CRIMINAL LAW FINAL LONG SUMMARY

Table of Contents
SOURCES OF LAW.............................................................................................................................................6
Common Law.........................................................................................................................................................6
R V. SEDLEY (OFFENSE DEFINITION)......................................................................................................................................6
FREY V. FEDORUK (Role of Judges)........................................................................................................................................6
Doctrine of Precedent............................................................................................................................................6
R V. HENRY............................................................................................................................................................................ 6
HALLISBURY PRINCIPLE.........................................................................................................................................................6
CELLAR’S PRINCIPLE..............................................................................................................................................................6
Statute.....................................................................................................................................................................6
PRINCIPLES OF GENERAL INTERPRETATION..........................................................................................................................6
R V CLARK (2005)................................................................................................................................................................... 6
PRINCIPLES OF STATUTORY INTERPRETATION......................................................................................................................7
INTERPRETATION ACT (1990)................................................................................................................................................7
BILINGUAL INTERPRETATION................................................................................................................................................7
SCHREIBER V CANADA [2002]...............................................................................................................................................7
STRICT CONSTRUCTION.........................................................................................................................................................7
R V GOULIS (1981).................................................................................................................................................................7
R V PARÉ (1981)....................................................................................................................................................................7
Division of Power...................................................................................................................................................8
CONSTITUTION ACT (1867)...................................................................................................................................................8
REFERENCE: FIREARMS ACT CANADA (1996)........................................................................................................................8
Charter of Rights and Freedoms..........................................................................................................................8
HUNTER V SOUTHAM (1984 SCC)..........................................................................................................................................8
TYPES OF CHARTER CHALLENGES..........................................................................................................................................8
SECTION 7 & PRINCIPLES OF FUNDAMENTAL JUSTICE..........................................................................................................9
R V MALMO-LEVINE (SCC 2003)............................................................................................................................................9
CFCYL V CANADA (ATTORNEY GENERAL) (2004 SCC)............................................................................................................9
BEDFORD V CANADA (ATTORNEY GENERAL) (SCC 2013)......................................................................................................9
OAKES TEST FOR SECTION 1................................................................................................................................................10
PROCEDURAL OVERVIEW...........................................................................................................................10
TYPES OF OFFENSES............................................................................................................................................................10
INDICTABLE OFFENCES........................................................................................................................................................11
SUMMARY CONVICTION OFFENCES....................................................................................................................................11
HYBRID OFFENCES...............................................................................................................................................................11
COURT SYSTEM................................................................................................................................................................... 12
PRELIMINARY HEARINGS.....................................................................................................................................................12
ARRAIGNMENT.................................................................................................................................................................... 12
PLEA BARGAINING...............................................................................................................................................................12
THE JURY............................................................................................................................................................................. 12
PRESUMPTION OF INNOCENCE..................................................................................................................12
Common Law.......................................................................................................................................................12
WOOLMINGTON V DPP (1935)............................................................................................................................................12
BLACKSTONE RATIO............................................................................................................................................................13
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Reasonable Doubt................................................................................................................................................13
R V LIFCHUS (1997)..............................................................................................................................................................13
R V STARR (2002).................................................................................................................................................................13
R V S(JH) (2008 SCC)............................................................................................................................................................13
Section 11(d) of the Charter................................................................................................................................14
R V OAKES........................................................................................................................................................................... 14
Criminal Justice Policy........................................................................................................................................14
BILL C-32 – THE VICTIM BILL OF RIGHTS ACT.......................................................................................................................14
OUIMET REPORT (1969)......................................................................................................................................................15
LAW REFORM COMMISSION OF CANADA REPORT (1976)..................................................................................................15
THE HARM PRINCIPLE..........................................................................................................................................................15
R V MALMO-LEVINE (2003).................................................................................................................................................15
The Adversary System........................................................................................................................................16
FEATURES OF THE SYSTEM..................................................................................................................................................16
BENEFITS OF THE SYSTEM...................................................................................................................................................16
DISADVANTAGES OF THE SYSTEM.......................................................................................................................................16
R V RDS (1997).................................................................................................................................................................... 16
THE ACT REQUIREMENT..............................................................................................................................17
Offence Elements.................................................................................................................................................17
Consent.................................................................................................................................................................17
R V JOBIDON (1991)............................................................................................................................................................17
R V MOQUIN (2010)............................................................................................................................................................18
R V CUERRIER (1998)...........................................................................................................................................................18
R V MABIOR (2012).............................................................................................................................................................19
R V HUTCHINSON (2014).....................................................................................................................................................20
Omissions..............................................................................................................................................................20
FAGAN V COMMISIONER OF METROPOLITAN POLICE (1968).............................................................................................20
R V MILLER (1983)...............................................................................................................................................................20
MOORE V R (1979)..............................................................................................................................................................21
R V THORNTON (1991)........................................................................................................................................................21
R V BROWNE....................................................................................................................................................................... 21
R V PETTERSON (2005)........................................................................................................................................................22
Voluntariness........................................................................................................................................................22
RABEY V R (1980)................................................................................................................................................................ 23
R V PARKS (1992).................................................................................................................................................................23
R V STONE (1999)................................................................................................................................................................23
R V LUCKI (1955)..................................................................................................................................................................23
R V WOLFE (1975)............................................................................................................................................................... 23
R V SWABY (2001)...............................................................................................................................................................23
R V RYAN (1967 AU)............................................................................................................................................................24
KILBRIDE V LAKE (1962 NZ)..................................................................................................................................................24
Causation..............................................................................................................................................................24
SMITHERS V R (1978)..........................................................................................................................................................24
R V HARBOTTLE (1993)........................................................................................................................................................24
R V NETTE (2001).................................................................................................................................................................25
R V TALBOT (2007)..............................................................................................................................................................25
Intervening Cause................................................................................................................................................26

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R V SMITH (1959)................................................................................................................................................................ 26
R V BLAUE (1975)................................................................................................................................................................ 26
R V MAYBIN (2012 SCC).......................................................................................................................................................27
THE FAULT REQUIREMENT (MENS REA).................................................................................................27
R V HUNDAL (1993).............................................................................................................................................................28
R V THEROUX (1993)...........................................................................................................................................................28
R V MULLIGAN (1974).........................................................................................................................................................28
R V ORTT.............................................................................................................................................................................. 28
R V WALLE........................................................................................................................................................................... 28
Fault for Regulatory Offences............................................................................................................................28
BEAVER V R (SCC 1957).......................................................................................................................................................29
R V CITY OF SAULT STE. MARIE (SCC 1978)..........................................................................................................................29
R V WHOLESALE TRAVEL GROUP INC (1991 SCC)................................................................................................................30
Constitutionally Required Fault.........................................................................................................................30
REFERENCE RE: SECTION 94(2) OF THE MOTOR VEHICLE ACT (BC) (1985 SCC)...................................................................30
R V CANCOLI THERMAL.......................................................................................................................................................31
R V BEAUCHAMP (1953)......................................................................................................................................................31
Fault for Criminal Offences (Homicide)............................................................................................................31
SIMPSON V R (1981)............................................................................................................................................................32
R V EDELENBOS (2004 ONCA)..............................................................................................................................................32
Constructed Murder............................................................................................................................................32
VAILLANCOURT V R (1987 SCC)...........................................................................................................................................33
R V MARTINEAU (1990 SCC)................................................................................................................................................33
First Degree Murder (S.231)...............................................................................................................................34
R V SMITH (1979 SCC).........................................................................................................................................................34
R V NYGAARD & SCHIMMENS (1989 SCC)...........................................................................................................................34
R V COLLINS (1989 SCC).......................................................................................................................................................35
Subjective Mens Rea Requirement....................................................................................................................35
R V H(AD) (2013 SCC)..........................................................................................................................................................35
STATES OF MIND FAULT LADDER........................................................................................................................................36
Intention or Knowledge.......................................................................................................................................36
R V BUZZANGA & DUROCHER (1979 SCC)...........................................................................................................................36
R V THEROUX (1993 SCC)....................................................................................................................................................37
R V BOULANGER (2006 SCC)................................................................................................................................................37
Recklessness or Willful Blindness......................................................................................................................38
SANSREGRET V R (1985 SCC)...............................................................................................................................................38
R V JORGENSEN (1996 SCC).................................................................................................................................................38
R V LAGACE (2003 SCC).......................................................................................................................................................38
R V BLONDIN (1971 BCCA)..................................................................................................................................................38
Crime of Objective Fault - Negligence...............................................................................................................39
O’GRADY V SPARLING (1960 SCC).......................................................................................................................................39
R V TUTTON & TUTTON (1989 scc)......................................................................................................................................39
WAITE V R (1989 SCC).........................................................................................................................................................39
R V ANDERSON (1990 SCC)..................................................................................................................................................40
Marked Departure Test for Objective Fault Crimes.......................................................................................40
CONTINUUM OF NEGLIGENT DRIVING................................................................................................................................40
R V HUNDAL (1993 SCC)......................................................................................................................................................40
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R V CREIGHTON (1993 SCC).................................................................................................................................................41
OBJECTIVE FAULT TEST FOR MANSLAUGHTER....................................................................................................................41
R V BEATTY (2008 SCC)........................................................................................................................................................42
R V F(J) (2008 COA)..............................................................................................................................................................42
Crimes Based on Predicate Offences.................................................................................................................43
R V CREIGHTON (1993 SCC).................................................................................................................................................43
RAPE AND SEXUAL ASSAULT......................................................................................................................44
Definition of Rape (Pre-1982)..........................................................................................................................................44
Historical Rules Specific to Rape Cases............................................................................................................................44
Young, “When Titans Clash: The Limits of Constitutional Jurisdiction”...........................................................................44
Mistaken Belief in Consent.................................................................................................................................45
PAPPAJOHN V R (1980 SCC)................................................................................................................................................45
SANSREGRET V R (1985 SCC)...............................................................................................................................................46
Crimes of Sexual Assault (Post-1982)................................................................................................................46
R V CHASE (1987 SCC).........................................................................................................................................................47
R V BULMER (1987 SCC)......................................................................................................................................................48
R V OSSOLIN........................................................................................................................................................................ 49
R V DAVIS (1999 SCC)..........................................................................................................................................................49
Estrich, “Teaching Rape Law”.........................................................................................................................................49
Consent.................................................................................................................................................................49
R V EWANCHUK (1999 SCC).................................................................................................................................................50
Limits on the Defence of Mistaken Belief in Consent.......................................................................................................51
R V CORNEJO (2013 COA)....................................................................................................................................................51
R V A(J) (2011 SCC)..............................................................................................................................................................52
MISTAKE............................................................................................................................................................52
Mistake of Fact.....................................................................................................................................................52
R V HESS & NGUYEN (1990 SCC)..........................................................................................................................................53
Mistake as to the Nature of the Act................................................................................................................................53
R V LADUE (1965)................................................................................................................................................................54
R V KUNDEUS (1976 SCC)....................................................................................................................................................54
Mistake of Law.....................................................................................................................................................54
R V ESOP (1836).................................................................................................................................................................. 54
R V CAMPBELL & MLYNARCHUK (1972)..............................................................................................................................55
R V MACDONALD (2014 SCC)..............................................................................................................................................55
Exceptions to Mistake of Law Defences..........................................................................................................................55
R V DOROSH (COA 2004).....................................................................................................................................................55
INCAPACITY......................................................................................................................................................56
Age.........................................................................................................................................................................56
R V B(D) (2008 SCC).............................................................................................................................................................56
Insanity (Mental Disorder).................................................................................................................................56
US V FREEMAN (1966).........................................................................................................................................................57
R V SWAIN (SCC 1991).........................................................................................................................................................57
COOPER V R (1979 SCC).......................................................................................................................................................57
Disease of the Mind Test.................................................................................................................................................58
KJELDSEN V R (1981 SCC)....................................................................................................................................................58
R V ABBEY (1982 SCC)..........................................................................................................................................................59
R V CHAULK (1990 SCC).......................................................................................................................................................59
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R V OOMMEN (1994 SCC)....................................................................................................................................................60
Automatism..........................................................................................................................................................60
R V RABEY (1977 SCC)..........................................................................................................................................................60
R V PARKS (1992 SCC)..........................................................................................................................................................61
R V STONE (1999 SCC).........................................................................................................................................................62
R V LUEDECKE (2008 ONCA)................................................................................................................................................63
R V BOUCHARD-LEBRUN (2011 COA)..................................................................................................................................64
Intoxication...........................................................................................................................................................65
Becker & Parker, “The Intoxicated Offender – A Problem of Responsibility”...................................................................65
R V BERNARD (1988 SCC)....................................................................................................................................................65
Judgements in Bernard...................................................................................................................................................66
Charter Standards...........................................................................................................................................................66
R V DAVIAULT (1994 SCC)....................................................................................................................................................66
Reaction to Daviault........................................................................................................................................................67
R V DALEY (SCC 2007)..........................................................................................................................................................68
R V BOUCHARD-LEBRUN (2011 SCC)...................................................................................................................................68
R V CHAULK (2007 NSCA)....................................................................................................................................................69
JUSTIFICATIONS AND EXCUSES.................................................................................................................69
J.F. Stephen, “The Nineteenth Century”..........................................................................................................................69
Air of Reality Defences........................................................................................................................................69
R V CINOUS (2002 SCC).......................................................................................................................................................70
Defence of Person.................................................................................................................................................70
R V LAVALLEE (1990 scc)......................................................................................................................................................71
R V MALLOT (1998 SCC)......................................................................................................................................................72
Necessity................................................................................................................................................................72
R V DUDLEY & STEPHENS....................................................................................................................................................72
PERKA V R (1984 SCC)..........................................................................................................................................................73
R V LATIMER (2001 SCC)......................................................................................................................................................74
Duress....................................................................................................................................................................74
R V PAQUETTE (1977 SCC)...................................................................................................................................................75
R V HIBBERT (1995 SCC)......................................................................................................................................................75
Evolution of the Defence of Duress.................................................................................................................................76
R V RYAN (2013 SCC)...........................................................................................................................................................76
Statutory and Common Law Duress after Ryan...............................................................................................................77
Provocation...........................................................................................................................................................77
R V HILL (1985 SCC).............................................................................................................................................................78

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SOURCES OF LAW
Constitution – S. 91 Criminal  Federal Jursidiction/S. 92 Provincial Jurisdiction
Statutes – Criminal Code of Canada 1955 – defines offences/elements/sentencing
Common Law (Case Law) – S. 9 abolishes common law offences

Common Law
R V. SEDLEY (OFFENSE DEFINITION)
This case stands Charge (public indecency) was not a law in criminal code – this case demonstrates historically
for: how judges developed offenses and sentences on a case-by-case basis

FREY V. FEDORUK (ROLE OF JUDGES)

Frey sued for damages (tort) on the basis that he was arrested for a crime (peeping Tom) not
This case stands an offence in the criminal code nor in common law.
for: Judges cannot create criminal offenses – they must be codified offenses
(ImmoralIllegal)

Doctrine of Precedent
 Common law develops through precedent – helps guide judicial reasoning BUT is not always binding
 Stare decisis – to stand by what is decided. Precedent binds future cases b/c like cases should be treated alike
 How to decide if decision is binding:
o Which court made the statement?
 Every court is bound by a higher court (SCC  PROV CT APPEAL  PROV SUP CT)
o In which judgement do we find the statement?
 Majority  binding vs. Dissent/Concurring  persuasive
o In which part of the judgement is the statement?
 Ratio decidendi  principle of law  binding
 Obiter dicta  authoritative commentary  binding
 Obiter  unauthoritative commentary persuasive
R V. HENRY
SCC confirms that its practice is not to depart from its own precedents unless there is some
This case stands
compelling reason to do so. Created distinction b/w ratio & obiter dicta.
for:
Ratio from SCC is binding as well as commentary that is intended to be binding.
HALLISBURY PRINCIPLE
A case is only authority for what it actually decides  danger of this principle is that it may lead to uncertainty as to
what is precedent what is not
CELLAR’S PRINCIPLE
Sometimes the SCC rules on a point even when that point is not strictly necessary to deciding that case

Statute
PRINCIPLES OF GENERAL INTERPRETATION
(Iacobucci & Arbour) Context and textual considerations are extremely important. It is the judge’s job to try not to
manipulate context of statutory legislation and recognize the context of intended application. They must presume that
legislation is enacted to comply with constitutional norms  acknowledges the centrality of constitutional values in
legislative process and political/legal culture.
R V CLARK (2005)
FACTS Appellant seen masturbating near covered window. Neighbors from across the street see him with
binoculars.
CODE S. 173(1)(a) Indecent exposure
ISSUE Was Clark’s living room a public place?
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 Were the neighbours in Clark’s presence?
Did he wilfully commit the indecent act if he did not know he was being watched?
HELD No
REASONING Appellant contends that he did not willfully commit this indecent act in a “public place” in the
presence of one or more persons as required by act because:
 His living room was not a public place
 The neighbors were using binoculars to watch him so not in their presence directly
 He cannot be said to have willfully committed the indecent act in the presence of anyone
since he did not know he was being watched
SCC must determine what was intended in the act by the term public place  decided his living
room is not a public case b/c access means physical not visual access.
SCC did not have to answer other two questions.
RATIO When interpreting statutory meaning, in some cases, judges seek to use ordinary meaning of
words.
PRINCIPLES OF STATUTORY INTERPRETATION
How should the courts understand what the words of a statute mean?
1. In their context
2. Grammatical and ordinary sense
3. Harmoniously with the scheme of the act
4. Harmoniously with the objective of the act
INTERPRETATION ACT (1990)
Section 10. Every act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything
that the legislature seems to be for the public good or to prevent or punish the doing of anything that it deems to be
contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as
will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
BILINGUAL INTERPRETATION
Where meaning is unclear in one language, look to the clearer interpretation to ensure accuracy.
SCHREIBER V CANADA [2002]
SCC decided that where one version of the statute is ambiguous, “the common meaning of the
This case stands two versions would a priori be preferred.”
for: Where one version is broader than the other, the more restricted of the two is preferred 
strict construction
STRICT CONSTRUCTION
Ambiguity in statute poses serious issues because principles of criminal law states that in order to ensure freedoms,
individuals are entitled to fair notice of which conduct is subject to criminal sanction
R V GOULIS (1981)
Rule of Strict Construction: When you can interpret a statute two different ways reasonably,
you must choose the interpretation that most favors the accused because:
 Broad interpretation of statutes may lead to a conviction which restricts liberties
This case stands
 If a law can be interpreted in more than one way, the system is not giving fair notice of
for:
what the law actually is
This principle applies only when there is true ambiguity  where meaning remains unclear
after a full contextual analysis of the statute
R V PARÉ (1981)
FACTS Accused lured young boy under bridge and indecently assaults him. Boy tells accused he was going
to tell mother of the incident that had occurred, accused laid boy on his back and killed him
through strangulation.
CODE S. 231(5) First degree murder – death is caused while committing sexual assault.
ISSUE 1. Did accused kill victim “while committing” assault?
2. Whether the doctrine of strict construction applies in interpreting “while committing”?
HELD Accused convicted of first degree murder
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 REASONING WILSON J
In order to prove 1st degree the murder must have been committed while committing the
underlying offense. Accused said they were two separate transactions.
Implication of Strict Construction  problematic in this case b/c (a) it is difficult to pinpoint where
underlying offense (sexual assault) ended and second offense (murder) began, and, (b) distinctions
between two incidents would be arbitrary and immoral
1. Chose to adopt single transaction analysis b/c acts leading up to death were all one action.
Death was caused fluidly by initial assault – accused killed victim “while committing” act of
assault.
2. Strict construction did not apply because there were not two competing and reasonable
interpretations of the statute  single transaction analysis is consistent with intention of
purpose of statute.
RATIO SCC recognizes principle of strict construction but only applies where there are two reasonable
interpretations.

Division of Power
CONSTITUTION ACT (1867)
Sets out division of legislative power:
- Powers of Parliament  criminal law & establishment, maintenance and management of penitentiaries
- Exclusive Powers of Provincial Legislatures  establishment, maintenance and management of Public
Reformatory Prisons in and for the province
o Property and civil rights
o Administration of justice (courts)
o Imposition of fine, penalty or imprisonment for enforcing laws made by the provinces
Federalism – government power is divided between federal government and provincial governments, topics for
jurisdiction are thereby differentiated
- Section 91(27): Federal Criminal Law Power – gives federal government over substantive criminal law and
procedure
o Substantive concerns questions about what acts and actors are blameworthy and punishable
o Procedure concerns how we administer these substantive rules
- Section 92(13) & (15): Provision for Provincial Offences – not true criminal offences because they are provincial
and not codified
REFERENCE: FIREARMS ACT CANADA (1996)
AB claims Firearms Act was ultra vires because gun control falls under S.92 (property and civil
Case Elements rights) but federal government claims it falls under S.91 (criminal law power). SCC confirms it
falls under government control.
Test for Determining Federal Jurisdiction
Importance of 1. Determine pith and substance of law  what is it fundamentally about? What is the
Case: purpose and effect of the law?
2. Which head of power does the pith and substance fall under?  S. 91 or 92?

Charter of Rights and Freedoms

Parliament can pass legislation as it wants but if the legislation then violates some right in the Charter, the legislation will
be struck down  Charter challenges are brought before the courts and judges must decide if they are unconstitutional.
HUNTER V SOUTHAM (1984 SCC)
Case Elements Early charter challenge: does search and seizure violate Section 8 of the Charter?
Importance of Broad and purposeful interpretations of the Charter must be used – previous principles of
Case: statutory interpretation do not apply
TYPES OF CHARTER CHALLENGES
There are two types of Charter challenges:

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 1. Challenges to Conduct  concern a challenge that a government official (usually police officer) infringed on a
Charter standard such as Section 8 and 9
2. Challenges to Law  where the law is on trial, in these challenges it is up to the courts to decide whether or not
the law is unconstitutional – not concerned with evidence
SECTION 7 & PRINCIPLES OF FUNDAMENTAL JUSTICE
Section 7 of the Charter. Everyone has the right to life, liberty or security of the person, and the right to not be
deprived thereof except in accordance with the principles of fundamental justice.
Principles of Fundamental Justice
Life, liberty or security of the person will be said to be deprived if a criminal law is:
1. Too vague
2. Overly broad
3. Arbitrary
4. Grossly disproportionate
R V MALMO-LEVINE (SCC 2003)
Led to SCC to establish general test for determining a principle of fundamental justice:
i. It must be a legal principle
This case stands ii. There must be significant societal consensus that it is a fundamental to the way in
for: which the legal system ought to operate
iii. It must be identified with sufficient legal precision to yield a manageable standard
SCC said that if a penal law is too vague it should be declared unconstitutional
CFCYL V CANADA (ATTORNEY GENERAL) (2004 SCC)
FACTS Canadian Foundation for Children, Youth & the Law applied to strike down S. 43 of the Criminal
Code (regarding the use of force by a school teacher) as being too vague thus violating a principle
of fundamental justice
CODE S.43 Every schoolteacher, parent or person standing in the place of a parent is justified in using
force by way of correction toward a pupil or child, as the case may be, who is under his care, if the
force does not exceed what is reasonable under the circumstances.
ISSUE Does S. 43 delineate a risk zone for criminal sanction due to vagueness?
What is the standard of vagueness that would render a law in violation of the Charter?
HELD Charter challenge rejected.
REASONING When s. 43 is assessed in context and pertaining to how it has been interpreted by the courts – J
decides it should be strictly construed. S. 43 is clear about who it applies to (schoolteacher, parent,
etc.) is less clear about which conduct falls into a risk zone. Delineates two elements the conduct
must establish:
(1) The force must be by way of correction – insinuates need for educative/corrective purpose
(2) The force must be reasonable under the circumstances – child must be able to
benefit/must have the capacity to learn  question is whether or not this element is too
vague; majority argues this is an objective not subjective test
RATIO Test for Vagueness – A law must be intelligible to citizens and those enforcing the law
Does the law/statute delineate a risk zone for criminal sanction?
- If no, law is too vague
BEDFORD V CANADA (ATTORNEY GENERAL) (SCC 2013)
FACTS Section 7 challenge against prostitution laws in the Criminal Code
S.213(1)(c) violates S.7 by putting safety and lives of prostitutes at risk, and by preventing them
from implementing safety measures that could protect them from violence.
CODE S.213(1)(c)
ISSUE What is the test for finding breaches of fundamental justice under section 7?
HELD Challenge accepted – laws deemed unconstitutional
REASONING Section 210: The Bawdy House Prohibition
Objective: to combat nuisance, neighbourhood disruption or disorder and to safeguard public health and
safety.

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 Analysis: SC concluded that this provision was grossly disproportionate to their objectives since allowing the
establishment of a bawdy house would provide more safety for the prostitutes  grossly disproportionate
Section 212(1)(j): Living on the Avails of Prostitution
Objective: to target pimps and the parasitic, exploitative conduct in which they engage in.
Analysis: SC concluded that this law punishes everyone who lives on the avails of prostitution without
distinguishing between those who exploit prostitutes and those who could increase their safety. Law is
overbroad because it includes some conduct that bears no relation to its purpose.
Section 213(1)(c): Communicating in Public for the Purposes of Prostitution
Objective: to take prostitution off the streets and out of public view to prevent nuisance/OR/deter
prostitution/prevent other street crimes often associated with prostitution ( this was rejected by the
courts)
Analysis: this provision displaces prostitutes to more secluded and less secure locations. This provision also
makes it harder for prostitutes to screen their customer (drunk/dangerous) as well as bargain for prices 
may indirectly lead to less earnings and less safety precautions. SC ruled this provision is a grossly
disproportionate to the possibility of nuisance caused by street prostitution.
RATIO Test for Breach of Section 7:
1. Arbitrariness – is there a direct connection between the purpose of the law and the effect it
will have on the individual?
2. Overbreadth – is the law so broad in scope that it includes some conduct that bear no relation
to its purpose?
3. Gross Disproportionality – does the seriousness of deprivation outweigh the objective of the
law?
OAKES TEST FOR SECTION 1
Section 1. The Canadian Charter of Rights and Freedoms 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.
(Dickson) Section 1 has two functions:
1. Guarantees the rights and freedoms in provisions set out by the government
2. Explicitly states the justificatory criteria against which limitations on those rights and freedoms must be
measured
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).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
Case Elements to the accused to prove that he was not guilty. This is called a “reverse onus.”
SCC struck down this law based on charter breach.
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?

OAKES TEST - Is the limit on the right (the breach of charter) prescribed by law?
1. Is there a pressing and substantial objective?
Importance of 2. Is the offending law proportionate?
Case: a. Is the limit rationally connected to the purpose/objective?
b. Does the limit minimally impair the right in order to achieve the objective?
3. Are the deleterious effects of the limit proportionate to its salutary effects?

PROCEDURAL OVERVIEW
TYPES OF OFFENSES
There are three types of offenses:
1. Summary conviction (least serious) (triable by judge only)
2. Indictable offences (most serious) (triable by judge or jury)
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 3. Hybrid offences (Crown can choose summary or indictment)
4. Regulatory offences (contra-vension)
INDICTABLE OFFENCES
Are the most serious types of offences.
More serious indictable offenses given to the exclusive jurisdiction of the Superior Court of Criminal Jurisdiction (in ON
– the Superior Court of Justice)
- S. 469 – tried in Superior Court by judge and jury. There is an option to have preliminary inquiry and have the
highest level of procedural rights
Less serious indictable offences  are within the jurisdiction of a provincial court judges
- S. 563 – tried by Provincial Court with no jury or preliminary hearing
For anything in-between, the accused can elect mode of trial; ex. Robbery
- S.536(2) – the accused will be put to an election and will be asked to choose to be tried by a provincial court
judge without a jury, a judge w/o a jury, or by a court composed of judge and jury.
- S.565(1)(c) - If the accused does not elect a mode of trial, he will be deemed to have elected trial by judge and
jury.
- S.555 – the provincial court judge may decide that the matter should be proceeded with by a judge or jury
- S.568 – the Attorney General may override the accused’s decision and compel a jury trial where the offence is
punishable by more than 5 years
In order to figure out how your offence is going to be tried you must:
1. Find out what type of offence
2. Then check S.553 and 469 to make sure your offence isn’t listed
SUMMARY CONVICTION OFFENCES
Maximum penalty for any summary conviction offence, unless otherwise provided, is $5,000 or six months
imprisonment or both – for this reason there is no specific punishment by offence crown must choose sanction in
between minimum and maximum.
- Are always tried in Provincial court or by a justice of the peace
- Parliament could establish a penalty of 5 years imprisonment less a day without a Charter violation
- When charged with a summary offence, the accused can opt to not be present at court, can have a lawyer or
other agent appear for him, unless stated by the judge
- Most common form of trial b/c these offences are tried by provincial court judge alone
HYBRID OFFENCES
- Are offences for which the prosecution may choose whether to proceed by way of summary conviction or by
indictment
- In deciding how to proceed, the Crown may consider:
o The higher available penalty for indictable offences
o A prior criminal record by the accused
o A desire to require the accused’s presence
o Judge shopping
- In 1994 Parliament increased the maximum penalty for hybrid offences when proceeded against by way of
summary conviction to 18 months
- How the crown chooses to prosecute also affects what court the accused will be tried in

11
COURT SYSTEM

PRELIMINARY HEARINGS
Are mini trials before a judge. Purpose is to determine whether or not there is enough evidence to proceed to trial.
Crown must show there is a prima facie case in order for trial to begin.
Outcomes:
- Accused committed to trial
- Trial dismissed/accused discharged
Defense normally doesn’t present any evidence because it is not strategically helpful for the defense to disclose any
evidence. Only the Crown present evidence, Defense usually uses hearing as a discovery tool of what approach Crown is
going to take.
ARRAIGNMENT
Accused appears to court to submit a plea
- Guilty – accused admits guilt of offense
- Not guilty – crown is required to prove guilt
PLEA BARGAINING
Agreement b/w defense and crown for the accused to plead guilty; usually includes incentive (such as pleading guilty to
a less serious charge
- Important to the system b/c trials are so expensive – but dangerous because of the likelihood of wrongful
conviction
THE JURY
Jury selection is done by both the Crown and the Defense – very regulated process and each side can object to a jury
selection.
Normally Jury is comprised of 12 triers of fact – verdicts must be unanimous, if not a new trial is ordered.
- Questions of law are decided by the judge, questions of fact are determined by the jury – however, the judge is
to instruct the jury on what the law is so that the jury can apply the law to the case and determine whether the
accused is guilty or not
- Jury instructions must satisfy 2 conflicting requirements:
 Need to state accurately the relevant law
 Need to state the law so that the jury understands it

PRESUMPTION OF INNOCENCE
Onus is on the Crown to  a standard of proof beyond a reasonable doubt

Common Law
WOOLMINGTON V DPP (1935)
FACTS Accused sentenced to death for murder of wife. Wife leaves him, moves back in with mother. Went
to her mother’s home with a gun, threatened suicide, alleges “accidentally” killed her. During trial,

12
 judge told jury that the case against accused was so strong that the burden of proof was on him to
show shooting was accidental.
CODE N/A (murder)
ISSUE Was the plaintiff denied his right to the presumption of innocence?
HELD Conviction overturned – accused discharged.
REASONING Lord Sankey established that it is the golden thread of English Common Law that it is always the
duty of the prosecution to prove the prisoner’s guilt, regardless of the charge involved. Elaborated
that if there is even the smallest amount of reasonable doubt, whether coming from evidence of
the Crown or Defendant, the Crown has not successfully proven guilt.
RATIO The burden of proof in criminal matters is that the prosecution must prove the Defendant’s guilt
beyond a reasonable doubt.
BLACKSTONE RATIO
Letting 10 guilty people go is better than convicting 1 innocent person. Why? Because wrongful convictions are a failure
of justice.

Reasonable Doubt
R V LIFCHUS (1997)
FACTS Accused appealing on the basis that judge misdirected jury by saying that beyond a reasonable
doubt was a simple, everyday idea, which should be understood using the ordinary meaning
approach.
CODE Fraud & theft
ISSUE Did the judge err in law by telling the jury to use common-sense meaning of beyond a reasonable
doubt?
How should a judge charge a jury on the meaning of beyond a reasonable doubt?
HELD Yes
REASONING CORY J (UNANIMOUS) Because liberty is at stake in criminal trials, it is fundamental that jurors
understand exactly what is meant by the standard of proof/guilt beyond a reasonable doubt. SCC
provided specific guidelines for how this standard must be explained and what should be avoided –
is the guideline provision now used by most judges. However, SCC also says that this instruction
guideline is not a magical incantation which need be followed word for word – judge must tailor
instruction of concepts in a way that is most contextually helpful.
RATIO When defining the standard of beyond a reasonable doubt the jury should be explained the
important underlying concepts and how fundamental this threshold is.

If a different charge is used, a verdict should only be overturned to order a new trial if there is a
reasonable likelihood that the jury misapprehended the standard of proof.
R V STARR (2002)
FACTS Accused appealed on the basis that the TJ misled the jury when explaining the standard of proof.
CODE 1st Degree Murder
ISSUE Did the judge err in law when explaining the standard of proof to the jury?
HELD Appeal allowed – new trial order
REASONING IACOBUCCI Although TJ did establish that the onus is on the Crown to prove guilt, and properly
explained the presumption of innocence they did not instruct a jury on how a reasonable doubt is
defined.
RATIO A jury must be instructed that the standard of proof in criminal trials falls much closer to absolute
certainty than to proof of a balance of probabilities.
R V S(JH) (2008 SCC)
FACTS Accused charged with raping stepdaughter. Credibility of victim was questionable b/c there was
evidence that she may have made the accusation up b/c she was upset with stepfather. Accused
and victim were the only witness. Accused convicted. Appeal on the basis that TJ did not sufficiently
explain the principle that disbelief in accused’s testimony does not amount to proof of guilty
13
 beyond a reasonable doubt.
CODE n/a
ISSUE Did the TJ sufficiently explain the principles of reasonable doubt as they pertain to credibility of the
witness?
HELD Yes – conviction upheld.
REASONING BINNIE (Majority) believed that the TJ did do enough to explain reasonable doubt in credibility
issues. Makes reference to WD Charge in Credibility:
1. If you believe the evidence of the accused  acquit
2. If you do not believe the testimony of the accused but are left w/reasonable doubt  acquit
Lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a
reasonable doubt
RATIO

Section 11(d) of the Charter

Any person charged with an offence has the right:
11(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and
impartial tribunal.
Persuasive Burdens of Proof  Reverse onus in which the onus is on the accused to prove on a balance of probabilities
– this is usually mandated in a statute by Parliament. Have three main features:
1. Apply at the end of the case
2. Never shift in the sense that it is known from the start who bears the burden
3. The trier of fact must find against the burden-holder in a borderline case
Evidentiary Burdens of Proof  Reverse onus in which the accused is called upon to provide some evidence to doubt
the fact or conclusion in question
Are reverse onuses contrary to Section 11(d) of the Charter?
R V OAKES
FACTS Accused found in possession of Marijuana – in court has a burden to prove it was simple possession
vs. possession for the purpose of trafficking. Accused questions the constitutionality of the reverse
onus in S.8 of NCA
CODE Section 8 of Narcotics Control Act (repealed – now Controlled Drugs and Substances Act)
ISSUE Does S.8 of the NCA violate S.11(d) of the Charter?
HELD Yes – conviction dismissed – provision struck down.
REASONING DICKSON (Majority) It is clear that NCA creates a reverse onus on the defendant and they must
determine if this provision violates the Charter right to the presumption of innocence. Section 11(d)
guarantees certain rights, including accused should not bear burden of proof. Provision is not
exempt merely because it is a federal statute.
RATIO Section 11(d) guarantees:
1. Accused must be proven guilty beyond a reasonable doubt;
2. The Crown must bear the burden of proof
3. Criminal prosecutions must be carried out in accordance with lawful and procedural
fairness.

Criminal Justice Policy

BILL C-32 – THE VICTIM BILL OF RIGHTS ACT
Victims of crime have the following rights:
a. the right to information about the criminal justice system, the programs and services that are available to
victims of crime and the complaint procedures that are available to them when their rights have been infringed
or denied;
b. the right to information about the status of the investigation and the criminal proceedings, as well as
information about reviews while the offender is subject to the corrections process, or about hearings after the

14
 accused is found not criminally responsible on account of mental disorder or unfit to stand trial, and information
about the decisions made at those reviews and hearings;
c. the right to have their security and privacy considered by the appropriate authorities in the criminal justice
system;
d. the right to protection from intimidation and retaliation;
e. the right to request testimonial aids;
f. the right to convey their views about decisions to be made by authorities in the criminal justice system that
affect the victim’s rights under this Act and to have those views considered;
g. the right to present a victim impact statement and to have it considered;
h. the right to have the courts consider making, in all cases, a restitution order against the offender; and
i. the right to have a restitution order entered as a civil court judgment that is enforceable against the offender if
the amount owing under the restitution order is not paid.
OUIMET REPORT (1969)
1. No act should be criminally proscribed unless its incidence, actual or potential, is substantially damaging to
society
2. No act should be criminally prohibited where its incidence may adequately be controlled by social forces other
than the criminal process.
3. No law should give rise to social or personal damage greater than it was designed to prevent.
LAW REFORM COMMISSION OF CANADA REPORT (1976)
Only those acts thought seriously wrong by our society should count as crimes but not all such acts should be crimes 
cannot make something a crime just because it is wrong
 For an act to become a crime:
o It must cause harm to other people, to society or, in special cases to those needing protection from
themselves
o It must cause harm that is serious both in nature and degree
o It must cause harm that is best dealt with through the mechanism of the criminal law
Any other offences should be excluded from criminal sanction and qualify merely as quasi-crimes or violations
THE HARM PRINCIPLE
Mill – The only basis on which stat power could be used validly is to prevent people from doing harm to others –
otherwise the state should not interfere with personal affairs.
Critiques of the Harm Principle:
a) Anything can be harm – what counts as harm depends on values as an individual and society
b) Role of state – may not be simply to prevent individuals from harming one another, role of the state may be
expanded in certain circumstances and for distinct purposes
Does the harm principle mean that any conduct that is harmful should be criminal?
No. Criminal acts must be harmful, but harmful acts need not all be criminal.
R V MALMO-LEVINE (2003)
FACTS M-L challenging the criminalization of Marijuana as unconstitutional b/c criminal law should be
limited to criminalization of conduct that causes harm. Argues that the harm principle should be a
principle of fundamental justice.
CODE Section 7 of Charter
Controlled Drugs and Substances Act
ISSUE 1. Is the harm principle a principle of fundamental justice?
a. If the harm principle is a principle of fundamental justice, does Marijuana prohibition
violate S.7 since Marijuana does not inflict harm on anyone?
HELD 1. Harm principle is not a principle of fundamental justice
REASONING Gonthier & Binnie J Develop general test for determining whether something is a principle of
fundamental justice:
1. A legal principle – No. Harm principle is an important state interest but is not a legal principle.
2. Societal Consensus as being fundamental to the legal system – No. Absence of harm does not
create barrier to legislative action. There is no general prohibition against criminalizing harm to

15
 self.
3. Manageable standard – No. Cannot yield a precise definition of what is a harm, thus making it a
difficult standard to uphold.
RATIO Causing harm is not a necessary requirement for an act to be criminal. Crimes without harm are
constitutionally justifiable and do not offend the POFJ under S.7 of the Charter.

The Adversary System

Method of ascertaining the facts at common law is adversarial  differs from inquisitorial system due to the passivity of
the judge (is not to personally investigate but more so hear and try the facts)
FEATURES OF THE SYSTEM
1. Party Control
a. Crown is a party and lays the charges
b. Crown and defense lay the evidence
c. Choose the witnesses and choose the questions
d. Can even put issues beyond dispute – admissions  pleas of guilty
e. Parties shape the entire dispute
2. Passive Judge
a. Umpire there to keep the parties to the rules
b. Typically judge does not question the witnesses
c. Improper for the judge to talk too much or be too active
d. Impartial judge  above the fray
3. Highly Formalized Rule
a. Complicated rules of evidence and procedure
BENEFITS OF THE SYSTEM
 Puts the parties’ self-interest in the purpose of truth-finding – parties are trying to win and so will bring forth
evidence
 Inactive judge is conducive to impartiality of judges
 Despite one party always losing, the losing party will know their argument was advocated and considered
DISADVANTAGES OF THE SYSTEM
 The resolution is a win-lose, can’t be win-win
 Presumes both parties start out on equal standing (since it’s a competition, to be fair, they should start off fair),
and most cases they are not
 If judge was involved, then someone who is directly involved in finding the truth is more efficient than just two
sides trying to put their sides there
 The combat effect – the parties can get in the way for the search for the truth if that is in their best interest
R V RDS (1997)
FACTS Young black boy suspect in joyriding and theft case. In trial, there were conflicting stories b/w RDS
and arresting police officer. TJ (also black) dismissed the case, Crown appealed on the basis or
judicial bias.
CODE Interfering with arrest
Assault
Resisting arrest
ISSUE Was there a reasonable apprehension of bias on the part of the judge?
HELD Appeal allowed – no reasonable apprehension of bias – RDS acquitted
REASONING 6-3 judgement for no reasonable apprehension of bias.
5-4 judgement for thinking TJ’s remarks were worrisome
NO REASONABLE APPREHENSION OF BIAS
Cory & Iacobucci – Remarks were worrisome, close to the line b/c there was no evidence of racism
arising from fact, suggests judge made up fact. But in context, the Crown inappropriately suggested
police officer should be believed just b/c he is a police officer. Therefore comments were not
incorrect in context, no reasonable apprehension of bias.

16
 L’Heureux-Dubé & McLachlin – Remarks were not worrisome and relevant example of
contextualized judging by TJ acknowledging the well-known dynamic that is well recognized in
society. Judges cannot be expected to not be sensitive to social realities.
Gonther & La Forest – Agrees with both judgements; remarks were worrisome but judges cannot
be expected to exclude all aspects of reality.
REASONABLE APPREHENSION OF BIAS
Major, Sopinka & Lamer – Remarks were unacceptable b/c she was making a finding that officer
was acting out of racism which was not a part of the facts. Was in a way stereotyping police as liars
and racists  life experience is not a substitute for evidence
RATIO Test for Reasonable Apprehension of Bias – Would a reasonable well-informed person aware of all
the circumstances conclude that there was a reasonable apprehension of bias?
If yes, new trial ordered.

THE ACT REQUIREMENT

Offence Elements
In order for a conviction, the Crown must prove all the elements of the specific offence beyond a reasonable doubt
All criminal offences have at least: act element (always in the CC) + fault element (found in common law)
EXTERNAL ELEMENTS FAULT ELEMENTS
Act Element (actus reus, guilty act) Mental Element (mens rea, guilty mind)
Ex. Assault  actus reus = touching another person Crown must prove the accused knew something or
Threatening Death  actus reus = spoken words intended a certain outcome from act
Circumstance Element (elements of the offence that
have to proven) OR
Ex. Trespassing at Night  circumstance element = act
was done at night
Consequence Element (consequence of act required by Negligence
offense) Crown must prove the accused should have known the
Ex. Murder  consequence element = victim is dead outcome from act

Consent
Consent is part of the act requirement in some offences b/c those offences are not unlawful when consent is present
Example. Assault – absence of consent is an act element that must be proven by the Crown in order for an assault
conviction
 In this case, consent is used as a defense for the assault charge. If consent is present, assault could not have
occurred.
Consent can be vitiated – invalid in the eyes of the law.
R V JOBIDON (1991)
FACTS Accused and victim were in a mutual fist fight at a bar which moved to outside of the bar. Accused
was a trained boxer, punched victim directly in the face which rendered victim unconscious. After
victim was unconscious on the ground, accused punched victim 4 more times. Victim died in a
coma. TJ acquitted accused b/c fight was consensual. Crown appeals – TJ acquittal overturned.
Accused appealed to SCC
CODE 222(5)(a) Unlawful Act Manslaughter
265 – Assault (Underlying Offence)
ISSUE Did the victim consent to the initial fight?
Can the accused be charged with UAM if there was consent to the initial act of fighting?
Are there limits based on public policy as to what people can consent to?
HELD Appeal dismissed – conviction upheld
REASONING Accused argued that he cannot be convicted of UAM because he did not commit the underlying
offense of assault (265). Claims that the victim consented to the fight, assault requires lack of

17
 consent.
Gonthier (+4 Majority) (1) There are limits to what people can consent to according to common
law (although common law offenses were no longer enforceable, common law defenses still hold).
(2) There is an added dimension of policy based limits to consent – there is no social utility in
fighting; fighting is harmful; morally unseemly for law to justify these actions
(3) Common law limits on assault  consent in assault is limited to two consenting adults in a fist
fight or brawl.
However, if there is serious injury and non-trivial bodily harm that is both intended and caused,
consent is vitiated.
Bodily harm  any hurt or injury to a person that interferes with the health or comfort of the
person and is more than merely transient or trifling in nature.
Sopinka (+1 Concurring) Agrees with decision but not for policy based reasons. Argues that the TJ
erred in law b/c although the accused may have had an honest belief in consent, consent stopped
once the victim fell unconscious. The victim could not have consented to the fight after he fell to
the ground unconscious, therefore 4 punches were assault.
RATIO The limitation demanded by S.265 (Assault) … is one which 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.
R V MOQUIN (2010)
FACTS While committing a larger assault, the victim suffered: hair pulled out of scalp, bruising and pain
when swallowing b/c of choking, bruised arms and hands causing pain for weeks.
TJ held these physical injuries did not amount to bodily harm as required by S. 267(b). Crown
appealed.
CODE S. 267(b) Assault causing bodily harm OR S. 265.1(b) Common Assault
ISSUE How do we apply serious bodily harm?
What level of bodily harm vitiates consent?
HELD Appeal accepted – convicted of Assault causing bodily harm (s. 267b)
REASONING TJ said that for bodily harm to be serious it must cause injury for no less than one month. Appeal
judge did not accept this.
Bodily harm < serious bodily harm < aggravated assault
RATIO To constitute bodily harm an injury does not have to meet the standard of “interfering in a grave or
substantial way with physical integrity” since this is the standard for serious bodily harm, which has
a higher standard.
Whether an injury is trifling depends on the seriousness of the injury and not how quickly it heals.
Transient does have to do with time, but even one month is not transient.
R V CUERRIER (1998)
FACTS Accused tested positive for HIV in 92 – nurse told him to use condoms every time he had sex and
inform partner he was HIV+. He then had consensual unprotected sex with two women BUT did not
tell them he was HIV+. Both women testified they would not have consented to having unprotected
sex – neither of them were found to be HIV+ after testing. Acquitted on the basis that both women
were HIV- and consent was obtained for sex. Crown appealed.
CODE S. 265.3(c) Assault (fraud vitiated by consent) OR S. 268 Aggravated Assault (assault endangering
life)
ISSUE Whether the accused’s non-disclosure of HIV amounts to fraud that vitiated consent to sexual
intercourse of his partners?
HELD Appeal accepted.
REASONING Cory (+4)
The essential elements of fraud are:
1. Dishonesty, which can include non-disclosure of important facts, and,
2. Deprivation or risk of deprivation
A consent that is not based upon knowledge of significant relevant factors is not valid consent. In

18
 this case, consent is not to intercourse, but must have obtained consent to unprotected sex with
someone who is HIV+. The higher the risks of transmission upon intercourse, the greater the duty
to disclose.
The existence of fraud should not vitiate consent unless there is significant risk of serious bodily
harm.
L’Heureux-Dubé Whenever fraud leads to consent, it should vitiate consent – if the person
wouldn’t have consented had they known a specific factor, then they are not freely and willingly
consenting.
McLachlin (+1) Fraud vitiates consent in cases of deception as to the presence of a sexually
transmitted disease giving reason to a serious risk or probability of infecting the complainant .
RATIO CUERRIER TEST HIV+ will amount to aggravated sexual assault if the accused committed:
1. A dishonest act, either falsehoods or failure to disclose HIV status; and,
2. A deprivation, as in denying the sexual partner knowledge which would have caused a
partner to refuse sexual relations that exposed them to significant risk of serious bodily
harm
R V MABIOR (2012)
FACTS Accused is HIV+ but had a low viral load and was being treated with anti-viral therapy (lessened risk
of transmission). Had sex with 9 women to whom he did not disclose he was HIV+, used protection
with some but not all. 8 of the women testified they would not have consented to sex had they
known he was HIV+, none of the women contracted HIV. Accused was charged with 9 counts of
aggravated sexual assault. Argued that his treatment had significantly reduced risk of transmission
therefore lessened risk of serious bodily harm.
CODE S. 265 Assault OR S. 273 Aggravated Sexual Assault
ISSUE Does the Cuerrier test apply here?
If it does apply, how does it apply to low viral load and condom use?
Do these factors have an impact on how the Cuerrier test applies?
HELD Appeal allowed in part. Conviction upheld for 3/4 women. Acquitted on charges when he used a
condom.
REASONING McLachlin Court kept the Cuerrier framework but noted that the second part was uncertain b/c it
did not specify how significant a “significant risk” must be to qualify a risk as a deprivation and
what “serious bodily harm” meant. It added a qualifying component defining risk in order to make
the law clear enough to allow citizens to conduct their behaviour accordingly.
Applied to this case, Mabior had a low viral load but did not use a condom when having sex with
3/4 women. Thus, he was convicted of aggravated sexual assault on those 3 counts. However, he
was acquitted when he used a condom.
RATIO A person may be found guilty of aggravated sexual assault (S.273) if he/she fails to disclose HIV+
status before intercourse and there is a realistic possibility of transmission. (Cuerrier)
MABIOR TEST A realistic possibility of transmission will not exist if the accused:
a) Has a low viral count as a result of treatment; and,
b) Uses a condom.
Without a realistic possibility of transmission, there will have been no fraud.
Without fraud, the sex will be deemed consensual and no crime would have occurred.
R V HUTCHINSON (2014)
FACTS Accused and victim are in a relationship and have frequent consensual and protected sex. Accused
wants children, victim does not. Accused sabotages condom to increase the likelihood of victim
getting pregnant. At the end of the relationship, accused admits this to victim – victim testifies she
would not have consented to having sexual intercourse with accused if she had been aware of
condom sabotage. TJ acquitted on counts of aggravated sexual assault b/c (1) sex was consensual,
(2) there was no serious bodily harm. Crown appealed.
CODE S. 273 Aggravated Sexual Assault
ISSUE Is there a difference b/w consenting to protected v. unprotected sex?

19
 If so, does the lack of consent to unprotected sex change the act to aggravated sexual assault?
HELD Appeal allowed
REASONING SCC all agree that there was sexual assault; disagree on whether:
(1) There was no consent, or,
(2) The was consent but it was vitiated by fraud
McLachlin + Cromwell (Majority) Sabotaging of the condom fundamentally altered the nature of
the sexual activity in question. Victim’s consent could not be valid because it was not reasonably
informed and given freely. Even if TJ found consent, it would have been vitiated by fraud because
impregnating a woman can cause serious bodily harm. The Cuerrier/Mabior Test does not apply
here b/c there is no STD/risk of transmission but pregnancy introduces a risk equally as serious.
RATIO For consent not to be vitiated by fraud, it must be reasonably informed and freely given.

Omissions
Omissions is a type of act element where there is a legal duty to act  generally omissions do not give rise to criminal
liability except where there is a legal duty to act.
Omission  when criminal liability can be imposed on a legal duty to act; when duties are prescribed by law they can be
either:
 Explicit – Section 21(1)b a party to an offence is someone who: does or omits to do anything for the purpose of
aiding any person to commit it
 Implicit – Section 446(1) makes an owner of an animal guilty of an offence if he or she: willfully permits [the
animal] to be cause unnecessary pain
FAGAN V COMMISIONER OF METROPOLITAN POLICE (1968)
FACTS Police officer tells plaintiff to park car, plaintiff accidentally parks car on officer’s foot. Engine
stopped while on the officer’s – officer yells at plaintiff immediately in pain. Fagan fails to remove
car.
Driving car onto foot  unintentional act;
Failing to move car from on top of officer’s foot  intentional omission.
CODE Assault
ISSUE Was Fagan’s omission sufficient to be considered an assault?
HELD Yes, appeal dismissed – Fagan found guilty
REASONING At the time that Fagan intended to have/keep his car on the officer’s foot there is no action but
instead omission.
At this time judges were in agreement that omission does not give rise to criminal liability, unless
there is a legal duty to act. Did Fagan have a legal duty to act? No.
Problem  Simultaneity – act and the fault must exist at the same time. Or you can have no fault,
but act superimposed on it – do something by accident but then prolong it on purpose.
RATIO Although omission is not criminally liable, majority got around this by establishing that no
simultaneity needed because the act never stopped it was continuing.
R V MILLER (1983)
FACTS Accused was squatting in an unoccupied home – falls asleep on mattress while smoking a cigarette.
This causes house to catch fire. At trial, he admits that b/c he had nothing to stop the fire with he
just got up left the room and did nothing to try and stop it. Found guilty of arson – appeals.
CODE S. 433 Arson
ISSUE Whether the act element of the offense of arson is present when a defendant unintentionally starts
a fire and thereafter fails to take any steps to extinguish fire/prevent damage by the fire?
HELD Yes – appeal dismissed
REASONING Legal duty analysis – having started the fire and having noticed the fire was occurring, Miller came
under a legal duty imposed by common law to put the fire out. B/c arson is a crime of omission,
the act element was fulfilled when he (1) caused the fire, and (2) failed to act when the legal duty
arose.
RATIO When a person unwittingly sets a chain of events that leaves persons in danger, a legal duty to
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 counteract these dangerous events arises.
MOORE V R (1979)
FACTS Officer saw accused run a red light while riding his bicycle. Tried to stop the accused to give him a
ticket – accused refused to stop initially and later refused to identify himself. Convicted of wilfully
obstructing a police officer – appeals.
CODE S. 129(b) “omits, without reasonable excuse, to assist an officer in the execution of his duty after
having reasonable notice that he is required to do so”
ISSUE Is Moore guilty of obstructing a police officer?
HELD Yes – Appeal dismissed
REASONING Spence (+5) Endorses the reciprocal duty analysis – when an officer sees an offence being
committed, he/she under a duty to enforce law and therefore comply with procedural law (by
stopping him and asking his name). Moore, when stopped and asked by the officer, became under
a reciprocal duty to stop and identify himself. His omission of his duty makes him guilty.
However, Dickson (dissent) rejects this approach b/c officer’s duty is independent of individual’s
lack of duty
RATIO Omission to act in a particular way will give rise to criminal liability only where a duty to act arises
at common law, imposed by statute or contract.
R V THORNTON (1991)
FACTS Accused tested HIV+, donated blood to CRC without disclosing this to them. He was tried and
convicted of committing a common nuisance. Appealed on the basis that donating contaminated
blood is not a crime
CODE S. 180.2(a) Common Nuisance – “does an unlawful act or fails to discharge a legal duty thereby
endangers the lives, safety…”
S. 216 Duty of Persons Undertaking Acts Dangerous to Life
ISSUE Did the accused have a legal duty arising out of common-law to refrain from donating blood to CRC
due to his HIV+ diagnosis?
HELD Yes – appeal dismissed.
REASONING At issue was whether accused had a legal duty to act. Appeal court found he did breach common
law duty of care to neighbour (tort – Donoghue). However, majority of SCC did not want to
subsume tort law into criminal – unsure whether tort duty could bring criminal liability. SCC found
legal duty arose from S. 216  donating blood = medical procedure out of which duty to exercise
reasonable care arose.
RATIO Court of appeal decision important b/c it is a recognition that a legal duty of law can arise from
common law; although SCC did not address this, this is problematic.
S. 216 imposed a duty of care on the accused which he breached by not disclosing his blood was
HIV+  this created a S. 180 nuisance.
R V BROWNE
FACTS Accused and deceased victim dealt drugs together. During strip search victim swallowed bag of
crack cocaine to avoid detection. She failed to vomit, was having an overdose – accused promised
to call a cab for victim and take her to hospital (vs. calling ambulance). Cab took too long, victim
died. Accused convicted of criminal negligence causing death, TJ claimed accused’s undertaking
had inflicted on him a legal duty to act. Browne appealed.
CODE S. 219 Criminal Negligence – “in doing anything, or omitting to do anything that it is his duty to do.”
S. 217 Duty of Persons Undertaking Acts – “… who undertakes to do an act is under a legal duty to
do it if an omission to do the act is or may be dangerous to life.”
ISSUE Did the accused undertake a legal duty to bring the victim to the hospital, making him criminally
negligent by calling a cab instead of 911, and thereby causing the death of the victim?
HELD No. Appeal allowed – accused acquitted.
REASONING Abella (+2) Unless the duty flows from the type of relationship (S.215), legal duties to act arise from
undertaking. B/c the sentences associated with S.217 are severe, undertaking is interpreted
narrowly. An undertaking is a binding commitment clearly made with binding intent. Expressing
21
 words indicating a willingness to act does not constitute an undertaking. It ranges from an assertion
to a promise, something is an undertaking if:
 Reliance would have been placed on commitment – is someone relying on the undertaking?
o Reliance – requires someone to change what they do because the promise was made.
In this case, Abella decided the victim did not change her behaviour of what she otherwise would
have done had the accused not expressed a willingness to act.
RATIO In order to be convicted of recklessly breaching a legal duty (S.217) generated by an undertaking,
that undertaking must be proven to have been clearly made and made with binding intent.
Nothing short of this will give rise to a legal duty to act.
R V PETTERSON (2005)
FACTS Accused lived in a connected but separate apartment with his 84-year-old father staying in the
basement. Accused locked doors connecting apartments, did not provide food/care for his senile
father. Charged with failing to provide necessities of life to his father when father was found living
in filthy basement.
CODE S. 215.1(c)(i) “…to provide necessaries of life to a person under their charge if that person is …
unable by reason of detention, age, illness, mental disorder, or other cause, to withdraw himself
from that charge, and is unable to provide himself with the necessaries of life.”
ISSUE Was the accused’s father under the accused’s charge?
If there was a charge, was there a legal duty to provide the necessaries of life?
HELD Yes – accused convicted.
REASONING In this case, there were a number of indicators suggesting there was, in fact, a charge present. (1)
Legal duty arising from family relationship; (2) accused controlled father’s living conditions and
exercised POA status; (3) community acknowledgement that father was under accused’s charge.
Additionally, the accused was cautioned by neighbours who worried for father and suggested
accused contact community agencies.
RATIO To qualify as being under one’s charge, the following must be considered:
 Element of control by one person + dependency by the other person
 An understanding of position of control + dependency
 Acceptance of charge

Voluntariness
For the actus reus (act element) to be legally proven, it must be proven to have been done voluntarily. This is separate
from mental element  voluntary requirement is internal to the act element.
This differentiation becomes important because of absolute liability offenses – offenses where there is no fault element
required. (Ex. Parking Offenses are absolute liability offense because it does not matter that you did not know parking
there was prohibited, the mere act of parking your care in a restricted, albeit unknowingly restricted, place is enough).
 Involuntariness is essentially a defense even for absolute liability offences because voluntariness is internal to
the act element.
Automatism is a type of involuntariness – person is in some kind of altered state, it would seem they are in control but
cannot be held criminally liable because of their unconsciousness. (Ex. Sleepwalking)
Physical Involuntariness is different than automatism – person has no physical control over actions despite being
mentally conscious
CJS will not punish acts that are not voluntary because:
1. We do not wish to punish people for things they do not choose to do – morally unjust
2. Punishing involuntary acts has no deterrent effect.
Without a voluntary act there is not actus reus and therefore no basis upon which to charge/convict.
RABEY V R (1980)
Automatism means an unconscious involuntary act and it is a basic principle that absence of
This case stands volition in respect of the act involved is always a defense to a crime.
for: The Crown bears the burden of proving act was voluntary.
Consciousness is absolutely needed for criminal liability.

22
R V PARKS (1992)
This case stands Rather than being a defense, automatism is part of the actus reus component of criminal
for: liability because it is a subset of the voluntariness requirement.
R V STONE (1999)
Bastarache J preferred to define automatism as a state of impaired consciousness, rather
This case stands than unconsciousness, in which an individual is capable of action but has no voluntary control
for: over that action.
Accused had to prove any defense of automatism on a balance of probabilities.
R V LUCKI (1955)
Accused charged w/inconveniencing other drivers by driving on other side of the road – had
slipped on black ice and hit car on the other side of road. TJ said act was neither negligent nor
Case Elements
voluntary. Traffic violation was an absolute liability offence meaning only thing needing to be
proven was actus reus – here this was impossible b/c act was not voluntary, therefore no act.
Importance of If mens rea is not required, actus reus is not established by an involuntary act. An involuntary
Case: act does not inflict criminal responsibility.
R V WOLFE (1975)
FACTS Accused (hotel/bar owner) asks complainant to leave establishment but complainant refuses.
While accused is calling the police, complainant punches accused in the head. In reflex, accused hits
complainant with telephone receiver which injures complainant. Convicted of assault, appeals.
CODE S. 265.1(a) “…applies force intentionally…”
ISSUE Can the accused be convicted of assault?
HELD No – appeal allowed – acquitted.
REASONING As a finding of fact the TJ characterized the accused’s actions as reflexive and involuntary, meaning
the act element of the crime was not satisfied.
RATIO A reflexive action does not amount to intent since there is no voluntariness to commit the act.
R V SWABY (2001)
FACTS Accused driving a car with a passenger (friend) who had an unregistered gun, unbeknownst to the
accused.
CODE S.94(1) “…an occupant of a motor vehicle in which the person knows there is a prohibited
firearm…”
ISSUE Did the Crown prove a voluntary act to provide criminal liability?
HELD No – new trial ordered.
REASONING Factually problematic case b/c it is unclear at what exact time while being in the motor vehicle the
accused found out about the firearm. If he learned about the gun while driving the car, the accused
needs to be given some opportunity to deal with situation and either (a) ask possessor to get out of
the car, or (b) notify authorities. The Crown had to prove coincidence of occupancy of the vehicle
and knowledge of the weapon amounted to voluntariness – did not do this.
RATIO Acts can be involuntary if actor had no choice in the matter.
R V RYAN (1967 AU)
This case stands If the consequences of an act or situation are probable and foreseeable this can amount to
for: voluntariness in Canada. An act cannot be called involuntary because the mind was impulsive.
KILBRIDE V LAKE (1962 NZ)
Person parked in restricted (parking-pass only) area; given ticket for not displaying pass.
Testifies parking pass was there when he left his vehicle – it somehow must have flown away,
Case Elements
detached, etc. Case was one of involuntary omission – the omission to carry the pass was not
within the accused’s conduct, knowledge or control.
Importance of A person cannot be made criminally responsible for an act or omission unless it was done or
Case: omitted in circumstances where there was some other course for them to choose.

23
Causation
Causation is another part of the actus reus (act element). Causation is not an issue in every offence, you must figure out
whether causation is an element of the crime itself.
Causation Offences require the cause of some type of consequence. Ex. Causation is an element in homicide – to be
guilty of committing the act of homicide you must have caused the death of someone else.
Ex. Arson – requires causing damage or fire to property
Factual Causation  physical or mechanical evidence of crime
Legal Causation  legal responsibility for the consequence caused – was the act sufficiently connected to the
consequence such that it can be just to recognize the act caused the consequence?
SMITHERS V R (1978)
FACTS Accused is involved in fight with victim after hockey game. Accused kicks victim in the stomach at
which point victim aspirates on vomit and dies. According to medical expert evidence, cause of
death was that victim aspirated on his own vomit – experts said it was a rare cause of death where
no alcohol involved. Deceased victim found to have had a malfunctioning epiglottis which caused
him to aspirate on vomit upon receiving kick to the stomach. Accused appealing b/c claims jury was
not adequately instructed on matters of factual causation.
CODE S. 234 Unlawful Act Manslaughter
ISSUE Was the kick sufficient cause of death (according to expert testimony) to make accused criminally
liable?
Was the jury adequately instructed on analyzing whether the kick caused death
HELD Yes – appeal dismissed – conviction upheld.
REASONING Accused claimed that the jury should have been charged regarding the importance of expert
witnesses (medical experts testifying aspiration was cause not kick) over lay witnesses (testifying
they saw the accused kick victim in the stomach). However SCC rejected this argument.
Established the test for causation, wherein manslaughter and in this case the kick had to be at least
a contributing cause of death.
Thin Skull Rule applies – even if the victim did have a malfunctioning epiglottis you must take your
victim as you find them – frailty of victim that quickened/increased likelihood of the kick causing
death was not absolve the accused of criminal responsibility.
RATIO Test for Legal Causation – Act had to be a contributing cause beyond the de minimis range (not
trivial).
Even if death is unexpected and the physical reactions of the deceased are unexpected, if the
accused intended to cause bodily harm to the deceased, causation is satisfied.
On a charge of manslaughter, all the Crown has to establish is that the assault inflicted upon the
victim was at least a contributing cause of death, outside the de minimis range. This is a very low
threshold for causation b/c severity of act is high.
R V HARBOTTLE (1993)
FACTS (Co-)Accused helped companion during rape and murder of victim. After raping her together,
accused and companion discussed on how to kill her – accused claims he held the victim’s legs
while the companion strangled her. Convicted of 1 st degree murder – appeals on the basis he was
not the cause of the deceased’s death.
CODE S. 231.5(b) First Degree Murder “…caused while committing sexual assault…”
ISSUE Whether the accused’s participation was such that he could be found guilty of 1 st degree murder?
HELD Yes – appeal dismissed – conviction upheld.
REASONING Cory – word cause is broad enough so as to include perpetrator and anyone who assists in the
commission of the murder. Due to the gravity of the crime, there is no differentiation in
blameworthiness b/w someone who strangles an innocent rape victim and the other who holds her
legs up in order to facilitate the strangulation. However, b/c of the difference in severity and
punishment between manslaughter and 1 st degree murder the threshold for causation must be
higher.
In order to get a conviction for S.231(5), Crown must prove beyond a reasonable doubt that:

24
 1. Accused was guilty of underlying crime of domination (rape)
2. Accused was guilty of the murder of the victim (participated in murder)
a. Participation was in such a manner that was a substantial cause of death
b. There were not intervening act of another which overwhelmed the substantial
cause of death perpetrated by accused
3. Crime of domination and murder were part of one transaction (RE: R V PARE)
RATIO Substantial Cause of Death Test for S.231(5) (First Degree Murder)
Crown must establish that the accused has committed an act/acts which are of such a nature that
they must be regarded as substantial and integral cause of death.
R V NETTE (2001)
FACTS Deceased victim was 95-years-old, tied up during a robbery after which she was not found for over
24 hours. Died of asphyxiation b/c her dentures came loose in her mouth while clothes tied tightly
around her neck. Medical evidence could not determine factual cause of death. Convicted of 2 nd
degree murder – appeals on the basis that TJ may have wrongly charged jury on Smithers test
CODE S. 230 Culpable Homicide “…while committing the offence of unlawful confinement”
ISSUE Whether the accused’s action cause the death of the victim?
HELD
REASONING Arbour (Majority) Smithers test applies to all forms of homicide and the additional Harbottle test
applies only to 1st degree murder and not all forms of homicide. Court sought to re-word Smithers
test to exclude “de minimis range” and include “significant”. When addressing a jury, the standard
of causation for 2nd Degree murder should be positively states in that the actions of the accused
must be a significant contributing cause of death. However, the Smithers causation standard still
applies to all forms of homicide, except 1st degree in which Harbottle test applies.
RATIO Test for causation in homicide is whether the accused’s action were a significant contributing
cause of death. The word cause is defined by Smithers Test – act would be contributing, non-trivial
and outside the de minimis range.

HARBOTTLE
HARBOTTLE
NETTE (2001) --
NETTE (2001) (1993)
(1993) --
SMITHERS (1978)
SMITHERS (1978) significant
significant substantial
substantial cause
cause
-- contributing
contributing
contributing
contributing only for first
only for first
cause
cause outside
outside the
the cause
cause degree murder
degree murder
deminimis
deminimis range
range under
under s. 231(5)
s. 231(5)

R V TALBOT (2007)
FACTS During a fight, accused punches victim in self-defense. Victim falls back and fractures his skull.
Accused then kicked him in the head while victim was already on the floor and kills victim. Medical
expert witness testifies that the fractured skull from the fall was the ultimate cause of death.
CODE S. 230 Culpable Homicide OR S.234 Unlawful Act Manslaughter
ISSUE Did the accused cause the death of the victim?
HELD No.
REASONING Kick could not be proven to be a contributing cause of death. Juries should be asked to deal with
legal causation and factual causation together. The jury in this case was asked to decide whether
the accused’s action significantly contributed to the victim’s death – this was not found here by
the jury since a contributing cause is one that exacerbates an existing fatal condition. However, if
asked the but-for test for causation  But-for the criminal act (robbery) would the consequence
(death of victim) have occurred? – the jury would have been able to conclude the accused did
significantly contribute to the victim’s death.
RATIO The but-for test for causation AND the significant contributing cause test should be asked in
unison.

25
Intervening Cause
When the chain of causation is broken the intervening cause may complicate whether the criminal act in fact or in law
resulted in the consequence.
Criminal Act  Intervening Cause () Consequence
Intervening causes are an area of law that is inherently unclear, except when the facts abide by Criminal Code
provisions:
 S.222 Homicide Idem – “causes death by…causing human being to do anything that causes his death”
 S. 224 Death That Might Have Been Prevented – “causes the death from that cause might have been
prevented…”
 S. 225 Death from Treatment of Injury – “causes bodily injury that is of itself of a dangerous nature from which
death results…”
 S. 226 Acceleration of Death - “causes bodily injury…that the effect of injury is only to accelerate his death from
disease or disorder arising from some other cause…”
R V SMITH (1959)
FACTS During a fight b/w soldier, accused stabs victim and punctures long. Victim is taken to medical
station, took very long and is dropped several times. Once at medical station, victim is given CPR
which worsened lung hemorrhage. There was a 75% chance victim could have recovered from
initial stab wound had he been given correct treatment – victim dies at medical station.
CODE Murder (foreign case)
ISSUE Is the accused still liable for victim’s death despite intervening causes?
HELD Yes – conviction upheld.
REASONING Stabbing caused the death and intervening causes did not break the chain of causation. The court
acknowledges the other contributing causes but they were not so overwhelming so as to negate
the effects of the initial wound.
If at the time of death the original wound is still an operating and substantial cause then the death
can properly be said to be the cause of the death albeit another cause is operating. Only if the
other operating cause is so overwhelming.
RATIO In order to be an intervening cause, subsequent cause would have to be overwhelming. If an initial
cause remains a significant cause when death occurs, then it is still considered the cause of the
outcome.
R V BLAUE (1975)
FACTS Accused stabbed victim and punctured her lung, after she refused to have sex with him. Victim
escaped to a hospital, surgery was required and needed a blood transfusion. Victim refused the
transfusion b/c she was a Jehovah’s Witness – died. TJ instructed jury that the if the initial stab was
the operative or substantial cause of death they should convict the accused. Accused appealed.
CODE Murder (Foreign case)
ISSUE Was the stab wound the cause of death despite her refusal for blood transfusion? Or
Did the victim’s refusal to accept blood transfusion break the chain of causation?
Was the jury give proper instruction regarding a determination of the cause of death?
HELD Appeal failed – conviction upheld
REASONING Court ruled that jury instruction was permissible. Defense tried to prove victim’s refusal of the
blood transfusion broke the chain of causation – court rejects this because accused must take his
victim as he finds them  thin skull rule. Even though the acts of a hospital or the victim
themselves might be the actual cause of death, a defendant’s act was the operative cause and thus
he can be held liable.
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.
R V MAYBIN (2012 SCC)
FACTS Three accused – TM, MM (Maybin brothers) and BG (bouncer) charged with manslaughter.
Maybins punched victim in the face, knocked him unconscious on pool table. Bouncer was told
victim started the fight, bouncer punches unconscious victim on the head and carries him outside –
26
 one minute after Maybins punched him. TJ considered bouncer’s punch as separate cause of death
and not intervening – b/c Crown could not prove causation from Maybins or bouncer TJ acquitted
all three. Crown appealed – at COA bouncer acquittal upheld and Maybin convicted
CODE S. 222 Unlawful Act Manslaughter
ISSUE Does the intervening act absolve the accused of legal responsibility for manslaughter?
HELD Appeal dismissed – conviction upheld.
REASONING Karakatsanis (For the Court) Applies the but for test to differentiate bouncer’s blameworthiness:
But for the bouncer’s punch, would the victim have died? Maybe, he might have died from
Maybin’s punch  must be acquitted because there was reasonable doubt. However, the victim
would not have died but for the Maybin’s initial punch.
Court said intervening act that is reasonably foreseeable to the accused may well not break the
chain of causation, while an independent/intentional act by a third party may in some cases make
it unfair to hold accused responsible – depends on the context.
Used significant contributing cause test (Nette) – two approaches to analyzing intervening cause:
1. Reasonable Foreseeability (Majority) – was the intervening act reasonably foreseeable?
- If yes, act does not break the chain.
- If not, it is more likely that causation may have been broken
SCC says: intervention by bar staff is foreseeable – chain is not broken.
2. Independence (Dissent) – was the intervening act sufficiently independent and
overwhelming to sever the impact of the accused’s actions?
Test – question was whether the dangerous, unlawful acts of the accused were a significant
contributing cause of the victim’s death but the two analytical tools (reasonable foreseeability and
independence) can be used to determine whether the original cause of death was still significant
contributing.
RATIO An accused who undertakes a dangerous act and contributes to a death should bear the risk that
other foreseeable acts may intervene and contribute to that death
If the intervening act is a direct response or is directly linked to the accused’s actions and does not
by its nature overwhelm the original actions, then the accused cannot be said to be morally
innocent of the death

THE FAULT REQUIREMENT (MENS REA)

Mens rea refers to mental element necessary for the particular crime
- May be either intention to do the immediate act or bring about the consequence or recklessness as to such act
or consequence
No guilty act without guilty mind – mere act by itself does not make the criminal offence.
There are different fault elements for different crimes  no one state of mind intended by the word mens rea.
Fault element can require:
1. Subjective Mens Rea – offender must hold blameworthy state of mind in the offender’s head at the time of
acting.
2. Objective Mens Rea – offender is held to the standard of a reasonable person, irrespective of awareness or
context
R V HUNDAL (1993)
SCC says there should be a clear distinction between:
1. A subjective test seeks to determine what was actually in the mind of the particular
This case stands accused at the moment the offence is alleged to have been committed
for: 2. The test for negligence (objective) requires a marked departure from the standard of
care of a reasonable person, there is no need to establish the intention of the
particular accused
R V THEROUX (1993)
This case stands Two collateral points on mens rea:
27
 1. Mens rea has nothing to do with the accused’s system of values
 Has nothing to do with whether the accused thought his action was wrong
for:
 Did he understand nature of what he was doing?
2. A subjective state of mind can be inferred from the circumstances
R V MULLIGAN (1974)
Jury isn’t bound to accept the statements of what was in the accused’s mind, they are free to
This case stands
decide what their state of mind was – is an objective fact and so must be considered but trier
for:
of fact doesn’t have to believe what the accused claims to think/have felt
R V ORTT
Judge should have said “In our law it is a natural/reasonable inference that a person intended
the natural consequences of his act”
This case stands
While this is an inference that may be drawn, it is not one that must be drawn
for:
Jury should not be charged as “presumption” – it is not presumed that a man assumes the
outcome of his action
R V WALLE
 No particular formula for explaining to juries the question of intending consequences of
one’s act
 One way of explaining it is that a sane and sober usually intends the natural and probable
This case stands
consequences of his act
for:
 Another way is that a person usually knows what the predictable consequences of her
actions are and means to bring them about
What is critical is that the jury be told about the nature of intent

Fault for Regulatory Offences

Regulatory offences are usually less serious than criminal offences – exist in the interest of public welfare
ABSOLUTE LIABILITY SUBJECTIVE MENS REA
P proves only the act P must prove act + subjective fault
BEAVER V R (SCC 1957)
FACTS Accused and his brother sold heroin to an undercover police officer. Accused claimed he did not
know it was heroin – thought it was sugar. TJ said it did not matter whether or not he knew it was
heroin  found that possessing heroin an absolute liability offence
CODE S. 4(1)(d) of Opium and Narcotic Drug Act – “Every person who has in his possession any drug …is
guilty of an offence and is liable.
ISSUE Was possession an absolute liability offence or was a fault element required?
HELD Possession was not an absolute liability offence and subjective mens rea is required.
REASONING Cartwright(+2) There are two types of knowledge required to be guilty of possession: (1)
knowledge that you possessed it, and (2) knowledge of what it is. It would be fundamentally unjust
for there to not be a fault element requirement. Although the way the statute is written does
suggest it is an absolute liability offence, the court cannot assume that it is how parliament
intended it. Additionally, the statute only includes the act element, the fault element arises from
common law.
RATIO With possession offences, knowledge of substance is required – there is no possession without
subjective mens rea (knowledge) of the substance.
REGULATORY
REGULATORY OFFENCES
OFFENCES

STRICT
STRICT LIABILITY
LIABILITY
EXPRESS
EXPRESS FAULT
FAULT REQUIREMENTS
REQUIREMENTS ABSOLUTE
ABSOLUTE LIABILITY
LIABILITY
Crown
Crown proves act.
proves act. Accused
Accused
Crown
Crown must
must prove
prove act
act and
and fault
fault Crown
Crown must
must only
only prove
prove the
the act
act
must prove due diligence
must prove due diligence
28
R V CITY OF SAULT STE. MARIE (SCC 1978)
FACTS Accused entity sued for releasing pollutants into Cannon Creek. City hired an independent
contractor (third party) who did the disposal and caused the pollution. Judge found that the
accused entity could not be held liable or responsible b/c they did not actually dispose – Crown
appealed. COA convicted accused, saying this is a strict liability offence
CODE S. 32(1) Ontario Water Resources Act
ISSUE Was the accused also guilty?
Was this regulatory offence one that requires mens rea or is this an absolute liability offence?
What was the level of fault in regulatory offences generally and this one in particular?
HELD New trial ordered
REASONING Dickson Strict liability is the default fault requirement for regulatory offences generally. Strict
liability holds accused to an objective standard of care where there is a reverse onus on the
accused to prove, on a balance of probabilities, that there was no negligence  imposes due
diligence. Judge argues this is reasonable for regulatory offences b/c it is likely the accused (City in
this case) will have more information/ability to prove they were not negligent.
Reasonable Mistake of Fact Test: an accused fails to prove due diligence if,
(a) Negligence consists of an unreasonable failure to know the facts which constitute the
offence; or,
(b) The accused’s behavior was negligent in bringing about the forbidden event when he knew
the relevant facts
RATIO As a default for regulatory offences, they fall under strict liability fault requirement, unless the
Legislature clearly indicates that the offence has some other level of fault.

ABSOLUTE LIABILITY SUBJECTIVE MENS REA

P proves only the act P must prove act + subjective fault

STRICT LIABILITY
P proves the act beyond a reasonable doubt
D has a due diligence defense, on a balance of probabilities
R V WHOLESALE TRAVEL GROUP INC (1991 SCC)
FACTS Accused corporation charged w/various counts of misleading advertising. Offence allowed for large
fines and imprisonment up to 5 years – brings into question whether this offence can be a strict
liability offence b/c of the possible restriction of freedoms
CODE S. 60(2) Misleading Advertising of the Competition Act
ISSUE Is misleading advertising a regulatory offence?
If so, what is level of fault requirement?
HELD Yes – strict liability
REASONING Cory (Majority) Distinguishes b/w crimes that are malum prohibitum (regulatory offences) vs. mala
in se (inherently wrong). Court puts forth following factors when determining whether an offence is
criminal or regulatory:
1. Criminal  mala in se vs. Regulatory  malum prohibitum
2. Shift of emphasis – criminal offences punish individuals for moral fault, regulatory offences
are implemented to protect/advance public interest (retributive for past vs. protective for
future)
3. Regulatory offences implemented to induce standard of care not deterrence
SCC decides this is a regulatory offence and should be treated differently for 2 reasons:
a) Licensing Justification – choice and acceptance of responsibility for rules (ie. Driver’s
license)
b) Vulnerability Justification – regulatory offences intended to protect vulnerable members

29
 of society
RATIO Mens rea is not required for a law to be constitutionally valid, even if it carries a sentence term of
imprisonment – strict liability can be enough.

Constitutionally Required Fault

Section 7 of the Charter says that basic fairness requires a minimum level of fault for an accused to be guilty and would
conflict with PFJS of not convicting the innocent.
 Although the legislature is permitted to decide the appropriate fault level for certain crimes, the Charter
overrides the jurisdiction – Charter challenges can alter the fault level requirement if it is unjust
Charter sets minimum standards for fault requirement.
REFERENCE RE: SECTION 94(2) OF THE MOTOR VEHICLE ACT (BC) (1985 SCC)
FACTS Driving w/a suspended license was an absolute liability offence which had an available sentence of
imprisonment. Governor of BC questioned the constitutionality of this act.
CODE S. 94(2) BC Motor Vehicle Act “…absolute liability offence on which guilt is established by driving
(actus reus) whether or not the defendant knew their license was suspended or invalid.”
ISSUE Is S. 94(2) of the BCMVA consistent with the Charter?
Is the AL fault requirement constitutional despite the offence carrying an immediate and
mandatory imprisonment sentence?
HELD No – statute struck down as unconstitutional and contrary to S. 7 of the Charter
REASONING Lamer Absolute liability offences that carry a sentence of imprisonment run counter to the
principles of fundamental justice and violates S. 7 of the Charter. You can have absolute liability
offences, but they cannot have a minimum sentence of imprisonment. Therefore, strict liability
becomes the constitutional minimum fault requirement for offences that carry possibility of
imprisonment. Although some legislation could be saved under Section 1, this regulation does not.
RATIO Any offences that is AL and leads to imprisonment must be struck down as unconstitutional – if
imprisonment is available, the offence cannot have an absolute liability fault requirement. Strict
liability becomes the Charter minimum for any offence where there is possibility of imprisonment.
R V CANCOLI THERMAL
Company removed safeguard on saw machinery which violated safety regulations. ONCA
claimed accused was entitled to due diligence defense b/c they asked safety inspector if they
Case Overview
could remove guard and he said yes. However, legislation explicitly stated this was
unacceptable.
In order to have a defence of due diligence, there must have been reasonable steps taken to
Importance of
prevent or circumscribe negligence. Doing nothing/passively waiting for something to happen
Case:
is not enough – must be initiative of prevention.
R V BEAUCHAMP (1953)
FACTS Accused (bus driver) convicted of careless driving. Backed into a car, crumpled its bumper, grille
and fender – was reversing extremely slowly and carefully.
CODE S. 29 of Highway Traffic Act
ISSUE Does S.29(1) of the HTA have a fault requirement?
HELD COA allowed accused’s appeal – set aside conviction.
REASONING Mackay Fault requires that the accused breach the standard of care – in the circumstances, did the
accused drive as a reasonable driver would have? And even if the driving did fall below the
standard, it must have amounted to a conduct that breached a duty of care to the public and is
deserving of punishment. Careless driving is a good example of an express fault requirement that
arises from the legislation – it falls outside of the strict liability assumption.
RATIO Careless driving is a regulatory offence that requires objective fault that must be proven of the
crown.

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Fault for Criminal Offences (Homicide)
For an homicide, you must establish that (1) the accused has committed murder, and then, (2) you qualify the murder
according to level of mens rea.

HOMICIDE
causing human death

CULPABLE HOMICIDE
Causing death by an unlawful act by NON-CULPABLE HOMICIDE
criminal negligence, etc.

Murder Manslaughter Not an offence

Here, intention refers to a state of mind that is different than desire. You can intend to cause death without wanting to
cause death  involves doing something when you are substantially certain of the outcome.
Section 229 (Murder) explicitly states the high fault requirement for murder b/c it uses words such as “means to” and
“knows”
SIMPSON V R (1981)
FACTS Accused charged with attempted murder (victim escaped alive). TJ explained to the jury that the
fault requirement was objective – ought to now it would have caused death.
CODE Attempted Murder
ISSUE Did the TJ err when charging the jury with regards to intent?
HELD Yes – appeal accepted – new trial ordered
REASONING Martin Criminal liability for attempted murder is subjective and the required knowledge that the
intended injury is likely to cause death must be known by the accused subjectively. TJ erred by
substituting an intention to cause bodily harm subjectively knew about with one that he ought to
know about  imposes objective liability as a standard. Martin says that what the accused ought
to have known can be used as evidence against his subjective state of mind  anybody would have
known shooting someone in the face would cause death & therefore unlikely that they did not
subjectively know there was likelihood of bodily harm. However, this is not the standard.
RATIO Murder requires subjective mens rea. Crimes with high punishment/stigma require accused to
have had subjective knowledge that the bodily harm was likely to cause death.
R V EDELENBOS (2004 ONCA)
FACTS Accused sexually assaulted and strangled victim while intoxicated – although he was just trying to
keep her quiet, she died of strangulation. Admitted to killing her (actus reus) but did not have
intention to do so (could have qualified as manslaughter b/c of lack of mens rea. Convicted of 1st
degree murder. Appealed on the basis that judge gave unprecedented jury charge when explaining
the word likely – said, “likely means more than a possibility, a substantial degree of probability;
likely to cause death means could well have caused death” and does not mean probable (51%).
CODE S. 231 First Degree Murder
ISSUE Whether the charge/definition given by the judge to the jury operated to the prejudice of the
defence?

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 HELD No – appeal dismissed
REASONING Lang argued the judge should brought the unprecedented definition employed to the lawyers
before charging the jury with it, however, it did not disadvantage the defendant nor was it
inaccurate. Gave 5 reasons why not new trial was required:
a) Definition of likely was not even a full page of the judge’s 45 page charge – must be seen in
context
b) Definition may have been confusing but not inconsistent or incorrect
c) Jury were given a copy of S. 229 charge, not of the judge’s charge
d) TJ used the word likely several times, and did not repeat/emphasize definition
e) Definition of word likely made burden of the Crown with respect to intent very clear
RATIO If a term is intended to be used in a common sense manner, then the TJ need not define the word
during a charge to a jury. However, if the charge does not create prejudice against the
defense/Crown – no new trial will be needed.

Constructed Murder
A killing that is in the eyes of the law deemed to be murder, even though the normal fault requirement under S. 229(a)
(subjective mens rea) might be absent. It is often referred to as felony murder - is a legal rule that expands the
definition of murder. It applies when someone commits a certain kind of felony and someone else dies in the course of
it. It doesn't matter whether the death was intentional or accidental—the defendant is liable for it.
SCC struck down many of these murders as unconstitutional but set what the constitutional minimum was for murder.
VAILLANCOURT V R (1987 SCC)
FACTS Accused of 2nd degree murder resulting from murder while robbing a pool hall. Him and accomplice
went into robbery with knives, accomplice had a gun – accused claims he did not know. He testified
he told his accomplice he did not want to have guns involved. During the robbery, partner killed
someone with the gun. Challenged constitutionality of constructed murder.
CODE S. 230(d) Second degree murder. Did not explicitly require the accused to intend to cause death or
even to know that death was likely  allowed murder conviction where the ordinary fault
requirement for murder S. 229(a) was not fulfilled
Section 7 Charter challenge
ISSUE Is S.230(d) [now repealed] inconsistent with the provisions in either S. 7 or 11(d) of the Charter?
HELD Yes – unconstitutional – law repealed.
REASONING Lamer (Majority) Murder must require intent b/c of the high potential for restricted liberties and
the stigma a conviction carried with it – subjective mens rea is most appropriate  Charter itself
imposes a minimum fault requirement which Parliament cannot overrule. The legislation is not
saved under S. 1 since although the legislation has an important purpose, it is unconstitutional that
it does not even require objective foreseeability of death so it violates S. 7. It is a POFJ that a
conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of
objective foresight of death.
RATIO Section 230(d) is unconstitutional. All crimes with significant stigma and severity of penalty, such
as culpable homicide and constructed murder, require at least proof of the mens rea element of
objective foresight of death.
R V MARTINEAU (1990 SCC)
FACTS Accused and partner had weapons (pellet gun & rifle) and were going out to commit, what the
accused testified, would only be a Breaking and Entering. Broke into trailer, accused’s partner killed
the husband and wife in the trailer. Accused convicted of culpable homicide if it is committed
during a B&E where death ensures, when a person means to cause bodily harm to commit the
crime or flee – even if individuals does not want to kill the person or believes they will die.
Conviction quashed at COA, Crown appealed to SCC.
CODE S. 230(a) Second Degree Murder – allows for a murder conviction without proving accused
intended to cause death or knew death was likely (ordinary fault requirement no fulfilled)
ISSUE Does a charge of murder require intent?

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 Is it subjective or objective intent that is required?
HELD Appeal dismissed
REASONING Lamer (+4) As per POFJ and S.7, murder requires subjective foresight of death. Considers the
severe stigma and penalty as requiring proportionate level of mens rea. Believes S. 230(a) was
unconstitutional, contrary to S. 7 and cannot be saved under S. 1, and should therefore be struck
down.
Sopinka (Concurring in result) Agrees that S. 230(a) should be struck down as unconstitutional but
does not believe all murders must requires subjective mens rea in order for successful conviction
b/c the scope of this case does not require such a reach on part of SCC.
L’Heureux-Dubé (Dissent) Agrees with court in Vaillancourt that death requires objective foresight
of death, does not think S. 230(a) is unconstitutional b/c it does require objective foresight:
 Death must flow from bodily harm while accused commits dangerous crime
 Accused has to intend to cause bodily harm
 Therefore, any reasonable person would know death is foreseeable
 This meets the constitutional requirement of death being foreseeable objectively
Says there are significant policy considerations why S. 230(a) should not be struck down:
a) Legislation is based in reality that many people are killed during these heinous acts –
Parliament in their right to try and deter criminals from pursuing criminal and dangerous
objectives
b) Gravity in the offence is not just based on mens rea
c) Stigma over-emphasized – difference b/w labelling someone as murderer v.
manslaughterer
d) Court over-reaching b/c this is not a charter violation
RATIO S. 230(a) is contrary to the Charter. A person cannot be convicted of murder w/o proof of
subjective foresight of death

First Degree Murder (S.231)

There are two degrees of murder in Canada under S. 231(1) of the code, either: first degree or second degree. Default
murder category is second degree unless aggravating factors of the case can be elevated to qualify as murder in the first
degree.
 Significant difference relates to parole ineligibility:
o Second degree  parole eligibility after 10 – 25 years
o First degree  no parole eligibility
Most common reasons for elevation to first degree murder are:
 S. 231(2) planned and deliberate
 S. 231(4) specified victims (on-duty police officers & prison workers)
 S. 231(5) while committing specified offences of illegal domination (hijacking, sexual assault, kidnapping,
hostage taking, etc.)
R V SMITH (1979 SCC)
FACTS Accused drinking/partying at abandoned isolated house with two friends. Were shooting the
windows with guns (for fun). Accused and deceased victim engage in stand-off and point guns at
each other – accused shoots victim in the arm (victim begs to be taken to hospital). Accused then
deliberates whether he should take him to hospital or kill him, walks to car, returns and shoots him
several times until he is dead. Convicted of first degree murder. Accused appeals b/c murder was
not planned
CODE S. 231(2) First degree murder “…planned and deliberate”
ISSUE Was there evidence in this case of a planned and deliberate murder so as to convict of first degree
murder?
HELD No – second degree conviction substituted
REASONING Culliton There must be evidence that the killing was the result of a scheme or design previously
formulated (planned) by the accused, and the killing was the implementation of the scheme – says

33
 there was no such evidence in this case. Provides a definition of what planned and deliberate:
Planned  scheme arranged before the act or previously formulated by the accused – plan does
not have to be complicated or detailed.
Deliberate  considered and not impulsive.
First degree murder requires more than intention, since this is the minimum requirement. SCC
decided accused killed victim deliberately but suddenly, impulsively and not planned.
RATIO In order to obtain a first degree murder conviction, killing must be both planned (arranged
beforehand according to scheme) and deliberate – requires more than just intentional killing.
R V NYGAARD & SCHIMMENS (1989 SCC)
FACTS Both accused went to victim’s apartment and beat him with a bat, planned on obtaining violent
retribution; victim later died of skull fractures. Both accused were convicted of first degree murder.
Appealed on the basis that judge incorrectly charged jury that a verdict of first degree murder could
be based on a combination of S. 229(a)(ii) and S. 231(2)
CODE S. 231(2) First Degree Murder
ISSUE Can someone commit a planned and deliberate murder if they never intended to kill?
Whether first degree murder can be based on combining S. 229(a)(ii) [meaning to cause bodily
harm causing death] with S. 231(2)?
HELD Yes – appeal dismissed
REASONING Cory (Majority) SCC said you are allowed to combine S. 229(a)(ii) with S. 231(2). In order to prove a
planned and deliberate murder, you must have planned to kill them (intuitively). However, in this
case, the beating with the bat [bodily harm] was planned and deliberate but the murder itself was
not. SCC decided that although they did not specifically intend to cause death, you can plan and
deliberately cause bodily harm knowing its likely to result in death. Moral blameworthiness for
planning to cause bodily harm likely to result in death is not different than for culpability of
planning to kill. SCC said accused were reckless as to whether or not death would ensue.
RATIO Murder can be classified as first degree murder on the basis of the secondary intent (reckless
killing) in S. 229(a)(ii).
R V COLLINS (1989 SCC)
FACTS Accused charged w/ first degree murder for killing a police officer on duty at local mall. Accused
appealed on the basis that S. 231(4) is unconstitutional b/c it infringes on S.7 of the Charter since
Crown does not have to prove murder was planned or deliberate.
CODE S. 231(4) First Degree Murder “…irrespective of planning/deliberation, killing police officer…”
ISSUE Does S. 231(4) infringe on S.7 of the Charter?
Whether the accused has to know that the victim is a police officer (specified victim) in order to be
charged with first degree murder?
HELD No – appeal dismissed – S.231(4) not unconstitutional
REASONING Goodman The distinction b/w first degree and second degree murder in S. 231 is not based on
intent, it is based on:
 The presence of planning and deliberation;
 The identity of victims; or,
 The natue of the offence being committed at the time of murder
Thus, the Crown must prove that the accused had subjective knowledge/knew at the time or at
least perceive the risk that his victim was a police officer. In this case, the police officer was not
undercover – fairly obvious the accused knew.
RATIO When charged with first degree murder S.231(4) special victims, 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.

Subjective Mens Rea Requirement

An offence may require subjective mens rea b/c of:
a) Charter requirement:

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 i. Vaillaincourt – theft requiring SMR  some crimes carry such a stigma that PFJ demands they require SMR
ii. Martineau – murder was one of the offences that require SMR due to high stigma
iii. SCC requires SMR for:
1. Murder
2. Attempted murder
3. Accessory liability to an offence constitutionally requiring a subjective test
4. War crimes and crimes against humanity
5. Organized crime offences
b) Explicit statute requirement – statute includes/implies SMR required when using words such as: wilfully,
knowingly, intentionally, etc.
c) Common law requirement – most often the source of SMR
 Under common law, all true criminal offences (unlike regulatory offences) are presumed to include an
essential element of SMR – but this presumption could be rebutted by Parliament
 Offence should be interpreted as requiring SMR where the statute does not indicate a lesser standard of
fault
R V H(AD) (2013 SCC)
FACTS Accused testified she did not know she was pregnant. Suddenly gave birth in Wal-Mart toilet,
believed baby was born dead b/c it was motionless – left baby in the toilet. Baby was actually alive.
Charged with child abandonment but TJ acquitted on the basis that subjective mens rea was not
proven b/c she did not know baby was alive.
CODE S. 218 Child Abandonment
ISSUE What is the level of fault requirement for this offence, given there is a sentence of imprisonment?
HELD Acquittal upheld – subjective mens rea required
REASONING Cromwell (+4) Nothing in the text of the statute displaces the common law presumption that
subjective mens rea should be the fault requirement. The words expose and abandon suggest
subjective fault and denote requirement of awareness of risk.
Moldaver (Dissent) Believes fault element is objective. Considers the purpose of legislation, which
is to protect children from dangers that can be reasonably foreseen – including a “mens rea
loophole” goes against the purpose of the statute. However, agrees that TJ acquitted accused b/c if
she thought the child was dead, there was no intent to abandon a living child  would not qualify
as intent even if objective fault standard was applied.
RATIO Fault requirement is subjective mens rea, based on common law presumption.
STATES OF MIND FAULT LADDER
Motive Higher-order mental states
Desire Deeper reasons for action
(not normally required to be proved because it is not an offence element
but evidence of motive/desire is admissible)
- Motive/desire and intention are different

Knowledge/Intention Subjective Mens Rea

What was in the accused’s mind?
Recklessness (default for criminal offences; required under Charter for murder and a few
other crimes)
Wilful Blindness - Crown can prove anyone of these states of mind () so as to satisfy the
SMR requirement

Negligence Objective fault (ie. Dangerous driving)

Did the accused’s conduct fall below an objective standard?
Strict Liability (due diligence defence) (default for regulatory offences)

Absolute liability No fault requirement

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 Conviction follows if the Crown proves the act
(Under the Charter, never combine with imprisonment

Intention or Knowledge
Intention or knowledge denote the same level of blameworthiness – are considered two sides of the same coin.
However, there are some offences that require knowledge or intention, and recklessness and willful blindness will not
suffice.
R V BUZZANGA & DUROCHER (1979 SCC)
FACTS Accused were French Canadian community activists in favor of building a French high-school –
believed it was being opposed b/c of prejudice against the French. Made a satirical flyer intended
to make those opposed seem like bigots (pretended to be in opposition of school). Charged
w/wilful promotion of hatred – convicted at trial, appealed to SCC.
CODE S. 319(2) Wilful Promotion of Hatred “…wilfully promotes hatred against any identifiable group…”
ISSUE Were the accused wilfully promoting hatred against French Canadians?
HELD No – appeal allowed – conviction dismissed, new trial ordered.
REASONING Martin Offence requires knowledge or intention as level of fault – normally either intention or
recklessness is good enough but not in this case. Here again, it is more appropriate to interpret
statute somewhat narrowly b/c we must balance the limit it places on freedom of expression (high
fault requirement). Intention can have two meanings:
1. Conscious purpose to bring about a consequence; or,
2. Foresight that the consequence is substantially certain to occur
SCC says accuseds’ conscious purpose was to create controversy, no intention to promote hatred.
RATIO Intention can mean (a) conscious purpose to bring about a consequence; or, (b) foresight that the
consequence is substantially certain to occur.
R V THEROUX (1993 SCC)
FACTS Accused ran construction company that built homes – accepted deposits from prospective buyers
under the guise the deposits were insured when they weren’t. Although accused knew he was
lying, he honestly believed the projects would go ahead and no money would be lost. Company
became insolvent and deposits were not returned.
CODE S. 380(1)(1) Fraud
ISSUE What constitutes the mens rea for the offence of fraud?
Whether the fact that the accused’s honestly believed that the project would be completed
negated the mens rea of the offence of fraud?
HELD Appeal dismissed – mens rea for fraud was not negated.
REASONING McLachlin Actus Reus for the act of fraud requires two things:
1. Deceit – dishonest act (in this case, lying to buyers)
2. Deprivation – deprived someone of what should be theirs, or placing their property at risk
(most applicable to this case)
Mens rea for fraud is established by:
1. Subjective knowledge of prohibited act (deceit)
2. Subjective knowledge that the prohibited act could have as a consequence the deprivation
of another (recklessness)
Recklessness is the minimum level of fault requirement  does not require knowledge, but just
needs to foresee the risks of one’s consequence. Recklessness is established when it is shown that
the accused, with knowledge of the likelihood of the prohibited consequences, commits an act
which may bring about these prohibited consequences.
In this case accused tells a lie knowing others will act on it  puts their property at risk. Despite
there was no intention to keep their money or make them lose their money, the risk was reckless
RATIO Actus reus for fraud has 2 elements: (1) dishonest act that leads to (2) a deprivation.
Mens rea for fraud requires subjective awareness that you are putting another person’s property
at risk.
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R V BOULANGER (2006 SCC)
FACTS Accused was a municipal officer. Daughter was in an accident in which she was not at-fault.
Accused asked colleague to write a supplementary report of the accident for accused’s insurance
company (avoid $250 deductible). Accused charged w/breach of trust (using his position for
personal advantage), TJ found there was no sufficient evidence regarding mens rea. Crown
appealed.
CODE S. 122 Breach of Trust by Public Officer
ISSUE Whether the facts established an intention of the accused to use his public office position for a
purpose other than the public good?
HELD No – appeal dismissed – acquittal upheld.
REASONING McLachlin (Unanimous) Among other elements for a conviction of breach of trust, Crown must
prove: “the accused acted with the intention to use his/her public office for a purpose other than
the public good.” Mens rea can be inferred from the facts when: (1) there is an attempt by the
accused to conceal actions, or (2) receipt of significant personal gain. SCC says bar for mens rea of
public officers is high – mistakes of judgement do not suffice. In this case, accused did not force
colleague to write report and there was no attempt to conceal. Although accused did receive a
benefit, it may have been a mistake of judgement but not breach of trust.
RATIO Mens rea for breach of trust offences require Crown to prove the accused had an intention to use
public office for a purpose other than the public good.

Recklessness or Willful Blindness

SANSREGRET V R (1985 SCC)
MacIntyre:
The difference between recklessness and willful blindness.
Recklessness Willful Blindness
Is a subjective standard – subjectively being Also a subjective standard – subjectively being
aware of the risk of the prohibited and going aware of the need for some inquiry but declines
ahead in spite of one’s subjective awareness of to make the inquiry because he does not wish to
that risk know the truth
This case
Involves culpability when accused is  conscious Involves culpability when accused  deliberately
stands
of the risk and proceeding in the face of it fails to inquiry when he knows there is a reason
for:
Is the conduct of “one who sees the risk and for inquiry
takes the chance” Tantamount to knowledge – a person who is
willfully blind is treated in law as a person with
knowledge
Notes:
The court in Sansregret did not set out the degree of risk required to attract criminal sanction; as a result,
courts have endorsed arbitrary standards including “certainty, probability, likelihood, probability…of risk”
R V JORGENSEN (1996 SCC)
A finding of wilfull blindness involves an affirmative answer to the question:
This case stands
Did the accused shut his eyes b/c he knew or strongly suspected that looking would fix him
for:
with knowledge?
R V LAGACE (2003 SCC)
An accused will not be guilty of willful blindness if it is found that they took all reasonable
steps to determine the truth.
This case stands
When an inquiry is made on the part of the accused – the onus is on the Crown to prove
for:
beyond a reasonable doubt that despite that inquiry, the accused remained suspicious and
refrained from making further inquiry because they preferred to remain ignorant of the truth.
R V BLONDIN (1971 BCCA)
FACTS Accused imported 23 lbs of hashish hidden in scuba tank. When identified, accused admitted he
had been paid to bring something sketchy, but did not know what it was, and did not know what

37
 hashish even was. TJ charged jury by saying: “he was guilty if he knew it was hashish he was
importing” (b/c he was charged w/importing narcotic – had to know what it was to be convicted).
Crown disagreed, said it would be enough to convict if he knew he was bringing over something
illegal, arguing accused was willfully blind as to what it actually was.
CODE Importing Narcotics in Narcotic Control Act (now the CDSA)
ISSUE What did the accused have to know in order to be convicted of importing narcotics?
Did the trial judge incorrectly charge the jury w/respect to the necessary fault element?
HELD Appeal allowed – new trial ordered.
REASONING Robertson (Majority) established that the judge did err in telling the jury that the accused had to
know what the substance was inside the tank as hashish. SCC said the TJ should have told the jury
that they might convict if the accused brought the substance into Canada and,
(a) Knew it was a narcotic; OR
(b) He was reckless or willfully blind to what it was  jury would have to draw the inference he
suspected it was a narcotic
Mens rea is not established if all he knew was that it was something illegal – unfair b/c it could have
been something not as severe as a narcotic (watches, rum, etc.)
Macfarlane (Concurring) Adds that the jury should have been told that the onus is on the Crown to
prove beyond a reasonable doubt that the accused knew the substance was an illegal drug – not
necessarily that he knew it was hashish specifically.
RATIO Knowledge that the substance being imported is an illegal drug/narcotic is essential to convicting
under that offence.

Crime of Objective Fault - Negligence

Objective mens rea is a lower level of fault, thus a lower burden on the Crown to prove  higher conviction rate of
these offences. Words that indicate objective fault in statute include: ought to, reasonable care, good reason,
reasonably. The accused is held to a standard of a reasonable person.
Criminal Negligence (S. 219), Criminal Negligence Manslaughter (S. 220) and Causing Bodily Harm by Criminal
Negligence (S. 221) are examples of crimes of objective fault. Includes the definition of duty in the statute which refers
to what the accused legally ought to do.
 Interpreting these statutes is complicated because wording is not explicit in required level of fault; indications
that may suggest either:
o Subjective fault  “reckless” “disregard” – know about something but choose to ignore
o Objective fault  “negligence” is in and of itself an objective standard
O’GRADY V SPARLING (1960 SCC)
Careless driving contrary to provincial legislation – argued that such legislation was inoperative
This case stands
as being in relation to criminal law. Implies subjective fault for careless driving but courts
for:
ignored this provision.
R V TUTTON & TUTTON (1989 SCC)
FACTS Accused (mother and father) belonged to a faith healing religion, refused to provide their diabetic
son insulin b/c it was contradictory to their faith. Were told at the hospital that if they did not give
son insulin he could die, mother accused had a vision a second time and stopped insulin treatment
despite hospital warning.
CODE S. 215 Failing to Provide the Necessities of Life (Parent-Child Duty)
S. 221 Criminal Negligence Causing Death
ISSUE What is the fault level required for proving criminal negligence causing death?
HELD Court splits on whether there should be a subjective or objective standard
REASONING Entire court agrees that the fault element is the same whether crime is by omission or commission
McIntyre (+2) The objective test must be employed where criminal negligence is considered, for it
is the conduct of the accused, as opposed to his intention or mental state, which is examined.
Objective Test  Reasonableness and proof of conduct that reveals a marked and significant
departure from the standard which could be expected of a reasonably prudent person in the

38
 circumstances of the accused.
Lamer (Concurring) Agrees that standard is objective but think special factors of the accused need
to be considered w/regards to which objective standard the accused is held to.
Modified Objective 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 of the accused.
Wilson (+2) Argue that subjective fault is the appropriate standard for criminal offences, and
should apply here as well b/c the offense does not clearly require objective fault & courts should
err on the side of caution when statute is ambiguous.
Subjective Test  Wanton or reckless disregard for the lives or safety of others signifies more than
gross negligence in the objective sense; it requires some degree of awareness of risk
(recklessness), knowledge of the danger or threat of lives of others or willful blindness.
RATIO Case in itself is inconclusive – but can be used to recognize differences/ambiguity in objective vs
subjective tests of fault for criminal negligence.
WAITE V R (1989 SCC)
FACTS Accused was drinking and driving; saw people hay-riding in oncoming traffic. Decided to shut off
lights and whiz by them to scare them – killed 4/5 people walking alongside the hay ride. TJ
explained the mens rea requirement as subjective
CODE S. 220 Causing Death by Criminal Negligence (4 counts)
S. 221 Causing Bodily Harm by Criminal Negligence (1 count)
S. 249.1(a) Dangerous Operation of Motor Vehicles
ISSUE Did the TJ commit an error by charging the jury that the Crown must prove deliberate intent for
conviction of criminal negligence?
HELD Yes – new trial ordered.
REASONING Wilson It is too much to require the Crown to prove deliberate intent b/c this is a question of
negligence. In this case, accused did not intend to kill anyone but was still very negligent. As a
policy consideration, purpose of negligence legislation is to deter acts of unreasonableness. SCC
agrees that criminal negligence requires subjective mens rea but says threshold for deliberate
intent is too high an onus to place on the Crown.
RATIO Minimal intent of awareness or willful blindness of risk are sufficient mens rea for criminal
negligence offences.
R V ANDERSON (1990 SCC)
FACTS Accused was driving intoxicated (but not drunk) and distractedly, ran a red light, killing the
passenger of the car he hit. He was charged with criminal negligence causing death but was
acquitted at trial b/c TJ said that nor mens rea nor consequences of his driving were material in
deciding his conviction. Crown appealed – COA quashed acquittal – accused appeals to SCC
CODE S. 220 Causing Death by Criminal Negligence
ISSUE Did the TJ’s comments relating to the relevance of consequences and intention affect the outcome?
HELD No – appeal allowed – acquittal restored
REASONING Sopinka (Unanimous) SCC explained there is a continuum of bad driving and the context of this
case must be placed on the spectrum  there are cases of bad driving showing a more marked and
significant departure. In context, TJ was trying to say that the Crown had not shown (either
objectively or subjectively) that based on the circumstances, there was a wanton disregard for the
lives and safety of other persons. If the conduct represents a marked and significant departure
from the reasonable standard, it can meet both subjective and objective – The higher the risk, the
easier it is to determine whether a reasonable person would do in comparison to what the accused
did.
RATIO Despite enforcing a subjective or objective standard, it must be assessed whether the conduct
constituted a marked and significant departure from a reasonable person.
Marked departure from the standard = subjective awareness of risk.

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Marked Departure Test for Objective Fault Crimes
CONTINUUM OF NEGLIGENT DRIVING

Civilly Negligent Marked and

(any departure) Marked Departure Substantial
Departure
Marked Departure Test for Objective Fault Crimes applies to:
 Dangerous driving
 Criminal negligence
 Failing to provide necessities of life
R V HUNDAL (1993 SCC)
FACTS Accused overloaded his dump truck, was driving above the speed limit through downtown and ran
a red light, hitting a car crossing the intersection – driver of this car was killed. Accused claimed he
ran a yellow light and did not have time to stop – rejected b/c of eyewitnesses. Convicted of
dangerous driving causing death which had a variety of punishment sentences based on the risk
caused and consequence (risk  bodily harm  death). Accused appeals.
CODE S. 249 Dangerous Driving Causing Death
ISSUE What is the mens rea required to prove the offense of dangerous driving?
HELD Appeal dismissed
REASONING Cory (Majority) Endorses a modified objective test where the accused’s driving was assessed to
test whether this was a marked departure from that of a reasonable person, but considered
surrounding circumstances (including accused’s perception of the facts).
McLachlin (+1 Dissent) Disagrees with modified objective test because you can still consider
circumstances in the objective test – there is no modification here.
RATIO Marked departure from the reasonable person is not only relevant under S. 219, also applies to
Dangerous Driving.
R V CREIGHTON (1993 SCC)
FACTS Accused, experienced drug user, and three others were experimenting with drug use. Accused
injected cocaine into deceased victim’s arm over an 18 hr period – she died of an overdose. Third
friend wanted to call the police, but the accused pressured him to not call  instead cleaned the
scene of their finger prints and left the deceased victim. Third friend later returned but victim was
dead.
CODE S. 222.5(a) Unlawful Act Manslaughter
Unlawful Act: S. 2 of CDSA – “traffic” (a) to sell, administer, give, transfer…”
ISSUE Is the mens rea required for manslaughter subjective or objective?
If it is objective, how much weight should be given to the personal characteristics of the accused?
HELD
REASONING Lamer (Dissent) Crown must prove that a reasonable person would have foreseen risk of death
during the unlawful act. Argues that test should be:
Standard of reasonable person be ratcheted up to reflect special training of accused or lowered
to incorporate incapacities of accused. Considerable human factors:
 Do not include self-induced intoxication – standard is not lowered if accused is
drunk/drugged
 Can include: illiteracy, inexperience  traits that are out of control or beyond management
In this case, accused is an expert drug user – standard of conduct is higher  this should be taken
into account when determining if he should have reasonably foreseen risk
McLaughlin (Majority) Argues Lamer’s dissent suggests a subjective instead of objective test.
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 Reasonable person = minimum standard; ordinary negligence is not enough – negligence must
constitute a marked departure. Decides test should be:
All objective fault crimes (unless otherwise stated) require negligence that is a marked departure
from the reasonable person standard.
Personal characteristics are not taken into account, unless they are considered in order to prove
incapacity to appreciate the nature of risk.
RATIO The objective standard is whether a reasonable person in the circumstances would have foreseen
the risk of harm from their actions. If this is satisfied, then the necessary mens rea has been
proven.
(1) You should not incorporate personal characteristics into the reasonable standard, as it has
to be an unchanging standard that is easy to understand.
a. Only if an accused is incapable of understand the risk flowing from their actions
can they be excused.
OBJECTIVE FAULT TEST FOR MANSLAUGHTER
The standard is what a reasonable prudent person would have understood in the circumstances – therefore situations
of greater danger will require a greater expertise in the standard of care.
In the end she sets out a three-part test that must be satisfied for a conviction in manslaughter:

1. Establish actus reus – the activity must constitute a marked departure of the care of a reasonable person in the
circumstances.
2. Establish mens rea – the activity must have been done while there was objective foresight of harm (not death)
that can be inferred from the facts. The standard is of the reasonable person in the circumstances of the
accused.
a) Establish capacity – given the personal characteristics of the accused, were they capable of appreciating
the risk of harm flowing from their conduct?
R V BEATTY (2008 SCC)
FACTS Accused swerved onto incoming traffic, hitting another vehicle and killed 3 people – no mechanical
failure or cause of swerve. TJ said accused experienced 3 seconds of negligent driving that did not
amount to criminal negligence (perhaps only negligence in tort). BCCA reverses acquittal; accused
appeals to SCC
CODE S. 249(4) Dangerous Driving Causing Death (3 counts)
ISSUE How does the objective test apply to this case?
HELD Appeal accepted – acquittal reinstated – no criminal liability.
REASONING Although there was a marked departure from the standard of a reasonable person – negligent
driving causing marked departure was momentary. Acquittal should be reinstated for 2 reasons:
1. Exculpatory Defense – even the reasonable prudent driver experiences momentary lapses
that are sudden and unexpected.
2. Dangerous driving requires:
a) Actus Reus – was the accused driving dangerously to public? (In this case yes)
b) Mens Rea – whether on the circumstances the conduct amounted to a marked
departure from the standard of reasonable person and exculpatory defense 
objective standard
 In this case – no intention to create a danger – no mens rea.
RATIO Dangerous driving is an objective fault crime, but the civil objective standard is modified in 2 ways:
1. Actus Reus of dangerous driving requires a marked departure from standard of care of a
reasonable person, not just a departure
a. There is a continuum of dangerous driving ranging from civil  criminal liability
2. Allows for exculpatory defences – accused is able to offer explanation to absolve liability
R V F(J) (2008 COA)
FACTS Accused was a foster father to 4 year old deceased victim; victim suffered multiple blunt traumas to
his head and was extensively bruised. Victim’s foster mother plead guilty to manslaughter. Accused

41
 was charged of manslaughter by criminal negligence (convicted) and manslaughter by failing to
provide the necessaries of life (acquitted). Accused appealed conviction – COA overturned
conviction and ordered a new trial on the basis that verdicts were inconsistent. Crown appealed on
the issue of inconsistent verdicts. Accused cross-appealed for new trial
CODE S. 222(5) Manslaughter by Criminal Negligence
ISSUE Are a conviction for manslaughter by criminal negligence and an acquittal for manslaughter by
failing to provide necessaries of life inconsistent?
HELD Appeal dismissed – cross-appeal accepted – acquittal entered.
REASONING Fish (Majority) Conviction of one charge and acquittal of the other were inconsistent b/c there was
no reasonable basis upon which to convict and acquit accused at the same trial of the same offence
against the same victim. Though the 2 counts alleged different underlying offences, accused’s guilt
depended on exactly the same failure to perform duty (protect foster child from foreseeable harm).
o Failure to provide necessaries of life – required proof of a marked departure from the
conduct of a reasonably prudent person, where it was objectively foreseeable that
negligent omission would lead to risk of victim’s life.
o Criminal negligence – required proof that the same omission represented a marked and
significant departure from conduct of a reasonable prudent person where the accused was
reckless or willfully blind to risk of victim’s life
Verdicts signify that a lesser degree of fault was not established whereas a greater degree of fault
was proven beyond a reasonable doubt  inconsistent.
RATIO Fault element for criminal negligence is marked and substantial departure from standard of
reasonable person.
There are 3 standards of objective fault crimes:
1. Simple Negligence – due diligence w/ the onus reversed for regulatory offences (Sault Ste
Marie)
2. Gross Negligence – marked departure from objective norm for objective fault offences
(Beatty)
3. Beyond Gross Negligence – marked and substantial departure for offences based on S. 219
Criminal Negligence

Crimes Based on Predicate Offences

Unlawful Act Manslaughter  in order to be guilty, the accused must be guilty of some other “underlying offence” that
caused death. Most frequently, UAM occurs during assault.
R V CREIGHTON (1993 SCC)
FACTS Accused, experienced drug user, and three others were experimenting with drug use. Accused
injected cocaine into deceased victim’s arm over an 18 hr period – she died of an overdose. Third
friend wanted to call the police, but the accused pressured him to not call  instead cleaned the
scene of their finger prints and left the deceased victim. Third friend later returned but victim was
dead.
CODE S. 222.5(a) Unlawful Act Manslaughter
Unlawful Act: S. 2 of CDSA – “traffic” (a) to sell, administer, give, transfer…”
ISSUE Whether the objective test for unlawful act manslaughter required reasonable foresight of death
or merely reasonable foresight of bodily harm
HELD Reasonable foresight of bodily harm
REASONING Lamer (Dissent) Although objective fault was sufficient, the stigma associated w/manslaughter
required symmetry b/w the external and fault elements. Charter requires that death be objectively
foreseeable b/c fault requirement must be proportionate to stigma/sentence. Dissent argues, this
isn’t a tremendously high fault element, but qualifies as proportionate.
McLaughlin (Majority) Endorses Sopinka’s test of objective foresight of bodily harm in criminal
negligence fault requirement – act must be unlawful and likely to subject another person to risk of
harm that is not trivial or transitory. Rejects minority argument that fault requirement must be

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 increased b/c of stigma  uses Martineau test for constitutionality of mens rea requirement:
1. Stigma attached to manslaughter is an appropriate stigma as it reflects the particular
nature of the crime (not as harsh as murder but still reflecting loss of life)
2. Punishment is proportionate to level of blameworthiness – manslaughter carries no
minimum sentence, unlike murder which has a minimum of 25 years
3. No constitutional requirement that fault and act element mirror each other, only thing that
is required is proportionality Innocent will not be sent to jail on a charge of unlawful act
manslaughter due to requiring foreseeability of bodily harm v. risk of death because
wherever there is a risk of harm there is a practical risk of harm causing death  test
merges into one anyway.
RATIO Objective fault is sufficient mens rea for unlawful act manslaughter; objective fault requirement is
whether a reasonable person would have foreseen the risk of bodily harm.
The fault requirement for unlawful act manslaughter has two parts:
1. Fault element of the predicate offence (usually assault, here drug trafficking) which must:
 Involve a dangerous act
 Cannot be an absolute liability offence
 Has to be constitutionally valid
2. An additional fault requirement just for manslaughter
 Objective foreseeable of the risk of bodily harm which is neither trivial nor
transitory in the context of the dangerous act (does not require
consequence be foreseeable, just non- trivial body harm be foreseeable)

RAPE AND SEXUAL ASSAULT

Sexual offence laws were overhauled in 1982 – the offence of rape was repealed and replaced with sexual assault.
Lack of Consent is a necessary element for both offences that must be proven by the Crown  this means there is a
defence of consent is sexual assault cases.

Definition of Rape (Pre-1982)

Section 143. Rape
A male person commits rape when he has sexual intercourse with a female person who is not his wife,
(a) Without her consent,
(b) With her consent if the consent is,
i. Is extorted by threats or fear of bodily harm
ii. Is obtained by impersonating her husband, or
iii. Is obtained by false and fraudulent representations as to the nature and the quality of the act
NOTE: No express mens rea requirement – does a mistaken belief in consent exonerate the accused?

Historical Rules Specific to Rape Cases

1. Prior sexual history – usually became the focus of the trial and was considered relevant evidence  the notion
was that the victim’s sexual history spoke to consent, and to whether she was telling the truth – unchaste
women were considered un-trustworthy witnesses.
 This would contribute to the under-reporting of sexual assault since the victim is re-victimized through the
trial.
 The accused’s lawyer had unrestricted right to ask the victim about their sexual history
Rape Shield Laws – prevent counsel from involving the victim’s prior sexual history in sexual assault cases.
2. Doctrine of recent complaint – the assault had to be reported at the first available moment and spontaneously;
the absence of a rapid complaint was told to the jury as evidence and adversely influenced their decision. A
delay between the assault and complaint was considered a reason to doubt the truth of the report

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  Although this is no longer considered persuasive evidence by the jury, the accused’s counsel can still ask the
victim when they reported the incident and to whom during trial.
3. Corroboration – victim’s cases were expected to be corroborated by independent evidence implicating the
accused even when there was evidence of physical assault available.

Young, “When Titans Clash: The Limits of Constitutional Jurisdiction”

 This article was about the trend of defence lawyers in sexual assault who would look to psychiatric and
therapeutic reports of the victim to blame her for the offence in some way – ie. she brought it on herself
 Usually relied upon because in sexual assault cases there are very few form of evidence besides the accused’s
testimony and the victim’s
o This made these cases especially difficult to succeed in
o Making the victim seem credible was one of the only tactics available
 When you have two opposite stories, issues arise about false allegations and there needs to be a way to figure
out which allegations are false and which are true

Mistaken Belief in Consent

As part of the actus reus, the Crown must prove non-consent.
Is there are corresponding mens rea? Yes, accused’s subjective awareness of non-consent. This mental element is
reflected in the defence of mistaken belief of consent.

PAPPAJOHN V R (1980 SCC)

FACTS Accused was selling his home; the complainant was his real estate agent. They went for drinks to
discuss the sale of the house; the accused then drove her to his house (presumably still to discuss
the sale of his home). The two have completely different accounts of what occurred:
 Complainant said she was repeatedly raped and struggled
 He said the two had consensual sex
After many hours, she ran out of the house naked, with a bow tie around her neck and her hands
tied behind her back into a neighbour’s home for protection. She had no physical injuries or signs of
struggle, and her blouse was neatly hung in the closet.
Accused’s counsel wants the TJ to charge the jury with the defence of mistaken belief of consent –
sexual intercourse with the complainant was intended but the actus reus element could not be
satisfied b/c the accused honestly believed there was consent.
CODE Section 142 – Rape
ISSUE Should the TJ have charge the jury with the defence of mistaken belief of consent?
HELD No, appeal dismissed – conviction upheld.
REASONING All SCC judges agree that the defence of mistaken belief of consent exists which would negate the
mens rea and warrants an acquittal. They disagree about whether these facts warrant a discussion
of the defence.
McIntyre (+4 Majority) found the only real issue was whether there was or was not consent.
Putting the defence of mistaken belief of consent in this case would mean that it would be available
in all rape cases  there must be an evidentiary foundation for the judge to have to charge the
jury. In this case, there was no evidentiary foundations for the TJ to charge the jury with the
defence because the two stories were so different and there was no evidence of ambiguity. There
was no version of this story which would suggest that he might possibly have misinterpreted her
consent – victim says it was rape, he said it was consensual. Therefore, TJ was correct in not
presenting the defence.
Dickinson (+1 Dissent) says there is some ambiguity present in all rape cases because it is a hard
line to draw between consent and non-consent situations based on this fact. Poses the question –
does the mistaken belief have to be reasonable? NO, it only has to be honest. This is because rape
is a subjective mens rea offence and applying a reasonableness standard would change this to
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 objective mens rea. He also brings disagrees with the floodgates concern discussed in the majority
– mistaken belief is not going to be an issue in most cases, because the evidentiary basis still
needed. If the mistake is unreasonable, juries will not believe he made it to begin with and so there
is no reason to be overly concerned with the honest v reasonable mistake differentiation. On the
facts, he says there was an evidentiary basis to put the defence to the jury  so signs of struggle,
damage to clothing, keys were on the table, no physical harm.
Problems with Dissent:
 He is assuming that because there were no signs of struggle there may have been consent
 this would set the expectation that if the victim did not fight back, there was consent
 Also problematic that the accused is entitled to be mistaken just b/c there were no obvious
signs of struggle – judges do not address the accused’s duty to take reasonable steps to
ascertain or verify consent
RATIO For a defence of mistaken belief of consent to be available, there must exist some reasonable
evidence, which would convey a sense of reality but the mistake belief itself does not have to be
reasonable – it must just be honest.

SANSREGRET V R (1985 SCC)

FACTS Accused and victim lived together – accused was constantly violent throughout their relationship.
 Incident 1 - September; victim ended relationship and accused moved out. Weeks later, he
broke into her home in the middle of the night in a rage with a sharp object threatening
her. In fear, the victim told the accused to calm down and held out hope of reconciliation –
intercourse followed. Victim reported rape – no proceedings were taken b/c the accused’s
probation officer asked the victim not to press charges. It is unclear whether the accused
knew the victim had reported the rape
 Incident 2 – October; accused broke into victim’s home again with a weapon, struck her
several times and forced her to strip and stand naked while he fixed the window he broke
in through (in case the police came), threatened to kill her. Again the victim tried to calm
him down by setting out hope of reconciliation, intercourse followed out of fear.
At trial, accused was convicted of breaking and entering but acquitted on the charge of rape on the
basis there was a mistaken belief in consent. On appeal, court found there was no evidentiary basis
for the defence to have been put to the jury – Accused appealing to SCC.
CODE Sexual assault, unlawful confinement, robbery, breaking and entering with intent to commit an
indictable offence, and possession of a weapon.
ISSUE Did the accused have an honest mistaken belief in consent? Was he wilfully blind with regards to
consent?
HELD No - Appeal dismissed.
REASONING TJ had to find there was an honest mistaken belief in consent b/c of ruling in Pappajohn –
problematic b/c even though the mistake was not reasonable it was honest on the facts.
McIntyre (Majority) says the TJ was wrong to accept the defence of MBC and accepting that the
accused had an unreasonable but honest belief the victim was consenting. On the facts, TJ could
have made the inference that based on the previous reports of rape the accused was wilfully blind
to the fact that she was only consenting out of fear, especially given the fact that she had reported
the previous incident (similar level of “consent”) to the police. Culpability of wilful blindness is the
accused’s refusal to inquire whether the complainant was consenting, when he was aware there
was need for inquiry – decided not to inquire b/c he knew the truth.
 Mistaken belief just that she was consenting would not be enough when there is fear or
threat – it would have to be mistaken belief that consent was freely given
 Majority confirms that mistake did not have to be reasonable – said the TJ erred in
accepting some of the events as fact. Should have taken as fact that the accused knew the
victim reported incident 1 as rape and so he was wilfully blind during incident 2 which
would satisfy the subjective mens rea component

45
 o Wilful blindness is tantamount to knowledge – he knew there was lack of consent
but chose not to inquire
RATIO The defence of mistaken belief in consent does not apply in sexual assault cases where the accused
was wilfully blind to the lack of consent.
Exception to Pappajohn – a defence of mistaken belief of consent will not be upheld if there is
wilfull blindness so as to create an honest belief in consent.
Evidentiary threshold for mistaken belief of consent defence  air of reality test

Crimes of Sexual Assault (Post-1982)

Sexual Assault
S. 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

Sexual Assault with a weapon, threats to a third party or causing bodily harm
S. 272 Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.

Aggravated Sexual Assault

S. 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.
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
(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;

NOTE: New offences are gender neutral such that anyone can commit the crime and anyone could be victim. There is no
spousal immunity.
 Rape shied laws were introduced and doctrine of recent complaint and corroboration requirements were
abrogated.
However, there is not definition of sexual assault in the code; the definition is derived from case law.

R V CHASE (1987 SCC)

FACTS Complainant (15 years old) was the accused’s neighbour. Accused went to her house when she was
watching her younger siblings – he grabbed her breasts, she resisted and said “I know you want it”
 important to sexual purpose of the accused.
COA said there is common assault but not sexual because he did not touch her genitals.
CODE Common Assault (S. 265(1))
ISSUE What is the meaning of sexual in terms of the Code for sexual assault under s. 271?
Is genital touching necessary for sexual assault to occur?

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 HELD No – decision overturned.
REASONING McIntyre (Unanimous) said the test for recognition of sexual assault does not depend on genital
touching and does not need to involve an attack of one sex upon a member of the other sex to be
sexual. Additionally, even under the common assault provisions, an assault can exist even there is
only an attempt/intent, by act or gesture, to commit an assault – this negates the argument that
just b/c the accused did not touch her genitals, he could not be convicted of sexual assault because
there was an intent/attempt to commit the sexual assault.
Says that to be sexual, the assault must jeopardize the dignity of the complainant and be of a sexual
nature. Offence is one of general intent only – factors which could motivate sexual assault are
many and varied.
RATIO LEADING CASE ON DEFINITION OF SEXUAL ASSAULT
Sexual assault is an assault, which is committed in circumstances of a sexual nature, such that the
sexual integrity of the victim is violated.
OBJECTIVE TEST: Would a reasonable observer consider this assault to be of a sexual nature such
that the sexual integrity of the victim is violated?
Factors which can be considered to create a sexual nature include:
 The part of the body touched,
 The nature of the contact,
 The situation in which it occurred,
 The words and gestures accompanying the act, and,
 All other circumstance surrounding the conduct, including:
o Threats
o The intent or purpose of the accused of sexual gratification

Accused’s Belief as to Consent

S. 265 (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.

NOTE: Does not codify the defence, just assumes its existence. This was brought in due to the concern for unreasonable
mistaken belief of consent defences (re: Pappajohn & Sansregret). Code does not go as far as saying the mistaken belief
must be reasonable, just that reasonableness should at least be a concern for the jury.

R V BULMER (1987 SCC)

FACTS The accused and the victim (a prostitute) agreed on services. However, the accused brought the
victim into a motel room where two of his friends were waiting. According to the accused and
friends, they had negotiated a price with the victim where the guys were supposed to return after
the victim had sex with the accused. Instead, the two friends returned shortly after and demanded
sex without pay. Victim performed various sexual acts out of fear. Accused submitted there was an
honest but mistaken belief in consent.
CODE S. 271 Sexual Assault
S. 265 (Defence)
ISSUE Was there an evidentiary basis to put the defence to the jury?
HELD Yes – new trial ordered
REASONING McIntyre (+4 Majority) said that there was evidence on mistaken belief such that the TJ should
have put the defence to the jury. TJ erred in saying that the defence should not be upheld because
it was unreasonable. The mere fact that the accused alleges the defence does not require it to be
put forth to the jury, there must be evidentiary basis – air of reality in the defence. However, just
because the accused does not plead the defence does not mean the judge should not put it to the
jury.

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  Reasonableness of the belief does not matter, it can be an unreasonable mistaken belief as
long as it is honestly held; but jury still needs to be told to consider the reasonableness of
the mistaken when determining whether the accused honestly believed there was consent.
Lamer (Concurring) said the defence should always be put to the jury if the accused themselves say
that they believed there was consent. Additionally, if the accused testifies that there was consent,
this is implicitly putting forth the defence of mistaken belief  in which case it would have to be
put to the jury.
RATIO All S. 265 does is to direct judges about how the jury should consider the defence.
S. 265 does not require that the mistaken belief be reasonable or reasonably held. It is the
presence, or absence, of reasonable grounds that are the relevant factors for the jury’s
consideration in determining the proposed belief.

R V OSSOLIN
SCC clearly decided that the mistaken belief of consent can come from the testimony of the
This case stands
accused but the mere assertion of mistaken belief will not be enough. There must be an
for:
evidentiary basis.

R V DAVIS (1999 SCC)

Mistaken belief of consent negates mens rea for sexual assault but before the defence is
considered there must be an evidentiary basis (air of reality) that supports two findings:
This case stands (1) Complainant did not consent
for: (2) Accused honestly thought there was consent
There must be a situation of ambiguity in order to ground the defence of mistaken belief of
consent, and not just two diametrically opposed stories of consent v non-consent.

Estrich, “Teaching Rape Law”

 Rape cases are all about credibility  defence relies on destroying the victim’s credibility. But should defence
use things such as psychiatric records of the complainant to reduce their credibility?
o This has often been used by the defence to argue that the victim should not be believed because they
are mentally unstable
o If this should not be allowed – the accused does not get full defence
 Even looking at the sexual history of some women would be used to diminish their credibility. But not only does
this re-victimize the complainant, it would also make some women (prostitutes/active sexual life) unrapeable.
 There is less controversy now about what the basis of consent means, but there is more controversy about the
types of evidence which should be permitted to prove consent or lack thereof.

Consent
The criminal code defines what consent means and situations in which consent is vitiated.

Consent
S. 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.
Accused’s Belief as to Consent
S. 265 (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.
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Meaning of “Consent”
S. 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 is obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant; (Morgan)
(b) the complainant is incapable of consenting to the activity; (unconscious, intoxicated, developmental disabilities,
etc.)
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; (no means no
philosophy)
(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.
NOTE: In these circumstances, even if the accused believes there is consent it is vitiated^
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
NOTE: Indicates that consent can be vitiated in other ways – list is non-exhaustive

Where belief in consent is not a defence

S. 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 willful 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.

Applies to all assaults Applies only to sexual assaults

Definition of consent None 273.1(1)
Where consent is vitiated 265(3) 273.1(2)
Mistaken belief in consent 265(4) 273.2

R V EWANCHUK (1999 SCC)

FACTS Accused brought a the victim (17-years old) to his van for a job interview. After the interview, the
accused invited the victim to his trailer, where he began to make sexual advances. Every time she
would say no to his advances he would stop but would try again. She testified at trial that she was
very afraid and believed the trailer door was locked which is why she did not take further action to
stop the sexual conduct. Before she left, the accused paid her $100 not to tell anyone.
At trial, the accused successfully argued that even though the victim said no to his sexual touching,
because he had continued and she failed to object further that his constituted “implied consent.”
TJ said that subjectively the victim did not consent but because she concealed her fear, her
subjective feelings were irrelevant  her consent as implied at law. COA upheld acquittal.
CODE S. 273 Sexual Assault
ISSUE Is there a defence of implied consent available in sexual assault cases?
HELD No – acquittal reversed, imposed conviction (instead of ordering new trial for the 1 st time in SCC)
REASONING Major (Majority) held that there was no defence of implied consent to sexual assault. The accused
must raise a reasonable doubt that there was consent – consent can be shown in one of two ways:
1. the complainant in her mind wanted the sexual touching to take place, or,
2. the complainant had affirmatively communicated by her words or conduct her agreement
to engage in sexual activity with the accused.

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 Consent is subjective and depends on the complainant’s state of mind. If the court finds that the
complainant did not subjectively consent, the court cannot impose or find consent was implied
(what TJ did). On the facts, even if there was consent it would have been vitiated by fear b/c of the
threat of application of force. Fear is also subjective.
Consent can be communicated by words or conduct – mistaken belief in consent is when the
accused mistakenly though the complainant was consenting. However, Canada requires affirmative
consent from the complainant when using the defence of mistaken belief of consent.
 MBC defence will not apply where there was silence or ambiguous conduct
 Once a complainant says no, lack of consent is communicated – the accused must get
expressed consent before moving on (accused in this case did not secure consent after the
initial no)
L’Heureux-Dubé (Concurring) held that the defence could not be applied unless the accused took
sufficient steps to ascertain consent. On the facts, the accused did not make any attempt to ensure
the accused was consenting when he had moved from a massage to sexual touching. There must
always be a no-means-no philosophy when it comes to consent.
RATIO There is no defence of implied consent.
Actus Rea of Sexual Assault:
1. Touching of a sexual nature (Chase – objective test)
2. Absence of consent (what was subjectively in the victim’s mind)
Mens Rea of Sexual Assault: consent was to with what the accused thought was consent
1. Intention to touch
2. Subjective understanding of non-consent, or being reckless/wilfully blind to non-consent
If valid, defence of mistaken belief negates this requirement (^^)
Mistaken Belief of Consent will not apply when there is silence, ambiguous conduct or fear
(subjective in the victim’s mind). Will not apply when the accused did not obtain affirmative
consent before moving forward with sexual advances.

Limits on the Defence of Mistaken Belief in Consent

1. Air of reality requires a situation of ambiguity (Davis)
2. Some limits are in the Code S. 273.2 and S. 265(4):
a. No defence of mistaken belief without reasonable steps
b. No defence of mistaken belief based on self-induced intoxication, recklessness, or willful blindness
3. Additional limits from Ewanchuk:
a. Mistaken belief in consent must be a belief that consent was expressed or communicated (silence or
ambiguous conduct  consent)
b. A belief that no means yes, or that silence/passivity/ambiguous conduct means consent will not qualify
for the defence
c. Once the complainant says no, the accused is on notice and must be sure consent is communicated
before proceeding
R V CORNEJO (2013 COA)
FACTS Accused goes to victim’s house and finds her asleep on the couch. While attempting to have sex
with her, he claims that she raised her pelvis and believed this was consent for him to take off her
pants. Accused says there was kissing and touching before sex, argued these were reasonable steps
to ensure she was consenting. Victim claims she was drunk and did not consent. TJ acquitted on the
basis that there was an air of reality to the defence of mistaken belief of consent.
CODE S. 273 Sexual Assault
ISSUE Was the victim raising her pelvis sufficient to give an air of reality to the defence?
HELD No – appeal accepted
REASONING Abella held that there was nothing in this case to say that she affirmatively consented – the victim’s
intoxication insinuated that the accused should have taken reasonable steps to confirm consent.
Abella rejects the argument that kissing/touching before sex was an attempt to confirm consent

50
 since these acts too were part of the assault (would have needed consent to touch or kiss too).
For the trier to fact (judge) to believe there were reasonable steps to confirm consent, they must
employ an objective test – would a reasonable person have taken those steps? If the steps were
not reasonable, then S. 273.2(b) bars the defence from being left to the jury.
RATIO Before putting the defence of mistaken belief of consent to the jury, the trier of fact/judge must ask
whether the accused took reasonable steps to confirm consent, by asking on an objective
standard, whether a reasonable person have taken these steps to confirm consent? If no, S.
273.2(b) prohibits the defence to be put to the jury

R V A(J) (2011 SCC)

FACTS Accused and victim were long time sexual partners, victim consented to erotic asphyxiation but
when she regained consciousness, he was inserting dildo in her anus. The accused removed the
dildo ten seconds after she regained consciousness and the two then had vaginal intercourse. A
couple of months later the victim complained that she did not consent to sexual activity (in
particular what occurred while she was unconscious).
At trial, victim recanted saying she did consent to sexual touching before asphyxiation but TJ did
not believe her and said she was just trying to cover up for accused. Accused found guilty of sexual
assault, decision upheld on appeal.
CODE S. 273 Sexual Assault
ISSUE Assuming the victim did consent to asphyxiation, is it possible to consent in advance to sexual
touching that then takes place when the person is unconscious?
HELD No – decision upheld.
REASONING McLachlin (Majority) held that the complainant must be conscious to give consent. Ongoing
consent is required for two reasons:
a. To protect victims from sexual exploitation
b. To allow partners to ask to stop at any time – people who are unconscious are not able to
withdraw consent
Consent in the statute for sexual assault requires voluntary agreement for the sexual activity in
question (S. 273.1), which means consent must be present for each activity (not just one general
activity – S. 273.1(2)(d) and (e) – consent could be revocable at any time. S. 273.2(b) suggests that
complainant must be conscious b/c if not how would the accused take reasonable steps to obtain
consent before each act?
Consent for future activity is no adequate for policy reasons:
 Allowing to consent in advance is complicated – what is the exact conversation that needs
to be had?
 There is a concern for vulnerable people or people who were unconscious in sexual
situations who are even more vulnerable – limiting sexual autonomy must be balanced by
preventing exploitation
Fish (Dissent) argues consent can be given in advance because the code says nothing about the
timing of the voluntary agreement and thus does not exclude advanced consent (S. 273.1(ii)(b) is
ambiguous on this). Says there are policy arguments for this reasoning:
 Federal government should not regulate people’s private lives
 People’s autonomy is undermined in the majority’s reasoning – people should be able to
consent to what they want to
 Using the majority’s reasoning, kissing someone while they were asleep would be sexual
assault
RATIO An individual can only consent to sexual activity if they are conscious throughout that activity. If a
person become unconscious during that sexual activity, then they legally cannot be said to have
consented, even if they consented while conscious.

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MISTAKE
Mistake of Fact
Mistake of fact is different than a mistake of law – mistakes of law are not relevant to criminal liability because they are
mistakes about what the applicable law is. Example:
 Mistake of Law – I was caught with marijuana, I thought it was legal to possess marijuana  not a defence
 Mistake of Fact – I was caught with marijuana, I thought it was oregano  defence
Mistakes of fact are a defence because the fault element is missing and mens rea is negated where subjective
knowledge is needed  there is not sufficient intention to satisfy the mens rea requirement. However, the legal effect
of the mistake of fact depends of the level of fault required for that charge.

FAULT LEVEL OF OFFENCE WHERE MISTAKE OF FACT IS A DEFENSE

Subjective Mens Rea
Objective Fault
Due diligence defence
Absolute liability
Any honest mistake
Only an honest and reasonable mistake
Only an honest and reasonable mistake, with an onus on the accused to show
reasonableness
No mistake is a defense

R V HESS & NGUYEN (1990 SCC)

FACTS Both accused were charged with having sexual intercourse with a female under the age of 14
contrary to S. 146(1) – prohibited a male from having sex with a female under the age of 14
“whether or not he believed that she is 14 years of age or more” – absolute liability.
In Hess’ trial, conviction was quashed b/c the offence violated S. 15 of the Charter (equality –
statute written that only men could commit the offence) – new trial ordered.
In Nguyen’s trial, he was convicted and upheld on appeal. Court did not find a violation of S. 15 but
there was a violation of S. 7 (by creating a form of absolute liability offence where there is a
possibility for a sentence of imprisonment) but this was saved under S.1
CODE S. 146(1) – Removed from Code
ISSUE Was the code contrary to S.7 b/c by stating “whether or not he knows it” this invokes absolute
liability and there if no defence of mistake of fact available?
HELD Yes
REASONING Wilson (+3) Mens rea requirement applies in order to not punish the mentally innocent  whether
the accused understands the factual underpinning of the act they are committing is illegal  in
their mind, the accused has not done something that they think is a crime. For this reason, the code
does violate section 7 because it should at least allow for a defence of due diligence such that there
is some sort of fault element (is what the new code provisions do). This created a fundamentally
unfair state of affairs to convict someone who is not mentally blameworthy – however by the time
the decision was made the new rape laws were implemented – read the provision down to make
the statute a subjective mens rea offence.
McLaughlin (Dissent) agrees that it violates S. 7 and 15 but believes it would be upheld under s.1:
 Reasonable limit on the rights of the accused
 Purpose of the statute is to protect young girls from harms associated with sex
 Absolute liability in this case is justifiable b/c even if due diligence were required young
girls could use a fake ID to engage in sex
 Believes there is a deterrent effect b/c the use of terms such as jailbait imply that people
do know these statutes exist
RATIO True crimes that do not provide a minimum of due diligence violate s. 7.
Absolute liability offences do not afford the accused with a defence of mistake of fact
Mistake as to the Nature of the Act
There are 2 views on when mistake of fact should exonerate the accused:

52
 1. Only if the mistaken view makes the accused innocent of the offence – accused would be completely innocent of
any offences if they are believed to be mistaken (Tolson)
2. Accused can still be guilty if on the accused’s view of the facts, he can be guilty of another offence of similar
seriousness
The law is unclear on which view to take.
Assuming the facts were as D believed, if D would be guilty of…
… no offence … a more serious offence … a less serious offence
Mistake is definitely a defence Mistake is probably not a defence Mistake may not be a defence

Ex. I have a bag of marijuana, I
thought it was oregano – it is no
offence to carry oregano
Tolson, Beaver
Ex. I have a bag or marijuana, I
thought it was cocaine – possessing
cocaine is a more serious offence
than carrying marijuana
Ladue
Ex. I have a bag cocaine, I thought it
was marijuana – possessing
marijuana is a less serious offence
than carrying cocaine
Kundeus

R V LADUE (1965)
Accused tried to copulate with a dead body; charged with indecently interfering with a human
body. At trial, accused said he did not know the woman was dead b/c he was very intoxicated
– therefore claimed he lacked mens rea and should be acquitted. Assuming the facts the D
Case Elements
believed were true, he would be a guilty of a more serious offence. SCC held that this meant
you cannot use mistake of fact as a defence

Importance of If your mistaken view of the facts would make you guilty of something even worse than what
Case: you are charged with, you cannot rely on mistake of fact as a defence.

R V KUNDEUS (1976 SCC)

FACTS Accused sold what he believed to be mescaline to undercover police officer, who also believed it
was mescaline. However, at the lab it was discovered to be LSD. Selling LSD was a much more
serious offence than selling mescaline at that time
CODE Trafficking LSD
ISSUE Did the accused have the required mens rea for trafficking LSD?
HELD Yes
REASONING Grandre (Majority) Accused did have the necessary mens rea despite mistake of fact. Based on the
idea of Blondin, the mens rea requirement for importing narcotics will be fulfilled as long as the
accused knew it was a narcotic (or was reckless or wilfully blind to it being a narcotic (generally).
Claim of mistake of fact is dismissed b/c regardless the accused is not morally innocent.
NOTE: Duf said this was a very poorly reasoned judgement – may have been persuaded by
deterrent policy argument for people to not sell drugs, or assumption that if you are in the trade of
selling drugs you never actually know what you’re selling.
Laskin (Dissent) says actus reus and mens rea should match up – disagrees with convicting him of
something he had no mens rea for. If anything, charging him for the sale of mescaline would have
been more justifiable, but Duf says this is still problematic b/c the mens rea would not match up
with actus reus.
RATIO Individuals are guilty of selling the drug that they actually sell despite there being a mistake of fact.

Mistake of Law
Ignorance of the Law
S. 19 Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
Mistake of law is not a defence because:

53
  It would create difficulties if people are treated differently on the basis of their knowledge of the law  would
mean lawyers would be punished more severely than someone else who is committing the same act
 Inefficient to have to prove whether or not the accused knew the offence was illegal at every trial
 Recognizing mistake of law would encourage ignorance of the law

R V ESOP (1836)
The accused was a native of Bagdad and was on a ship coming to England. He had anal
This case stands
intercourse with someone, which was not illegal in Bagdad at the time but it was in England.
for:
Cultural defence of ignorance of law is not a defence.

R V CAMPBELL & MLYNARCHUK (1972)

FACTS Accused was an exotic dancer charged with immoral performance for dancing nude. Timeline:
1. Nude dancing was not immoral at trial in Johnson – not illegal
2. Campbell dances nude in reliance of Johnson
3. Court of appeal overturned Johnson decision – dancing in the nude is illegal
4. Campbell is charged with immoral performance
CODE S. 167(2) Taking Part in Immoral Performance in a Theatre
ISSUE Does her mistake of law exculpate her?
Was this a mistake of fact or law?
HELD No – this was a mistake of law – conviction upheld but discharged.
REASONING Relying on a court decision insinuates that the accused was not ignorant, and was trying to keep
herself informed about the current ruling. Law remained the same, it was the interpretation of the
law that was wrong at the trial level – mens rea of the statue was intent to dance in the nude and
so she was rightfully guilty. However, she was handed an absolute discharge sentence.
RATIO Mistaken of law is not a defence even in circumstance that are very unfair, and that are dealt with
in sentencing. Mistake of fact that would lead to the accused’s action being lawful if those facts had
been correct can apply as a defence.

R V MACDONALD (2014 SCC)

FACTS Accused was from Alberta where he had proper authorization and licensing for his gun; however,
he had his gun in Halifax – thought his Alberta registration would be upheld but Halifax requires the
gun to be registered in the province. Argued this violated s. 8 of the Charter
CODE Possessing a Loaded Restricted Firearm
ISSUE Should the accused have been entitled to the mistake of law defence?
HELD No
REASONING This was a mens rea offence which required knowledge of having a firearm and intent to have a gun
in Halifax – the mistake of law was to not knowing that his gun license did not extend from Alberta
to Nova Scotia.
RATIO Mistakes of law are typically not a defence.

Exceptions to Mistake of Law Defences

The rule that mistake of law is not a defence has 2 major exceptions:
1. Color of right for property offences – certain property offences indicate in statute that is it only an offence
without colour of right.
Example: S. 322 Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and
without colour of right converts to his use…
2. Officially induced error of law – common law defence – if you make an error of law after you seek and receive
advice from a legal official then mistake of fact may be used (Levis-Tetro)

54
R V DOROSH (COA 2004)
FACTS Accused had purchased a van with a steam cleaning unit for which he traded his trailer to the seller.
There was evidence that the steam cleaning unit needed repair and that accused believed the van
was subject to a lien (right to keep possession of property belonging to another person until a debt
owed by that person is discharged) – contrary to the seller’s representations. The accused tried to
get a hold of the seller and when he could not he believed the deal was dead. The accused went to
the seller’s home and picked up his trailer and sold it to a third party. TJ did not accept that the
accused had a legal foundation to claim his trailer back, thus found not colour of right and
convicted.
CODE Theft
ISSUE Did the accused have colour of right to his defense of mistake of law?
HELD Yes – new trial ordered
REASONING Bayda (for the court) held that the TJ erred when he found that the claim of colour of right could
have a basis only in a mistake of facts, and not law. The TJ should have considered whether the
accused had an honest belief that he had a right to the trailer, even if the claim was unfounded in
law and fact.
Theft has a 3 part mens rea requirement:
1. Fraudulent intent
2. Without colour of right **
3. Intent to deprive the owner of the property
RATIO A colour of right can exist both as a defence when there is mistake of fact or law.

INCAPACITY
Age
Children under the age of 12 are absolutely exempt from criminal liability for offences – age is measured at the time of
the offence.
 Common law position was that any child under 6 was in no way responsible; if the accused was between 7 and
13 the Crown would have the additional burden of proving the accused should be held liable b/c they could
appreciate what they were doing.
Youth Criminal Justice Act
Governs all the trials of children between the ages of 11 and 18. Basic substantive rules of law for offences are the same
when applied to adults or youths, the procedure is what changes  all Code offences apply to youths but YCJA dictates
procedural/sentencing differences.

R V B(D) (2008 SCC)

SCC recognized a new principle of fundamental justice that young people who engage in
This case stands
criminal conduct should be presumed to have less moral blameworthiness and culpability than
for:
adults.

Insanity (Mental Disorder)

The defence of mental disorder was historically known as insanity. Difficulty in this area of criminal law is that bad
behavior must be distinguished from mental incapacities that caused the bad behavior. Problematic because the law
does not hand over the question of mental disorder to psychiatric expert witnesses – this remains a question of legal
policy.

How do we integrate psychiatric and criminal law understandings of mental illness?

Courts consider DSM V diagnostic manual for mental disorders in order to understand spectrum of mental capacity.
However, even if you have a mental disorder according to DSM V, this does not mean law will see it as a mental disorder
55
(ex. Depression is in the DSM V but will not suffice to guarantee the defence of NCR). In this way, law is informed by
psychiatry but also seeks to maintain its independence, mere existence of a mental disorder is not the sole deciding
factor in criminal law. Additionally, the law cannot allow people who do have a mental disorder to be free if they are
prone to bad/criminal behavior, even if it is caused by the mental disorder.

Mental Disorders will be considered:

1. When there was mental disorder during the act
2. When the person being brought to trial is not fit to stand trial due to their mental disorder

In the past, accused who were acquitted based on the defence of insanity were sent to psychiatric facilities which
decided whether they could be released or not – this was changed because it was considered unconstitutional.
Under the current provision, the defence is called not criminally responsible on account of mental disorder (NCRMD)
 While several similarities exist between old and new provision, there is no automatic commitment to psychiatric
facility
 When NCRMD is applied, judges have three choices:
o Absolute discharge
o Provisional discharge
o Sent to a psychiatric facility for evaluation ( remains the most common alternative)
 For this reason, defence of NCRMD is usually not sought by defence counsels; usually more
beneficial for the accused to plead guilty for a lesser sentence than being sent to a facility
US V FREEMAN (1966)
Accused had a long history of drug and alcohol abuse – psychiatric expert testified he was
suffering from bouts of toxic psychosis, delusions, etc. Court decided to apply the M’Naghten
Case Elements
Test and found despite his altered state at the time, he still knew what he was doing and
should be held responsible.
Importance of M’Naghten Test which requires that a party suffer from a mental disease or defect that makes
Case: them incapable of knowing the nature and quality of actions  high threshold for defence.

R V SWAIN (SCC 1991)

SCC held that the mandatory detention of an insane acquitted person under s. 614(2) without
This case stands
any chance of a hearing offended S. 7 of the Charter and that detention without criteria
for:
constituted arbitrary detention contrary to S. 9.

In 1991, amendments abandoned the term insanity and replaced it with mental disorder – change is not as significant as
it seems because the test remains one of legal irresponsibility derived from the M’Naghten rules. In most cases, even
under the new provisions, if you are acquitted by NCR you will likely end up in a psychiatric facility  having a successful
NCRMD defence is not considered a success like other defences because it still results in institutionalization for the
accused.

Defence of Mental Disorder

S. 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.
Presumption
Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue
of subsection (1), until the contrary is proved on a balance of probabilities.
Burden of Proof
The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal
responsibility is on the party that raises the issue.

Under section 16 of the Code, the accused is not criminal responsible by reason of mental disorder if:
1. The accused committed the act “while suffering from a mental disorder”
56
 2. Which “rendered the accused incapable of”:
a. “appreciating nature and quality of the act” OR
b. “knowing it was wrong”
Section 2 of the Code defines mental disorder as a “disease of the mind”

COOPER V R (1979 SCC)

FACTS Accused had a history of serious psychiatric illness (hallucinations, mood swings, etc.) – choked the
victim, a female friend who was another impatient at the mental health war of the hospital, to
death. Because of his mental illness he might not have appreciated the risk that choking her would
kill her. However, the defence did not raise the NCRMD defence, TJ still did – but, the description of
the defence was very brief and inadequately explained to the jury. Accused convicted at trial,
decision upheld on appeal.
CODE Murder
ISSUE When should a judge charge a jury about the mental disorder defence?
HELD Appeal allowed – new trial ordered.
REASONING Dickson (Majority) held that the meaning of disease of the mind and whether a particular disorder
or condition is a disease of the mind are questions of law for the judge to decide.
On the facts, the TJ had sufficient evidence to find that the accused was suffering from a mental
disorder, but gave disproportionate weight to psychiatric expert who said he was not suffering
from a disease – this was wrong b/c (1) diseases of the mind is a question of law; (2) evidence may
have suggested (to a trier of fact) that Cooper did have a disease of the mind.
NOTE: Duf says having an accused qualify for having a disease of the mind is the easy part, the
more difficult task is proving they were incapable of understanding/appreciating the
nature/consequences of the act.
Test is that the accused must have had the mental capacity to foresee the consequences of his
violent conduct. On the facts, the accused knew it was wrong, but may not have had the mental
capacity to measure and foresee the consequences of the violent conduct.
RATIO LEADING CASE ON NCRMD AS A DEFENCE
Definition of disease of the mind: “in a legal sense “disease of the mind” embraces any illness,
disorder or abnormal condition which impairs the human mind and its functioning, excluding
however, self-induced states caused by alcohol or drugs, as well as transitory mental states such
a hysteria or concussion…Underlying all of this discussion is the concept of responsibility and the
notion that an accused is not legally responsible for acts resulting from mental disease or mental
defect.”
Based on this definition, the TJ was right to put the defence of insanity to the jury, but he did not
explain the defence properly.
Elements of the mental disorder exemption:
1. The crown must prove, beyond a reasonable doubt that the accused committed the crime
and would be convicted;
2. The accused must show that their condition falls under a disease of the mind;
3. The condition must have caused the accused to not have the capacity to appreciate either
the nature and the quality of the act or know that it was wrong.
4. The legal consequence is not an acquittal, but a special verdict of no criminal responsibility

Disease of the Mind Test

1. What disease of the mind means is a question of law for the judge
a. Disease of the mind embraces any illness, disorder or abnormal condition which impairs the human
mind and it’s functioning,
b. Excluding, however, normal self-induced states caused by drugs or alcohol, 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

57
 a. 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 was wrong?
i. Appreciating is more than knowing, it is also appreciating the outcome and consequences of the
act.

KJELDSEN V R (1981 SCC)

Evidence shows that he is a psychopath, he has a disease of the mind but was still knew what
he was doing was wrong. Can he still plead insanity? Defence says he did not appreciate the
Case Elements
consequences because he had not sympathy or repulsion of doing the acts he did. Court
disagrees – finds him guilty and not eligible for NCRMD
Mental disorder is not a defence for a person who understands the nature, quality and
Importance of
consequences of the act but does not feel guilt or remorse.
Case:
Not feeling guilt does not equate to inability to understand consequences.

R V ABBEY (1982 SCC)

FACTS Accused was charged with importing cocaine and possession of cocaine for the purpose of
trafficking. Both the Crown and defendant’s psychiatric expert agreed that the accused suffered
from a disease of the mind known as hypomania, but they differed on whether he was capable of
appreciating the nature and quality of his acts. He had delusional belief that nothing bad would
happen to him even if he admitted to trafficking caused by this mental state. They agreed that he
knew what he was doing was wrong – but could not appreciate the consequence of getting caught.
TJ gave the accused mental disorder defence.
CODE Importing and Possessing Cocaine for the Purpose of Trafficking
ISSUE What is it than an accused must fail to appreciate before he can be found legally insane?
HELD TJ erred – new trial ordered
REASONING TJ erred in holding that a person, who by reason of disease of the mind, does not “appreciate” the
penal consequences of his action is insane within the meaning of S. 16(2). A delusion which renders
an accused incapable of appreciating that the penal sanctions attaching to the commission of the
crime are applicable to him does not go to the mens rea of the offence, does not render him
incapable of appreciating the nature and quality of the act, and does not bring them into the first
arm of the insanity defence (not guilty because of a failure to appreciate the nature and quality of
the act).
“Consequences” in Cooper does not refer to the penal consequences of the act; it refers to the
understanding of the consequences that are an internal part of the actus reus to have means rea.
RATIO Accused must not have appreciation of the consequences that come from the actus reus of the
offence to be entitled to a mental disorder defence (ex. Act – kill someone; Consequence – their
death). Not understanding the consequences of the punishment is not part of actus reus and thus is
not considered when determining if the mental disorder defence applies.

R V CHAULK (1990 SCC)

FACTS Accused and friend (aged 15 and 16 respectively) broke into someone’s home, plundered it of
valuables and then stabbed and bludgeoned the victim to death. Evidence was adduced at trial that
the pair were psychotic and thought they were going to rule the world – killing the victim did not
matter because he was a “loser”. They knew that the act was contrary to the law, but they did not
think it was wrong to kill the victim. Convicted at trial, decision upheld on appeal.
CODE Murder
ISSUE What is the meaning of “wrong” in S. 16(1) of the Code?
HELD Appeal allowed – new trial ordered.
REASONING Lamer (Majority) held that wrong means more than just literally wrong, it means “morally wrong in
the circumstances accordingly to the moral standards of society. Someone might know that it is
prohibited to kill but may still believe that it was acceptable (not wrong) in the circumstance
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 because of their mental state.
McLaughlin (Dissent) disagreed and argued that if the person can appreciate that the act is either
legally or morally wrong, they should not get the mental disorder defence (narrower interpretation
of the word wrong). Policy arguments:
 There should not be extra allowance for moral appreciation for people with mental illness,
when the court would not do that for non-mentally ill people  Court usually does not
care about the moral judgement of whether your own criminal actions were wrong ot not
RATIO LEADING CASE ON WHAT WRONG MEANS
The wrong that an accused must be unable to appreciate for their condition to qualify for the
mental disorder defence is the moral wrongness of their action in the circumstances.

R V OOMMEN (1994 SCC)

FACTS Accused suffered from paranoid delusions and believed that the victim he repeatedly shot was
party of a conspiracy that was planning to kill him. TJ held that the accused was not entitled to the
defence because he had the capacity to know that society in general would regard his act wrong,
even though subjectively the accused did not believe his acts to be wrong – he believed that he had
no choice and so did not believe it was wrong in the circumstances.
CODE Murder
ISSUE What is meant by “knowing that the act is wrong” in S. 16(1)? Does it refer only to abstract
knowledge that the act of killing would be viewed as wrong by society?
HELD Appeal dismissed – new trial ordered.
REASONING There was evidence that the accused honestly felt that he was under imminent danger of being
killed by his victim if he did not kill her first, and for that reason, he believed the act of killing her
was justified. This delusion would have deprived the accused of the ability to know the act was
wrong – in his eyes it was right.
RATIO In order to qualify for the mental disorder defence, the accused must not possess the intellectual
ability to know right from wrong in the abstract sense, but must also not be able to apply that
knowledge in a rational way in making his decision to commit the offence.

Automatism
Automatism is similar to physical involuntariness, but also includes a mental state of unconsciousness such that the
individual appears to be in control but are not – usually includes complex behaviours even though the person is not in
control of their actions. Automatism is always about a person’s whole mind being taken over by consciousness, and any
action that they do while in that state is involuntary. This may include:
 Sleepwalking
 Blows to the head
 Mental disorders – when mental disorder is the root of the state of automatism the defence is mental disorder
automatism (as opposed to sane or non-mental disorder automatism)
Proving whether the person was actually in that automatic state is usually one of the main issues in these cases. Also,
distinguishing between sane automatism and mental disorder automatism becomes an even larger issue because the
formal gets an acquittal (not guilty) whereas the former receives a verdict of NCR which may lead to institutionalization.
 Defence is going to want to argue sane automatism  crown will likely argue mental disorder automatism.
o It is very difficult to get sane automatism defence, mental disorder automatism is much more likely.

NOTE: This does not contradict that the act was voluntary (AR) – the defence is put forth once AR + MR have already
been established.

R V RABEY (1977 SCC)

FACTS Accused violently assaulted (struck with a rock, dragged her under the stairs of a building) the
victim after she told him that they were just friends – victim had written a letter intended for
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 someone else, saying she was interested in another guy and Rabey was a nobody; accused
mistakenly got the letter. After the attack, the accused ran into several people, all of which
described him as bewildered, pale, delirious – he went to the nurse’s office who concluded he had
dilated pupils, high pulse, etc. The accused argued he was in a state of “psychological blow”
automatism during the assault. The Crown argued that if he was in such a state, it should be
classified as mental disorder automatism.
Accused was acquitted at trial, TJ found insanity defence should not apply. Crown appealed to COA
where the TJ held that a psychological blow like that received by the accused could not ground a
defence of non-mental disorder automatism. Accused appealed to SCC.
CODE Assault Causing Bodily Harm
ISSUE Was the state of automatism sane or mental disorder automatism?
HELD Appeal dismissed.
REASONING Richie (Majority) held that automatism means unconscious involuntary behaviour such that the
accused cannot know what he had done. Main question in this case is whether the dissociative
state was a result of a sane external factor or a mental disorder internal factor. Majority finds that
the dissociative state must have stemmed from the mental disorder  this is not up to the
psychiatric expert, this is a question of law  conclude that someone who does not have a mental
disorder would not have gone into a dissociative state and be violent the way the accused did.
Internal v External Causes Inducing Dissociative States
Court distinguishes automatism coming from an internal cause  mental disorder automatism –
arises from mental, psychological or emotional make-up.
 You find it comes from an internal cause only when the automatism does not come from an
external cause (ex. Branch hits you in the head/dentist gives you anaesthetic)
What defence was trying to argue was an overlap between the two; psychological blow
automatism – but claim it was caused by an external factor (so that he remains in the sane
automatism category). Majority does not say that psychological blow automatism does not exist,
but deny that a psychological blow would be caused by “ordinary stresses or disappointment with
life” in an ordinary person, and must have been triggered by internal frailties.
Watching someone get killed in front of you may be a sufficient external cause that induces
psychological blow automatism.
Dickson (Dissent) argued that b/c the psychosis occurred in a single isolated event, majority should
be weary of considering it mental disorder automatism – especially b/c the outcome would be
institutionalization of a potentially sane person. On the other hand, is equally as concerned that
automatism will allow a person who committed a violent act to be acquitted on the basis of a
psychological blow.
RATIO The ordinary stresses and disappointments of life which are the common lot of mankind do not
constitute an external cause of psychological blow which qualifies as an explanation for a
malfunctioning of the mind that would take it out of the category of a ‘disease of the mind’.

R V PARKS (1992 SCC)

FACTS Accused was very stressed and sleep deprived. In his sleep, he began to sleepwalk during which he
drove himself to attack his parents-in-law, killed his mother-in-law and seriously injured his wife’s
father. After the offence, he drove to the police station in a panic, was still clutching the knife he
used to stab them – holding the knife so hard he had almost cut his own finger tips off. At trial, the
accused presented a defence of automatism, stating that at the time of the incident he was
sleepwalking. Crown did not both bringing a psychiatric expert in b/c they assumed the defence
was too far-fetched and the jury would not believe it – jury acquits – crown appeals.
CODE Murder
ISSUE Did the TJ err in charging the jury with the defence of non-mental disorder automatism?
HELD No – acquittal upheld.
REASONING Lamer (Majority) explained that it was common knowledge in law that sleepwalking was an

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 example of automatism – no sense that these people have mental illnesses. This was substantiated
by the fact that the defence called 5 experts that found accused was sleepwalking and had not
control over his actions. Majority added that sleepwalking was extremely common but violent
episodes during were extremely rare, and repeated violent occasions even less so – little to no risk
of reoccurrence. Majority did leave the door open that in other cases sleepwalking may be
associated with mental disorder provided there was psychiatric evidence supporting that. Since
there was evidence that he was not mentally ill, the TJ was right to charge the jury with non-mental
disorder automatism.
LaForest (Concurring) gave more guidance on finding NMD automatism:
1. The defence must establish evidence that the person was in a state of automatism
2. Judge must decide whether the state of automatism (here sleepwalking) was a result of a
mental disorder or not – this is a question of law.
a. The judge may use the following analytical tools to decide:
i. Internal Cause Theory – internal cause is psychological when it is not
caused by an external factor (Rabey)
ii. Continuing Danger Theory – if it is likely to bring a recurring danger, it is
more likely to be associated with a mental disorder.
He also listed other policy considerations that may contribute to the decision:
 Automatism is a defence that is easy to feign – concern that if you accept sane automatism
defences this may lead to a floodgate
Analytical and policy considerations not as helpful in this case b/c sleepwalking is rare and not
many people will try and feign sleepwalking.
RATIO Internal Cause Theory and Continuing Danger Theory are analytical aids for the judge to use when
deciding whether it was non-mental disorder or mental disorder automatism – before choosing
which defence to put to the jury.

R V STONE (1999 SCC)

FACTS Accused was driving with 2 sons (from previous marriage) and his new wife – she did not want him
to see them and b/c of this accused was only able to see his sons for 15 minutes. On the way back,
accused and his wife engaged in an argument where she continuously berated him, told him he was
a loser, that he was terrible in bed, had a small penis, and that she was going to tell police he
assaulted her. Accused testified he pulled the car over, felt a “wooshing sensation” and blacked out
thereafter. Accused stabbed wife 47 times with a hunting knife he kept in the car. After coming to,
he hid her body, left a note for his daughter and left to Mexico – after a few weeks he decided to
move back to Canada and turn himself in. Claimed he underwent psychological blow automatism
during assault. TJ found there was an evidentiary basis for insane automatism. Jury convicted of
manslaughter, accepting the defence of provocation – decision upheld on appeal.
CODE Murder Reduced to Manslaughter
ISSUE Could the defence of non-mental disorder automatism have been left to the jury?
HELD No - Appeal dismissed.
REASONING Binnie (Dissent +3) bases decision on the fact that the TJ found there was evidence of automatism
and all experts agreed there was no sign of mental disorder, meaning accused was entitlted to have
the jury decide whether he was entitled to the defence or not. Doubts the usefulness of internal
cause theory – rejects the idea that automatism automatically results from MD unless you can
prove otherwise.
Bastarache (Majority +4) explains that automatism is a defence, it negates actus reus and normally
the Crown bears burden of voluntariness of the act, but in automatism, burden of proof is on the
accused to prove they were acting involuntarily on a balance of probabilities  reverse onus, but
says it is justified under s. 1 because:
 Automatism is easy to feign so if all you had to do was raise a reasonable doubt that it
could have been automatism this would open the floodgates

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  Real cases of automatism are rare
 For the burden to be on the Crown to disprove automatism every time would be unfair – all
knowledge/proof of automatism is with the accused.
 Burden of proving mental disorder defence is on the accused so this would be in harmony
with the defence of automatism
o MD and MD automatism usually overlap so it would not make sense to have
different burdens of proof on each
Lays out two steps that for judges to take when there is a valid claim of automatism. Says that
when the judge is deciding whether automatism should be put to the jury they should consider the
following analytical aids that are applicable but not determinative:
1. Severity of stimulus – more severe, more likely to be automatism; if the trigger was not
very severe this would bring about doubt as to whether the person was actually in a state
of automatism
2. Corroborating evidence of witnesses – to prove overall demeanor after crime suggests
altered state of mind
3. Corroborating evidence of experts – medical history of automatism or like states
4. Motive of crime – if there is a motive present, less likely there was automatism
5. Is the trigger of automatism also the victim? – if yes, more likely no automatism
Established that once the judge decides to put the defence of automatism to the jury, there will be
a presumption that it is MD automatism unless the accused can prove otherwise.
RATIO A claim of the defence of automatism has two steps:
1. Should the automatism be put to the jury?
a. Is there enough evidence for automatism to be put to the jury?
i. There must be psychiatric expert evidence that automatism was present, AND
ii. Accused must at least ascertain involuntariness
iii. Can choose to consider the analytical aids if needed
IF ANSWER TO 1 IS YES, AUTOMATISM IS PRESUMED TO BE MD AUTOMATISM; TO DISPROVE
MOVE TO 2.
2. Should it be left as MD automatism or can the defence rebut this presumption?
a. Judge uses the holistic approach to consider why it should not be MD automatism
i. Internal v external cause factor (internal cause  MD)
ii. Continuing harm theory (continuing harm  MD)
iii. Other policy considerations (feigning concern?)
b. Burden shifts to the accused to disprove MD automatism
i. What mental conditions are diseases of the mind? (Q of law for judge)
ii. Was what the accused was going through a mental condition? (Q of law)
iii. Whether the accused actually suffered from this condition? (Q of fact for jury)

R V LUEDECKE (2008 ONCA)

FACTS Accused had sex with victim (stranger) while both sleeping at a party – victim woke up to accused
having sex with her while in a daze (he was sleep-deprived and intoxicated). Accused went home,
slept and when he woke up he found he had a condom on – heard someone got raped at the party
and turned himself in. Defence argued parasomnia sexsomnia – tendency to have sex while asleep,
history of doing this with previous girlfriends. Expert testified that this behaviour would increase
with bad sleep hygiene but said it was not a MD. TJ acquitted as sane automatism (akin to Parks).
Crown appealed saying it should have been MD automatism.
CODE Sexual Assault
ISSUE Should the defence of non-mental disorder automatism been put to the jury?
HELD No – appeal allowed.
REASONING Doherty held that Stone reversed the approach taken in Parks where it was found that
sleepwalking cases were likely to be non-MD automatism  Stone says any automatism case has a

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 MD presumption. He lays out a comprehensive response to automatism claims:
1. Pre-verdict – focus on social defence – where there is a risk of reoccurrence, that will
almost always lead to a NCR verdict
a. Recurrence refers to the recurrence of the triggering factor, not necessarily the
behaviour
2. Post-verdict – focus on the individual assessment of the accused’s dangerousness – its
about assessing whether the person is dangerous and should not be an automatic
assumption of dangerousness.
On the facts, the accused did show a recurring danger b/c his sexomnia was triggered by bad sleep
hygiene or alcohol, which are likely to happen again in the future – which creates a continuing
danger argument. This means that MDA should have been the only defence available to him
Doherty explains that although we should fight the stigma around the NCRMD verdict, we should
not change the law because of it. Also upholds that sleepwalking automatism will now be
presumed to be MDA unless special circumstances b/c overall policy concern is the protection of
the public.
RATIO Sleepwalking automatism will be presumed to be MD automatism unless accused can prove special
circumstance that would eliminate chance of reoccurrence. After Stone, NMD automatism are
limited.
Test for NMD Automatism:
1. Trigger unlikely to occur
2. Trigger brought about a dissociative state

R V BOUCHARD-LEBRUN (2011 COA)

FACTS Accused took ecstasy ended and ended up in a state of drug-induced toxic psychosis, entered into a
religious fervour and beat someone up for wearing a cross upside down. Another individual tries to
intervene, accused throws him down the stairs and stomped on his head – permanently disabled.
Accused wants NCRMD defence, Crown claims intoxication.
CODE Aggravated Assault
ISSUE Does self-induced state of mental incapacity render s. 16 an applicable defence?
HELD No
REASONING Lebel held that in this case, there was evidence that toxic psychosis was caused exclusively by drugs
and not internal mental disorder. In toxic psychosis states, we have to start from the exclusion in
Cooper and start with the fact that it is not a MD – accused can rebut this presumption if they can
show that they have a mental disorder that was present at the time of the offence besides the
intoxication. Court uses the holistic approach from Stone that distinguishes between MDA and
NMDA but apply it in reverse:
 Continuing danger theory – did the accused himself present a continuing danger or was the
danger triggered by him taking drugs?
o Clear that the accused is a danger b/c of who he inherently is NOT the risk of him
taking the dangerous drug again
o Risk of reoccurrence has to be independent from will of the accused (could he go
into this state again even without the drugs? No – not a continuing danger)
 Internal v External Cause – would a normal person have reacted this way?
o In this case, a normal person could go into a toxic psychosis when taking the drug –
suggests it is not a mental disorder, it was self-induced intoxication
RATIO Toxic psychosis that arises exclusively from self-induced intoxication will not be considered to be a
mental disorder.

Defence Result for Accused

Non-mental disorder automatism Acquittal
Mental disorder Possible psychiatric detention
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 (including mental disorder automatism)
Self-Induced Intoxication Generally not a defence

Intoxication
Refers to people intoxicated by drugs or alcohol. Intoxication can impair perceptions, inhibitions and impulses.
Intoxication can be:
 Voluntary – person consumes a substance knowing or has reasonable grounds to believe it will cause
impairment
 Involuntary – must ask whether they had mens rea? Or was this similar to automatism?
The distinction is made b/c there is a moral difference – there is blameworthiness in getting yourself intoxicated, but at
the same time, can an intoxicated person fairly be said to be able to create mens rea and is it fair to punish them.
However, there is also a social reality that many offenders are intoxicated while they commit offences, and protecting
intoxicated people may provide a wrong incentive.

Becker & Parker, “The Intoxicated Offender – A Problem of Responsibility”

Compares intoxication with mental disorder, why and should they exonerate intoxication incapacities b/c they are
similar. Incapacity arising from intoxication is not considered as openly as mental disorder because it is self-induced,
which means they should not get the same benefit.

R V BERNARD (1988 SCC)

FACTS Accused was intoxicated (alcohol), beat and sexually assaulted the victim while in her home. He had
been drinking heavily but the victim testified that he was still able to “walk, see everything, talk
clearly and even put on the record player.” Accused claimed that as soon as he realized what he
was doing he stopped and got off the victim. At trial, jury found him guilty – TJ implied to the jury
that there was no evidence that he was drunk, but even if there was, this was no defence. COA
upheld conviction on the ground that SA was an offence of general intent  accused appealed to
SCC.
CODE S. 272(c) Sexual Assault Causing Bodily Harm
ISSUE Does sexual assault causing bodily harm require specific or general intent?
Whether evidence of self-induced drunkenness is relevant to the issue of guilt or innocence in an
offence of general intent?
HELD
REASONING McIntyre (+1) Accused is morally blameworthy
Specific v General Intent Offences
1. General intent offence: only mens rea that has to be proven related solely to the act in
question (ex. Assault, only minimal intent to apply force – do not have to intend injury)
2. Specific intent offence: performing actus reus coupled with intent that goes beyond mere
performance (ex. Murder requires intent to kill) – have an extra motive behind committing
the act itself
Intoxication as a Defence
Determining whether intoxication is a defence depends on distinction b/w specific and general
intent offence.
 For specific intent offences, intoxication acts as a defence b/c they might lack that specific
intent (meaning no acquittal but downgrading of conviction)
 For general intent offences, intoxication is generally not a defence
Crown still has to prove mens rea – can do this by asking trier of fact to infer mens rea from the
facts (mere intention to apply force is enough mens rea). Only in extreme cases would the jury not
be able to make this inference, but in these cases you can substitute intention to drink so much as
the intention to commit the crime.
Wilson (+1) there is no evidence that he did not have minimal intent to satisfy mens rea for this
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 charge – this means that there is no need to go into extreme drunkenness on these facts. Agrees
that for specific intent offences, intoxication can be a defence; but for general intent offences
intoxication is usually not a defence. Despite this not being a case of extreme intoxication, Wilson
addresses policy consideration  intoxication in some cases may be so extreme that it actually
raises a doubt about voluntariness (alcoholic automatism) – this is required b/c of the Charter.
Dickson (+1) No distinction b/w specific and general intent offences is necessary. Intoxication goes
to mens rea  Crown has to prove mens rea on actual facts, and those facts might include
intoxication. Argues that judges do not need to consider policy as this is for the legislature.
RATIO No clear majority b/c court is split – this means that Wilson will be considered binding b/c it is the
middle point between the two extremes.
Specific Intent General Intent
Involve the performance of the actus reus couple with Only intent involved relates solely to the performance of
intent or purpose that goes beyond performance of the the act
act - Manslaughter
- Murder (intent to kill) - Common assault (simple intent to apply force only)
- Assault with intent to resist arrest (extra intent to - B & E and committing a GI indictable offence
resist arrest) - Sexual assaults
- B & E with intent to commit indictable offence - Assault causing bodily harm
- Robbery (application of force to facilitate taking of
property)
- Theft
- Attempted crimes
- Aiding and abetting a crime

Judgements in Bernard
Judge McIntyre (2) Wilson (2) Dickson CJC (2) La Forest (1)
Uphold Yes – intoxication is never Yes – intoxication no No – new trial Yes – on the facts –
Conviction? a defence to sexual defence here – infer MR use proviso
assault CBH from the act
Rule SI  intoxication is a SI  intoxication is a defence Evidence of Agrees with law as
defence where incapacity to where incapacity to form intoxication can be stated by Dickson
form intent intent considered w/other
GI  intoxication is never a GI  intoxication usually not evidence on MR issue
defence – MR proved a defence; (No SI/GI distinction)
1. Usually, by inference 1. Normally infer MR from
from act, or acts
2. Where drunk akin to 2. BUT where drunk akin to
automatism, by automatism or insanity,
substitute MR – MR to intoxication can be a
get intoxicated = MR to defence – no
commit offence voluntariness
Relation to Upholds CL rule from Makes CL rule more Abolishes CL rule Abolishes CL rule
Common Leary flexible
Law

Charter Standards
R V DAVIAULT (1994 SCC)
FACTS Accused sexually assaulted a paralyzed victim. Victim had invited accused over to share her bottle
of brandy – she had too much to drink, fell asleep in her chair and woke up to the accused sexually
assaulting her in bed. Accused was a chronic alcoholic – testified he did not remember anything
until he woke up in the nude in the victim’s bed. Expert witness for the accused testified that his
alcoholism made the accused less susceptible to the effects of alcohol but his blood alcohol level

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 was so high it could have caused death or a comma in anyone else – caused the accused to
blackout (amnesia automatism). Expert testimony was uncontested by the Crown, but unsure
whether intoxicated automatism exists. TJ acquits on the basis that there was reasonable doubt
(based on Wilson in Bernard) as to whether the accused had the necessary mens rea. COA imposed
conviction – accused appeals to SCC
CODE Sexual Assault
ISSUE Can a state of drunkenness which is so extreme that an accused is in a condition that resembles
automatism or a disease of the mind constitute a basis for defending a crime which requires only
general intent?
HELD Appeal allowed – new trial ordered.
REASONING Cory (Majority +3) Adopts reasons from Wilson in Bernard and upholds the distinction b/w SI an GI
offences. Explains that intoxication can be a defence to a general intent offence where it is so
strong that it negates even minimal mens rea – could also say it negates actus reus b/c it was
involuntary, but here he deals with it from a mens rea POV. Charter requires at least the defence
of extreme intoxication for general intent offences, where the accused was intoxicated to the
point akin to automatism  no floodgates because it would only apply to very rare cases (where
there is intoxication to the point of automatism).
Reverse burden of proof – defence has to show defence of extreme intoxication on a balance of
probabilities (like automatism and mental disorder defences)
Sopinka (Dissenting +2) Mens rea requirement is there only to punish the moral blameworthy but
to use mens rea to create a defence undermines the principle of moral responsibility. Does not
think charter requires minimum for sexual assault – intoxication can be considered during
sentencing.
RATIO If an accused is intoxicated to the extent that they have no control over their actions they cannot
form the necessary mens rea to commit crimes, or said to act voluntarily; thus, being intoxicated is
a defence to crimes requiring both general and specific intent.
Charter requires at least the defence of extreme intoxication for general intent offences, where
the accused was intoxicated to the point akin to automatism  Reverse burden of proof –
defence has to show defence of extreme intoxication on a balance of probabilities (like automatism
and mental disorder defences)

Reaction to Daviault
Parliament reacted by introducing Bill C-72 (1995) – S. 33.1(1) of the Criminal Code which removes the Daviault defence
for violent crimes. Reasons provided in pre-amble:
 Sees an association between intoxication and violence (contradicts Cory J’s claim in Daviault)
 No such thing as alcoholic automatism but leaves the door open for automatism induced by substances other
than alcohol
 Questions whether intoxication can lead to involuntary actions
 Believe that people who do violence to others when intoxicated are blameworthy in relation to their conduct
and should be held accountable.
 Affirms common law principle that intoxication that is less extreme is never a defence to general intent offences.

Self-Induced Intoxication
S. 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).

Fault by reason of intoxication

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally
recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced
intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or
involuntarily interferes or threatens to interfere with the bodily integrity of another person.
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 NOTE: does not change the law for specific intent offence, only general intent

Application
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element
an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
NOTE: only removes the Daviault defence for violent offences

Is s. 33.1(1) of the Criminal Code valid under the Charter?

 Contrary to the charter b/c:
o Takes away actus reus (and mens rea) because even if the accused is found to have acted involuntarily,
they can still be convicted – against s. 11(d) and 7
 Can it be saved under s.1 as a reasonable limit?
o Pressing and substantial objective – of the removal of the defence is protecting vulnerable groups to
violent offences (women and children)
o Minimal Impairment – subsection 3 of the statute narrows it enough to not be overbroad and only
applies to violence against another person
 However, violent offences in and of themselves is still a broad category
 A drunken disorderly charge is another option b/c it would have a matching mens rea and actus
reus
o There is a self-induced element so there is an element of choice – moral blameworthiness of
intoxication to this level.
 Is intoxication still considered voluntary if there is an addiction? The law does not recognize this (addictions are
considered a disease of the mind from a psychiatric perspective, but in the law they are not mental disorder
cases.

R V DALEY (SCC 2007)

FACTS Accused was charged with the murder of his common law wife. At trial, the accused called on
expert evidence about this blood alcohol level and its effects on him.
CODE Murder
ISSUE Does intoxication prevent the accused from forming intent for specific intent offences?
HELD No
REASONING Bastarache:
Three Levels of Intoxication
1. Mild Intoxication – is not a defence at law
2. Advanced intoxication – accused lacks specific intent. It may give rise to a defence to a
specific intent offence but it depends on the facts of the case. For example, if the accused
has shot someone at close range, no amount of intoxication could form a defence.
However, in different circumstances such as a fight, there may be a defence of intoxication
b/c a sober person may have stopped.
3. Extreme Intoxication – akin to automatism, negates voluntariness; complete defence to
criminal responsibility (general and specific intent) but limited by s.33.1 to non-violent
offences.
RATIO When intoxication is a defence for specific intent offences, actual intent is at issue, not the capacity
to form intent.

R V BOUCHARD-LEBRUN (2011 SCC)

FACTS Accused took ecstasy ended and ended up in a state of drug-induced toxic psychosis, entered into a
religious fervour and beat someone up for wearing a cross upside down. Another individual tries to
intervene, accused throws him down the stairs and stomped on his head – permanently disabled.
Accused wants NCRMD defence, Crown claims intoxication.
CODE Aggravated Sexual Assault Causing Bodily Harm
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 ISSUE Can the accused be entitled to a defence of intoxication?
HELD No.
REASONING Lebel clarifies s. 33.1 by establishing which conditions must be met:
 Accused was intoxicated at the time of the offence
 Intoxication was self-induced
 Must have departed from reasonable care when acting toward someone’s bodily integrity
 Lacking general intent for voluntariness is not a defence
Even toxic psychosis would not be a defence anymore after s. 33.1
RATIO
R V CHAULK (2007 NSCA)
Self-induced for the purposes of s. 33.1 means voluntary. The accused must intend to become
This case stands
intoxicated, either by voluntarily ingesting a substance knowing or having reasonable grounds
for:
to know it might be dangerous or recklessly ingesting such a substance.

JUSTIFICATIONS AND EXCUSES

True Defences – all the elements of the offence are fully proven beyond a reasonable doubt, yet nevertheless there is an
element that operates to excuse the person from the charge

J.F. Stephen, “The Nineteenth Century”

Sources for defences can be grounded in statute or common law – no more common law offences, but there are
common law defences
Common Law Principles Continued
S. 8 (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.
 Having common law defences available to the accused allows the person who is morally innocent b/w of some
circumstance to be vindicated – whereas on the other hand, if you were common law offences still held, this is
contrary to the presumption of innocence – fundamentally, we try and give every reasonable protection to the
accused.
 More pragmatically, it is impossible for statute to be able to foresee the possible defences that may arise in
particularly unusual cases – allows for defences to become flexible on a case by case basis

Cases of Emergency – defence of person, necessity, and duress; all apply in emergency type situations where people can
be excused for breaking the law
 Duress – under pressure from a threat from another person, threat has to be of bodily harm and has to be
duress to that offence
 Defence of Person – self-defence or defending someone else
 Necessity – is a broader defence where it is realistically unavoidable to break the law in order to preserve their
own or someone else’s life. Is a catch-all defence, used only if the previous two do not apply.
NOTE: Whenever you have a defence of duress, you usually are going to satisfy the requirements of necessity.
While there are clear cut cases that call for one specific defence, there will be other cases that include facts such that
overlapping defences may apply  if you come across this on the exam you must address all options available on the
facts.

Air of Reality Defences

Is a two-step process defence:
STEP 1. Must meet evidentiary burden (aka. Burden of going forward)
- Is there an evidentiary foundation to put the defence forward?
- Accused always carried this burden
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- Air of reality test is a question of law and is decided by the judge

NOTE: If the defence fails the first step, the judge will (1) not put the defence to the jury; (2) tell the jury not to consider
the defence, even if it might seem intuitive to the jury on the facts.**

STEP 2. Must meet persuasive burden (based on the facts)

- Burden to disprove or prove the defence to the trier of fact
- May be on the accused or the Crown
o Ordinary rule is that the Crown has to disprove the defense beyond a reasonable doubt
o Reverse Onus of proving defence lies on the accused, which is always on a balance of probabilities
 Mental disorder
 Automatism
 Extreme intoxication
R V CINOUS (2002 SCC)
FACTS Accused was involved with the criminal underworld. Claimed that he discovered both victims were
trying to kill him. As he was leaving a store, he had an opportunity to shoot them and did.
CODE Murder
ISSUE Is there an air of reality to the accused’s defence of self-defence?
HELD
REASONING McLachlin & Bastarache (+4) provided a definition of air of reality.
Air of Reality – where there is evidence on the record upon which the properly instructed jury
acting reasonably could conclude that the defence could succeed; applies to all defences (true and
not). Burden of proof is on the accused claiming the defence.
- Where there is an air of reality to the defence, the judge must put it to the jury.
- The judge must put all defences that arise on the facts to the jury, even when the defence doe
not raise it (Cooper)
- Trial judge has a positive duty to keep defences from the jury that lack an air of reality (even if
the defence raises it)
TJ has to consider totality of evidence and assume accused evidence as true (even if there is
conflicting evidence – if it is raised by the defence evidence). However the TJ does not decide if
defence is successful, this is for the trier to fact.
RATIO Leading definition on air of reality test.

Defence of Person
This defence applies to crimes committed out of self-defence and while defending another person. Conduct that is seen
as justified conduct that is right – this is different in principle than excuse, is considered a justification. Statutory defence:
Defence of Person
Defence – use of threat of force
S. 34 (1) A person is not guilty of an offence if
(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;
(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
(c) the act committed is reasonable in the circumstances.
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:
(a) the nature of the force or threat;
(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;

69
 (c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
o Insinuates that the stronger you are, the less reasonable defence is vs. the weaker/more vulnerable you
are may permit earlier and more extreme uses of force in self-defence
(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;
o For example – aggressor has been known to hit (wife?) before which is why she felt the need to defence
herself
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
o Ie. not allowed to use self-defence when you’re getting arrested

 Defence allows a person to use force against an aggressor – classic idea of self-defence
 There are two main limits to the use of the defence:
o Act must be for the purpose of defence
o Act of alleged self-defence must be reasonable in the circumstances
 Proportionality of self-defence is definitely a factor – but how strict is the law on proportionality?
o Not so strict – but clearly proportionality is important such that there are some attacks that are too
minor to require certain uses of force to self-defence
 Proportionality is not based on what the threat was, but what the accused reasonably thought the threat was
o Can be based on mistaken apprehension of a threat and still be valid, but must be reasonable
o Subjective element
 This legislation is less rigid than its predecessor b/c it takes all the things that used to be formal requirements
and makes them factors that may be considered
 It is unclear whether the legislation covers other acts other than physically responding. For example:
o What if someone else is coming at you with a knife, and you run into a neighbor’s house to get away
from them – does self defence defend you from a breaking and entering charge?
Castle Doctrine – if you are in your own home, it is more justified to use aggressive force in self-defence.

R V LAVALLEE (1990 SCC)

FACTS Accused was a battered women who killed her common-law partner. She had people over, the
victim threatened to “get her” after the guests left. Out of fear, she shot the victim at the back of
the head. Expert witness testified that she was in fact acting in self-defence. Accused was acquitted
at trial, but COA ordered a new trial – accused appealing to SCC.
CODE Murder
ISSUE Can expert evidence be used in a claim of self-defence, and if so, what weight is it given?
Can self-defence be used pre-emptively to respond to a threat of harm?
HELD Appeal allowed – acquittal restored.
REASONING Wilson (Majority +6) answers whether her fear of being attacked and response was reasonable.
Imminent Requirement – had to have an imminent threat in order to use this defence. However,
Wilson took issue with the fact that this would mean she would have to wait until she was being
abused to defend herself. Under the traditional common rule – imminent threat was a requirement
to ensure self-defence was actually necessary  this was seen as too restrictive.
NOTE: Imminence is still a factor in the new legislation but is not a requirement.
Expert Evidence given about battered women helped to show her mental state and perception of
situation – degree of predictability that battered spouse would react that way was much higher
than someone not in that situation. Battered women syndrome is not a defence, but just helps
bolster the self-defence defence and justify why their action was reasonable  helps determine
whether the accused’s fears were reasonable in the circumstances.

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 Subjective Element – issue is not what an outsider would have reasonably foreseen, but what the
accused would have reasonably foreseen (subjective test).
Criticisms of Battered Woman Syndrome – stereotyped what battered women look like, and this
defence might not apply to women who were not as helpless as the accused was in this case.
However, the court responded by saying that each woman’s experience is unique but they also
have shared factors, therefore it is important to look at characteristics of the general syndrome but
also the specific circumstances of the woman claiming to have the syndrome.
RATIO Imminence of an assault is not a requirement of self-defence. Expert testimony can be very helpful
in claims of self-defence as it provides an air of reality for the judge and evidence for the trier of
fact to understand the conditions that the accused was in when they acted – allows for an objective
determination of whether their actions were reasonable in the circumstances.

Actions that claim to be in self-defence but are too temporarily removed or violent in the
circumstances to be considered reasonable will not satisfy the s. 34(2) requirements to be a valid
claim of self-defence.

R V MALLOT (1998 SCC)

FACTS Accused killed her common-law husband of 20 years who was domestically abusing her – sexually,
psychologically and emotionally. The day of the shooting the accused was supposed to go and get a
prescription filled for the victim’s illegal drug trade – she took his gun and shot him in the head.
Drove to the deceased’s girlfriend’s home, shot and stabbed her with a knife. Accused’s expert
witness asserted that she suffered from battered woman syndrome and that killing was in self-
defence. At trial, the accused was found guilty of 2 nd degree murder and attempted murder of the
gf. COA upheld conviction – said there was no air of reality for the attempted murder charge.
Accused appealed on the basis that the jury was not appropriately charged with the defence.
CODE First Degree Murder – reduced to Second Degree (of husband)
Attempted Murder
ISSUE Is battered woman syndrome an air of reality defence?
HELD Appeal dismissed.
REASONING L’Heureux-Dubé & McLachlin (Obiter) confirm what Wilson said in Lavallee that battered woman
syndrome is not in itself a defence, it is used as evidence to give the defence an air of reality. Take
issue with the fact that battered woman syndrome now creates new stereotypes of women –
syndrome should be seen as both shared and individualized.
RATIO Fear arising from battered woman syndrome will not automatically qualify an accused for a valid
claim of self-defence, there must still be a standard of reasonableness and there must be an air of
reality.

Self-defence claims should be objective and subjective. Duf draws a similarity b/w battered women syndrome and
police shootings (both claiming self-defence). If the test were only subjective, police could always make the claim that
they felt threatened by the victim.
Ex. Michael Brown in Ferguson & Sammy Yatim in Toronto – Toronto police officer shot Yatim 8 times; convicted of
attempted murder b/c there were two bouts of shooting – officer was justified in self-defence for first two shots (which
killed Yatim) but other 6 were controversial b/c disproportionate and unreasonable – but you cannot be convicted of
killing someone who is already dead.

Necessity
R V DUDLEY & STEPHENS
FACTS D & S stranded on a boat for 3 weeks with captain & young boy – decided to kill the boy and eat
him in order to survive
CODE Murder
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 ISSUE Is killing under the circumstances of survival still murder?
Is necessity a defense for the charge of murder?
HELD No – convicted.
REASONING Accepting the defense would set a dangerous precedent  killing the boy was immoral and judge
did not want the law to be divorced from morality.
RATIO Necessity is not a defense for murder when the victim is not a direct threat to one’s life.
Law is interwoven with concepts of morality. ImmoralIllegal

PERKA V R (1984 SCC)

FACTS Accused had 33 tons of marijuana on his boat worth $6-7 million; was sailing from Colombia to
Washington with final destination in Alaska. However due to a failing engine of his boat he had to
dock on Vancouver Island. Accused unloaded their cargo on a remote beach and was charged with
importing and possession. Accused argued the only reason he broke the law (in Canada) was out of
necessity to save his and his crew’s life. They never intended to enter Canada at all – had not
intention to possess or traffic in Canada. Jury acquitted, Crown appealed.
CODE Importing Cannabis
Possession for the purpose of Trafficking
ISSUE Is necessity a defence? Did the TJ err in directing attention to factors of necessity?
HELD Yes – new trial ordered.
REASONING Dickson held that the TJ was correct in putting the defence to the jury but erred by not explaining
the defence correctly.
Necessity can be understood in two ways:
1. Justification – praised since they were motivated by a noble objective – justified if the
otherwise criminal act was the right thing to do. Is a situation where the act is not wrong.
2. Excuse – carry no approval and are concessions to human frailty – pardoned. Is a situation
when following the law would be impossible. The act is nonetheless wrong, but
circumstances dictate the actor should be pardoned.
Dickson says necessity is an excuse, not a justification. Interpreting the defence as a justification is
too subjective b/c it includes value judgements. Recognizes the defence as an excuse recognizes
human weakness:
“a liberal an humane criminal law cannot hold people to strict obedience of laws in emergency
situations where normal human instincts, whether of self-preservation or of altruism,
overwhelmingly impel disobedience”
However, defence has limitations – if there is such a defence, it should just be used to justify non-
compliance with the law when compliance with the law is impossible – test is set very high “clear
and imminent peril” where compliance with the law is impossible. The defence only covers acts
which are morally involuntary; underlying question is whether the accused had no real choice? On
the facts, the accused will not be entitled to this defence because was involved in an illegal
situation. Contrary to the Crown’s request, Dickson did not go as far as saying necessity would not
be available for people involved in illegal situations, just said: “if the harm was foreseeable from the
illegal situation, the defence of necessity would not be available.
RATIO Leading explanation on distinction between justification and excuse.
To successfully use the common law excuse of necessity, there must be 3 elements present:
1. Emergency – urgent situation of clear and imminent peril – modified objective test;
2. No reasonable legal alternative – modified objective test;
3. The illegal act must be proportional to the harm avoided; standard objective test.
If necessity arose from participation in an illegal situation, the harm must not have been
foreseeable.

R V LATIMER (2001 SCC)

FACTS Accused (father) killed daughter who suffered from severe cerebral palsy and extreme pain from

72
 seizures. Was facing another painful surgery, accused perceived the surgery as mutilation and killed
her in the cab at the back of his truck with exhaust from the truck. Argued necessity, claiming he
had no other choice but to end his daughter’s suffering since euthanasia was not legal. TJ convicted
him of 2nd degree murder. At COA upheld charge but jury was upset with harshness of 10 year
parole ineligibility, recommended 1 year imprisonment.
CODE First Degree Murder reduced to Second Degree
ISSUE Did the TJ err by withholding the defence of necessity from the jury?
HELD No – appeal dismissed.
REASONING Per curiam held that the TJ did not err b/c the defence lack an air of reality. Used Perka factors:
1. Not enough to foresee the peril, but must be on the verge of transpiring and certain to
occur
2. No reasonable legal alternative requirement
3. Proportionality of harms – can’t cause a significant harm to avoid a lesser harm.
Confirmed that the court should use the modified objective test for #1 & #2 – objective but
modified by situation and characteristics of the accused. However, the test for proportionality
should be objective.
Air of Reality Test: needs to be established for all 3 stages. On the facts, there was (1) no imminent
peril – victim was in the state she had been in for a very long period; (2) there were other
alternatives present, such as surgery, feeding tube or group home; and (3) proportionality test is
hard to meet in homicide cases b/c hard to prove death is better than alternative  Dudley v
Stephens may be interpreted to mean necessity is never a defence for homicide, but inconclusive.
RATIO To charge a jury with the defence of necessity, there must be an air of reality for all three aspects of
the Perka Test.
Further interpretation of Perka:
1. An urgent situation of imminent peril (for yourself or another person) – the peril must be
on the verge of transpiring and virtually certain to occur (modified objective)
2. No reasonable legal alternative – realistic assessment of options (modified objective)
3. Proportionality b/w harm inflicted and harm avoided – not required that the harm avoided
clearly outweigh the harm inflicted, but at a minimu they have to be of equal gravity
(objective)

Duress
Pressure from another human using concession to threat – must consist of pressure of one’s own life or those around to
suffice as a claim for a duress offence.
STAUTORY DURESS – APPLIES TO PRINCIPLE OFFENDER
Compulsion of Threats
S. 17 A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person
who is present when the offence is committed is excused for committing the offence if the person believes that the
threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to
compulsion, but this section does not apply where the offence that is committed is:
(a) High treason or treason
(b) Murder
(c) Piracy
(d) Attempted murder
(e) Sexual assault
(f) Sexual assault with a weapon
(g) Threats to a third party or causing bodily harm
(h) Aggravated sexual assault
(i) Forcible abduction
(j) Hostage taking

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 (k) Robbery
(l) Assault with a weapon or causing bodily harm
(m) Aggravated assault, unlawfully causing bodily harm
(n) Arson
(o) Offence under s. 280 - 283 (abduction and detention of a young person)

Interpretation of restrictive requirements:

1. Threat of death or bodily harm to the accused or the third party
2. There must be immediacy – act committed under threat of immediate death or bodily harm
3. Threat/threatening party must be present when the offence is committed
4. Reasonable belief that the threat will be carried out
NOTE: If first four requirements are present, proceed to restrictions (5 & 6)
5. Exclusion of offences
6. Accused must not be a party to a conspiracy
NOTE: use modified objective test for requirements added by the common law requirements below
7. No safe avenue of escape (Hibbert)
8. Close temporal connection – replacement of immediacy
9. Proportionality
COMMON LAW NECESSITY APPLIES TO SECONDARY OFFENDER
Common law defence has not exclusions, but is reserved for secondary offenders. Section 17 will not apply to aiders or
abettors – will only use common law defence.
There are three elements to the defence. It must be established that:
1. The accused must be subject to a threat of death or serious physical injury
2. On an objective standard, there was no safe avenues of escape or an reasonable opportunity to render the
threat ineffective
3. There must be proportionality b/w the threat and the criminal act alleged
If the defence is raise, the Crown has the burden of proving beyond a reasonable doubt that at least one of the elements
was not satisfied.

R V PAQUETTE (1977 SCC)

FACTS There was a robbery at popshop in Ottawa where a bystander was killed by one of the bullets shot
by the principal. Accused resisted giving the principals a ride when he discovered what they were
going to do. The principal pointed the gun at him – he had to drive and waited while they robbed
the store – tried to resist again. Accused was a get-away driver for the parties that shot the victim.
CODE Murder
ISSUE Did the restrictions on the defence of duress apply to a party of the offence (not just main
offender)?
HELD Yes
REASONING Martland J: held that s. 17 only applies to the person who actually commits the offence, not other
parties – applies to the perpetrator (shooter) but does not apply to other parties (aider or abettor).
There is a high threshold to prove that someone is a secondary vs principal offender b/c the
common law defence of duress has less exceptions (more attainable than statutory duress).
RATIO Common-law defence of duress is applicable to people who are parties to an offence, not the
principle offender.

R V HIBBERT (1995 SCC)

FACTS Accused forced by gunmen to lure his friend to a street, where they killed him – shot 4 times in the
lobby of his apartment building by shooters. Accused contends that he only called his friend down
b/c he was threatened (duress). TJ charged jury saying that duress negates mens rea of an offence
(wrong). Acquitted of attempted murder at trial but convicted of aggravated assault; COA dismissed
appeal but reduced sentence – accused appealing to SCC.

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 CODE Aiding and Abetting Murder
ISSUE Does the common law defence of duress apply to the accused?
HELD Appeal allowed – new trial ordered.
REASONING Lamer held that duress is based on moral involuntariness to which “no safe avenue of escape” is
required to prove. Says that although he is bound by Creighton (foreseeable bodily harm = mens
rea), this case is much different than Creighton. Unanimous court uphold that a modified objective
test is more appropriate for an excuse-based defence – must take into account particular
circumstance and human frailities. Threats can have an altering affect on one’s mental state,
however this does not necessarily mean that someone who commits the actus reus under duress
does not possess the necessary mens rea for conviction – depends on what the offence mens rea
requirement is and facts of the case.
Says that the common law defence of duress applies to the accused. “No legal way out”
requirement asks if there was a reasonable legal alternative which should be determined using a
modified objective test  says that a reasonable person in the accused’s shoes would not have
though that they had any reasonable alternatives.
In this case the TJ erred by explaining duress goes to the accused’s mens rea, b/c the accused knew
calling his friend down would result in bodily harm (Creighton), and so there is no way the jury
could have found no mens rea. Duress goes to voluntariness (actus reus).
RATIO Duress may be used as a defence to either negate mens rea, or as an excuse-based defence under
s. 17 or the common law defence of duress. The defence can always apply, but whether or not the
coercion will mean that mens rea is not present will depend on the offence requirement and the
facts of the case.
Common law duress only requires accused had a reasonable legal alternative using a modified
objective test.

Evolution of the Defence of Duress

Paquette Hibbert Ruzic
The defence of duress can be Like necessity, duress is an excuse Under s. 7 of the Charter, there is a POFJ
both: based on moral involuntariness that only morally voluntary conduct that
- a statutory defence under - for it to be involuntary, duress can attract liability.
s. 17, which applies to requires that the accused had no - S. 17 violates s. 7 of the Charter b/c the
principals safe avenue of escape  applied immediacy and presence requirements
- a common law defence on a modified objective standard remove the defence for some morally
that is available to which takes into account involuntary acts
secondary parties accused’s characteristics - Immediacy and presence
requirements were read out of s. 17

R V RYAN (2013 SCC)

FACTS Accused was a victim of abuse and violence by her husband. She believed he would cause her and
her daughter serious bodily harm – tried to go to the police but they did not do anything to help
her. She decided to have him killed – hired a hitman and agreed on amount to pay him. Claims
duress and threats of murder forced her to commit the offence.
CODE Counselling the Commission of a Murder
ISSUE Can an accused who is being abused rely on duress when she plans to have him murdered?
HELD No.
REASONING LeBel & Cromwell held that duress is available when one is compelled to commit a crime against an
innocent third party due to a reasonable belief of harm. Duress covers certain types of facts:
“when a person commits an offence while under compulsion of a threat made for the purpose of
compelling him or her to commit it”
This means that the threat of harm must come from the person who is forcing her to do something,
not from the victim – on the facts, she is not entitled to a defence of duress.
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 Uphold the modified objective test for “no safe avenue of escape” – would a reasonable person in
similar circumstances.
Explain that duress must remain applicable only in situations where the accused has been
compelled to commit a specific offence under threats of death/bodily harm:
1. There must be an explicit/implicit threat of present or future death/bodily harm directed at
accused or third party
2. Accused must reasonably believe that the threat will be carried out
3. There must be no safe avenue of escape (modified objective standard)
4. There must be a close temporal connection b/w the threat and the harm threatened
5. There must be proportionality b/w the harm threatened and the harm inflicted by the
accused (modified objective standard)
RATIO LEADING CASE ON DURESS
Defence of duress is only available when the accused commits an offence under compulsion of a
threat made for the purpose of compelling the accused to commit the offence.

Statutory and Common Law Duress after Ryan

Defence of duress is only available when the accused commits an offence under compulsion of a threat made for the
purpose of compelling the accused to commit the offence.

Ryan holds that the statutory defence has 7 requirements - 4 remain from s. 17:
1. Threat of death or bodily harm to the accused or a third party
2. Immediacy: act committed under threat of “immediate death or bodily harm”
3. Presence: threatening party must be present when the offence is committed
4. Reasonable belief that threat will be carried out: accused has to believe the threats will be carried out
5. Accused not a party to a conspiracy
6. Exclusion of certain offences (murder)- only applies to statutory defence – modified in light of the charter
NOTE: Plus, three common law requirements ensure moral voluntariness:
7. No safe avenue of escape (modified objective test)
8. Close temporal connection - replacement of immediacy.
9. Proportionality (modified objective test)

Ryan holds that the common law defence has 7 requirements:

1. Threat of death or bodily harm to the accused or a third party
2. Reasonable belief that threat will be carried out: accused must believe the threats will be carried out
3. Accused not a party to a conspiracy
4. No reasonable legal alternative (added by the CL)- Hibbert
5. Close temporal connection (added by the CL)- replacement of immediacy.
6. Proportionality (added by the CL).
a. Use modified objective test for CL requirements

Provocation
Is a partial defence to murder – means that it is a defence that operates to reduce but not eliminate culpability.
1. Is a statutory defence (s. 232) – always cite when using provocation defence
2. Only a defence to murder
NOTE: Advanced intoxication may be another partial defence to murder.
3. Provocation/provoking act must:
a. Be an indictable offence that is liable for 5 years of prison or more,
b. Deprive the ordinary person of self-control (subjective – accused must prove that he was not calm and
actually lost self-control BUT objective – provoking conduct would have deprived an ordinary person of
self-control)
c. Cause accused to act suddenly and in the heat of the moment
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Murder Reduced to Manslaughter
S. 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.

Three main changes to provocation implements in S. 232:

1. Provoking act must have been an offence (could be a hybrid offence as long as it carries a sentence of 5 years or
more)
2. Provocation must be enough to deprive an ordinary person of self-control
3. Must be on the sudden, and before the accused can cool off

R V HILL (1985 SCC)

FACTS Accused was a 16 years old male who murdered his “big brother”/sponsor who made a
homosexual sexual advance at him – this provoked him to kill the victim. At trial, both Crown and
defence agreed that accused killed victim – but had differing views of the severity of provocation
(and whether it actually occurred). Accused claimed that he was provoked by the unwanted sexual
advance (sexual assault).
NOTE: At the time this case was tried, it did not matter what type of advance this was, but under
new s. 232 provision, the provoking act matters b/c it must have been at least punishable for 5
years.
CODE First Degree Murder (reduced to Second Degree)
ISSUE Did the ONCA judge err by not directing the jury that the ordinary person within the meaning of s.
232(2) was on ordinary person of the same age and sex as the accused?
HELD Yes – TJ charge was appropriate, ONCA judge erred.
REASONING Dickson (+4) Clarified that S. 232 has three general requirements:
1. The provoking wrongful act/insult must be of such a nature that it would deprive an
ordinary person of the power of self-control (objective)
2. Accused must have actually been provoked (subjective – based on the evidence)
3. Accused must have acted on the provocation on the sudden and before there was time for
his or her passion to cool.
“Defence of provocation acknowledges that all human beings are vulnerable to violent outbursts of
passion and anger.”
NOTE: Duf questions the validity of this statement because this case is not one where there should
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 be sympathy for the accused – who are we protecting?
Objective Test of Provocation & Ordinary Person Standard
- Dickson cites Lesbini to say: the ordinary and reasonable person is one of normal temperament
and self-control with average mental capacity  CL definition of ordinary person.
- Camplin says the ordinary person is of the same age and sex of the accused.
Age will be a relevant consideration when we are dealing with a young accused person b/c this will
affect how easily they are provoked and whether they actually lost self-control. In applying their
common sense to the factual determination of the objective test, jury members will quite naturally
and properly ascribe certain characteristics to the ordinary person.
Definition of ordinary person: The ordinary/reasonable person has a normal temperament and
level of self-control, is not exceptionally excitable, pugnacious or in a state of drunkenness,
ascribed with any general characteristics relevant to the provocation is question.
Subjective Test and Actual Provocation
Once the jury has establish the provocation in question was sufficient to deprive any ordinary
person of the power of self-control, they must still determine whether the accused was so deprived
 was the accused, in fact, acting as a result of the provocation?
This part is subjective because it involves an assessment of what actually occurred in the mind of
the accused.
RATIO LEADING CASE ON PROVOCATION
The age and sex of the accused are important considerations in the objective branch of the test.
The jury should assess what an ordinary person would have done if subjected to the same
circumstances as the accused.

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