Criminal Law Notes

Criminal Law NCA Examination Study Notes (for personal use)
Canadian Criminal Law Study Notes
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Table of Contents
GENERAL OVERVIEW AND PRELIMINARY MATTERS……………….……….……………..2
1. The Sources of Criminal Law……………….…….………..……………………………..2
2. The Power to Create Criminal Offences and Rules of Criminal Procedure……………....3
3. The Procedural Classification of Offences………….……….………..…………………..6
4. Interpreting Criminal Provisions……………….……….………………………………....7
THE ELEMENTS OF A CRIMINAL OFFENCE………………………….……….………………11
5. The Actus Reus...……………………….………..……….……………….………….….11
6. Subjective Mens Rea...……….……………….……………………….…….………..….18
7. Objective Mens Rea....……….………………………...…………….……………….….28
8. Regulatory Offences…….…………………………...…………….…………...…….…..31
EXTENTIONS OF CRIMINAL LIABILITY………………………………………………………35
9. Aiding and Abetting.…………………………...…………….…………...……………...35
10. Counselling.…………………………...…………….…………...……………………...39
11. Attempts.…………………………...…………….…………...………………………...40
12. Corporate and Association Liability.…………………………...…………….…………43
SELECT CRIMINAL DEFENCES.………...…………….………………………………………...45
13. Mental Disorder…………………………………………………………………………45
14. Automatism and Involuntary Acts “Negativing” the Actus Reus………………………47
15. Simple Intoxication and Specific Intent Crimes.…………………………...…………...54
16. Extreme Intoxication and General Intent Crimes.…………………………...………….57
17. Defence of the Person.…………………………...……………………………………...61
18. Necessity.…………………………...…………………………………………………..65
19. Duress.…………………………...……………………………………………………...66
20. Provocation.…………………………...………………………………………………...68
21. Entrapment.…………………………...………………………………………………...71
22. Error of Law…………………………………………………………………………….74
THE ADVERSARIAL PROCEEDING……………………………………………………………..77
23. The Adversarial Process………………………………………………………………...77
GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION……………………………….95
24. Police Powers…………………………………………………………………………...95
GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED…………………….112
25. Securing Jurisdiction over the Accused and Interim Release………………………….112
GETTING READY FOR TRIAL…….…………………………...…………….…………….…....123
26. Disclosure and Production.…………………………...…………….………….………123
27. Preliminary Inquiries.…………………………...…………….………….……………129
28. The Jury Trial.…………………………...…………….………….…………………...132
29. Pre-Trial Motions………………………...…………….………….……………….….138
30. Trial Within a Reasonable Time Applications…………...…………….………….…..139
SENTENCING………………………...…………….………….……………….…………………142
31. General Principles of Sentencing………………………...…………….………….…..142
APPEALS AND REVIEW…….…………………………...…………….…………….…………..151
32. Appeals of Final Decisions and Judicial Review of Interim Decisions……………….151
1
GENERAL OVERVIEW AND PRELIMINARY MATTERS
1. The Sources of Criminal Law
The Constitution
 If you have already completed the Canadian Constitutional NCA Exam, you may recall the division of
powers between federal and provincial governments. Parliament (federal level of government) is, by
virtue of section 91(27), authorized to create criminal law legislation.
 As per R v Lloyd, 2016 SCC 13, McLachlin CJ at para 1: In Canada, Parliament has the sole power to
enact criminal prohibitions and determine their punishments.
 Nonetheless, the provinces can, in relation to issues that involve investigation and prosecution of criminal
offences, administer criminal law.
o Specifically, section 92(14) enables provinces to make laws in regard to “the administration of
justice in the province, including the constitution, maintenance, and organization of provincial
courts, both civil and criminal jurisdiction, and including procedure in civil matters in courts”.
The Common Law

 The Criminal Code prevents the common law from establishing criminal offences, as per section 9:
Criminal offences to be under law of Canada

9. Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under
section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom
of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province,
territory or place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or
provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
 Nonetheless, Section 8 of the Criminal Code states the following:

o 8. Application of criminal law of England (2) The criminal law of England that was in force in a
province immediately before April 1, 1955 continues in force in the provinces except as altered,
varied, modified or affected by this Act or any other Act of the Parliament of Canada (R.S.,
1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138).
 Consequently, common law defences have a role in Canadian Criminal Law (Levis (City v Tetrault 2006
SCC 12 per Lebel J). [Defences will be addressed later in the notes].
o A common law defence is duress, which exists both in statute under s. 17 of the Criminal Code
AND under the common law.
o Gerry Ferguson in Common Law Defences, at page 2: “Section 8(3) has been relied upon in
Canada for uncodified defences such as intoxication, automatism, mistake of fact, officially
induced error, necessity, entrapment, de minimus, due diligence for strict liability offences, and
the common law defence of duress for parties to an offence other than the principal offender”.
Frey v Fedoruk [1950] S.C.R. 517

 This case considered whether being a “peeping tom” was a crime.
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 Justice John Robert Cartwright stated: “peeping was not otherwise criminal and not falling within any
category of offences defined by the Criminal Law”. Thus, Parliament didn’t define peeping as a crime.
 Cartwright further stated that acknowledging it as criminal (at the time) could cause many other
actions that were legal to become criminal in nature.
 This would lead to the law becoming less clear and “arbitrary”. Citizens must know what the law is
(the rules should be clearly articulated and defined).
 Cartwright: “I think that if any course of conduct is now to be declared criminal, which has not up to
the present time been so regarded, such declaration should be made by Parliament and NOT by the
Courts”.
R v Jobidon [1991] 2 S.C.R. 714

 This case deals with consent when in a fight (i.e. fist fight).
 Jobidon claimed that the codified offence of assault was not applicable due to the fact that both the
parties to the fight consented to engaging in the fight.
 The court held that assault has to be interpreted with the common law in mind. Before the amendment
in the criminal code, the offence of assault was codified as per the common law.
 Consequently, “it was to be coloured by common law limitations on the element of consent in assault.
It was a principle of common law that it would be against public policy to allow fighting with intent to
cause bodily harm to be legal”.
Ratio: A person CANNOT consent to death, or to violent force that is not reasonable conduct (i.e.
unreasonable) in the circumstances.
Criminal Legislation
 Parliament (federal) creates all criminal offences via statutes (statute of Parliament).
 Most of the criminal offences can be found in the Canadian Criminal Code. However, this is not the sole
statutory source wherein criminal offences can be found.
 The Controlled Drugs and Substances Act and several other statutes also contain criminal offences.
o Controlled Drugs and Substances Act - I.e. Part I: Offences and Punishment, Particular Offences,
Possession of Substance: 4(1) Except as authorized under the regulations, no person shall possess
a substance included in Schedule I, II, or III.
2. The Power to Create Criminal Offences and Rules of Criminal Procedure
a) Constitutional Division of Powers

o Once again, if you have taken the Canadian Constitutional NCA Examination, you should be familiar
with the division of powers.
o In Canada, the criminal law is under the exclusive legislative jurisdiction of the Parliament of Canada.
This power is derived, as mentioned above, from the Constitution, specifically, section 91(27).
o The provinces and territories, however, do have authority to prosecute crimes in the name of the “Queen
in Right of Canada”.
o A person can be criminally prosecuted for any crime defined and specified in the Criminal Code or any
other federal statute.
o Moreover, as discussed earlier, the provinces do have authority to administer justice within the province
by virtue of section 92(14) of the Constitution Act, 1867:
14. The Administration of Justice in the Province, including the Constitution, Maintenance,

and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction,
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and including Procedure in Civil Matters in those Courts.
o This provision authorizes provincial policing and prosecution of offences under Criminal Code.
o The establishment of courts of criminal jurisdiction is expressly included in provincial power by s. 92(14)
and is expressly excluded from federal power by s. 91(27).
o Criminal trials accordingly take place in provincial courts.
o But rules of procedure and evidence in a criminal trial are federal: “procedure in criminal
matters” is expressly included in federal power by s. 92(17).
o This jurisdiction over correctional institutions is divided between the two levels of government.
o Under s. 91(28), the federal Parliament has jurisdiction over “penitentiaries”, which hold
offenders sentenced to imprisonment for two years or more.
o Under s. 92(6), the provinces have jurisdiction over “prisons”, which hold offenders sentenced to
imprisonment for less than two years.
o Another provincial head of power – s. 92(15), authorized the provincial Legislatures to make laws in
relation to: The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the
province made in relation to any matter coming within any of the classes of subjects enumerated in this
section.
R v Malmo-Levine 2003 SCC 74

o The majority (Gonthier and Binnie JJ.) rejected all the arguments for the requirements of harm under
section 91(27) of the Constitution Act, 1867 and section 7 of the Charter.
o They held Parliament does not need to establish harm but instead, only a reasonable apprehension of
harm.
o Gonthier and Binnie looked towards R v Hauser, which held that narcotics were a new matter not
considered in 1867 and so falls under the peace, order and good government power.
o They suggest that this case was likely wrong as narcotics is clearly a matter of criminal law.
o The criminal law power, they state, includes the protection of vulnerable groups. Thus, the government
is able to control activities for the protection of drug users and society.
b) The Canadian Charter of Rights and Freedoms

o Criminal law, like all other bodies of law, must adhere and comply with Charter Rights.
o If a criminal law breaches or violates a Charter right, then it will be declared invalid and as such, will be
of no force or effect.
o The caveat to this rule is the Oakes Test, section 1 of the Constitution = legally allows the government to
limit an individual’s Charter rights if it is reasonable and demonstrably justified.
o R v Oakes1 created the legal test. Charter rights are not absolute and can be infringed in the Courts
determine that the infringement is reasonably justified.
Section 1 of the Charter of Rights: ‘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’.
R v Oakes [1986] 1 S.C.R. 103

 Dickson CJ wrote a brilliant opinion for the Court; he pointed out that the words “free and democratic
society” in s.1 set the standard of justification under s.1.
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[1986] 1 SCR 103
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 Only the values of a free and democratic society would suffice and be adequate to limit the guaranteed
rights.
 For instance, if your religion allowed you to carry around a gun, you might argue that a law that
prohibits the possession of a gun is a violation of your right to religion as per the Charter. However,
according to the section 1 Oakes test, this law would be justified in a free and democratic society, as it is
a law that protects citizens and aids in ensuring safety.
 Since the guaranteed rights were themselves derived from the values of a free and democratic society,
there was an “identity of values” underlying both the rights and their limits
 What are these values? Dickson CJ suggested, as examples: “respect for the inherent dignity of the
human person, commitment to social justice and equality, accommodation of a wide variety of beliefs,
respect for cultural and group identity, and faith in social and political institutions which enhance the
participation of individuals and groups in society”
 Dickson CJ pointed out that s.1 performed two functions.
o It not only provided for limits on the guaranteed rights; it also, by its opening words, expressly
guarantees the rights and freedoms set out in the Charter
o The primacy of the rights and freedoms was also implied by the requirement that limits be
“demonstrably” justified. These indications led Dickson CJ to stipulate strict rules as to the
burden and standard of proof of justification and as to the substantive criteria that would qualify
a law as a “reasonable limit” that “can be demonstrably justified in a free and democratic
society”
 Thus, Court insisted upon a “stringent standard of justification” before it would accept a limit under s.1.
 In this way, the Court has attempted to lay down rules that will preserve the guaranteed rights against
much legislative encroachment, but will permit the enactment of limits where there is a strong
demonstration that the exercise of the rights “would be inimical to the realization of collective goals of
fundamental importance”
Canada (Attorney General) v Bedford, 2013 SCC 72 is an example of a case wherein the criminal offences were
struck down. A full s. 1 test was not conducted, as the Charter arguments were framed within the context of s. 7.
R v Labaye [2005] 3 S.C.R. 728

Facts:
 Labaye was charged with operating a "common bawdy-house”; he owned club l’Orage, a club where
people could pay membership fees and then engage in various forms of group sex.
 The operation of such a house and service was a violation under section 210(1) of the Criminal Code.
 All of the activities that took place in the house were consensual. Moreover, even though members
paid the club fees, the members did not pay each other in exchange for sex.
 Having been found guilty, Mr. Labaye was fined $2,500 (CBC News, “Swingers clubs don’t harm
society, top court rules”, December 21, 2005).
Held:
 The majority of the Supreme Court held that Mr. Labaye should not have been convicted.
 In establishing if Mr. Labaye was truly guilty of owning a bawdy-house, the Court had to determine if
the activities taking place in the house should be classified as indecent.
 The Court first noted that “morality was of no use to determining whether these activities were
indecent”. Only established Canadian objective standards of decency would be useful, and those
standards focus on whether any harm has been done.
 In reviewing precedent (Towne Cinema Theatres Ltd. v. The Queen (1985) and R. v. Butler (1992)), the
“Court determined that "obscenity" is defined as exceeding what Canadians would be able to socially
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accept”.
 Furthermore, and perhaps more importantly, the obscenity needs to be harmful to specific people.
 Harm is the only measure of indecency in Canadian law (R. v. Butler and Little Sisters Book and Art
Emporium v. Canada (Minister of Justice).
 In R. v. Labaye, the “Court approved of the harm-only approach” and wrote that "Harm or
significant risk of harm is easier to prove than a community standard" of decency”.
 The Court went on to clarify and elaborate the guidelines in terms of how to measure harm.
o What is indecent under the Criminal Code is that which is contradictory to principles
in constitutional laws. The beliefs of individuals or certain political beliefs that something may
be injurious, detrimental or dangerous is not enough. The harm in indecency must be
serious: “indecency in Canadian law is something that threatens someone's liberty, exposes
something undesirable to people, forces someone to commit a misdeed, or harms someone
engaging in certain acts”.
o The Court was mindful that sex is a more open and accepted subject in society, but still "there
may be some kinds of sexual conduct the public display of which seriously impairs
the livability of the environment and significantly constrains autonomy." The Court concluded
that in this particular case, Mr. Labaye was not guilty of indecency because he took specific
actions to ensure that only willing people would be exposed to the sexual conduct.
o Is the harm serious threshold: "The threshold is high… certain things that certain Canadians
will not like should be allowed to exist, unless it becomes so serious it threatens the
society”.
o In circumstances where people are exposed to undesirable acts and things, an accused would
be guilty if there is "a real risk that the way people live will be significantly and adversely
affected by the conduct."
 The court found no evidence of harm; thus it did not need to consider the ‘serious harm threshold’.
3. The Procedural Classification of Offences
 The Criminal Code of Canada identifies three categories of offences: summary, indictable and hybrid.
The easiest and most straightforward way to understand the difference between summary and indictable
offences is that the former is less serious, whereas the latter are more serious crimes.
 Hybrid offences are those wherein the Crown may elect (choose) to proceed either by way of summary or
by indictment. The Crown’s choice depends on the seriousness of the criminal offence and the harm
caused by the offence.
SUMMARY OFFENCES INDICTABLE OFFENCES

 Less serious  These are the most serious criminal offences.
 Not many pure summary offences  Examples include murder, terrorism, robbery, treason,
 Examples include solicitation of drug trafficking, rape, etc.
prostitution, road traffic offences,  An individual who is charged with an indictable offence
such as unlicensed driving typically has the right to select their mode of trial, that is
 A one-year limitation period is by a judge alone (without a preliminary hearing) in a
applicable to all summary provincial court, a judge alone (with OR without a
conviction offences (s. 786(2)) preliminary hearing) in a Superior Court, OR by a jury
 This limitation also applies to trial (with or without a preliminary hearing)
hybrid offences wherein the  NOTE: not every person charged with an indictable
Crown elects to proceed offence is entitled to the above options (s.553 of Code)
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summarily
Section 553
 Section 553 of the Criminal Code speaks to absolute jurisdiction offences.
 An accused has no election under these types of offences.
 They can only be tried by a provincial court judge.
o Absolute Jurisdiction: Under section 553, the Provincial Court has the jurisdiction that is “absolute
and does not depend on the consent of the accused where the accused is charged in an information”
with several classes of offences.
o Examples of s. 553 offences includes theft (other than theft that is less than $5000), obtaining money
or property by false pretences, gaming and betting-related offences (sections 201-210), fraud in
relation to fares, breach of recognizance, failure to comply with probation order, paragraph 4(4)(a) of
the Controlled Drugs and Substance Act.
More About Hybrid Offences

 In Canada, a hybrid offence is the most common type of charge in criminal law
 The power and authority to select under which class a hybrid offence will proceed rests with the Crown.
 The Crown Counsel chooses to either treat the offence as an indictable (more serious) conviction or as a
summary (less serious) conviction.
 The Crown has a discretionary decision (i.e. it is not subject to review by the courts, UNLESS, there is an
abuse of process)
 The determination by the Crown is made on the basis of the seriousness of the offence and the harm
caused by the offence. Some other factors that the Crown will account for in their decision is: the
accused’s prior criminal record, the notoriety of the case in the community at large, the limitation period
for the conviction.
 Some examples of hybrid offences include simple assault, sexual assault and theft (less than $5000).
4. Interpreting Criminal Provisions
(a), (b), (c), (d) (e)

 Section 2 of the Criminal Code: Interpretation (Definitions).
o I.e. 2(1) In this Act – Act means an Act of Parliament; enact includes to issue, make or establish,
enactment means an Act or regulation to any portion of an Act or regulation, public officer
includes…
o I.e. explosive substance includes a) anything intended to be used to make an explosive substance,
b) anything, or any part thereof, used or intended to be used, or adapted to cause, or to aid in
causing an explosion in or with an explosive substance and c) an incendiary grenade, fire bomb,
Molotov cocktail or other similar incendiary substance…
 NOTE: It is critical to comprehend how to read and navigate the Criminal Code. Do not wait until exam
day to sift through the pages and become familiar with the text, organization and layout of the book and
how to search and pinpoint various criminal offences and sections within the Code.
Purposive Approach
 The Purposive Approach (also known as purposivism, purposive interpretation, etc.) is a tactic to
statutory and constitutional interpretation.
 It involves common law courts interpretation of an enactment, such as a statue or clause, within the
context and framework of the law’s purpose.
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 The purposive approach is considered the ‘modern principle in construction’2. The Court’s essentially
say, the law had a purpose, what was that purpose and how do we bring effect to that purpose. Instead of
simply focusing precisely on what the text says and only giving effect to the text as it remains on paper,
the purposive approach goes a step further in bringing to life the intentions of Parliament and the true
purpose of the law that they had in mind.
 The Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 1 S.C.R. 27: “the modern approach
to statutory interpretation involves a “textual, contextual and purposive analysis of the statute or [the]
provision in question”.
 The case of Ayr Farmers Mutual Insurance Co v Wright, 2016 ONCA 789 made it clear that legislative
intent matters and giving effect to a statute’s purpose is of central importance.
 In the case of Regina v Secretary of State for Health ex parte Quintavalle (2003), the House of Lords
expressly utilized a purpose approach statutory interpretation.
Strict Construction
 Strict construction is, as it sounds, a strict view of the words within statutes. The words are given a strict
interpretation – a judge interprets the text as it is written, considering and contemplating only what is
presented before him.
 In R v Pare [1987] 2 SCR 618, the ratio of the case states: “the doctrine of strict interpretation must not
contradict a purposive interpretation that considers the scheme and purpose of the legislation.
Interpretations cannot lead to arbitrary or irrational outcomes”.
 Strict application of legislation/statutes can lead to “absurd outcomes”:
o In Whitely v Chappel3 a statute made it an offence "to impersonate any person entitled to vote".
The defendant used the vote of a dead man. The statute specifically required a person to be living
in order to be entitled to vote. The strict construction approach was applied, and the defendant
was thus acquitted.
o In R v Harris4, the defendant bit off the victim's nose. But because the statute made it an offence
"to stab cut or wound" the court held the act of biting did not fall under the meaning of stab cut
or wound as these words implied an instrument had to be used (strict construction approach). The
defendant’s conviction was overturned.
Fundamental Principle of Statutory Interpretation

 “The fundamental principle of statutory interpretation is that "the words of a statute be read in their entire
context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object
of the Act, and the intention of the legislature" (Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at para. 21;
Bell Expressive Limited Partnership v Rex [2002] 2 S.C.R. 559 at para. 26)
 “Direct that the words of a statute be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the
legislature”. (R v Brode (2012) ONCA 140)
 As per Howard’s Criminal Law (5th ed. 1990) at page 11: Legislators select to adopt “language which
accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation
and explanation”.
Official Languages Act
2
Beaulac, Stephane, and Pierre-Andre Cote. “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification,
Legitimization.” 11-Revue, 8 June 2006, p. 140., doi:10.3138/9781442676190-fm.
3
(1868) LR QB 147.
4
(1836) 7 C & P 446.
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 The Official Languages Act of Canada came into force on September 9, 1969; it provides French and
English equal status in the government of Canada5. Both languages are equal in Canada’s government.
 The English and French version are equally authoritative and any ambiguity in one of the languages is
clarified and resolved by the other6.
 R v Mac [2002] 1 SCR 856 per Bastarache J at paras. 26 to 31: “Ambiguity in the wording of one
language may be resolved by considering whether the other language wording provides clarity before
considering other principles of interpretation”.
 R v Daoust [2004] 1 SCR 217: “Where the meaning of the English and French versions diverges, the
proper interpretation should be the lowest common denominator”.
R. v. Collins, [1987] 1 S.C.R. 265
43. The second reason is based on the language of s. 24(2). Indeed, while both the English text of s.
24(2) and Rothman use the words "would bring the administration of justice into disrepute", the French
versions are very different. The French text of s. 24(2) provides "est susceptible de déconsidérer
l'administration de la justice", which I would translate as "could bring the administration of justice into
disrepute". This is suppportive of a somewhat lower threshold than the English text. As Dickson J. (as he then
was) wrote in Hunter v. Southam Inc., supra, at p. 157:

Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a
purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a
search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s.8: in
other words, to delineate the nature of the interests it is meant to protect.

As one of the purposes of s. 24(2) is to protect the right to a fair trial, I would favour the interpretation of s.
24(2) which better protects that right, the less onerous French text. Most courts which have considered the issue
have also come to this conclusion… Section 24(2) should thus be read as "the evidence shall be excluded if it is
established that, having regard to all the circumstances, the admission of it in the proceedings could bring the
administration of justice into disrepute". This is a less onerous test than Rothman, where the French translation
of the test in our reports, "ternirait l'image de la justice", clearly indicates that the resort to the word "would" in
the test "would bring the administration of justice into disrepute" means just that.
The Charter
 In terms of the Charter and its influence on the manner in which statutory provisions are interpreted,
please refer to page 5 of these notes to refresh your memory on the Charter.
 The purposive approach is the cornerstone of Charter interpretation. It requires that the rights granted in
the Charter be given a generous and liberal interpretation.
 Moreover, it aims at fulfilling the purpose of the right in question and of the Charter in its entirety.
 Charter rights should be read broadly and expansively, as such, placing the burden of justifying any
limitations on these rights on the state (Beena B. v. Children’s Aid Society of Metropolitan Toronto
[1995] 1 S.C.R. 315; Ross v New Brunswick Schools District No. 15 [1996] 1 S.C.R. 825).
 Charter questions must be placed within the actual social, political and legal context in which they arise
(i.e. regulatory versus criminal law matters) (Edmonton Journal v Attorney General of Alberta et al.,
[1989] 2 S.C.R. 1326.)
5
(R.S.C., 1985, c. 31 (4th Supp.))
6
Ruth Sullivan, Some Problems with the Shared Meaning Rule as Formulated in R v Daoust and The Law of Bilingual Interpretation 2010
CanLIIDocs 76.
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 An appropriate balance must be struck between the rights of individuals and societal interests at large (i.e.
if a person breaks the law and is dangerous, their s. 7 rights can be infringed in order to protect society
from danger) (RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 S.C.R. 199).
 If a law violates a Charter right, it is invalid and will be struck down, UNLESS, as discussed earlier, it
can be saved by section 1 (Oakes Test).
Canadian Foundation for Children, Youth & the Law v. Canada (A.G.), [2004] 1 S.C.R. 76
Facts:
Section 43 of the Criminal Code justifies the reasonable use of force by way of correction by parents and
teachers against children in their care. The appellant sought a declaration that s. 43 violates ss. 7,
12 and 15(1) of the Canadian Charter of Rights and Freedoms. The trial judge and the Court of Appeal rejected
the appellant’s contentions and refused to issue the declaration requested.
Held:
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ.: Section 43 of the Criminal
Code does not offend s. 7 of the Charter . While s. 43 adversely affects children’s security of the person, it
does not offend a principle of fundamental justice. First, s. 43 provides adequate procedural safeguards to
protect this interest, since the child’s interests are represented at trial by the Crown. Second, it is not a principle
of fundamental justice that laws affecting children must be in their best interests. Thirdly, s. 43, properly
construed, is not unduly vague or overbroad; it sets real boundaries and delineates a risk zone for criminal
sanction and avoids discretionary law enforcement. The force must have been intended to be for educative
or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual
behaviour of a child capable of benefiting from the correction. While the words “reasonable under the
circumstances” on their face are broad, implicit limitations add precision. Section 43 does not extend to an
application of force that results in harm or the prospect of harm. Determining what is “reasonable under the
circumstances” in the case of child discipline is assisted by Canada’s international treaty obligations, the
circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation.
When these considerations are taken together, a solid core of meaning emerges for “reasonable under the
circumstances”, sufficient to establish a zone in which discipline risks criminal sanction.
The conduct permitted by s. 43 does not involve “cruel and unusual” treatment or punishment by the state and
therefore does not offend s. 12 of the Charter . Section 43 permits only corrective force that is reasonable.
Conduct cannot be at once both reasonable and an outrage to standards of decency.

Section 43 does not discriminate contrary to s. 15(1) of the Charter . A reasonable person acting on behalf of a
child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives
to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by
the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated
by s. 15(1) . While children need a safe environment, they also depend on parents and teachers for guidance
and discipline, to protect them from harm and to promote their healthy development within society. Section
43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with
the ability to carry out the reasonable education of the child without the threat of sanction by the
criminal law. Without s. 43, Canada’s broad assault law would criminalize force falling far short of what we
think of as corporal punishment. The decision not to criminalize such conduct is not grounded in devaluation
of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large
part would be borne by children and outweigh any benefit derived from applying the criminal process.
10
THE ELEMENTS OF A CRIMINAL OFFENCE

 As the NCA syllabus explains in a quite neat and precise manner, every criminal offence contains
“elements” that have to be demonstrated before a conviction can occur. All elements of the criminal
offence have to be present at the same time. If they are not, there will be no crime (R v Williams).
 The syllabus comments that it is logical to think of the elements of an offence as:
o “The physical elements or actus reus of the offence (the act must be performed or omission
that is proscribed, the circumstances or conditions in which the act must occur, and any
consequence that must be caused by the act); and
o The mental or mens rea elements of the offence”.
 It is critical you grasp a solid understanding of the elements above, as they will form the basis and
foundation of your learning and understanding of the materials going forward.
5. The Actus Reus

The actus reus quite simply is the specific act of the offence (i.e. applying force in assault)
 As straightforward as it may sound, this is not always the case.
 Some offences spell out the act required for the actus reus component/element for the crime to be
committed; while, other offences in the Criminal Code may be not be as straightforward
 I.e. Theft: section 322(1): Everyone commits theft who fraudulently and without… a) to deprive,
temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the
thing or his property or interest in it.
o To deprive is the actus reus of the crime, however, this action is contextualized. What if you take
an item that a person has consented to you taking? What if you actually believe it is yours? In
basic terms, the actus reus deals with the taking element. Your intention, what you thought, what
objectively people might think, are not dealt with under this area (this is the element of mens rea
that will later be discussed).
 In Williams, the court emphasized that to constitute a crime, the actus reus and mens rea or intent have to
coincide at some point in time. The court held that “before November 15, 1991, there was an
endangerment but no intent; after November 15, 1991, there was an intent but at the very least a
reasonable doubt about the existence of any endangerment”.
Acts and Statutory Conditions

 As mentioned, your first step is to look to the criminal code and determine the necessary actus reus (act)
required for the offence to be committed.
 It is important to discern what the act is specifically and separate this from any mens rea elements. Some
students find this task more difficult than others
11
 For instance, for murder, ask: did the accused execute an action that resulted in murder? We do not look
to intent at this point (i.e. whether the accused planned the act and it was deliberate)
 Assault with a weapon involves committing an assault with a weapon – “uses or threatens to use a
weapon”. If a weapon is not involved in the crime, then the accused cannot be charged with “assault with
a weapon”. This is a necessary component of the actus reus of this specific offence.
 In the case of R v J.(D). (2002) O.J. No. 4916 (Ont. C.A.), JD appealed a conviction for forcible entry
into his friend’s home. JD’s friend let JD enter. JD then headed for the back door; however, a couch
prevented him from exiting. The appeal was allowed: the conviction was set aside, and an acquittal was
entered. “Forcible entry occurred only where the entry interfered with the peaceable possession of a
person in actual possession of the property. A known person simply walking in the front door, straight
through the residence and out the back door did not have such an intention”. Moreover, JD did not act or
behave in a way that was likely to cause or inflict a breach of the peace or a reasonable apprehension of
such a breach.
 In J. (D.), it is clear that he did not fulfill the actus reus of the crime: an interference with the peaceful
possession of a person in possession of the property was a requirement of the act. This was not found
(J.D. did not interfere or infringe peace).
Possession: “The Act of Possession”
The Criminal Code, s. 4(3), Controlled Drugs and Substances Act
Possession
(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit
of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody
or possession, it shall be deemed to be in the custody and possession of each and all of them.
 Possession will only be applicable to certain criminal offences. For instance, simple assault does not
entail proving possession.
 There must be three conditions in order for there to be possession:
o 1) Knowledge (R v York7)
o 2) Consent (R v Marshall8)
o 3) Control (R v Terrance9)
 If all three conditions are fulfilled, then the accused is deemed to have had possession and fulfills the
necessary actus reus component
 In York, the appellant testified he knew the goods were stolen (i.e. knowledge). Further, he owned the
warehouse and as such, he exercised physical control over the goods (control). By allowing the stolen
goods to be stored in his warehouse, he consented. Note: although possession for the purposes of the
actus reus were fulfilled, the accused was not convicted, as he did not hold the requisite mens rea for the
offence of possession of stolen property. However, for the purposes of this section, actus reus, we are
only concerned with delineating the necessary acts to constitute actus reus.
7
R v York, 2005 BCCA 74 (CanLII), (2005), 193 C.C.C. (3d) 331 (B.C.C.A.).
8
R v Marshall, [1969] 3 C.C.C. (3d) 149 (Alta. C.A.)
9
R v Terrence [1983] 1 SCR 357
12
 In Marshall, a group of friends were driving in a car that had about a kilo of marijuana. The car was
pulled over and they were all arrested with possession. It was held that the boys consented to driving in
the car, not the marijuana being present.
 In Terrence, it was emphasized here that there must be an element or factor of control for possession to
occur. “Knowledge and consent must co-exist with some measure of control over the subject matter”. I.e.
you are driving in the car with your friend and you open the glove compartment to find drugs. You
demand your friend pulls over and lets you out of the vehicle. She tells you she is on the highway and
cannot until she exits. Before she can exit, the car is pulled over by the police and the drugs are
discovered. You would not be charged with possession, as you lacked the necessary control element.
R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 25

Facts:
 A computer technician attended the home of the accused unannounced to install Internet.
 On the accused’s computer (web browser), the technician found pornography sites, both adult and child. In
the room, the technician noticed home videos and a tripod; the webcam was pointed at the toys and child.
 He wasn’t able to finish his work but returned the next morning. The next day, everything was “cleaned
up” (i.e. child’s toys put away, videotapes put away, etc.)
 The technician was concerned about the safety of the child, so he reported what he had seen to social
worker.
 An information to obtain a search warrant (“ITO”) was drafted. An investigation was conducted and
pornographic pictures with children were found the accused’s computer.
 The accused was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal
Code. At trial, he was unsuccessful in his attempt to challenge the validity of the search warrant under
section 8 of the Charter. The trial judge convicted the accused and the Court of Appeal upheld the
conviction. The accused appealed to the Supreme Court
Held:
 The Supreme Court allowed the appeal, quashed the conviction and an acquittal was entered.
 The ITO is limited to allegations of possession of child pornography contrary to s. 163.1(4) of the Criminal
Code and does not involve allegations of accessing child pornography pursuant to s. 163.1(4.1)
 Merely viewing in a Web browser an illegal image stored in a remote location on the Internet does
not establish the level of control necessary to find possession.
 Neither does creating a “favourite” or an “icon” on one’s computer.
 In order to commit the offence of possession, as opposed to the offence of accessing of child
pornography, one must knowingly acquire the underlying data files and store them in a place under
one’s control.
 It is the underlying data file that is the stable “object” that can be transferred, stored, and possessed. The
automatic caching of a file to the hard drive does not, without more, constitute possession.
 While the cached file might be in a “place” over which the computer user has control, in order to
establish possession, it must be shown that the file was knowingly stored and retained through the
cache.
Consent
 Consent is a critical actus reus element in some criminal offences, namely (and the most obvious) sexual
assault crimes.
 The notion of consent can transform a sexual act from a positive occurrence (so to speak) to a negative
and serious crime, if the act was committed without the consent of the complainant.
 Clearly, if a person consented to engage in sexual relations, then there is technically no crime
 When we are analyzing the actus reus of sexual crimes, it revolves around consent, and it is the consent
of the victim/complainant. This is subjective – we are only looking to the complainant NOT the accused.
13
In fact, the accused is irrelevant at this stage (accused and his or her state of mind becomes relevant when
analyzing the element of mens rea).
 We are focusing on the act, the actus reus, and who is the act committed against, the complainant, or the
victim, if the accused is eventually convicted.
 In R. v. J.A., 2011 SCC 28, the court held that a person can only consent to sexual activity if they are
conscious throughout that specific activity. If a person becomes unconscious at any point during the
sexual act, then they are not capable of legally providing consent. This holds true regardless if they
consented earlier in time to the sexual act.
 In R v Ewanchuk10, it was held that “the absence of consent is SUBJECTIVE, determined by reference to
the complainant’s subjective internal state of mind…”
 The state of mind of the complainant is PURELY SUBJECTIVE.
 The consent MUST BE given FREELY. In other words, you cannot coerce or trick someone into
consenting.
 Fights have been an area where consent has been raised (i.e. fist fights, street fights).
o If two people consent to fighting, is this consent legit?
o R v Jobidon11 tells us that “where two people engage in a fight by mutual consent, the blows
struck by each constitute an assault on the other, UNLESS there is justifiable self-defence”.
o In other words, you CANNOT consent to the infliction of bodily injury or assault.
o Also, consider consenting to sexual acts that are abusive in nature. Do you think that one can
consent to this type of behaviour/act?
R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584

 This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud
vitiating consent to sexual relations under s. 265(30) (c) Cr. C.
 Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault
(s. 273Cr. C.).
 To obtain a conviction under ss. 265(3) (c) and 273, the Crown must show, beyond a reasonable doubt, that
the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV
status.
 The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV
status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to
refuse sexual relations that exposed him or her to a significant risk of serious bodily harm).
 Failure to disclose may amount to fraud where the complainant would not have consented had he or
she known the accused was HIV-positive, and where sexual contact poses a significant risk of or
causes actual serious bodily harm.
Causation
 With certain criminal offences in the criminal code, causation is a necessary actus reus element that must
be proven in order for the actus reus to be fulfilled and to move onto the mens rea component.
 Where an offence requires a specific consequence (i.e. assault causing bodily harm – without bodily
harm, it cannot be assault causing bodily harm; it would just be assault. Bodily harm is a necessary
consequence of the assault in order for this specific crime to occur. If John yells in Anna’s face and
nudges her as he does so, however, she incurs no bodily harm – this is only assault. His action of nudging
her, or even lightly pushing her, did not result in any consequence (other than the fact she may now be
intimated and upset).
 The offences which prescribe (include) a consequence:
o Criminal negligence causing death (s.220)
10
[1999] 1 S.C.R. 330
11
[1991] 2 S.C.R. 714
14
o Criminal negligence causing bodily harm (s.221)

o Dangerous operation causing bodily harm (s.249 (3))
o Dangerous operation causing death (s. 249 (4))
o Impaired driving causing bodily harm (s.255 (2))
o Impaired driving causing death (s.255 (3))
o Assault causing bodily harm (s.267 (b))
o Sexual assault causing bodily harm (s.272 (1)(c))
o Aggravated sexual assault (s. 273 (1))
o Mischief causing danger to life (s. 430 (2))
o Aggravated assault (s. 268)
o Arson causing bodily harm (s. 433(b))
 For the most part, if you see the word “causing” within the offence, you know you have to address
causation
 Causation involves 2 components: factual causation and legal causation
 Factual causation focuses on whether factually (based on the evidence at hand). This is not always
straightforward and requires judgment.
o There can be more than one cause of death; as such, the causation test is not restricted or
confined to revealing the most proximate, primary or the sole cause of death (Menezes).
o You must ask yourself: was the accused’s conduct more than trivial?
o If the act of the accused is too remote = no causation
o Consider intervening cause: an act that occurs between the accused’s initial conduct and the
victim’s death, which may sever the accused’s responsibility (and cause) for the death. 12
 R v Nette13 is a key case when discussing causation
o Factual causation is preoccupied with the question of how the victim came to their death
o “Legal causation is focused upon asking whether the accused should be held responsible and
accountable in law”. Here, we are considering the law itself, whereas factual causation, we are
concentrating on the facts.
o Causation is not usually in issue with first- and second-degree murder. If the accused planned
and had the deliberate intention to kill someone, and they executed actions that had this result =
it is clear they caused the death.
o On the other hand, manslaughter cases do engage an analysis of causation.
o When dealing with legal causation, the focal point is if blameworthiness can be attached to the
accused.
 In sum: causation is the ‘causal relationship between the defendant’s conduct and end result’… it is
defined as the actus reus (an action) from which the specific injury or other effect arose
 Where establishing causation is required to establish legal liability, it usually involves a two-stage
inquiry, firstly establishing 'factual' causation, then 'legal' causation.
 ‘Factual’ causation must be established before inquiring into legal causation, perhaps by assessing if the
defendant acted in the plaintiff’s loss.
 Determining ‘legal’ causation often involves a question of public policy regarding the sort of situation in
which, despite the outcome of the factual enquiry, the defendant might nevertheless be released from
liability, or impose liability.
o I.e. the accused is drugged and commits a crime. He factually caused the result, however, due to
the fact he was drugged, at no fault of his own, he should not be held blameworthy.
12
R v. Smithers[1978] 1 SCR 506
13
[2001] 3 S.C.R. 488, 2001 SCC 78
15
R. v. Williams, [2003] 2 S.C.R. 134

Facts:
 The complainant and W had a relationship that began in June 1991.
 On November 15, 1991, W learned that he had recently tested positive for HIV.
 W did not tell the complainant about his HIV condition as well as the fact that he had been tested.
 It was accepted that the complainant would never knowingly have had sex with an HIV-positive person.
 The relationship ended in November 1992 and she tested positive for HIV in April 1994.
 W has conceded that he infected the complainant with HIV. Similarly, the Crown has conceded that it is
quite possible that W infected the complainant before learning of his positive status.
Held:
 While W acted with great recklessness and selfishness, the Crown could not demonstrate that sexual
activity after November 15, 1991 harmed the complainant, or even exposed her to a significant risk of
harm, as at that point she was possibly, and perhaps likely, already HIV-positive.
 W’s acquittal on the charge of aggravated assault must therefore be affirmed. The mens rea of the offence
had been proven beyond a reasonable doubt, but the Crown was unable to prove an essential element of
the actus reus, namely that W’s sexual conduct, after learning that he had tested positive for HIV, risked
endangering the complainant’s life.
 The medical evidence indicates that a single act of unprotected vaginal intercourse carries a significant risk
of HIV transmission.
 It was therefore at least doubtful that the complainant was free of HIV infection on November 15, 1991
when W first discovered, then decided to conceal, his HIV status.
 Recall: In Williams, the court emphasized that to constitute a crime, the actus reus and mens rea or intent
have to coincide at some point in time. The court held that “before November 15, 1991, there was an
endangerment but no intent; after November 15, 1991, there was an intent but at the very least a reasonable
doubt about the existence of any endangerment”.
R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30

Facts:
 In a busy bar late one night, the accused brothers, T and M, repeatedly punched the victim in the face and
head. T eventually struck a blow that rendered the victim unconscious.
 Arriving on the scene right after, a bar bouncer also then struck the victim in the head.
 The medical evidence was inconclusive about which blows caused death.
 As a result, the trial judge acquitted the accused brothers and the bouncer.
 The Court of Appeal was unanimous that the accused’s assaults were factually a contributing cause of
death — “but for” their actions, the victim would not have died.
 Furthermore, the majority of the Court of Appeal concluded that the risk of harm caused by the
intervening actor could have been reasonably foreseeable to the accused.
 the appeals were allowed, acquittals set aside, and a new trial ordered.
Held:
 The appeal was dismissed. Courts have used a number of analytical approaches to determine when an
intervening act absolves the accused of legal responsibility for manslaughter.
 For example, both the “reasonable foreseeability” and the “intentional, independent act” approach may be
useful in assessing legal causation depending on the specific factual matrix.
 These approaches…acknowledge that an intervening act that is reasonably foreseeable to the accused may
well not break the chain of causation, and that an independent and intentional act by a third party may in
some cases make it unfair to hold the accused responsible.
 These approaches may be useful tools depending upon the factual context.
 However, the analysis must focus on first principles and recognize that these tools are analytical aids and
16
do not alter the standard of legal causation or substitute new tests.

 Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation,
the causation test remains whether the dangerous and unlawful acts of the accused are a significant
contributing cause of the victim’s death.
 In this case, it was open to the trial judge to conclude that it was reasonably foreseeable that the fight
would escalate, and other patrons would join or seek to end the fight or that the bouncers would use
force to seek to gain control of the situation. Further, it was open to the trial judge to find that the
bouncer’s act was closely connected in time, place, circumstance, nature and effect with the
accused’s acts and the effects of the accused’s actions were still subsisting and not spent at the time
the bouncer acted.
 Therefore, based upon the trial judge’s findings of fact, it was open to him to conclude that the general
nature of the intervening act and the accompanying risk of harm were reasonably foreseeable; and that the
act was in direct response to the accused’s unlawful actions.
Omissions/Duties
 Some criminal offences do not necessitate a positive action by the accused. Instead, the offence may be
committed by demonstrating the accused FAILED to do an act.
 This is very common in the case where a parent is taking care of a child (duty to care for child) or where
a child (older) is taking care of their elderly parent(s).
Duties Tending to Preservation of Life

Duty of persons to provide necessaries
215 (1) Everyone is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child
under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw
himself from that charge, and
(ii) is unable to provide himself with necessaries of life.
Offence
(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails
without lawful excuse to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed,
or causes or is likely to cause the health of that person to be endangered permanently; or
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the
life of the person to whom the duty is owed or causes or is likely to cause the health of that person to
be injured permanently.
Punishment
(3) Everyone who commits an offence under subsection (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Presumptions
(4) For the purpose of proceedings under this section,
(a) [Repealed, 2000, c. 12, s. 93]
(b) evidence that a person has in any way recognized a child as being his child is, in the absence of any
evidence to the contrary, proof that the child is his child;
17
(c) evidence that a person has failed for a period of one month to make provision for the maintenance
of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary,
proof that the person has failed without lawful excuse to provide necessaries of life for the child; and
(d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of
life from another person who is not under a legal duty to provide them is not a defence.
Duty of persons undertaking acts
217 Every one 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.
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a
task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person,
arising from that work or task.
 In order to be found guilty of an omission, the three following conditions must be fulfilled 14:
o The offence must contemplate guilt for omissions
o The accused MUST BE placed under a legal duty to act
o The omission must be a failure to fulfil that legal duty
 R v Peterson15: Dennis Peterson was convicted of failing to provide the necessaries of life to his father,
thereby endangering his father’s life (s. 215)
 S. 215 (1)(c): A duty to provide the necessaries of life arises when “one person is under the other’s
charge, is unable to withdraw from that charge, and is unable to provide himself or herself with
necessaries of life”
 If a person undertakes to take care for a vulnerable family member, then this section is engaged the
majority of the time. The obligation to provide necessaries is not absolute and may be excused, for
example where there is financial inability.16
 Peterson defines “under his charge”:
o First, consider the relationship of the parties to each other. If a disabled parent is dependent on
their (independent) adult child, then this dependence is justified NOT ONLY because of their
past relationship and dealings (parent raised and supported child; now child has taken on the
responsibility to care for parent) but also by their relationship to one another (parent/child; kin).
o Second, consider the word “charge”. Charge means “the duty or responsibility of taking care of
another person and/or thing”. In this regard, consider whether the accused understood and
comprehended his duty to take care of another. Think about a situation where the accused is
unable to take care of himself or herself. What if the accused is mentally ill? How can one expect
the accused (say an adult child) to care for her or her parent, if he or she is not capable of taking
care of himself or herself?
o R v Browne17: two friends (drug dealers) got stopped by the police. One friend swallowed the
drugs to avoid detection. The other friend told him he would take him to the hospital but instead
sent him by taxi. Court held the statement wasn’t legally binding; didn’t create legal duty.
6. Subjective Mens Rea
14
R v A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269
15
2005 CanLII 37972 (ON C.A.)
16
Honourable Madam Justice Marion Allan, Will you still need me, will you still feed me, when I’m 94? The scary demographic reality of aging
baby boomers and their children’s lability under criminal and family law.
17
1997 CanLII 1744 (ON CA).
18
 The Latin phrase: “Actus non facit reum nisi mens sit rea” translates to “an act does not make a person
guilty unless the mind is also guilty”. This is a fundamental principle in criminal law.
 NOTE: some offences do not require the mens rea element; they are known as absolute and strict liability
offences. These will be discussed later in the notes.
 The subjective mens rea standard is one where the court must be satisfied that the accused actually had
the requisite mental element present in HIS OR HER MIND at the relevant time.
 We are looking into the mind of the accused – what were they thinking when they committed the
offence? Did they intend to do it? Did they plan it and then execute their plan? Was it an accident or
mistake?
 R v H (A.D.), 2013 SCC 28: “Subjective mens rea evaluates the positive state of mind of the accused –
what the accused actually knew, intended, or adverted to – rather than what the accused should have
known or adverted to in the circumstances”18.
 Whenever you see in the Criminal Code words such as intent, intention, knowledge, purpose,
recklessness, willful blindness, you are for the most part dealing with subjective mens rea (not objective)
 When you are approaching a question on the exam, such as a fact scenario wherein you have to identify
the crime and whether it is likely the accused will be convicted (this is a VERY common type of criminal
law exam question), identifying whether the mens rea element is subjective or objective will be critical.
 Specifying that the mens rea is subjective or objective will demonstrate to the exam marker that you are
knowledgeable of the necessary elements of criminal offences.
 Take for example the following situation:
o Mandy and Brad (wife and husband) get into a big argument. They are yelling and screaming at
one another. They both start pushing each other and the argument becomes physical. This is
quite typical behaviour of the couple which usually results in the two making up. This particular
time, however, Brad pushes Mandy and she loses her balance falling back and hitting her head.
The mannerism and positioning of where she hit her head resulted in a brain hemorrhage and
Mandy dies as a result. Did Brad commit murder?
o If we look at what is required for murder, it is an act that results in death. This is the actus reus of
the crime. Certainly, Brad has fulfilled this component. He pushed Mandy and it resulted in her
death. In other words, he executed an act that led to death.
o However, murder, as defined in the criminal code, requires ‘planning and deliberation’ – this
tells us that there must be an intention to kill. This, of course, is a subjective mens rea standard.
Consequently, Brad cannot be found guilty of murder. There is no evidence (at least in the facts
provided in this simple example) that Brad deliberately intended for his wife to die. Nonetheless,
Brad’s actions did result in his wife’s death, regardless, if he intended that result or not. As such,
he will likely be found guilty of manslaughter (discussed later) as this involves an objective test.
a) Intention, Purpose and Wilfulness
 When you encounter the word “intention”, you almost automatically know you are dealing with
subjective mens rea. Murder is a prime example. Now look up assault in the criminal code. What are the
necessary elements for the offence to have been committed? Section 265(1) (a) states: “A person commits
an assault when without the consent of another person, he applies force intentionally to that other person,
directly or indirectly.
 The application of force is the actus reus. What if you are on a bus and it halts to a stop; as a result, you
go flying into another individual causing them to fall? Does this satisfy the actus reus element? Indeed, it
does. The act alone is the application of force. Does this mean you will be guilty of assault? To answer
that we need to look to the mens rea. The word “intentionally” tells us everything we need to know in
18
Terry Skolnik, Objective Mens Rea Revisited, (2017) 22 Canadian Criminal Law Review 307
19
terms of the mens rea component. You certainly did not intend to apply any force to the other individual;
it was merely an accident. As such, you did not “intentionally” apply force and are not guilty of assault.
 Intention is an intricate notion. It requires distinguishing from motive or desire; these are distinct terms,
although, sometimes used interchangeably with ‘intention’.
 Motive, in comparison to intent, addresses a person’s underlying rationale, desire or reasons for
committing an offence. Intent on the other hand, is about that person’s inclination or willingness to
execute or implement specific action relating to the offence.
R. v. Hibbert [1995] 2 SCR 973

Facts:
 The accused was forced by the principal offender to accompany him to the apartment of the victim
and to lure the victim to the lobby downstairs.
 The accused stood by while the principal offender shot the victim
 The accused was charged with attempted murder; however, he was acquitted but convicted on the
included offence of aggravated assault. The Court of Appeal upheld the convicted. He appealed.
Held:
 The appeal was allowed, and a new trial was ordered.
 The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm
can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to
commit an offence.
 Whether or not this is so will depend…on the structure of the particular offence in question -- that is,
on whether or not the mental state specified by Parliament in its definition of the offence is such
that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens
rea.
 If the existence of duress is relevant to the mens rea of the crime at hand, the accused has the right
to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable
doubt that he possessed the mental state required for liability (i.e. if threatened, the accused could
not have formed the necessary intent).
 The mental states set out in ss. 21(1)(b) (does or omits to do anything for the purpose of aiding any
person to commit an offence) and 21(2) (abets any person in committing it) are not vulnerable to
being "negated" by duress.
 This conclusion is based on an interpretation of the particular terms of the two provisions. Section
21(1) (b), which imposes criminal liability as a party on anyone who "does or omits to do anything
for the purpose of aiding any person to commit" an offence, does not require that the accused
actively view the commission of the offence he is aiding as desirable in and of itself.
 Parliament's use of the term "purpose" in s. 21(1)(b) is essentially synonymous with "intention"
and does not incorporate the notion of "desire" into the mental state for party liability.
 As well, under s. 21(2), which provides that "persons [who] form an intention in common to carry
out an unlawful purpose and to assist each other therein" are liable for criminal offences committed
by the principal that are foreseeable and probable consequences of "carrying out the common
purpose", the accused's subjective view as to the desirability of the commission of the offence
is not relevant.
 The expression "intention in common" in s. 21(2) means only that the party and the principal
must have in mind the same unlawful purpose.
 The expression does not connote a mutuality of motives and desires between them. A person
would thus fall within the ambit of s. 21(2) if he intended to assist in the commission of the same
offence envisioned by the principal, regardless of the fact that their intention might be due solely to
the principal's threats.
 In other words, the motive behind the person’s action, be it to avoid being harmed by the principal
or to protect a loved one whom the principal is threatening to harm, is of no concern.
 The comments in Paquette on the relation between duress and mens rea in the context of s.
20
21(2) can therefore no longer be considered the law in Canada.

 While it is not open to persons charged under ss. 21(1) (b) and 21(2) to argue that because their acts
were coerced by threats, they lacked the requisite mens rea, such persons may seek to have their
conduct excused through the operation of the common law defence of duress.
 What an accused person intends or foresees has to be established in a holistic manner, taken into account
all the circumstances of the case, including their own evidence, as to what their state of mind or intention
was.
Regina v. Buzzanga and Durocher, 1979 CanLII 1927 (ON CA)
Facts:
 This case was about offensive pamphlets that were published; the authors were charged with wilful
promotion of hatred.
Held:
 The Court, through Martin J.A., held that although the term “willfully” can sometimes encompass
recklessness as well as intention, in the context of s. 281.2(2) (older provision of wilful promotion
of hatred), it implies with the intention of promoting hatred, and DOES NOT include recklessness.
 The general mens rea, which is mandated where NO mental element is specified in the definition of
the crime, is either the intentional or reckless bringing about of the outcome or result which the law
seeks to evade.
 It is reasonable to presume that Parliament intended to constrain and limit the offence under s.
2812(2) to the “intentional” promotion of hatred.
 “An accused’s foresight that a consequence is highly probable, as opposed to substantially certain,
is the not the same as an intention to bring it about. For instance, if I recklessly go hunting (i.e.
while drunk) and I know there is a chance due to my intoxicated state that I could injure someone,
yet I still proceed to hunt, then this would be reckless. I may recklessly injure another person, but I
did not go out hunting set on or with the intent to hurt another person.
 “However, a person who foresees that a consequence is CERTAIN or substantially certain to result
from an act that she does in order to achieve some other purpose INTENDS that result”.
b) Subjective Mens Rea with Objective Features
 The updated NCA syllabus explains that “It is not sensible to require the accused to have a subjective
appreciation that the relevant criminal standard has been met before a conviction can follow since that
would permit the content of offences to vary from offender to offender. For example, the accused can
commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of
that nature is “dishonest.” If it were otherwise objective dishonest people would be held to lower
standards than the rest of us. Or an accused can commit sexual assault if he intends to touch another, even
if he does not believe that the contact is sexual in nature, so long as it is”.
 In relation to the last example, sexual touching, Albert may think (i.e. subjective standpoint) that touching
the small of a women’s back is not sexual in nature. At work, he touches Elizabeth’s back in a manner
that objectively would be viewed as sexual. Though, we are concerned if he intentionally meant to touch
her (i.e. if he tripped and touched the small of her back, he lacked intention), we are not preoccupied with
his subjective understanding or definition of the sexual act. Objectively, we can say this is sexual in
nature and made Elizabeth feel uncomfortable. Thus, we see subjective and objective fault requirements
at play (i.e. did he “intend” to touch her; was the touching sexual from an objective standpoint). If he
subjectively intended the act, then he will be liable. There is an objective feature – regardless, what he
thinks, this touching is deemed to be of a sexual nature.
 Another example is fraud. If you commit fraud and intend the specific transaction, it does not matter if
you appreciate or grasp that that transaction at hand is dishonest.
 Kent Roach cites Glanville Williams: “Some people are born feckless, clumsy, thoughtless, inattentive,
irresponsible, with a bad memory and a slow ‘reaction time.’ With the best will in the world, we all of us
21
at some time in our lives make negligent mistakes. It is hard to see how justice (as distinct from some
utilitarian reason) requires mistakes to be punished”.19
 It is an error to conclude that a specific criminal offence has to necessarily be entirely subjective or
objective in nature (Kent Roach).
 Justice L’HEUREUXDUBÉ has stated "that the mens rea of a particular offence is composed of the
totality of its component fault elements. The mere fact that most criminal offences require some
subjective component does not mean that every element of the offence requires such a state of mind" (R
v. Hinchey, [1996] 3 S.C.R. 1128).
 In the case of R. v. Lohnes, [1992] 1 S.C.R. 167, the Court interpreted the offence of disturbing the peace as
mandating proof of subjective fault as to the underlying act, such as yelling, but objective fault in regard to
the actual disturbance of the peace.
 In R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 SCR 5, the court held that “the actus reus of fraud is
established by proof of a prohibited act, be it an act of deceit, falsehood or other fraudulent means, and by
proof of deprivation caused by the prohibited act (which may consist in actual loss or the placing of the
victim's pecuniary interests at risk)…the actus reus of fraud by "other fraudulent means" is determined
objectively, by reference to what a reasonable person would consider to be a dishonest act.
Correspondingly, the mens rea of fraud is established by proof of subjective knowledge of the prohibited act,
and by proof of subjective knowledge that the performance of the prohibited act could have as a consequence
the deprivation of another (which deprivation may consist in knowledge that the victim's pecuniary interests
are put at risk). In certain cases, the subjective knowledge of the risk of deprivation may be inferred from the
act itself, barring some explanation casting doubt on such inference. Where the conduct and knowledge
required by these definitions are established, the accused is guilty whether he actually intended the
deprivation or was reckless as to whether it would occur”.
 The court in Théroux went on to stress that it does not matter if the accused believes the act is not wrong or
that no one will be harmed by the act. This is not defence to fraud.
R. v. Chase, [1987] 2 S.C.R. 293

 Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal
Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the
victim is violated.
 The test to be applied in determining whether the impugned conduct has the requisite sexual nature
is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of
the assault visible to a reasonable observer".
 The 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 circumstances surrounding the conduct, including threats
which may or may not be accompanied by force, will be relevant.
 The accused's intent or purpose as well as his motive, if such motive is sexual gratification, may also be
factors in considering whether the conduct is sexual.
 Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only.
 In the present case, there was ample evidence before the trial judge upon which he could find that sexual
assault was committed. Viewed objectively in the light of all the circumstances, it is clear that the conduct
of the respondent in grabbing the complainant's breasts constituted an assault of a sexual nature.
 It is obvious to how mistake of fact might be relevant here. Mistake of fact can sometimes imply that,
whilst an individual has committed the physical element (actus reus) of a crime, because they were
19
Kent Roach, Mind the Gap: Canada’s Different Criminal and Constitutional Standards of Fault (2011), 61 University of Toronto Law Journal.
22
operating under a mistake of fact, the person never formed the mandated mens rea, and as such, will
escape liability for offences that demand mens rea.20
Knowledge
 This means the accused must have knowledge of the specific circumstances of the crime. In other words,
they must generally know that the conditions of the actus reus exist.
 For instance, if a fight breaks out at a club and you punch a man in the midst of the fight…then you later
find out he is a police officer – you cannot be found guilty of assaulting a police officer, as you were not
aware he was one. He was not in uniform, he never announced he was an officer, there were no signs.
 Since knowledge is a subjective mens rea element, it is difficult to discern what one knows. Therefore,
there is typically a default presumption that the accused “knows of the circumstances”. It is then left to
the accused to rebut this presumption by demonstrating he or she took reasonable steps to determine the
truth/actual facts.
 R v Ewanchuk21: the accused must give evidence that they had an “honest mistaken belief”.
 An ideal example is the following: John walks into a bar and meets a pretty young woman. He chats with
her and learns she is attending university and is in her fourth year. He asks to see her student card, which
she shows him. He then asks to see her ID because he teases her how young she looks. Her ID shows she
is 22, which is aligned with her university story. He figures, she got into the bar, she must be over 18.
They end up going home and having consensual sexual intercourse. The next day he is arrested for
having sex with a minor, according to section 271. He can argue he took reasonable steps to ascertain her
age and thus held an honest mistaken belief. If he can successfully prove this, he will be acquitted
(likely). However, if we consider the same situation, except John meets the pretty young woman at a
coffee shop, does not inquire as to her education, if she goes to post-secondary school, doesn’t ask to see
her ID, etc. – here, he cannot use the defence and will be guilty.
 Criminal Code: Consent no defence – section 150.1 (4) MISTAKE OF AGE:
o ”It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section
271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the
time the offence is alleged to have been committed unless the accused took all reasonable steps
to ascertain the age of the complainant.”
Criminal Code, section 265(4)
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the
subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the
jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating
to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable
grounds for that belief.
Section 273.2
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the
complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
20
LeRoy Miller, Roger (2011). Business Law Today: The Essentials. United States: South-Western Cengage Learning. p. 190.
21
[1999] 1 S.C.R. 330.
23
(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is

obtained;
(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; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively
expressed by words or actively expressed by conduct.
 The new case on the syllabus in this section is a tragic one wherein Ms. Gladue, an Indigenous woman,
bled to death from a wound inside her vagina. In R. v. Barton 2019 SCC 33, Mr. Barton was charged
with first-degree murder.
 The Supreme Court in Barton held that “The law says defences to sexual assault can’t rely on things that
support myths about women or sexual consent. That means these myths can’t be used to help decide if
someone agreed to a sexual act (or if the person charged honestly believed they did). The first myth is that
women who have had sex before are more likely to agree to sex. The second is that such women might
not be telling the truth”.
 Of course, these are classified as ‘myths’ because they are untruthful. The law lays down rules to avoid
these myths from impacting jury verdicts. The rules in the case of Barton were not adhered to. The jury
was not granted the legal instructions it required. The majority of the Supreme Court found that a new
trial should only be for unlawful manslaughter and not first-degree murder. When it came to the charge of
murder, it was grounded on the argument that Mr. Barton cut Ms. Gladue; however, the jury did not
believe that this actually occurred.
 The Supreme Court held that Mr. Barton had to believe Ms. Gladue communicated that she agreed, NOT
just that she agreed to the sexual act.
 Barton raised the dilemma of preconceptions and myths regarding “women, sex workers, and Indigenous
people, like Ms. Gladue. Everyone has an equal right to dignity and respect. Everyone has the right to
make sexual choices about their own body. It doesn’t matter who they are, or what their reputation is, or
what they’ve done in the past. That’s the law. if someone else doesn’t respect those choices, it’s a
crime”.22
R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269

Facts:
 The accused, not previously knowing that she was pregnant, gave birth while using the toilet in a retail
store. Thinking the child was dead, she cleaned up and left, leaving the child in the toilet.
 The child was in fact alive, was quickly attended to by others and transported to the hospital where he
was successfully resuscitated and found to be completely healthy.
 The accused was eventually identified as the woman seen entering and leaving the washroom at the time
in question. When contacted by police, she cooperated fully and confirmed that she was the mother of
the child. She was charged with unlawfully abandoning a child under the age of 10 years old and thereby
endangering his life contrary to s. 218 of the Criminal Code.
 The trial judge noted that the accused acknowledged that she had left her child in the toilet, thereby
committing the actus reus of the s. 218 offence.
 As for the mens rea, the trial judge decided that subjective fault was required and found that the
Crown had not proven beyond a reasonable doubt that the accused intended to abandon her child.
She had not known she was pregnant and truly believed she had delivered a dead child. Her fear and
confusion explained her subsequent behaviour.
 The trial judge accordingly found the accused not guilty and dismissed the charge.
22
Supreme Court of Canada, Case in Brief: R v. Barton. Judgment of May 24, 2019. 2019 SCC 33
24
 The majority of the Court of Appeal agreed with the trial judge that s. 218 requires subjective fault.
Held:
 The appeal should be dismissed. The Supreme Court held the trial judge did not make an error and the
Court of Appeal was correct to uphold the acquittal.
 The court stated, “The words “abandon”, “expose” and “wilful” all suggest a subjective fault
requirement. The first two of these words involve more than just leaving a child alone or failing to take
care of it: they denote awareness of the risk involved and, as defined in s. 214 of the Criminal Code, they
suggest a requirement for knowledge of the consequences flowing from the prohibited acts of
abandonment or exposure. As for the word “wilful”, it is used only in the non-exhaustive definition of
the words “abandon” and “expose” in relation to omissions, and a wilful omission is the antithesis of a
crime involving a mere failure to act in accordance with some minimum level of behaviour…”
Willful Blindness
 I always associate willful blindness with the saying, “the person chose to be ignorant”. It is rather
rudimentary to put it this way, however, it really helps to conceptualize the term.
 R v Downey23: “Willful blindness applies to the accused’s state of mind. It describes a situation where
someone tries to escape criminal liability by intentionally overlooking the obvious”.
 The Court of Appeal in Downey specifically wrote that “[w]ilful blindness acts as a substitute for actual
knowledge”.
o The court relied on the words of Charron J. in the Supreme Court of Canada decision of 2010 in
R v Briscoe24: “The doctrine of willful blindness imputes knowledge to an accused whose
suspicion is aroused to the point where he or she sees the need for further inquiries, but
deliberately chooses not to make those inquiries.”
 The term is also equated to “deliberate ignorance” of a certain fact.
 Example: You go to a party where everyone there is heavy into cocaine. A friend of yours slips a little
bag with white powder into your purse. You decide not to confirm what she put into your purse to avoid
criminal liability. You later get pulled over on your drive home and the cops find cocaine in your purse.
You plead ignorance and say you had no idea how it got there or what it was.
 Sexual exploitation of person with disability – s. 153.1 (5) (When belief in consent not a defence)
o It is not a defence that the accused believed the complainant consented if the accused was
wilfully blind (they chose to ignore the evidence/what was obvious).
Recklessness
 Reckless requires a subjective standard such that the accused is "aware that there is danger that his
conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the
risk.” That is, it is where the accused "sees the risk and ... takes the chance” (R v Sansregret25)
 The NCA syllabus explains recklessness as “a subjective state of mind that requires the accused to act in
spite of actually and personally foreseeing the risk that if she does act, the prohibited consequence will
be brought about”.
 It has been stated that recklessness can be interpreted as "careless" as to the consequences, heedless, or
lacking in "prudence" or "caution". (R v Dickson 2006 BCCA 490).
 It is also greater than forgetfulness or absentmindedness (R v Tatton26)
23
[1992] 2 S.C.R.
24
[2010] 1 SCR 411
25
[1985] 1 S.C.R. 570.
26
2015 SCC 33, [2015] 2 S.C.R. 574.
25
 Thus, there are two elements, there must be (1) a consciousness of a risk or danger and (2) a choice to
persist in the conduct that causes the risk (R v Vinokurov27)
 Recklessness assumes a knowledge of a likelihood of a prohibited consequences (Vinokurov)
 Compared to Wilful Blindness: Recklessness is "something less than" wilful blindness. Thus, reckless
cannot satisfy an offence which requires knowledge as an essential element (R v Sandhu28)
 In contrast to recklessness, wilful blindness requires that the accused become aware of a need for inquiry
and deliberately declines to do so (Vinokurov29)
 Compared to Negligence: Recklessness should not be confused with negligence which is a purely
objective standard. Recklessness "must have an element of the subjective" (Sansregret)
 R v Buzzanga and Durocher30: in general, mens rea is satisfied as long as the outcome was intended or
achieved through recklessness
 Let’s use a straightforward example: you are at your parent’s cottage. They have a gun there. You and
your friend think it will be fun to handle the gun after having had a couple of drinks. You accidentally
shoot your friend. This is recklessness. It is clear someone could get hurt. Regardless of this fact, you
took the risk and proceeded with the dangerous and unwise activity.
 Note: see Theroux above as well.
R. v. Zora 2020 SCC 131
[36] The text of s. 145(3) is neutral insofar as it does not show a clear intention on the part of
Parliament with regard to either subjective or objective mens rea. When Mr. Zora was charged in 2015, the
failure to comply offence read:
145 (3) Every person who is at large on an undertaking or recognizance given to or entered into
before a justice or judge and is bound to comply with a condition of that undertaking or
recognizance, and every person who is bound to comply with a direction under subsection 515(12) or
522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of
which lies on them, to comply with the condition, direction or order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
[37] I start by noting that the inclusion of the statutory defence of a “lawful excuse” in
s. 145(3) plays no role in the interpretation of the mens rea of the offence. Lawful excuse provides an
additional defence that would not otherwise be available to the accused…It should not be confused with mens
rea…The availability of the defence does not change the burden on the Crown to prove all elements of the
offence, including mens rea, beyond a reasonable doubt…Therefore, it is not material to the issue of whether
the mens rea element of the offence is subjective or objective.
[38] In evaluating whether there is an expression of legislative intent that displaces the
presumption of subjective fault, courts look both to the words included in the provision as well as the words
that were not (A.D.H., at para. 42). It is true that s. 145(3) does not contain express words indicating a
subjective intent, like “wilful” or “knowing”. However, this absence cannot, on its own, displace the
presumption. In fact, it is precisely when the words and context are neutral that the presumption of
subjective mens rea operates with full effect.
[39] The majority of the Court of Appeal emphasized that the words “undertaking”,
“recognizance”, “bound to comply”, and “fails” indicate that the accused has a binding legal obligation
to meet an objectively determined standard of conduct (para. 53). They looked to the five categories of
objective mens rea offences outlined by this Court in A.D.H., at paras. 57-63: dangerous conduct
27
2001 ABCA 113 (CanLII), per Berger JA at para 18.
28
(1989), 35 O.A.C. 118 (CA)
29
(2001) 281 A.R. 176 (CA)
30
1979 CanLII 1927 (ON CA)
31
The NCA Syllabus directs students to focus on paragraphs 36 to 51. I have highlighted key points.
26
offences; careless conduct offences; predicate offences; criminal negligence offences; and duty-based
offences. The majority, at para. 54, found that this language meant that s. 145(3) fell within the last category,
namely duty-based offences. Duty-based offences, such as failing to provide the necessaries of life under
s. 215, are offences based on a failure to perform specific “legal duties arising out of defined relationships” …
[40] The Crown also argues that the legislative history of s. 145(3) supports this
interpretation, since when it was enacted, the then Minister of Justice referred to the “responsibility” or
“duty” of a person on bail to attend court and comply with conditions to ensure that the bail system can rely
on voluntary appearance rather than pre-trial custody…
[41] With respect, I disagree that either the text of s. 145(3) or the Minister’s comments
establish a clear intention to create a duty-based offence which calls for the uniform normative standard
associated with objective mens rea. First, the text of s. 145(3) does not contain any of the language typically
used by Parliament when it intends to create an offence involving objective fault (see A.D.H., at para. 73).
Unlike the duties in ss. 215, 216, 217 and 217.1 of the Code, 145(3), does not expressly include the word
“duty”, a word which may suggest objective fault…I agree with Fenlon J.A. that “the omission is a significant
one” (C.A. Reasons, at para. 80) when we are looking for a clear intention of Parliament to rebut the
presumption of subjective fault. I also accept that the word “fails” in this context is neutral:
“Fails” can connote neglect, but as my colleague notes, also means acting contrary to the agreed legal duty or
obligation and being unable to meet set standards or expectations…
Similarly, the word “omet” in the French version of s. 145(3) can refer to neglecting, but also refraining, from
acting in accordance with a duty... Neither the words “fail” or “omet” demonstrate a clear intention of
Parliament to establish objective fault.
[42] Second, there is a danger in putting too much weight on the word choice of one
Minister, especially when his statement does not clearly evince an intention of Parliament to create an
objective mens rea offence…
[43] The Minister saying that a provision that establishes a criminal offence imposes a
responsibility or duty in a general sense does not make it the type of duty-based offence at issue in Naglik.
The wording in s. 145(3) speaks only of being bound to comply and failing to do so. This wording does not
displace the presumption of subjective intent. All criminal prohibitions impose obligations to act or not in
particular ways and inflict sanctions when people fail to comply. If accepted, the Crown’s argument and
the Court of Appeal’s conclusion would make all compliance obligations into “duties” and all crimes into
duty-based offences. However, the duty-based offences discussed in A.D.H. are a far more limited category
and are directed at legal duties very different from the obligation of an accused to comply with the conditions
of a judicial order.
[44] Section 145(3) simply does not share the defining characteristics of those duty-based
offences requiring objective fault that were at issue in Naglik and discussed in A.D.H. The points of
distinction include the different nature of the relationships to which these legal duties attach, the varying
levels of risk to the public when duties are not met, whether the duty must be defined according to a uniform,
societal standard of conduct, and whether applying such a uniform standard is possible and appropriate in the
circumstances.
[45] Legal duties, like those in 22.215 to 217.1, tend to impose a positive obligation to act in
certain identifiable relationships, address a duty of a more powerful party towards a weaker party, and involve
a direct risk to life or health if a uniform community standard of behaviour is not met (A.D.H., at para. 67).
An obligation to not breach a bail condition is not comparable to the power imbalance and risks to public
health and safety addressed by the duties imposed by ss. 215 to 217.1: providing the necessaries of life to
certain defined persons (s.215), undertaking medical procedures that may endanger the life of another person
(s.216), or undertaking to do an act or direct work where there is a danger to life or risk of bodily harm…
[46] Further, the duty-based offence in Naglik and other types of objective mens rea offences

27
involve legal standards that would be “meaningless if every individual defined its content for [themselves]
according to [their] subjective beliefs and priorities” (p. 141). The majority of the Court of Appeal thought
that bail conditions impose just such “a minimum uniform standard of conduct having regard to societal
interests rather than personal standards of conduct” (para. 57). With respect, I disagree. Although societal
interests can be at play when bail conditions are set, there is no uniform standard of care for abiding by bail
conditions, as there is for driving a car, storing a firearm, or providing the necessaries of life to a dependant.
Parliament legislated a bail system based upon an individualized process, which only permits conditions
which address risks specific to the accused to ensure their attendance in court, protect public safety, or
maintain confidence in the administration of justice. The bail order is expected to list personalized and precise
standards of behavior. As a result, there is no need to resort to a uniform societal standard to make sense of
what standard of care is expected of an accused in fulfilling their bail conditions and no need to consider what
a reasonable person would have done in the circumstances to understand the obligation imposed by s. 145(3).

[47] In addition, the lack of a uniform standard from which to assess the breach of these
conditions means that it is also not obvious what degree of breach would attract criminal liability if an
objective standard applied to s. 145(3). Only a marked departure from the conduct of a reasonable person
would draw criminal liability under an objective standard of mens rea. However, unlike an activity like
driving where there is a spectrum of conduct ranging from prudent to careless to criminal based on the
foreseeable risks of the conduct to a reasonable person, the highly individualized nature of bail conditions
excludes the possibility of a uniform societal standard of conduct applicable to all potential failure to comply
offences. Bail conditions may restrict normal activities like travelling and communicating with other people
and are specifically tailored to address the individual risks posed by each accused. Bail conditions and the
risks they address vary dramatically among individuals on release, so that it is not intelligible to refer to the
concepts of a “marked” or “mere” departure from the standard of a reasonable person. In the absence of a bail
condition, the regulated conduct would usually not be a departure from any uniform societal standard of
behaviour. Without this ability to distinguish a marked departure from a mere departure, there is a risk that
the objective fault standard slips into absolute liability for s. 145(3).
[48] Similarly, the offence in s. 145(3) is not comparable to other objective fault offences
listed in A.D.H. Although a risk assessment is involved in the setting of bail conditions, this individualized
risk will rarely be the same as the broad societal risks posed by objective fault offences like dangerous driving
or careless firearms storage. As stated by the Standing Senate Committee on Legal and Constitutional Affairs,
failure to comply offences, like many offences against the administration of justice, differ from other criminal
offences because they rarely involve harm to a victim, they usually do not involve behaviour that would
otherwise be considered criminal without a court order, and they are secondary offences that only arise after
someone has been charged with an underlying offence (Delaying Justice is Denying Justice: An Urgent Need
to Address Lengthy Court Delays in Canada (June 2017) (online), at p. 139 (“Senate Committee Report”)). A
departure from many bail conditions would not automatically lead to a threat to public health and safety.
[49] Finally, reasonable bail is a right under s.11 (e) of the Charter and cannot be compared to
a regulated activity that is voluntarily entered into like driving or firearm ownership where an objective fault
standard for related offences is further justified (Hundal, at p. 884). An accused person who is presumed
innocent has a right to regain their liberty following their arrest subject to the least onerous measures to
address their individual risk of not attending their court date, risk to public protection and safety, and risk to
the administration of justice. The fact that accused persons consent to bail conditions in order to be released
does not mean that they have chosen to enter into a regulated activity comparable to driving or owning
firearms.
D. Subjective Mens Rea Is Required for Breaches of Probation
[50] This Court’s jurisprudence requiring subjective mens rea for the breach of probation

offence further supports a subjective mens rea for the failure to comply offence. The offences of breach of
probation (s. 733.1) and failure to comply with bail conditions (s. 145(3)) are similar offences, which both
arise from an accused’s breach of conditions set out in a court order. In R. v. Docherty, [1989] 2 S.C.R. 941,
28
the Court determined that a subjective mens rea was required for the breach of probation offence. That
offence used the words “wilfully” and “refuses”, which reinforced the presumption of subjective fault,
and are not in s. 145(3). However, even after the word “wilfully” was removed from the current breach
of probation offence, most courts continue to interpret the offence to require subjective mens rea, based
on this Court’s reasoning in Docherty and the fact that the removal of the word “wilfully” does not on
its own indicate an intent to create an objective mens rea offence…
[51] Beyond the text of s. 733.1, the Court in Docherty found that subjective mens rea was
supported by the presumption of subjective fault, the possibility of imprisonment if an accused was convicted,
and the purpose of the provision to deter people from breaching their probation orders (pp. 950-52). These
factors similarly favour a subjective mens rea for s. 145(3). And the point of differentiation, that a probation
order governs the behaviour of someone who has already been convicted of a crime while bail conditions
primarily restrict the civil liberties of those who are presumed innocent of the underlying offence, further
supports a subjective fault element for s. 145(3) …
 The Supreme Court has in both R. v. ADH and R. v. Zora affirmed the common law presumption that the
subjective intent of at least recklessness is mandated unless Parliament has clearly suggested or indicated
an intent to require objective fault.
7. Objective Mens Rea

 At the heart of objective mens rea is the notion of the ‘reasonable person’
 Instead of relying on the state of mind of the accused (i.e. what he was thinking at the relevant time he
committed the offence), objective mens rea relies on, as one would imagine, an objective, rather than
subjective approach.
 “Where proof of objective mens rea is required, an accused can be convicted because their dangerous
conduct constituted a marked departure from the norm and a reasonable person would have foreseen and
avoided the risk” (Terry Skolnik, Objective Mens Rea Revisited, (2017) 22 Canadian Criminal Law
Review 307).
 With criminal offences that involve an objective mens rea standard, we ask what the accused should have
or ought to have known or done in the situation.
 When the standard of proof is objective mens rea, the offence is proven (i.e. the accused is guilty of the
offence) by culpability (“blameworthiness”) that is “NOT grounded in what the accused actually knew,
intended or foresaw” (R v H (A.D.), 2013 SCC 28, 2013 CarswellSask 304, 2013 CarswellSask 305,
[2013] 2 S.C.R. 269, 295 C.C.C. (3d) 376).
 Essentially, we don’t really care what the accused thought or knew at the time. We are concerned with
what they SHOULD have or OUGHT have thought or knew.
 You require analyzing the offence in the criminal code and deciphering whether you are dealing with a
subjective or objective mens rea element.
 In the case of R v Beatty32, the Supreme Court of Canada recommended a two-stage test in order to
determine whether or not objective mens rea was proven beyond a reasonable doubt. 33
1. First, all the relevant evidence must be analyzed holistically and after taking into consideration
all of this evidence, it should be determined whether a reasonable person would have foreseen or
been able to predict the risk and taken precautions or necessary actions to avert the risk 34.
 Example: if you are very tired and have not eaten anything in hours, and as a result, you
feel faintish and unwell, it would not be reasonable to get behind the wheel to drive a
long distance. A reasonable person would forego driving, as they would recognize that it
32
[2008] 1 S.C.R. 49, 2008 SCC 5.
33
This case was in relation to dangerous operation. 320.13: (1) Everyone commits an offence who operates a conveyance in a manner that, having
regard to all of the circumstances, is dangerous to the public.
34
Ibid, at para [43] – [47]
29
would be a risky task given their current state. A reasonable person would also probably
consider that they would be a danger to the public and other drivers if they drove.
2. If the first question is answered in the confirmatory, the next phase is to analyze if the conduct
and actions of the accused constituted “a marked departure from the standard of care expected of
a reasonable person in the accused’s circumstances”. 35
 A marked departure from the norm is essential to ensure that the accused is satisfactorily
and adequately morally blameworthy to warrant the disapproval and consequences of a
criminal conviction and to make certain the lines between civil and criminal law are not
blurred, if you will.36
 In the case of R v Creighton37, the accused was a drug user who injected cocaine into another drug user’s
arm. The woman he injected stopped breathing and subsequently died as a result of the injection.
Creighton did not call 911 and instead cleaned the fingerprints. He was convicted of manslaughter.
Although, he had no subjective intention of causing her death or even serious bodily harm for that matter,
his conduct fulfilled the objective mens rea standard.
1. First, a reasonable person would have foreseen the risk of injecting cocaine into a person’s arm.
Drugs are dangerous to begin with. Therefore, the first stage of the test would be fulfilled.
2. Secondly, his conduct after the victim stopped breathing was blameworthy (culpable). He did not
call the police or ambulance, something a reasonable person would have done granted the
circumstances. Rather than take her to the hospital, he cleaned away evidence that would
incriminate him (he clearly knew he did something wrong, if he made the effort to hide
evidence). His conduct certainly fulfilled the second stage of the test, in that it constituted a
‘marked departure from the standard of care expected of a reasonable person in the
circumstances’. A reasonable person would have immediately dialed 911.
 R v Martineau38: a conviction for murder cannot rest on anything less than intention or subject foresight
of death. Therefore, it is not an objective mens rea test.
 R v Creighton39: manslaughter involves objective mens rea
o Manslaughter involves two conditions: i) conduct causing the death of another person (actus
reus) and ii) fault short of intention to kill (mens rea)
o In terms of the latter component (i.e. fault) – this involves either:
 Committing another unlawful act (in addition to the killing), such as if you assault
someone by pushing them and they end up falling, hitting their head and dying as a
result of their skull cracking. In this example, assault was the unlawful act. We actually
addressed this conceptual terminology earlier – general intent v specific intent crimes. A
specific intent crime, as you recall, would be murder (intended the ulterior result). A
general intent crime is manslaughter, where you intend only the act (the assault) and not
the result (the death).
 Fault may also consist of criminal negligence as per section 222(5)(b). as per section
219 of the Criminal Code: “Everyone is criminally negligent who in doing anything, or
in omitting to do anything that is his duty to do, shows wanton or reckless disregard for
the lives or safety of other persons”.
40
 R v Tutton : criminal negligence requires “wanton or reckless disregard for the lives or safety of other
persons”.
35
Ibid, at para [47].
36
Terry Skolnik, “Objective Mens Rea Revisited” (2017) 22 Can. Crim. L. Rev. 307.
37
[1993] 3 S.C.R. 3
38
[1990] 2 S.C.R. 633.
39
[1993] 3 S.C.R. 3
40
[1989] 1 S.C.R. 1392.
30
COMPARE CRIMINAL NEGLIGENCE AND RECKLESSNESS:
Recklessness relates to acts that fall short of actual intent to cause harm. Nonetheless, the acts are
considered and deemed more than simple negligence. With negligence, an individual naively
(“unknowingly”) pursues a risk that they should have been cognizant of. Recklessness, on the other hand,
involves knowingly taking a risk. KNOWING is the fundamental difference.
 FOCUS on the wording: for negligence, we are unconcerned with what the person “knew”,
because “knowing” is a subjective standard.
 If a person OUGHT or SHOULD have known, then that suffices for negligence (it is an
objective standard)
 R v J.F.41: crimes which have an external element of negligence require a standard of a marked departure
from the standard of care; manslaughter by criminal negligence requires a standard of marked and
substantial departure from the standard of care.
 Whenever you see the words: objective, reasonably foreseeable, wanton disregard, criminal
negligence… - you know you are for the most part dealing with an objective mens rea standard.
 Pay close attention to the wording of an offence within the criminal code
 Let’s take a look at some random Criminal Code offences and determine if the mens rea element is
subjective or objective.
o Financing of Terrorism – S. 83.02: Providing or collecting property for certain activities
 “Everyone who, directly or indirectly, wilfully and without lawful justification or excuse,
provides or collects property intending that it be used or knowing that it will be used
(SUBJECTIVE)
o Neglect in Child-birth and Concealing Dead Body – Section 242: “A female person who, being
pregnant and about to be delivered, with intent that the child shall not live or with intent to
conceal the birth of the child, fails to make provision for reasonable assistance in respect of her
delivery is…” (SUBJECTIVE)
o Extortion by libel – Section 302: “Everyone commits an offence who, with intent (a) to extort
money from any person… (SUBJECTIVE)
o Sexual exploitation of person with disability – Section 153.1 (5): When belief in consent not a
defence
 “It is not a defence to a charge under this section that the accused believed that the complainant
consented to the activity that forms the subject-matter of the charge if (a) the accused’s belief
arose from (ii) the accused’s recklessness or wilful blindness…(SUBJECTIVE)
o Causing bodily harm by criminal negligence – Section 221: OBJECTIVE (negligence = objective)
R v. Javanmardi 2019 SCC 54

Facts:
 Ms. Javanmardi was a naturopath for over 20 years. She was educated and clinical trained in regard to
intravenous injections, which she gave to thousands of her patients.
 Ms. Javanmardi recommended to Mr. Matern an intravenous injection for his heart disease. One of
vials was contaminated and Mr. Matern died. Two others also received injections from the same vial
that day and were fine.
 Ms. Javanmardi was charged with two crimes. The first was “unlawful act manslaughter” (doing
something illegal that causes someone to die). The second was “criminal negligence causing death”
41
[2008] 3 S.C.R. 215
31
(doing something that a “reasonable person” wouldn’t have done that causes someone to die).
 Both charges were based on the fact that Ms. Javanmardi gave Mr. Matern an injection.
Held:
 To be guilty of a crime, a person must do something that is against the (criminal) law. But something
has to make them responsible for what they’ve done. For many crimes, responsibility is based on
meaning to do something wrong. But for some crimes, a person can be responsible even if they don’t
mean to do anything wrong. In these cases, a judge will compare what the person did to what a
“reasonable person” would have done in the same situation. If the actions of the accused person and
the “reasonable person” are very different, the judge can decide the accused person didn’t take proper
care.
 The Supreme Court found Ms. Javanmardi not guilty on both accounts.
 She had the necessary skills and experience to give the injunction and she adhered to the proper safety
procedures.
 A reasonable person in Ms. Javanmardi’s position would not have thought that the injection would
harm or hurt Mr. Matern. Ms. Javanmardi’s actions did not constitute a “marked departure” from what
a reasonable person with her skills, knowledge, experience and training would have done.
8. Regulatory Offences
 These offences are capable of being created by any level of government (provincial or federal)
 Regulatory offences are also known as “quasi-criminal offences”.
 The standard for proving liability in these types of offences is lowered: no mens rea requirement
Leading Cases
R v Sault Ste. Marie, [1978] 2 S.C.R. 1299

 The city built a disposal site that resulted in waste seeping into the water. The city was consequently
charged with “discharging, or permitting to be discharged, refuse into the public waterways causing
pollution pursuant to section 32(1) of the Ontario Water Resources Act”.
 The court had to decide whether the offence committed by the city should be classified as strict or
absolute liability.
Held:
 Supreme Court of Canada acknowledged three categories of Offences (Chief Justice Dickson) 42:
o TRUE CRIMES
 These offences mandate some degree of mens rea as an element of the criminal offence.
 Look out for the words ‘knowingly’, ‘willfully’, or ‘intentionally’.
o STRICT LIABILITY
 These offences do NOT require the element of mens rea (i.e. no proof of mens rea).
Committing the act alone carries a punishment. However, there is a due diligence
defence available with strict liability offences. The accused has a duty to act reasonable
and if they can prove that they acted reasonable and in a diligent manner, they may be
acquitted.
42
[1978] 2 S.C.R. 12991, as per Chief Justice Dickson: Offences in which mens rea, consisting of some positive state of mind such as intent,
knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
[Page 1326]
2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports
the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a
reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts
which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly
be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
32

It was held that the due diligence defence "will be available if the accused reasonably
believed in a mistaken set of facts which, if true, would render the act or omission
innocent, or if he took all reasonable steps to avoid the particular event. These offences
may properly be called offences of strict liability."
o ABSOLUTE LIABILITY
 This category does not involve the mens rea element either, however, in this category,
unlike strict liability, no due diligence defence is available.
Reference Re Section 94(2) of the Motor Vehicle Act [1985] 2 SCR 486
 Section 94(2) of the Motor Vehicle Act of British Columbia established an absolute liability offence of
driving while having a license that is suspended.
 In order for the Crown to secure a conviction, the Crown merely needed to demonstrate proof of driving.
It did not matter if the driver was aware or cognizant of the suspension.
 Being convicted of the offence involved a minimum seven-day prison term.
Held:
 The Court held that this absolute liability offence (s. 94(2) of the Motor Vehicle Act of BC) was an
infringement of the fundamental principles of justice.
 Absolute liability makes a person liable for a criminal offence, regardless if that individual took steps to
avoid fault (i.e. due diligence). It is not like strict liability, where at least the accused has the due
diligence offence.
 A person cannot be deprived of their s. 7 rights (life, liberty or security) if they do not have any defence
available. The law could not be saved by s. 1 of the Charter (Oakes test), as it violated s. 7.
Takeaway: if prison term involved, the offence cannot be one of absolute liability
The Wholesale Travel Group Inc v. Her Majesty The Queen [1991] 3 S.C.R. 154
 The company, Wholesale Travel, advertised the vacation packages they sold as ‘wholesale’ prices;
however, this was false, and the pricing was in fact not ‘wholesale’.
 Wholesale Travel was charged with five counts of false or misleading advertising contrary to the
Competition Act. The charge was a hybrid offence.
 However, whether the Crown elected to proceed by summary or indictment, a prison term was involved.
Held:
 Court held because a due diligence defence was involved, there was no violation of section 7 of the
Charter. Compare this to absolute liability offences, wherein no due diligence is available.
 Thus, when the mens rea component is negligence and as such, there is due diligence available as a
defence = there is no infringement of section 7 of the Charter.
Takeaway: Strict liability offences can include prison time
R v Raham, 2010 ONCA 206

 The defendant was caught speeding (driving 50km and over) and was charged with ‘stunt driving’ under
the Highway Traffic Act.
 The Highway Traffic Act of Ontario, section 172, makes stunt driving an offence.
 Ontario Regulation 455/07 describes the types of driving that are considered ‘stunt driving’.
 A stunt driving ticket is usually given to a driver driving in excess of 50 km per hour above speed limit.
 The offence carries the possibility of imprisonment.
 The question for the court was whether this was unconstitutional.
 Due diligence is available as a defence for this particular offence.
 Recall: due diligence defence = strict liability = jail time can be a possibility
Held:
33
 This was not an absolute liability offence because of the existence of the due diligence defence. The
potential for jail time, as such, was not deemed to be unconstitutional.
Levis (City) v Tetreault, 2006 SCC 12

Facts:
 The respondent company in the case was charged with operating a vehicle for which the registration fees
were not paid.
 The company raised the due diligence defence and the defence of officially induced error. It claimed that
a representative of the Societe de l’assurance automobile du Quebec (“SAAQ) had the company pay the
registration fee associated to a 15-month period and further, the representative said that a renewal notice
would be sent to the company before the expiry date.
 Due to a mistake, the SAAQ sent the notice to the company with an inaccurate address. As a result, the
postal service returned the mail to the sender (SAAQ).
 The respondent, T, was charged with operating a vehicle without a valid driver’s licence. T argued the
defence of due diligence.
 He said that he was not cognizant that the date on his license was in fact the expiry date. Instead, he
thought it was the date that a payment needed to be paid.
 The Levis Municipal Court found section 31.1 (registration) and section 93.1 (driver’s licence) of the
Highway Safety Code establish strict liability offences. Therefore, the due diligence defences were
accepted.
Held:
 The court held that the offences fell under strict liability offences.
 Section 93.1 relating to driver’s licences does not impose the burden of establishing mens rea and the
legislature’s intention was clearly not to create an absolute liability offence.
 The court stated, “A strict liability scheme responds adequately to the concern to ensure that vehicle
operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to
ensure that their licences remain valid and to drive only while they are valid. Nor does s. 31.3, as it is
worded, create an absolute liability offence. Absent a clear indication of the legislature’s intent, the
offence must be categorized as one of strict liability”.
 NOTE: because absolute liability offences are very unique in that an accused does not have any defence
of which to avail themselves, an offence can only be categorized as an absolute liability offence if it is
extremely clear that this was the legislature’s intent. Look specifically to the wording of the text and draw
from it. It should be very transparent.
 The court went on to hold that the due diligence defence had not been established:
“The concept of due diligence is based on the acceptance of a citizen’s civic duty to take action
to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal
law. In his case, T did no more than state that he expected to receive a renewal notice for his
license and that he had confused the licence expiry date with the due date for paying the fees
required to keep the licence valid. He proved NO action or attempt to obtain information. The
same is true of the company, which did nothing even though it was aware of the date when the
fees relating to the registration of its vehicle would be due. As for officially induced error,
although it is available to Canadian law, the company has not established that the conditions
under which it is available have been met”.
STEP 1: Decide whether it is a TRUE CRIME or a REGULATORY OFFENCE

ASK:
 Is the name of a province in the Act? If yes = regulatory
 Is the word “regulation” or “regulatory” in the Act? If yes = regulatory
34
 Examples of regulatory offences:

o Occupational health and safety Act (OHS)
o Competition Act
o Liquor License Act
o Ontario Highway Traffic Act
o Canadian Firearms Act
o Canadian income Tax Act
o Ontario Land Transfer Tax Act
o Canadian Lobbying Act
o Canada Elections Act
o Security of Information Act
o Canadian Immigration and Refugee Protection Act
Difference between criminal offences (true crimes) and regulatory offences: Wholesale Travel case “Criminal
offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are
generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and
care”
STEP 2: If you have concluded it is a regulatory offence, then determine if it is a strict liability or absolute
liability offence.
Regulatory Offences
Strict Liability Offence Absolute Liability Offence
 Jail/incarceration a possibility (penalty)  Fine is a usual consequence
 Due diligence defense available  Cannot have jail as a penalty!
 Raham – stunt driving was punishable by incarceration (unconstitutional = violates section 7 of the
 Levis (City)– due diligence offence was available; Charter)
defendant failed to prove he acted diligently rather, he  Speeding is an example: if you are speeding,
was passive you have no due diligence offence available;
 Sault Ste Marie: strict liability offence allows you to you committed the offence/act = you are
demonstrate you exercised all due diligence or took all guilty
reasonable steps to avoid liability
EXTENSIONS OF CRIMINAL LIABILITY
35
9. Aiding and Abetting

 The first step to take when approaching a criminal offence is to find it in the Criminal Code.
Parties to offence
21 (1) Everyone is a party to an offence who
(a) actually, commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to
assist each other therein and any one of them, in carrying out the common purpose, commits an
offence, each of them who knew or ought to have known that the commission of the offence would
be a probable consequence of carrying out the common purpose is a party to that offence.
 It is clear after reading the provisions that not much is in fact said about aiding or abetting. We do not
really know what these words mean (to aid or abet).
 Therefore, it is from the caselaw that we can acquire substance as to the meaning of both words.
 What can be discerned from the case law is that aiding means to physically support, for instance, locking
a door or closing the trunk43.
o Example: your friend kidnaps someone. You are aware of her actions. She asks you to close the
trunk after she throws the body in it. By closing the trunk, you are aiding her.
 Abetting, however, means to encourage or incite. If you were to encourage your friend to punch someone
else, by, for example, yelling “hit him! You can do it!” and so forth, you could be charged with abetting
him in the commission of assault.
 The case law elaborates on the actus reus and mens rea components for aiding and abetting:
Leading Cases
R v Dunlop and Sylvester, [1979] 2 S.C.R. 881 [informs us as to the actus reus for section 21(1)]
Facts:
 Dunlop and Sylvester went to a party where a gang rape of a teenager girl took place
 The girl, at trial, testified that Dunlop and Sylvester were participants in the rape.
 The jury had to decide if the two males had participated to the extent that aided or abetted in the raping.
Held:
 Dunlop and Sylvester were indeed at the scene of the crime. But being present alone is not adequate to
establish culpability.
 Justice Dickson stated at p. 896-897:
In the case at bar I have great difficulty in finding any evidence of anything more than mere
presence and passive acquiescence. Presence at the commission of an offence can be
evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of
the principal offender's intention to commit the offence or attendance for the purpose of
encouragement. There was no evidence that while the crime was being committed either of the
accused rendered aid, assistance, or encouragement to the rape of Brenda Ross. There was no
evidence of any positive act or omission to facilitate the unlawful purpose. One can infer that the
two accused knew that a party was to be held, and that their presence at the dump was not
accidental or in the nature of casual passers-by, but that is not sufficient. A person cannot
properly be convicted of aiding or abetting in the commission of acts which he does not
43
R v Dunlop and Sylvester, [1979] 2 S.C.R. 881
36
know may be or are intended: per Viscount Dilhorne in D. P. P. v. Maxwell44, at p. 1144. One
must be able to infer that the accused had prior knowledge that an offence of the type committed
was planned, i.e. that their presence was with knowledge of the intended rape.
 Therefore, “mere presence and passive acquiescence” DO NOT = aiding or abetting
 Dunlop and Sylvester were not aware that the rape was going to happen. An individual cannot be
convicted of aiding or abetting if he or she did not have any knowledge or awareness of the intended
crime.
R v Logan, [1990] 2 S.C.R. 731 [addresses section 21(2)]

Facts:
 The respondents were convicted of attempted murder. An individual was shot and seriously injured
during a robbery. Neither of the respondents executed the shooting. One of the respondents, Johnson, did,
however, confess to being one of the robbers. He claimed he had no intention to shoot and no knowledge
of the involvement of guns.
 The judge “instructed the jury that the Crown had to establish beyond a reasonable doubt that the accused
knew or ought to have known that someone would probably shoot with the intention of killing”.
Held:
 The appeal was dismissed.
 In order to be convicted of section 21(2) two stages must be affirmed. “Firstly, is there a minimum degree
of mens rea which is required as a principle of fundamental justice before one can be convicted as a
principle for this particular offence. Secondly, if the principles of fundamental justice do not require a
certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of
mens rea is constitutionally required to convict a party to that offence as well”.
 When subjective foresight (subjective mens rea) is required to convict a principle of attempted murder,
then that same standard must be applied to convict a party to the offence.
 When it comes to attempts, intent is what is being punished. For instance, if you attempt to kill someone
and they end up surviving, you did not cause their death. As such, you cannot be convicted or murder,
rather, you are convicted of ‘attempted murder’.
 R v Ancio45: “the elements of mens rea for attempted murder are identical to those for the most severe
form of murder…the accused must have had the specific intent to kill. All that differs is the
‘consequences’ component of the actus reus”.
 In the case at bar, no killing occurred. There was a severe injury but not death.
 The words “ought to have known” were deleted. Subjective mens rea is the standard.
 “Once these words are deleted, the remaining section requires, in the context of attempted murder, that
the party to the common venture know that it is probably that his accomplice would do something with
the intent to kill in carrying out the common purpose”.
R v Briscoe, 2010 SCC 13 [defines the mens rea of section 21(1)]

 This case informs us that the word “purpose” in section 21(1)(b) has two elements: INTENT AND
KNOWLEDGE.
 In terms of INTENT: Crown has the burden of proving that the accused intended to assist the principle in
the commission of the offence. “It is not required that the accused desired that the offence be committed”.
 For KNOWLEDGE: The accused must be aware and know that the principle intends to commit the
criminal offence. “…in order to have the intention to assist in the commission of an offence, the aider
must know that the principal intends to commit the crime, although he or she need not know precisely
how it will be committed”.
44
[1978] 3 All E.R. 1140 (H.L.).
45
(1984) 2 OAC 124 SCC)
37
R v Thatcher, [1987] 1 S.C.R. 652

Facts:
 The appellant in this case was arrested and charged with causing the death of his ex-wife.
 The ex-wife had been beaten and then shot, consequently she died.
 “At trial, the Crown led direct and circumstantial evidence to provide that the appellant had personally
murdered his ex-wife, or alternatively, that he aided or abetted the killer and was therefore guilty as a
party to the offence pursuant to section 21 of the Criminal Code”.
 There was evidence that demonstrated that he did not commit the crime personally.
Held:
 Section 21(1) of the Criminal Code makes the “distinction between participation as a principal and
participation as aider and abettor legally irrelevant…”.
 Consequently, the form of participation of the accused was not a necessary decision that needed to be
made by the jury.
R v J.F., 2013 SCC 12

Facts:
 J discovered that two sisters were deliberately planning and intending on murdering their mother by
getting her severely intoxicated and then drowning her, a plan which they carried out and got convicted
for.
 The police found an online chat on MSN messenger between J and one of the sisters, T, wherein J offered
information to the sister about dying by drowning. J recommended the sisters give the mother codeine
with the alcohol and provided tactics for the sisters to misguide the police.
 Evidence was also given that J actually supplied the codeine pills and met up with the sisters following
the crime in order to provide an alibi to them.
Held:
 The court held that although party liability to conspiracy involves “aiding or abetting the formation of a
new agreement, it also includes aiding or abetting a new member to join a pre-existing agreement”.
 Nonetheless, party liability does not “extend to acts done in furtherance of the unlawful object of the
conspiracy”. In the case at hand, the court held that party liability should NOT have been put to the jury.
 No evidence was found that demonstrated that J aided or abetted the original, initial formation of the
agreement between the two sisters to kill their mother or “aided or encouraged a new member to join the
existing conspiracy”.
 Therefore, a person becomes a party to the commission of an offence if he aids or abets the principle in
executing the criminal offence; with conspiracy, this would have been the agreement portion.
R v Gauthier, 2013 SCC 32 [the defence of ‘abandonment’]

Facts:
 This is a tragic and quite horrific case. The accused and her husband had established a murder/suicide
pact that involved killing their three children and then themselves.
 They planned to using drugs and were going to mix the drugs into drinks. The wife obtained the
“murder-weapon” (poisoning for the drinks)
 The husband prepared and served the children the drinks.
 After having drunk the poisonous drink and having had her wrists cut/slit by her husband, the wife called
911. The children and husband had died; she survived.
 She was charged with three counts of first-degree murder as a party under s. 21(1) (aiding and abetting).
 The wife appealed arguing that she did not purchase the medication that was used to poison the children
and her and her husband. Further, she claimed to be in a “dissociative state”.
38
 In the alternative, she claimed that she “abandoned the common purpose” of murdering her children and
actually clearly communicated this desire to abandon the plan to her husband.
Held:
 The court dismissed the appeal.
 A defence must meet the air of reality test. The judge must establish “whether the defence has a sufficient
factual foundation, that is, whether a properly instructed jury acting reasonably could accept the defence
if it believed the evidence to be true” (air of reality test).
 The court held:
The defence of abandonment can only be put to the jury if evidence exists to support each
element of the defence. “The defence can be raised by an accused who is a party to an offence
on the basis that he or she did or omitted to do anything for the purpose of aiding any person to
commit the offence, or abetted any person in committing it (s. 21(1) of the Criminal Code), or on
the basis that he or she had formed with other persons an intention to carry out an unlawful
purpose and to assist each other therein and that an offence was committed in carrying out the
common purpose, if the evidence shows
(1) that there was an intention to abandon or withdraw from the unlawful purpose;
(2) that there was timely communication of this abandonment or withdrawal from the
person in question to those who wished to continue;
(3) that the communication served unequivocal notice upon those who wished to
continue; and
(4) that the accused took, in a manner proportional to his or her participation in the
commission of the planned offence, reasonable steps in the circumstances either to
neutralize or otherwise cancel out the effects of his or her participation or to prevent the
commission of the offence.
There will be circumstances in which timely and unequivocal communication by the accused of
his or her intention to abandon the unlawful purpose will be considered sufficient to neutralize
the effects of his or her participation in the crime. But there will be other circumstances,
primarily where a person has aided in the commission of the offence, in which it is hard to see
how timely communication to the principal offender of the person’s intention to withdraw from
the unlawful purpose will on its own be considered reasonable and sufficient. 46
 In regard to the last point, the wife’s communication of her withdrawal or abandonment, on its own, was
not considered reasonable and sufficient. More had to be done in the circumstances.
 It is the fourth point that was necessary – she had to take, in a proportional manner, “reasonable
steps….to neutralize or otherwise cancel out the effects of her participation” or to prevent the commission
from happening.
 She could have called the police before the drinks were administered. She could have hidden the drugs.
She could have taken her kids away somewhere safe. The list of possibilities is endless. Merely fulfilling
(1), (2), and (3) is not sufficient.
Key Case Takeaways
 Mere presence and passive acquiescence EQUAL actus reus of aid/abet (Dunlop)
 Some positive steps must be taken for aiding and abetting to be established (Dunlop)
 Mens rea for aiding and abetting = intent and knowledge (Briscoe)
 The distinction between participation as a principal and participation as aider and
abettor is legally irrelevant (Thatcher)
46
Per Wagner J. para [35] – [45]
39
 Defence of abandonment (i.e., abandon taking part in the crime) has 4 conditions
(Gauthier)
10. Counselling
 As per the online NCA syllabus:
o An accused can be convicted of counselling offences, whether or not the offences counselled are
actually committed. If the offences counselled are committed, the Criminal Code, section 22,
operates and the person is found guilty and punished as if he had committed the completed
offence. If the offence is not committed, the Criminal Code, section 464, operates and the person is
found guilty of a separate offence that is punished as if she had been guilty of attempting the
completed crime.
 An accused person can be found guilty of counselling, even if the principal offender if acquitted (R v Hick47).
 ALWAYS REMEMBER: when the offence is committed = section 22; when the offence is NOT committed =
section 464
 The elements of the offence, under s. 22, involve 4 components, as per R v Keepness, 2009 SKQB, Dawson J
at para. 131.: (1) The act of persuading or inducing the commission of the offence; (2) The commission of the
offence itself; (3) The commission must be the consequences of the counselling; (4) The accused intended to
counsel or knowingly counselled, aware of the risk that it would bring the commission of the offence.
Person counselling offence48

22 (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a
party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was
committed in a way different from that which was counselled.
Idem
(2) Everyone who counsels another person to be a party to an offence is a party to every offence that the other
commits in consequence of the counselling that the person who counselled knew or ought to have known was
likely to be committed in consequence of the counselling.
R v Hamilton, [2005] 2 S.C.R. 432

Facts:
 Hamilton sent ‘teaser’ emails online to hundreds of people.
 The teaser emails “advertised software that would enable the purchaser to generate ‘valid’ credit card
numbers. The accused made at least 20 sales and the files that were sold, although not the teaser, also
included instructions on how to make bombs and how to break into a house”.
 During discovery, a document on the accused’s computer was found that explained a credit card number
generator. However, this document was not part of the files that were sold.
 A list of visa numbers was also found in Hamilton’s possession.
 The bank had not made any complaints regarding the improper use of the visa numbers
Held:
 The court held that “the concern in this case is with the imposition of criminal liability on those who
counsel others to commit crimes. The actus reus for counselling is the deliberate encouragement or
active inducement of the commission of a criminal offence. The mens rea consists of nothing less than an
accompanying intent or conscious disregard of the substantial and unjustified risk inherent in that
counselling”.
 It must be established and demonstrated that the accused provided counselling with the intention that the
criminal offence he or she was counselling for would be executed. In the alternative, the accused must
47
[1991] 3 S.C.R. 383.
48
Criminal Code (R.S.C., 1985, c. C-46).
40
have “knowingly counselled the commission of the offence while aware of the unjustified risk that the
offence counselled was in fact likely to be committed as a result of the accused’s conduct”.
 The court went on to discuss the inherent perils of cyberspace crime emphasizing that the courts are not
permitted to enlarge, stretch or transmute offences so as to make them applicable to cyberspace crimes.
 At paragraph 85: Mr. Hamilton testified that he had not intended to induce the commission of any
criminal offence. He had not written any of the files; he had himself purchased them off the Internet and
did not even know what much of the information was about…
 The Supreme Court agreed with the trial judge’s conclusion, specifically that the accused did not have the
required mens rea. “…the trial judge found the accused lacked sufficient knowledge of the consequence
of his actions to satisfy the mens rea requirement” [84] [86].
11. Attempts
 Not all criminal offences mandate completion before an offence arises.
 Think of attempted murder: you plan to drug a friend in order to kill her; you obtain the necessary drugs,
spike her drink, ensure she finishes the drink in its entirety. However, she ends up surviving. She did not
die; therefore, you cannot be charged with murder (there was no death; the required consequence did not
occur). You will, however, be charged with attempting to murder your friend.
 As always, the first place to look is the Criminal Code:
Attempts49
24 (1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose
of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible
under the circumstances to commit the offence.
Question of law
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is
not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence,
is a question of law.
 IMPORTANT: There is an important distinction between mere preparation and attempt(s).

 In order for attempt to be established, the accused must have gone beyond ‘mere preparation’ (R v
Sarrazin, 2010 ONCA 577).
 An idea or plan itself is NOT an attempt. For instance, if you write a plan to commit murder that involves
breaking and entering someone’s home and then using a knife to stab them to death, but you only go as
far as obtaining the dates as to when the person will be home alone, you have not done enough to be
charged with attempted murder.
 “The criminal attempt begins only once the preparation is complete. The accused will then perform a
series of acts with the intention of committing the offence” (R v Cline50).
 In the example above, the person intending to commit murder must have purchased the knife for the
killing and scheduled the date when the break and enter would occur for the mere preparation component
to be achieved. At this point, attempted murder has not yet occurred. What if the accused shows up at the
house on the date scheduled for the murder, with the murder weapon, is this sufficient for attempted
murder to be made out? After preparation is complete, it is not always straightforward in terms of what
point within the series of acts the accused has committed an attempt. What if on the way to the home, the
accused is pulled over and the plan for murder is found? Unfortunately, there is no specific criteria to
determine and distinguish between mere preparation and actual attempt (R v Root, 2008 ONCA 869).
49
50
1956) 4 DLR (2d) 480, OJ No. 454 ONCA)
41
 The case of Deutsch v The Queen51 does provide us with qualitative guidelines.
"...the distinction between preparation and attempt is essentially a qualitative one, involving the
relationship between the nature and quality of the act in question and the nature of the complete
offence, although consideration must necessarily be given, in making that qualitative distinction,
to the relative proximity of the act in question to what would have been the completed
offence, in terms of time, location and acts under the control of the accused remaining to be
accomplished. I find that view to be compatible with what has been said about the actus reus of
attempt in this Court and in other Canadian decisions that should be treated as authoritative on
this question (Le Dain J.).
 Applying the qualitative test in Deutsch to the earlier example, perhaps driving to the ‘soon to be’ crime
scene may not be close enough in proximity; however, if the accused was in the home, after breaking and
entering, this would likely suffice.
 In R v Root, the court found that the act will be adequate in situations wherein the “accused actions have
progressed a sufficient distance – beyond mere preparation – down the intended path”. 52
 It is clear that this will be a case-by-case basis situation, wherein you will have to analyze how many
steps are involved in executing the criminal offence and at what point has an accused reached. For
instance, if there are 10 steps involved to finalize and complete the crime, and the accused reached step 8,
then this would go beyond mere preparation. If, on the other hand, the accused was only at step 2, this
would more likely constitute mere preparation.
Leading Cases
R v Ancio, [1984] 1 S.C.R. 225

Facts:
 The accused, Ancio, desired to speak with his estranged wife. To do so, he broke into her apartment with
a loaded gun.
 His estranged wife had been living with another man, Kurely, who went to see what the loud noise was.
He saw Ancio climbing the stairs and in shock, threw a chair at him.
 The gun that Ancio had discharged. It, however, missed Kurely.
Held:
 The court held that the “mens rea for attempted murder is the specific intent to kill and a mental state
falling short of that level, while it might lead to conviction for other offences, cannot lead to a conviction
for an attempt”.
 If a person does not have a specific intent to murder, then he cannot be charged with murder. This is
consistent with attempted murder. Accidentally killing a person will typically not lead to a murder
charge, rather, the accused will likely be convicted of manslaughter. If a person accidentally ALMOST
kills another person, they, likewise, cannot be charged with attempted murder.
 Ancio’s intent was to speak to his estranged wife, not to kill her boyfriend.
 “For attempted murder, nothing short of intent to kill will suffice for the mens rea of that offence”.
R v Deutsch, [1986] 2 S.C.R. 2

Facts:
 The accused, Deutsch, input an ad in the newspaper seeking a secretary-sales assistant.
 Women who applied to the advert came in for interviews. During the interviews, the accused informed
them that they would have to engage in sexual intercourse if necessary, in order to secure clientele.
Deutsch informed the women bonuses would be granted for performing sexual intercourse
51
[1986] 2 S.C.R. 2, Per Le Dain J. at para [27].
52
R v Root, 2008 ONCA 869 (CanLII), (2008), 241 CCC (d) 125, per Watt JA, at para 100.
42
 A police officer, undercover, went in for an interview and affirmed the situation.
 None of the individuals who came in for an interview, as a result of the advertisement, were actually
hired. Deutsch was charged with attempting to procure females for illicit intercourse with other persons.
Held:
 The main issue in the case at bar was whether the required intent existed.
 “Were the accused’s actions enough to lead to a conviction for intent, or were they merely preparatory
actions?”
 Le Dain J., who wrote for the majority, stated that “the holding out of large financial rewards for the
applicants was capable of satisfying the acts reus of an attempt to procure the women to have illicit sexual
intercourse contrary to section 212”.
 The actus reus for attempt must involve some step or action towards the actual commission of the
crime that goes beyond mere acts of preparation.
 The holding out of the large financial reward in this case was clearly a critical step in the commission of
the offence. Deutsch’s proposition of financial rewards was a major step in attempting to commit the
crime.
 The accused had the necessary intent to induce or persuade the women. In reality, there was not much
else that could have been done or that was required in order to complete the offence other than provide a
formal employment offer to the women.
Takeaways from Deutsch

 It is important to acknowledge that when there are many steps involved in the commission of a
criminal offence, you will have to make a judgment as to how far along the series of steps has the
accused come.
 In the case at bar, there was a major step that literally comprised of the majority of the attempt, that
was putting the advertisement in the newspaper, conducting the interviews and luring women by the
appeal of a reward.
 Below are some key excerpts from the case:
Le Dain J. at para 27: “…distinction between preparation and attempt is essentially a qualitative one,
involving the relationship between the nature and quality of the act in question and the nature of the
complete offence, although consideration must necessarily be given, in making that qualitative distinction,
to the relative proximity of the act in question to what would have been the completed offence, in terms of
time, location and acts under the control of the accused remaining to be accomplished.”
Para 29: “The extent to which some version of the proximity test, which was formulated in R. v.
Eagleton (1854), Dears. C.C. 376 (C.C.R.), and applied in the much-criticized case of R. v. Robinson,
[1915] 2 K.B. 342 (C.C.A.), as a "last step" or "last stage" test (cf. English Law Commission, op. cit.,
pp. 335-36), is to be applied in drawing the distinction between preparation and attempt has also been the
subject of commentary in this Court.”
Para 31: “…relative proximity may give an act which might otherwise appear to be mere
preparation the quality of attempt…”
Para 32: “In the case at bar the Court of Appeal agreed with the trial judge on the applicable meaning of
"procure". The meaning selected by the trial judge and approved by the Court of Appeal was "to cause, or
to induce, or to have a persuasive effect upon the conduct that is alleged."
It is important to note here that the criminal offence itself is “procurement”. Focus on what is requirement for
the commission of the offence at hand.
43
R v Dery, 2006 SCC 53

 The two accused, D and S, were charged with conspiring to commit theft and conspiring to possess stolen
liquor.
 It was held that “no agreement had been established between the two men to steal or possess liquor” and
as such, the two men were acquitted of conspiracy.
 The is no offence of ‘attempting to conspire”.
12. Corporate and Association Liability
 Section 22.1 and 22.2 of the Criminal Code address organizations
Offences of negligence — organizations53

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the
offence if
(a) acting within the scope of their authority
(i) one of its representatives is a party to the offence, or
(ii) two or more of its representatives engage in conduct, whether by act or omission, such that,
if it had been the conduct of only one representative, that representative would have been a
party to the offence; and
(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to
the offence departs — or the senior officers, collectively, depart — markedly from the standard of care
that, in the circumstances, could reasonably be expected to prevent a representative of the organization
from being a party to the offence.
Other offences — organizations
22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an
organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior
officers
(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their
authority, directs the work of other representatives of the organization so that they do the act or make the
omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not
take all reasonable measures to stop them from being a party to the offence.
 Organizations are subject to the Criminal Code – “the definition in section 2 of ‘everyone’, ‘person’,
‘owner’ includes, ‘public bodies, bodies corporate, societies, companies’. However, determining whether
a corporation has committed a prohibited act and whether a corporation has the requisite mental state is
far more complicated than for an individual”.54
 Corporations and associations are only capable of acting through their employees and agents (i.e.
Vicariously). A corporation, quite obviously, does not have hands and legs and cannot attend court. It is
through the people that represent the organization that the company conducts business and attends to
legal matters.
 Essentially, a business or “is guilty of a crime if its ‘directing mind’ committed the prohibited act and had
the necessary state of mind. To be a ‘directing mind’, a person must have so much authority in the
corporation that the person can be considered the ‘alter ego’ or ‘soul’ of the corporation”.55
Criminal Liability of Directors, Officers and Employees

53
54
Department of Justice, Government of Canada: Criminal Liability of Organizations, “A Plain Language Guide to Bill C-45”.
55
Ibid.
44

Currently, in Canadian law, the officers and directors of a corporation cannot be convicted of a criminal
offence for actions on behalf of the corporation merely by virtue of their status.
 Nonetheless, if a director or officer is considered or deemed the ‘directing mind’ of the corporation and
they are in fact directing the corporation to commit criminal offences that advantage the corporation
itself, or if the director or officer is engaging in criminal activity within the corporate context, then they
can be held responsible in criminal law.56 Here, director officer would likely be charged jointly and
separately.
Models of Corporate Criminal Liability in Comparative Law, Cristina de Maglie (2005)
 “In the criminal law context, all modern systems share the basic assumption that criminal responsibility
should be placed on the individuals who commit a crime in the corporation’s interest” (p. 547).
The Changed Face of Corporate Criminal Liability, Todd Archibald, Kenneth Jull and Kent Roach (Crim. LQ,
2003)
“Bill C-45 constitutes a fundamental change, if not a revolution, in corporate criminal liability. It creates
a new regime of criminal liability that applies not only to corporations, but unions, municipalities,
partnerships, and other associations of persons. It replaces the traditional legal concept of corporate
liability based on the fault of the corporation’s “directing mind(s)”, the board of directors and those with
the power to set corporate policy, with liability tied to the fault of the corporation’s “senior officers”.
That definition includes all those employees, agents or contractors who play an important role in the
establishment of an organization’s policies or who have responsibility for managing an important aspect
of the organization’s activities” (p. 368).
Canadian Dredge & Dock Co. v The Queen, [1985] 1 SCR 662
 Laskin C.J. and Richie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.: “Where the
criminal act is totally in fraud of the corporate employer and where the act is intended to and does result
in benefit exclusively to the employee-manager, the employee-directing mind, from the outset of the
design and execution of the criminal plan, ceases to be a directing mind of the corporation and
consequently his acts cannot be attributed to the corporation under the identification doctrine. Thus, the
identification doctrine only operates where the Crown demonstrates that the action taken by the directing
mind (a) was within the field of operation assigned to him; (b) was not totally in fraud of the corporation;
and (c) was by design or result partly for the benefit of the company”.
Note on the “Directing Mind”
Rhȏne (The) v Peter AB Widener (The), 1993 1 SCR 497 at para 32:
 Directing minds of a corporation are senior officers or members of a corporation who have an “express or
implied delegation of executive authority to design and supervise the implementation of corporate policy
rather than simply to carry out such policy.” A ‘directing’ mind of a corporation will be criminally liable
when acting within the scope of his or her position/employment/role of the corporation.
56
Canadian Dredge & Dock Co. v The Queen [1985] 1 SCR 662.
45
SELECT CRIMINAL DEFENCES
13. Mental Disorder

 The defence of mental disorder is found in the Criminal Code, Section 16
Defence of mental disorder57

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
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from
criminal responsibility is on the party that raises the issue.
 In order to successfully bring forth this defence, the accused must prove that he has a “mental disorder”,
as defined in section 2, as a “disease of the mind”.
 The purpose of this section is to recognize the fundamental principle that an individual who suffers as a
result of a mental disorder should not be held criminally responsible (R v Ejigu, 2016 BCSC 2278).
 The mental disorder must render the individual incapable of making rational, logical or autonomous
decisions (R v Chaulk, [1990] 3 SCR)
Proving Mental Disorder – how to establish and successful use the defence
 A person raising this defence must demonstrate, on a balance of probabilities, that the person was
suffering from a mental disorder, as defined by the case law (“disease of the mind”) and, as per the
Criminal Code, section 16 (1), that he or she was unable to appreciate the “nature and quality” of the act
OR “did not know it was wrong” (R v Swain, [1991] 1 SCR 933, R v Oommen, [1994] 2 SCR 507)
 Therefore, both the case law and the Criminal Code (legislation) are engaged.
Leading Cases
R v Cooper [1980] 1 S.C.R. 1149

Facts:
 Cooper, the appellant, was an out-patient at the psychiatric hospital unit in Hamilton.
 He was charged with murdering an in-patient at the same institution.
 After Cooper tried to have sexual intercourse with the victim and was unsuccessful, he choked her. He
had lengthy and deep psychiatric history. Insanity, as a defence, was not raised during the trial.
57
46
 A psychiatrist was called and testified that “he did NOT think that the accused was suffering with a
disease of the mind”.
Held:
 Court addresses the term, ‘disease of the mind’ and substance of ‘appreciate’ as per the Criminal Code.
Disease of the Mind

 The court held that the phrase ‘disease of the mind’ is “not a term of art in either law or psychiatry.
Indeed, Glanville Williams (Textbook of Criminal Law at page 592) says that the phrase is no longer in
medical use. It is a mere working concept, a mere abstraction…”
 At page 514 in Rabey v R.58, held “The opinions of psychiatrists go no further than characterizing the
condition in which the appellant was found as being “a dissociative state” but it is clear that the
question of whether or not such a state amounts to “a disease of the mind” is a question of law for
the judge to determine.
 Thus, while the viewpoint of a psychiatrist will be influential, it is not determinative.
 Disease of the mind comprises of any “illness, disorder or abnormal conditions” which impairs or blights
the mind of a human being and its proper operation and function. It does not include self-induced states
(i.e. alcohol, drugs) NOR does it include transitory states (i.e. concussion, hysteria)
 The court went on to establish that the true question in the case was not if the accused was in fact
suffering from a ‘disease of the mind’, “but whether he was capable of appreciating the nature and quality
of the act” (this is within the Criminal Code, section 16).
Appreciate
 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.
 In English law, the phrase “knows the nature and quality of his act” is utilized. In Canadian law, it is
“appreciating the nature and quality of an act or omission”
 The reason Canadian law took this approach was to expand the legal and medical considerations and
ensure that “cognition was not to be the sole criterion”. The court emphasized:
To ‘know’ the nature and quality of an act may mean merely to be aware of the physical act, while to
“appreciate” may involve estimation and understanding of the consequences of that act. In the
case of the appellant, as an example, in using his hands to choke the deceased, he may well have
known the nature and quality of that physical act of choking. It is entirely different to suggest,
however, that in performing the physical act of choking, he was able to appreciate its nature and
quality in the sense of being aware that it could lead to or result in her death. In the opinion of the
medical expert who testified at the trial, the appellant could have been capable of intending bodily
harm and of choking the girl, but not of having intended her death.59
Conclusions
 Mental illnesses and disease do not fall purely under or within the psychiatric realm – “it is for the jury
and not for medical men, of whatever eminence, to determine the issue”.
 A new trial was ordered, as it could not be established that he foresaw the consequences of his violent
actions. He may have known his actions were wrong, however, he might have not been able to appreciate
(calculate, estimate) the consequences of his wrong action.
Ratio:
 The components or elements of the mental disorder exemption:
o Crown has to establish beyond a reasonable doubt the accused committed the crime;
o Accused must demonstrate their condition is a "disease of the mind";
58
[1980] 2 S.C.R. 513, Per Martland, Ritchie, Pigeon and Beetz JJ.
59
[1980] 1 S.C.R. 1149, Per Dickson, J, at page 1161-1162
47
o The condition must be the reason that the accused was not able to or did not have the capacity to
appreciate either the "nature and quality" of the act or to know that it is wrong;
o The legal consequence is not an acquittal, but a special verdict of "no criminal responsibility"
under section 672.34
 “Expert testimony that someone has or does not have a "disease of the mind" is not determinative; it is a
question that is to be answered by the finder of fact” (Rabey).
 "Diseases of the mind" must impair or hinder the human mind in its operation and functioning
ability. This eliminates cases of self-induced incapacity and does excludes transitory states.
R v Kjeldsen, [1981] 2 S.C.R. 617

Facts:
 Medical evidence uncovered that the appellant was a psychopath and “understood the physical nature
and consequences of his act, though indifferent to such consequences”.
Held:
 McIntyre J. at page 662 stated:
… the word ‘appreciate’…must, and does, mean more than ‘know’…The test proposed in
the McRuer Report, which I would adopt… is this:
The true test necessarily is, was the accused person at the very time of the offence—not
before or after, but at the moment of the offence—by reason of disease of the mind, unable
fully to appreciate not only the nature of the act but the natural consequences that would
flow from it? In other words, was the accused person, by reason of disease of the mind, deprived
of the mental capacity to foresee and measure the consequences of the act? …
R v Oommen, [1994], 2 S.C.R. 507

Facts:
 Without any motive, Oommen murdered his sleeping friend. It had been many years that the accused was
suffering with mental illness, “described as a psychosis of a paranoid delusional type, and, at the time of
the killing, his paranoia was fixed on a belief that the members of a local union were conspiring to
‘destroy’ him”.
 The exact night that he murdered his friend, he believed that the members of the local union were
surrounding his apartment and were out to kill him. He also believed that his friend was one of these
members.
Held:
 Section 16(1) of the Code embraces not only the intellectual ability to know right from wrong in an abstract
sense, but also the ability to apply that knowledge in a rational way to the alleged criminal act.
 An accused should be exempted from criminal liability where, at the time of the act, a mental disorder
deprived him of the capacity for rational perception and hence rational choice about the rightness or
wrongness of the act.
 An accused need not establish that his delusion permits him to raise a specific defence, such as self-defence,
to be exempted from criminal responsibility. The inability to make a rational choice may result from a
variety of mental disorders, including delusions which cause an accused to perceive an act which is wrong as
right or justifiable. Here, the evidence was capable of supporting a conclusion that the accused was deprived
of the capacity to know his act was wrong by the standards of the ordinary person.
‘Disease of the Mind’ includes:

 Psychopathy (but not always) (Cooper; Simpson; Kjeldsen)60
60
R v Cooper [1980] 1 SCR 1149, 1979 CanLII 63 (SCC); R v Simpson (1977), 16 O.R. (2d) 129 (C.A.); R v Kjeldsen, 1980 ABCA 49 (CanLII)
48
 Intellectual disability (ID) (R v MSR)61

 Sleep walking (but not always) (R v Parks)62
14. Automatism and Involuntary Acts “Negating” the Actus Reus

 Automatism: if the accused it not conscious of their conduct, they may be able to claim “automatism”.
 If you execute an action and it is not voluntary, how can you be criminally responsible? Is this not a
violation of your constitutional rights/Charter rights?
o You are driving and a swarm of bees enters your car causing you to swerve and hit another
vehicle. The passengers are severely injured. Can you be liable for dangerous driving, stunt
driving or dangerous operation of a vehicle causing bodily harm? You did not have the required
mens rea. Thus, it would be unjust to make you criminally liable for an action that you did not
voluntarily exercise or execute.
 Only those who acted with the required voluntariness should be convicted of a crime. 63
 Automatism has been defined as “a state of impaired consciousness” (R v Stone64)
 Automatism has also been referred to as “the involuntary conduct that is the product of a mental state in
which the conscious mind is disassociated from the part of the mind that controls action” (R v SH65).
 Evidently, automatism impacts the actus reus of a criminal offence (without the actus reus, the crime
cannot have been said to be committed)
 As the NCA syllabus states:
“It is the ‘voluntariness’ concept that explains the defence of automatism, which operates on the
theory that the accused’s physical motions were not culpable where they are not voluntary or
thought-directed or conscious, as in the sleeping-walking case of R v Parks. Please note that
automatism will not realistically operate in any case where the accused appears conscious of his
conduct – it is reserved to those unusual cases where there appears to be some disconnect
between the actions of the accused and his conscious will”.
 TWO CATEGORIES of automatism exist:
o Insane (Mental Disorder Automatism)
o Non-insane (Non-Mental Disorder Automatism)
 If the defence of “non-insane automatism” is successfully argued = complete acquittal. This is typically
preferred to a finding of mental disorder automatism.
 Section 16 addresses “Mental Disorder Automatism”:
“No person is criminally responsible for an act committed or an omission made: While suffering
from a mental disorder that rendered that person incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong”
 If automatism as a result of a mental disorder is found, the accused will be said to be ‘not criminally
responsible on account of mental disorder (NCR-MD).
Leading Cases
R v Parks, [1992] 2 S.C.R. 871

Facts:
61
R v MSR, 1996 CanLII 8294 (ON SC). 1996 Ont.Ct (Gen Div).
62
R v Parks, [1992] 2 SCR 871, 1992 CanLII 78 (SCC).
63
R v Parks, [1992] 2 SCR 871.
64
[1999] 2 SCR 290, 1999 CanLII 688 (SCC).
65
2014 ONCA 303).
49
 The respondent drove to his in-law’s house in the middle of the night and attacked his mother and father
in-law while they were sleeping. He murdered the mother and seriously injured the father. Directly after
the attack, the respondent attended a police station and confessed.
 The respondent swore he was sleepwalking when he committed the act.
 There did not appear to be any motive to the attack. He had had a stressful year with a lot of personal
issues that he was dealing with. His in-laws were aware of the problems he was going through and were
very supportive. They had a great relationship.
 There was family history (hereditary), as multiple members in the respondent’s family had sleeping
problems and suffered from sleepwalking.
Issue:
 The main issue in this case was whether sleepwalking should be classified as non-insane automatism
resulting in an acquittal OR insane-automatism (‘disease of the mind’) resulting in NCR-MD.
Held:
 La Forest, L’Heureux-Dubé-Dube and Gonthier JJ held “in distinguishing between automatism and
insanity, the trial judge must consider not only the evidence BUT also overarching policy
considerations”.
 The court laid down a series of steps to be followed when determining whether non-insane or insane
(mental disorder/disease of the mind) automatism is applicable.
 First: the judge must establish and determine if evidence exists on the record that supports leaving the
defence with the jury. The accused must provide evidence (evidential burden rests with accused) and
cannot simply raise the defence without proof (i.e. witnesses, medical history).
 Once the evidentiary burden is met, the “judge must then consider whether the condition alleged by the
accused is, in law, non-insane automatism”.66
 Second: If the judge is placated “that there is some evidence pointing to a condition that is in law non-
insane automatism, then the defence can be left with the jury. “The issue for the jury is one of fact:
did the accused suffer from or experience the alleged condition at the relevant time? Because the
Crown must always prove that an accused has acted voluntarily, the onus rests on the prosecution
at this stage to prove the absence of automatism beyond a reasonable doubt”.67
 The court stated:
"Disease of the mind" is a legal term and not a medical term of art but it contains a
substantial medical component as well as a legal or policy component…
Because "disease of the mind" is a legal concept, a trial judge cannot rely blindly on medical
opinion. The judge must determine what mental conditions are included within the term "disease of
the mind", and whether there is any evidence that the accused suffered from an abnormal mental
condition comprehended by that term.
 Essentially, the court is saying the notion is a legal term; though the opinions of medical professionals are
influential, it is the judge who makes the final call after considering all the evidence (i.e,. medical
opinion).
 There are two definite approaches to the policy element in automatism cases – “continuing danger”
and “internal cause” theories.
 The former states that “any condition likely to present recurring danger should be treated as insanity”.
 The latter holds that any condition rooted in the internal make-up or inherent disposition/genetics of the
accused, rather than stemming from external factors, such as drugs, should result in a finding of insanity.
66
[1992] 2 S.C.R. 871Per La Forest J.
67
Ibid.
50
 The majority held that although the two theories are disparate and distinct, they both “stem from a
concern for the protection of the public”.68
 In sleepwalking cases (somnambulistic condition), internal cause theory, is not particularly helpful.
 In terms of the “continuing danger” theory, when applied to the case at bar, it was held that based on the
evidence presented, there was no likelihood or probability of recurrent violent somnambulism.
 An important point that the court made was that although they reached the decision they did, due to the
fact that medical evidence in each case will have various ramifications at several stages of the policy
question/inquiry and that policy is truly important in its own right, sleepwalking in a different case on
diverse evidence and facts may be found to be a disease of the mind (i.e. for sleepwalking cases, the court
must take a case-by-case approach).
R v Stone, [1999] 2 S.C.R. 290

Facts:
 The accused confessed to stabbing his spouse but swore he did whilst he was in an automatistic state. He
claimed to have been in this state due to the insulting words of his wife.
 The accused “testified that he felt a ‘whoosh’ sensation washing over him. When his eyes focused again,
he was staring straight ahead and felt something in his hand. He was holding a six-inch hunting knife. He
looked over and saw his wife slumped over on the seat”.
 The accused cleaned up and got rid of his wife’s body. He wrote a note to his daughter and went to stay
in a hotel. He then flew off to Mexico. While in Mexico, he woke up one day in the middle of a terrible
dream. He remembered stabbing his wife, returned to Canada and turned himself in to the police.
Held:
 Court held there are two types or forms of automatism that are acknowledged by the law.
 As per L’Heureux-Dubé, Gonthier, Cory, McLachlin and Bastarache JJ, “Non-insane automatism
arises where involuntary action DOES NOT stem from a disease of the mind and entitles the
accused to an acquittal. Insane automatism…arises only where involuntary action is found, at
law, to result from a disease of the mind and is subsumed by the defence of mental disorder. A
successful defence of insane automatism will trigger s.16 of the Criminal Code and result in a
verdict of not criminally responsible on account of mental disorder”.
 First: The basic and starting presumption is that humans act voluntarily. Therefore, this is the
commencement point when conducting the test. This has to be rebutted by the person claiming
automatism (use evidence)
 Automatism involves the accused claiming that he or she did not act voluntarily. This claim must be
supported with proper evidence; “the accused must establish a proper foundation for this defence
before it can be left with the trier of fact”.
 At para [166], the court stated that case law demonstrates that there has been quite sparse guidance in
terms of what an accused has to do in order to establish a sufficient foundation and basis for the
defence of automatism.
 Essentially, there just needs to be enough evidence (i.e. air of reality; believable evidence).
 Second: Most of judicial attention has been on the second stage.69
 Once the evidentiary burden has been satisfied and the foundation has been established, the judge
must then make the decision as to whether the condition claimed by the accused is one of mental
disorder or one that is non-mental disorder automatism.
 Mental disorder automatism should be addressed first. “The assessment of which form of
automatism should be left with the trier of fact comes down to the question of whether or not
68
Ibid.
69
[1999] 2 S.C.R. 290, Per Finch J.A., at para [166]
51
the alleged condition is a mental disorder. Mental disorder is a legal term defined in the Code as
“a disease of the mind”.
 At para [203], the court addressed La Forest J’s approach to disease of the mind and states that
a new approach is needed, “a more holistic approach”.
Internal Cause Theory

 “Under the internal cause theory, the trial judge must compare the accused’s automatistic
reaction to the psychological blow to the way one would expect a normal person in the same
circumstances to react in order to determine whether the condition the accused claims to have
suffered from is a disease of the mind. As K. L. Campbell points out, at p. 354 of his article
“Psychological Blow Automatism: A Narrow Defence” (1980-81), 23 Crim. L.Q. 342, how can
abnormality be defined in any other way but by comparison to what is normal.” 70
 This is an objective test. If a person acted as others would have acted, then a disease of the mind
is less likely.
Continuing Danger Theory

 At para [212], the court notes that “both the majority and dissenting judges of this Court
in Rabey, as well as La Forest J. in Parks, recognized that policy considerations are relevant to
the determination of whether a claim of automatism is the result of a disease of the mind. One
policy factor which is central to the disease of the mind inquiry is the need to ensure public
safety…. continuing danger theory…. holds that any condition which is likely to present a
recurring danger to the public should be treated as a disease of the mind. In other words, the
likelihood of recurrence of violence is a factor to be considered in the disease of the mind
inquiry”.
NOTE: While a continuing danger implicates a disease of the mind, if the court decides a continuing
danger does not exist, then this will not per se a finding of a disease of the mind 71.

NOTE: The internal cause theory and the continuing danger theory should not be viewed as
alternative or mutually exclusive approaches to the disease of the mind inquiry. Rather, a
holistic approach should be adopted… In addition to these two factors, policy factors may also
be considered in determining whether the condition the accused claims to have suffered from is a
disease of the mind.72

Other Policy Factors
 At para [218] Finch J.A., the court considered “other policy factors”. Finch J.A. explained that
“there may be cases in which consideration of the internal cause and continuing danger
factors alone does not permit a conclusive answer to the disease of the mind question.… for
example, where the internal cause factor is not helpful because it is impossible to classify the
alleged cause of the automatism as internal or external, and the continuing danger factor is
inconclusive because there is no continuing danger of violence73. Accordingly, a holistic
approach to disease of the mind must also permit trial judges to consider other policy
concerns which underlie this inquiry…Any such valid policy concern can be considered by the
trial judge in order to determine whether the condition the accused claims to have suffered from
is a disease of the mind”.
70
[1999] 2 S.C.R. 290, at para [204].
71
Rabey, supra, at p. 15 (Ont. C.A.), per Martin J.A., and at pp. 533 and 551 (S.C.C.), per Dickson J.; Parks, supra, at p. 907, per La Forest J
72
[1999] 2 S.C.R. 290, at para [213].
73
Sleeping walking cases is a clear example of this.
52
NOTE: * What if the judge decides that the condition is not a disease of the mind? If it is concluded
that no internal cause exists and no continuing danger, then it is likely that a disease of the mind will
not be found. However, there is a chance that a judge could conclude a disease of the mind based on
policy factors alone. The more factors = higher chance of the judge finding a disease of the mind.
 At para [219], Finch J.A. stated “If the trial judge concludes that the condition the accused
claims to have suffered from is not a disease of the mind, only the defence of non-mental
disorder automatism will be left with the trier of fact as the trial judge will have already
found that there is evidence upon which a properly instructed jury could find that the
accused acted involuntarily on a balance of probabilities. The question for the trier of fact
will then be whether the defence has proven that the accused acted involuntarily on a balance of
probabilities. A positive answer to this question by the trier of fact will result in a successful
defence of non-mental disorder automatism and, consequently, an absolute acquittal”.
R v Cooper [1980] 1 SCR 1149

 This case essentially defines the context of the Criminal Code, section 16, elaborating on what “incapable
of appreciating the nature and quality of the violent act or knowing that it is wrong” means
o To “know” the nature and quality does NOT EQUATE to being able to appreciate.
o In other words, you may know what you are doing, but have no idea the impact it will have (i.e.
in Mice and Men, Lennie is mentally disabled and accidentally kills a puppy when stroking it. He
does not in any way intend to harm the puppy; merely, he doesn’t recognize his own strength and
the force of his actions).
R v Luedecke, 2008 ONCA 716

 The accused was charged with the criminal offence of sexual assault. He claimed that when the offence
occurred, he was completely asleep (i.e. somnambulism) and acted entirely involuntary
Held:
 Court of Appeal held his sleepwalking was a disease of the mind and the accused was granted an absolute
discharge “on the basis that he was not a significant threat to the safety of the public”. 74
NOTE: According to Stone, the judge must address first disease of the mind (before non-insane automatism).
Stone emphasized that the inquiry should not be confined to a risk of reoccurring violence and that a holistic
approach should be taken balancing internal cause theory and continuing danger theory and policy considerations.
Summarized Approach to Automatism

1. Starting Point  The defendant is sane!
 The law makes the assumption that people act voluntarily (this is a reverse onus test, as it is the accused
who bears the burden of proof).
 The accused must REBUT this presumption by using evidence and demonstrating that there is an “air of
reality” to your defence. In other words, if the evidence is put to a jury, would they believe it (i.e. is it
capable of believing?)
 It is important to put forth as much evidence as possible, as only once you pass this phase can you move
on to delineating and delving into mental disorder versus non-insane automatism.
 The more evidence, the stronger your case.
 Fontaine: jury will analyze and balance various factors and evidence
o Evidence of bystanders and witnesses
o Triggers present? (In the example above, seeing the girl with whom her boyfriend is cheating
with is a trigger).
74
R v Luedecke Case Brief, Robert Jones – Western University’s Law Students’ Association, canliiconnects.org
53
o How serious is the trigger stimulus?

o Medical history, psychiatric evidence/history, counselling?
o Ask whether there was a motive for the crime? If there is a motive, it will be much more difficult
to prove automatism.
 Example: you are driving a swarm of bees enter your car; you consequently rear end the car in front of
you. If you have witnesses who saw the bees and had view of the event, this would be very helpful in
establishing automatism. If you have a bee sting, this could be of assistance too. In the alternative,
suppose you got into a car accident and it was due to road rage. How would you approach this situation?
Would this be an automatistic state? Could one argue that they became deprived of their ability to act
voluntarily?
If you fail to demonstrate an “air of reality” and there is not adequate evidence to prove or support your
defence, then the case stops here, and the defence of automatism will fail.
If you have demonstrated an “air of reality” and provided sufficient evidence (i.e. satisfied the evidential
burden), then move on to step 2.
2. Start with the position that the condition is a “disease of the mind”
What is a ‘disease of the mind’?

 It is essentially a ‘mental disorder’.
 Start with statute (section 16): “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”.
 But what does it mean to “appreciate the nature and quality” of an act/omission? And what does it
mean to know if something is right or wrong? The case law tells us!
 Cooper gives us more detail; lists what it does and does not include
o Includes any illness (i.e. schizophrenia), disorders (post-traumatic stress disorders) or
abnormal conditions which impairs the human mind and its functioning.
o Excludes: self-induced states (i.e. drugs/alcohol) and transitory mental states i.e. hysteria and
concussion).
o Cooper also expands on the concept – “appreciating the nature and quality of an act or
omission”
 Mere knowledge of the nature and quality of the act DOES NOT = appreciation
 Appreciate means to estimate and calculate the repercussions of your action
 I.e. intellectually disabled man in “Of Mice and Men” hugs a girl too hard not
understanding or appreciating his own strength and the fact he could kill the girl
 The McRuer Report Test: Dickson states the importance of looking at the relevant
time the act was committed.
 Kjeldson]: merely because an individual has no emotion or feelings toward killing, does not mean they
DO NOT APPRECIATE the nature and quality of their actions.
 Oommen75: ask if the accused has the intellectual ability to know right from wrong in an abstract
sense. Can the accused make rational connections and decisions?
75
[1994] 2 S.C.R. 507
54
NOTE: If you can establish the condition is a disease of the mind due to similar facts as precedent, then you will
pretty much have your answer. Still, to ensure full marks (or at least more marks!) conduct the rest of the test.
Stone is the test you should apply and execute.
I) Ask if the disease of the mind is an “internal cause”.

-Was there an external trigger or exceptional event, something that any individual would react
shockingly to? (i.e. bees swarming into your car; catch your husband cheating, etc.).
-Compare to others = how would another (reasonable) person actin the exact same scenario?
-Medical facts could support this criterion.
-Consider if someone has PTSD due to war and another individual comes from behind to hug them.
The person reacts by slamming the person to the ground (automatic reaction) and cracks the person’s
neck. This reaction is not one most people would have had. Something internal caused a switch to go
off (internal cause)
II) Ask if there is a “continuing danger factor”

-Could this event happen again? What is the likelihood?
-Will the condition present a recurring danger to the public?
-In R v Park (1992), it was held that sleepwalking is not a disease of the mind because it is likely to
not reoccur.
-Refer to expert and medical evidence to support any claim.
III) Consider any “policy factors”.

-Examples include the reputation of the justice system; floodgates; public safety.
-If the act was so terrible and the mere fact it occurred caused society to be frightened, unsafe and
anxious, a find of mental disorder may be more likely (or conviction).
IF IT IS FOUND THAT THE ACCUSED SUFFERED FROM A DISEASE OF THE MIND = NOT
CRIMINALLY RESPONSIBLE – MENTAL DISORDER (NCR -MD).
If there was no internal cause, no continuing danger factor and no policy factors to support a finding of
NCR-MD, THEN MOVE TO NON-INSANE AUTOMATISM (or perhaps, you may have found there was
an internal cause, but the latter two factors were absent – could also be non-insane automatism).
15. Simple Intoxication and Specific Intent Crimes

 The defence of intoxication is applicable not only to alcohol, but drugs as well.
 As the NCA online syllabus states: “Intoxication does NOT operate as a justification or excuse for
criminal conduct”.
 Indeed, many would say that the defence of intoxication is frowned upon.
 The defence applies in very confined and limited situations.
 As held in the case of Canute76, per Wood J.A., at para. 49, “drunken intent is nonetheless an intent”.
 Intoxication is only applicable to “specific intent” crimes.
 The defence of intoxication DOES NOT apply to “general intent” crimes!
 Therefore, if you commit a general intent crime while intoxicated, you have no defence here.
General Intent Offences Specific Intent Offences

 The mens rea merely relates to performance of the  The defence of intoxication can be used only for
76
(1993), 80 C.C.C. (3d) 403
55
illegal action. specific intent offences!

 These offences do not require the offender to  The mens rea relates to the ulterior purpose
intend to bring about specific consequences that  The intention required is that the accused intended to
are beyond or external in nature to the illegal perform the action FOR a specific purpose.
action.  For example, if you rob a person, you use violence to
 The level of intention that is mandated is merely obtain property (to steal). Robbery involves both
that the accused intended to perform the action in assault and theft. You committed assault with the
question. You punched another person to apply intention of stealing. Robbery, as such is a specific
force (assault = intentional application of force). intent offence.
 The accused need not have intended a specific  The accused has to have acted with the desire to
consequence, nor to have acted for a specific achieve a specific consequence, or to have acted for a
purpose. specific purpose.
 Examples include assault, sexual assault,  Examples include assault with intent to resist arrest,
manslaughter, battery, arson, driving under the arson with intent to defraud, murder, criminal damage
influence with the intent to endanger life.
NOTE: Intoxication will fulfill the mens rea necessary for general intent offences. Therefore, you cannot argue
that you were intoxicated and as a result of this intoxication, you were unable to form the necessary mens rea.
Instead, the court will substitute your drunkenness for the mens rea (here, intoxication = mens rea).
Leading Cases:
The Queen v George, [1960] S.C.R. 871

Facts:
 The accused was charged with robbery with violence (i.e. robbery involves a person who commits assault
or violent acts with the intent to steal/theft) under section 288 of the Criminal Code.
 He was acquitted because it was found that he was so intoxicated that he was not capable of forming the
necessary specific intent to commit the robbery (i.e. lacked mens rea)
Held:
 The court held that the trial judge made an error.
 Taschereau and Fauteux JJ stated that “when the commission of the offence charged…includes the
commission of another offence, the charge is divisible, and the accused may be convicted of the offence
so included, if proved, notwithstanding the whole offence that is charged is not proved”. 77
 Robbery is split into = theft + assault. With the criminal offence of theft, a specific intent has to be
established; on the other hand, there is no specific intent that needs to be proved with common assault.
 The trial judge found the accused didn’t have the ability to formulate the specific intent required for
robbery, but, this did not mean that the accused could not have then committed common assault.
 The trial judge should have divided the two offences, theft and common assault.
 The court set aside the acquittal for the common assault portion and entered a guilty verdict for this
offence.
NOTE: as George demonstrates, when you have a specific intent crime, such as robbery, you must divide the two
offences that are inherent in the crime and determine which is a general intent offence. If an accused successfully
raises the defence of intoxication, they may have their charges reduced from robbery to assault. However,
remember, assault is a general intent offence; thus, the defence is not applicable here and there is no reduction
beyond assault. The court will substitute the intoxication for the assault at the general intent level. As such, an
77
The Queen v George [1960] SCR 871, scc-csc.lexum.com
56
accused cannot claim they were incapable of committing the general intent offence due to lacking the necessary
mens rea. If the accused was intoxicated and did not have the necessary mens rea in this situation, then mens rea =
intoxication.
R v Tatton, 2015 SCC 33

Facts:
 Tatton, the accused, caused a fire while he was very intoxicated. He was charged with arson (section 434
of the Criminal Code). He swore it was an accident.
 “The trial judge determined that section 434 was a specific intent offence, meaning that Tatton could rely
on self-induced intoxication as a defence. Tatton was acquitted”.78
Held:
 The Court stated that the inquiry into whether an offence is one of general or specific intent must
commence with establishing the mental element of the offence.
 As mentioned previously, this involves determining whether the accused had an ulterior motive or an
ulterior intention. For instance, compare assault and murder. With the former, the intention to apply force
is all that is necessary. There is no requirement that a result comes about from the application of force. In
terms of the latter, murder, a person intends to achieve a result based on their action, killing another.
 The Court makes it clear that the determination of whether an offence is one of specific or general intent
“is not a precise science. Logic, intuition and policy all play a part”.79
 There will be plenty of situations where the law has already established the appropriate category of the
offence (i.e. murder, robbery = specific intent; assault, arson = general intent).
 When the suitable classification has already been determined, then the task is direct and much simpler.
 The Court in Tatton declared at para [32]:
For example, this Court has established that sexual assault is a general intent offence, whereas
robbery and murder are specific intent offences: Leary v. The Queen, [1978] 1 S.C.R. 29, and R.
v. Chase, [1987] 2 S.C.R. 293 (sexual assault); R. v. George, [1960] S.C.R. 871 (robbery);
and R. v. Cooper, [1993] 1 S.C.R. 146 (murder). For these offences and for others that have
been satisfactorily addressed by existing jurisprudence, there is no need to examine the
question again. The framework that follows is meant to clarify, not change the law as set out
in Daviault. However, if the jurisprudence is unclear, courts must examine the factors
outlined in Daviault, as clarified below, to resolve the question.
 The framework involves two steps – establishing i) the “importance” of the mental element and ii) the
role of policy
i) The “Importance” of the Mental Element

 The Court clarified that importance has to do with “the complexity of the thought and reasoning
processes that make up the mental element of a particular offence. The thought and reasoning
processes for general intent crimes are relatively straightforward. In contrast, specific intent
crimes – those crimes with a more ‘important’ mental element – require a more sophisticated
reasoning process”.80
 For general intent offences, the mental element is more rudimentary (i.e. you hit someone, you
commit assault); these crimes do not necessitate an intention to produce specific consequences.
 On the other hand, specific intent crimes include a more sophisticated level of intention (“a
heightened mental element”). The court uses the example of assault with intent to resist arrest. If we
78
R v Tatton [2015] 2 SCR 574, scc-csc.lexum.com
79
R v Tatton [2015] 2 SCR 574, para [31].
80
Ibid, para [34]
57
expand on this example, it is clear that common/basic assault involves no other intention than to
apply force. Whereas, assault with intent to resist arrest involves a “heightened mental element” – an
individual harms another person for a purpose, that is, escaping or resisting arrest. His action has a
purpose beyond the assault itself.
ii) The Role of Policy

 The policy inquiry is generally only relevant if after analyzing the mental element (step 1), it is still
uncertain as to how the crime should be categorized/classified.
 The court held that “policy assessment will focus on whether alcohol consumption is habitually
associated with the crime in question. If it is, then allowing an accused to rely on intoxication as a
defence would seem counterintuitive”.81
 Therefore, if intoxication and the criminal offence commonly occur together, then to allow
intoxication as a defence to the particular crime would actually appear to promote the criminal
behaviour.
 The Court states at para [43], “As a general observation…alcohol habitually plays a role in crimes
involving violent or unruly conduct…It also tends to be prevalent in crimes involving damage to
property. As such, it makes little sense from a policy perspective that it should provide a defence for
crimes in which people or property are harmed or endangered”.
The Supreme Court held that the offence of arson in s. 434 of the Criminal Code is a general intent offence “for
which intoxication falling short of automatism is not available as a defence”.
R v Robinson, [1996] 1 S.C.R. 683
Facts:
 The accused committed murder while intoxicated. There was evidence that demonstrated he had been
drinking with the victim and other people. The victim insulted the accused, and this was what compelled
the accused to kill him.
Held:
 The Beard rules (Director of Public Prosecutions v. Beard) on intoxication (adopted in MacAskill v. The
King) should be overruled. These rules provide that intoxication is not a relevant factor for triers of fact to
consider except where the intoxicant removed the accused's capacity to form the requisite intent. According
to the Beard rules, the presumption that a person intends the natural consequences of his or her acts cannot be
rebutted by evidence falling short of incapacity. This presumption to which Beard refers should only be
interpreted as a common-sense inference that the jury can but is not compelled to make.
 The Beard rules violate ss.7 and 11(d) of the Charter because they put an accused in jeopardy of being
convicted even though a reasonable doubt could exist in the minds of the jurors on the issue of actual intent.
This restriction on an accused's legal rights does not constitute a reasonable limit under s. 1 of the Charter.
 A new rule consistent with the Constitution was devised. Before a trial judge is required by law to charge the
jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that the effect
might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt. Once a
judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before
them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite
intent.
16. Extreme Intoxication and General Intent Crimes

 Extreme Intoxication can be used as a defence to BOTH general and specific intent offences (in common
law) = RARE
 The defence, as you may imagine, is extremely controversial and frowned upon a great deal
81
Ibid., para [42].
58
 Despite the controversiality of the defence, the court in the case of Daviault (discussed below)
acknowledged that if a person was so extremely drunk, to the point that they were entirely incapable of
making any conscious decision, then the Charter would mandate an acquittal because the principle of
‘voluntariness’ is paramount and fundamental to the justice system.
R v Daviault, [1994] 3 S.C.R. 63

Facts:
 The accused committed sexual assault whilst extremely intoxicated.
 There was a pharmacologist who was called to the stand as an expert witness who testified that a person
with the blood-alcohol ratio that the accused had would have possibly suffered a blackout.
 The pharmacologist claimed that “in such a state, the individual loses contact with reality and the brain is
temporarily dissociated from normal functioning. The individual has no awareness of his actions when he
is in such a state and will likely have no memory of them the next day”.82
 The trial judge acquitted the accused on the basis that there was a reasonable doubt as to whether the
accused obtained the necessary minimal intent to commit the offence.
 In the Court of Appeal, it was held that the defence of ‘self-induced’ intoxication that led to a state that
was “equal to or akin to automatism or insanity” is NOT available as a defence to a general intent offence
(sexual assault)83.
Held:
 The Supreme Court created an exception; it held that if a state of drunkenness was so extreme that is
resembled automatism or a ‘disease of the mind’, then this could constitute grounds for the defence of
extreme intoxication.
 The Court, in the summary of the proposed remedy, right before the disposition, provided the following
proposed remedy84:
The Charter could be complied with, in crimes requiring only a general intent, if the accused
were permitted to establish that, at the time of the offence, he was in a state of extreme
intoxication akin to automatism or insanity. Just as in a situation where it is sought to establish a
state of insanity, the accused must bear the burden of establishing, on the balance of
probabilities, that he was in that extreme state of intoxication. This will undoubtedly
require the testimony of an expert. Obviously, it will be a rare situation where an accused is
able to establish such an extreme degree of intoxication. Yet, permitting such a procedure would
mean that a defence would remain open that, due to the extreme degree of intoxication, the minimal
mental element required by a general intent offence had not been established. To permit this rare
and limited defence in general intent offences is required so that the common law principles of
intoxication can comply with the Charter.
82
[1994] 3 S.C.R. 63.
83
Ibid.
84
Ibid.
59
R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575

Facts:
 B brutally assaulted two individuals while he was in a psychotic condition caused by drugs, he had taken a
few hours earlier.
 As a result of these incidents, B was charged with aggravated assault.
 The trial judge convicted B on the basis that all the elements of s. 33.1 of the Criminal Code, which
provides that self-induced intoxication cannot be a defence to an offence against the bodily integrity of
another person, had been proven beyond a reasonable doubt.
 B then tried unsuccessfully on appeal to obtain a verdict of not criminally responsible on account of mental
disorder under s.16. The Court of Appeal held that s. 33.1 applied in this case.
Held:
 The appeal should be dismissed.
 A court must consider the specific principles that govern the insanity defence in order to determine whether
s.16 is applicable. If that defence does not apply, the court can then consider whether the defence of
self-induced intoxication under s. 33.1 is applicable if it is appropriate to do so on the facts of the case.
Intoxication and insanity are two distinct legal concepts.
 An accused who wishes to successfully raise the insanity defence must meet the requirements of a
two-stage statutory test. The first stage involves characterizing the mental state of the accused. The key
issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the
legal sense at the time of the alleged events. The second stage of the defence provided for in s.16 concerns
the effects of the mental disorder. At this stage, it must be determined whether, owing to his or her mental
condition, the accused was incapable of knowing that the act or omission was wrong. In the instant case, it
is not in dispute that B was incapable of distinguishing right from wrong at the material time. Therefore,
the only issue in this appeal is whether the psychosis resulted from a “mental disorder” within the
meaning of s.16.
 Toxic psychosis does not always result from a “mental disorder”. In Stone, Bastarache J. proposed an
approach for distinguishing toxic psychoses that result from mental disorders from those that do not.
This approach is structured around two analytical tools, namely the internal cause factor and the
continuing danger factor, and certain policy considerations.
 In this case, the application of the first factor suggests that the drug-taking is an external cause. It seems
likely that the reaction of a normal person to taking drugs would indeed be to develop toxic
psychosis. This strongly suggests that B was not suffering from a mental disorder at the time he
committed the impugned acts. And the rapid appearance of psychotic symptoms generally indicates that
B’s delusions can be attributed to an external factor. In addition, the psychotic symptoms B experienced
began to diminish shortly after he took the drugs and continued to do so until disappearing completely.
 The Court of Appeal held that the disappearance of the symptoms showed that the symptoms of
toxic psychosis coincided with the duration of B’s intoxication. It could thus say that B suffered
from no disease of the mind before committing the crimes and once the effects of his drug-taking had
passed. There is no valid reason to depart from this conclusion.
 The second analytical tool, the continuing danger factor, is directly related to the need to ensure public
safety. In this case, there is no evidence indicating that B’s mental condition is inherently dangerous
in any way. Provided that B abstains from such drugs in the future, which he is capable of doing
voluntarily, it would seem that his mental condition poses no threat to public safety.
 In this context, B was not suffering from a “mental disorder” for the purposes of s.16 at the time he
committed the assault. A malfunctioning of the mind that results exclusively from self-induced
intoxication cannot be considered a disease of the mind in the legal sense, since it is not a product of
the individual’s inherent psychological makeup.
60
R. v. Sullivan 2020 ONCA 333

Facts:
 NOTE: this is two cases heard jointly (Sullivan and Chan)
 Sullivan and Chan, a young male, were tried and convicted of assault. Chan willingly took magic mushrooms,
had a bad trip and then stabbed his father to death thinking his father was the devil. Sullivan tried to kill
himself by overdosing on prescribed medication; he had a psychotic episode and stabbed his mother thinking
she was an alien.
 They were both in an automatic state (self-induced intoxication); however, they could NOT employ this as a
defence because of section 33.1 of the Criminal Code (see box below).
 NOTE: Automatism is defined as "a state of impaired consciousness, rather than unconsciousness, in which
an individual, though capable of action, has no voluntary control over that action": R v Stone, [1999] 2
SCR 290 at para 156. Involuntariness, as Appeal Justice Paciocco says, "is the essence of automatism."
 The issue in this case is whether section 33.1 was unconstitutional
Held:
[42] The trial judge was correct in finding s. 33.1 to be in prima facie violation of both ss. 7 and 11(d) of the
Charter. Section 33.1 violates each of the constitutional principles that were identified by Cory J. for the
majority in R. v. Daviault, [1994] 3 S.C.R. 63. In Daviault, the Supreme Court of Canada modified the
common law rule that eliminated the defence of extreme intoxication because the common law rule was in
breach of the Charter in three ways. I will describe these breaches as “the voluntariness breach”, “the improper
substitution breach”, and “the mens rea breach.” Although there has been some variation in articulation and
emphasis, virtually all the judges who have considered this issue have found that the legislation breaches the
Charter in one or more of these respects.
[50] The Daviault decision, with its notion that extreme intoxication could provide a pathway to exoneration
for sexual assault, created significant public outcry. Parliament responded by passing Bill C-72, An Act to
amend the Criminal Code (self-induced intoxication), 1st Sess, 35th Parl, 1995 (assented to 13 July 1995),
which added s. 33.1 to the Criminal Code…
…
[57] Generally, there is no place for internal balancing in defining the principles of fundamental justice. As
Lamer C.J. explained in R v. Swain, [1991] 1 S.C.R. 933, at p. 937, it is not appropriate to thwart the exercise
of the accused’s s. 7 rights by trying to bring societal interests into the principles of fundamental justice to limit
those rights. If societal interests should limit those rights, it is for the Crown to show this under s. 1. This was
the law when Daviault was decided and it remains the law, having recently been reaffirmed in Bedford, at
paras. 124-127, and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 78-80.
…
[85] Note that on this authoritative description of the elements of s. 33.1, there is no prescribed link between
the voluntary intoxication and the violent act. It does not matter how unintentional, non-wilful, unknowing,
or unforeseeable the interference with bodily integrity or threatening is. So long as these components
each occur, s. 33.1 operates. This is problematic because without a foreseeable risk arising from the
allegedly negligent act, negligence cannot be established, and without negligence, the minimum
constitutional standard of penal negligence cannot be met.
 Essentially, it was found that section 33.1 was a breach of the Charter. The Court moved on to determine
whether the law could be saved via the Oakes test, section 1. The Court found that the law (i.e. section
61
33.1) could not be saved. Other than having a pressing and substantial objective, the Court held the
rational connection test was not satisfied (paras 119 – 122), the minimal impairment test was not met
(paras 123 – 143) and overall proportionality was not accomplished (paras 144 – 160)
[161] I would conclude that the Crown has not demonstrated that s. 33.1 is a demonstrably justifiable limit on
the Charter rights at stake, in a free and democratic society. Accordingly, I would declare s. 33.1 to be of no
force or effect, pursuant to s. 52(1) of the Constitution Act, 1982.
 The Court held that Mr Chan should have been granted the opportunity to invoke the non-mental disorder
automatism defence; as such, his convictions were set aside, and a new trial was ordered.
 For Sullivan’s case, the Court stated at para 183 that since section 33.1 in Chan was deemed as no force
and effect, the trial judge erred in relying on s. 33.1. The Court allowed the appeal.
 In sum, section 33.1 legislated that an individual is guilty of a violent offence EVEN IF they were so heavily
intoxicated that they were unaware what they were doing and of their actions, AS LONG AS it was self-
induced intoxication (i.e. no one drugged the person without them knowing). This section has been active in
the Canadian legal system for a quarter of a century. However, the Ontario Court of Appeal has now
pronounced it of no force or effect (R v. Sullivan).
 NOTE: The Crown has stated it will appeal the decision to the Supreme Court (i.e. not over yet).
 Section 33.1 was declared unconstitutional for breaching two Charter sections – section 7 (right to life, liberty
and security of the person) AND section 11(d) (right to presumption of innocence).
 Ultimately, section 33.1 eradicated the voluntariness element from an offence; this is largely contrary to
fundamental justice.
 Since this provision, section 33.1, has been struck down, “the defence of non-mental disorder automatism is
now open to be used by defendants accused of violent crimes committed while in an automatic state as a
result of self-induced intoxication”.85
Criminal Code, Section 33.1
When defence not available

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced
intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused
departed markedly from the standard of care as described in subsection (2).
Criminal fault by reason of intoxication

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally
recognized in Canadian society and is thereby criminally at fault 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.
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.
17. Defence of the Person
85
R v. Sullivan, 2020 ONCA 333 (CanLII), CanLII Connects; Teddy Weinstein. https://www.canliiconnects.org/en/summaries/71864
62
 Defence of the person is a form of justification and is not akin to excuses; it does not concentrate on the
notion of ‘human frailties’ and instead will render the actions of the accused as ‘morally acceptable’
(Ryan86).
 This defence is codified. As of March 2013, the provisions of self-defence in the Criminal Code were
amended. The new section 34 is as follows:
Defence — use or threat of force87

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;
(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;
(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;
(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.
 A major change between the old and new law was the elimination of the “unlawful” assault requirement
 Joanne Klineberg, Senior Counsel, Department of Justice:
“The unlawful attack element is also removed because it causes a great deal of difficulty under the
current law. This element complicates trials unnecessarily by placing the focus on the early stages of
a confrontation. In asking the jury to determine who attacked whom first, the jury must look to which
actions constituted the first assault. This in turn requires the jury to determine what the accused
believed about the intentions of the other party. It's far preferable to focus attention on the thoughts
and actions of the defender at the time when they committed the actions they are charged with”. 88
 The notion of “reasonable belief” from the case of Lavallee (discussed below) still stands and is
applicable to the new Criminal Code provision (i.e. section 34(1) (a)).
R v Lavallee, [1990] 1 S.C.R. 852

 This case involved an abusive relationship. On the night of the killing, the battered woman was
threatened and beaten by her partner. She shot him while he was leaving the room in the back of the head.
 “The shooting occurred after an argument where the appellant had been physically abused and was
fearful for her life after being taunted with the threat that either she kills him or he would get her.” 89
 A highly experienced psychiatrist in the field of battered women syndrome testified the shooting was a
desperate final act of a woman who truly and genuinely believed she was going to be murdered that night.
86
R v Ryan, 2013 SCC 3, per LeBel and Cromwell JJ, at para [20].
87
88
House of Commons Standing Committee on Justice and Human Rights, March 6, 2012.
89
[1990] 1 S.C.R. 852
63
 The appellant was acquitted by the jury; however, this was overturned in the Court of Appeal.
Held:
 The Supreme Court of Canada held that expert evidence is usually necessary when stereotypes and myth
are present and inherent in the argument of the accused. The Court stated:
The long-standing recognition that psychiatric or psychological testimony also falls within the
realm of expert evidence is predicated on the realization that in some circumstances the
average person may not have sufficient knowledge of or experience with human behaviour
to draw an appropriate inference from the facts before him or her. An example may be
found in R. v. Lyons, [1987] 2 S.C.R. 309, in which this Court approved the use of psychiatric
testimony in dangerous offender applications. At p. 366, La Forest J. remarks that "psychiatric
evidence is clearly relevant to the issue whether a person is likely to behave in a certain way and,
indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay
persons".90
 The Court recognized that the relational context was important and that the mental state of the accused at
the moment she committed the crime cannot be comprehended without analyzing the overall picture
(holistic view) and cumulative impact of endured brutality (not just that single event at that point in time).
 Reliance on expert testimony was discussed in great detail, with the Court reaching the conclusion that
such testimony is critical in circumstances such as the case at bar.
 The Court declared that:
Where evidence exists that an accused is in a battering relationship, expert testimony can assist
the jury in determining whether the accused had a "reasonable" apprehension of death when
she acted by explaining the heightened sensitivity of a battered woman to her partner's acts.
Without such testimony I am skeptical that the average fact finder would be capable of
appreciating why her subjective fear may have been reasonable in the context of the
relationship. After all, the hypothetical "reasonable man" observing only the final incident may
have been unlikely to recognize the batterer's threat as potentially lethal.91
 However, all this being said, a caution was made: if the expert relies heavily on his or her experience, and
less on the actual facts of the case (i.e. making deductions and analyzing the general battered women
syndrome as opposed to relating to the facts and depending on the hard evidence), then the jury is to give
less weight to the expert’s opinion.
 Conclusion: Supreme Court restored acquittal.
R v Cormier, 2017 NBCA 10

 This case detailed the three criteria that must be fulfilled for self-defence (as per section 34 (1) (a) (b) (c))
 If the Crown can prove one of the following criteria is not present, then the defence of a person will fail.
i. Reasonable Belief
o The accused must REASONABLY BELIEVE the force or threat of force will be used against
them or another person (i.e. your child).
o In the past, there was a requirement of imminence (i.e. the other person is standing right beside
you; they are in the same room with a gun to your child, etc.).
o In the past, “unlawful” assault was required as well (i.e. the person is in the midst of hitting you
or is about to attack your beloved).
o NOW: imminence is NOT REQUIRED = a person does not need to be in the midst of the act
(i.e. just about to attack you) for self-defence is to be a viable defence.
90
[1990] 1 S.C.R. 852
91
Ibid.
64
o “Unlawful” assault and imminence were replaced with “reasonable perception” of force or
threat of force.
o i.e., he was at the presence of your home with the intention of murdering you.
ii. Defensive purpose
o This is straightforward. Your purpose (subjective) for retaliating to the threat must have been to
protect yourself or another individual.
o Under the previous (old) law, there was no express “defensive purpose” condition.
o The new law mandates that “only force which is actually used for the purpose of self-defence is
permitted”.
iii. Reasonable response
o This is the ‘reasonable in the circumstances” requirement.
o It used to be, as per the old law, that self-defence required “no more force than necessary” (i.e.
do not use more force than necessary to prevent them from harming you – you could dodge the
person, push them away with your body weight to resist harm).
o This requirement no longer stands. Now, the action is assessed for reasonableness in the
circumstances. The old law caused complications as it involved examining the exact amount or
degree of necessary or proportionate force in the moment (too technical)
o More flexibility in the approach was required and so, the new law replaced the “necessary” and
“proportionate” condition with “reasonable in the circumstances”.
o Professor Kent Roach, in an article titled A Preliminary Assessment of the New Self- Defence
and Defence of Property Provisions 2012 speaks to acting reasonable in the circumstances. In his
article, Roach states:
 In determining the reasonableness of the act done in self-defence, the trier of fact must
consider a number of specifically enumerated factors including in section 34(2)(a) “the
nature of the force or threat” to be avoided; whether the force “was imminent and whether
there were other means available to respond to it (section 34(2)(b)); whether weapons were
used or threatened (section 34(2)(d) and “the nature and proportionality of the person’s
response to the use or threat of force” (section 34(2)(h)). These factors can all be grouped
under the general heading of the proportionality and relative harm of the force resisted or
threatened and the force used by the accused. At the same time, the only absolute
requirement in section 34(1)(c) is that the act done must be reasonable in the circumstances.
There is no requirement that the force or threat faced by the accused must be imminent or
even that the accused’s response must be proportionate, though these are factors that must be
considered in determining the reasonableness of the act done. Similarly, there is no
requirement that the accused must retreat in all cases.92
92
A Preliminary Assessment of the New-Self Defence and Defence of Property Provisions, Kent Roach (2012) 16 C.C.L.R. 275-299.
65
R. v. Khill 2020 ONCA 151

Facts:
 Khill shot and killed Styres. He was charged with second degree murder.
 At trial, Khill testified that he shot Styres in self-defence, believing that Styres was armed and about to
shoot him.
Issue:
i) Did Mr. Khill act in self-defence, and
ii) If he did NOT, did he have the mens rea required for the criminal offence of murder
Held:
 The Court reviewed the criminal provision, section 34.
A: The Self-Defence Instructions

(i) Overview of s. 34
[38] Self-defence renders an act that would otherwise be criminal, not culpable. The nature of the
defence is evident in the jury instruction routinely used in murder cases. Jurors are told to first decide whether
the accused caused the victim’s death. If the jury is satisfied the accused caused the victim’s death, the jury
goes on to decide whether the accused acted unlawfully in causing the victim’s death. In answering this
question, the jury considers self-defence. An act done in self-defence is not unlawful and death caused by that
act is not culpable…
[39] Section 34 of the Criminal Code codifies the law of self-defence in Canada. The section also speaks of
the defence of others. Mr. Khill claimed to be protecting Ms. Benko in addition to defending himself when he
shot Mr. Styres. For the purposes of the appeal, however, I will focus exclusively on the self-defence
component of Mr. Khill’s defence. In the circumstances of this case, his defence stands or falls on his claim
that he shot Mr. Styres to save his own life.
[41] The present s.34 came into force on March 11, 2013. It aimed at simplifying the previous law by
replacing four different overlapping statutory definitions of self-defence with a single definition…
[42] Self-defence, as defined in s. 34(1), has three elements:

i. the accused must believe, on reasonable grounds, that force is being used or threatened against him:
s. 34(1)(a) [the trigger];
ii. the act of the accused said to constitute the offence must be done for the purpose of defending
himself: s. 34(1)(b) [the motive]; and
iii. the act said to constitute the offence must be reasonable in the circumstances: s. 34(1)(c) [the
response]
 The Court took into account the fact that Mr. Khill had military training. The Court stated that this was
relevant in assessing the reasonableness of his belief that the was about to be attacked and the
reasonableness of his response.
 At para [96]: …Mr. Khill’s military training fell easily within the scope of his “characteristics and
experiences”.
 The Court allowed the appeal, set aside the acquittal and ordered a new trial,
 At para. [97]: The cases decided under s.25 of the Criminal Code, which provides a defence for a
police officer’s use of deadly force in the execution of police duties, are instructive. Section 25
declares that deadly force is justifiable if the officer “believes on reasonable grounds that it is
necessary” to preserve his life. Like the previous self-defence provisions, s.25 takes a blended
subjective/objective approach to the question of whether the officer had reasonable grounds…
 The Court explained at para. 99 that in assessing the reasonableness of the accused’s act, the court has
to take into account “the relevant circumstances” of the accused. Obviously, Mr. Khill’s military
training was pertinent to the events that resulted in Mr. Styre’s death. “The training played a key role
in Mr. Khill’s belief that Mr. Styres was armed and about to shoot him and an equally crucial role in
his decision to respond with deadly force…”.
66
[100] …. Self-defence is a justificatory defence. An act done in self-defence is morally justifiable or at least
acceptable. Mr. Khill’s military training figured prominently in any assessment of the moral acceptability of his
conduct. Nothing in that training suggests that it should be discounted or eliminated from a community norm-
based assessment of the justifiability of Mr. Khill’s act. To the contrary, training as a military reservist is seen
as socially appropriate, if not laudable, conduct. To the extent that the availability of self-defence should mirror
public perceptions of the circumstances in which otherwise criminal conduct is morally acceptable, the morality
of Mr. Khill’s shooting of Mr. Styres is only fairly assessed having regard to the training he had received and
the effect it had on his state of mind and the actions he took.
[101] It is important to emphasize that, while the evidence of Mr. Khill’s military training is relevant to the
reasonableness of his belief and the act of shooting Mr. Styres, that evidence does not necessarily support Mr.
Khill’s contention that he acted in self-defence.… the military training evidence was a “two-edged sword”. In
some ways, the evidence suggested that Mr. Khill’s actions were inconsistent with his training. Certainly, the
trial Crown forcefully advanced that interpretation of the evidence.
 The main question was not if Mr. Khill, given his traits and experiences, saw his act as reasonable,
BUT INSTEAD, if the jury, with regard to his traits and experiences (military training) deemed the
shooting of Mr. Styres as reasonable.
 Because the definition of self-defence encompasses objective components, the jury must comprehend
that the availability of the defence cannot be determined solely by an assessment of Mr. Khill’s
credibility.
 The court allowed the appeal, set aside the acquittal and ordered a new trial.
18. Necessity
 This defence allows the accused’s conduct to be excused in the circumstances wherein the conditions of
the defence have been satisfied.
 Necessity is a ‘common law’ defence in Canadian law that has been preserved by section 8(3):
Common law principles continued93

(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.
Leading Case:
R v Latimer, [2001] 1 S.C.R. 3

 The accused’s daughter had a severe form of cerebral palsy. Her situation was extremely tragic, and she
experienced a great deal of suffering due to her condition.
 Evidence established that there was a surgery that could have improved her situation; however, the
accused and his wife refused the surgery believing that it was ‘mutilation’.
 The accused killed his daughter, claiming it was to end her suffering and that the killing was absolutely
necessary in the circumstances. He was charged with first degree murder.
Held:
 The Court held the defence of necessity is, in criminal law, narrowly applied and is of limited application.
 The Supreme Court set out the test that must be satisfied for an accused to successfully bring the defence
of necessity. There are three conditions that must be met:
1) There must be an urgent situation of “clear and imminent peril”. The danger must be unavoidable. 94
93
94
[2001] 1 S.C.R. 3, at para [29], the court cited Morgentaler v The Queen, [1976] 1 S.C.R. 616 at p. 678.
67
2) No reasonable legal alternative to the course of action (can’t avoid breaking the law) 95.
3) Proportionality between the harm imposed and the harm avoided96.
 The court held that the father did not personally face or encounter any peril/danger. Moreover, the
daughter’s pain and suffering did not constitute an emergency.
 Although the situation was tragic indeed, the father could have struggled on, taking care of his daughter.
 Further, the father could have approved of the surgery recommended by the doctors.
R v Perka, [1984], 2 SCR 232

 The peril or danger described in the first condition must be “near and avoidable”. At the very least, “the
situation must be so emergent, and the peril must be so pressing that normal human instincts cry out for
action and make a counsel of patience unreasonable”.97
19. Duress
 Duress as a defence is NOT a justification; rather, it is an excuse at law.
 The defence of Duress is contained in S. 17 of the Criminal Code and is also available at common law.
Compulsion by threats98
17 A person who commits an offence under compulsion by threats of immediate death or bodily harm from a
person who is present when the offence is committed is excused for committing the offence if the person
believes that the threats will be carried out and if the person is not a party to a conspiracy or association
whereby the person is subject to compulsion, but this section does not apply where the offence that is
committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a
weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage
taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily
harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).
 Section 17 is very limited in its application; it can only be applied in situations that adhere to the
provision conditions (i.e., immediate and present).
 This was largely problematic, because it meant that future threats did not apply. As such, the common
law addressed the rigidity of the provision.
The Charter and Common Law expanded the application of duress.

R v Hibbert, [1995] 2 SCR 973
 There is the statutory defence of duress under s.17 of the Criminal Code OR the Common Law defence
 The defence (Criminal Code and common law) cannot be used if you could have escaped the situation.
 Look to see if there was a “safe avenue of escape” = it is determined according to an objective standard
(“reasonable person in the circumstances”).
 If “safe avenue of escape” exists = no common law defence of duress or statutory defence of duress (BOTH
WILL FAIL)
 The common law defence of duress is applicable to both Parties and Principal Offenders
R v Ruzic, [2001] 1 SCR 687

 Section 17 in the Criminal Code is rigid (mandates the elements of immediacy and presence)
 At para [90], the court held: “The underinclusiveness of s. 17 infringes s.7 of the Charter, because the
95
Ibid, at para [30]
96
Ibid, at para [31], citing R v Perka [1984], 2 SCR 232, per Dickson J., at p. 252.
97
[1984] 2 SCR 232
98
68
immediacy and presence requirements exclude threats of future harm to the accused or to third
parties. It risks jeopardizing the liberty and security interests protected by the Charter, in violation of the
basic principles of fundamental justice. It has the potential of convicting persons who have not acted
voluntarily”.
 The common law expanded and broadened the applicability of duress and freed the defence from the
strictness of the statutory defence = “immediacy” and “presence”
 At para [94], Herold J. emphasized the elements of the common law defence:
One: acts solely as a result of threats of death, or serious bodily harm to herself or another person.
Two: the threats were of such gravity or seriousness that the accused believed that the threats
would be carried out.
Three: the threats were of such gravity that they might well have caused a reasonable person placed
in the same situation as the accused, to act in the same manner as she did. To put that another way,
would a person of reasonable firmness, sharing the characteristics of the accused, such as her age
and her background, have responded to the threats.
Finally: the accused must not have had an obvious safe avenue of escape.
NOTE: When to use section 17 or the Common Law:

 PRINCIPAL OFFENDER = Section 17 AND COMMON LAW
 PARTY to an offence = Only Common Law
 If the accused acted in a situation wherein the “person who made the threat” was not present = use
Common Law
 If the accused acted in a situation where there was no sign of immediacy but there was a temporal
connected = use Common Law (for both principal and party)
 If an accused is an aider or abetter, ONLY THE COMMON LAW IS OPEN
Leading Cases
R v Ryan, 2013 SCC 3
Facts:
 Ryan was the victim of an abusive relationship; her husband was violent, abusive and controlling.
 She hired a hitman to kill him, as she truly believed that her husband would seriously harm her and her
daughters or cause them death and that no safe avenue of escape existed, other than murdering him.
Held:
 She could not use the defence of duress. The Court held “the defence of duress is only available when a
person commits an offence while under compulsion of a threat made for the purpose of compelling him
or her to commit the offence. This was not Ryan’s situation”.99
 The Court clarified that if there is no compulsion, then the accused only has defence of the person as a
viable defence.
Takeaways from Ryan

 It is important to note that if she was able to use the defence of duress, she could not have used
it under section 17 of the Criminal Code, as there was no sense of immediacy
 If we apply the conditions as per Ruzic, a safe avenue of escape was available. She could have
called the police or took her daughters and left the home. This does not mean she does not
have a defence; it just means that the defence of duress is not available to her.
R v Aravena, 2015 ONCA 250

Facts:
99
(2013) SCC 3, as per McLachlin C.J. and LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ, scc-csc.lexum.com.
69
 This case involved a motorcycle gang, wherein an internal dispute broke out and eight members were
killed. Multiple members were charged with murder. These members invoked the defence of duress.
 The trial judge held Aravena, one of the gang members, had put himself, willingly, in circumstances
wherein he was aware he would be coerced or forced to execute criminal acts (i.e. he joined a gang, and
this is what was expected in this type of gang).
 Because he had placed himself in such a situation, Aravena was not entitled to the defence of duress.
 The decision was appealed to the Ontario Court of Appeal
Held:
 The Ontario Court of Appeal held that “the trial judge erred in law by holding that the common law
defence of duress was not available to persons charged as parties to a murder”.100
 “Choosing to aid in the murder of another will NOT ALWAYS amount to choosing an evil greater than
the evil threatened”.101 You cannot use defence of duress for murder (i.e. someone threatens you “kill
them or I will kill you!”). Why is your life more valuable than theirs?!
 However, Aravena found that the Common Law defence of duress was in fact available to an accused
who is charged as a party to a murder (not PRINCIPAL).
 I.e. you locked the door so the Principal could execute the killing; you tied the victim up (you did NOT
do the killing; you were a party to it; you alone can use the defence of duress; principal has no defence)
R. v. Willis, 2016 MBCA 113

Facts:
 Willis was receiving death threats over drug debt. The dealers who were threatening him also wanted a
young woman killed for unrelated reasons. To avoid threat, Willis took MDMA and stabbed the woman
30 times in parking lot, killing her.
 At trial for first degree murder, Willis attempted to put forward defence of duress based on claim that it
was situation of 'kill or be killed'.
 S.17 of Criminal Code prohibited reliance on defence of duress for principal or co-principal charged with
murder. Willis brought unsuccessful challenge to this law on basis of s. 7 of Canadian Charter of
Rights and Freedoms. He claimed that s.17 of the Criminal. Code violated section 7 of the Charter.
 He was convicted. He appealed
Held:
 The appeal was dismissed. The validity of section 17 was upheld.
 The Court held that the trial judge was accurate in deciding that murdering an innocent individual can
never satisfy the proportionality condition of moral involuntariness and therefore permit for the offence
of murder to be excused.
 The trial judge was not at fault by taking into consideration proportionality in assessing the
constitutionality of the statutory exclusion. The purpose of the law is to forbid balancing life against life.
 At paragraph 166: “…Professor Andrew Ashworth argues that if one individual could choose who lives
and who dies, that “would be to regard the victim’s rights as [morally and politically] less worthy than the
rights of those protected by the action taken, which represents a clear violation of the principle of
individual autonomy”.
20. Provocation
 The defence is ONLY applicable to murder!
 Provocation is a partial defence (i.e. the defence will reduce murder to manslaughter where all the
conditions of the defence are fulfilled). Typical Context: husband/wife cheating situation
Murder reduced to manslaughter102
100
(2015) ONCA 250
101
(2015) ONCA 250, as per Justice David Doherty, David Watt and Gladys Pardu.
102
70
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.
Leading Cases:
R v Tran, [2010] 3 S.C.R. 350

Facts:
 The accused and his wife were estranged. The accused was aware that she was seeing another man.
 Uninvited, the accused went into the home of his estranged wife and caught her and her partner in bed.
 He attacked both the wife and her boyfriend. The accused stabbed the other man repeatedly and killed
him. The accused invoked the defence of provocation.
Held:
 The Court held that provocation involves both an objective and subjective element (look at it from the
accused’s standpoint and the reasonable person)
 The objective question must be established first, that is, “once it is established that the wrongful act or
insult was sufficient to deprive an ordinary person of the power of self-control, the inquiry turns to a
consideration of the subjective element of the defence, which is whether the accused acted in response to
the provocation and on the sudden before there was time for his or her passion to cool”. 103
 Broken down visually into a two-step test:
1. Would the wrongful act deprive an ordinary person of self-control? (objective)
2. Did the accused have a chance to cool down before reacting to the wrongful act? (subjective)
 But what is the standard of an “ordinary person”? What is considered the ‘ordinary’ individual?
 The court answered this question by stating that:
The ordinary person standard is informed by contemporary norms of behaviour including
fundamental values such as commitment to equality provided for in the Canadian Charter of
Rights and Freedoms. The accused must have a justifiable sense of being wronged. A central
concern with the objective standard has been the extent to which the accused’s own personal
characteristics and circumstances should be considered.104
R. v Simard, 2019 BCSC 53

Facts:
103
2010 SCC 58, [2010] 3 S.C.R. 350, Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
104
2010 SCC 58, [2010] 3 S.C.R. 350, Per Charron J., at para [30]
71
 Simard and Larocque were in an “on again, off again” relationship that began in 2014.
 Two years later, he killed Larocque and another individual (Turner) and was charged with two counts of
second-degree murder.
 Simard brought a constitutional challenge to the 2015 provocation amendments, contending it infringed s.
7 of the Charter. (para 1)
 Pre-amendment, the Code defined provocation as: “A wrongful act or an insult 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 his passion to cool.”
(para 3, emphasis added)
 Post-amendment, s. 232(2) of the Code articulated: “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.” (para 3, emphasis by Thompson J.)
 The amendment requires conduct be “serious criminal behaviour” before it might amount to provocation.
Under the amended provision, Simard could not argue provocation – neither Larocque nor Turner
committed an offence under the Code, much less an offence punishable by 5 or more years’ incarceration.
(para 4)
 The offence was found to be a violation of section 7 of the Charter.
 Mr. Simard argued the appropriate remedy was to sever the portion of s. 232(2) that read “that would
constitute an indictable offence under this Act that is punishable by five or more years of imprisonment
and”, or, in the alternative, that s. 232(2) in its entirety be declared of no force or effect
Held:
 The Could held that the suitable remedy was severance, as submitted by Mr. Simard.
 After severance, s. 232(2) provides that “Conduct of the victim 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.” (para 75)
R v Land 2019 ONCA 39

Facts:
 Toby Land was convicted of second-degree murder in the brutal, alcohol-fueled killing of one of his
roommates, Dominic Doyon. Mr. Doyon was bludgeoned repeatedly with a hammer, beaten with a pair
of crutches and stabbed repeatedly with a samurai sword (para. 1)
 At trial, Mr. Land claimed he was ‘provoked’ into participating in Mr. Doyon’s killing. The trial judge
refused to leave this defence with the jury.
 Mr. Land alleged that this was an error and that there was an air of reality to his defence which mandated
the judge to welcome the jury to take into account if the killing was provoked, within the meaning of
section 232 of the Criminal Code (para. 3).
Held:
 At paragraph 54, the Court found that the trial judge correctly identified the four components of the
provocation defence: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be
sufficient to deprive an ordinary person of the power of self-control; (3) the accused must have acted in
response to the provocation; and (4) the accused must have acted on the sudden before there was time for
his or her passion to cool. The first two components constitute the “two-fold” objective element
described in R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 25. The latter two components
comprise the “two-fold” subjective element of the defence.
72
 At paragraph 60, the Court, however, found that the trial judge did err in law when she concluded that
because Mr. Land started the confrontation while armed, expecting Mr. Doyon could become violent,
there could be no air of reality to his defence. The policy position the trial judge used to support that
conclusion – “that provocation should not be available in such circumstances” – was erroneous.
 This case was a situation of “self-induced provocation”. What does this mean exactly? Cairney at paras.
17, 42 explained this notion: a case where the provocative conduct of the deceased came about as a result
of the accused initiating an aggressive confrontation.
 The Supreme Court made obvious that just because the accused induced the acts or words said to
constitute provocation, this DOES NOT EXCLUDE the defence from being raised.
 At paragraph 61, the Court held that what is banned entirely by s. 232(3) is “manufactured” provocation –
“inciting the victim to engage in a wrongful act or insult in order to generate an excuse for killing him”
(Cairney, at para. 31). However, outside of this, “there is no absolute rule that a person who instigates
a confrontation cannot rely on the defence of provocation” (Cairney, para. 56).
 The issue will always be one of context (Cairney, at para. 46).
 The fact that an accused has incited the provocative act is pertinent to both the objective and subjective
considerations that constitute the defence.
 At para. [62]: The instigating role played by the accused may assist in determining whether the accused
actually, subjectively expected the victim’s response: Cairney, at para. 43. The instigating role played by
the accused may also affect the objective inquiry into whether the wrongful act or insult relied upon as
the provocation “fell within a range of reasonably predictable reactions”: Cairney, at para. 44.
 At para [67]: The trial judge did not apply the contextual analysis required. She did not closely examine
the impact in this case that Mr. Land’s aggression had on the subjective and objective components of the
defence. Instead, she accepted, at the Crown’s prompting, the general proposition that the provocation
defence is not available in self-induced provocation cases where the accused person arms himself or
herself in the expectation that there will be a “threatening response”.
 For the trial judge, the fact Mr. Land expected violence sufficed to annul the defence.
 Takeaway: just because the accused induces the provocative act, does not mean the defence of
provocation is not available.
 The Court held that Mr. Land’s defence of provocation should have been left with the jury (para. 103).
 The Court allowed Mr. Land’s appeal and ordered a new trial.
21. Entrapment
 This defence is a common law defence that will result in a stay of proceedings in situations where the
parameters of the defence are met.
 If you are in a circumstance where a state agent (i.e. police officer) gives you an opportunity to commit a
crime (i.e. asks you to sell him illegal drugs) without a reasonable suspicion that you were involved in
this criminal activity = could be entrapment.
 Example: you are at the mall, minding your own business, and a police officer approaches you and starts
questioning you as to whether you have any drugs on your person. He has no reason (suspicion) to do so.
 If you are in a circumstance where the state agent compelled you to commit the crime, you can argue
entrapment, even if, in this situation, the state agent DID have a reasonable suspicion or made a bona fide
inquiry into the crime (R v Mack).
Leading Cases:
R v Mack, [1988] 2 S.C.R. 903

Facts:
73
 The appellant, Mack, argued entrapment. Over a period of six months, he had insistently rejected the
approaches of a police informer. It was only after continued persistence, threats and the persuasion of a
large cash sum, that the appellant sold the police inform drugs.
Held:
 The Court held: There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to
commit an offence without reasonable suspicion or acting mala fides, as explained earlier or, (b) having a
reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity
and induce the commission of an offence.105
 The Court declared that an objective examination and approach is required in terms of the conduct and
actions of the police and their agents.
 The element of “reasonable suspicion or a bona fide inquiry” is absolutely critical; the law does not want
to risk or jeopardize the potential that a police will target individuals who are not involved in criminal
activity. It is not proper for them to randomly or on a whim test the virtue of humans.
 The Court provided factors that may be taken into account when assessing whether the police have gone
further than simply providing an opportunity:
FACTORS to consider if the police have gone further than providing an opportunity (Mack):
1. Type of crime investigated and availability of other techniques for police detection of its commission. If
other techniques available = entrapment more viable
2. Whether an average person, with both strengths and weaknesses, in the position of the accused would be
induced into the commission of a crime. The more susceptible the individual = entrapment more viable
3. The persistence and number of attempts made by the police before the accused agreed to committing the
offence. The more persistence and number of attempts = entrapment more viable
4. The type of inducement used by the police including deceit, fraud, trickery or reward. The more immoral
the inducement by the police officer = entrapment more viable
5. The timing of the police conduct, in particular whether the police have instigated the offence or became
involved in ongoing criminal activity. If the police were not involved in the ongoing criminal activity/do not
have a background in the matter or knowledge = entrapment more viable
6. Whether the police conduct involves an exploitation of human characteristics such as the emotions of
compassion, sympathy and friendship. Example: Induce poor woman to steal food for her family.
7. Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap
or a substance addiction.
8. The proportionality between the police involvement, as compared to the accused, including an assessment
of the degree of harm caused or risked by the police, as compared to the accused, and the commission of
any illegal acts by the police themselves. The more illegal acts the police commit= entrap more viable.
9. Existence of any threats, implied or express, made to the accused by the police or their agents. If police used
threats = entrapment more viable.
10. Whether the police conduct is directed at undermining other constitutional values. If police undermine
constitutional values (i.e. discrimination) = entrapment more viable.
105
[1988] 2 S.C.R. 903, at para [119]
74
R v Barnes, [1991] 1 S.C.R. 449

Facts:
 The Police were executing a “buy-and-bust” operation at the mall. In this type of operation, police who
are undercover endeavour to purchase illegal drugs from citizens who seem to be ‘inclined to sell drugs’.
 The appellant, in the specific words of the police officer, was “dressed scruffy”, was in the mall region
when approached on a “hunch” by an undercover cop.106
 The undercover police inquired as to whether the appellant had any marijuana.
 Notwithstanding the negative response, the police persistently asked the appellant until such a point that
the appellant agreed to sell him a miniscule portion of ‘cannabis resin’.
 The trial judge found the police officer had engaged in “random virtue testing”.107
Held:
 It was held by the Supreme Court that:
The police may only present the opportunity to commit a particular crime to an individual who arouses a
suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule
arises when the police undertake a bona fide investigation directed at an area where it is reasonably
suspected that criminal activity is occurring. When such a location is defined with sufficient
precision, the police may present any person associated with the area with the opportunity to
commit the particular offence. The notion of being "associated" with a particular area for these
purposes does not require more than being present in the area. Such randomness is permissible
within the scope of a bona fide inquiry.108
 This was a key finding in this area of law – the accused only need be PRESENT in the area/specific location.
Random-virtue testing TEST

 The court went on to clarify random virtue-testing ONLY arises when a police officer presents a person
with the opportunity to commit an offence WITHOUT a reasonable suspicion that109:
a) The person is already engaged in the particular criminal activity, OR

b) The physical location with which the person is associated is a place where the particular
criminal activity is likely occurring.
 As such, it was held that the officer DID have a “reasonable suspicion”. The factors stated, nonetheless, such
as his “scruffy dress”, were NOT sufficient to substantiate the “reasonable suspicion” element.
 It was the location wherein the appellant was present that substantiated the reasonable suspicion. Part (b) of
the test above was fulfilled.
 The Court concluded that “the appellant, when he was in the Granville Mall, was in a location where it was
reasonably believed that drug-related crimes were occurring. The officer’s conduct was therefore justified”.110
It would be unreasonable to target specific pockets of the mall.
R v Ahmad 2020 SCC 11

Facts:
106
[1991] 1 S.C.R. 449.
107
[1991] 1 S.C.R. 449.
108
[1991] 1 S.C.R. 449, Supreme Court referencing Court of Appeal at p. 372
109
[1991] 1 S.C.R. 449, Supreme Court referencing Court of Appeal at p. 372
110
Ibid.
75
 The police got an unsubstantiated tip that a phone number was associated with a suspected dial-a-dope
operation. In these operations, drug traffickers use cell phones to connect with their clients and sell them
illicit drugs.
 Officers called the numbers and, in brief conversations with the men who answered, requested drugs and
arranged meetings to complete the transactions.
 A and W were later arrested and charged with drug-related offences. At trial, each accused claimed that
the proceedings should be stayed on the basis of entrapment.
 In A’s case, the trial judge entered convictions, concluding that the accused was not entrapped, as the
police had not offered him an opportunity to traffic drugs until they had sufficiently corroborated the tip
in the course of the conversation.
 In W’s case, the trial judge found that the accused was entrapped because the police provided him an
opportunity to sell cocaine before forming a reasonable suspicion that he was engaged in drug trafficking.
 The Court of Appeal held that entrapment was not made out for either A or W. A majority of the court
found that where reasonable suspicion relates to the phone number itself, the police can provide
opportunities to commit offences to a person associated with that phone number, even if they do not also
have a reasonable suspicion about the person who answers the phone. Accordingly, the Court of Appeal
dismissed A’s appeal but allowed the Crown’s appeal in W’s case, entering convictions.
Held:
 The Court held the appeal by A should be dismissed.
 The entrapment framework set out in R. v. Mack and R. v. Barnes has proved workable for decades in a
variety of contexts. It has stood the test of time. There is no reason to alter the carefully calibrated
balance struck in these cases in investigations of suspected dial-a-dope operations.
 Applying the Court’s entrapment framework and in particular its reasonable suspicion standard, the
decision of each trial judge should be affirmed. While A was not entrapped, W was.
 The Court’s decision in Mack settled the law of entrapment in Canada. It set out two alternative
branches, either of which is sufficient to ground an accused’s claim of entrapment and justify a stay
of proceedings.
 On the first branch, at issue in these appeals, the police may present an opportunity to commit a crime
only upon forming reasonable suspicion that either a specific person is engaged in criminal activity
or people are carrying out criminal activity at a specific location, sometimes referred to as a bona
fide inquiry. The offer of an opportunity to commit a crime must always be based upon a
reasonable suspicion of particular criminal activity, whether by a person, in a place defined with
sufficient precision, or a combination of both.
 An individual phone number can qualify as a place over which police may form reasonable suspicion.
However, a phone number is not the same as a public physical location. A phone is a means of private
communication between persons, and calling a number, or exchanging text messages, is an inherently
private activity. It is therefore important to carefully delineate and tightly circumscribe virtual
locations in which police can provide the opportunity to commit a crime.
 The virtual space must be defined with sufficient precision in order to ground reasonable suspicion.
 Police cannot offer a person who answers the phone the opportunity to commit an offence without having
formed reasonable suspicion that the person using that phone, or that phone number, is engaged in
criminal activity.
 In A’s case, the police had a reasonable suspicion of drug trafficking before providing the opportunity to
commit an offence and therefore A was not entrapped
 Unlike in A’s case, there was nothing in W’s responses to suggest that the phone number was being used
to sell drugs before the officer provided the opportunity to traffic. Therefore, W was entrapped.
76
22. Error of Law

 Generally, ignorance of the law is NOT AN EXCUSE (not a legal defence)
 Section 19 of the Criminal Code addresses ‘ignorance of the law’: Ignorance of the law by a person who
commits an offence is not an excuse for committing that offence.
 What does ignorance of the law actually mean? It means “want of knowledge of those laws which a
person has a duty to know and which everyman is presumed to know”.111
 There is an exception to ‘ignorance of the law’ and that is: “officially induced error”. This is a common
law defence that the Supreme Court of Canada formulated.
Leading Cases:
Regina v. Howson, 1966 CanLII 285 (ON CA)

Facts:
 The informant parked his car on a private parking lot without permission. The accused towed the
informant’s car from the lot to his company’s premises where it remained until the informant located it
and demanded its return.
 The accused refused to return the car until he was paid a towing and storage fee. The informant
eventually paid, recovered his vehicle and then charged the accused with theft.
Held:
 Before the accused can be said to have committed theft, as per s.269 of the Criminal Code, it must be
demonstrated that he acted ‘without colour of right’.
 Though, on the facts, there was no right in law to withhold the car, the Court could not be satisfied that
the accused did not honestly believe that he had a right either in law or in fact to remove the car and
retain it there until the informant paid the towing and storage fees.
 Although the accused may have been mistaken about his right to retain the car, the word "right" must be
construed broadly so that colour of right applies equally to belief in matters of fact or of law justifying the
retention. The fact that the superintendent or the owner of the parking lot had no right in law to authorize
the accused to remove or retain the car was irrelevant if the accused honestly believed that the authority
given by the parking lot superintendent entitled him to demand the payment before yielding up the car to
its owner. Laskin J.A.: “…the accused was entitled to an acquittal on the ground that it had not been
shown that he acted without colour of right.
R v Jones, [1991] 3 SCR 794

Facts:
 “The appellants were charged with unlawfully conducting a bingo contrary to section 206(1)(d) of the
Criminal Code”.112
 They had been advised and informed by province representatives, inclusive of the Ontario Provincial
Police, that the Criminal Code forbids lottery schemes, “other than those conducted under the auspices of
a provincial license”.113
Issue:
 The main question for the Court was whether the appellants were entitled to an acquittal by reason of
colour of right. The appellants sincerely believe that because the activities (i.e. bingo) were executed on a
reserve, it was not subject to the Canadian gaming laws.
Held:
111
Legal Definitions website.
112
[1991] 3 SCR 794, scc-csc.lexum.com
113
Ibid.
77
 The Court held that the defence of colour of right is not applicable to section 206(1)(d) charges.
 The appellants’ mistake was one of law, NOT of fact.
 They mistakenly believed the law didn’t apply to them because they were operating on Indian reserves.
 A mistake about the law is no defence to a charge of breaching it.
Levis (City) v Tetreault, [2006] 1 SCR 420

Facts:
 Two respondents, the company and Tereault.
 The company had relied on an error committed by SAAQ; resulted in them not receiving renewal notice
and consequently not paying the registration fee for a vehicle.
 Tetrault was charged with operating a vehicle without a valid driver’s licence. He argued the defence of
due diligence. He said that he was not cognizant that the date on his license was in fact the expiry date.
 Instead, he thought it was the date that a payment needed to be paid (i.e. he made an error).
Held:
 The court held that the offence fell under strict liability offences.
 Section 93.1 relating to driver’s licences does not impose the burden of establishing mens rea (so not true
crime) and the legislature’s intention was clearly not to create an absolute liability offence.
 The court stated, “Absent a clear indication of the legislature’s intent, the offence must be categorized as
one of strict liability”.
Officially Induced Error

 At para [20], the Supreme Court explained ignorance of the law IS NOT accepted in criminal law in
Canada as a devise or tool to eradicate or alleviate criminal liability (s. 19 of the Criminal Code).
 Nonetheless, the court proceeded to explain that “the inflexibility of this rule is cause for concern
where the error in law of the accused arises out of an error of an authorized representative of the
state and the state then demands, through other officials, that the criminal law be applied strictly to
punish the conduct of the accused”.114
 The court established an exception to ignorance of the law = officially induced error.
 Lamer CJ. expounded the conditions of the defence – officially induced error – under which it will be
available115.
The accused can claim “officially induced error” if they prove all of the following conditions:
1. That an error of law or of mixed law and fact was made;
2. The person who committed the act considered the legal consequences of their actions;
3. The advice given to the accused came from an appropriate official;
4. The advice was reasonable;
5. The advice erroneous;
6. The person relied on the advice in committing the act
R. v. MacDonald, 2014 SCC 3

Facts:
 M was caught with a loaded gun. He was licensed to possess and transport the handgun in Alberta, but
not Nova Scotia as he believed he was.
 At trial, the judge concluded that M’s possession of the gun was unauthorized. M appealed.
Held:
 The Court of Appeal erred in requiring the Crown to prove that M knew that his possession and
acquisition licence and authorization to transport the firearm did not extend to his Halifax home.
114
[2006] 1 SCR 420, para [22]
115
[2006] 1 SCR 420, Per Lamer C.J., para [26]
78
 That requirement is inconsistent with the rule, codified in s. 19 of the Code, that ignorance of the law is
no excuse.
 Section 95 is a mens rea offence but does not include knowledge of unauthorized possession. Rather,
knowledge of possession, together with intention to possess in a particular place, is enough.
 In this case, M’s subjective belief that he could possess the firearm in his Halifax home is a mistake of
law and that mistake is no defence.
NOTE: MacDonald was largely about a Charter section 8 infringement; however only the relevant facts of the
case for this particular section were discussed. Later in the notes, the case in the context of a Charter violation will
be discussed.
THE ADVERSARIAL PROCEEDING
23. The Adversarial Process

 A trial is a chance for the Crown to prove, beyond a reasonable doubt (unlike civil law, which is on the
balance of probabilities), the specific allegation made in the charge.
 There is an important point worth mentioned here, that is, the difference been being ‘charged’ and being
‘convicted’. It should not be assumed everyone comprehends the distinction.
 When an individual is charged, they are, by virtue of the law, innocent (until proven guilty of course).
 When a person is convicted, that person has either made a guilty plea OR they have been found guilty
after their trial. In the latter circumstance, this means that the Crown has proven, beyond a reasonable
doubt, that the accused is in fact guilty of the particular offence charged.
 Example: you are walking on the street and a drug dealer slips drugs onto your person, without your
knowledge. Five minutes later you are stopped by two police officers who catch a glimpse of a baggie
hanging out of your purse. It appears there is an illegal substance in the baggie. They search you and
discover multiple illegal drugs in the baggie. The police charge you possession and trafficking. At this
point, you are considered innocent, as you have just been charged. You will have to attend court (a trial)
and the Crown will have to prove you are guilty beyond a reasonable doubt, in order for you to be
convicted of possession and trafficking.
Plea of Guilt
 An accused may plead guilty (an admission of criminal liability) to a criminal charge, which will result in
a conviction and the surrendering of a trial (i.e. forfeit of chance to be proven innocent).
 “A plea of guilt amounts to an admission by the accused of performing the physical actions that make up
the offence, accompanied by the necessary mental state. It is a waiver of the right to a trial”. 116
 Coughlan explains that in order for a court to accept a plea of guilty in the first place, it must be satisfied
that the accused is making the plea voluntarily and comprehends three important components: “(i) that
the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the
plea, and (iii) that the court is not bound by any agreement made between the accused and the
prosecutor”.117
 There was once a time when the Court did not have a duty to question a plea but should inquire into the
plea if there was any reason or justification to doubt or question that the accused comprehended its effect
(section 606 (1.1) (a) and (b)). Now, however, Bill C-75 changed this and added the requirement that the
court must additionally be satisfied that the facts support the charge. Coughlan comments that even still,
these conditions could be viewed as directory instead of compulsory, as the Criminal Code also states that
a failure to fully inquire does not impact the validity of the plea.
 R v Senior: the procedure by which an individual admits criminal liability involves three steps 118:
116
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 506; R v Adgey [1975] 2 SCR 426
117
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 506
118
[1997] 2 SCR 288
79
o A guilty plea is entered; there is acceptance of the plea; and the conviction is recorded.
 R v Denis: If an accused denies guilt, then a guilty plea should NOT be entered 119 (s. 606 (2)).
 Take an example wherein an individual believes that if he pleads guilty, he will receive a lesser sentence,
and that he does not stand a chance in trial in terms of winning his case. This individual may inform his
lawyer as much and insist his lawyer enter a guilty plea on his behalf because strategically the accused
may be convinced that this is a better move strategically. If the accused denies guilt or does not admit the
necessary actus reus and mens rea elements of the crime at hand, then the lawyer CANNOT enter a guilty
plea.
Pleas permitted120
606 (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by
this Part and no others.
Conditions for accepting guilty plea

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused
(a) is making the plea voluntarily; and
(b) understands
(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and the prosecutor.
Validity of plea
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not
affect the validity of the plea.
Refusal to plead
(2) Where an accused refuses to plead or does not answer directly, the court shall order the clerk of the court to
enter a plea of not guilty.
 In order for a guilty plea to be valid, it must obtain the three conditions121: i) It must be voluntary, ii) It
must be unequivocal, and iii) The accused pleading guilty must be informed as to the nature of the
allegations and ramifications of a plea.
 In term of the final point, a guilty plea is “informed” where the accused has been offered and given
disclosure of the relevant facts of the case against him.122 Further to the final point, in terms of
consequences, the accused has a right to know the immediate ramifications and consequences of the
guilty plea.123
 What if an accused refuses to plead guilty? What is the judge to do? This entails a basic response. The
judge is to enter a plea of not guilty in such a circumstance (section 606(2)).
 Can an accused withdraw a guilty plea? Adgey held that if “there are valid grounds for his being
permitted to do so”, a guilty plea can be withdrawn. However, there has to be some unique circumstance
or situation that demonstrates or suggests that the guilty plea should not be accepted. For instance, if the
accused was pressured into pleading guilty by his lawyer, then this would cause the court to question the
validity and legitimacy of the plea and in turn likely allow its withdrawal.
 Law Society of Ontario, Rules of Professional Conduct, addresses agreement on guilty plea. 124
 As per the Rules of Professional Conduct, Chapter 5.1 – The Lawyer as Advocate:
119
2005 QCCA 1089, para [38].
120
121
R v Hector, 2000 (ONCA) per Finalyson JA; R v Lyons, 1987 (SCC), [1987] 2 SCR 309 per La Forest J at para [371]
122
R v Peters, 2014 BCSC 983 per Romilly J at para [11].
123
R v Hoang, 2003 ABCA 251 per Wittmann JA at para [36].
124
Law Society of Ontario, lso.ca. Complete Rules of Professional Conduct.
80
Agreement on Guilty Plea

5.1-7 Before a charge is laid or at any time after a charge is laid, a lawyer for an accused or potential accused
may discuss with the prosecutor the possible disposition of the case, unless the client instructs otherwise.
5.1-8 A lawyer for an accused or potential accused may enter into an agreement with the prosecutor about a
guilty plea if, following investigation,
(a) the lawyer advises the client about the prospects for an acquittal or finding of guilt;
(b) the lawyer advises the client of the implications and possible consequences of a guilty plea and
particularly of the sentencing authority and discretion of the court, including the fact that the court is
not bound by any agreement about a guilty plea;
(c) the client voluntarily is prepared to admit the necessary factual and mental elements of the offence
charged; and
(d) the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea.
The Order of Trial
Trial Procedures
o Part XIX of the Criminal Code addresses Indictable Offences, trial without a jury.
o Part XX addresses procedure in jury trials and general provisions.
o Part XXVII deals with summary convictions
o In Ontario, criminal trials are held either in the lower Provincial Court or in the Superior Court of Justice.
The determination on which court the trial is held in depends upon the offence which the accused has
been charged with.
o Typically, in the Superior Court of Justice, the more serious offences are held, and this is done before a
judge alone, or a judge and a jury together.
o A preliminary hearing will be granted if the trial is held in the Superior Court of Justice.
o A preliminary hearing is held by the Court to establish if there is enough evidence in order to send the
case to trial. The purpose of the preliminary hearing is to ensure frivolous claims are not brought to court.
It essentially is aligned with the notion of public policy and the floodgates argument. The court wants to
ensure that its time is being spent wisely and on meritorious grounds.
o At this hearing, the evidence is examined to determine if a trial should actually happen. Logically, there is
no point spending the resources and time on conducting a trial if beforehand, it was obvious that the
Crown could not prove guilty beyond a reasonable doubt due to a lack of evidence or very transparent
holes in the Crown’s theory.
o This hearing is held only for indictable offences.
o The preliminary hearing is known as the “trial before trial”. There is no decision as to whether the
accused is guilty or not, but rather it is a hearing to decide if a trial will happen.
Summary Offences Indictable Offences

o Summary offences are less serious o The most serious criminal offences
o Summary cases are heard in provincial court. o Include murders, terrorism, treason, etc.
o Unless a person is found in the midst of o The accused who is charged with an indictable
committing the criminal act, an individual offence has the right to select their mode of trial
charged with a summary offence is not (judge alone, provincial court, no preliminary
typically arrested. hearing; judge alone, Superior Court with or without
o Examples include solicitation of prostitution, preliminary hearing; jury trial with or without
being found in a bawdy house, etc. preliminary hearing).
o A one-year limitation period applies to all o No limitation period exists for indictable offences
summary conviction offences or if the o Appeals for these offences are heard by the Court of
81
Crown elects to proceed summarily Appeal for the Province where the case was heard.
Commencement of Trial and Opening Statements

 At the commencement of trial, the charges are read out in court. This is denoted the ‘arraignment’.
 At this point, the accused can enter a guilty plea. If they select to enter a plea, not guilty, then the Crown
must prove, beyond a reasonable doubt that the accused is in fact guilty.
 The Crown and defence both have the opportunity to present their case at trial.
 In terms of the opening statements at trial, the Crown typically presents its case first. As a matter of
practice, the Crown “can begin with an opening statement to the jury explaining its theory of the case and
the evidence to be called. However, this opening statement does not irrevocably commit the Crown to
adopting a particular approach to the trial.”125
 In presenting its case, the Crown will elucidate and expound its theory and the evidence that it will call.
Nonetheless, the Crown’s theory can alter over the duration and course of the trial in response to
changing circumstances.
 Usually, “the defense is not entitled to make an opening address to the jury immediately following the
Crown’s opening remarks, but instead makes an opening statement after the close of the Crown’s case.
However, a. trial judge has discretion to let the accused make an opening statement immediately
following the Crown’s opening”.126
Presentation of the Crown Case

 After the opening statement(s) are complete, Crown counsel is mandated to present evidence that proves
the charges against the accused.
 Evidence must be taken under oath with the accused being present.
 In principle, the Crown has to prove every basic element of the offence; nonetheless, the accused is can
concede and agree to various components of the case of the Crown. This is typically done via an “agreed-
upon statement of facts, but not necessarily”.127
 The Crown is granted a great deal of discretion in terms of how to present its case. This is aligned with
the adversarial nature of the process.
Presentation of the Defence Case

 After the Crown closes its case, the defence presents its evidence. However, this is only if he elects to do
so. It is open to the accused to apply for a directed verdict of acquittal (discussed below).
 In the event that the Crown fails to offer sufficient evidence to prove guilt beyond a reasonable doubt,
then, a directed verdict can be requested. However, if the Crown has presented enough evidence, the
defence will be required to present evidence to defend the charges.
 An accused is not mandated to testify at his or her own trial. However, if they elect to testify, they can
then be cross-examined by the Crown.
 If an accused refuses to testify, this cannot be held against them (neither the judge nor Crown may
comment on the refusal). As per the Charter, the right to remain silent is guaranteed.
Dismissing Charges/Directed Verdict

 The defence has the right (comes from the common law) to request the judge to dismiss the charges in the
circumstances where the Crown does not present sufficient evidence to prove guilty.
125
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 513.
126
127
Ibid, page 514.
82
 If this situation occurs, and the judge agrees to dismiss the charges, the defence does not need to proceed
with presenting evidence. The case is dismissed.
 This is also referred to as a directed verdict – a directed verdict is “made at the closing of the Crown’s
case but before the defence is to call any evidence, requesting the dismissal of the case on the basis that
the essential elements of the offence are NOT made out”.128
Reopening the Crown’s Case

 Once the defence has finished calling all of its evidence, then the trial will proceed to closing arguments.
 The Crown is anticipated to present all of its evidence prior to the defence being called upon.
 “Splitting the case – that is, leading some of the Crown’s evidence, after the accused’s case has been
presented – has been prohibited from the earliest days of our criminal law for a number of reasons,
including the accused is entitled to know the full case to meet before deciding whether to remain silent or
take the stand” (John v The Queen, [1985] 2 SCR 476 at 480-481).129
 In rare circumstances, the Crown can apply to “reopen its case” and then call further evidence. This is at
the discretion of the trial judge.
 What is the test for deciding whether to permit the Crown to reopen its case? The chief principle is if the
accused will be prejudiced in making a defence (R v MBP, [1994] 1 SCR 555).
 The evidence being presented when the Crown applies to reopen its case must be new evidence in that the
Crown could not have been foreseen the evidence and it is in the best interests of justice. Nonetheless,
being new is not adequate alone. The Court has found that the type of confined circumstances in which
such evidence will be allowed are “where the defence directly or indirectly contributed to the Crown’s
failure to lead the evidence, or where the Crown has make a mistake or omission on a non-controversial
issue that was purely formal or technical and had nothing to do with the substance of the case”. 130
Rebuttal Evidence
 Similar to the reopening the Crown’s case is the potential of the Crown leading rebuttal evidence.
 Rebuttal evidence is allowed “where the defence has raised some new matter or defence which the Crown
has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have
anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier
evidence adduced in the Crown’s case which could have been brought before the defence was made” (R v
Krause, [1986] 2 SCR 466).
Reopening the Defence Case

 It is also available for the defence to apply to reopen its case. However, clearly the time constraint on
when this can be done is more limited in nature as the accused does not present evidence until the case of
the Crown is done.
 The Court has discretion in deciding whether the defence should be allowed to reopen its case. In the case
of R v Scott, “one co-accused sought a bench warrant for a witness who had not responded to a subpoena.
Being unsuccessful in the application, the defence entered no evidence and, along with the Crown, made
final submissions. The witness then appeared, and the accused applied to reopen his case”. 131
Testifying
 Some witnesses are nervous and overwhelmed by the idea of giving evidence in court.
128
R v Litchfield, 1993 (SCC) [1993] 4 SCR 333; R v Rowbotham; R v Roblin, 1994 (SCC) [1994] 2 SCR 463 at p. 467
129
130
131
Ibid, page 523.
83
 Testifying involves ‘taking the stand’ (i.e. move to the front of the courtroom near the judge and the clerk
and swear to tell the truth).
 Witnesses must always tell the truth (they take an oath before they testify).
Addresses to the Jury

 The right to address the jury has been in existence since 1865 (Criminal Procedure Act 1985 (28 and 29
Vict c.18))
 In the Criminal Code, s. 651 speaks to the order in which the Crown and defence are to address the jury.
Closing Arguments by Counsel

 “In the ordinary course of events all evidence is presented, and final submissions are then made. Section
651 of the Code sets out the order in which the Crown and the accused are to address the jury. If the
defence has not called evidence then the Crown argues first, but if the defence has called evidence then it
argues first.”132
 A lawyer is not allowed to supersede suitable boundaries when he or she makes submissions to the jury.
This principle is applicable to both the Crown and defence, but, it is more rigidly applied to the Crown.
Pre-charge conference133
650.1 A judge in a jury trial may, before the charge to the jury, confer with the accused or counsel for
the accused and the prosecutor with respect to the matters that should be explained to the jury and with
respect to the choice of instructions to the jury.
Summing up by prosecutor
651 (1) Where an accused, or any one of several accused being tried together, is defended by counsel,
the counsel shall, at the end of the case for the prosecution, declare whether or not he intends to adduce
evidence on behalf of the accused for whom he appears and if he does not announce his intention to
adduce evidence, the prosecutor may address the jury by way of summing up.
 In a closing address in a jury trial, a lawyer is granted the opportunity to advance the cause of their
client’s case “fearlessly and with vigour”.
 The purpose of a closing address to the jury is for the lawyer to present the party’s case transparently and
fairly, in a manner that is of assistance to the court in the performance of its duty.
 When addressing the jury, the Crown must abstain from making or expressing personal opinion, using
inflammatory and incendiary language and attacking the integrity of the opposition.
 In OZ Merchandising Inc. v Canadian Professional Soccer League Inc., the court “struck the jury after
plaintiff’s counsel’s closing address. It referred to leading authorities on closing addresses and indicated
that the following are not permitted: i) misstatements of the evidence; ii) comments that inform the jury
of factual matters not in evidence; iii) unfair comments on the evidence as it is the duty of the advocate
not to take unfair advantage of the evidence; iv) invitations to the jury to consider irrelevant matters,
which is a “most serious transgression”; v) statements that call the attention of the jury to the
consequences of its verdict”.134
Charging the Jury

 As soon as both sides have argued, if the trial is a jury trial, then the judge will provide the jury with
instructions. These instructions are typically called “charge to the jury”.
132
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 524
133
134
ONSC 3882 per Justice Ryan Bell.
84
 Section 650.1 of the Criminal Code (in the box above) allows a judge to confer with the Crown and
defence in relation to what issues ought to be elaborated upon and explained to the jury.
 The charge of the judge ought to be just, fair and unemotional/detached. It should be the last commentary
made to the jury prior to their deliberations.
Recharging the Jury

 Basically, when a judge re-charges after submissions from counsel, the same conditions and criteria are
applicable to that as to the original charge. Usually, the re-charge will merely be seen as part of the
charge and the inquiry will be, if taken as a whole, the jury has been suitably and properly instructed.
 It is capable for a re-charge to fix a mistake in the original charge.
Jury Deliberations
Sequestration of Juries
 The Criminal Code, section 647, addresses sequestration of juries during deliberation:
Separation of jurors135
647 (1) The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury
to separate.
Keeping in charge
(2) Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept
under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from
communicating with anyone other than himself or another member of the jury without leave of the judge.
 The judge has the discretion to permit the jury to separate up until the point in which deliberation begins.
 Rule: The jury must be isolated when they deliberate.
 As soon as the jury begins its deliberations, it is sequestered. “At this stage the jury is essentially to be
left alone until it has reached a verdict, or until it is apparent that it will not be able to do so”. 136
 The jury must return with a unanimous decision, that is, either to find the accused guilty or find the
accused not guilty and acquit the accused.
 What does “unanimity” require? In the case of a conviction, it only mandates that “all members of the
jury conclude that the accused is guilty of the offence in some fashion: a jury need not be unanimous on
the nature of the accused’s participation in the offence”.137
 Jurors ought to be reminded to take into account all of the evidence, not merely the evidence that the
instructions refer to and “that their recollection of the evidence is the most important criterion, rather than
any views the judge may have expressed about factual issues”.138
Media Publication of Information during Deliberation

 The Criminal Code, section 648, bans the publication of information in relation to any segment of a trial
during which the jury is not present (before a verdict in reached by the jury).
Restriction on publication139
648 (1) After permission to separate is given to members of a jury under subsection 647(1), no information
regarding any portion of the trial at which the jury is not present shall be published in any document or
135
136
137
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 534; R v Pickton, 2010 SCC 32.
138
139
85
broadcast or transmitted in any way before the jury retires to consider its verdict.
Offence
(2) Everyone who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.
Deliberation Confidentiality
 Jurors are not permitted to disclose any of the contents of deliberation, save and except for the intention
of analyzing the workings of a jury.
Disclosure of jury proceedings140

649 Every member of a jury, and every person providing technical, personal, interpretative or other support services
to a juror with a physical disability, who, except for the purposes of
(a) an investigation of an alleged offence under subsection 139(2) in relation to a juror, or
(b) giving evidence in criminal proceedings in relation to such an offence,
discloses any information relating to the proceedings of the jury when it was absent from the courtroom that was not
subsequently disclosed in open court is guilty of an offence punishable on summary conviction.
 The principles and values rooted in the traditional rule of ‘secrecy of jury deliberation’: “foster free and
frank debate among jurors; protect jurors from harassment, censure or recrimination at the hands of
convicted person and their families; and ensure the finality of the verdict”. 141
Instructions During Deliberations
Exhorting the Jury
 The judge has the capability of discharging the jury and ordering a new trial in the event there is a
deadlock. The Criminal Code, under section 653, states:
Disagreement of jury142
653 (1) Where the judge is satisfied that the jury is unable to agree on its verdict and that further detention of
the jury would be useless, he may in his discretion discharge that jury and direct a new jury to be empanelled
during the sittings of the court, or may adjourn the trial on such terms as justice may require.
 “Sometime deliberations continue so long that it appears, or notes are sent from the jury stating, that the
jury is deadlocked and will be unable to reach a unanimous verdict. Although the trial judge can
discharge the jury under section 653 and order a new trial”, usually the judge will first encourage the jury
to reach a verdict (i.e. exhort them to reach a verdict).143
 A judge must ensure that he does not influence the jury.
 The judge must also be cautious in his treatment of jurors; a judge must treat the jurors equally and must
not “pit one juror against the others”.144
 The jury should not be pressured nor encouraged to alter their minds for the sake of conformism.
Rendering a Verdict
 As soon as the jury has completed its deliberations and signalled it is ready to return, the jury pronounces
its verdict in court. This announcement is executed by the jury foreman.
 “After the jury has been discharged by the trial judge neither it nor the trial judge has any further
authority to act”.145
140
141
R v Pan; R v Sawyer [2001] 2 S.C.R. 344, paras [47] – [53]
142
143
144
R v Vivian, 2012 ONCA 324 at para. [47].
145
86
 Usually, this isn’t an issue, however, in rare circumstances, where an error or mistake has been made in
recording the verdict but was not uncovered until after the jury is discharged, then problems can arise.
Jury Secrecy
 Section 649 of the Criminal Code makes it an offence for anyone present in the jury room to leak or
disclose any information regarding the jury’s deliberations.
 Why is a guarantee of jury secrecy important? Coughlan states “it promotes candour in discussions and
lets the jury consider all possibilities without fear of later recriminations from the public. This rationale is
particularly valuable to an unpopular accused or an individual charged with a particular heinous crime.” 146
 The common law secrecy rule was held to not inhibit every imaginable piece of information relevant to
what has happened in a jury room from being disclosed (R v Pan [2001] 2 SCR 344). The Court made a
distinction between extrinsic and intrinsic matters to the jury’s deliberations.
 “An extrinsic matter would be that some third party had contact with the jury or gave particular
information to a juror, whereas an intrinsic matter would be the effect that the contact or information had
on the jury’s deliberations”.147
 The rule under the common law and section 649 thwart only intrinsic matters from being disclosed.
Jury Questions
 Jurors are allowed to submit inquiries to the court and counsel during the deliberations.
 If a question that a juror ask is not straightforward or clear, then the onus is on the judge to seek
clarification prior to offering a response.148
 It is critical that inquiries that jurors have are answered “clearly, correctly and comprehensively”. 149
 It is also important that responses are provided in a timely manner to jurors who have submitted a
question to the court or counsel.
A) The Presumption of Innocence and the Ultimate Standard of Proof

 In Canada, the Canadian Charter of Rights and Freedoms guarantees, by virtue of section 11(d), the right
to be presumed innocent until proven guilty.
 S. 11(d) of the Charter: “Any person charged with an offence has the right to be presumed innocent until
proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".
 The Crown must prove, BEYOND A REASONABLE DOUBT, that an accused is guilty.
 This means that the Crown must ensure that the judge or jury is satisfied beyond a reasonable doubt as to
the guilt of the accused/defendant.
 If the Crown fails to satisfy the judge or jury, then the judge or jury must acquit the accused.
What is ‘beyond a reasonable doubt’?
R v Lifchus, [1997] 3 S.C.R. 320

 An explanation of the phrase “reasonable doubt” must be given to the jury. The expression has a unique
meaning in the legal context.
 The expression beyond a reasonable doubt is intricately intwined with the presumption of innocence.
 A reasonable doubt is not founded upon sympathy
146
147
Ibid.
148
R v Shannon, 2011 BCCA 270.
149
R. V W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-760.
87
 “Reasonable doubt” must be grounded in “reason and common sense”.

 If a doubt is based upon sympathy, pity or prejudice, then that doubt will not be deemed “reasonable”.
 A reasonable doubt must be rationally and logically related to the evidence and facts or lack thereof.
 The standard does not mandate that the jury or jury be “absolutely certain” that the defendant is guilty.
 The Court in this case explained how the expression “reasonable doubt” should be explained to the jury.
In paragraphs 23 to 26, the Court discussed what should be avoided.
 Paragraph 23: “…a reasonable doubt should not be described as an “ordinary” concept. Jurors should not
be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they
would apply to the decisions they are required to make in their everyday lives, or even to the most
important of these decisions….”.
 Paragraph 25: “Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral
certainty…if the standard of proof is explained as equivalent to “moral certainty”, without more, jurors
may think that they are entitled to convict if they feel “certain”, even though the Crown has failed to
prove its case beyond a reasonable doubt….”.
 Paragraph 26: “Finally, qualifications of the word “doubt”, other than by way of the adjective
“reasonable”, should be avoided…”
R v Starr, [2000] 2 S.C.R. 144

 The trial judge in this case informed the jury that the standard ‘beyond a reasonable doubt’ did not
necessitate proof of an absolute certainty.
 The Supreme Court held that the instructions provided by the trial judge were lacking in that they failed
to expound and explain that the standard of reasonable doubt has special and unique legal importance
and accordingly, the standard requires a significantly elevated quantum of proof when compared to the
balance of probabilities standard.
 “As was emphasized repeatedly in Lifchus… a jury must be instructed that the standard of proof in a
criminal trial is higher than the probability standard used in making everyday decisions and in civil
trials. In this case the jury was not told that something more than probability was required in order to
convict…”.
R. v. J.H.S., 2008 SCC 30

Facts:
 The stepfather in this case was charged with sexually assaulting his stepdaughter.
 The two parties, the accused and the complainant, had different versions of the events in question.
Held:
Supreme Court of Nova Scotia
 The Supreme Court of Nova Scotia charged the jury on the credibility of the witness:
It will be up to you to decide how much or how little you will believe or rely upon the testimony
of any witness. You may believe some, none or all… [t[he real issue in this case is whether the
alleged events ever took place. It is for the Crown counsel to prove beyond a reasonable
doubt that the events alleged in fact occurred. It is not for [the accused] to prove that these
events never happened. If you have a reasonable doubt whether the events alleged ever
took place, you must find him not guilty… [y]ou do not decide whether something happened
simply by comparing one version of events with another or choosing one of them. You have to
consider all the evidence and decide whether you have been satisfied beyond a reasonable
doubt that the events that form the basis of the crime charged, in fact, took place.150
 The verdict was guilty. However, the Court of Appeal overturned this decision.
150
(2008) SCC 30 per Robertson J. of the Nova Scotia Supreme Court
88
Court of Appeal of Nova Scotia

 The Nova Scotia Court of Appeal found Robertson J. miscarried his duty in properly explaining the
standard of reasonable doubt in specific relation to the question of credibility.
 The Court cited R v W. (D.), 1991 1 SCR 742 and held that the instruction given by Robertson J. did not
sufficiently inform the jury on how to ensue or proceed in the situation where they were unsure or
incapable of solving the matter of credibility.
 In the case of W. (D.), it was held that:
…the trial judge is required to instruct the jury that they MUST acquit the accused in two
situations. First, if they believe the accused. Second, if they do NOT believe the accused’s
evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence
in the context of the evidence as a whole.
 W. (D.) established that Roberson J. failed to transparently elucidate the second principle and as such,
the conviction could not stand.
Supreme Court of Canada

 Court returned to the original instruction of Robertson J and held that, though, he failed to expressly
reiterate the instructions and directions established in W. (D.), he was successful in getting his point
across and he did ensure the jury could not misinterpret or miscomprehend what was mandated in the
situation. “In my view, the trial judge got across the point of the second W. (D.) question without
leaving any realistic possibility of misunderstanding. As stated, she told the jury: “It is for the Crown
Counsel to prove beyond a reasonable doubt that the events alleged in fact occurred…”. 151
B) Other Burdens
 The NCA syllabus provides quite a detailed explanation for this particular section.
 The explanatory piece is quite detailed and proceeds as follows152:
While the Crown prosecutor must prove guilt beyond a reasonable doubt at the end of the case, there are
other burdens of proof that operate during the criminal process. There are “evidential” burdens that some
rules of law impose in order for a party who wishes a matter to be placed in issue to succeed in having
that matter placed in issue…
Even the accused must at times satisfy an evidential burden in order to have a matter placed in issue.
Indeed, if the accused wants to have a defence considered, the accused must show that the defence has an
“air of reality” to it. If the accused succeeds, the judge must consider the defence, and in a jury, trial must
direct the jury on the law that applies to that defence: R. v. Cinous and R. v. Fontaine illustrate this.
There are numerous rules of evidence called “presumptions” that operate to assign burdens of proof to the
accused. A presumption is a rule of law that directs judges and jury to assume that a fact is true (known as
the “presumed fact”) in any case where the Crown proves that another fact is true (known as the “basic
fact”), unless the accused can rebut the presumed fact according to the assigned standard of proof. Those
presumptions known as “mandatory presumptions” can be rebutted by the accused simply raising a
reasonable doubt about whether the presumed fact follows from the basic fact…
Other presumptions operate as “reverse onus provisions,” deeming the presumed fact to exist where the
Crown proves the basic fact unless the accused disproves the presumed fact on the balance of
probabilities. A presumption can be recognized as a “mandatory presumption” because the statutory
151
(2008) SCC 30 per Binnie J at para [16].
152
NCA Criminal Online syllabus, https://nca.legal/wp-content/uploads/2018/11/Criminal-January-2019.pdf. Please refer to the syllabus for the full
excerpt. Only a portion was taken for your ease of reference.
89
provision raising the presumption will use language such as “the proof of which lies on him” or “unless
he establishes” to describe the burden of rebuttal. A presumption will be interpreted as a “mandatory
presumption” where it fails to set out the required standard of rebuttal because of s. 25 (1) of the
Interpretation Act…Presumptions are prima facie contrary to the Charter and must be saved under s. 1.
Leading Cases:
R v Oakes, [1986] 1 S.C.R. 103

 This case established the renown Oakes test = an examination of the limitation’s clause (section 1) of the
Canadian Charter of Rights and Freedoms that enables reasonable limitations on rights and freedoms
through legislation IF it can be “demonstrably justified in a free and democratic society”. 153
 The Court in Oakes pronounced the unique measures and criteria under which rights could be justifiably
limited under section 1.
 The Court recognized two chief functions of section 1. First, "it guarantees the rights which follow it",
and secondly, it "states the criteria against which justifications for limitations on those rights must be
measured".154
 When the Oakes test is engaged, the plaintiff/appellant must prove that it is entitled to a right (i.e. has a
right to religion – demonstrates sincere belief, nexus etc.). It is then to the accused to disprove the
existence of a presumed fact infringes the presumption of innocence on a balance of probabilities.
 If it is the accused who is responsible for disproving a condition of the offence, it would be plausible for a
conviction to occur regardless of the existence of a reasonable doubt.
 In sum: an applicant or complainant bears the initial burden of proving they are entitled to a particular
right (i.e. for equality - require comparator group; religion, sincere belief + nexus).
R v Cinous, [2002] 2 S.C.R. 3 [air of reality test]

 This case addressed the “air of reality” test, which you will often hear come up in criminal law.
 The court held that
A defence should be put to a jury IF, AND ONLY IF, there is an evidential foundation for it. A
trial judge must thus put to the jury all defences that arise on the facts, whether or not they have
been specifically raised by an accused, but he has a positive duty to keep from the jury defences
lacking an evidential foundation – OR AIR OF REALITY.155
 The air of reality translates to a burden on the accused. This burden that the accused bears is “merely
evidential, rather than persuasive” (evidentiary burden).
 When a trial judge applies the air of reality test, he or she must take into account the “totality of the
evidence”. Further, the trial judge presumes that the evidence the accused relies upon is genuine and true.
 The Court explained that the air of reality test is merely concerned with “whether or not a putative
defence should be “put in play”, that is, submitted to the jury for consideration. This idea was crucial to
the finding in Osolin that the air of reality test is consistent with the presumption of innocence guaranteed
by s.11(d) of the Canadian Charter of Rights and Freedoms”.156
C) The Neutral Impartial Trier

 A paramount element of the adversarial Canadian legal system is the existence of a neutral trier of law.
153
Canadian Charter of Rights and Freedoms
154
Ibid.
155
[2002] 2 S.C.R. 3 per McLachlin C.J. and L’Heureux-Dubé, Bastarache, and LeBel JJ.
156
[2002] 2 S.C.R. 3 per Biron J at para [52].
90
 Statistics show that more than 95% of criminal law cases in Canada are conducted by a judge without a
jury.157 As such, the judge is the ‘trier of fact and law’ in these circumstances.
 In cases where there is both a judge and a jury (opposed to a judge alone), then the judge is responsible
for all legal and procedural decision-making during the trial and instructs/directs the jury on the law that
is applicable to the case at bar.
 It is in the hands of the jury to make the factual decision and render the verdict.
 Sentencing, however, is determined by the judge, as a suitable sentence given the particulars of the case
and the facts and evidence presented, is a question of law, not one of a fact.
 An accused individual has the Constitutional right to an impartial trier-of-fact.158
 There is a duty placed on the trial judge to make certain that the trial is just, fair and that there is no
miscarriage of justice.159
 A trial judge, for the most part, has a great deal of discretion in terms of how a trial is run, which includes
the capability of curtailing cross-examination, preventing irrelevant inquiries and disallowing harassing
questions.
 The powers a judge holds must be exercised in a cautionary manner and must not be taken too far.
 If a judge takes his or her powers too far, ultimately, this can be deemed as a violation of an accused’s
right to a far trial. “The test is not whether the accused was actually prejudiced, but whether a reasonably
minded person who had been present throughout the trial would consider that the accused had not had a
fair trial”.160
 A judge has significant general discretion in the course of the trial. The judge can intervene to inquire
personally and also express perspectives and opinions on the facts. Moreover, the judge obtains a trial
management power. Nonetheless, an overriding principle is that the behaviour and conduct of the trial
judge must not formulate a reasonable apprehension of bias.
Canadian Charter of Rights and Freedoms

 S. 11(f) of the Canadian Charter entrenches the right to a trial by jury for the most serious offences. 161
 NOTE: Historically, the importance of the right to a trial by jury was to protect and shield accused
persons during a time when the monarch had the ability to wield undue influence on proceedings that
were conducted.162
Control over Trial Process

 It was held in the case of R v Romanowicz (1999) that it is a fundamental element and value of the
Canadian criminal justice system that a court be permitted to “control its process”. 163
 Judges are granted ‘considerable’ clouts in terms of being able to intervene in a criminal trial in order to
manage and handle the proceedings. to A judge is permitted to make orders “necessary to ensure an
orderly trial, without which the administration of justice risks being…thrown into disrepute”. 164
Publication Bans
157
Statcan; Adult Criminal Court processing times, Canada, 2015/2016, https://www150.statcan.gc.ca/n1/pub/85-002-x/2018001/article/54900-
eng.htm
158
Section 11(d) of the Charter which is the right “…to be presumed innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal”; R v Valente (1985), 23 C.C.C. (3d).
159
R v Harris, 2009 SKCA 96, 331 Sask. R. 283 per Richards JA at para [28]; R v Amell, 2013 SKCA 48 per Lane JA at para [25].
160
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 545; R v Valley (1986), 26 CCC (3d) 207 at 232 (Ont CA).
161
R v Peers, 2015 ABCA 407 at para [6].
162
R v Lee, [1989] 2 S.C.R. 1384 at para [29].
163
(1999) 1315 (ON CA), 45 O.R. (3d) 506, per curiam, at para [56].
164
R v Auclair, 2013 QCCA 671 per curiam at para [55]
91
 The Ministry of the Attorney General addresses Bans on Publication on the Attorney General, ON
Government website. The citation is provided in the footnote.165 Please visit the link to learn more.
Ontario
Ministry of the Attorney General
BANS ON PUBLICATION
The media is constitutionally entitled to publish information about court cases, but there are exceptions to this
right. The court may (and frequently must) impose publication bans to protect the fairness and integrity of the case,
the privacy or safety of a victim or witness, or the identity of a child or youth.
In addition to the presiding judge's discretion to control court proceedings to ensure a fair trial, provisions in
various federal and provincial laws, such as the Criminal Code, the Youth Criminal Justice Act, the
provincial Mental Health Act and the Child and Family Services Act, permit or require publication bans. Under
the common law, a judge also has the authority to order a publication ban where various principles, including the
effects on the accused’s right to a fair trial, the right to freedom of expression, and the administration of justice, are
weighed.
…
(A) Publication bans provided for in legislation

Many publication bans are provided for in legislation. For example, under the Criminal Code, publication bans are
common for bail hearings, preliminary hearings, and voir dires (a hearing within the trial where the judge decides
whether evidence is admissible). Reporters should be aware of the relevant provisions in various laws that relate to
publication bans.
What about rescission of a publication ban?

 In terms of revocation of a publication ban, as per the case of R v Adams, “a court HAS the power to
rescind its own public ban”.166
 But, bans under s. 486.4 (3) cannot be revoked – these are bans that relate to child pornography. 167
Contempt of Court
 Section 9 of the Criminal Code:
Criminal offences to be under law of Canada168

9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under
section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United
Kingdom of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that
province, territory or place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial
court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
What does ‘contempt of court’ really mean?
165
“Guidelines - Bans On Publication.” Guidelines - Bans On Publication - Ministry of the Attorney General,
www.attorneygeneral.jus.gov.on.ca/english/pub_ban.php.
166
[1995], 4 SCR 707, 1995 56 (SCC) per Sopinka J.
167
R v KB, 2014 NSPC 24 per Campbell J at para [9].
168
92
 It typically refers to the conduct or actions of an individual that disobey, rebel, disrespect or belittle the
authority or dignity of a court.
 Conduct that constitutes contempt of court is usually deemed as detrimental to the court’s goal of
administering justice.
 There is a difference between criminal contempt of court and civil contempt.
 The former usually involves an individual’s failure to obey and fulfill an order of the court.
 Civil contempt will result in sanctions that are meant to compel the person committing contempt to
adhere with the court order (i.e. less serious).
 On the other hand, criminal contempt of court has disparate consequences, as they are punitive in nature
and act to deter future contempt. The offender is punished, and the criminal contempt charges become
distinct from the charges in the underlying case (i.e. more serious)
Mistrials
 At any time in a criminal proceeding, a judge is entitled to announce a ‘mistrial’.
 R v Burke: A mistrial is a cure or remedy where it “is necessary to prevent a miscarriage of justice”. 169
 In the case of R v Khan, the court delineated when a mistrial can arise: it can arise where “a trial is unfair,
or when the trial has the appearance of unfairness, viewed by a well-informed, reasonable person
considering the whole of the circumstances”.170
 A trial judge has discretion in terms of declaring a mistrial. However, it is paramount that the judge
properly examines and assesses if there is “a real danger that trial fairness has been compromised”. 171
 Khan and Burke make clear that an apprehension of bias will also suffice. This is aligned with the
common parlance from the case of R v Sussex Justice, ex parte McCarthy – “Not only must Justice be
done; it must also be seen to be done”.172
 A mistrial should really only be utilized as a last resort remedy. Case law has established that it should be
granted “in the clearest of cases and where no remedy short of that relief will adequately redress the
actual harm occasioned”.173
 In the event a mistrial is pronounced by a judge, the previous rulings in regard to “pre-trial motions will
generally still apply if the prosecution is re-initiated”.174
 Section 653.1 of the Criminal Code:
Mistrial — rulings binding at new trial175
653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice,
rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and
Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are
made — or could have been made — before the stage at which the evidence on the merits is presented.
 Ordering a mistrial after a jury has rendered a decision (verdict) is rare. The circumstances wherein
intrusion or interference with a jury verdict are allowed are176:
o 1. The jury fails to render the verdict it anticipated; or
o 2. In the event the accused wants to bring forth entrapment as a defence.
Leading Cases
169
(2002) SCC 55 per Major J at para [75].
170
(2001) SCC 86 per Arbour J.
171
R v GC, 2018 ONCA 392 per curiam at para [3]
172
[1924] 1 KB 256, [1923] All ER Rep 233.
173
R v Toutissani, 2007 ONCA 773 (CanLII), [2007] OJ No 4364, per MacPherson JA;
174
R v Lee, 2002 CanLII 8304 (ON CA) at para [9]; R v Karim 2010 ABCA 401 (CanLII) per curiam at para [27]; R v GC, 2018 ONCA 392
(CanLII) per curiam at para [4].
175
176
R v Miguel Orlando Zavala-Martinez, 2019 ONSC 1087 (CanLII) per Allen J, at para 8.
93
R v Gunning, [2005] 1 S.C.R. 627

 The Supreme Court held that: It is a basic principle of law that the jury is to decide whether an
offence has been proven on the facts. The judge is entitled to give an opinion on a question of fact
but not a direction. A trial judge has no duty or entitlement to direct a verdict of guilty and the duty to
keep from the jury affirmative defences lacking an evidential foundation does not detract from this
principle.
 The role of the jury and the judge must be kept distinct and separate.
R v Hamilton, [2004] O.J. No. 3252 (Ont. C.A.)

 The judge did not ground his findings of fact on any materials submitted. He, rather, relied upon his
experiences in sentencing in other similar cases.
 A judge is allowed to utilize wisdom, experience, logic and common sense gained from his or her own
experiences when judging witness credibility. However, a judge must evade judging trustworthiness and
credibility on the grounds of generalizations and without using evidence.
 Paragraph 33, the arguments on appeal:
Crown counsel acknowledges that the trial judge has a broad discretion in the conduct of
sentencing proceedings. He alleges, however, that the trial judge lost his appearance of
impartiality by raising various issues on his own initiative, directing the Crown to locate and
produce evidence on those issues, producing his own evidence on some of those issues, and
eventually imposing sentences based in large measure on findings that were the product of the
material produced by the trial judge and his personal experiences. It is the Crown’s contention
that, while no doubt well-intentioned, the trial judge effectively took on the combined role of
advocate, witness, and judge, thereby losing the appearance of a neutral arbiter.
 “Not only must Justice be done; it must also be seen to be done”.
 In order to ensure impartiality, roles within the court must be separated (i.e. judge cannot take on the role
of a witness, advocate, the function of the jury in a jury and judge case, etc.)
D) The Role of the Prosecutor

 It is imperative to first understand what a prosecution is. According to R v Desjardin, it is a “search for
the truth within the confines of a process that provides for procedural and substantive fairness for the
accused”.177
 This being said, the role of the Prosecutor is not to secure a conviction. Rather, the function of the
prosecutor is to ensure justice is executed and this involves providing credible and relevant evidence to
the trier of fact.
 The role of the Crown/Prosecutor is different from the role of the defence. The defence is not held to the
same disclosure standard as that of the Crown.
Role of Prosecutor/Crown Attorney Role of Defence

 Interest of justice  Interest of the client
 Goal: Seeking the truth  Goal: Having the client acquitted
 Expected to “present, gully and diligently, all the  Undivided loyalty to the client (R v Widdifield 1995
material facts that have evidentiary value, as well as CanLII 3505 (ON CA), 1995) 25 OR (3d) 161 at 169.
the proper inferences that may reasonably be drawn  Not held to the same disclosure standard of the
from those facts” (R v Trochym 2007 SCC 6). Crown.
Leading Cases
177
(2019) ABCA 215 per curiam at para [11]; R v Chamandy, (1934) 1934 CanLII 130 (ON CA), 61 CCC 224 (Ont. C.A.), per Riddell JA.
94
Krieger v Law Society of Alberta [2002] 2 S.C.R. 372

Facts:
 The Crown, Krieger, was assigned to a murder case.
 Krieger was given the DNA results and genetic tests, before the preliminary hearing, which insinuated a
different person and not the accused.
 After being in receipt of these results and new material information, Kriegar told the defence the results
would not be ready by the preliminary inquiry date. Kriegar’s mistruth was discovered.
 The defence complained there had been an obvious failure to provide timely and sufficient disclosure to
the Attorney General.
 “Kriegar was reprimanded and removed from the case after a finding that the delay was unjustified”. 178
 After Kriegar was removed, the accused went to the Law Society about his unethical behaviour.
Held:
 The court held that the Alberta legislature has the authority and power to regulate the legal profession.
This power has been “duly conferred upon the Law Society under the Legal Profession Act”.179
 According to the division of powers, the federal government (Parliament) has control over criminal law
and procedure. The provinces, on the other hand, have jurisdiction over the administration of justice.
Administration of justice is inclusive of the regulation and governance of lawyers and reviews of
unethical conduct.
 The Rule mandating timely disclosure has the function of ensuring ethical conduct of lawyers (Legal
Profession Act) and is confined to situations wherein counsel behaved unethically, dishonestly or in bad
faith. It is not, however, “intended to interfere with the proper exercise of prosecutorial discretion.
Accordingly, the Rule applies only to matters of professional discipline and does not intrude into the area
of criminal law and procedure”.180
 The court went on to stress that the discretion of the Crown will ONLY be scrutinized where there is
“flagrant impropriety” (abuse of process).
 Prosecutors are members of the Law Society, and as such, must obey the Professional Code of Conduct.
 The duty of disclosure is a legal duty and is not an issue dealing with the discretion of a Crown
prosecutor. Prosecutorial discretion is not regulated by the Law Society. Professional conduct, however,
is. The Court that it could only review the breach of disclosure in the context of an ethical violation.
 NOTE: consider why disclosure is so critical – it enables the accused to know the ‘case to be met’. It
ensures the right to a fair trial. It is the role of the prosecutor to promote justice and failing to disclose
relevant documents does not achieve this.
R v Nixon, 2011 SCC 34 [abuse of process]

 The Crown in this case resiled from the plea agreement.
Held:
 The Court held that the Crown’s decision clearly was an act of prosecutorial discretion. It was established
in Krieger that prosecutorial discretion is only reviewable for abuse of process.181
 Two classes or categories of abuse of process (Charter, s.7) were defined in this case at para [36]:
o 1) Prosecutorial conduct affecting the fairness of trial; and
o 2) Prosecutorial conduct that “contravenes fundamental notions of justice; and thus undermines
the integrity of the judicial process”
 The court went on to expound the test at para [42], clarifying that:
178
[2002] 2 S.C.R. 372, 2002 SCC 65.
179
Ibid.
180
[2002] 2 S.C.R. 372, 2002 SCC 65.
181
2011 SCC 34 at para [31]
95
The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse
causes prejudice to the accused’s fair trial interests or to the integrity of the justice system, is that
set out in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391,
and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. A stay of proceedings will only be
appropriate when: “(1) the prejudice caused by the abuse in question will be manifested,
perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no
other remedy is reasonably capable of removing that prejudice” (Regan, at para. 54,
citing O’Connor, at para. 75).
 The court emphasized that before reviewing the discretion of the Crown, a “threshold determination” is
needed; there needs to be proper and sufficient evidence to proceed with scrutinizing their discretion. 182
 At para [63], per Iacobucci and Major JJ., the Court found that the repudiation of the plea agreement
constituted an abuse of process:
…the repudiation of a plea agreement is not just a bare allegation. It is evidence that the Crown
has gone back on its word… it is of crucial importance to the proper and fair administration of
criminal justice that plea agreements be honoured…evidence that a plea agreement was entered
into with the Crown, and subsequently reneged by the Crown, provides the requisite evidentiary
threshold to embark on a review of the decision for abuse of process.
 However, once finding that the threshold had been met, the court concluded the repudiation could not be
deemed so unjust or oppressive, or motivated by bad faith, as to constitute an abuse of process.
R v Babos, 2014 SCC 16 [abuse of process]

 The court explained when an abuse of process will warrant a stay of proceedings.
 The two categories listed in Nixon were reaffirmed (i.e., conduct that compromises the fairness of an
accused’s trial and conduct that does not threaten or jeopardize the fairness of a trial but risks
undermining the integrity of the judicial process).
 At para [32], the court detailed the test used to determine whether a stay of proceedings is warranted.
 It is the same for both categories and consists of three requirements:183
1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that
“will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”
(Regan, at para. 54);
2. There must be no alternative remedy capable of redressing the prejudice; and
3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is
required to balance the interests in favour of granting a stay, such as denouncing misconduct and
preserving the integrity of the justice system, against “the interest that society has in having a final
decision on the merits” (ibid., at para. 57).
 Note: a stay of proceedings for an abuse of process will only be warranted in the clearest of cases.
R v Anderson, 2014 SCC 41

 The Court found that there is no constitutional obligation on the Crown to take into account the status of
an Aboriginal.
 In terms of prosecutorial discretion, the decision in Krieger resulted in some uncertainty as to its
meaning. Consequently, the law has become blurred in this area.
 The Court emphasized that the discretion of the Crown is “entitled to considerable deference and should
not be second-guessed”.184
E) The Role of the Defence

 It is the duty of the defence counsel to be respectful, candid and honest with the court, as the defence is
‘an officer of the court’.
 The defence must not attempt to mislead the court as to the state of the law.
182
Ibid, at para [60]
183
2014 SCC 16, at para [32]
184
2014 SCC 41
96
 As officers of the court, lawyers have an absolute ethical duty to tell judges the truth.
 Lord Reid: “Counsel must not mislead the court, he must not lend himself to casting aspirations on the
other party or witnesses for which there is no sufficient basis in the information in his possession, he must
not withhold authorities or documents which may tell against his clients but which the law or the
standards of his profession require him to produce”.185
 There is a premium placed on counsel’s honesty and integrity; without these, the search for justice and
truth would be undermined and this search is the primary ambition of our justice system.
 “The advocate has a duty to assist in ensuring that the administration of justice is not distorted or
thwarted by dishonest or disreputable practices.”186
 Officers of the court also have the duty to187:
i. Not to make frivolous arguments;
ii. Duty of civility
 Advocates’ Society: (Advocacy in the 21st Century) – Roy McMurtry, Chief Justice of Ontario:
o “Lawyers are not solely professional advocates or "hired guns." And while they do not surrender
their free speech rights upon admission to the Bar, they are also officers of the court with
fundamental obligations to uphold the integrity of the judicial process, both inside and outside
the courtroom. It is the duty of counsel to be faithful both to their client and to the administration
of justice”.
 It is the duty of the defence counsel to be respectful, candid and honest with the court, as the defence is
‘an officer of the court’.
 The defence must not attempt to mislead the court as to the state of the law.188
What about defence counsel’s duty to the client?

 The defence is required to “fearlessly raise every issue, advance every argument and ask every question,
however distasteful, which he thinks will help his client’s case.” 189
 Model Code: 5.1-1: “When acting as an advocate, a lawyer must represent the client resolutely and
honorably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and
respect”
 Commentary [3]: “They lawyer’s function as an advocate is openly and necessarily partisan.
Accordingly, the lawyer is not obliged…to assist an adversary or advance matter harmful to the client’s
case.
 The duty of confidentiality is vital in relation to the partisan duty to the client, as it is the basis or context
in which these dilemmas must be solved.
 Defense counsel have several duties:
o Duty of loyalty to client; Duty of confidentiality to client; Duty of honesty; Duties to the Court
GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION
24. Police Powers

 A police officer role is to enforce the law. Of course, the rule of law applies – police are not above the
law; they too must adhere to the laws themselves.
 The core-activities of policing in Ontario are190:
o Prevention of crime
185
Rondel v Worsley [1969] 1 AC 191, [1967] 3 All ER 993 HL€, [1967] 3 WLR 1666, [1967] UKHL 5.
186
Ibid.
187
R v Felderhof, 2002 CanLII 41888 (ON SC).
188
R v Adams, 2011 NLCA 3 (CanLII) per Welsh JA.
189
Rondel v Worsley [1969] 1 AC 191, [1967] 3 All ER 993 HL€, [1967] 3 WLR 1666, [1967] UKHL 5.
190
Ministry of the Solicitor General, Ontario Ministry of Justice, https://www.mcscs.jus.gov.on.ca/english / police_ serv/about.html
97
o Enforcement of laws
o Assisting victims
o Keeping and maintaining public order
o Responding to emergencies
 The two main sources of police powers in Canada are statute and the common law.
 The powers of police are constrained and limited in the interests of justice. For instance, section 9 of the
Canadian Charter of Rights and Freedom protects people against arbitrary detention. 191
 Under the common law in Canada, police officers have a confined power to detain individuals for
investigative purposes. Police must possess “reasonable grounds to detain”.
SOURCES OF POLICE POWERS
The Canadian Constitution, 1867 and 1982

 Under the division of powers, there is a shared competency between the federal government and
provincial legislatures in terms of the power to create police forces.
Section 92(14) of the Constitution Act, 1867, also known as the administration of justice
power, grants the provincial legislatures of Canada the authority to legislate on:
14. The Administration of Justice in the Province, including the Constitution, Maintenance,
and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and
including Procedure in Civil Matters in those Courts.
Dickson J: “There is ... a special relationship between s. 92(14) and s. 91(27), a relationship that cannot be said
to obtain between s. 92(14) and the other heads of power in s. 91. Sections 91(27) and 92(14) together effect a
careful and delicate division of power between the two levels of government in the field of criminal justice....
The singling out and the express conferral on the provinces under s. 92(14) of responsibility to constitute,
maintain and organize courts for the administration of one particular area of federal law, namely, criminal law, is
unique”.192
 Under the Constitution, provinces obtain a significant responsibility for public policing.
 The provinces, through Police Acts (i.e. Police Services Act, R.S.O. 1990, c P.15), have executed their
responsibility for public policing by, in some cases, delegating the power to municipalities
 Parliament does not obtain a main constitutional responsibility for policing. Nonetheless, the federal
police force (RCMP), in the capital, is the biggest police force in Canada.
 The federal government governs and regulates the investigative powers of police.
 The Canadian Charter of Rights and Freedoms has a critical function as well.
o If a criminal process violates the Charter, it may be struck down (unless justified under s.1)
o The Charter offers remedies (section 24) to those who have had their Charter rights infringed as a
result of an investigation or government action.
o As mentioned earlier, section 9, protects citizens against arbitrary detention.
o Section 8 of the Charter – “Everyone has the right to be secure against unreasonable search and
seizure” – while everyone cannot be unreasonably searched, what constitutes as unreasonable has
been elaborated upon throughout case law. This will be further discussed below.
 “The Charter enhanced the protection of civil liberties in Canada…the Charter has also been a direct and
indirect cause of the expansion of police powers”.193
191
Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.
192
R v Wetmore [1983] 2 SCR 284.
193
98
The Criminal Code

 The Criminal Code is the chief source of police power.
 There are multiple provisions that are applicable to the powers of police:
Arrest without warrant by any person194

494 (1) Anyone may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that
person.
Arrest by owner, etc., of property

(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in
lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence
on or in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they believe on
reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Delivery to peace officer

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a
peace officer.
For greater certainty

(4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is
authorized by law to do so for the purposes of section 25.
 Sections 494 to 528 delineate the various police powers.

 Police have a primary function of deterring crime (i.e. crime prevention). Sections 25 to 33 of the
Criminal Code speak to the ability of those “authorized by law” to prevent offences. These sections create
related powers, enabling the utilization of “force to execute powers authorized by law, to prevent the
commission of some offences, or to prevent a breach of the peace”.195
 Other sections within the Criminal Code create extensive search powers for the police.
General Search Warrant

 A search warrant is an order that a Justice of the Peace issues under statute.
 A search warrant enables a person to enter a location, such as a home, and take (i.e. seize) specified
evidence (i.e. specified within the warrant).
 It is considered a “substitute for consent to enter a private premise or any other places with reasonable
expectations of privacy”.196
 Section 487 of the Criminal Code creates the general search warrant provision, enabling a justice to issue
a warrant allowing (“authorizing”) the search of a “building, receptacle or place” and the ability to seize
evidence found there.
 The Criminal Code provides for several search warrants:
Search Warrants (The Canadian Criminal Code)
194
195
196
Nova Scotia v MacIntyre, [1982] 1 S.C.R. 175 at p. 179, 1982 CanLII 14.
99
Section 487: General Search Warrant Section 462.32: Proceeds of crime

Section 117.04: Firearms warrant Section 487.05: DNA Sample
Section 164: Obscene materials Section 492.1: Tracking
Section 184.2: Consent wiretap Section 492.2: Number recordings
Section 256: Impaired driving blood samples Section 492.2(2): Telephone records
Section 11 CDSA: Drug offences Section 487.091: Bodily impressions
Section 487.1: Tele-warrants Section 529, 529.1: Entry for Arrest
Section 492: Explosive warrants Section 487.011-013: Production orders
 Section 487 is important, as it creates a general search warrant power in circumstances wherein a justice
of the peace is appeased that a search will surface or produce evidence related to the criminal offence.
 This section additionally provides for a search warrant in circumstances where there are reasonable and
probably grounds to believe “that an offence has been committed and that there is evidence to be found at
the place of the search”.197
Common Law
 Historically, the power of police officers to conduct a search incident to arrest is a common law power.
Moreover, the police power to enter a private dwelling during “hot pursuit” of a suspect is a common law
power as well.
 Nonetheless, over time, the common law has evolved in an effort to be adaptable and flexible to societal
changes and developments.
 The power of police has been expanded due to these evolutions. Police have required greater authority to
handle and deal with the types of complex crimes that have emerged through time (i.e. technological
advancements, globalism/internationalism, growth and expansion of business)
I. Historical Common Law Powers:
Search incident to arrest

 This common law power is intended to ensure the safety of citizens, protect and secure evidence
from destruction and enable the discovery of relevant evidence, as per Cloutier v Langlois.198
 Originally, police officers had the authority to search an individual who was lawfully arrested and to
seize any items in their possession (i.e. gun, weapon) to ensure the safety and well-being of the police
officer and the accused, and to prevent the accused from fleeing.
Cloutier v Langlois: “The first common law cases dealing with the right to "frisk" search a lawfully arrested
person date from the last century, though it appears that the practice has a much longer history… A constable
has a common law power to search a person on arrest and to take into custody articles in possession of the
prisoner which the constable believes to be connected with the offence charged, or which may be used in
evidence against him, or which may give a clue to the commission of the crime or the identification of
the criminal, or any weapon or implement which might enable the prisoner to commit an act of violence
or effect his escape.”199
197
Hunter v Southam Inc., 1984 CanLII 33 (SCC), 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at p. 168.
198
[1990] 1 S.C.R. 158.
199
Ibid
100
 This common law power (search incident to arrest) was expanded in Caslake200
o Police powers to obtain evidence was altered and expanded.
o Caslake broadened the scope to permit a search incident in order to ensure safety of both the
police and citizens, to secure and protect evidence from destruction by the accused (i.e.
arrestee) and for the purpose of discovering evidence that is relevant to the criminal offence
being committed or that can be utilized at the accused’s trial.
Search of a private dwelling

 Without a warrant, a home could not be searched and was considered “prima facie unreasonable”.
 As Feeney holds, “generally a warrant is required to make an arrest in a dwelling”.201
 BUT:
R v Landry [1986] 1 SCR 145

 At para [39], the court cited Eccles v Bourque, hold that:
A peace officer has authority at common law to enter private premises to effect an arrest without warrant
pursuant to s. 450(1) a) of the Criminal Code if he has reasonable and probable grounds to believe that an
indictable offence has been committed or is about to be committed, and if two further criteria are met.
1. First, the peace officer must have reasonable and probable grounds to believe that the person sought is on
the private premises, and
2. Secondly, he must make a proper announcement of his presence and purpose before entering.
R v Feeney [1997] 2 SCR 13

 As aforementioned, the court in this case stated that typically a warrant is needed in order to enter a private
dwelling and make an arrest.
 Nonetheless, Feeney went on to hold that there are exceptions to the rule, particularly “with respect to the
unreasonableness of warrantless searches for things. A warrantless search will respect Charter 8 if authorized by
law, and both the law and the manner in which the search is conducted are reasonable. In cases of hot pursuit,
the privacy interest MUST give way to the interest of society in ensuring adequate police protection”. 202
 Therefore, a hot pursuit was held to be an exception.
II. Common Law Ancillary Powers Doctrine

 This doctrine enables police officers to interfere and intrude on a person’s liberty and/or privacy during
the lawful execution of their duty, subject to the following conditions being fulfilled, which come from the
Waterfield test:203
o (1) The Police are acting in the execution of their duties under common law or statute; and
o (2) The conduct constitutes a justifiable interference with individual liberty or privacy.
 Digging deeper into each condition will be helpful:
o In terms of the first condition, it is acknowledged that the powers of police officers are derived from
the nature and scope of their duties, inclusive of “the preservation of the peace, the prevention of
crime, and the protection of life and property”.204 This condition is asking quite simply if the action
that the police officer executed falls under their general scope which is imposed by stature or
recognized at common law.205
200
R v Caslake [1998] SCR 51 at 22.
201
R v Feeney [1997] 2 SCR 13.
202
Ibid., per Forest, Sopinka, Cory, Iacobucci and Major JJ.
203
R v Waterfield, [1963] 3 All ER 659.
204
R v Mann, [2004] 2 SCR 59. 2004 SCC 52 (CanLII), per Iacobucci J, at para [26].
205
R v MacDonald, 2014 SCC 3 (CanLII), per Lebel J.
101
o The second condition involves a balancing act, so to speak. The action of the police must be
“reasonably necessary” in order for the execution or carrying out of the duty “in light of all the
circumstances”.206 This will include taking into account:
i) the significance of the duty in terms of the public good (Mann207);
ii) the necessity and requisite of the intrusion with individual liberty for the performance of the
duty208;
iii) “the extent of the interference with the individual liberty”209
 The Waterfield test expanded police powers so broadly that essentially the test has the potential of
justifying and excusing any police conduct. In turn, this means that the test has actually granted authority
to police officers that is not provided in the statute.
III. Default Common Law Powers

 Essentially, as long as a police officer does not infringe a Charter right, he or she is permitted to conduct
any type of behaviour.
 As long as a remedy (Charter, section 24) will not result as a consequence of a police’s conduct, then they
are permitted to execute the act.
POWERS OF SEARCH AND SEIRZURE

 Apart from the search incident to arrest, the authority of police to interfere with an individual’s liberty is
most transparent and palpable in search and seizure powers.
 In the case of Hunter210, the court held that searches without a warrant are prima facie unreasonable. The
purpose of s. 8 of the Canadian is to secure and protect a person’s reasonable expectation of privacy and
to limit and restrict government action that will result in an encroachment on that expectation. 211
 Searches that are warrantless are unreasonable = searches that are not authorized by law
(warrants) violate s. 8 of the Charter.
 However, how do you know if the conduct amounts to a search or not? If there is in fact no search, then
the question of reasonableness is moot.
 Coughlan states: “Considering whether there has been an unreasonable search requires looking at two
questions: was what occurred a search, and if so, was the search unreasonable? All section 8 cases, no
matter what the context, follow the same basic structure”.212 First, it is mandatory to determine if the
police investigative strategy or tactic constituted a “search”: this inquiry is answered by establishing if the
person had a “reasonable expectation of privacy”. If they did not, then the police technique was not in
fact a “search” and as such, section 8 could not have been infringed.
Is the Search Unreasonable?
QUICK SUMMARY
To determine whether a search is reasonable and whether Charter s. 8 is engaged, you must
first ask the following 2 questions (2 STEPS):
1) IS THIS A SEARCH? If yes, move on to the 2nd question (reasonable expectation of
privacy test from Edwards).
206
Ibid.
207
R v Mann, [2004] 2 SCR 59. 2004 SCC 52 (CanLII)
208
Dedman v The Queen, 1985 CanLII 41 (SCC), at p. 35.
209
R v MacDonald, 204 SCC 3.
210
Hunter v Southam Inc [1984] 2 S.C.R. 145.
211
Section 8: “Everyone has the right to be secure against unreasonable search or seizure”.
212
102
2) WAS THE SEARCH UNREASONABLE? (Collins Test)
STEP 1
 The determination of whether conduct constitutes a search is fundamental before moving on to analyzing
whether a search is reasonable or not is critical.
 “Was there a reasonable expectation of privacy?”. Edwards held that “a search can be unreasonable
where it intrudes on a person’s reasonable expectation of privacy”.213
o If there is a reasonable expectation of privacy = the investigation constitutes a search
o If there is NOT a reasonable expectation of privacy = there is NO search
 But how do you know if there is a reasonable expectation of privacy? How do we determine this?
Edwards established the “totality of circumstances”.
R v Edwards, 1996 CanLII 255 (SCC)

At Para [45], the court summarized past decisions, and held.:
3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights
to privacy have been violated.
4. As a general rule, two distinct inquiries must be made in relation to section 8. First, has the accused a
reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police
conducted reasonably.
5. A reasonable expectation of privacy is to be determined on the basis of the totality of the
circumstances.
6. The factors to be considered in assessing the totality of the circumstances may include, but are not
restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the
second stage to determine whether the search was conducted in a reasonable manner.
 The totality of the circumstances test must be approached in a commonsensical manner. No one of the
specific factors outweighs the others.
 Coughlan explains that the “totality of the circumstances” test has evolved and progressed over
time. However, he states that the test “has now settled into a reasonably stable structure which involves
addressing four considerations: the subject matter of the search, whether the accused has a direct interest
in that subject matter, whether the accused has a subjective expectation of privacy in that subject matter,
and whether an expectation of privacy is objectively reasonable”.214
 In R v Tessling215, a distinction was made between “personal, territorial and informational privacy”.
o Personal Privacy: The court in this case emphasized that personal privacy has perhaps “the strongest
claim to constitutional shelter because it protects bodily integrity, and in particular the right not to
have our bodies touched or explored to disclose objects or matters we wish to conceal” 216. The court
213
R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at paras. [33] and [39].
214
215
[2004] 3 SCR 432.
216
Ibid., at para [21].
103
went on to explain that warrantless strip searches will only be permitted in very limited
circumstances.217
o Territorial Privacy: As claimed in the Semayne’s Case218, it is best understood by the phrase, “the
house of everyone is to him as his castle and fortress”. This area typically concerns an individual’s
home and workplace.
o Informational Privacy: The court stated that “Beyond our bodies and the places where we live and
work, however, lies the thorny question of how much information about ourselves and activities we
are entitled to shield from the curious eyes of the state (R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC
60). This includes commercial information locked in a safe kept in a restaurant owned by the
accused (R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16).”
 The Court in Tessling tailored the test from Edwards to fit the circumstances (information privacy).
Please find in the box below, the test for informational privacy, as per para [32] of the judgment.
Did the Respondent Have a Reasonable Expectation of Privacy?

32 On the facts of this case, we need to address:
1. What was the subject matter of the FLIR image?
2. Did the respondent have a direct interest in the subject matter of the FLIR
image?
3. Did the respondent have a subjective expectation of privacy in the subject matter
of the FLIR image?
4. If so, was the expectation objectively reasonable? In this respect, regard must be
had to:
a. the place where the alleged “search” occurred;
b. whether the subject matter was in public view;
c. whether the subject matter had been abandoned;
d. whether the information was already in the hands of third parties; if so, was it
subject to an obligation of confidentiality?
e. whether the police technique was intrusive in relation to the privacy interest;
f. whether the use of surveillance technology was itself objectively unreasonable;
g. whether the FLIR heat profile exposed any intimate details of the respondent’s
lifestyle, or information of a biographical nature.
NOTE: Once it is determined that there was in fact a SEARCH, the next step is assessing whether the
search was unreasonable.
STEP 2
The second question is to ask/determine: “was the search unreasonable?”.
 You must apply the COLLINS219 test; this involves satisfying 3 conditions.
 If any three of the conditions/steps are not fulfilled (i.e. fail), then the search is unreasonable
R v Collins: Paragraph [23] A search will be reasonable if it is authorized by law, if the law itself is
reasonable and if the manner in which the search was carried out is reasonable…
i) Was the search authorized by law?

 The main focus is – “was there a warrant or not?”
 A fundamental aspect of s. 8 of the Charter is that ‘warrantless searches’ are prima facie unreasonable.
217
R v Golden, [2001] 3 S.C.R. 679, 2001 SCC 83, at paras [90] – [92].
218
[1558-1774] All E.R. Rep. 62 (1604) at p. 63
219
R v Collins [1987] 1 SCR 265.
104
 In the case of R v Mann (2004) SCC 52, the Court held that “Absent a law to the contrary, individuals are
free to do as they please. By contrast, the police (and more broadly, the state) may act ONLY to the
extent that they are empowered to do so by law” (para 15).
 Thus, we must determine if there is “authorization” for the activity.
If there is A WARRANT:
 The purpose of s. 8 is to disallow and avert unjustified searches.
 Authorization (a warrant) must be obtained before executing a search. An application for a search warrant
necessitates comprehensive and candid disclosure of all facts that are material.
 Coughlan at page 149:
The power to search is limited to a ‘building, receptacle or place’… ‘Place’ includes the area
surrounding a building, which has two main consequences. First, it means that a warrant is
available to search the exterior of buildings and surrounding area. This leads to the result that,
since it would be possible to obtain a warrant to search the area around a house in principle, a
search of that area without a warrant is prima facie unreasonable…Second, when coupled with
the need for specificity in warrants, this also means that a warrant to search the area around a
house (the curtilage) does not include the ability to seize items found inside the house, while a
warrant to search a house might not include the ability to search the area around the house or
other buildings on the property.220
 The physical location that is to be searched must be accurately and specifically identified. For instance, if
a police officer wants to search a house and backyard, the warrant must specify this. If the warrant ONLY
lists the house, this will not entitle the officer to search the outside attached property.
 The warrant should list the physical objects that are being searched for (i.e. if a police officer is entering
the premises to acquire illegal drugs that are related to the criminal offence, this must be specified).
 Under s. 8 of the Charter, “a warrant to search a place does not by itself carry with it sufficient
authority…to further search a computer found within that place. Rather, a prerequisite for a valid
computer search is explicit judicial authorization involving due consideration of the distinctive privacy
concerns raised by such a search”.221
 Coughlan explains that today warrant provisions permit not only searches of places and spaces for things
and objects with search warrants, “but also obtaining data from financial organizations, using devices to
track the movements of persons or vehicles, obtaining records identifying who has transmitted a
particular message, obtaining DNA from a suspect, video surveillance, and more”.222
 An individual who is executing a search warrant has a responsibility and duty to have the warrant present
with them where practicable and to produce it upon request (R v Genest, [1989] 1 SCR 59).
 An important restraint on the search warrant power is the requirement for specificity in advance. It is not
enough for police to merely demonstrate they believe some type of evidence will be uncovered if a search
is conducted. Instead, police have to inform the issuing justice, with some reasonable degree of
exactitude, what type of evidence will actually be found.
If there is NO WARRANT (WARRANTLESS SEARCHES)

 As previously stated, a warrantless search or seizure is prima facie unreasonable (Hunter).
 Nonetheless, many searches do not involve a warrant.
 If there is no warrant, then turn to warrantless searches. Specific provisions in the Criminal Code make
warrantless searches justifiable and appropriate.
 There are multiple circumstances in which a warrantless search is permitted:
220
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 149; Debot; Plant; Kokesh; Grant.
221
Department of Justice, Canada, Section 8 – Search and Seizure; https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art8.html.
222
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 147; Criminal Code.
105
1) Search incident to arrest

 Police are entitled to search a person when there is a lawful arrest (previously discussed).
 It has been held that “strip searches incident to arrest may…be lawful and reasonable in some
circumstances, but such searches should only be carried out where the police have reasonable and
probably grounds to conduct the search for the purpose of discovering weapons or seizing evidence
related to the offence for which the detainee was arrested and demonstrate an urgency for such a search
being conducted in the field” (Golden)223.
2) Safety searches
 “A search incident to a lawful arrest must be based on reasonable grounds to believe that the search is
necessary for a valid objective related to the reasons for the arrest such as safety of the arrestee or
officer” (Cloutier; Caslake).
 Waterfield test: “the police was acting within their general scope (i.e. execution of their duties under
common law or statute) AND the conduct constitutes a justifiable interference with individual liberty
or privacy”.
 R v MacDonald (2014): duty to protect the public good (safety).
 Police officers also have a common law power to conduct searches incidental to investigative
detention. However, as held in Mann, Clayton and MacDonald, this is only justified if the police have
a reasonable ground to believe his safety is at risk (or the safety of others).224
3) Sniffer-dog search
 “In the context of routine crime investigations, investigative detentions where there are reasonable
grounds to detain (Mann), in schools (Kang-Brown) or in bus stations (A.M.) — and presumably by
extension in certain other locations — there exists, at common law, a police power to use sniffer dogs
where police have a “reasonable suspicion” that evidence of an offence will be discovered (Chehil; R.
v. Mackenzie [2013] 3 S.C.R. 250; Kang-Brown; A.M.).”225
 Think of the example of a dog trained to sniff out drugs at an airport.
 If a dog is sniffing you and barking, the police would have a justified reason to search you.
4) Warrantless searches authorized by consent
 It is entirely plausible for what would be considered a violation of s. 8 to be constitutional, if an
individual waives his or her right to privacy.
 However, for this waiver to be legal and acceptable, it must be fully informed and voluntary.
 Fully informed means that “a person must be provided with sufficient information to make the
preference meaningful” (Borden).226
 To be voluntary, the person providing the consent must have had a genuine option or choice in
providing it (Godbout).227
 Sum: If you consent to a search, it is a search authorized by law (justifiable)
 Example: when you enter a stadium to watch a ball game, you consent to being searched upon entry
5) Exigent Circumstances
 If pressing conditions or circumstances make it impractical to obtain a warrant, then a search that is
warrantless may be reasonable (Grant)228.
 Exigent circumstances do not only mean “convenience”, but also “urgency. Urgency would be defined
as something that requires immediate police action in order to, for instance, preserve evidence or
ensure the safety of the public (Paterson).229
223
Ibid.
224
225
226
R v Borden [1994] 3 S.C.R. 145.
227
R v Godbout v Longueil (City) [1997] 3 S.C.R. 844 at para [72].
228
R v Grant, 2009 SCC 32, ]2009] 2 S.C.R. 353.
229
R v Paterson, 2017 SCC 15 at paras [32] – [33].
106

If there is imminent danger of evidence, in terms of its loss or destruction, then exigent circumstances
will be applicable.
6) Plain View Doctrine
 A police officer may “validly seize clear evidence of wrongdoing that is in plain view provided that the
officers are otherwise lawfully engaged in the execution of their duties”. 230
(Mellenthin; Law; Belnavis; Boersma; Buhay at paragraph 37)
ii) Was the law itself reasonable?
If there is A WARRANT:
 If there was a warrant, then apply the four factors from Hunter231:
(a) the power to authorize a search and seizure is given to an impartial and independent person (at
common law a justice) who is bound to act judicially in discharging that function,
(b) that evidence must satisfy the justice that the person seeking the authority has reasonable ground to
suspect that an offence had been committed,
(c) that evidence must satisfy the justice that the person seeking the authority has reasonable grounds to
believe, at common law, that stolen property may be on the premises or, under s. 443(1)(b), that
something will afford evidence of an offence may be recovered, and
(d) there must be evidence on oath before him.
 These four conditions must be satisfied in the affirmative.
If there is NO WARRANT (WARRANTLESS SEARCHES)

 There is no strict principle or hard and fast rule for reasonableness (Thomson Newspapers; Goodwin).232
 When determining if the law itself is reasonable, analyze if it “strikes a reasonable balance between the
particular state interest that is pursued by the law and privacy”.233
 Factors to take into account when conducting the reasonableness analysis include the following 234:
o The nature and purpose of the legislative scheme: “a compelling public purpose will weigh more
heavily in the reasonableness analysis” (Goodwin; McKinlay Transport; Comite paritaire).
o The mechanism employed having regard for the degree of its potential intrusiveness and its
reliability: “generally speaking, a law authorizing a search or seizure should reflect the least
intrusive means by which the state interest can be achieved” (McKinlay Transport; Comite
paritaire; Goodwin; Saeed; Chamber des notaires).
o The availability of judicial supervision: in some situations, wherein warrants are not required,
“additional safeguards will be required to ensure the requisite level of transparency and
accountability, and to help ensure that such powers are not being abused (Tse at paragraphs 83-
84; Fearon at paragraph 82).
 Warrantless search powers have been deemed to be reasonable in a variety of contexts:
o Administrative and regulatory searches (McKinlay Transport; Comite paritaire; Thomson
Newspapers)
o Border searches (Simmons; Monney; Jacques)
o Roadside searches (Hufsky)
230
231
Hunter et al. v Southam Inc. [1984] 2 SCR 145.
232
Thomson Newspapers Limited v Canada (Director of Investigation and Research, Research, Restrictive Trade Practices Commission), [19900]
1 S.C.R. 425; Goodwin v Brisith Columbia (Superintenden of Motor Vehicles) 2015 SCC 46.
233
Shoker; S.A.B. at paragraphs 42-43; McKinlay Transport at page 643; Comité paritaire at pages 422 and 424; Rodgers at paragraphs 35-44; see
also Jarvis (2002); Branch; Mann; Clayton; and Wakeling, at paragraphs 66 and 81
234
Del Zotto v Canada, [1999] 1 S.C.R. 3; Goodwin v Brisith Columbia (Superintenden of Motor Vehicles) 2015 SCC 46 at para [57].
107
iii) Was the manner of the search reasonable?

o Searches can be found to be unreasonable if, according to Collins, the search was conducted in an
unreasonable manner
R v Collins: Para [24] “… if a police officer is told by a reliable source that there are persons in possession of
drugs in a certain place, the officer may, depending on the circumstances and the nature and precision of the
information given by that source, search persons found in that place under s. 10, but surely, without very
specific information, a seizure by the throat, as in this case, would be unreasonable.”
o Para 24 illustrates that the manner must align with the circumstances. I.e. if a man starts shooting a
gun and runs into a house, and the police chase him while tackling him to the ground to stop him, this
conduct (mannerism) will be reasonable in the circumstances. On the other hand, if the police have a
warrant to search a home and they enter the dwelling and immediately tackle the owner, who is
cooperating, to the ground, this would be unreasonable.
o The manner of a search will be deemed reasonable if the search is “no more intrusive than is
reasonably necessary to achieve its objectives”.235 If you have taken Canadian Constitutional Law,
this notion should sound familiar. It is very much aligned with one of the limbs of the Oakes test,
minimal impairment.
o You must measure the totality of the circumstances and apply logical reasoning here. In the case of
Cornell, it was held that when there is a warrant, reasonableness will be judged on the basis of
whether “the search overall, in light of the facts reasonably known to the police, was reasonable”. 236
o R v MacDonald (2014): the officer pushed the door no more than was necessary to find out what
MacDonald had behind his leg
o Other than an exigent and pressuring situation, police officers are required to make a declaration
prior to forcing entry into a private dwelling (Cornell).237
POWERS OF DETENTION
 S. 9 of the Charter: “Everyone has the right NOT to be arbitrarily detained or imprisoned” 238.
 Detention is a clear intrusion on one’s liberty and freedom, and as such, is a violation of section 7 of the
Charter: “Everyone has the right to life, liberty and security of the person…”.
 In common law, police officers have the power to detain individuals for investigative purposes.
 Nonetheless, the investigation has to be grounded on a “reasonable suspicion that the particular individual
is implicated in the criminal activity under investigation” for it to be deemed lawful (Mann).
 It will not always be straightforward as to whether a person is being detained or not. An accused may
argue he was being unlawfully detained, and as such, his charter rights were breached. However, the
reality may be that a police officer merely pulled him aside to ask him a few questions.
 Surely, it cannot be that every interaction with a state official constitutes a “detention”.
 Therefore, if you encountered a detention type question on the examination, it is likely that the difficult
component of the question will be first deciphering whether in fact a detention has occurred. Then, once
you have established there was a detention, you must determine if it was reasonable.
 In the case of Grant, the Supreme Court of Canada held that detention necessitates some form of physical
or psychological constraint by the state. It was defined as “a suspension of the individual’s liberty interest
by a significant physical or psychological restraint”.239
235
R v Vu [2013] SCC 60.
236
R v Cornell, [2010] 2 S.C.R. 142 at paragraph [31].
237
Ibid., at paragraph [18].
238
Constitution Act, 1982: Charter of Rights and Freedoms
239
R v Grant, 2009 SCC 32
108
Grant: Paragraph [33] “In most cases, it will be readily apparent whether or not an encounter
between the police and an individual result in a detention. Making the task easier is the fact that what
would reasonably be understood by all concerned is often informed by generally understood legal rights
and duties”
 Some examples of detention include:

o Traffic stops constitute a detention and as such, are a violation of s. 9; however, they are
justifiable (i.e. Oakes test) (Wilson).240
o Security certificates: in the case of Charkaoui, it was held that the Canadian security certificate
routine, “which enabled the pretrial detention of those suspected of posing a threat to national
security” was considered detention.241
o Police roadblocks are considered lawful detention (Clayton).
 In the case of Clayton, referred to directly above, police powers were expanded. Essentially, the court
concluded that police officers have the power to do anything that is reasonably necessary in the
circumstances; therefore, making arbitrary detention lawful in an expanded degree of situations.
R v Clayton [2007] 2 S.C.R. 725, 2007 SCC 32
The common law regarding police powers of detention requires the state to justify any interference with
liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of
the risk and the liberty at stake, and no more intrusive than reasonably necessary to address the risk. In
determining the boundaries of police powers, caution is required to ensure the proper balance between
enabling the police to perform their duties and the accused’s liberty and privacy interests.
The determination will focus on the nature of the situation, including the seriousness of the offence; the information
known to the police about the suspect or the crime; and, the extent to which the detention was reasonably
responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing
the seriousness of the risk to public or individual safety with the liberty interests of members of the public to
determine whether the nature of the stop is no more intrusive than reasonably necessary. Searches incident to an
investigative detention can be justified if the officer believes, on reasonable grounds, that his or her safety, or that
of others, is at risk.
Leading Cases
R v Grant, 2009 SCC 32

 This case assists in determining the question of whether someone is being detained. When there is
physical detention, the answer is quite straightforward. However, it is in circumstances wherein
physicality is lacking that the situation may be less clear.
 The test to consider whether a reasonable person in the individual’s circumstance would believe they
were being detained is an objective test (i.e. from the perspective of a reasonable person).
 At paragraph [44], the court provided the following summary:
1. Detention under section 9 and 10 of the Charter refers to a suspension of the individual’s
liberty interest by a significant physical or psychological restraint. Psychological detention
is established either where the individual has a legal obligation to comply with the restrictive
240
R v Wilson (1990) 1 S.C.R. 1291.
241
Charkaoui v Canada (Minister of Citizenship and Immigration) 2007 SCC 9.
109
request or demand, or a reasonable person would conclude by reason of the state conduct that
he or she had no choice but to comply.
2. In cases where there is no physical restraint or legal obligation, it may not be clear
whether a person has been detained. To determine whether the reasonable person in the
individual’s circumstances would conclude that he or she had been deprived by the state of the
liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived
by the individual: whether the police were providing general assistance; maintaining general
order; making general inquiries regarding a particular occurrence; or, singling out the
individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical
contact; the place where the interaction occurred; the presence of others; and the duration of
the encounter.
(c) The particular characteristics or circumstances of the individual where relevant,
including age; physical stature; minority status; level of sophistication.
R. v. Le, 2019 SCC 34 [detention]

Facts:
 One night, five young, racialized men were in a backyard when three police officers arrived. The young
men seemed to be doing nothing wrong. Two police entered without a warrant or consent.
 Right away, the police questioned the young men and asked for proof of their identities.
 A third officer came and directed one of the men to keep his hands where he could see them.
 One officer questioned the accused and asked him what was in the bag he was carrying.
 At that point, the accused fled, was pursued and arrested; the police found on him a firearm, drugs and
cash.
 At his trial, the accused sought the exclusion of this evidence under s. 24(2) of the Charter on the basis of
ss. 8 and 9 of the Charter.
 The trial judge held that he lacked standing to advance a s.8 claim, that he was detained only when the
officer asked him about the contents of his bag, that the detention was not arbitrary, and that had a breach
of Charter rights occurred, the evidence would be admissible.
 A majority at the Court of Appeal agreed and dismissed the accused’s appeal from his convictions.
Held:
 The circumstances of the police entry into the backyard effected a detention that was both immediate and
arbitrary.
 This was serious Charter infringing police misconduct, with a correspondingly high impact on the
accused’s protected interests. It was precisely this sort of police conduct that the Charter was intended to
abolish. On balance, the admission of the evidence would bring the administration of justice into
disrepute.
 The prohibition of arbitrary detention in s.9 of the Charter is meant to protect individual liberty against
unjustified state interference. It limits the state’s ability to impose intimidating and coercive pressure on
citizens without adequate justification.
 Not every police-citizen interaction is a detention within the meaning of s.9; a detention requires
significant physical or psychological restraint.
 Psychological detention by the police can arise in two ways: (1) the claimant is legally required to
comply with a direction or demand by the police; or (2) a claimant is not under a legal obligation to
110
comply with a direction or demand, but a reasonable person in the subject’s position would feel so
obligated and conclude that they were not free to go.
 Therefore, even absent a legal obligation to comply with a police demand or direction, and even absent
physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s
shoes would feel obligated to comply with a police direction or demand and that they are not free to
leave.
 In determining the point of detention for the purposes of s.9 of the Charter, it is essential to
consider all of the circumstances of the police encounter. The Court in R. v. Grant, 2009 SCC 32,
[2009] 2 S.C.R. 353, adopted three non-exhaustive factors that can aid in the analysis.
 In the instant case, each of these factors support the conclusion that the accused’s detention began the
moment the police entered the backyard and made contact with the young men.
 The first factor — the circumstances giving rise to the encounter as they would reasonably be
perceived by the individual — supports a finding of detention arising prior to the officer’s inquiry
about the contents of the accused’s satchel. The conduct of the police exceeded the norms of
community policing, there was no obvious cause for any police presence in the backyard, the police never
expressly communicated to the young men why they were there, they immediately started questioning
them, and the height of the fence allowed full interaction without entry. Therefore, a reasonable person
would not perceive the police entry into the backyard as merely assisting in meeting needs or maintaining
basic order.
 The second factor — the nature of the police conduct — supports the conclusion that a detention
arose as soon as the police officers entered the backyard and started asking questions. When the
police enter a private residence as trespassers, as they did here, it both colours what happens subsequently
and strongly supports a finding of detention at that point in time. The actions of the police and the
language used may show that the police are immediately taking control of a situation. Here, the
contemporaneous actions of the police and the language employed illustrate they were exerting dominion
over the individuals in the backyard from the time of entry. Furthermore, with respect to the place where
the interaction occurred and the mode of entry, the nature of any police intrusion into a home or backyard
is reasonably experienced as more forceful, coercive and threatening than when similar state action
occurs in public. Coming over the fence to enter a private residence conveys a show of force. Here, there
was a tactical element to the encounter and the mode of entry involving three uniformed officers suddenly
occupying a backyard and taking control over the people in it late at night would be seen as coercive and
intimidating by a reasonable person.
 With respect to the third factor — the particular characteristics or circumstances of the individual
—, a reasonable person imbued with the experiences that accompany the accused’s particular
circumstances would conclude that there was a detention from the moment the officers entered the
backyard and started asking questions. Courts must appreciate that individuals in some communities
may have different experiences and relationships with police than others and such may impact upon their
reasonable perceptions of whether and when they are being detained. At the detention stage, the analysis
takes into consideration the larger, historic and social context of race relations between the police and the
various racial groups and individuals in our society. The reasonable person in the shoes of the accused is
presumed to be aware of this broader racial context. What a reasonable person may perceive may also be
influenced by age and the knowledge, life experience and discernment associated with that age
group. The focus of the s.9 analysis should not be on what was in the accused’s mind at a particular
moment in time, but rather on how the police behaved and, considering the totality of the
circumstances, how such behavior would be reasonably perceived by a person imbued with the
experiences that accompany the accused’s particular circumstances. In this case, the documented
history of the relations between police and racialized communities would have had an impact on the
perceptions of a reasonable person in the shoes of the accused. Research studies have established that
111
racial minorities are both treated differently by the police and that such differential treatment does not go
unnoticed by them.
 The Court held that in this case, in view of the application of the three Grant lines of inquiry, admission
of the fruits of the police conduct would bring the administration of justice into disrepute, and as such, the
evidence must be excluded.
R v Spencer, 2014 SCC 43 [reasonable expectation of privacy; good illustration of step 1 and 2]
Facts:
 The police discovered an individual had been using an Internet Protocol (IP) address to access and store
child pornography. This was done via an Internet file-sharing program.
 Without a warrant, the police obtained from the Internet service provider, Shaw, the individual’s
subscriber data (i.e. the subscription affiliated with the IP address).
 With the data that Shaw provided the police, the police obtained a warrant to search Spencer’s home and
seize his computer.242 The police found child pornography images and videos.
Held:
 The Court held that in order to determine if there is a reasonable expectation of privacy in the totality of
the circumstances, a plethora of factors must be weighed.
 Recall: when we are at the phase of determining if there is in fact a reasonable expectation of privacy, we
are at the very beginning, in that, we have not even established whether a search has occurred or not.
Remember, if there is NO reasonable expectation of privacy = No search; and if there is no search, then
the Charter is (likely) not engaged.
 The core issue in the case was outlining the subject matter of the search and determining if the accused
had a reasonable subjective expectation of privacy.
 To establish the reasonableness of his expectation of privacy, the Court had to analyze “the nature of the
privacy interest at stake”.243
 The Court stated: “When defining the subject matter of a search, courts have looked not only at the
nature of the precise information sought, but also at the nature of the information that it reveals.
In this case, the subject matter of the search was not simply a name and address of someone in a
contractual relationship with the ISP. Rather, it was the identity of an Internet subscriber which
corresponded to particular Internet usage.”244
 In other words, if a great deal of information is exposed, this would imply the person would more likely
have a subjective expectation of privacy. Further, the more sensitive the data revealed, the higher the
likelihood a subjective expectation of privacy will exist.
 The primary concern was with informational privacy, which is “equated with secrecy or
confidentiality”.245 Spencer had an expectation of privacy (i.e. totality of circumstances).
 NOTE: we have passed step 1 – determining whether there was a search. Now we move onto stage 2 –
was the search unreasonable?
 REMEMBER the Collins test!
R v Collins: Paragraph [23] A search will be reasonable if it is authorized by law, if the law itself is
reasonable and if the manner in which the search was carried out is reasonable…
242
2014 SCC 43 at para [12].
243
2014 SCC 43
244
Ibid.
245
112
 i) Was the search authorized by law? “Whether the search in this case was lawful will be dependent on
whether the search was authorized by law. Neither s. 487.014(1) of the Criminal Code, nor PIPEDA,
creates any police search and seizure powers…”
 In the circumstances of the case, it was found that the police did not act in an exigent situation or within a
reasonable law.
 Thus, the search violated the Charter. If it were not for the subscriber information, the warrant could not
have been acquired.
 At para [77], the court went on to hold that “the police, however, were acting by what they reasonably
thought were lawful means to pursue an important law enforcement purpose”.
 At para [80], it was declared that
Society has both a strong interest in the adjudication of the case and also in ensuring that the
justice system remains above reproach in its treatment of those charged with these serious
offences…The impugned evidence (the electronic files containing child pornography) is reliable
and was admitted by the defence at trial to constitute child pornography. Society undoubtedly
has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a
crime which implicates the safety of children.
 Consequently, it was held that NOT admitting the evidence would bring the administration of justice into
dispute (thus, ADMIT evidence).
R v Marakah, 2017 SCC 59

 This case concerned whether text messages can attract a reasonable expectation of privacy and as such,
be protected against unreasonable search or seizure under section 8 of the Charter.
 McLachlin C.J. and Abella, Karakatsanis and Gascon JJ held that the totality of circumstances must be
reviewed to determine if a reasonable expectation of privacy exists.
 The judges went on to explain that in order to claim s.8 protection, claimants have to demonstrate that
they “had a direct interest in the subject matter of the search, that they had a subjective expectation
of privacy in that subject matter and that their subjective expectation of privacy was objectively
reasonable”.246
 The court listed a variety of factors that can help in establishing if it was objectively reasonable to expect
privacy:
o (1) the place where the search occurred whether it be a real physical place or a metaphorical chat
room (paras [25] – [30])
o (2) the private nature of the subject matter, that is whether the informational content of the
electronic conversation revealed details of the claimant’s lifestyle or information of a biographic
nature (paras [31] – [37]); and
o (3) control over the subject matter (paras [38] – [45]).
 The court held that the accused did have a reasonable expectation of privacy in the text messages.
 At para [81], the court concluded: “the search was unreasonable and violated Mr. Marakah’s right under
s.8. It follows that the evidence is prima facie inadmissible. Since I conclude that its admission against
Mr. Marakah would bring the administration of justice into disrepute, it must be excluded under s. 24(2)
of the Charter”.
R. v. Mills, 2019 SCC 22

Facts:
246
2017 SCC 59
113
 A police officer posed online as a 14-year-old girl named Leann, with the intent of catching Internet child
lurers. Using Facebook and Hotmail, M sent Leann sexually explicit messages and arranged a meeting in
a park, where he was arrested and charged with child luring.
 Without having obtained prior judicial authorization, the officer used screen capture software to create a
record of his online communications with M as evidence for trial.
 M applied for the exclusion of the evidence. The trial judge found that the messages were “private
communications” as defined in s. 183 of the Criminal Code and that prior judicial authorization to capture
the messages under s.184.2 of the Criminal Code was therefore required from the point at which the
police had determined that M had a potentially inappropriate interest in a minor.
 He also held that the use of the screen capture software generated a seizure of the communications, and
that M had an expectation of privacy in his communications.
 He therefore found that the police breached s.8 of the Charter. However, he found that admitting the
evidence would not bring the administration of justice into disrepute and he convicted M. T
 The Court of Appeal held the trial judge had erred in concluding that authorizations under s.184.2 were
required and found that M’s expectation of privacy was not objectively reasonable. It held that M’s
s.8 rights were not infringed and therefore upheld the conviction.
Held:
 Section 8 of the Charter was not engaged when the officer captured M’s electronic communications.
 To claim s.8’s protection, an accused must show a subjectively held and objectively reasonable
expectation of privacy in the subject matter of the putative search.
 M could not claim an expectation of privacy that was objectively reasonable because M was
communicating with someone, he believed to be a child, who was a stranger to him, and the investigatory
technique meant that the undercover officer knew this when he created her.
 On the facts of this case, giving judicial sanction to the particular form of unauthorized surveillance in
question would not see the amount of privacy and freedom remaining to citizens diminished to a compass
inconsistent with the aims of a free and open society, if expectations of privacy are to express a
normative, rather than descriptive, standard. Therefore, the sting did not require prior judicial
authorization.
 Objective reasonableness is assessed in the totality of the circumstances, along four lines of inquiry.
The first three inquiries are an examination of the subject matter of the alleged search, a
determination as to whether the claimant had a direct interest in the subject matter and an inquiry
into whether the claimant had a subjective expectation of privacy in the subject matter. These lines
of inquiry support M’s claim to an expectation of privacy. The subject matter is the electronic
communications, and they have no legally significant distinction from text messages. M intended to have
a one-on-one online conversation. As a participant and a co-author of the communications, M had a direct
interest in the subject matter, and he expected the communications to be private.
 The fourth inquiry is whether M’s subjective expectation of privacy was objectively reasonable
having regard to the totality of the circumstances. Determining objective reasonableness is a
normative question about when Canadians ought to expect privacy given the applicable considerations.
On a normative standard, adults cannot reasonably expect privacy online with children they do not
know. This appeal involves a particular set of circumstances, where the nature of the relationship and the
nature of the investigative technique are decisive.
 While society values many adult-child relationships as worthy of s. 8’s protection, this relationship is not
one of them.
114
 With respect to the investigative technique, the police knew from the outset that the relationship was
fictitious, and that Leann was truly a stranger to M. They could confidently and accurately conclude that
no s. 8 concern would arise from reviewing these communications.
 Section 8 jurisprudence is predicated on police obtaining prior authorization before a potential privacy
breach. No such potential existed in this case.
 Section 184.2 does not apply in the instant case because a communication made under
circumstances in which there is no reasonable expectation of privacy cannot constitute a “private
communication” for the purposes of s.183.
GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED
25. Securing Jurisdiction over the Accused and Interim Release
I. Gaining Jurisdiction over the Accused

 To adjudicate, a court must have jurisdiction over an accused. What does this mean? Essentially,
jurisdiction means the ‘legal authority’ of the court over the subject matter, time and location and person
in the proceeding.
 In the case of MacMillan Bloedel Ltd.247, the accused challenged the jurisdiction of the British Columbia
Supreme Court, claiming that it had no jurisdiction over him.
 The constitutional question, which was the heart of the matter, was whether it was within the jurisdiction
of Parliament to grant jurisdiction to youth courts.
 Jurisdiction is largely affiliated with geographic area, region or territory. This is referred to as the
“principle of territoriality”. In the case of R v Hape, the Court held the following248:
The principle of territoriality extends to two related bases for jurisdiction, the objective
territorial principle and the subjective territorial principle. According to the objective
territorial principle, a state may claim jurisdiction over a criminal act that commences or occurs
outside the state if it is completed, or if a constituent element takes place, within the state, thus
connecting the event to the territory of the state through a sufficiently strong link: Brownlie, at p.
299…Subjective territoriality refers to the exercise of jurisdiction over an act that occurs or has
begun within a state’s territory even though it has consequences in another state.
 S. 96 of the Constitution Act, 1867: Superior Courts have inherent jurisdiction, meaning that they “have
jurisdiction over all civil and criminal matters unless expressly removed by statute”. 249
247
MacMillan Bloedel Ltd. v Simpson, [1945] 4 SCR 725.
248
2007 SCC 26 at para [59].
249
MacMillan Bloedel Ltd. v Simpson, [1945] 4 SCR 725.
115
 In Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, Dickson J analyzed s. 96 of the Constitution
and made the following declaration: … “the intended effect of section would be destroyed if a province
could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the
jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity,
through a unitary judicial system, would be gravely undermined”.250
 Provincial or Territorial Courts derive their power from statute alone (Doyle).251
 These courts are granted the power and clout to control and manage the court’s process.
 It is possible for a provincial court to lose its jurisdiction in the event an error or serious omission is made
in relation to the court process dictated in statute.
 It was held in Bessette that “A jurisdictional error occurs where a court fails to observe a mandatory
provision of a statute or acts in breach of the principles of natural justice”.252
 In Bessette, the court recognized that s, 530 of the Criminal Code is a “mandatory statutory provision”. It
mandates that a judge “SHALL GRANT” a French trial if the accused makes an application for one. If
this is not abided by, the provincial judge will lose jurisdiction.
 NOTE: In today’s modern legal practice and system, losing jurisdiction is less of an issue; section 485 of
the Criminal Code permits most mistakes and allows them to be excused.
Statute of Limitations on Crimes253

 As discussed much earlier in the notes, there are three types offences in Canadian criminal law:
summary conviction offences, indictable offences and hybrid offences.
 For indictable offences, no statute of limitations exists.
 For summary conviction offences, the limitation period begins running on the date the offence was
committed. Summary offences are barred 2 years after this date of commission.
 In terms of hybrid offences, the answer depends on how the Crown elects to proceed, summarily or
by way of indictment.
II. The Arrest

 The procedures to compel appearance in court include arrest, a summons or an appearance notice
 There has been some concern in regard to the over-reliance on the use of arrest (Department of Justice
Canada).
 Arrest is the most intrusive way to compel appearance. It violates a person’s section 7 Charter right:
“right to life, liberty and security of the person…”. Thus, an arrest must be justified.
 There are two types of arrest:
o With a warrant: you go to a justice who signs off on an information
o Without a warrant: citizen’s arrest; when someone is in the act and a police officer makes an
arrest; etc.
 Remember: you have rights when you are arrested
o Reasons to arrest; right to be informed of the right to counsel; your phone call; etc.
 NOTE: this section below will cover arrest with a warrant, arrest without a warrant and rights upon arrest.
Arrest with a WARRANT

 A warrant is one of the ways to secure an accused’s attendance in court.
250
Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 at p. 728.
251
R v Doyle, [1977] 1 SCR 597; R v SJL (2002), 163 CCC (3d) 560 (BCCA).
252
Bessette v British Columbia (Attorney General), 2019 SCC 31.
253
“Criminal Code”: Section 46: Government of Canada. 2018-09-19. Retrieved 16 July2015.
116
 As per the Criminal Code, section 504, “anyone who, on reasonable grounds, believes that a person has
committed an indictable offence may lay an information in writing and under oath”.
 A justice is not permitted, by virtue of section 507(2), to reject issuing a summons or warrant on the basis
that the accused may be arrested without a warrant.
 Section 513 of the Criminal Code addresses the formalities of a warrant.
 Sections 504 to 514 pertaining to warrants should be reviewed in the Criminal Code.
 If a court issues a warrant, it may be executed in Canada (anywhere) UNLESS, it is issued by a provincial
court judge or a justice.
 Essentially, a warrant authorizes a peace officer (section 514 (2)) to:
1. Arrest the name person; and
2. Bring that person “before a judge in the territorial division in which the warrant was issued”. 254
Arrest WITHOUT A WARRANT

 By virtue of section 495 of the Criminal Code, peace officers may arrest a person without a warrant. The
limitations to this are listed in subsection (2) and the ramifications of arresting an accused without a
warrant are detailed in subsection (3) (see below).
Arrest without warrant by peace officer255

495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has
committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or
committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial
jurisdiction in which the person is found.
Limitation
(2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable
on summary conviction, or
(c) an offence punishable on summary conviction,
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances
including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another
offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will
fail to attend court in order to be dealt with according to law.
Consequences of arrest without warrant

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully
and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person
making the allegation that the peace officer did not comply with the requirements of subsection (2).
 The circumstances wherein a peace officer may make an arrest without having obtained a warrant are
listed in section 495(1):
254
R v Charles, 2012 SKCA 34 (CanLII), per Smith JA, at para. 9.
255
117
o There are reasonable grounds a person HAS committed an indictable offence;

o There are reasonable grounds a person is ABOUT TO COMMIT an indictable offence;
o A person IS committing an indictable offence; OR
o A person has a WARRANT out for his/her arrest.
 If the person is in the act of committing a summary offence, then the peace officer has limited authority to
arrest that person.
 As per Hayes, a common law power does exist permitting peace officers to make a warrantless arrest in
the situation where the peace officer holds an honest and reasonable belief that there is an infringement of
the peace.256
 Section 495 uses the wording “reasonable grounds”. But what are “reasonable grounds”?
 The case of Warford provides clarification.257 The appropriate test to establish whether the arrest was
lawful involves two steps:
(1) Did the police officer, from a subjective perspective, have a reasonable and probable grounds
for arresting the suspect; and
(2) Could a reasonable person in the position of the officer conclude that there were reasonable
and probably grounds for arrest.
 From this test, it is clear that a subjective and objective element are involved.
 REMEMBER: a warrantless search is always prima facie “unreasonable” (Caslake). Therefore, the
Crown must justify that the action was lawful (this is similar to search and seizures discussed earlier).
 S. 494 of the Criminal Code addresses what is commonly known as “citizen’s arrest”. As per s. 494 (1)
ANYONE may arrest WITHOUT a warrant258
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes:
 (i) has committed a criminal offence, and
 (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest
that person.
 The Department of Justice offers important information in regard to making a citizen’s arrest. 259 Visit the
link provided in the footnote for more information.
 The Department advises that as to what one should consider before making a citizen’s arrest (i.e. would
your personal safety be in jeopardy) and provides what one should do if they do decide to make a
citizen’s arrest (i.e. call the police, inform the suspect you are making a citizen’s arrest). 260
What are your rights on arrest?

 The Charter protects persons who are arrested or detained by police through a number of it provisions.
 S. 10(a) of the Charter, Right to be informed of reasons for detention or arrest: “Everyone has the right
on arrest or detention: a. to be informed promptly of the reasons therefor”.
 This provision must be analyzed carefully.
 Reading between the lines reveals that it essentially states that a person is not mandated or obliged to
submit to an arrest if they are not given the reasons for that arrest. A person must be informed of the
justification for the arrest to be able to decide to submit to it.
 Moreover, a person must be informed in terms that they can comprehend. In the case of Evans, despite
the police officer’s knowledge of the accused’s mental condition, the officer “failed to make reasonable
256
Hayes v Thompson 1985 CanLII 151 (BC CA), (1985), 18 C.C.C. (3d) 254; Brown v Durham (Regional Municipality) Police Force, [1998] O.J.
No. 5274
257
R v Warford, 2001 NFCA 64.
258
259
Department of Justice, Canada. The information was directly pulled from https://www.justice.gc.ca/eng/rp-pr/other-autre/wyntk.html.
260
Ibid.
118
efforts to ensure that he actually understood when – and how – he was entitled to exercise his right to
counsel”.261
 The Court in Evans held:
A person who does not understand his or her right cannot be expected to assert it. The purpose of s.
10(b) is to require the police to communicate the right to counsel to the detainee. In most cases one
can infer from the circumstances that the accused understands what he has been told. … But where…
there is a positive indication that the accused does not understand his right to counsel, the police
cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate
that understanding262.
 Therefore, the police have a duty beyond simply reading an individual’s their rights; they must also do
their due diligence to ensure that the person understands the rights.
 S. 10(b) of the Charter, Right to Counsel: “Everyone has the right on arrest or detention: b. to retain and
instruction counsel without delay and to be informed of that right”.
 The purpose and function of s. 10(b) is to offer a person who has been arrested or detained with a chance
to acquire legal advice.
 The right to remain silent is also a right that falls within this area. It is guaranteed by s. 7 of the Charter:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice”.
 The right to remain silent flows from s. 7 and implies that an individual does not have to talk to a police
officer, if they do not wish to.
Summary of Rights Upon Being Arrested/Detained

 Right to be informed why you are being detained or arrested
 Right to be searched in a reasonable manner
 Right to remain silent
 Right to speak with a lawyer
III. Compelling Appearance Without a Warrant

 There are multiple ways in which a person can be compelled to attend court.
 To compel an appearance, one of the following three steps must be taken:
o serve an appearance notice on the accused;
o arrest the accused; or
o lay a charge and issue a warrant or summons
 If a notice of appearance is served, the person served with the notice will be directed to attend court at a
specific time/date and place (before charges have been laid)
 A summons to appear is a court-ordered document mandating a person to appear in court.
 A summons is issued AFTER a person is charged with an offence (after charges have been laid).
 Arrest should be used as a last resort method to compel the appearance of a person.
 The criminal prosecution process commences with either:
o An Arrest and/or
o The police laying charges OR the swearing to an information before a Justice of the Peace.
Laying Charges
 An individual will go from being ‘suspect’ to the ‘accused’ once an information is laid.
 Before an information is laid, a person is just a “suspect”.
 A charge is created when information is laid.
261
R v Evans [1991] 1 S.C.R. 869.
262
Ibid., per Justice McLachlin at p. 305.
119
 This can occur before OR after an arrest is made by a peace officer.

 S. 504 of the Criminal Code: “Anyone who, on reasonable grounds, believes that a person has committed
an indictable offence may lay an information in writing and under oath before a justice, and the justice
shall receive the information, where it is alleged…”
 An information must be sworn by an officer who has “reasonable and probable grounds” to believe the
offence described has been committed by the accused (as per s. 504).
 When the information is sworn, it commences ‘criminal proceedings’ against the accused.
 In the Criminal Code, it is s. 505 that addresses the time within which an information may be laid.
 Section 506 outlines the form of information (Form 2 of the Code).
What if Charges have NOT been laid? How do you compel appearance (pre-charge)?
 It is possible for a peace officer to compel a person to appear in court BEFORE there is a laying of
information in the event that the peace officer decides that individual should be prosecuted.
 This can be achieved through an arrest (when a police officer makes an arrest, they can decide whether to
lay a charge or not).
 Alternatively, the Criminal Code sets out that an appearance notice, promise to appear to or recognizance
may be used.
 S. 507(7): Promise to appear or recognizance deemed to have been confirmed.
 Appearance notices are used for summary or hybrid offences. Under s. 495(2), a police officer shall not
arrest a person to ensure their attendance in court “where the offence is one under s. 553, a summary or
hybrid offence”.
 Logically, officers do not typically want to arrest individuals for less serious offences.
 It is an offence to fail to attend court after being served with an appearance notice, as stipulated in s.
145(2) of the Criminal Code263.
Failure to Attend Court

145(2) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than two
years or is guilty of an offence punishable on summary conviction who,
(a) Being at large on their undertaking or recognizance given to or entered into before a justice or
judge, fails, without lawful excuse, to attend court in accordance with the undertaking or
recognizance; or
(b) Having appeared before a court, justice or judge, fails, without lawful excuse to attend court as
subsequently required by the court, justice, or judge or to surrender themselves in accordance
with an order of the court, justice or judge, as the case may be
When Charges HAVE been laid (post-charge)

 Once charges have been laid, the accused may not be released and kept in custody, UNLESS granted bail
(which will be discussed hereafter).
 Alternatively, the accused may be released with conditions OR without conditions.
 Finally, a summons may be issued (or a warrant for the arrest of the accused) commanding the
appearance of the accused in court.
 S. 507(4) of the Criminal Code states: “Where a justice considers that a case is made out for compelling
an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the
accused unless”…there are “reasonable grounds to believe that it is necessary in the public interest to
issue a warrant for the arrest of the accused”.264
263
264
120
 Thus, a summons should be used first, and only if it is not reasonable in the circumstances should a
warrant then be an option.
IV. Bail Hearing

 If a person is arrested and not released right away, then they will most likely have a bail hearing.
 At this hearing, it is decided whether a defendant can be released from jail until the trial
 If you think about it logically, offering bail is critical in terms of the principles of fundamental justice.
Let’s say accused persons were never given bail and instead were kept in custody until their trial. What
about those who are innocent? They will have spent time in jail, a violation of their Charter 7 right,
without any justification.
 A bail hearing is NOT a trial. An accused’s guilt is not decided at a bail hearing.
 Rather, at a bail hearing it is determined whether the accused should remain in jail until the criminal court
trial (i.e. denied bail) or whether they can go back out into the community until the trial date (i.e. granted
bail).
 NOTE: A bail judge is not a “court of competent jurisdiction” for the purpose of violations of the Charter.
As such, it is not the proper forum for Charter relief (section 24). 265
 A bail hearing is referred to as a ‘show cause hearing’. The reason for this is because the Crown is
obliged to demonstrate why the accused should remain in custody, rather than be released into the
community.266
Ladder Approach
 To uphold the principals of fundamental justice and impose the minimal degree of impairment to a
person’s Charter rights, a “ladder approach” is used.
o ‘Ladder Approach’: start with the least onerous (least strict) measure (i.e. bail without
conditions); the Crown must ‘argue its way up’.267
o The Crown must be the one who justifies increasing the step of intrusiveness (stricter)
 S. 515(2) outlines a range of constraints on liberty, “short of detention”, as conditions of release:
Release on undertaking with conditions, etc.268
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause
why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with
such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such
conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without
sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing
with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does
not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his
entering into a recognizance before the justice with or without sureties in such amount and with such
conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or
other valuable security as the justice directs.
265
266
Steps to Justice: your guide to law in Ontario. 2018 CLEO. A bail hearing is referred to as a ‘show cause hearing’. The reason for this is because
the Crown is obliged to demonstrate why the accused should remain in custody, rather than be released into the community.
267
R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509
268
121
 A causal link must exist between one of the conditions (a – e) and the charge. For instance, if the accused
is charged with possession, then weekly drug tests may be an imposed condition. Or if the accused was
caught selling drugs to students at a school, then a condition may be that the accused cannot go within
500 metres of any school property.
 The Crown must establish why an order without any conditions is NOT adequate or sufficient
(remember: the ladder approach means starting from the ground up – i.e. the most minimal to the most
onerous restrictions) for an order under s. 515(2) to be made.269
Release order without conditions

515 (1) Subject to this section, when an accused who is charged with an offence other than an offence
listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is
accepted, make a release order in respect of that offence, without conditions, unless the prosecutor, having
been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of
the accused in custody is justified or why an order under any other provision of this section should be
made.270
 An undertaking without conditions enables an accused to be released as long as the accused gives his
word (promise) that he will attend court when necessary.
 As mentioned, if the Crown wants the accused to adhere to conditions when released on bail, the Crown
must justify to the judge or justice of the peace the reason for the additional conditions.
Continued Detention (Denial of Bail)

 As per s. 515(10) of the Criminal Code, an accused individual can be ordered to continue detention on
any of the following three grounds271:
Justification for detention in custody

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the
following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with
according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or
witness to the offence, or any person under the age of 18 years, having regard to all the circumstances
including any substantial likelihood that the accused will, if released from custody, commit a criminal
offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to
all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm
was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of
imprisonment or, in the case of an offence that involves, or whose subject matter is, a firearm, a
minimum punishment of imprisonment for a term of three years or more.
 In sum, an accused may be denied bail on the following grounds:

o It is necessary to ensure a court appearance
o It is necessary to ensure public safety
269
R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509
270
271
R v St-Cloud, (2015) 2 SCC 27
122
o It is “necessary to maintain confidence in the administration of justice” (St-Cloud).
Reverse Onus
 There are situations wherein the accused will be the one who bears the burden of proving why he or she
should be released back into the community (and not the other way around – i.e. the Crown having to
demonstrate why the accused should be kept in jail). This is called a “reverse onus”.
 A reverse onus will occur in the following situations:
o The accused was already on a release (i.e. granted bail) and is now facing new, unrelated charges
in criminal law (i.e. repeat offender now).
o The accused was already on a release and failed to adhere to the bail conditions that were
imposed (i.e. charged with a failure to comply, section 145 previously discussed)
o The accused was charged with a very serious offence(s) (listed in section 515(6)).
The Hearing
 As per the case of CGF, the Crown may make an application to adjourn the hearing, in which case the
judge has the discretion to delay a bail hearing for a period up to three days. This is done with the consent
of the accused (section 516).272
 Rigid rules of evidence are not applicable to a bail hearing, as it is quite an informal procedure. As
previously mentioned, it is not a trial, nor the proper forum to bring Charter violations.
 Nonetheless, this being said, the court is allowed to consider hearsay evidence, inclusive of the accused’s
admissions and concessions.273
STOP AND DISCUSS:

It is important to note how to approach bail hearing questions. Within the criminal package, there is a bail hearing
Q and A that will assist you in approaching a bail hearing type examination inquiries. You want to begin by
providing some background information on the bail hearing. For instance, state that it is not the trial; that it is not
the forum for Charter challenges and so forth. Next you want to proceed by determining whether there is a reverse
onus on the accused. If there is not a reverse onus, move on to the ladder approach and begun by explaining that
the first place to start is bail without conditions (elaborate on the principles of fundamental justice). Then,
depending on the facts of the case, demonstrate how the Crown will slowly move up the ladder by justifying more
onerous forms of conditions. If you conclude that it is necessary for the accused to remain in custody, refer to the
Criminal Code section 515(10) and the cases below.
Leading Cases
R v St-Cloud, 2015 SCC 27

 This case involved a bail hearing, wherein the detention order was restored (i.e. bail was denied).
Held:
 Wagner J stated that the reputation of the criminal justice system relies heavily on the “deeply held belief
of Canadians that the right to liberty and the presumption of innocence are fundamental values of our
society that require protection”.274
 NOTE: Analyze this statement made by Wagner J. - As discussed earlier, our legal system assumes
accused individuals are innocent, until the Crown is able to prove otherwise (that is, that they are guilty).
By detaining an accused in jail until their trial, we are essentially publicly expressing that we believe
272
R v CGF [2003] NSJ No. 456 (NSCA)
273
Re Powers and the Queen (1972), 9 C.C.C. 533 (Ont. H-CJ.); R v Zeolkowsh (1989), 50 C.C.C. (3d) 566 (S.C.C.) at p. 569.
274
2015 SCC 27 per Wagner J at para [1].
123
them to be guilty, for if we presumed them as innocent, there would be no dilemma with having them
released into the community until the date of their trial. Thus, to deny bail is to contradict a fundamental
principle of our justice system.
 Wagner J goes on to declare that the criminal justice system’s reputation also relies on “the confidence
citizens have that persons charged with serious crimes will not be able to evade justice, harm others or
interfere with the administration of justice while awaiting trial. The risk that one of these events might
tarnish the repute of the justice system was recognized by Parliament in enacting section 515(1) (a) and
(b) of the Criminal Code…”.275
 NOTE: As such, we see on the other hand that there needs to be some balance and reassurances provided
to society. If a crime is very serious, a risk cannot be taken in terms of allowing the individual to repeat
another serious criminal offence.
 The Court cited the case of Hall and held that attempts must be made to “strike an appropriate balance
between the rights of the accused and the need to maintain justice in the community”.276
 It was emphasized in the case that an accused has the right “not to be denied reasonable bail without just
cause” (section 11(e) of the Charter).
 RECALL: the three grounds for continued detention
o It is necessary to ensure a court appearance
o It is necessary to ensure public safety
o It is “necessary to maintain confidence in the administration of justice”
 This case focused upon the third ground for denying bail: “necessary to maintain confidence in the
administration of justice”.
 The Court emphasized that this is not a default provision to fall back on if the first two grounds fail. The
first two grounds are fairly straightforward, ensuring court attendance and safety.
 McLachlin C.J. stressed: “Bail denial to maintain confidence in the administration of justice is not a mere
“catch-all” for cases where the first two grounds have failed. It represents a separate and distinct basis for
bail denial not covered by the other two categories. The same facts may be relevant to all three heads…
But that does not negate the distinctiveness of the three grounds. [Emphasis added.]” 277
 The Court addressed the four circumstances listed within s. 515(10)(c) and elaborated upon each
circumstance:
i) Apparent Strength of the Prosecution’s Case

o The justice must take into account the quality of the Crown’s evidence to evaluate and determine the
“weight to be given to this factor in his or her balancing exercise. For example, physical evidence
may be more reliable than a mere statement made by a witness, and circumstantial evidence may be
less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent
strength of the case”.278
o The justice may also take into account any defence the accused raises. If the accused instead provides
no defence, the justice should consider this as well.
ii) Gravity of the Offence
o The Court held that “for the purposes of s. 515(10)(c), what the justice must determine is the
“objective” gravity of the offence in comparison with the other offences in the Criminal Code. This is
assessed on the basis of the maximum sentence – and the minimum sentence – if any – provided for
in the Criminal Code for the offence”.279
275
Ibid.
276
R v Hall, [2002] 3 S.C.R. 309 at para [41]
277
2015 SCC 27 per McLachlin at para [34].
278
2015 SCC 27, at para [58].
279
124
iii) Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was Used
o The Court did not detail an elaborate list for this specific factor; instead, the Court listed a few
critical circumstances including “the fact that the offence is a violent, heinous or hateful one, that it
was committed in a context involving domestic violence, a criminal gang or a terrorist organization,
or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a
disability)”.280
iv) Fact That the Accused Is Liable for a Potentially Length Term of Imprisonment
o There is no need to set out a rigid rule here. However, the Court did think it was important to provide
some guidance in this regard.
o This circumstance mandates subjective assessment (compared to the gravity of the offence which
entails an objective assessment).
o It must be approached on a case-by-case basis taking into account “all the circumstances of the case
known at the time of the hearing, as well as the principles for tailoring the applicable sentence”. 281
 Paragraph 88: “…if the crime is serious or very violent, if there is overwhelming evidence against the
accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered”
NOTE: if you are given a bail hearing question and it is clear the accused should remain in custody, you will be
required to justify this continued detention. It is probable that the third ground will be relevant to the problem
question, as it involves the most substance and room for illustrating your knowledge.
R v Antic, 2017 SCC 27

Facts:
 The accused, Antic, was arrested and charged with multiple drug and firearms criminal offences.
 At his bail hearing, he was denied release.
 Accordingly, he made an application for review of the detention order.
 The bail review judge refused to evacuate the order; he stated that he would have released Antic if he
could have imposed both a surety and a cash deposit as release conditions. But he went on to explain that
s. 515(2)(e) of the Criminal Code “permits a justice of the peace or judge to require both a cash deposit
and surety supervision ONLY if the accused if from out of the province and does NOT ordinarily reside
within 200 km of the place in which he or she is in custody”.282
 Because Antic was an Ontario resident who lived within 200km of the location/facility he was being
detained. As such, he did not meet the criteria listed in section 515(2)(e).
Held:
 The Court explained that the right not to be denied reasonable bail without just cause is a fundamental
ingredient of a sophisticated and progressive criminal justice system.
 It upholds the presumption of innocence at the pre-trial stage of the criminal trial process.
 The Court addressed the ladder approach, at para [47], emphasizing that the Crown must justify why a
more restrictive form of release is necessary.
 Each step in the ladder has to be analyzed separately and individually and must be declined prior to
proceeding to a more constrictive form of release.
 One of the most onerous and burdensome forms of release is a recognizance with sureties; as such, this
form should only be imposed if all the less onerous forms have been individually considered and rejected
because they were unsuitable.
280
281
282
R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509
125
 The Court held that it is not mandatory to “impose cash bail on an accused person if they or their sureties
have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A
recognizance is functionally equivalent to cash bail…. Cash bail should be relied on only in exceptional
circumstances in which release on a recognizance with sureties is unavailable”. 283
 It is important to recognize that with cash bail; the financial status of an accused becomes relevant. This
may be viewed as discriminatory in some respects, as only those with money can access bail.
 The court went on to declare that cash bails shouldn’t be set higher than reasonably necessary. There is a
positive obligation and duty on the judge to inquire into the accused’s ability to pay the cash bail.
 In conclusion, the court found that the bail review judge was in error, as he imposed one of the most
onerous forms of release without applying and adhering to the ladder principle.
 Cash bail is simply a restricted alternative to a pledge and should not be imposed in circumstances where
the accused or their sureties have substantial recoverable assets.
 The Court outlined the following guidelines when it comes to applying bail provisions 284:
[67] Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in
a contested hearing:
a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of
innocence is the constitutional right to bail.
b) Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on
reasonable terms.
c) Save for exceptions, an unconditional release on an undertaking is the default position when granting
release: s. 515(1).
d) The ladder principle articulates the manner in which alternative forms of release are to be imposed.
e) If the Crown proposes an alternative form of release, it must show why this form is necessary.
f) Each rung of the ladder must be considered individually and must be rejected before moving to a more
restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a
justice or a judge to order a more restrictive form of release without justifying the decision to reject the
less onerous forms.
g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be
imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.
h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably
recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their
release.
i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so
high that it effectively amounts to a detention order, which means that the amount should not be beyond
the readily available means of the accused and his or her sureties. warrant detention and proportionate to
the means of the accused and the circumstances of the case.
j) Terms of release imposed under s.515(4) may “only be imposed to the extent that they are necessary”
to address concerns related to the statutory criteria for detention and to ensure that the accused can be
released.
k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.
GETTING READY FOR TRIAL
26. Disclosure and Production

 A fundamental element of the Canadian criminal justice system, and to ensure it operates in a fair and
proper manner, is the right of an accused to disclosure of all relevant information that is in the
possession or control of the Crown.
 The exception to this principle is information that is privileged.
283
R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para [49]
284
2017 SCC 27 at para [67].
126
 This right is born out of the Charter, s. 7, “everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
 The right to disclosure is acknowledged as fundamental and necessary to the ability of an accused to
properly defend himself.
 All information and evidence that is inculpatory (shows blame; incriminating) and exculpatory (shows
innocence’ favourable to the accused) must be disclosed by the Crown, unless the evidence is obviously
irrelevant or, as mentioned, it is privileged.
 NOTE: Prior to the accused being called to elect his or her mode of trial (s. 536 indictable offences),
disclosure must be made.
 The online NCA syllabus neatly summarizes “third party records”:
The accused may also seek to secure relevant ‘third party records’ – relevant documents that are
not the fruits of the investigation and that are under the control of persons other than the
prosecution and police. This is referred to as ‘production’ rather than ‘disclosure’. Where third
party records are sought, complex applications must be brought, which differ depending on
whether the charge is a sexual offence prosecution or some other offence.
 NOTE: it is critical to realize that information that is relevant to a criminal case begins to be generated
from the moment an investigation is commenced. This means that in complicated and large cases, the
collection of data and information can start years before the trial date.
 The primary legal principles applicable to information disclosure in criminal matters were outlined by the
Supreme Court in R v Stinchcombe, [1991] 3 S.C.R. 326. These principles have been expanded upon and
applied in a plethora of subsequent cases.
Leading Cases
R v Stinchcombe, [1991] 3 S.C.R. 326

 The judgment was critical in expounding the requirements and principles of the Crown’s duty to
disclosure and accused’s right to disclosure.
 The important principles from the judgment are as follows (Crowns Obligation to Disclose) 285:
o The Crown has a legal duty to disclose all relevant information to the defence. Information in the
hands of the Crown is to be used to ensure justice is done.
o Crown counsel must respect privilege rules.
o The Crown must exercise discretion in terms of the relevance of information.
o The Crown's discretion is reviewable by the trial judge.
o “The absolute withholding of information which is relevant to the defence can only be justified on
the basis of the existence of a legal privilege. This privilege is reviewable, however, on the ground
that it is not a reasonable limit on the right to make full answer and defence in a particular case.”
o “Initial disclosure should occur before the accused is called upon to elect the mode of trial or
plead.”
o “Subject to the Crown's discretion, all relevant information must be disclosed, both that which the
Crown intends to introduce into evidence and that which it does not, and whether the evidence is
inculpatory or exculpatory. All statements obtained from persons who have provided relevant
information to the authorities should be produced, even if they are not proposed as Crown
witnesses.”
IMPORTANT TO REMEMBER: Crown Discretion to NOT DISCLOSE

 The Crown has discretion in regard to disclosure.
285
[1991] 3 S.C.R. 326, Per Sopinka J., under Crown’s Obligation to Disclose
127
 There are two categories wherein the Crown can utilize this discretion.
o Relevancy – arguing the subject matter or information is completely irrelevant to the case
o Privilege – the duty to respect the rules of privilege and the identity of informers
 The Crown’s discretion is reviewable, as per Stinchcombe, due to the fact that by failing to disclosure
information the Crown may be in breach of the accused’s Charter right (s. 11 – full answer and defence)
 If information is found to be irrelevant = then the Crown DOES NOT have to disclose the information
Stinchcombe, at para. 12: “The general principle is that all relevant information must be disclosed, whether
or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information,
whether it is inculpatory or exculpatory, and must produce all information which may assist the accused.”
R v O’Connor, [1985] 4 S.C.R. 411

 This case addressed the disclosure of medical and counselling records held by a third party.
Held:
Stay of Proceedings
 When an claims that non-disclosure by the Crown has infringed his or her Charter 7 right, he or she is
obliged to establish that the “impugned non-disclosure has, on the balance of probabilities, prejudiced or
had an adverse effect on his or her ability to make full answer and defence”.286
 The concentration must be on the impact of the impugned actions on the justness and fairness of the trial.
 What the Court is essentially saying is that unless the actions of the Crown (i.e. nondisclosure) impact the
trial in a negative manner, then the conduct of the Crown will not necessarily result in a stay of
proceedings. A stay of proceedings will only be granted if the fairness of the trial was in fact effect by the
Crown’s actions (failing to disclose information).
 Once it is established that the fairness of the trial was impacted, the court must devise a fair and suitable
remedy (s. 24 of the Charter).
 The court stated, “where the adverse impact upon the accused’s ability to make full answer and defence is
curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to
enable defence counsel to review the disclosed information, will generally be appropriate”. 287
 NOTE: An adjournment is simply a postponement of the proceedings. It is used in this circumstance to
give the defence time to review the new information. The court clearly will employ a method/tactic or
remedy that will have the least impact on the proceeding itself. A stay of proceedings is a halt in the legal
process. If a stay of proceedings endures for long period, it is stayed permanently.
 The four judges went on to declare that “there may, however, be exceptional situations where, given the
advanced state of the proceedings, it is simply not possible to remedy the prejudice. In those
‘clearest of cases’, a stay of proceedings will be appropriate.”
 NOTE: Therefore, if the problem of nondisclosure cannot be fixed by merely disclosing the information
to the defence and giving them time to review it, then a stay of proceedings will be a suitable remedy.
This is usually when a trial is towards the end and a lot of grounds have been covered. At this point, as
you can imagine, the judge or jury has probably made up their mind as to the accused’s guilt or has been
greatly persuaded and changing their perception at this point would be very challenging.
 The court came to the conclusion that though, the “Crown’s conduct…was shoddy and inappropriate, the
non-disclosure cannot be said to have violated the accused’s right to full answer and defence”.
 Therefore, a stay of proceedings was not obligatory to resolve the issue. This was not one of the “clearest
of cases”, which would “mandate a stay of proceedings”.
286
[1985] 4 S.C.R. 411, Per La Forest, L’Heureux-Dubé-Dube, Gonthier and McLachlin JJ
287
Ibid.
128
Production of Records in the Possession of Third Parties

 The Court set out the role of the defence in seeking information that is in the possession of third parties
and the necessary procedure and steps that need to be executed.
 Lamer C.J. and Sopinka J. stated288:
When the defence seeks information in the hands of a third party (as compared to the state), the onus
should be on the accused to satisfy a judge that the information is likely to be relevant. In order
to initiate the production procedure, the accused must bring a formal written application
supported by an affidavit setting out the specific grounds for production… notice must be given
to third parties in possession of the documents as well as to those persons who have a privacy interest
in the records. The accused must also ensure that the custodian and the records are subpoenaed
to ensure their attendance in the court … In the disclosure context, the meaning of "relevance"
is expressed in terms of whether the information may be useful to the defence. In the context of
production, the test of relevance should be higher: the presiding judge must be satisfied that
there is a reasonable possibility that the information is logically probative to an issue at trial or
the competence of a witness to testify.
Upon their production to the court, the judge should examine the records to determine
whether, and to what extent, they should be produced to the accused. In making that
determination, the judge must examine and weigh the salutary and deleterious effects of a
production order and determine whether a non-production order would constitute a
reasonable limit on the ability of the accused to make full answer and defence…the following
factors should be considered: (1) the extent to which the record is necessary for the accused to make
full answer and defence; (2) the probative value of the record; (3) the nature and extent of the
reasonable expectation of privacy vested in the record; (4) whether production of the record would be
premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant's
dignity, privacy or security of the person that would be occasioned by production of the record.
 Thus, the first phase involves the accused proving to the court that the information is relevant, and its
benefits outweigh any deleterious effects.
 The second stage involves the judge weighing the argument of the accused and examining the records in
order to make a determination.
 Step 1) If the defence seeks information that is in the hands of a third party, he or she must first satisfy
the judge that the information he or she is seeking is likely to be relevant.289.
 Once the “likely relevance” threshold is satisfied, the accused must then proceed to “satisfy the judge that
the salutary effects of ordering the documents produced to the court for inspection outweigh the
deleterious effects of such production”.290
 Step 2) The role of the judge comes in at the second stage – “balancing full answer and defence and
privacy”. It is the task and duty of the judge to make the determination of whether, and to what degree
and extent, the third-party documents should be produced.
Criminal Code (R.S.C., 1985, c. C-46)

Note: the syllabus directs students to see sections 278.1 – 278.91. Below a few of the provisions have been
provided. Rather than merely reiterate the sections here, you can simply refer to your Criminal Code for
all the provisions.
288
[1985] 4 S.C.R. 411
289
[1985] 4 S.C.R. 411 at para [19].
290
Ibid., per L’Heureux-Dubé-Dube J. at para [21]
129
Definition of record
278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal
information for which there is a reasonable expectation of privacy and includes medical, psychiatric,
therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal
journals and diaries, and records containing personal information the production or disclosure of which is
protected by any other Act of Parliament or a provincial legislature, but does not include records made by
persons responsible for the investigation or prosecution of the offence.
Application for production

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an
application to the judge before whom the accused is to be, or is being, tried.
Form and content of application

(3) An application must be made in writing and set out
(a) particulars identifying the record that the accused seeks to have produced and the name of the
person who has possession or control of the record; and
(b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at
trial or to the competence of a witness to testify.
Insufficient grounds
(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that
the record is likely relevant to an issue at trial or to the competence of a witness to testify:
(a) that the record exists;
(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the
complainant or witness has received or is receiving;
(c) that the record relates to the incident that is the subject-matter of the proceedings;
(d) that the record may disclose a prior inconsistent statement of the complainant or witness;
(e) that the record may relate to the credibility of the complainant or witness;
(f) that the record may relate to the reliability of the testimony of the complainant or witness merely
because the complainant or witness has received or is receiving psychiatric treatment, therapy or
counselling;
(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the
accused;
(h) that the record relates to the sexual activity of the complainant with any person, including the
accused;
(i) that the record relates to the presence or absence of a recent complaint;
(j) that the record relates to the complainant’s sexual reputation; or
(k) that the record was made close in time to a complaint or to the activity that forms the subject-
matter of the charge against the accused.
Judge may order production of record to accused

278.7 (1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or
to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may
order that the record or part of the record that is likely relevant be produced to the accused, subject to any
conditions that may be imposed pursuant to subsection (3)
R v McNeil, 2009 SCC 3

Facts:
130
 The accused who was convicted on multiple drug charges found out that the arresting officer was
engaged in drug-related misconduct. This misconduct led to him being disciplined and charged
criminally.
 The accused, in a preliminary motion, sought production of documents relation to the misconduct.
 The Court of Appeal held that no expectation of privacy existed (no O’Conner-type procedure was
mandated). Production of the criminal investigation files was ordered.
Held:
 The Crown’s duty to disclose all relevant documentation and information in its possession is well-known
under the Stinchcombe rule.
 Although the functions and roles of the Crown and police are discrete, the police do have an obligation to
partake in the disclosure process.
 The police have a duty to disclose to the Crown all material relating to its investigation of the accused. In
this regard, albeit the police are separate from the Crown, they are not a “third party”. Instead, they act
“on the same footing as the Crown”.
 The O’Conner procedure offers a general common law device for ordering production of any document
or record outside or beyond the possession or control of the Crown; it is not confined to cases wherein
third-party records attract a reasonable expectation of privacy.
Breach of Charter Section 7

 How can the accused establish that non-disclosure by the Crown violated their Charter right?
 Refer to case of O’Conner: “the accused must establish the non-disclosure prejudiced or had a negative
effect on their ability to make full answer and defence” (i.e. they did not fully know the “case to be met”).
 In Dixon, it was held that the accused is obliged to demonstrate that there is a reasonable possibility that
non-disclosure impact the outcome at trial OR the fairness of the trial procedure. 291
 The Court established a two-limb test to establish if a breach of disclosure impacted a full answer and
defence292:
o (1) the breach of disclosure impacted the result of the trial (in other words, if the jury had the
additional information, would it have created or instilled a reasonable doubt as to the guilt of the
accused?)
o (2) the non-disclosure impacted the overall fairness and justness of the process of the trial (i.e.
would have the disclosure greatly assisted the defence in their preparation and enabled them to
prepare a stronger argument?).
 The duty of the defence is to demonstrate a “reasonable plausibility”. The defence does not need to show
that the information/evidence would have in fact made a difference.
Privileged Information
 Information and materials that are in the hands of the Crown that are claimed to be “privileged”
CANNOT be compelled for disclosure UNLESS there are appropriate grounds for doing so. 293
 The test established in McClure establishes the grounds and basis for disclosure of privileged materials,
which mandates that the information and materials raise a reasonable doubt of guilt. 294
 McClure sets out the following threshold test:
(1) There must be NO OTHER SOURCE of the information sought (i.e., the information cannot
be obtained from any other source or person)
291
R v Dixon [1985] 1 S.C.R. 244
292
R v Dixon [1985] 1 S.C.R. 244
293
R v Polo, 2005 ABQB 250 (CanLII), per Clackson J at para 27.
294
R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0), at para [27].
131
(2) The accused is not able to raise a reasonable doubt without the information (i.e., the accused
has no other means of raising a reasonable doubt). This second prong relates to the accused’s
innocence (“innocent-at-stake exception). See footnote below.
Types of Privileged Information

Informer privilege
 This is considered a “class privilege”. The protection is “almost absolute” and is said to take the
form of “blanket confidentiality”.295
 The purpose of informer privilege is to protect the names or information of an informer
 Any information that may expose the identity of the informer falls under informer privileged
information.
 If this privilege did not exist, then informants would be hesitant and deterred from providing important
information to the police and state authorities.
 It was held in R v X and Y, that informer privilege is intended to protect informants in an effort
to296:
o “Promote the giving of assistance to the police by citizens in the investigation and prevention
of crime”; AND
o Protect informers from potential punishment or retaliation.
 For example, assume that a person is part of a gang and wants to get out of the gang. This individual
has very important details about criminal activity relating to the gang; however, the person fears for
their life. If it is found out that he revealed the information, it is likely that a member of the gang will
try and kill him. The individual will not want to provide the police with the information unless their
identity is protected, and it is not revealed that they were in fact the one who exposed the data about
the gang.
Solicitor-client privilege
 Information, communications and documents that are between a lawyer and his or her client are
protected by solicitor-client privilege.
 Clients must feel that they can trust their lawyers and lawyers require all the necessary details of a case
in order to properly defend their client and serve their client’s needs.
 For a claim of solicitor-client privilege to be made, three conditions must be satisfied 297:
(1) The communication must be between the lawyer and client.
(2) The communication must have been for the purpose of function of providing or seeking
legal advice; and
(3) The communication was intended and presumed to be confidential in nature
 In the case of Solosky, it was held by Justice Dickson, that solicitor-client privilege is a
“Fundamental civil and legal right” that guarantees a client “a right to privacy in their
communications with their lawyers even outside a courtroom”.298
National security privilege

 This category of privilege was formulated by the Canada Evidence Act (CEA)
295
Nissen v Durham Regional Police, 2015 ONSC 1268 (CanLII), per Gray J, at para 1; Named Person v Vancouver Sun, [2007] 3 SCR 253, per
Bastarache J, at para 4 ("In my view, informer privilege must remain absolute. Information which might tend to identify a confidential informant
cannot be revealed, except where the innocence of a criminal accused is at stake.") R v Basi, [2009] 3 SCR 389, per Fish J, at para 37 ("The informer
privilege has been described as ‘nearly absolute'") Leipert, [1997] 1 SCR 281, (SCC) at para 28.
296
R v X and Y, 2012 BCSC 326 (CanLII), per curiam, at paras 18-19.
297
Rules of Professional Conduct, section 3.
298
Solosky v The Queen, [1980] 1 SCR 821.
132
 According to s. 38 of the CEA, a regime is outlined that prevents the disclosure of information or
materials that “contain what is defined as sensitive or potentially injurious information in a criminal
proceeding without the consent of the Attorney General of Canada, or a court order”.299
 If disclosure is required because it meets the test in McClure, the Attorney General must be
notified.
 If a judge finds that no injury or damage will result, then they can authorize and permit disclosure.
27. Preliminary Inquiries

 The preliminary inquiry phase is all about determining if the Crown actually, “prima facie”, has a case.
 This inquiry “tests” the Crown’s case, which, if not strong enough (i.e. not enough evidence, not
believable evidence, etc.), will fail and not go to trial.
 As a matter of public policy and economics, the courts must utilize their resources efficiently and
effectively. If every case went to trial, then frivolous cases would exhaust the resources of the court and
cause massive delays.
 The ‘preliminary inquiry’ is codified in Part XVIII of the Criminal Code.
Purpose
 As per the case of O’Connor, the function of the preliminary inquiry is to establish whether there is
adequate and sufficient evidence to “set the matter down for trial before a Justice of the Superior court. In
practice, the inquiry is used to test the strength of the Crown’s case”.300
 NOTE: On the practice criminal exam (NCA online exams), one of the questions relates strictly to the
preliminary inquiry. The question asks: “will the accused be committed to stand trial?”. If you encounter
such an inquiry, be aware that this is specifically addressing whether the Crown has a strong enough case
(i.e. is there sufficient evidence) for it to be set down for trial.
 The purpose of the preliminary inquiry is designed to “protect the accused from a needless, and…
improper, exposure to public trial where the enforcement agency is not in possession of evidence to
warrant the continuation of the process” (Skogman).301
 According to Shephard, it is a “test for sufficiency” which mandates “sufficient evidence for each and
every element of the offence” (i.e. actus rea and mens rea).302
Commencement
 If the Crown is proceeding by indictment, then, typically, an accused will be entitled to a preliminary
hearing.
 RECALL: when charged with an indictable offence, the accused has the option of one of the modes of
trial: i) before a provincial court judge; ii) before a superior court judge without a jury; iii) before a
superior court judge with a jury.
 A preliminary hearing is not obligatory.
 A preliminary inquiry cannot be conducted at the same time as the trial, unless the preliminary inquiry is
specifically conducted for the purpose of disparate information and materials.
What happens at the preliminary hearing?

 The Crown will call its evidence; this is usually via witnesses who will take the stand and testify. The
preliminary hearing is a chance for the defence to evaluate and assess the case against the accused.
299
Public Prosecution Service of Canada; https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p4/ch02.html.
300
R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L’Heureux-Dube J, at para 134.
301
Skogman v The Queen, 1984 CanLII 22 (SCC), [1984] 2 SCR 93, per Estey J, at p. 105.
302
United States of America v Shephard [1977] 2 SCR 1067.
133
 At the end of the preliminary inquiry, the court will decide either to commit the accused to trial (case is
sent to trial) OR discharge the accused (the accused is basically acquitted).
Scope
 Section 535 of the Criminal Code speaks to an ‘inquiry by justice’.303
535 If an accused who is charged with an indictable offence that is punishable by 14 years or more of
imprisonment is before a justice and a request has been made for a preliminary inquiry under
subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge
and any other indictable offence, in respect of the same transaction, founded on the facts that are
disclosed by the evidence taken in accordance with this Part.
 S. 601(4) delineates the matters that should be taken into account when considering whether an
amendment should be made to the indictment or a count in it. This section authorizes a judge to make the
amendment(s) at the preliminary stage:
 The procedures before preliminary inquiry are contained in ss. 536.3 to 536.5 of the Criminal Code
(statement of issues and witnesses; order for hearing; agreement to be recorded; agreement to limit scope
of preliminary inquiry).
 The justice is permitted, by virtue of subsection (2) (agreement to be recorded), to record any admissions
of fact that are agreed to by all the parties and/or any concessions and agreements that were reached by
all the parties. This of course will assist in narrowing the issues for trial and make for a more expediate
process.
Presence of the Accused

 It is not mandatory for the accused to be present at the preliminary inquiry.
 As per the powers of the justice of the preliminary inquiry, s. 537(1)(j.1) states that a justice may “permit,
on the request of the accused, that the accused be out of court during the whole or any part of the inquiry
on any conditions that the justice considers appropriate…”.304
 When a request under j.1 is granted, it is the duty of the court to "inform the accused that the evidence
taken during his or her absence could still be admissible under section 715”.305
Multiple Accused and Multiple Counts

 As s. 536 (4.1) outlines (Preliminary inquiry if two or more accused), in situations wherein there are two
or more persons are jointly charged in an information and one or more of them make a request for a
preliminary inquiry under subsection (4), a preliminary inquiry must be held with respect to all of them. 306
 A judge is not permitted at the preliminary inquiry stage to order severance of the matter for multiple
accused persons. This also extends to multiple counts (i.e. multiple counts can also not be severed here).
 If, within an information, there exists multiple accused persons, they are entitled to individually request a
preliminary inquiry.
Adjournment
 A justice is permitted to adjourn the preliminary inquiry if it is desirable to do so.
 S. 537(1)(a): “adjourn an inquiry from time to time and change the place of hearing, where it appears to
be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at
the place where the justice usually sits or for any other sufficient reason”. 307
303
304
305
Criminal Code (R.S.C., 1985, c. C-46), section 537(1.01).
306
307
134
Address
 The accused must be read the paragraph contained in s. 541(2) of the Criminal Code before the justice
will hear any witness called by the accused who is NOT represented by counsel:
“Do you wish to say anything in answer to these charges or to any other charges which might
have arisen from the evidence led by the prosecution? You are not obliged to say anything, but
whatever you do say may be given in evidence against you at your trial. You should not make
any confession or admission of guilt because of any promise or threat made to you but if you do
make any statement it may be given in evidence against you at your trial in spite of the promise
or threat.”308
 If the accused, who does not have a legal representative, replies to the address, the response must be
written down and “shall be signed by the justice and kept with the evidence of the witnesses…” 309
Publication Bans
 Unless there is a publication ban, preliminary inquiries are open to the public.
 However, the evidence that is exposed at the preliminary inquiry is usually subject to a publication ban.
 S. 539(1) addresses orders restricting publication of evidence taken at the preliminary inquiry.
 Anyone who fails to comply with a publication ban is guilty of an offence punishable on summary
conviction.310
Inappropriate Questioning
 An examination or cross-examination of a witness may be immediately stopped if a justice is of the
opinion that it is “abusive, too repetitive or otherwise inappropriate”.
 This power of the justice to do so is contained under s. 537(1.1) of the Criminal Code.
Taking of Evidence
 Evidence of witnesses is taken “under oath” (section 540(1)(a)).
 The evidence under oath is recorded (section 540(1)(b)).
 The witnesses of the Crown are heard first. They may be cross-examined by the accused.
 A judge is not permitted to call witnesses other than the witnesses requested by the accused and the
Crown.
 As per subsection (7), a justice is permitted to receive any information as evidence that “would NOT
otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the
case, including a statement that is made by a witness in writing or otherwise recorded”. 311
Evidence of the accused

 Although, the preliminary inquiry is meant for the Crown to prove it has a meritorious case, the accused
is permitted, if the justice allows it, to provide evidence.
 S. 537(1)(g): “receive evidence on the part of the prosecutor or the accused, as the case may be, after
hearing any evidence that has been given on behalf of either of them”. 312
R v Arcuri, [2001] 2 S.C.R. 828
308
309
Criminal Code (R.S.C., 1985, c. C-46), section 541(3).
310
Criminal Code (R.S.C., 1985, c. C-46), section 539(3).
311
312
135
Facts:
 Arcuri was charged with first degree murder. At the preliminary inquiry, the case of the Crown was based
wholly on circumstantial evidence.
 At the preliminary inquiry, the accused was permitted to call witnesses. Two witnesses who were called
to the stand provided ‘exculpatory’ testimonies (i.e. evidence that showed the accused was innocent;
“freed from blame”)
 The preliminary inquiry judge refused the accused’s argument that he must weigh the evidence.
Issue:
 The main issue was whether the preliminary inquiry judge erred in rejecting to weigh the Crown’s
evidence against the accused’s evidence (i.e. not balancing evidence from both parties).
Held:
 The court held that the duty of the preliminary inquiry judge is equal in terms of analyzing the evidence
of the Crown and the accused.
 If the accused calls evidence, then this too should be granted weight (not the Crown’s evidence alone; nor
should the Crown’s evidence bear more weight).
 At para [29], the court declared: “Where the Crown adduces direct evidence on all the elements of the
offence, the case must proceed to trial, regardless of the existence of defence evidence, as by
definition the only conclusion that needs to be reached is whether the evidence is true. However, where
the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a
limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine
whether a reasonable jury properly instructed could return a verdict of guilty.” 313
 Thus, if the Crown produces all direct evidence on all of the elements (actus reus and mens rea) =
accused will stand trial.
 This will be the case, regardless of the evidence the defence.
 On the other hand, if the Crown’s evidence is mainly circumstantial evidence = the judge must weigh
ALL the evidence, inclusive of the defence’s evidence.
 In the latter situation, the judge must conduct an “air of reality” test = ask whether a reasonable jury
properly instructed could find the accused guilty.
 The court referred to s. 548(1) of the Criminal Code, stating the following 314:
…the mandate of the preliminary inquiry justice as is expressed in s. 548(1), which requires the
preliminary inquiry justice to consider “the whole of the evidence”. Further, it would undermine
one of the central purposes of the preliminary inquiry, which is to ensure that the accused is not
committed to trial unnecessarily: see R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20…
It remains true that in certain cases (such as, for example, where the Crown adduces direct
evidence as to every element of the offence) the case will necessarily go to the jury regardless of
the exculpatory evidence proffered by the defence… Whatever the evidence of the Crown and
defence, the judge must consider “the whole of the evidence”, in the sense that she must
consider whether the evidence, if believed, could reasonably support a finding of guilt (= air of
reality test).
28. The Jury Trial

 The Criminal Code offers multiple methods of trial (i.e. trial by provincial judge, trial by superior court
judge alone, and trial by superior court judge with a jury).
 The Criminal Code, Section 471: every indictable offence shall be tried by a judge and jury “except
where otherwise expressly provided by law”.
313
[2001] 2 S.C.R. 828 at para [29].
314
136
 “As a matter of fact, various Code sections readily provide otherwise for every offence except those listed
in section 469 and provide that even those offences might not have a jury trial if the Crown consents”. 315
 The jury selection process entails three stages:
1. Assembling the jury roll (i.e. list of all eligible jury members in the area)
2. From the jury roll selecting a jury panel, also known as an array
3. From the jury panel choosing the trial jury
 These stages are regulated by a combination of federal and provincial legislation.
 The Constitution Act, by virtue of section 92(14), grants each province control over the administration of
justice in the province.
 There is a jury act in each province delineates the rules by which the jury roll is to be amassed and the
jury array is to be summoned to the courtroom.
Provincial Legislation Jury Selection Procedures – Creating the Jury Array

 Each province has control over the administration of justice. Section 626 of the Criminal Code stipulates
that jurors have to be qualified in accordance with the laws of the province.
 In order to obey the constitutional conditions, it is necessary that the jury roll be arranged by a process
that offers a fair chance for an expansive cross-section of society to participate.
 Representativeness is the ambition of a jury roll; however, this term has a specific connotation in the
context of jury selection. There is no condition that the final jury elected incorporate members of any
specific group. The jury roll also does not need to be proportionally representative of the province’s or
region’s population. Instead, representativeness concentrates on the procedure employed to arrange an
assemble the list. In R v. Kokopenace, 2015 SCC 28, the Court held at para [61]:
To determine if the state has met tis representativeness obligation, the question is whether the
state provided a fair opportunity for a broad cross-section of society to participate in the process.
A fair opportunity will have been provided when the state makes reasonable efforts to: (1)
compile the jury roll using random selection from lists that draw from a broad cross-section of
society, and (2) deliver jury notices to those who have been randomly selected, and (2) delivery
jury notices to those who have been randomly selected. In other words, it is the act of casting a
wide net that ensures representativeness. Representativeness is not about targeting particular
groups for inclusion on the jury roll.
 So long as there is no intentional exclusion of any specific or particular group and reasonable efforts have
been executed to include all eligible individuals, then representativeness will be fulfilled.
Criminal Code Jury Selection Procedures – Choosing the Jury from the Jury Array
(a) Mechanics of Selecting Jurors
 The Criminal Code provisions regulate the rest of the selection process as soon as the jury array has
been assembled in court.
 The array can be challenged by either the accused or the Crown, however, doing this can only be
premised on “partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom
the panel was returned” (section 629).
 If the array has been acknowledged and accepted, then the selection process commences: the names of
those present are pulled randomly from a box in alignment with the process delineated in section 631
of the Criminal Code.
315
Steve Coughlan, Criminal Procedure, 4th ed. (Toronto: Irwin Law, 2020), page 455-56
137
 This procedure carries on until, after the methods of excluding jurors have been taken into account,
enough jurors have been picked.
 In circumstances where there is a challenge for cause, there is a requirement for an individual to decide
that challenge. “This is an area where the law was significantly changed by Bill C-75, and the new rule
is easily stated: the judge decides. This change has been challenged as violating the Charter, but in
Ontario at least, it has been upheld and found to apply retrospectively; that is, to all jury selections
taking place after 19 September 2019” (R v. Chouhan, 2020 ONCA 40).316
 Before this, the challenge was actually determined by two lay individuals.
 The National Post recently reported: “Supreme Court upholds ban on peremptory challenges for jury
selection”. Brian Platt who wrote the article on October 8, 2020 states:
“The Supreme Court of Canada has ruled that banning peremptory challenges – a move that
allows lawyers to reject a potential juror without giving any explanation – is constitutional,
upholding legislation passed by the Liberal government in 2019”.
 A jury typically has twelve members. Nonetheless, there exists provisions within the Criminal Code
that allow that quantity to go as high as fourteen and as low as ten. This is dependent on the specific
stage of the process. For instance, if a juror were to contract covid-19 during a trial, he would likely be
discharged as a juror.
Important Takeaway
 There are now only TWO MECHANISMS by which a jury array member can be removed or
excluded from the jury, that is, EXEMPTIONS and CHALLENGES
 Before Bill C-75, peremptory challenges existed. These were referred to by some as “freebies”,
whereby the Crown and the defence could exclude a specific number of jurors without any
justification or explanation.
(b) Exemptions
 The Criminal Code, via section 632, permits a trial judge to excuse jurors for any three reasons: personal
interest in the matter to be tried; relationship with the judge, prosecutor, accused, counsel for the accused,
or a prospective witness; and personal hardship or other reasonable cause.
 Usually, this process is executed prior to any names of individual jurors being called, by the judge
inquiring as to whether any jurors desire to be excused.
 Though, this task is somewhat administrative in nature, “it is a part of the trial, and the accused is entitled
to be present for it” (R v. Barrow, [1987] 2 SCR 694).317
(c) Challenges for Cause

 Section 638 of the Criminal Code lists the grounds on which a juror can be challenged for cause.
 The Crown and the accused are both granted an unlimited number of challenges for cause, however, the
grounds upon which those challenges can be made are comprehensively described in subsections (a) to (f)
of section 638(1).
 “Some of the grounds are simply factual questions, such as that the juror’s name does not appear on the
panel, the juror is not a Canadian citizen, or the juror has been convicted of an offence for which they
were sentenced to a term of imprisonment of two years or more and for which no pardon or record
suspension is in effect”.318
316
317
318
Ibid, p.471.
138
 In R v. Williams, [1998] 1 SCR 1128, the Court insinuated that there are four relevant types of potential
juror prejudice (para 10). There is interest prejudice which comes up when the juror has direct interest in
the trial. What does this mean? It means, for example, that “the juror is the uncle of the accused, or the
wife of a witness” (R v. Sherratt, [1991] 1 SCR 509).
 As one can imagine, this first type is not controversial and usually does not cause any issues. However,
the other types are more controversial in nature: (1) specific prejudice (beliefs and attitudes about the
specific case that may impact the impartiality of the juror); (2) generic prejudice (comprises of
stereotypical attitudes and thoughts about the accused, victims, etc.); and (3) conformity prejudice, “when
a juror might feel influenced by strong community feelings about an expected outcome”. 319
 When challenge for cause is permitted, the procedure to be adhered to is prescribed in the Criminal Code.
For the initial, first juror, the accused determines whether to challenge for cause before the Crown, and
from that moment on they switch (alternate) who goes first. If the judge allows a challenge for cause to be
heard, the judge determines the challenge (Bill C-75). The judge obtains the discretion to allow
submission by counsel ensuing the questioning (R v. Hubbert, [1977] 2 SCR 267).
Some Further Readings Recommended by Coughlan:

 Miller, Christian A. “Peremptory Challenges During Jury Selection as Institutional Racism: An
Investigation Within the Context of the Gerald Stanley Trial (R v. Stanley, 2018 SKQB)” (2019) 67
Criminal Law Quarterly 215.
 Patrick, Jessica. “Six Months of Jordan: A Statistical Overview” (2017) 35 Criminal Reports (7th) 348.
Leading Cases:
R v Williams, [1998] 1 S.C.R. 1128

Facts:
 The accused was an aboriginal who pleaded not guilty to a robbery charge; he elected a jury trial
 The issue in this case was whether “the evidence of widespread bias against aboriginal people in the
community raises a realistic potential of partiality”.
Held:
 Both the Crown and the defence are permitted to challenge for cause on the basis of partiality.
 Potential jurors (candidates) are assumed to be impartial and “this presumption must be displaced before
they can be challenged and questioned”320 (must prove a candidate is NOT indifferent).
 Judges are granted a wide degree of discretion when it comes to managing and controlling the challenge
process and as such, should allow challenges if there is a realistic possibility that individuals with racial
bias who are incapable of setting aside this bias are within the jury pool
 When it comes to racial prejudice, the court held that “Where doubts are raised, the better policy is to
err on the side of caution and permit prejudice to be examined”.321
 The trial judge has discretion to decide if community widespread racial bias is adequate to give an “air of
reality” to the challenge in the particular circumstances of each case.
 S. 638(2) of the Criminal Code mandates two stages: 1) the first stage is the inquiry before the judge to
establish if challenges for cause should be allowed. At this stage, the question is whether a realistic
potential or possibility for partiality exists; and 2) if the judge allows challenges for cause, the second
inquiry is based on the specific challenge. The question here is whether the juror is able to set aside their
bias and “act as an impartial juror”.322
319
Ibid, p. 472-72
320
[1998] 1 S.C.R. 1128
321
Ibid.
322
[1998] 1 S.C.R. 1128; Criminal Code (R.S.C., 1985, c. C-46).
139
R v Find, 2001 SCC 32

Facts:
 The accused was charged with 21 counts of sexual offences involving complainants who were children.
 Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the nature of the
charges against him gave rise to a realistic possibility that some jurors might be unable to try the case
against him impartially and solely on the evidence before them.
 The trial judge rejected the application. The accused was tried and convicted.
Held:
 The accused’s appeal was dismissed. The Court held the nature of the charge (sexual offences involving
children) did not entitle the right to challenge prospective jurors for cause on the grounds of partiality.
 The court clarified that a “lack of indifference constitutes partiality”.
 The test established in Williams was cited; the test was elaborated and expounded by the Chief Justice 323:
Establishing a realistic potential for juror partiality generally requires satisfying the court on
two matters: (1) that a widespread bias exists in the community; and (2) that some
jurors may be incapable of setting aside this bias (para 33)
1. The first branch involves two concepts: “bias” and “widespread” (para 40). “Bias” in the
context of challenges for cause refers to an attitude that could lead jurors to decide the case
in a prejudicial and unfair manner…. The second concept, “widespread”, relates to the
prevalence or incidence of the bias in question (at para 39). The bias must be sufficiently
pervasive in the community to raise the possibility that it may be harboured by
members of a jury pool.
2. If widespread bias is shown, the second branch of the test requires an accused to show that
some jurors may not be able to set aside their bias despite the cleansing effect of the trial
judge’s instructions and the trial process itself.
 “If in doubt, the judge should err on the side of permitting challenges” (para 45)
 Strong views about a serious offence do not automatically equate to bias.
 Most people, if not all, would have strong views about the offences in this case. If we were to all those
jurors with strong views, then there would be no jurors left.
 The court pointed out that “although crimes arouse deep and strong emotions, one cannot automatically
equate strong emotions with an unfair and prejudicial bias against the accused. Jurors are NOT expected
to be indifferent toward crimes”.324
R v Yumnu, 2012 SCC 73

Facts:
 The appellants in the case became aware of a “jury vetting” practice in the Barrie area, wherein their trial
was held. The jury vetting practice consisted of “inquiries conducted by the police, at the behest of the
Crown Attorney’s office, as to whether potential jurors had a criminal record or whether they were
otherwise ‘disreputable persons’ who would be undesirable as jurors”.325
323
2001 SCC 32 at paras [46] – [49]
324
2001 SCC 32 at Emotional Nature of Sexual Assault Trials
325
2012 SCC 73 per Moldaver J. at para [4]
140
 The information obtained from the jury vetting was used at the peremptory challenge state of the
proceedings (the Crown used the data they obtained by the police to make challenges).
 However, none of this information was presented to or shared with the defence.
Held:
 A critical problem was that the Crown did not disclose or share any of the information it received about
the prospective jurors with the defence.
 The Court discussed the acceptable bounds of jury vetting stating at paras [36] – [43]:
[36] Jury vetting by the Crown and police is a risky business…
[37] Foremost among the concerns is the prospect of the Crown and police joining forces
to obtain a jury favourable to their cause. Nothing could do more harm to the criminal justice system;
nothing could more readily bring the administration of justice into disrepute.
[38] The mere thought of the Crown and the police “checking out” potential jurors carries with
it the spectre of jury tampering and the evils associated with it. Care must be taken to guard against this…
[39] Closely aligned with the first concern is the fundamental precept of our justice system that
“justice should not only be done, but should manifestly and undoubtedly be seen to be done” (per Lord
Hewart C.J. in R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259)….
[40] Appearances count. And regardless of the Crown’s good intentions, aligning itself with
the police and using their vast resources to investigate potential jurors could be seen by some as incompatible
with the Crown’s responsibility, as an officer of the court, to ensure that every accused receives a fair trial.
Randomness and representativeness are two of the qualities we look for in juries…
[41] Another concern is juror privacy. Jurors give up much to perform their civic duty. In
some instances, serving on a jury can be a difficult and draining experience…
[42] Jury duty is precisely that — a duty. People are not asked to volunteer; they are selected
at random and required to serve unless they are otherwise exempted or excused. Once selected, jurors become
judges of the facts. Their personal lives at that point are no more relevant than that of the presiding
judge.
[43] Jurors deserve to be treated with respect. Subject to a few narrow exceptions, they are
entitled to know that their privacy interests will be preserved and protected…
 The court declared at para [77] that the Crown breached its duty of disclosure to the defence in failing to
disclose the jury vetting procedure it executed.
 It was held that the failure to disclose was serious; however, at the end of the day, it had no bearing on the
actual composition of the jury, nor did it influence or affect the result of the trial or the overall fairness of
the process of the trial.
R v Kokopenace, 2015 SCC 28

Facts:
 The accused was an Aboriginal who was convicted of manslaughter.
 Before the sentencing of the accused took place, the accused’s counsel discovered that there may have
been dilemmas with the inclusion of Aboriginal on-reserve residents on the jury roll.
 This implied that the representativeness of the jury may have been unfair and unjust.
Held:
141
 The court emphasized that what truly matters in terms of representativeness of the jury is NOT the
‘ultimate composition’ of the jury but the process used to compile it.326
 To assess and establish whether the state satisfied its representativeness duty, the inquiry is if the state
offered and provided a just opportunity for a broad cross-section of society to participate and partake in
the jury process.
 A fair opportunity will be provided when the state makes reason efforts to 327:
(1) compile the jury roll using random selection from lists that draw from a broad cross-section
of society, and
(2) deliver jury notice to those who have been randomly selected.
 When this two-step process is executed and properly followed, the jury roll will be deemed representative
and an accused’s Charter right to a representative jury will be upheld and respected 328.
 The representativeness of a jury is captured by both s. 11(d) and s. 11(f) of the Charter.
 The Court established that even if there is an appearance of bias in relation to the jury roll compilation
process, s. 11(d) will be violated329.
 With s. 11(f), if the jury is not representative, this will undermine the right to a jury trial. 330
 The court held:
If the state deliberately excludes a particular subset of the population that is eligible for jury
service, it will violate an accused’s right to a representative jury... However, if it is a question of
unintentional exclusion, it is the quality of the state’s efforts in compiling the jury roll that
will determine whether an accused’s right to a representative jury has been respected. If
the state makes reasonable efforts but part of the population is excluded because it declines
to participate, the state will nonetheless have met its constitutional obligation331.
 There is no right to a jury roll of a specific configuration, nor to a jury roll that is representative of all the
various and diverse groups in Canada.
 “Requiring a jury roll to proportionately represent the different religions, races, cultures, or individual
characteristics of eligible jurors would create a number of insurmountable problems”.
 The Court held at para [61] that if the two-step test is met (fair opportunity, as shown above), the state
will have met its representativeness obligations.
 Conclusion: the accused in the case did not establish that the jury roll was compiled or created in a many
that violated his Charter rights.
29. Pre-Trial Motions

 After the preliminary hearing (discussed earlier) and before a criminal case goes to trial, the Crown and
defence will typically appear before the court and make pre-trial motions (made before the actual trial).
 Pre-trial motions are simply arguments used by both parties to set the boundaries of the trial. They are
meant to solve preliminary legal issues before the trial starts.
 Example: a motion to supress or exclude evidence.
 The Criminal Code authorizes the following pre-trial motions: change of venue (s.599); particulars
(s.587); publication ban (s.486); and severing counts (s. 591(3)).
Change of Venue332
326
2015 SCC 28 per Rothstein, Moldaver, Wagner and Gascon JJ.
327
Ibid at para [61].
328
Ibid
329
Ibid, Charter section 11(d) discussed from para [48] to [54].
330
Ibid, Charter section 11(f) discussed from para [55] – [58].
331
Ibid
332
142
Reasons for change of venue

599 (1) A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may
hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or
the accused, order the trial to be held in a territorial division in the same province other than that in which the offence
would otherwise be tried if
(a) it appears expedient to the ends of justice; or
(b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial
division where the trial would otherwise by law be held.
Exclusion of public333
486 (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on
application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of
the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or
other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the
opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of
justice or is necessary to prevent injury to international relations or national defence or national security.
Application to Change Venue

 Typically, trials are held in the region or area that the offence was committed
 Section 599 set out above permits a change of venue either by the Crown or the defence.
 It is usually requested in situations wherein there is a general or widespread prejudice/bias in the
community by and large and the dilemma cannot be resolved by simply providing direction and
instructions to the jury
 The onus is on the accused to establish the reasons as to why the venue must be changed (accused bears
the burden).
Fitness for Trial

 This is also called a “fitness assessment”.
 As per section 672.11 of the Criminal Code, a court may order an assessment of the mental condition of
the accused, if it has reasonable grounds to believe that such evidence is necessary to determine (a)
whether the accused is unfit to stand trial.
 Section 672.22 sets out the presumption that an accused is fit to stand trial: “An accused is presumed fit
to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand
trial”.
 For an accused to demonstrate that he or she is unfit to stand trial, they must prove the following: (1) they
suffer from a mental disorder/condition and (2) they are incapable of conducting a defence before a
verdict is made or by virtue of their mental disorder, they are not capable of comprehending the nature of
the proceedings or are not able to communicate with their counsel.
Some other various types of pre-trial motions

 Summary judgment: the facts of the case aren’t in dispute; consequently, the court orders a judgment
without embarking on a full-blown trial.
 Motion to dismiss: a party argues the case should be dismissed on the basis of a lack of jurisdiction, lack
of evidence or for a number of other reasons.
 Exclusion of physical evidence: if evidence is acquired illegally or beyond the scope of a search warrant
(see search warrants discussed earlier), then a party may argue that this evidence should be excluded from
the trial (not admissible).
30. Trial Within a Reasonable Time Applications

333
143
 The NCA syllabus discusses section 11(b) of the Charter on page 27. The NCA explains that “section
11(b) did very little to make the justice system move expeditiously. In 2016…the Supreme Court created
a new approach to section 11(b) which provides judges with less discretion about refusing a remedy, and
which is meant to encourage all justice systems participants…to speed up the system”.
 S. 11(b) of the Charter states: “Any person charged with an offence has the right to be tried within a
reasonable time”.334
 The right to a fair trial is also protected under section 2(e) of the Canadian Bill of Rights.
 S. 7 additionally provides some residual protection against state-caused delay in specific and confined
circumstances.
 The purpose of section 11(b)335:
The primary purpose of s. 11(b) is to protect the following rights of individual accused: (a) the
right to security of the person; (b) the right to liberty; and (c) the right to a fair trial (R. v.
Jordan, 2016 SCC 27, at paragraph 20). The provision also serves secondary societal interests:
(a) the interest in protecting the right of an accused person to humane and fair treatment (b) the
interest in having laws enforced, including through ensuring that those who break the law are
tried in a timely fashion. As the seriousness of the offence increases so does the societal demand
that the accused be brought to trial (R. v. Morin; R. v. Askov) Timely trials are also important to
maintaining overall public confidence in the administration of justice (Jordan, supra at
paragraph 25; Askov, supra at 1221).
 S. 11(b) recognizes the stigmatization, loss of privacy, and stress and anxiety created by the cloud of
suspicion that accompanies criminal proceedings.336
 A key case, which will be discussed below, is that of Jordan. This leading case introduced a new
analytical framework for establishing if an accused was tried within a reasonable time.
Leading Cases
R v Jordan, 2016 SCC 27

Facts:
 Jordan was charged in December 2008 and his trial ended February 2013.
 Due to the delay, Jordan brought an application under the Charter, s.11(b), seeking a stay of proceedings.
Held:
 The court held the delay was unreasonable and Jordan’s Charter right (11(b)) was violated.
 A new framework was established in this case in terms of the application of section 11(b).
 “At the heart of this new framework is a presumptive ceiling beyond which delay – from the charge
to the actual or anticipated end of trial – is presumed to be unreasonable, unless exceptional
circumstances justify it”.337
 The court set the boundaries for the presumptive ceiling338:
o Cases tried in provincial court = 18 months
o Cases tried in superior court = 30 months
 The court, at para [61] and [63], held that any delay that was attributable by reason of or waived by the
defence did not count towards the presumptive ceiling.
 It was held at para [69] that “once the presumptive ceiling is exceeded, the burden is on the Crown to
rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown
334
Constitution Act, 1982: The Canadian Charter of Rights and Freedoms.
335
Department of Justice, Canada. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11b.html. 2019-06-17.
336
R. v. Godin, [2009] SCR 3, at para [30]
337
2016 SCC 27 per Abella, Moldaver, Karakatsanis, Cote and Brown JJ.
338
2016 SCC 27 per Abella, Moldaver, Karakatsanis, Cote and Brown JJ. at para [46]
144
cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that
(1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be
remedied”.
 What if the duration of time in terms of the length of trial is below the presumptive ceiling?
 The court addressed this by stating (at part E, para [82]):
Below the presumptive ceiling, however, the burden is on the defence to show that the delay is
unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate
a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it
reasonably should have. Absent these two factors, the section 11 (b) application must fail. Stays
beneath the presumptive ceiling should only be granted in clear cases.
 Case at Bar: The total amount of delay between the charges and the end of trial worked out to 49.5
months. The judges held the following (at para [118], Part VI):
… four months of this delay were waived by J when he changed counsel... In addition, one and a
half months of the delay were caused solely by J for the adjournment of the preliminary inquiry
because his counsel was unavailable for closing submissions on the last day. This leaves a
remaining delay of 44 months, an amount that vastly exceeds the presumptive ceiling of 30
months in the superior court. The Crown has failed to discharge its burden of demonstrating that
the delay of 44 months (excluding defence delay) was reasonable. While the case against J may
have been moderately complex given the amount of evidence and the number of co-accused, it
was not so exceptionally complex that it would justify such a delay.
 Therefore, 5.5 months were due to the accused, and as mentioned, are not counted when calculating the
presumptive ceiling. Nonetheless, this still left 44 months, which greatly exceeded the 30-month ceiling.
 Consequently, a stay of proceedings was entered.
R v Cody, 2017 SCC 31

 The trial in this case was scheduled to end on January 30, 2015. The accused was charged on January 12,
2010. This was a five-year duration.
 It was held that the Jordan framework now governs the s. 11(b) analysis and akin to any of the Court’s
precedents, the framework must be adhered to and followed; it cannot be lightly discarded.
Held:
 In the case at bar, the total calculated delay was about 60.5 months. From this amount, 13 months were
deducted due to Cody’s waiver. Two periods of time were also deducted as ‘defence delay’: “the delay
resulting from Cody’s first change of counsel (1 month) and the delay resulting from Cody’s recusal
application (2.5 months).
 The 60.5 months minus the 13 months waived by Cody and the extra 3.5 months (1 month + 2.5 months)
= 60.5 – 16.5= 44 months. This 44-month delay exceeded the 30-month ceiling established in Jordan.
 As discussed in Jordan, “once the presumptive ceiling is exceeded, the burden is on the Crown to rebut
the presumption of unreasonableness on the basis of exceptional circumstances”.339
 The court held that for exceptional circumstances, “the following delays should be deducted as discrete
events: the appointment of Cody’s former counsel to the bench (4.5 months) and part of the delay flowing
from the McNeil disclosure issue that arose (3 months). The net delay is…36.5 months”. 340
 This exceeds the ceiling and as such, section 11(b) is breached.
339
R v Jordan, 2016 SCC 27
340
2017 SCC 31
145
SENTENCING
31. General Principles of Sentencing

 When dealing with a sentencing type criminal law question, the first step is to search the criminal offence
at hand in the Canadian Criminal Code.
 Criminal Code may dictate whether there is a maximum or minimum sentence for the particular crime.
 This boundary (i.e. maximum 5 years) will provide you with a base in terms of your response. For
instance, if the criminal offence has a maximum five-year penalty, but based on the facts, it is clear that
the offender should be given a lesser sentence (i.e. mitigating factors: first-time offender, young, have a
family, etc.), you may suggest a sentence lower than the five year term.
Purpose of Sentencing
 It is good to start a sentencing response by speaking to and addressing the purpose of sentencing (Section
718 of the Criminal Code):
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime
prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by
unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims
or to the community.
General Principles of Sentencing

 The general principles of sentencing can be found in S. 718.2 of the Criminal Code 341:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating
circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing…
341
146
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in
similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the
circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent
with the harm done to victims or to the community should be considered for all offenders, with particular
attention to the circumstances of Aboriginal offenders.
 The principles set out above should be incorporated and taken into consideration, if relevant, when
establishing a proper sentence for a criminal offender.
 Therefore, you would start with the maximum or minimum sentence term, as per the Criminal Code, (if
applicable) and then tailor that term based on the general principles and case law.
R v Priest [1996] CanLII 1381 (ON CA)

 The trial judge in this errored by not considering and taking into account mitigating factors.
 The accused had no prior record (first time offender). Moreover, he confessed to the offence,
returned all the stolen objects and plead guilty early on.
 The trial judge was obliged to give effect to the mitigating factors when imposing a sentence.
Procedure
 As soon as reasonable and practicable, a court should sentence the offender. This is enshrined in the
Criminal Code:
Sentencing proceedings342
720 (1) A court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to
determine the appropriate sentence to be imposed.
 Sections 720 – 724 of the Criminal Code deals with procedure in relation to sentencing.
Types of Sentences
a) Incarceration
 Section 743.1(1) states that a person shall be sentenced to imprisonment in a penitentiary if, they are
sentenced to imprisonment for343
o Life;
o A term of 2+ years; OR
o Two or more terms of less than 2 years each that are to be served one after the other and that, in
the aggregate, amount to 2 years or more
 Imprisonment for life is under section 745, sentence of life imprisonment. This section addresses the
eligibility of parole for life sentences
 RECALL: As per section 718(2), the principles of sentencing, imprisonment should be a last resort (if
there are less intrusive means, they should be used), especially for Aboriginal people.
b) Conditional Sentence of Imprisonment

342
343
147
 Section 741 addresses conditional sentence of imprisonment.

 Under section 741.1, if a person receives a sentence of less than two years, then the court may order
that the person serve the sentence in the community.
 This conditional sentence will be subject to conditions imposed under section 742.3 if a number of
criteria are fulfilled.
Imposing of conditional sentence344

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two
years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the
offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the
community and would be consistent with the fundamental purpose and principles of sentencing set out in
sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of
imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment,
for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of
imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in a dwelling-house), and
(xi) section 435 (arson for fraudulent purpose).
R v Proulx [2000] 1 S.C.R. 61: “a conditional sentence is aimed at both punitive AND rehabilitative aspects;
whereas probation is aimed at rehabilitation.
c) Probation and Community Service

 Section 731(1) of the Criminal Code is the ‘making of probation order’.
 This section states that “Where a person is convicted of an offence, a court may, having regard to the
age and character of the offender, the nature of the offence and the circumstances surrounds its
commission, (a) if no minimum punishment is prescribed by law, SUSPEND the passing of sentence
and direct that the offender be released on the conditions prescribed in a probation order; OR (b) in
addition to fining or sentencing the offender to imprisonment for a term not exceeding two years,
direct that the offender comply with the conditions prescribed in a probation order”.345
344
345
148
 As per section 732.2 (1), a probation order comes into force under three situations.
 Failure to comply with a probation order, under 733.1(1), will result in the accused being guilty of an
indictable offence OR an offence punishable on summary conviction346
d) Fines
 Fines are addressed in the Criminal Code under sections 734, 734.6, 734.7, 736, 787.
 Section 787 dictates that if someone is convicted of a summary offence, they are liable to a fine of no
more than $5000 or to a term of imprisonment not exceeding six months OR both.
e) Absolute or Conditional discharge

 Conditional and absolute discharge is found under section 730(1) of the Criminal Code:
Conditional and absolute discharge347

730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other
than an offence for which a minimum punishment is prescribed by law or an offence punishable by
imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to
be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused,
by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order
made under subsection 731(2).
f) Recognizance Orders
 S. 810 addresses recognizance orders. Failure to comply with recognizance is under section 145(3).
 A recognizance is also referred to as a “peace bond”. If you sign a recognizance (or peace bond), you
will be mandated and obliged to adhere to specific conditions. 348
g) Restitution
 When a criminal offender is convicted OR discharged, the court may order the offender to
recompensate another, as per section 738(1) of the Criminal Code:
Restitution to victims of offences

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence
on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any
other measure imposed on the offender, order that the offender make restitution to another person…
h) Victim Surcharges:
 An offender may be ordered to pay a victim surcharge, in addition to any other punishment imposed
on them (section 737(1)). Section 737(2) addresses the amount of surcharge that may be imposed.
Victim surcharge349
737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act,
the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge for each offence, in
addition to any other punishment imposed on the offender.
Amount of surcharge
346
347
348
Steps to justice: your guide to law in Ontario. https://stepstojustice.ca/glossary/section-810-recognizance
349
149
(2) Subject to subsections (2.1) and (3), the amount of the victim surcharge in respect of an offence is
(a) 30% of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $100 in the case of an offence punishable by summary conviction, and
(ii) $200 in the case of an offence punishable by indictment.
i) Sentencing Aboriginal Offenders

 As per the sentencing principles (section 718.2(e) of the Criminal Code), imprisonment should be a very
last resort: (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances
and consistent with the harm done to victims or to the community should be considered for all offenders,
with particular attention to the circumstances of Aboriginal offenders.350
j) Punishment of Organizations
 The factor that should be taken into consideration when punishing an organization or company are in the
Criminal Code under section 718.21.
 Section 735 discusses the fines that shall be imposed when an organization commits an offence.
k) Parole
 Parole is the early release of an offender who undertakes/agrees to adhere and obey certain
conditions.
 The powers of the court when it comes to parole are under section 743.6 of the Criminal Code
 The court has the power to delay parole; however, will only do so in specific circumstances.
 The principles that guide the court in terms of parole are found within subsection 2 of this area
(743.6(2)).351
Leading Cases
R. v M. (C.A.), [1996] 1 S.C.R. 500

 This case addressed life imprisonment. The court held that where imprisonment is available as a penalty
for a particular offence, “the Code sets maximum terms of incarceration in accordance with the relative
severity of each crime”.
 It is a well-established principle of the criminal legal system in Canada that the quantum or length of
sentence should be broadly proportionate and corresponding with the gravity of the offence committed
and the moral blameworthiness of the criminal offender (i.e. sentence should commensurate with
seriousness of crime).
 In terms of a disproportionate sentence, the court said the following:
A legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as
to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual
punishment under section 12 of the Charter In the context of consecutive sentences, this general
principle of proportionality expresses itself through the more particular form of the totality principle,
which requires a sentencing judge who orders an offender to serve consecutive sentences for
multiple offences to ensure that the cumulative sentence rendered does not exceed the overall
culpability of the offender.
 In this case, the Court of Appeal varied the sentence the trial judge imposed. The Supreme Court
criticized this variance commenting that “absent an error in principle, failure to consider a relevant factor
350
351
150
or an overemphasis of the appropriate factors, a court of appeal should ONLY intervene to vary a
sentence imposed at trial if the sentence is demonstrably unfit”.352
R v Gladue, [1999] 1 S.C.R. 688

Facts:
 The accused was an aboriginal woman. She was sentenced to three years in jail after pleading guilty to
manslaughter for the killing of her common law spouse.
 The accused, on the night of the incident was celebrating her birthday. She suspected that her husband
and sister were having an affair.
 Witnesses testified the accused said that “He’s going to get it”. The accused saw her sister and husband
come down the stairs together. Later on, the accused and her husband, the victim, got in an argument. He
admitted to having an affair and called her names including ‘fat’ and ‘ugly’.
 The victim fled from the house and the accused ran at him with a large knife, stabbing him.
 There was evidence that the accused was intoxicated when the offence was committed.
 At the hearing for the accused’s sentencing, multiple mitigating factors were considered by the judge,
including the fact that the accused’s family was supportive, she attended alcohol counselling sessions and
she enhanced her education. There was clear provocation on the part of the husband (i.e. his insulting
behaviour and remarks). Furthermore, the accused had a hyperthyroid condition; this caused her to
overact to emotional and heated circumstances. Lastly, she demonstrated signs of regret and remorse and
plead guilty.
 There also existed aggravating factors that the judge took into account including the remarks the
accused’s said that clearly indicated she intended the harm (i.e. he’s going to get it). She stabbed him not
once, but twice. Moreover, she was the aggressive one in the relationship and was not intimated by the
victim (i.e. she couldn’t claim she was being abused by him and was scared for her life).
 The sentencing judge took into account the principles of denunciation and general deterrence, despite
specific deterrence was not mandated.
 The judge decided that there were no special circumstances arising from the aboriginal status of the
accused and the victim that he should take into consideration. Both were living in an urban area
off-reserve and not “within the aboriginal community as such”.353
Held:
 The Court pointed out the general principles of sentencing, specifically s. 718.2(e) which addresses
Aboriginal offenders: mandatorily requires sentencing judges to consider all available sanctions
other than imprisonment and to pay particular attention to the circumstances of aboriginal
offenders
 The Court emphasized the importance of taking into account section 718.2(e) when sentencing an
Aboriginal person. The purpose and function of this section is to alter the method and tactic of
examination and analysis that sentencing judges employ when deciding on a just and fit sentence for an
Aboriginal offender.
 The Court explained how s. 718.2(e) assists judges in determining fit sentences for Aboriginals:
Section 718.2(e) directs judges to undertake the sentencing of such offenders individually, but
also differently, because the circumstances of aboriginal people are unique. In sentencing
an aboriginal offender, the judge must consider: (a) the unique systemic or background
factors which may have played a part in bringing the particular aboriginal offender before
the courts; and (b) the types of sentencing procedures and sanctions which may be
352
[1996] 1 S.C.R. 500
353
[1999] 1 S.C.R. 688
151
appropriate in the circumstances for the offender because of his or her particular
aboriginal heritage or connection.354
 If no alternative to jail exists, then the judge is to meticulously and carefully consider the length of the jail
term.355
 The length of imprisonment for an Aboriginal, in some cases, may be less than the term for a non-
Aboriginal offender in the same circumstances.
 However, that being said, “s. 718.2(e) is not to be taken as a means of automatically reducing the prison
sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient
sentence simply because incarceration is not imposed”.356
 The court concluded that the sentencing judge erred by not taking into account the Aboriginal status of
the accused simply because she and the victim were living in a region “off-reserve” and not within the
Aboriginal community.
Section 12 of the Charter

 The case below addresses the constitutionality of mandatory sentences and circumstances wherein a
violation of Section 12 of the Charter has been argued.
 A violation of section 12 will only be found is rare situations where, the punishment imposed on the
offender “is so excessive as to outrage our society’s sense of decency”.
R. v. Lloyd 2016 SCC 13

Facts:
 L was convicted of possession of drugs for the purpose of trafficking. Because he had a recent prior
conviction for a similar offence, he was subject to a mandatory minimum sentence of one year of
imprisonment, pursuant to s. 5(3) (a)(i)(D) of the Controlled Drugs and Substances Act (“CDSA”).
 Section 5(3) (a)(i)(D) provides a minimum sentence of one year of imprisonment for trafficking or
possession for the purpose of trafficking in a Schedule I or II drug, where the offender has been convicted
of any drug offence (except possession) within the previous 10 years.
 The provincial court judge declared the provision contrary to s.12 of the Charter and not justified under
s.1. The Court of Appeal allowed the Crown’s appeal, set aside the declaration of unconstitutionality and
increased the sentence to 18 months.
Held:
 The provincial court judge in this case had the power to decide the constitutionality of s.5(3) (a)(i)(D) of
the CDSA. While provincial court judges do not have the power to make formal declarations that a law is
of no force or effect under s. 52(1) of the Constitution, they do have the power to determine the
constitutionality of mandatory minimum provisions when the issue arises in a case they are hearing.
 L challenged the mandatory minimum sentence of one year of imprisonment that applied to him. He was
entitled to do so. The provincial court judge, in turn, was entitled to consider the constitutionality of that
provision. He ultimately concluded that the mandatory minimum sentence was not grossly
disproportionate as to L.
 The fact that the judge used the word “declare” does not convert his conclusion to a formal
declaration that the provision is of no force or effect.
 While L conceded that a one-year sentence of imprisonment would not be grossly disproportionate as
applied to him, it could in other reasonably foreseeable cases.
354
[1999] 1 S.C.R. 688 at Section E. A framework for analysis for the sentencing judge, para [66]
355
Ibid, at para [79]
356
Ibid, at para [88]
152
 The mandatory minimum sentence provision covers a wide range of potential conduct. As a result,
it catches not only the serious drug trafficking that is its proper aim but conduct that is much less
blameworthy. This renders it constitutionally vulnerable.
 Section 10(5) of the CDSA provides an exception to the minimum one-year sentence if the offender
has, prior to sentencing, successfully completed a drug treatment court program or another
program approved under s.720(2) of the Criminal Code. This exception is however too narrow to
cure the constitutional infirmity.
 First, it is confined to particular programs, which a particular offender may or may not be able to access.
Second, to be admissible to these programs, the offender must usually plead guilty and forfeit his right to
a trial. One constitutional deprivation cannot cure another. Third, the requirement that the offender
successfully complete the program may not be realistic for heavily addicted offenders whose conduct
does not merit a year in jail. Finally, in most programs, the Crown has the discretion to disqualify an
applicant.
 The reality is this: mandatory minimum sentence provisions that apply to offences that can be
committed in various ways, under a broad array of circumstances and by a wide range of people
are constitutionally vulnerable. This is because such provisions will almost inevitably include an
acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If
Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should
consider narrowing their reach so that they only catch offenders that merit that mandatory minimum
sentences. In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence
where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual
punishment.
 Insofar as s.5(3)(i)(D) of the CDSA mandates a one-year mandatory minimum sentence of
imprisonment, it violates the guarantee against cruel and unusual punishment in s.12 of the
Charter.
 This violation is not justified under s.1. Parliament’s objective of combatting the distribution of illicit
drugs is important. This objective is rationally connected to the imposition of a one-year mandatory
minimum sentence under s. 5(3)(a)(i)(D). But the provision does not minimally impair the s.12 right.
Collateral Consequences and Joint Submissions Cases

 In certain situations, a minor variation to a sentence may have a tremendous impact.
 If a sentence imposed creates more harm than is intended, due to collateral consequences, then a court
may be justified in slightly amending the sentence to ensure that the greater damage is not done.
 The case below is an excellent example of this.
 A plain and straightforward example is if an accused is being sentenced to one year in jail and the
accused requires time to update their citizen status within 363 days. If the accused does not execute this
update, the accused will lose his status and be deported. This collateral consequence – being deported
from the country – is not intended in the punishment for the crime. Therefore, the punishment is in fact
more severe than the one-year jail term. However, by simply lessening the term by 2 days, the court will
avoid the more severe result and still maintain the purpose of the sentence.
 The cases below both address “joint submissions”. The latter case, Anthony-Cook, offers a proper and
succinct definition of the term, joint submissions: “when Crown and defence counsel agree to recommend
a particular sentence to the trial judge, in exchange for the accused entering a plea of guilty”.
 Joint submissions are typically both welcomed and encouraged by courts, as it demonstrates agreeability
and cooperation between parties. Of course, it also expediates the process of a trial, as both parties are
agreeing to a sentence and this reduces the amount of work for the judge.
153
 As explained in Anthony-Cook, there are rare circumstances wherein a joint submission will be rejected.
This case explains the importance of joint submissions and the circumstances wherein they can be
departed from. The proper test to apply when determining whether a departure should be made was
established in this case.
R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204

Facts:
 The trial judge in this case rejected a joint submission by applying the “fitness test”. 357
 The court addressed the proper test that should be applied when it comes to joint submissions.
Held:
 The Court emphasized the importance of joint submissions to the health of the criminal justice system,
stating that: “Joint submissions on sentence — that is, when Crown and defence counsel agree to
recommend a particular sentence to the trial judge, in exchange for the accused entering a plea of
guilty — are vitally important to the well-being of the criminal justice system, as well as the justice
system at large. Generally, such agreements are unexceptional, and they are readily approved by
trial judges without any difficulty”.358
 It was held that there is a lack of agreement in terms of which legal test trial judges should apply when
determining if it is suitable in a particular case to depart from a joint submission.
 There are four possible approaches: the fitness test; the demonstrably unfit test; the public interest test;
and, the approach that treats the fitness and public interest tests as essentially the same. 359
 The Court stated that it is the public interest test that is the appropriate and proper legal test that should
be applied:
Under the public interest test, a trial judge should not depart from a joint submission on
sentence unless the proposed sentence would bring the administration of justice into disrepute
or would otherwise be contrary to the public interest…The public interest test, by being more
stringent than the other tests proposed, best reflects the many benefits that joint submissions
bring to the criminal justice system and the corresponding need for a high degree of certainty
in them.360
 The trial judge in this case employed the fitness test; however, the judge erred by doing this because this
test was far too lenient, and a stricter test should have been applied.
 The Court concluded that when the proper legal test was applied (that is, the public interest test), it was
clear that the sentence proposed by the parties did not warrant a departure from the joint submission.
357
2016 SCC 43, [2016] 2 S.C.R. 204 at para [27]
358
2016 SCC 43, [2016] 2 S.C.R. 204 at para [40]
359
Ibid, at D. Guidance for Trial Judges at para [49] – [60]
360
Ibid, at A. The Proper Test at [32] to [34]
154
APPEALS AND REVIEWS
32. Appeals of Final Decisions and Judicial Review of Interim Decisions

 “Rights of appeal in the Canadian justice system are entirely a creative of statute. Various appeal
provisions are set out in the Criminal Code, and in addition, the Code provides that only appeals
authorized in Parts XXI and XXVI can be brought with regard to indictable offences”. 361
 The Criminal Code establishes distinct sets of rules for appeals of indictable offences and of summary
conviction offense.
 Nonetheless, for convenience purposes, it does not allow the appeal of a summary conviction matter to be
heard along with that of an indictable offence where the two offences were tried together (sections
675(11.) and 676(1.1).
 “In the case of indictable offences, different appeal rights are given to an accused and the Crown. For
summary conviction offences, however, the appeal rights are essentially parallel”. 362
 When a verdict is ‘final’, it can be appealed. What is this and what does it mean?
 An appeal is a request for a higher court in the hierarchy (i.e. Supreme Court is higher than the Superior
Court of Justice) to review a lower court’s verdict or decision.
361
362
Ibid, p.564
155
 Below is an outline of the judicial structure in Canada to help you visualize which courts are higher up in
the hierarchy363:
APPEALS OF INDICTABLE OFFENCES
Overview of Appeal Provisions

 Under s. 673 (Part XXI) of the Criminal Code, definitions for appeals for indictable offences are
addressed.364
Interpretation
Definitions
673 In this Part,
court of appeal means the court of appeal, as defined by the definition court of appeal in section 2, for the province
or territory in which the trial of a person by indictment is held; (cour d’appel)
indictment includes an information or charge in respect of which a person has been tried for an indictable offence
under Part XIX; (acte d’accusation)
registrar means the registrar or clerk of the court of appeal; (registraire)
sentence includes
(a) a declaration made under subsection 199(3),
(b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1) or 194(1), section 259, 261 or
363
Image from: Department of Justice. “The Judicial Structure.” About Canada's System of Justice, 16 Oct. 2017,
www.justice.gc.ca/eng/csj-sjc/just/07.html.
364
156
462.37, subsection 491.1(2), 730(1) or 737(2.1) or (3) or section 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,
(c) a disposition made under section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or 742.6(9),
(d) an order made under subsection 16(1) of the Controlled Drug and Substance Act, and
(e) an order made under subsection 94(1) of the Cannabis; (sentence, peine ou condamnation)
trial court means the court by which an accused was tried and includes a judge or a provincial court judge acting
under Part XIX. (tribunal de première instance)
 Prima facie, it would seem that an accused appealing a conviction has a tremendous expansive right of
appeal.
 Section 675(1)(a) states that an individual can appeal a conviction based on a question of law alone, on a
question of fact, on a question of mixed law and fact, or on any ground of appeal “that appears to the
court of appeal to be a sufficient ground of appeal”.
Right of appeal of person convicted

675 (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
(a) against his conviction
(i) on any ground of appeal that involves a question of law alone,
(ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with
leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a
proper case for appeal, or
(iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal
to be a sufficient ground of appeal, with leave of the court of appeal; or
(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that
sentence is one fixed by law.
 Coughlan at page 564: “In fact, the likelihood of an appeal succeeding is not nearly as great as that
section alone suggests.
 These bases for appeal pass through a minimum of three “filters”, each confining the ground upon which
an appeal might be triumphant.
 The first two filters are found in s. 686(1)(a) of the Code. Section 675 delineates the grounds upon which
an appeal can be made; the grounds upon which an appeal can be granted are considerably narrower.
 Section 686(1)(a) of the Criminal Code lays down those grounds.
686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand
trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the
evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a
question of law, or
(iii) on any ground there was a miscarriage of justice
 The second filter is in regard to the primary remaining ground of appeal in s. 675: appeals based on a
question of law.
 “…there is some ambiguity in the meaning of the phrase ‘question of law’: it has a broader meaning in
section 675 than in section 686(1)(a). therefore, that an issue is a question of law for the jurisdictional
purpose of deciding whether a ground of appeal exists does not mean that it is a question of law for the
purpose of deciding whether the appeal should be granted”.365
365
157
 The third filter is located in the fact that even if an appeal satisfies the conditions of s. 686(1)(a), it might
not be granted nonetheless.
Court of Appeal Powers (Procedural)

 The powers of the Court of Appeal are listed under s. 683(1). If it is in the interests of justice, the Court
of Appeal may execute any of the seven actions366:
(a) order the production of any writing, exhibit or other thing connected with the proceedings;
(b) order any witness who would have been a compellable witness at the trial, whether or not he
was called at the trial,
i. to attend and be examined before the court of appeal, or
ii. to be examined in the manner provided by rules of court before a judge of the court of
appeal, or before any officer of the court of appeal or justice of the peace or other
person appointed by the court of appeal for the purpose;
(c) admit, as evidence, an examination that is taken under subparagraph (b)(ii);
(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent
but not compellable witness;
(e) order that any question arising on the appeal that
i. involves prolonged examination of writings or accounts, or scientific or local
investigation, and
ii. cannot in the opinion of the court of appeal conveniently be inquired into before the
court of appeal,
be referred for inquiry and report, in the manner provided by rules of court, to a special
commissioner appointed by the court of appeal;
(f) act on the report of a commissioner who is appointed under paragraph (e) in so far as the
court of appeal thinks fit to do so; and
(g) amend the indictment, unless it is of the opinion that the accused has been misled or
prejudiced in his defence or appeal.
Powers of Court of Appeal (General)

 Once an appeal is heard by the court of appeal, Court has the power to either allow or dismiss the appeal.
 The court of appeal will allow the appeal on the following grounds367
o Verdict is unreasonable or is incapable of being supported by the evidence
o A wrong decision on a question of law was made by the trial court
o Any basis where a miscarriage of justice exists
 (i) What is an Unreasonable verdict?

o The case of R v Yebes368 informs us as to what an unreasonable verdict is: “"whether the verdict
is one that a properly instructed jury, acting judicially, could reasonably have rendered".
o To apply this test, it is necessary for the court to re-analyze and examine, and to a certain degree,
also re-weigh and evaluate, the impact of the evidence.
 (ii) Wrong decision on a question of law
366
Criminal Code (R.S.C., 1985, c. C-46). section 683(1): powers of court of appeal.
367
Criminal Code (R.S.C., 1985, c. C-46). Section 686(1), Powers of the Court of Appeal
368
[1987] 2 S.C.R. 168
158
o When a judge makes a wrong decision, it is referred to as a “mistake in law”.

o Examples: throwing out critical pieces of evidence or providing erroneous instructions to the jury
o In order for this category to be successfully applied, the mistake must have been so severe, as to
cause a wrongful outcome.
o Error of law is different from an error of fact. An error of fact insinuates that the judge had the
wrong facts or interpreted the facts inaccurately.
o On the other hand, an error of law means that all the right information was in the hands of the
judge at trial, however, the law was not properly or correctly applied.
o In the case of R v Khan, [1990] 2 S.C.R. 531, the judge erred in terms of the test he applied. The
judge erred in rejecting the child’s testimony and in placing so much weight and significance on
the age of the child. This was an error of law.
 (iii) Miscarriage of Justice

o A miscarriage of justice can relate to the process and procedure the judge employed to reach his
or her verdict, OR, to the judge’s conclusion and verdict itself.
o Department of Justice Canada published the following literary piece:
POLICY IMPLICATIONS: PREVENTING MISCARRIAGES OF JUSTICE
Earlier this year, the Department of Justice Canada released a document entitled Report on the Prevention
of Miscarriages of Justice (2005) which contains a comprehensive set of recommendations aimed at
preventing future miscarriages of justice. It outlines preventive practices that specifically address the
factors repeatedly found to contribute to wrongful convictions, including tunnel vision, eyewitness
identification and testimony, false confessions, in-custody informers, DNA evidence, forensic evidence, and
expert testimony. These policy recommendations are, without question, an important first step towards a
more transparent and fair criminal justice process. What is needed is further study as to how these
recommendations can be implemented in everyday criminal justice practices, as well as their impact on the
wrongly imprisoned.369
 As per section 686(1) of the Criminal Code, the Court of Appeal will dismiss the appeal where370:
o The person convicted was accurately and properly convicted on another part of the indictment or
count
o The appeal is not in favor of the appellant
o No substantial wrong or miscarriage of justice has been committed
o No prejudice was suffered
The curative provision

 Section 686(1)(b)(iii) is referred to as the curative provision.
 To invoke this provision, the onus is on the Crown to show that “any reasonable judge or jury would have
rendered the same verdict. Even though an important error of law could have influenced the decision, it
would not be appropriate to reverse the conviction where the evidence is so overwhelming against the
accused that it would inevitably lead to the same result” (Khan).371
369
Department of Justice, and Research and Statistics Division. “JustResearch Edition No. 13.” 1. Miscarriages of Justice: The Impact of Wrongful
Imprisonment - JustResearch Edition No.13, 7 Jan. 2015, www.justice.gc.ca/eng/rp-pr/jr/jr13/p5a.html.
370
Criminal Code (R.S.C., 1985, c. C-46). Section 686(1)
371
R v Khan, [2001] 3 S.C.R. 823, 2001 SCC 86.
159
 Standard; the curative provision MAY ONLY BE USED where the conviction was INEVITABLE
(Khan).372
Procedural Irregularity
 Section 686(1)(b)(iv) enables the court of appeal to dismiss an appeal on the ground that the court of
appeal believes that the appellant did not suffer any prejudice.
 What this section does is eradicate a number of issues that technically would have been considered
‘errors’, but because no prejudice was incurred, the appeal can be dismissed.
 The issues are ones that are not capable of rectification under the curative provision (can’t deal with them
under the curative provision, so procedural irregularity is used).
 This section greatly simplifies the appeal process.
 The Court in R v Khan, [2001] 3 S.C.R. 823, 2001 SCC 86: “An irregularity can be said to constitute a
miscarriage of justice when the irregularity was severe enough to render the trial unfair or create
the appearance of unfairness… the emphasis is not so much on the final verdict and the overall strength
of the evidence against the accused, but rather on the gravity of the irregularity and the effect it may
have had on the fairness, or appearance of fairness, of the trial. The gravity of irregularities which
may occur must inevitably be evaluated by courts on a case-by-case basis …”373
Crown Appeals
 The Crown’s right of appeal is far more confined than that of the person being convicted.
 Section 676(1) addresses the right of the Attorney General to appeal.
Right of Attorney General to appeal374

676 (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder
of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;
(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses
or fails to exercise jurisdiction on an indictment;
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by
indictment, unless that sentence is one fixed by law.
Other Appeal Related Matters

 Addressed above are the statutory powers on appeal, as per section 683 of the Criminal Code.
 When can fresh evidence, that was not before the trial court, be admitted in an appeal?
 R v Palmer sets out the test for the admission of fresh evidence on appeal375:
o If by due diligence, the evidence could have been adduced at trial, then generally it should not be
admitted.
o The evidence must be relevant; it must impact a decisive or possibly decisive matter at trial.
o The evidence must be credible; it must be “reasonably capable of belief”.
o The situation must be that if the (fresh) evidence was believed and taken into account with other
evidence adduced at trial, then it would have impacted the result at trial.
Standard of Review
372
Ibid.
373
[2001] 3 S.C.R. 823, 2001 SCC 86
374
Criminal Code (R.S.C., 1985, c. C-46
375
1979 CanLII 8 (SCC), [1980] 1 SCR 759, per McIntyre J (9:0) at p. 775.
160
 If you have taken the Canadian Administrative Law NCA exam, you will be familiar with the term
‘standard of review’.
 The standard of review is the degree of “deference” given by one court when reviewing the decision of a
lower court.
 There are two standards: “correctness” and “reasonableness”
 The distinction between the two standards is critical.
 If a standard of correctness is applied, the higher court will make its own determination substitute its
decision.
 If a standard of reasonableness is applied, the higher court will give deference to the lower court and
determine whether its decision was reasonable in the circumstances. The higher court will not substitute
its own decision in this instance.
 In the case of Housen v Nikolaisen376, the court addressed the standard of review:
The standard of review for findings of fact is such that they cannot be reversed unless the trial
judge has made a “palpable and overriding error”. A palpable error is one that is plainly
seen. The reasons for deferring to a trial judge’s findings of fact can be grouped into three
basic principles. First, given the scarcity of judicial resources, setting limits on the scope of
judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of
deference promotes the autonomy and integrity of the trial proceedings. Finally, this
principle recognizes the expertise of trial judges and their advantageous position to make
factual findings, owing to their extensive exposure to the evidence and the benefit of
hearing the testimony viva voce.
 All decisions that are reviewable by a higher court can be viewed as answering one of the following
questions377:
o 1. Questions of law – what is the correct and proper legal test that is applicable?
o 2. Questions of fact: what occurred or happened between the parties?
o 3. Questions of MIXED law and fact: do the facts satisfy the correct legal tests?
 If the question at hand is a question of law = standard of correctness
 If the question involves one of fact = standard of reasonableness
 When the standard of correctness is applicable, the higher court will execute its own analysis and may
substitute its own opinion for that of the lower court (no deference to lower court judge).
 Jurisdictional and constitutional questions will be reviewed under the standard of correctness.
 Examples of questions of fact include findings of credibility, as per R v Brooks, 2000 SCC 11, and
whether an inference can be drawn or deduced from facts, as per R v Thomas, [1952] 2 S.C.R. 344.
Duty to give reasons

 Trial judges are required to provide reasons for the verdict they reach.
 The Supreme Court has held that there is a duty imposed on the trial judge to provide reasons in non-jury
criminal trials (R.E.M.).378
 Chief Justice McLachlin explained and detailed why the obligation to provide reasons exists 379:
o Providing reasons inform the parties affected by the decision as to why it was made.
o Giving reasons offers public accountability of the decisions made by trial judges.
376
[2002] 2 S.C.R. 235, 2002 SCC 33
377
Housen v Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33
378
R v R.E.M., 2008 SCC 51 per Chief Justice McLachlin.
379
Ibid.
161
o Courts can only effectively conduct a review of a decision, if reasons for both the factual
findings and legal rulings are given.
o By mandating the trial judge to articulate and expound on their reasons, it ensures that they
concentrate on the ‘live issues’ in the case and do not neglect or overlook critical details, facts or
legal areas.
o Reasons provide direction and guidance to other courts dealing with similar matters in the future.
This in turn will assist in ensuring that the law is applied in a just, uniform and consistent
manner.
 Therefore, when a trial judge gives thorough reasoning for a decision he or she makes, this will likely
expediate the proceedings in an appeal court, as the appeal court will have the assistance of reviewing the
reasons when determining whether an error was made. Reasons will help paint a picture of the trial
judge’s thought process.
APPEALS OF SUMMARY OFFENCES

 Part XXVII of the Criminal Code addresses appeals from summary conviction offence trials.
 Section 813: Appeal by defendant, informant or Attorney General – this section outlines the grounds of
appeal, both for the defence and the Crown:
 Section 830 was introduced to broaden the grounds of appeal beyond the grounds listed in section 813.
 An appeal CANNOT be made under BOTH section 813 and 830 simultaneously.
 Section 813 and 830 are mutually exclusive options.
 Summary convictions appeals cannot be made to the Court of Appeal; the court of appeal lacks
jurisdiction to hear summary conviction appeals (Smith).380
APPEAL TO SUPREME COURT OF CANADA

 Appeals to the Supreme Court of Canada are addressed under section 691 of the Criminal Code.
 An appeal to the Supreme Court can only be made on the basis of a question of law (not fact, or mixed
law and fact).
 To appeal a decision of a court of appeal to the Supreme Court, an applicant must seek leave to appeal
from the court (i.e. ask the court’s permission to appeal).
 In the case of Lutoslawski, the Supreme Court held that “the trial judge misdirected himself on a question
of law”, as was found by the Court of Appeal. The Crown in this case demonstrated that an error of law
was made by the trial judge. The Supreme Court held that the Court of Appeal had made the appropriate
and proper conclusion.381
Coughlan, pp. 414 – 417 (4th ed.)

Judicial Review, exemplified in the context of preliminary inquiries
 The Code fails to lay down a procedure or process for appealing the decision to commit or discharge at a
preliminary inquiry, and so no appeal is possible.
 Consequently, review of such a decision can be made ONLY on the ground of an action for certiorari.
 Part XXVI of the Code governs the employment of extra-ordinary remedies in the criminal justice system
and affixes some constraints on the occasions wherein certiorari is available. However, it does remain
available in the case of decisions at a preliminary inquiry.
 Due to the fact that the preliminary inquiry is reviewed by way of certiorari instead of an appeal it is not
adequate to demonstrate an error of law on the part of the preliminary inquiry judge.
380
R v Smith (1984), 57 N.B.R. (2d) 78 (N.B.C.A.).
381
R v Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60
162
 “Rather, certiorari will be granted only if the judge has fallen into jurisdictional error: that is, “where the
presiding judge fails to observe a mandatory provision of the Criminal Code or denies a party natural
justice” (CMM, 2017 MBCA 105).382
 Aside from denying natural justice, it is also a jurisdictional error if a trial judge fails to adhere to a
mandatory provision of the Criminal Code.
 S.548 mandates a judge to commit the accused for trial if “there is sufficient evidence”. Cases have been
held to implicate that this means there must be at least some basis in the evidence at the preliminary
inquiry phase that supports the decision to commit (R v. Dubois).
 Further, it insinuates that because the preliminary inquiry judge does not weigh evidence, that where the
Crown has adduced direct evidence on all the elements of the offence, the preliminary inquiry judge has
to commit the accused even if the defence has provided exculpatory evidence (Arcuri).
 “The existence of evidence at the preliminary inquiry must be understood broadly. Even if the Crown has
indicated that evidence led through a preliminary inquiry witness will not be led at trial, that evidence
must nonetheless be considered in the decision to commit, and it would be a jurisdictional error to fail to
consider it” (R v. Papadopoulos (2005), 201 CCC (3d) 363 (Ont CA).383
 S.548 compels a preliminary inquiry judge to discharge the accused if “on the whole of the evidence no
sufficient case is made out”.
 In the case of R v. Sazant [2004] 3 SCR 635, the Court offered some direction on the types of mistakes
that can lead to jurisdictional errors. The Court held that there were three possible explanations for the
preliminary inquiry judge’s mistake384:
i. He might have misunderstood the elements of the offence. If so, he would not have tested the
Crown’s evidence against the actual elements of the offence charged. This would be a
jurisdictional error.
ii. He might have found the complainant’s statement to be ambiguous, capable of interpretation
either as an expression of “after-the-fact” regret, or as a statement of “during-the-fact” non-
consent. If so, he would have again fallen into jurisdictional error by deciding an issue
reserved for another forum.
iii. He might have merely overlooked the evidence of non-consent in the complainant’s
testimony. If so, he would have failed to consider “the whole of the evidence” as mandated
by s.548, and once again, he would have committed a jurisdictional error.
382
383
Ibid, pp. 415-416.
384
Ibid, p.416.
163

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GENERAL OVERVIEW AND PRELIMINARY MATTERS

1. The Sources of Criminal Law

The Common Law

Criminal offences to be under law of Canada

 Nonetheless, Section 8 of the Criminal Code states the following:

Frey v Fedoruk [1950] S.C.R. 517

R v Jobidon [1991] 2 S.C.R. 714

2. The Power to Create Criminal Offences and Rules of Criminal Procedure

a) Constitutional Division of Powers

14. The Administration of Justice in the Province, including the Constitution, Maintenance,

and including Procedure in Civil Matters in those Courts.

R v Malmo-Levine 2003 SCC 74

b) The Canadian Charter of Rights and Freedoms

R v Oakes [1986] 1 S.C.R. 103

R v Labaye [2005] 3 S.C.R. 728

3. The Procedural Classification of Offences

SUMMARY OFFENCES INDICTABLE OFFENCES

More About Hybrid Offences

4. Interpreting Criminal Provisions

(a), (b), (c), (d) (e)

Fundamental Principle of Statutory Interpretation

Official Languages Act

R. v. Collins, [1987] 1 S.C.R. 265

THE ELEMENTS OF A CRIMINAL OFFENCE

5. The Actus Reus

Acts and Statutory Conditions

Possession: “The Act of Possession”

The Criminal Code, s. 4(3), Controlled Drugs and Substances Act

R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 25

R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584

o Criminal negligence causing bodily harm (s.221)

R. v. Williams, [2003] 2 S.C.R. 134

R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30

do not alter the standard of legal causation or substitute new tests.

Duties Tending to Preservation of Life

Duty of persons undertaking acts

6. Subjective Mens Rea

R. v. Hibbert [1995] 2 SCR 973

21(2) can therefore no longer be considered the law in Canada.

R. v. Chase, [1987] 2 S.C.R. 293

(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is

R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269

[46] Further, the duty-based offence in Naglik and other types of objective mens rea offences

D. Subjective Mens Rea Is Required for Breaches of Probation

[50] This Court’s jurisprudence requiring subjective mens rea for the breach of probation

7. Objective Mens Rea

COMPARE CRIMINAL NEGLIGENCE AND RECKLESSNESS:

R v. Javanmardi 2019 SCC 54

R v Sault Ste. Marie, [1978] 2 S.C.R. 1299

R v Raham, 2010 ONCA 206

Levis (City) v Tetreault, 2006 SCC 12

STEP 1: Decide whether it is a TRUE CRIME or a REGULATORY OFFENCE

 Examples of regulatory offences:

EXTENSIONS OF CRIMINAL LIABILITY

9. Aiding and Abetting

R v Logan, [1990] 2 S.C.R. 731 [addresses section 21(2)]