she did not give consent.

If you are looking at “under fear” this is also subjective – if the person is afraid and
doesn’t show it – consent is vitiated.

1. Intention to touch
2. Subjective mens rea regarding non-consent (knowledge/reckless/wilfully
blind)

MBIC is limited – common law limitations, the accused must believe that the
accused communicated consent.

There has to be a claim by the accused that consent was communicated – Can be
words or conduct p. 658 –
Decision – imposed a conviction

Justice L’Heureux-Dube – She concurs in the result – she also wants to take Court of
Appeal judge to Task - the trial judge didn’t take NO to mean NO – this relies on the
myth that women want to be persuaded – (see bottom of page 661)
She also attacks CA for inflammatory language – loose moral character, women
should fight there way out, mythical assumptions have got to go –

p. 664 - McLachlin agrees with Major and L’H-D.

Rules

1) Consent Requires Outward Communication

“In the context of mens rea [defence] consent means the complainant had
affirmatively communicated in words or conduct her agreement to engage in sexual
conduct with the accused”

2) There are 4 limitations on the defence of mistaken belief in consent

- Belief that silence=consent is not a defence
- Must be belief that consent was expressed
- Once complainant has said no accused is on notice of non consent if he proceeds
- No defence where accused did not take reasonable steps to ascertain consent
* Taken together these 4 limitations make it difficult to succeed with defence of
mistaken belief in consent
3) Fear vitiates consent (not applied here but discussed in obiter)
- All that matters is that the fear actually caused the complainant to submit, does not
have to be a reasonable fear
Actus Reus of S A:
1) Touching,
2) Of sexual nature
 According to objective standard (see Chase), doesn’t matter if subjectively
sexual to accused
3) Absence of consent
 What was subjectively in victim’s mind

Mens Rea of S A:
1) Intention to touch
2) Subjective understanding of non consent, or being reckless/wilfuly blind to non
consent
If valid, defence of mistaken belief in consent negates this requirement

*** Mistaken belief in consent – has to be a belief that consent was addressed and
communicated –
Once the complainant has said no that’s it.
CanNOT be a defense if reasonable steps were not taken.

Section 273.2 of the Code – where belief in consent not a defence

Not a defence that accused believed there was consent
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the
complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the
time, to ascertain that the complainant was consenting.

R v A (J.) (2011) - Couple experiments with choking – need ongoing conscious

consent
Page 674 - Couple experiments with choking, but while she is passed out partner
inserts dildo into her anus without her consent. Then she recanted –

SCC assumes that she did consent in advance (based on facts that landed with the
case) Was the consent legally valid?

Question is about if you can consent in advance to something to have happen to you
while you are unconscious. Is it possible to consent in advance to sexual touching
that takes place when you are unconscious?

SCC 6-3 restored the conviction of sexual assault

McLachlin – ongoing conscious consent is required.
Protect from exploitation and must be able to ask your partner to stop at anytime.

Ewanchuk has to be subjective consent – mens rea reckless, wilfully blind,

Have to look at whole framework

Defines consent: the conscious agreement of the complainant to engage in every

sexual act in a particular encounter. Para [31]

271.1(1)
Rules out any notion of broad advance consent

273.1(2)(b)
No consent if incapable of consenting

She says you must have an operating mind.

There’s a meaning of consent for the purposes of actus reus –
And also when we look at mens rea in mistaken belief – consent has to do with what
was expressed.
Code speaks to expression of consent when looking at mistaken belief

Code: Meaning of “consent” 273.1

 273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the
purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to
engage in the sexual activity in question.
 Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
o (a) the agreement is expressed by the words or conduct of a person other than the
complainant;
o (b) the complainant is incapable of consenting to the activity;
o (c) the accused induces the complainant to engage in the activity by abusing a
position of trust, power or authority;
o (d) the complainant expresses, by words or conduct, a lack of agreement to engage
in the activity; or
o (e) the complainant, having consented to engage in sexual activity, expresses, by
words or conduct, a lack of agreement to continue to engage in the activity.

(d) The accused can not say to have understood consent if she said NO
Consent has to be to each activity. Can’t consent to a suite of activities.
(e) The accused cannot rely on MB when it is expressly withdrawn.

Policy is that you always have to be able to revoke consent and you can’t do that if
you are unconscious.

Must be capable of consenting to each new act and capable to revoke at anytime –
Everyone agrees that bodily harm would vitiate consent but it wasn’t raised by the
Crown.

According to this ruling – if you are doing anything sexual to someone who is
unconscious you are performing sexual assault.

DISSENT – Fish, Binnie, LeBel

(page 681) Obviously you can’t consent when you are unconscious
BUT You CAN consent in advance. Voluntary agreement section says nothing about
timing, does not exclude advance consent

Policy arguments.

Majority: How can you put in the Code what advance consent would look like? There
would never be a way for a person to change their mind. Evidentiary problem, what
was agreed to? And then how do know what was done? If they were unconscious
then they can’t testify to it. It has to more important to protect against exploitation
and sexual freedom and autonomy.

Dissent: Floodgates argument, stay out of the bedroom, absurd results, sexual
autonomy.

Dufraimont: It would be equally absurd that a sleeping partner would not want a
kiss goodbye. We have to be worried about vulnerable people. Who do we make the
Criminal Law for? On balance is it better to protect those who need it the most?

MISTAKE
a) MISTAKE OF FACT
pp. 699-721 General Rule as per Pappajohn - see page 699

Mistake of Fact – Kundeus, Tolsen

Mistake of Law is not a defence – Mistake of Fact can be (I thought it was a bag of
basil, not pot) It negates Mens Rea – A mistake about that fact can negate the mens
rea – the legal effect depends on the mens rea required for that offence.

Subjective MR  any honest mistake can negate

Objective MR  a reasonable mistake

Strict liability  only a reasonable mistake and the onus is on the accused

Absolutely Liability  Mistake is not a defence

So if mistake of fact can’t be a defence then it makes it an absolute liability offence.
The extent to which mistake is a defence depends on the kind of offence at
 issue
Fault Element of Possibility of Requirement
Offence Defence?
Subjective Mens Yes Any honest mistake will negate mens rea
Rea Offences
Objective Fault Yes Mistake must be honest and reasonable
(negligence)
Offences
Regulatory Offences Yes Mistake must be honest and reasonable,
with Due Diligence onus is on accused to show that mistake
Defences was reasonable
Absolute Liability No Mistake of fact is never a defence
Offences
Assuming the facts were as D believed, D would be guilty of...
No offence A more serious offence A less serious offence
Mistake is definitely a Mistake is probably not a Mistake may not be a
defence (Beaver) defence (Ladue) defence (Kundeus)

Constitutional Concerns
 The Criminal Code expressly prohibits mistake of fact as a defence for some
offences
 When this happens, it essential turns the offence into an absolute liability
offence
 Absolute liability, where it can be combined with imprisonment, can give rise
to constitutional challenges

R v Hess; R v Nguyen (1990) underage sex, Charter challenge

Page 700 (refers to old law) Statutory Rape – 2 men charged (law was repealed –
new laws about sexual contact for children under 16)
They made a section 7 argument
By taking out the defence of mistake of fact “whether he knows it or not” does that
take it to Absolute Liability and therefore remove freedoms?

Justice Wilson – They must have mens rea to the young age. They don’t have to know
it’s against the law, but they have to know if she was under 14.
Mentally Innocent – Person who thinks he is doing an act that would be innocent in
Law.

S 7 – must allow for a defence of due diligence – they have to have a chance to show
that they asked how old she was.

Saved by section 1 at trial – This is a reasonable limit to put on someone to uphold

the statutory rape code.
Deterrence would be effective to protect young girls. There is no loophole – you
cannot have sex with someone under 14. But Wilson puts no weight on the
deterrence reason – no evidence that this works.

She also rejects sentencing – there should be correlation b/w moral

blameworthiness and punishment - inappropriate for us to rely on judges.

Wilson - The law should be ruled unconstitutional. Offended section 7 not saved by
section 1.

Does this create an unfair state of affairs?

Current law in the Code: Mistake of Age

Mistake of age (4) It is not a defence to a charge under section 151 or 152, subsection
160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the
complainant was 16 years of age or more at the time the offence is alleged to have been
committed unless the accused took all reasonable steps to ascertain the age of the
complainant.

DISSENT - McLachlin P. 705 **** This is rare to see – saving a section 7 violation
under section 1 **** it comes up in Bedford, but this is an early shot across the bow.

She agrees about section 7 but under s.1 says this is a reasonable amount of rights
violations. Minimal impairment
Child prostitution, etc
Absolute Liability is right for this.
Girls could have fake ID –
Puts men on notice – you have sex with someone under 14 – you go to jail!
Limits the rights, nothing else you could show would be enough, fake ID etc…
Other countries do this.

Nature Of Offence
Page 712: Mistake of Fact works if belief is true
Second view: The accused can by guilty even with mistake of fact if on the accused
view of the facts he would be guilty of another offence that is equally serious.
I have a bag of cocaine and I think it’s a bag of marijuana.

I punch a cop and I do not know it’s a cop.

R v Tolson (1989) only allow if accused believes they are innocent of any
offence what so ever

Tolson view: Guilty of punching someone.

Or – I would not have punched a cop, I should only be guilty of punching a regular
person.
Law is clear that I am not guilty if I think I have a bag of Oregano.

What if the facts would make me guilty of a lessor offence (Like the mescaline LSD
thing)

R v Ladue (1965) sex with a corpse

He was too drunk to know if she was dead, indecent interference offence – the body
has to be dead.

He can’t argue this defence; he cannot argue that he was acting innocently. - If she
was alive then he was raping her and that would be a more serious offence.

If your mistake of fact makes you guilty of a more serious crime it cannot be your
defence.

R v Kundeus (1976) LSD * Leading case as to nature of the substance – Drugs -

(Beaver is still leading case on possession, Blondin wilful blindness)

Thought he was selling mescaline, and cop thought he was buying LSD
Trafficking in LSD much worse offence at the time.
Yes. He did have required mens rea to ground a conviction –

Bottom line = he thought it was mesc and so that meets mens rea for the LSD –
like Blondin would be guilty of he knew there were drugs in the tank – didn’t
matter which kind of drugs were in there. You are guilty of the drug that you
actually sell.

Policy reasons for this: every drug dealer would always say I thought it was pot – I
didn’t know it was heroin –

Laskin dissent – you can’t be convicted if you don’t have the mens rea for the thing –
even if it’s a more serious thing.

b) MISTAKE OF LAW
In the Code section 19 – not an excuse
Ignorance of the law
19. Ignorance of the law by a person who commits an offence is not an excuse for committing that
offence.

Not knowing the law is not a defence. You can’t have a bunch of people making sure
that they don’t know the law.

Essay by Holmes p. 722

Essay by Silving p. 722
R v Esop (1836) UK - native of Bagdad
A native of Bagdad on a ship coming to England had anal intercourse with someone
and it was not illegal in Bagdad at the time. The court said this is not a defence.

R v Campbell and Mlynarchuk (1972) - Nude dancing

p. 724 (there was a case at trial Johnson, and at trial nude dancing made not a crime,
so in our case, she dances nude, but in the meantime, the Johnson trial is overturned
because the law to not dance nude was always in effect)

A mistake of law could happen when there is mens rea, and could negate mens rea,
but in this case the mens rea is the intent to dance in the nude.

Issue would be about the sophistication of the accused understanding of the law.

Judge does acknowledge that she was relying on a court decision, but she got it
wrong – but can be used in sentencing. So she is guilty but discharged, not
punishment.

R v MacDonald (2014) SCC – restricted firearm - ** Important to distinguish

mistake of law and mistake of fact.
P 734
Guy had a gun that was licensed in Alberta but he was not allowed to have it in
Halifax with him.
SCC says yes this is mens rea (true crimes require mens rea) required to have
knowledge of having a firearm and intent to have a gun in Halifax, this is a mistake
of law, to not know that his gun license didn’t extend from Alberta to Nova Scotia.

INCAPACITY
Criminal law is about punishing people for their morally blameworthy acts
It would be unjust to punish people if they were not responsible.

AGE
Page 757 - Young children are exempt from criminal responsibility. Since 1982 its
anyone under 12 – If an 11 year kills someone that child is not guilty of murder.
Section 13 - Age is the age at the time of the crime.

Youth criminal Justice Act System is for 12-17 year olds.

Substantive laws are the same for youth as for adults – sentencing is treated
different, no automatic life sentence for murder.
MENTAL DISORDER
Page 758 - Law recognizes that there are situations where this applies as a defence.
But have to distinguish between merely being bad – because doing something awful
could be a mental disorder – psychiatric classifications and criminal classifications.

There is a fine line between many different orders – DSM-5

Not everyone who has something in the DSM will be acquitted due to mental
Disorder

Law is informed by DSM but maintains its own independence over judgements on
this.

Psychopaths and psychopathy – page 760

This is not a useful diagnosis for criminal law. We can’t let psychopaths be acquitted
for the mental disorder, when in fact they are just bad people. When it really is
morally blameworthy behaviour.

Mental Disorder under the Criminal Code

Mental disorder can be used at the time of the alleged act
(Can also be when they are being brought to trial – you can’t stand trial if you are
not fit to stand trial)

Used to be called acquitted on account insanity

Now is Not Criminally Responsible on account of Mental Disorder [NCR]

Section 16 was a Canadian version of the US M’Naughten Rules

(see description page 764)

Page 766 - Section 16 – Accused is NCR if:

1. Act committed while accused suffering from mental disorder
2. That rendered the accused incapable of:
a) appreciating nature and quality of the act OR
b) knowing it was wrong

No longer automatically taken off to a psych ward – R v Swain SCC (1991)

Discharge should be ordered unless they are dangerous. (Their fate in then managed
by provincial health system)

SCC has decided that this section 16 is not a violating charter –

Cooper v R (1979) Leading Case on mental disorder – Test - Disease of the Mind
P 769 - The accused charged with murder for strangling a woman at the physch
ward. He remembers getting angry and grabbing her by the neck. Then lost
consciousness and when woke up found her dead. He was intoxicated.
Disease of the Mind Test:
Rules
1) What disease of the mind means is a question of law for the judge
Test:
i. Disease of the mind embraces any illness, disorder or abnormal condition
which impairs the human mind and it’s functioning,
ii. Excluding, however, normal self-induced states caused by alcohol or drugs,
as well as transitory mental states such as hysteria or concussion.

2) Whether the accused was suffering from the condition is a question of fact
for the jury
Test:
Know the effects of your act:
On the facts, was the disease of such intensity as to render the accused incapable of
appreciating the nature and quality of the violent act and knowing that it’s wrong?
Appreciate is more than knowing, it’s also appreciating the outcomes and
consequences of the act.

Kjeldsen v R (1981) SCC - Mental disorder doesn’t always = NCR

Facts Issues
- Accused raped and killed victims 1) Are there grounds for the defence of
without feeling any remorse or emotions mental disorder?
for his acts
Rules
Presence of mental illness does not automatically render a verdict of NCR

For a disease of the mind to render a NCR verdict, it must have made the accused
incapable of appreciating the nature and quality of their act
Application
- Psychopathy is a disease of the mind within the meaning of Criminal Code, s. 16
- But this does not mean that psychopaths will always have a defence
- Emotions regarding consequences of the acts are irrelevant
- What matters rather is whether or not you can appreciate the outcomes of an act

R v Abbey (1982) - delusional

Mental Disorder thought no harm would come to him, even if he told the border
guards that he was bringing cocaine into the country. Abbey knew that the actus
reus was there – also he was able to appreciate the nature and quality of the act
Mental Disorder Defence
 Person can have defence of MD if made them incapable of appreciating the
nature of act or knowing it wrong
 Wrong: meaning contrary to law or morally wrong
o P. 781
o Schawrtz case, wrong meant illegal, overturned that view
 Wrong means morally wrong in the circumstances according to the moral
standards of society
 Vincent Li case
o He would fail in NCR verdict
o Delusional state, he thought person beside him was a demon
 Understanding of wrong has been upheld since then
 McLachlin argued that it doesn’t matter
o Narrower NCR defence
o She was worried about using category as giving extra allowance, we don’t
normally care about moral quality of their actions
 NCR verdict used, because at times, they have disoriented view of reality:
Dufraimont

R v Oommen (1994) – Sometimes MD can go to mens rea

Facts
- Accused shot and killed a female friend for no reason
- Specific belief at the time of the shooting was that members of a local union has
commissioned victim to kill him
- Trial judge rejected mental disorder defence
Issues
Was defence of mental disorder available to D?
Rules
If the accused lacks the capacity to rationally decide whether the act is right or
wrong, and hence lacks the capacity to make a rational choice about whether to do it
or not, then he is exempt from criminal responsibility
- Should not focus on general capacity to know right form wrong, but rather on the
ability to know that a particular act was wrong in the specific circumstances
Application
An ordinary person would understand that you would have to defend yourself
against a hit man who was after you

AUTOMATISM

AUTOMATISM MUST INCLUDE AMNESIA

Sane Automatism Mental Disorder Automatism

Definition: Automatism that doesn’t Ie. “insane automatism” (a subset of
result from a mental mental disorder incapacity)- where
disorder the accused was acting in a state of
automatism brought on by a mental
disorder
If successful: Full acquittal Enters care of ORB, like finding of
NCR
Trigger External Internal
(Rabey): “The everyday stresses and
disappointments of life do
not qualify as an external
source”
Likeliness of Unlikely to reoccur Continuing Danger
reoccurrence
(Parks):
Dissociative If caused by more than If caused by everyday
state? everyday stresses/disappointments of life,
stresses/disappointments aka personal frailties
of life (Ex. being a terrible
car accident in which
people die)
Sleepwalking? Usually sane automatism ... events that triggered the sleep
Unless... walking are likely to occur and
trigger again
Self-induced Never Never
toxic psychosis “A malfunctioning of the mind that
(Bouchard- results exclusively from self
Lebrun)? induced intoxication cannot be
called a disease of the mind because
this is intoxication, not mental
disorder”

Acts reus: act can only be criminal act if it is voluntarily done

 Part of incapacity
o The third category
 Automatism: Accused is acting unconsciously or involuntarily where a person
physically acts without being conscious of what he is doing
 Acts reus: act can only be criminal act if it is voluntarily done
 Defence of automatism: accused’s acts were involuntary
 Psychological state that accused is in that makes acts involuntary
o Complex acts
 Ex. Sleepwalking, doing acts involuntarily
o Or concussion can force state of automatism
o Or medication
 Different from physical examples of involuntariness
 o It is entirely altered state of consciousness
 Question: Does the Automatism come from the MD or not?
 Do we believe he was not in conscious control of his actions?
 Claim of state of automatism
 Automatism can come from something else, or it can come from a mental
disorder (known as MD automatism)?
o Big question: Are we into MD automatism or non-mental disorder
automatism (or sane automatism)?
o If sane automatism, it is an acquittal
o If MD, its an NCR defence
o Defence prefer it to be non-mental automatism
o Crown wants to have MD automatism defence

R v Rabey (1980) Sane automatism and MD automatism: external/internal

factor used to differentiate the two (likelihood of repetition)

Internal trigger= mental disorder, External trigger = sane automatism

Psychological Blow
 Rabey infatuated with another student. Helping Miss X with work. Found letter,
read it, very upset over contents. Took rock from geology lab. Asked what do you
think of me. Struck her with the rock, strangled her, dragged her body to the
stairs. Ran into other students. Seems disoriented, bewildered and fearful

 Claimed he could remember very little. Charged with wounding charge.

Physiatric hospital assessment. Found to have no MD
 Defence said he was in a dissociate state
o Can do acts without being conscious of doing them
o Cause of Dissociate state is powerful emotional shock (letter and
conversation)
o This was a psychological blow similar to a physical blow
o Psychological blow automatism
o Lanaguage of psychological blow is defence friendly language
 According to defence psychiatrist, he was essentially normal
o This was an occurrence, not a MD
 Competing view from Crown psychiatrist: Rabey in extreme state of rage
o Extreme state of rage is not a defence
o Memory problems probably occurred afterwards
o Was he in state of automatism at the time (key to defence of automatism)
 ONCA allowed crown’s appeal
o It was MDA automatism, ordered new trial
 Amnesia question in automatism cases
o Automatism always involves amnesia
o Real amnesia and automatism amnesia
 Real amnesia happens more often in cases where you don’t have
automatism
o False claim of amnesia
o 2 problems:
 Might be false claim
 Might not be automatism
 SCC:
o Agrees that defence of sane automatism is not available in the
circumstances
o P. 791
o Automatism: Term used to describe unconscious, involuntary behavior,
the state of a person who, though capable of action, is not conscious of
what he is doing. It means an unconscious, involuntary act, where the
mind does not go with what is being done.
o There are 2 questions:
 DOM or MD
 Mental Disorder automatism or sane automatism
o Claimed dissociative state was a question of law for the judge to decide
o Was it a disease of the mind (DOM)?
 Ruled that it must have been caused by MD
 P. 793
 Internal/external factor
 Psychological blow can be an external factor or not?
 It wasn’t in this case, but it can in other cases
 Court’s examples: extraordinary external events factor
o Seeing somebody die before you
 If you witness somebody die, and go in state at that
moment then may have case
 P. 792: this was part of ordinary disappointments of life
o Controversial because:
 Psychiatric evidence says Rabey was basically normal
o Sane automatism and MD automatism: external/internal factor used to
differentiate the two
o Normal person wouldn’t acted in this way
 Automatism now normally dealt with through MD

Rules
Assuming we are dealing with a defence of automatism, the issue is always is it sane
automatism or mental disorder automatism?
 Whether a particular psychological state is a disease of the mind is a question
of law for the judge
  Whether the accused was actually suffering from the psychological state as
claimed is a question of fact for the jury

BIG LEGAL QUESTION IN THIS CASE- is a dissociative state a disease of the mind
(mental disorder automatism) or not (sane automatism)?

Disease of mind= source is internal, the disease is in the mind

Sane automatism= external source causes the mind to not be in control

RULE: the everyday stresses and disappointments of life do not qualify as an

external source which causes dissociative states in sane individuals

Applying the Rule

 If dissociative state was caused by an internal state (everyday
stresses/disappointments of life), it is a mental disorder
If dissociative state was caused by an external factor (more than everyday
stresses/disappointments of life), it is sane automatism

R v Parks (1992) SCC – sleepwalking - key example of sane automatism

 Page 801 Sleepwalking case
Rules
The question of whether something is a disease of the mind or not is a
question of law for the judge
- Not enough to take the opinion of experts
- Must be analyzed according to policy issues, public protection, precedent, danger
of reoccurrence etc by judiciary

Two distinct approaches to disease of the mind inquiry:

Internal cause theory: see Rabey
Continuing danger theory: any condition likely to present a recurring danger to
the public suggests insanity
- These are analytical tools, not a legal rule, won’t always be determinative

 Sleep walking is a state of sane automatism, not mental disorder

 Killed his mother in law and strangled father in law while sleepwalking
 He was disordered state mentality. Actions while sleepwalking were involuntary.
Got clear acquittal of sane automatism by jury
 Trial judge should have left MD automatism with the jury and sane automatism
 SCC dismissed Crown appeal, upheld sane automatism
 Sanabolsim: means sleepwalking
 Sleepwalking seen as key example of sane automatism
 Evidence shows that Parks was not mentally ill
 Defence called 5 experts
 Crown thought jury would not believe in defence, did not bring any evidence of
their own
 Most children sleepwalk, adults do
 Violence while sleepwalking is rare
o Re-occurrence is rare, not likely to happen
 No treatment for sleepwalking, treatment would be sleep hygiene
 Lamer:
o Given evidence that he was not mentally ill, it was right to leave defence
of sane automatism with the jury
o Experts basis that he was not mentally disorder
o Parks was sleepwalking, not MD based on evidence
 La Forest J:
o More guidance
o It’s a legal categorization
o Reserve question of whether it is a DOM for the judge
o Also consider wider policy concerns
o 2 approaches to distinguish from MD automatism to sane automatism
 Internal cause theory (as seen in Raby)
 Is most poplar theory until now
 Continuing danger theory
 Recurring danger to public should be treated as a MD
 These are analytical tools
 Doesn’t think either theory really helps us all that much in
deciding whether sleepwalking is a MD
o Consider policy concerns
 One concern is that this is a defence usually to fane
 Opening defence widely problematic because it would accept
nonsense stories
 Also a floodgates concern
 People will bring Unmeritorious claims of automatism
 Not an issue in this case
 Acquitted
 Dufraimont: clear to her that Parks was in a state of sleepwalking
o Stone/Rabey more doubtful
o Evidence was overwhelming that he was in a state of sleepwalking

R v Stone (1999) SCC Leading case on MD/Sane automatism

 How to distinguish MD automatism from sane automatism
 Wife says horrible things to him
 Tirade of abuse, felt whooshing sensation
 Lost awareness
 Admitted he stabbed her, wanted defence of sane automatism
 Snapped at wife’s verbal abuse
 Trial judge found that evidentiary basis for automatism
o But MD automatism only defence available to him
 Binnie (dissent):
o Experts agreed that he did not suffer from a MD
o Binnie would say we should put credence in what experts would have to
say
o Trial judge shouldn’t have taken defence of sane automatism away
o Crown has onus of proving involuntariness
 Not in state of automatism
o Doubts usefulness of internal cause theory
o Mental disorder has to be shown to exist
o Jury faced with basic question of fact: was he unconscious during attack
or lying
 SCC:
o Bastarache judgment
o Case of psychological blow automatism as seen in Rabey
o Automatism is a defence because it negates actus reus
o Puts burden of proof on defence
 Law presumes people act voluntarily
 Need good reason for automatism/involuntariness’
 Automatism won’t be considered unless accused shows evidence
to put issue in play (verbal abuse/whooshing)
 Accused’s job to show sufficient evidence

Accused has to show automatism on balance of probabilities

 Why is it justified to reverse burden of proof?
 Worry about false claims
 To limit defence, and make it’s a good claim
 Real cases of automatism are rare
 Reasonable to say accused has burden to prove
 All knowledge of the automatism rests with the accused
o Makes sense to put burden on him
 In terms of MD defence, burden rests on accused because of
s. 16 of Code
o Harmonizing defence of automatism with defence of
MD
 These are all related defences, should have related urden of
proof

Steps for valid claim of automatism

 1) Should automatism be put to the jury?
 Is there evidence?
 Need accused to make assertion of involuntariness
 There needs to be expert evidence confirming assertion
 No automatism without expert evidence
 Trial judge has to decide if there is an evidentiary
foundation
  P. 823 factors
o Relevant factors
o Corroborating evidence by bystanders
o Corroborating medical evidence
o Possible motive for crime
 Not self-evident on how these factors are supposed to work
o If what person has experienced is severe, more
likely to credit history
o If attacked complete stranger, no motive for attack,
more likely to believe
o Medical history: if happened before
o Dufraimont: jury has to make decision if this is
automatism
 Factors demonstrate SCC’ skeptisims
 Fontain case: all you need for evidentiary is expert evidence
and…
 2) Should be left to the jury MD automatism or sane automatism
 What medical condition is DOM?
o Question of fact and law, question for the judge
 Did accused suffer from condition?
o Question for the jury
o Automatism that doesn’t from a MD would be quite rare
 Sane automatism smaller category of automatism
o The trial judge should start from presumption that accused’s condition is
DOM
 Move it out of category if there is consideration
 Use holistic approach
 Consider internal cause and continuing danger factor
o P. 826
 Sums it up
 Court says: Question is whether society requires protection
from accused
o Court says alleged cause of automatism is victim’s words
o All 3 factors says this was the right decision
o Like Rabey, no external cause here, because no extraordinary external
event
 One of common disappointments of life
 You start from MD

R v Luedecke (2008) – mental disorder automatism – had sex in his sleep –

Stone analysis

Rules
Sleep walking is usually sane automatism
But must consider
1) What events triggered the sleepwalking/ episode?
2) Are these events likely to reoccur?
3) If previous incidents are likely to occur again, this will be mental disorder
automatism as it points to an internal issue
4) Dander to public= mental disorder automatism

Medical evidence is not conclusive about whether someone is a mental disorder or

not, because it is a question of law not fact

Internal factors= mental disorder automatism

External factors= sane automatism

Guy fell asleep on a couch and sexually assaulted the woman who was on the couch
too – he claimed he had sexomnia, and was asleep at the time – expert said (see
Parks)

ONCA Usually automatism claims are about injury and they are a danger to the
public. We should seriously scrutinize mental health of people who claim to mental
disorder under section

** Involuntary behaviour does not fit neatly into section 16

if a mental disorder put someone into a state of automatism based on metal disorder
has a mental disorder defence –

(see Stone) reverses Parks – only defence could be automatism – Doherty says we
still have to look at whole picture from parks and Stone –

Continuing danger etc – Most important question is the continuing danger question
Parks asks what’s the chance this will happen again?
Parks looks at recurrence of factors that led to the episode – in this case – lack of
sleep, stress, booze, are factors to make Luedecke’s automatism will happen again

look to evidence for something to take it OUT of mental disorder (this is opposite to
Parks)
This = mental disorder automatism.
Evidence proved that he had this.
This had happened before – Just by chance the other women had consented.

What we get after this case  mental disorder automatism for sleepwalker
– we want to deal with it in here about policy concerns and the protection of the
public against the danger that this person presents to society – gives the state a way
to monitor the accused.
BUT in this case, he was examined by doctors and found fine and set free.

Notes: page 838 - All sleepwalking cases need STONE analysis

Sane automatism is kind of gone now – only used maybe in head injury or huge
shock…

INTOXICATION
R v Bouchard-Lebrun (2011) SCC – TEST mental disorder/intoxication dividing
line -
Page 839 - 2 guys, high on pills, decided to beat up L for wearing a cross upside
down. They broke into his building and attacked him – punching and kicking – D
went to L’s aid and they fell him down the stairs and stomped on his head. D left
disabled (life in hospital)

Rules
Self induced toxic psychosis is not a disease of the mind
“A malfunctioning of the mind that results exclusively from self induced intoxication
cannot be called a disease of the mind because this is intoxication, not mental
disorder”

Drugs put him in toxic psychosis that caused religious fervour

Does attacker have a mental disorder or is it intoxication?
Crown wants mental but accused wants Sane mental disorder.

Here, crown wants intoxication, but mental disorder gets you NCR -

SCC decided this was not a case for s 16

- LeBel J

Code: Defence of mental disorder s. 16

 16. (1) No person is criminally responsible for an act committed or an
omission made while suffering from a mental disorder that rendered the
person incapable of appreciating the nature and quality of the act or omission
or of knowing that it was wrong.

Code Self-induced Intoxication 33.1

When defence not 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 the
voluntariness required to commit the offence, where the accused departed markedly
from the standard of care as described in subsection (2).
Justice LeBel – issue here – psychosis coming from ONE instance of ecstasy use –
evidence is that the behaviour came exclusively from the drug-induced psychosis.
When we see toxic psychosis caused by drugs – we have to look at exclusion from
Cooper (page 771) The definition of disease of the mind excludes self-induced
intoxication –

Use the same test to distinguish intoxication from mental disorder:

1. Internal Cause – look at if a normal person would have reacted this way or
not – this could happen to anyone who took this drug. Not a mental disorder,
just a product of the drug.

2. Continuing Danger – danger coming from inherent mental disorder, in this

case, we aren’t talking about if he does drugs again, risk has to be independent
of his will – he would do this again maybe but he would have to take that drug
again.

3. Policy considerations? Court doesn’t refer to them here – fails at 1 and 2.

CanNOT be mental disorder when it comes from a single use of drugs. MD

conditions totally a result of taking the drugs.

SM Beck and GE Parker, The Intoxicated offender – A Problem of Responsibility (1966)

Page 848 - Intoxication by alcohol or drugs is not distinguished.
How do we distinguish between different levels of mental disorder?

Voluntary v involuntary – looking at people who took drugs knowingly

p. 850 – Voluntary intoxication – moral difference, there is fault - you get drunk,
different from drinking a spiked drink.

Involuntary = just use normal rules of criminal activity – did they have mens rea? Is
it like automatism?

Voluntary intoxication – blameworthiness in getting yourself to the point of being

dangerous to others – maybe once you are in the intoxicated state you cant form the
mens rea required – maybe not appropriate to punish you? Have to be very careful
not to set up the wrong breaks here and get people off too easily.

R v Bernard (1988) – common law starting point for intoxication – 3 Views – no

clear majority on the law in Canada here –

When court splits 3 ways, look for the one in the middle for an answer – here it’s
Justice Wilson

Page 851 - Guy got drunk and beat and sexually assaulted the victim in her home. He
had been drinking but was able to walk and talk and put records on the stereo – ON
CA dismissed and appeal: offence of sexual assault causing bodily harm is an offence
of general intent - defence of drunkenness does not apply –
Trial judge said drunkenness was not a defence –

Issue: when, if ever, can drunkenness be a defence?

4 judgments –

1. McIntyre (and Beetz)

Rule = offences intoxication can be a defence, but for general intent offences
intoxication is NEVER a defence.

Specific intent and general intent

P 852 –
Specific = May involve an intent to achieve an ulterior purpose – May also involve
complex thought & reasoning.

Assault requires only minimal general intent – (manslaughter is general intent)

Assault to resist arrest = specific
Breaking & entering = general
B&E with intent to commit an indictable offence = specific
Armed robbery = specific
Sexual assault = general
Murder requires intent to kill = specific intent.

Specific – intoxication operates as s defence because accused can say “I did not form
the specific intent. “

*** what this actually means – this comes up in murder and manslaughter – can use
intoxication to take murder down to manslaughter –

General intent = common law rule = intoxication is never a defence –

Hard to make the distinction b/w general & specific – but he wants to uphold this
Accused can’t rely on drunkenness to prove that he didn’t have the mens rea

Infer mens rea from performance of the act

P 857 – substitute mens rea – guilty intention that goes with getting voluntarily
intoxicated –

This is what is controversial in this decision

Fault level of getting drunk doesn’t seem to accord with the fault level of sexual
assault – can we really trade them out? This judge thinks that getting drunk
voluntarily can not be a defence.
2. Justice Wilson – she agrees with McIntyre

Rule = specific intent offences intoxication can be a defence.

But for general intent offences intoxication is USUALLY NOT a defence,
because in most cases, general intent can be inferred from performance of the
act BUT intoxication can be a defence in cases of “extreme intoxication” akin
to insanity or involuntariness.

She is worried about the Danger of convicting people who do have the moral
blameworthiness.

3. CJ Dickson (and Larmer)

Rule = Forget specific/general – Intoxication goes to mens rea.
It’s not up to us to ignore legal principles to make new policy – that has to be up to
Parliament.

Should we have a drunk and disorderly law in Canada?

He doesn’t see a “floodgates” problem here – just because people get drunk and do
stupid things – if there’s intent they will be guilty.

Code - Sexual assault with a weapon, threats to a third party or causing bodily harm
272(1)
 272. (1) Every person commits an offence who, in committing a sexual assault,
o (a) carries, uses or threatens to use a weapon or an imitation of a weapon;
o (b) threatens to cause bodily harm to a person other than the complainant;
o (c) causes bodily harm to the complainant; or
o (d) is a party to the offence with any other person.

Charter Standards
R v Daviault (1994) – new rule made into law – defense of extreme intoxication
p. 873 –
69 year old man, assaults 65 year old woman who is his friend and in a wheelchair –
He went to her house, they drank, he drank a lot more, she went to sleep and he
attacked her – he had no memory of it happening – his blood alcohol level was really
high, being an alcoholic it didn’t kill him but may of caused alcoholic amnesia
automatism according to expert. Just because he doesn’t remember doesn’t =
involuntariness.
There is such a thing as drug related automatism – principles can apply here.
Trail judge acquitted – reasonable doubt – used Wilson’s “extreme intoxication”
QC CA Imposed a conviction under McIntyre

Majority Justice Cory: Extreme intoxication can be a defense under the matter of
mens rea - Both the act and the fault would be negated by the involuntariness of the
extreme intoxication - Can’t substitute mens rea for getting drunk – might punish
morally innocent.

Intoxication isn’t by itself a cause of a crime - but by the end he is saying there is no
link bewteen intoxication and crimes –

End result – Wilson’s way is imposed in the law and is a Charter minimum – page
879 - requires at least a defense of extreme drunkenness where drunk to the point
of automatism. Infer mens rea from the act – except in cases where extreme drunk to
point of involuntariness -

Reversal of burden of proof. Thinks extreme drunkenness won’t be used that much
– Reverses burden of proof – accused has to show extreme drunkenness on a
balance of probabilities.

*** the charter requires this as a charter minimum.

Reaction to this case was negative – going to far to give drunken defence to rapists.
That he could do something violent –

Sopinka dissents:
Page 881 - All this talk of moral innocence is misplaced – mens rea reflects idea of
moral blame – to say you can be too drunk take responsibility away - (not talking
about specific intent here, that still holds) -
Can consider intoxication during sentencing.

Response from legislature - Bill C-72

(preamble page 886 (1995))
Bill C-72 No defence of self-induced intoxication for violent general intent offenses
Parliament addressing association between violence and intoxication – against
women & children

- Concerned that self-induced intoxication may be used socially and legally to excuse
violence (eg. Daviault defence)
- Passes s.33.1- removes the Deviault defence from most general intent offences that
involve violence (does not apply to specific intent offences)
- Does not affect the common law defence of drunkenness available to specific intent
crimes such as murder

NOTE: Whether this section will survive a charter challenge remains to be seen

Charter problems with 33.1

Big Issue – Charter 33.1 – is it constitutional? Oakes Test
Nova Scotia test Chaulk – page 850
Very narrow definitions of intoxication

Code 33-1(1) removes the Daviault defence

Page 888
 removes the Daviault defence
 Parliament sees the relation between intoxication and violence
 After hearings, Parliament doubts that drunkenness might not even possible
to get to drunk enough for involuntariness –
 Feds agree with Canadians that that people who do violence to others while
drunk ARE blameworthy in relation to their harmful conduct *** this is
important – Feds want to make them guilty of the offence

Intoxication that isn’t extreme isn’t a defence Code 33.1

33.1(3) is about violent offences
(1) This is about general intent offences – this is about extreme intoxication
(2) Removes the defence the defense of extreme intoxication where there is violence

On the offence of murder: murder is a specific intent offence so no change on this.

Manslaughter: under Daviault they could use it, now they cannot – general intent of
violence

Sexual violence = specific intent

Common Law meets legislation meets Charter problems

Is this statute (33.1) valid under the constitution?
What is argument for against the charter – make it absolute liability – seems to take
away any mens rea and maybe even the actus reus
What section 11.d (presumption of innocence) and 7 – Daviault was all about
Charter rights, and so this Legislation looks like a charter violation.
Can it be saved under Section 1?
Good narrow definition – so not too broad. (Bedford)
Both pressing and substantial (Oakes)
Self-induced – protects vulnerable parties –
Charter rights of the victims overrides rights of the criminals
Benefit to society as a whole works on the balance
Taking a drink is a choice.

Against? Taking away both act and fault – (section 7)

Addiction and how it ties into mental health
Is addiction a disease of the mind?

Not a lot of appellate level law around this

Is an addict not taking the drugs or alcohol voluntarily?
Courts in Canada to do recognize this – considered choice = voluntary
(Exclusion for states of intoxication in Cooper)

Extreme Intoxication to point of automatism is okay for shoplifting but not in

assault? Isn’t it that you are either in it or not?

R v Daley (2007) – Actual intent for specific intent offences – 3 levels

intoxication (mild, Advanced, Extreme)
Did the intoxication prevent them from forming intent?
Actual intent for specific intent offences
3 levels:
1/mild intoxication – not a defence at law, never has been.
2/Advanced intoxication – accused lacks specific intent
It might give a defence but depends on the facts of the case –
Murder – if the person has shot someone at close range, no amount of intoxication
could help, but if you are in a fight and it goes to far, and a sober person might have
stopped – up to the jury to decide about specific intent
3/Extreme intoxication – negates voluntariness, limited by 33.1 to non-violent
offences – it’s a rare state and it only applies to non-violent offences (if 33.1 not
found to be unconstitutional)

Extreme intoxication = automatism

33.1 – extreme intoxication
Extreme intoxication – specific intent is gone
Not a defence to manslaughter – too drunk to form specific intent for Murder?

R v Bouchard-Lebrun (2011) – Daviault defence still ok for property offence –

33.1 has to interfere with bodily integrity
Page 891 - 33.1 – level of intoxication doesn’t really matter in non-violent
crimes,
Note page 892 – someone might intend to get a little bit intoxicated, but they get
worse by accident (laced joint) cases at the margins where it matters if there is an
objective or subjective standard – NSCA – but there are no SCC rulings in it –
If your drink is spiked you are still consuming something that you know is
intoxicating, but this would probably go to in-voluntariness – This is a problem and
there is no case law on this yet.

JUSTIFICATIONS AND EXCUSES

Introduction
Pp 895-900
True Defences = defences that operate even though the person has the Act and The
Fault – Sources can be grounded in Statute, common Law

Code 8(3) Common law principles continued

(3) Every rule and principle of the common law that renders any circumstance a justification
or excuse for an act or a defence to a charge continues in force and applies in respect of
proceedings for an offence under this Act or any other Act of Parliament except in so far as they
are altered by or are inconsistent with this Act or any other Act of Parliament.

Allows for the morally innocent person to be vindicated.

Consistent with Common Law method to have laws developed through case law.

Air of Reality: Have to meet evidential burden

Page 897 2 step process of defence
1. Have to meet evidential burden = air of reality
2. Have to meet Persuasive burden = on the facts

Accused always carries the evidential burden –

Reverse Onus Defence = Mental Disorder, Automatism, Extreme Intoxication

Persuasive Burden is on the Crown, but not in all cases (Reverse Onus)
(self-defence = Crown has to prove beyond a reasonable doubt that it wasn’t
that)

R v Cinous (2002) – Air of Reality Test – applies to all defences

Page 897
McLachlin
TEST: (p. 898) There is evidence on the record upon which a properly instructed
jury acting reasonably could acquit.

Judge must put to the jury all defences that are raised on the facts (regardless of
which side raises it)
Judge has a positive duty to keep from the jury defences that lack and air of reality.
(this is because it would be confusing and invite verdicts that have nothing to do
with the facts)

In order to consider this test – judge has to look at totality of evidence – assume
defence evidence to be true (the facts to that particular defence), can come from any
source, judge can’t say if the defence succeeds on the facts – judge cant make factual
findings, or say which witnesses are credible –

Error of law to fail to put defence with air of reality and to put forward a defence
without an air of reality – we have only tell the jury which law is in play.
Page 900 – good discussion of dissent by Arbour

1. DEFENCE OF PERSON (aka self defence) S. 34

Pp 901-920 Called this in the criminal Code commonly referred to as self–defense
but it holds if you are trying to protect someone else who isn’t yourself.

Justification – this is considered a rightful act (as opposed to wrongful)

2013 – new section 34 of The Code

DEFENCE OF PERSON
Defence — use or threat of force
 34. (1) A person is not guilty of an offence if
o (a) they believe on reasonable grounds that force is being used against them or
another person or that a threat of force is being made against them or another
person;
o (b) the act that constitutes the offence is committed for the purpose of defending or
protecting themselves or the other person from that use or threat of force; and
o (c) the act committed is reasonable in the circumstances. – This is general
 Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court
shall consider the relevant circumstances of the person, the other parties and the act,
including, but not limited to, the following factors: who these people are and the circumstances have to be
taken into account – nature should match
o (a) the nature of the force or threat;
o (b) the extent to which the use of force was imminent and whether there were other
means available to respond to the potential use of force; Lavallee (now imminence is not
required, but is a factor) – other means? Calling the police? running away?
o (c) the person’s role in the incident;
o (d) whether any party to the incident used or threatened to use a weapon;
o (e) the size, age, gender and physical capabilities of the parties to the incident;
weaker more afraid of and in danger from stronger party
o (f) the nature, duration and history of any relationship between the parties to the
incident, including any prior use or threat of force and the nature of that force or
threat; Lavallee
o (f.1) any history of interaction or communication between the parties to the
incident;
o (g) the nature and proportionality of the person’s response to the use or threat of
force; and
o (h) whether the act committed was in response to a use or threat of force that the
person knew was lawful. Like if you are being arrested – can’t use self-defense against cops (yikes)
 No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the
purpose of doing something that they are required or authorized by law to do in the
administration or enforcement of the law, unless the person who commits the act that
constitutes the offence believes on reasonable grounds that the other person is acting
unlawfully.

Proportionality – gun is more than knife, but meets proportionality – person not
expected to measure to a nicety
Oliver W-H – detached reflection is not expected when you see a raised knife.
(previously in the code there was big mix of objective – reasonableness- and
subjective)
Self defence has a lot to do with what the parties are experiencing (Creighton – personal
factors not taken into account) In self-defence it is all taken into account.
Subjective element is strong enough that mistaken claims of self defence are allowed.
Other means available? Is there a duty to retreat? (Stand your ground laws in the US) –
there is no absolute duty to retreat. Especially from one’s home –
Force against force but also – if you steal a car to get away that act might fit under the
current legislation. This has created some language for necessity.

R v Lavallee (1990) SCC - Classic case on self-defence (old legislation)

Page 905
Battered wife shoots husband when he walks away after he threaten her.

Issue: Viable claim of self-defence?

Up until this case, you couldn’t defend yourself in advance – imminent force.

WILSON – basic issue, were her fears about being attacked and hurt or killed
reasonable under these circumstances. Can’t even ask what a reasonable MAN
would do here.

(Imminent force concern is vigilante-ism, only using necessary force – but this is too
dangerous for battered women)

Appropriate to show expert evidence on battered women and show her perception
of the circumstances. Degree of predictability can show when to expect violence and
measure when it might get out of hand. Good to help to jury to understand the
reasonableness.

Subjective factors coming into an objective test (which still exists – still
reasonableness)

She was found to have valid self-defence claim.

R v Malott (1998) SCC - Battered Woman experience – objective test has

subjective elements

After Lavallee, danger that Battered Woman was too narrow a way to judge – what
did she have to look like etc.

OBITER by the 2 women on the court - L’Heureux-Dube (McLachlin)

Danger of turning Battered Women into a syndrome, and setting them up for failure
like why didn’t they leave etc?
Each woman has her own experience and shared experiences are important too –
expert witnesses have high value.
This objective test that they set up is very close to subjective – But it cant be just
subjective – then how would all these cop shootings be resolved, all the cops would
get off, it can’t just be that you felt threatened – you cant just say I killed him
because I was afraid. Need some standard of reasonableness.

2. NECESSITY
Dudley v Stevens

Perka v R (1984) SCC - Leading case in Canada - test for necessity - NORMATIVE
INVOLUNTARINESS
Importing Cannabis when they bring tonnes of pot onto the land when they have a
problem with their boat
They were not going to “import” the drugs in Canada – they just put them on land
while they fixed their boat.
Jury bought this at trial and so it went up to the SCC
DICKSON – Common Law (not in the Code) has to do with emergencies and the
preservation of life. Like a mother stealing food to feed a child, maybe throwing
people off a lifeboat to keep it from sinking – driving speeding to get to a hospital –
drunk driving to get away from a fire – CAN BE TO SAVE SOMEONE ELSE. Self
preservation AND altruism.

Excuse/Justification Test stated on page 931 – clear, demonstrable, imminent peril…

Choice of evils defence – is it better, all things considered, to break the law to escape
the threatened harm? If it is justified then it is right.

Excuse – could be excusable if complying with the law would impose an intolerable
burden on the person if they did follow the law.

Justification = there is nothing wrong with it and we do not punish it. Like a police
sniper shooting a hostage. Almost to the point of “good job”

Excuse – the act is still wrong, but we excuse them from criminal liability – like
violent mental disorder.

He says necessity cannot be a Justification

Who gets to be the judge to decide whose life is more important? (Dudley)

Can be an excuse – sometimes disobeying the law is the only thing a person can do,
law has to be humane. Situation can overwhelmingly impel you to disobey the law.
NORMATIVE INVOLUNTARINESS – the actor had no choice but to the break the law.
He give 2 reasons for not to punish
Unjust to punish if:
1. if they could not have acted otherwise
2. pointless to punish because they were unavoidable natural human instincts

page 935 – LIMITS This can be a True Defence

Dickson, writing for the majority, states that it is a longstanding principal that
someone in situations that make it unrealistic and unjust to attach liability to cannot
be convicted of crimes committed in the circumstances. The Crown does not
challenge the claim that there is a common law defence of necessity; it was
established in R v Morgentaler (1976). However, they object to the trial judge
charging the jury concerning necessity based on the facts of this case and to him
placing the burden of proof of the defence on the Crown, rather than the accused.

The Court says that necessity does not justify what someone has done as being
lawful, they just excuse them from punishment when the circumstances are taken
into consideration.

THE 3-part TEST:

Dickson then sets out how the defence works. The burden or proof is always on the
Crown to disprove necessity once it is raised. For it to apply:

1. There must be an emergency involving clear and imminent peril, to be

determined using a modified objective test, placing a reasonable person in
the claimant's shoes; Has to be happening right now – normal human
instincts cry out for action
2. There must be no reasonable legal alternative to what is performed, also
determined using a modified objective test; if there is some other way out,
then the defence won’t be available to you (see his holding in Morgantaler)
*cannot be overstressed
3. One must look at the proportionality of the illegal act compared to the harm
avoided using a standard objective test, as allowing for subjective input
would make the criminal law inconsistent. Harm avoided must be greater
than harm caused by breaking the law (can’t blow up a city to save your
finger from being broken)
4. The Crown wanted to add a limitation that you can’t use this if it’s arising out
of a crime – DICKSON said no – No requirement - to not be in the process of
doing a crime

ACCUSED HAS EVIDENTIARY BURDEN

CROWN HAS TO DISPROVE THIS DEFENSE BEYOND A REASONABLE DOUBT
DICKSON sees this as an air of reality and says the trial judge has to properly
explain this defence to the jury -
Dickson goes on to say that it does not matter if you were engaged in illegal or
negligent activity when the necessity arose – all that matters is that you were in a
state of emergency. Further, there needs to be an "air of reality" in all three steps of
the test for a judge to charge the jury about the defence of necessity. Once it is
raised, the Crown must disprove the evidence of necessity. You need to have proof
of all three steps in order to succeed.

Ratio To successfully use the common law excuse of necessity there must be three
elements:

1. an emergency: clear and imminent peril - proven using a modified objective

test;
2. no reasonable legal alternative - proven using a modified objective test; and
3. the illegal act must be proportional to the harm avoided - proven using a
standard objective test
The burden is on the Crown to disprove these elements if necessity is raised.

Imagine a lost Alpinest – they are going to die of exposure – they break into a cabin
(or die)

R v Latimer (2001) SCC – Father kills very disabled daughter

Page 940 (he was on trial for first degree)
He was convicted twice a trial of second degree murder.
Necessity from Perka
1. urgent
2. alternatives
3. proportionality of harms very hard to assess – not saying harm has to be
greater but they should be proportional

Do we look at this Objective or subjective?

Obj – would a reasonable person think it?
Subj – does accused think they have no choice

Modified Objective test – look at it objectively BUT then take into account to factors
particular to this situation
Proportionality would be 100% objective but 1 and 2 can be modified.
So in this case – Father has to think it is urgent, and he has to believe that there are
no alternatives, and it has to be proportional.

SCC says there would have to be air of reality to all 3 questions

SCC says no air of reality - not imminent peril, there were alternatives,
SCC says it is possible that this might never be a defence in homicide.

The court states that the defence of necessity does not apply here because there was
no air of reality in respect to any of the three necessary elements for necessity.
Tracy was not in immediate peril as there was no indication that she was going to
die any time soon and Latimer had no reason to believe that there was. There were
obviously lots of legal alternatives to killing her. The proportionality test fails
because killing someone is more serious then them being put through pain
(although this raises the question of whether death is ever better than pain).
Generally in cases of necessity it is the accused that is in an emergency and going to
suffer if they do not act illegally, not someone else who is in the "emergency" while
the accused faces no risk.
Latimer also argued that having second-degree murder impose a mandatory life
sentence amounted to "cruel and unusual punishment" in this case, and that he
should receive a constitutional exemption from the minimum sentence. This
argument is rejected because he cannot show that the sentence is "grossly
disproportionate" to the punishment for the most serious crime known to man –
murder.

Ratio - To charge a jury with respect to the defence of necessity there must be an air
of reality for all three aspects of necessity.

3. DURESS
Code: Section 17 Code – Compulsion by threats
Lays out an excuse defence - Requires:
1. Threat of Death or Bodily Harm (to a person)
2. Immediacy
3. Presence – threat has to come from someone who is present at the time
4. Belief – have to believe this threat will be carried out
5. Not part of a conspiracy
6. Exclusions: robbery, murder, treason, sexual assault (see list in Code)
Lots of limits, pretty strict

There is no more serious offence of murder, and so can you murder someone to be
murdered? Is there a defence outside of this provision?

R v Paquette (1977) – Murder charge brought defence of Duress (party to a

crime). – Common Law defence of Duress is available to aiders and abetters

Paquette was a driver to the robbery (this makes you guilt of the offence too)
He tried to refuse to drive them but one of the robbers held a gun to his head –
Robbery & Murder are both in the list of excluded defences in the Code

Section 17 is limited to the accused who committed the offence

“A person who commits and offence” Not wording of a person who is a party to an
offence.

Common Law defence of Duress is better than the Section 17 defence

Moral blameworthiness is less is you are the driver. Party Liability.
If you have a gun to your head and have to shoot someone you know that person is
likely die – main offender in the murder.

(New section 34 defence of person – requires the criminal act to be done for the
purpose of protecting yourself and it might cover instances of duress – but probably
not because Duress is pretty well established – but there in no case law on this yet)

It’s possible the exclusions could be unconstitutional but the courts have not
decided yet in cases where people are morally involuntary.

R v. Hibbert (1995) SCC - common law defense of duress – aider/abettor – new

common law requirement – no safe avenue of escape

Page 959 Moral involuntariness

Adds requirement of no safe avenue escape

Notes about Ruzic (2001) – page 963

Principle offender of drug smuggling
Heroin from Serbia – she was told she and her mother would be killed if they didn’t
do it – Belgrade at the time, no law and order at the time –
Not in the presence of the threat and not immediate
She had no realistic choice – Section 7 constitutional – cant find someone guilty if
you are not morally involuntary

IMMEDIACY AND PRESENCE ARE NO LONGER REQUIRED PARTS OF THE DEFENCE IN

THE CODE
THEY ARE GONE – AFTER 1995 – IT IS CONSTITUTIONALLY WRONG TO USE THEM

R v Ryan (2013) SCC – re-defines the statutory defence of Duress ** current law
She and her child were abused and she tried to hire hit men, but the last guy she
talked to was an undercover cop
“Counselling the Commission of the murder”
She was acquitted at trial
Looked like self-defence would not be available under the law in this situation
because she was hiring someone else – hiring a hit man gets more criminal
SCC says no to Duress in this case
[2] Defines Duress – it is about being told to commit that crime –

Adds in –
No Safe Avenue
Close temporal Connection
Proportionality

Modified objective test Para [50] for three new parts

No Safe Avenue
Close temporal Connection
Proportionality

SO close to the Statute and the Common Law – only 2 differences left
1. Exclusions are still in the statute
2. Statute does not apply to aiders and abettors

Ryan sets it all up. Good clear case Law -

SCC stayed the proceedings for her health and safety
Police hadn’t helped her at all etc

Page 978- The Common Law Defence of Duress – is same as the Code – expect for the
excluded offences

Normative involuntariness

Prof notes: Section 34 – believe force is being used against them, and the purpose is
to save yourself or your child – what about other duress type situations – go into s
34?
In Ryan SCC starts by defining Duress – so unlikely they would leave s 34 and go into
s 17

Could Necessity come into defences of the person?

Drunk driving to escape abusive husband? Could that be necessity?
Fits in statute of 34 – force, doing it to protect yourself
(NO statute for NECESSITY)

According to Ryan, Self-Defence Duress Necessity

we must (Section 34) (Section 17) (Perka)
distinguish...
When does it Defending against When the accused When it is
apply? aggression by breaks the law realistically
aggressing against under pressure unavoidable to
the person from a threat of break the law
aggressing against another, threat is
you made for the
purpose of
compelling the
accused to commit
the offence (Ryan).
Also, threat must
be of death of
bodily harm
(Ruzic).
Main question Was the act Was there a legal Was there a legal
reasonable in the way out of the way out of the
circumstances? If situation? If yes, situation? If yes,
no, defence fails defence fails defence fails
Who is the The person An innocent 3rd An innocent 3rd
victim? threatening the party party
accused
What is the Doesn’t matter Purpose must be to No requirement of
purpose behind what the purpose compel accused to threat
the threat? is, so long as there commit the offence
is a threat
Is defence Yes, requirements S.17 codifies Not codified,
codified? are explicitly set defence for established in
out (s.34) physical common law
perpetrator; (Perka)
common law
establishes defence
for parties
Underlying Offence is justified Moral Moral
rationale given the situation involuntariness involuntariness
excuses the offence excuses the offence
Broadness Justification Very limited Very limited
defences should be - Makes no sense to - Makes no sense to
broader and easier invoke excuse invoke excuse
to invoke defence if defence if
justification has justification has
failed failed

Necessity, Duress, Defence of Person

Emergency type situations

Duress – breaks the law pressure of a threat from another person, threat of bodily
harm and to do that specific crime
Necessity – more broad, unavoidable to break the law to save your life or someone
else’s life – the catch-all is necessity.

In exam don’t apply more than one of these – It’s meant to be residual defence if
Duress of DoP don’t apply.

Section 34 – wide enough to catch some duress – Check Ryan

4. PROVOCATION: Partial defence to murder (only for murder)

If you are charged with murder and they find provocation, then you go to
manslaughter.
HAS to be in the heat of passion
Trying to solve a problem with lack of flexibility in murder sentencing.

Criminal Code – New Provocation section 232

Murder reduced to manslaughter
232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the
person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable
by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an
ordinary person of the power of self-control is provocation for the purposes of this section, if the
accused acted on it on the sudden and before there was time for their passion to cool.

Questions of fact
(3) For the purposes of this section, the questions
(a) whether the conduct of the victim amounted to provocation under subsection (2),
and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges
he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing
anything that he had a legal right to do, or by doing anything that the accused incited him to do in
order to provide the accused with an excuse for causing death or bodily harm to any human being.

Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason
only that it was committed by a person who was being arrested illegally, but the fact that the
illegality of the arrest was known to the accused may be evidence of provocation for the purpose of
this section.

Provocation – defence operates to reduce sentence

Controversial defense – only a partial excuse – it’s not justification –

blameworthiness not taken away – allows for flexibility in sentencing

What counts as provocation – 3 things** this is what has changed in the act –

Used to have to be wrongful act or insult – Parliament has limited this, in the
new code – victim has to have done something that is an indictable offence
that has sentence of 5 years or more –

1. The victim has to have done a big offence (could be a hybrid offence as
long as it carries more than 5 years)
2. Has to be sufficient to deprive an ordinary person of self control
3. Has to be on the sudden, and before they could cool off.
There are 2 elements to the test: Objective & Subjective

Objective – provoking conduct depriving an ordinary person of self control

Subjective – you have to have lost control and act while out of control

R v Hill (1985) SCC Dickson – Leading Case on Provocation

Hill caused death of Pegg – 16 year old kid stabbed an older man he knew through
big brothers

Hill claimed to be provoked by the unwanted sexual advance (in current law this
would have to be sexual assault under the Code)

Hill charged with first degree and jury finds him guilty of second degree

ISSUE – should the judge have told the jury that “Ordinary Person” was someone the
same age and sex as the accused. To what extent do we take in the characteristics of
the accused?

This is supposed to be an objective standard, you wouldn’t want to take into account
that this was a person with a short fuse\

What’s the basis of this def: page 988

All humans are subject to outbursts of anger and passion

Ed. Really? Isn’t this what the Criminal Law is trying to stop?

Ordinary person standard:

Page 993: defined by DICKSON

- of normal temperament and self control

- not especially excitable, pugnacious (prone to fight)
- some characteristics have to be considered: and can leave that to the good
sense of the jury – to the extent that they are relevant to the situation

In this case jury instructions were fine. The jury wouldn’t have thought the accused
was an older woman for example.

3 big tropes:
Gay Panic cases – has to be sexual assault, not just homophobia
Adultery cases – Adultery is not an indictable offence
Excessive self defence – Still holds in cases of assault, sexual assault
This has been very controversial – used to be used in the above, like homophobia,
men who think they own their wives, You can’t just kill someone who pisses you off,
or who insults you.

END COURSE
Sample policy questions:

a) What is the status of de minimis non curat lex in Canadian law? Is the law
satisfactory in this regard? Explain your answer.
Beatty – the law should not punish a mere trifle.
Does not apply in sexual assault. McLachlin in R v J.A.
Also rejected in assault: Kubassek
Boulanger not a marked departure

b) How does the defence of duress apply in a case where the accused is charged with
murder. Should the law be changed? Explain your answer.
Code s. 17, Ryan, chart in summary. Duress in Murder? Notes say no – can’t Choose
one life over another?

c) Explain how failure to disclose one’s HIV+ status to a sexual partner can ground
criminal liability. Should the law be changed? Explain your answer.
Cuerrier, Mabior, (Hutchinson, condoms) Level of risk, seriousness of disease.

a) Inez had a troubled past. She experienced severe physical abuse as a child and
had never been able to form healthy relationships. She started drinking as a
teenager and was an alcoholic before she turned 20. She had no social support and
no hope for the future. One day, she was drinking more heavily than usual when she
experienced a blackout. Although she has no memory of this, it is clear that Inez left
her apartment, went out on the street and attacked an elderly passer-by for no
apparent reason. Inez punched and kicked the woman repeatedly, inflicting fatal
injuries. The medical experts who have examined the case have concluded that, in
her state of extreme intoxication, Inez had no conscious control of her actions when
she attacked the victim. Does Inez have an intoxication defence to a charge of second
degree murder or manslaughter? Should she have a defence? Explain your answer.
GENERAL INTENT SO WOULD BE CHARGED, ARE THERE POLICY REASONS HERE?

BOUCHARD LEBRUN – LOOK AT THE TEST FOR MD AND INTOXICATION

Ryan, section 33.1, in the past would have had Davieault for manslaughter. (non for
2nd degree murder), 33.1(2) marked departure (Tutton) Marked departure
substitutes intoxication for mens rea = fault for general offences (excludes property)

b) What is the relationship between self defence, duress and necessity? Is this
relationship affected by the adoption of the new self defence provisions in s. 34 of
the Criminal Code? Is the law relating to these defences satisfactory?

Ryan, also chart with all 3 defences and how they relate.
c) John had always wanted to hunt a black bear. He purchased hunting gear and
obtained a hunting license from a provincial wildlife and game office. Hunting
season started on September 1 and John got his license that day. On his way out of
the office, John asked the official who sold him the licence, “Just to clarify, I can use
this anytime right?” The official said, “Right! Good luck.” John didn’t have time to go
hunting that day so he put his gear and the license aside. He got busy and by the
time he got back to the idea of hunting it was mid-November. He went out on
November 16th and shot a bear, whereupon he was promptly charged by a
provincial game officer with hunting out of season. John claimed he thought he could
hunt anytime, because that’s what the official who sold him the licence said. The
game officer pointed out that the dates for the open season (September 1-October
31) were printed on the licence John was given. Does John have a defence? Should
he have a defence? Explain your answer. Provincial regulation. Strict Liability.
Mistake of Fact (Mistake of Law – in the Code, not a defence – section 19)

R v City of Sault Ste. Marie (1978) leading case on fault for regulatory offences –
Strict Liability. STRICT LIABILITY: Accused must prove that they were not negligent
and took reasonable care. Due diligence - but then the accused has to show due
diligence, due care – show that they did everything they could.

Review questions:

2014 exam #1

You are articling at the office of the Crown attorney. The Crown is pursuing the
following charges against Alice and Bob:

1. Alice is charged with impaired driving causing bodily harm (to wit, the
broken leg) contrary to s. 255(2) of the Criminal Code.

Look at the crimes in the Code:

Act and Fault? - yes, she was drunk driving. But her drunk driving was not
the cause of his accident -
CAUSATION – HER IMPAIRED DRIVING HAD TO HAVE CAUSED THE INJURY
– AND IN THIS CASE ANYONE COULD HAVE HIT HIM -
R v H (AD) - Walmart Baby case – Subjective is the default for offences in the
Criminal Code (unless there is vocabulary like to ought to know which would
add it to Objective)

2. Bob is charged with sexual assault contrary s. 271 of the Criminal Code.
You are asked to prepare a memorandum outlining the viable legal issues and
their likely resolution. INVOLUNTARY INTOXICATION - R v Luedecke (2008) –
mental disorder automatism – had sex in his sleep – Stone analysis

Automatism (sane) automatism. NEED AMNESIA

INVOLUNTARY INTOXICATION

(you can only use intoxication when it’s voluntary and self-induced)

Leading Case – Stone,

1 air of reality
Expert evidence
MD or not MD decided by judge

(check Rabey)

Bouchard-Lebrun

Daley – 3 levels of intoxication

Involuntary intoxication – DO NOT LOOK AT INTOXICATION – go to automatism

Goes to MD sane automatism – such that they didn’t form minimal general intent

Intoxication - Specific intent = higher level mens rea

QUESTION TWO
The Crown is pursuing the following charges in relation to this incident:
1. Eve is charged with second degree murder.
2. Glen is charged with criminal negligence causing death.

Dan and Eve had had many happy times in their long marriage.
I’m in love with Fern and I’m finished with you, Eve. It’s over!”

 Shocked and humiliated, Eve ran from the room. No one knew quite what to do.
Guests started murmuring among themselves and getting up to leave. Five
minutes later Dan was still in the room with a number of guests when Eve came
back, carrying Dan’s favourite antique dagger. She said, “You’re right about one
thing, Dan: it’s definitely over!” and she plunged the knife into Dan’s chest. Dan
clutched at the knife and sank to the floor. (Psychological blow, reduce to
manslaughter? Rabey sane automatism?) Would have been provocation in old
Code - Competing view from Crown psychiatrist: Rabey in extreme state of rage
o Extreme state of rage is not a defence
The scene was chaotic. Some guests screamed and collapsed in their chairs while
others tackled Eve and restrained her. Above the chaos came the commanding voice
of Glen, who said, “Everyone stay calm! Stay where you are and don’t let Eve leave.
Try to stop Dan’s bleeding. I’ll call 911 for an ambulance and police.” Glen fell to the
floor unconscious, where he lay for more than an hour until he came to. Seeing no
sign of police or emergency medical services after more than 20 minutes, one of the
other guests called 911. Tragically, the call came too late for Dan, who bled to death
while waiting for the ambulance. According to doctors, Dan probably would have
survived if medical help had been summoned promptly. (Intervening cause –
Maybin) The stabbing caused the death.

This is about voluntariness in Criminal Negligence s 219 - – YOU HAVE TO LOOK AT

INVOLUNTARINESS – Browne? Undertaking? Lack of fulfillment, involuntary, not a
marked and substantial departure

If you are knocked unconscious lack of fulfillment is the involuntariness

Killbride, DONE BY OMMISSION, didn’t do the thing for the ticket.

Criminal Negligence – needs to have caused bodily harm

Marked & Substantial?
Just a marked departure is dangerous driving

Voluntariness – person has to be in control of their own actions

Swaby suddenly in a position of doing a crime – no choice to do the action or not.