Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588

Reference to determine the constitutionality of the polygamy offence provision, s. 293 of the
Criminal Code of Canada. Concerns regarding the constitutional validity of s. 293 arose following
investigation into polygamous practices at Bountiful, a closed religious community in the interior of
British Columbia. Two questions were referred to the Court for hearing and consideration. The first
question was whether s. 293 of the Code was consistent with the Charter, and if not, in what
particulars and to what extent. The second question related to the necessary elements of the
offence, and whether the offence required involvement of a minor or a context of dependence,
exploitation, abuse of authority, gross power imbalance or undue influence. The federal and
provincial Crowns and other interested parties argued in favour of the provision's constitutionality.
The Civil Liberties Association, the Canadian Association for Free Expression, the Polyamory
Advocacy Association and the Fundamentalist Church of Jesus Christ of Latter Day Saints
challenged the constitutionality of s. 293. The Crown submitted that s. 293 was consistent with the
Charter, as the practice of polygamy raised an inherent and reasoned apprehension of harm to
women, children, society and the institution of monogamous marriage. The Crown's alternative
position was that any infringement of Charter rights by the provision was demonstrably justified in
a free and democratic society. The challengers submitted that the provision was a product of anti-
Mormon sentiment and constituted an unacceptable intrusion upon the freedoms of religion,
expression, association and equality as protected by the Charter. They argued that those
infringements were not justified under s. 1 of the Charter. The challengers submitted that
polygamy was not harmful per se, as the apprehended harm was contingent upon factors related
to a particular relationship or community.

HELD: Constitutionality affirmed.

The polygamy provision intended to address secular concerns related to harm arising from the
practice of polygamy, namely harms to women, children, society and the institution of
monogamous marriage. The provision prohibited entering a marriage with more than one person
at the same time, whether sanctioned by civil, religious or other means, and whether or not the
law recognized it as a binding form of marriage. The Crown established more than a reasoned
apprehension of harm, as evidence showed endemic concrete harm associated with polygyny, the
practice in which a man had more than one wife. The provision breached the religious liberty of
fundamentalist Mormons and some Muslims and Wiccans in a manner that was more than trivial or
insubstantial. In addition, the provision was overbroad, as it criminalized the conduct of all
participants in a polygamous union. The provision went further than necessary in the pursuit of the
legislative objective by exposing young persons to criminal prosecution. To the limited extent that
the provision included children between the ages of 12 and 17 who married into polygamy, it was
inconsistent with s. 7 of the Charter. The infringement of s. 2(a) Charter rights was a justifiable
limit under s. 1, as the prevention of collective harms associated with polygamy was a pressing
and substantial concern in a free and democratic society. There was a rational connection between
the criminal prohibition of polygamy and Parliament's pressing and substantial objective. The
impairment of religious freedom was minimal and the provision was proportional in its effects. The
salutary effects of the prohibition outweighed the deleterious. In respect of the s. 7 breach, the
extent to which the provision was overbroad did not pass the justification analysis under s. 1. A
constitutional remedy was not within the terms of the reference. If it were, an exclusion of the
problematic application would have been read into the provision in respect of the noted group of
potential accused young persons. The provision was otherwise consistent with the Charter. In
respect of the second question, the necessary elements of the offence in s. 293 did not require
that the polygamy or conjugal union in question involved a minor or occurred in a context of
dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence.

230  The harms against women include: exploitation; commodification; social isolation; the
inevitable favouritism of some women and deprecation of others within the household;
discrimination; and, impoverishment.
231  The harms against children include: the negative impacts on their development caused by
discord, violence and exploitation in the marital home; competition between mothers and siblings
for the limited attention of the father; diminishment of the democratic citizenship capabilities of
children as a result of being raised by mothers deprived of their basic rights; impoverishment;
and, violation of their fundamental dignity.
232  The harms against men include: the unequal distribution of spouses and related ostracism of
younger men forced to compete for a scarcer supply of women; the creation of a false appetite for
patriarchy; inflammation of male lust; and deprivation of the essential bond of mutuality that is
unique to the marital institution.
233  Finally, the harms to society that flow from polygamy include: threats to the social order and a
greater need for social supports as women lacking education and opportunity to enhance
themselves, as well as their children, find themselves impoverished upon divorce or the death of
their husbands; harms to good citizenship; threats to political stability; and the undermining of
human dignity and equality.

1198  It is, in any event, constitutionally permissible for the state to attempt to deter vulnerable
people from self-harm by criminalizing the harmful conduct. As the majority explained in Malmo-
Levine (at para. 124):


o We do not accept the proposition that there is a general prohibition against the
criminalization of harm to self. Canada continues to have paternalistic laws.
Requirements that people wear seatbelts and motorcycle helmets are designed to
"save people from themselves". There is no consensus that this sort of legislation
offends our societal notions of justice. Whether a jail sentence is an appropriate
penalty for such an offence is another question. However, the objection in that
aspect goes to the validity of an assigned punishment - it does not go to the
validity of prohibiting the underlying conduct. [Emphasis added.]

1203  To be clear, s. 293 is not overbroad in its application to persons 18 years of age or older at
the time of the laying of the Information in respect of conduct that occurred at or after 18 years of
age.

1204  The Supreme Court recognized in Heywood that "[t]he effect of overbreadth is that in some
applications the law is arbitrary or disproportionate" (at 793). That is the case here. The effect of
s. 293's overbreadth is that it is arbitrary in its application to young persons who are parties to an
illegal union.

1209  Conversely, I do not consider s. 293 to be arbitrary on either articulation of the test. The
blanket criminalization of polygamy is necessary to further Parliament's objective of preventing the
many harms associated with its practice for the reasons I have already discussed. As such, it
cannot be said that the deprivation of the liberty interests in question "bears no relation to, or is
inconsistent with, the objective that lies behind the legislation".

1212  I conclude that s. 293 is not arbitrary as that fundamental principle of justice has been
elucidated in the authorities.

1213  That brings us to the issue of gross disproportionality. Malmo-Levine sets out the test (at para.
143):


o In short, after it is determined that Parliament acted pursuant to a legitimate state
interest, the question can still be posed under s. 7 whether the government's
legislative measures in response to the use of marihuana were, in the language
of Suresh, [2002] 1 S.C.R. 3, "so extreme that they are per se disproportionate to
any legitimate government interest" (para. 47 (emphasis added)). As we explain
below, the applicable standard is one of gross disproportionality, the proof of which
rests on the claimant.

1214  Avoidance of harm is a legitimate state interest and in respect of polygamy, the state has
demonstrated a reasoned apprehension of harm well beyond the de minimus threshold. Thus, the
question is whether the use of a criminal prohibition that includes the possibility of incarceration is
a legislative response that is so extreme that it is disproportionate to this state interest.
1219  The challengers say that criminalizing plural relationships between consenting adults is an
extraordinarily deep intrusion into personal liberty and a grossly disproportionate response to
addressing either the abstract objective of preventing harm (the Civil Liberties Association) or the
social and indirect harms said to be associated with the practice (the Amicus). The result is that
those affected live under the weight of bias, stigma, prejudice and fear arising from the
criminalization of their conduct.

1220  To the extent this submission is premised on the notion that polygamy is not inherently
harmful, I do not credit that notion for the reasons I have already stated. Further, the risks of the
social harms associated with polygamy are sufficiently serious that criminalizing all polygamous
marriages is not, in my view, a disproportionate response to Parliament's objective of preventing
harm.

1221  Finally, there is the submission that the polygamy prohibition's effects on accused persons
are grossly disproportionate to the state interest because the prohibition is simply ineffective -
indeed, it exacerbates the potential for harm by driving its practitioners underground in isolation. I
respond with the Court's statement in Malmo-Levine (at para. 177):


o This Court has exercised caution in accepting arguments about the alleged
ineffectiveness of legal measures: see Reference re Firearms Act (Can.), [2000] 1 S.C.R.
783, supra, where the Court held that "[t]he efficacy of a law, or lack thereof, is not
relevant to Parliament's ability to enact it under the division of powers analysis"
(para. 57). While somewhat different considerations come into play under
a Charter analysis, it remains important that some deference be accorded to
Parliament in assessing the utility of its chosen responses to perceived social ills.

1222  The standard is gross disproportionality and the Court in Malmo-Levine concluded (at para.

175) as I conclude: "the effects on accused persons of the present law, including the potential of
imprisonment, fall within the broad latitude within which the constitution permits legislative
action."

1358  It remains then to answer the questions posed on the reference.


o
 1. Is Section 293 of the Criminal Code of Canada consistent with the Canadian Charter of
Rights and Freedoms? If not, in what particular or particulars and to what extent?

1359  For the reasons I have given, s. 293 is consistent with the Canadian Charter of Rights and
Freedoms except to the extent that it includes within its terms, children between the ages of 12 and
17 who marry into polygamy or a conjugal union with more than one person at the same time.

1360  For greater clarity, as I have indicated in my reasons, the inconsistency does not extend to
persons who marry into polygamy before the age of 18 but are 18 years of age or older at the
time of the laying of the Information in respect of conduct that occurred at or after 18 years of
age.
 Frey v. Fedoruk, [1950] S.C.R. 517

Appellant was chased, caught and detained by respondent, Fedoruk, after he had been seen on
Fedoruk's property looking into a lighted side window of the house where a woman was preparing
for bed. A policeman, the other respondent, was called and, after some investigation, arrested
appellant without warrant.

On a charge that he "unlawfully did act in a manner likely to cause a breach of the peace by
peeping ..." appellant was convicted by a Police Magistrate but acquitted by the Court of Appeal.

His claim for damages for malicious prosecution and for false imprisonment was dismissed by the
trial judge and this was affirmed by a majority in the Court of Appeal on the ground that appellant
had been guilty of a criminal offence at common law and therefore that there had been
justification for the arrest without warrant. The appeal to this Court is concerned only with the
claim for false imprisonment.

Held: Appellant's conduct did not amount to any criminal offence known to the law. Therefore
respondents have failed to satisfy the onus placed upon them to justify the imprisonment under
ss. 30, 648 or 650 of the Criminal Code.

Held also: Section 30 Cr. C. authorizes a peace officer to arrest without warrant only if he, on
reasonable and probable grounds, believes that an offence for which the offender may be arrested
without warrant has been committed, but not if he erroneously concludes that the facts amount to
an offence, when, as a matter of law, they do not.

Held further: Conduct, not otherwise criminal and not falling within any category of offences
defined by the criminal law, does not become criminal because a natural and probable result
thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the
peace are not in themselves criminal merely because they have this tendency. It is for Parliament
and not for the Courts to decide if any course of conduct, which has not up to the present been
regarded as criminal, is now to be so regarded.

Per Kerwin J.: The appellant, by "peeping", did not commit a breach of the peace. If he had, it is
not an offence for which either a police constable or a private individual might arrest without
warrant under ss. 646 or 647 of the Criminal Code. Sections 30, 648 and 650 afford no assistance
to either respondents since no criminal offence was committed.

APPEAL from the judgment of the Court of Appeal for British Columbia [95 Can. C.C. 206.]
affirming, Robertson J.A. dissenting, the dismissal by the trial judge of an action for false
imprisonment and malicious prosecution.

H.R. Bray, K.C., for the appellant. Lee A. Kelley, K.C., and W.R. Meredith for the respondent
Stone.

Solicitors for the appellant: Fleishman and Fleishman. Solicitor for the respondents: Angelo E.
Branca.
 R. v. Sharpe, [2001] 1 S.C.R. 45
The accused was charged with two counts of possession of child pornography under s. 163.1(4) of
the Criminal Code and two counts of possession of child pornography for the purposes of
distribution or sale under s. 163.1(3). "Child pornography", as defined in s. 163.1(1) of the Code,
includes visual representations that show a person who is or is depicted as under the age of 18
years and is engaged in or is depicted as engaged in explicit sexual activity and visual
representations the dominant characteristic of which is the depiction, for a sexual purpose, of a
sexual organ or the anal region of a person under the age of 18 years. "Child pornography" also
includes visual representations and written material that advocates or counsels sexual activity with
a person under the age of 18 years that would be an offence under the Code. Prior to his trial, the
accused brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Code,
alleging a violation of his constitutional guarantee of freedom of expression. The Crown conceded
that s. 163.1(4) infringed s. 2(b) of the Canadian Charter of Rights and Freedoms but argued that
the infringement was justifiable under s. 1 of the Charter. Both the trial judge and the majority of
the British Columbia Court of Appeal ruled that the prohibition of the simple possession of child
pornography as defined under s. 163.1 of the Code was not justifiable in a free and democratic
society.

[page47]

Held: The appeal should be allowed and the charges remitted for trial.

Per McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ.: In order to assess the
constitutionality of s. 163.1(4), it is important to ascertain the nature and scope of any
infringement. Until it is known what the law catches, it cannot be determined that the law catches
too much. Consequently, the law must be construed, and interpretations that may minimize the
alleged overbreadth must be explored. In light of Parliament's purpose of criminalizing possession
of material that poses a reasoned risk of harm to children, the word "person" in the definition of
child pornography should be construed as including visual works of the imagination as well as
depictions of actual people. The word "person" also includes the person possessing the expressive
material. The term "depicted" refers to material that a reasonable observer would perceive as
representing a person under the age of 18 years and engaged in explicit sexual activity. The
expression "explicit sexual activity" refers to acts at the extreme end of the spectrum of sexual
activity -- acts involving nudity or intimate sexual activity represented in a graphic and
unambiguous fashion. Thus, representations of casual intimacy, such as depictions of kissing or
hugging, are not covered by the offence. An objective approach must be applied to the terms
"dominant characteristic" and "for a sexual purpose". The question is whether a reasonable viewer,
looking at the depiction objectively and in context, would see its "dominant characteristic" as the
depiction of the child's sexual organ or anal region in a manner that is reasonably perceived as
intended to cause sexual stimulation to some viewers. Innocent photographs of a baby in the bath
and other representations of non-sexual nudity are not covered by the offence. As for written
material or visual representations that advocate or counsel sexual activity with a person under the
age of 18 years that would be an offence under the Criminal Code, the requirement that the
material "advocates" or "counsels" signifies that, when viewed objectively, the material must be
seen as actively inducing or encouraging the described offences with children.

Parliament has created a number of defences in ss. 163.1(6) and (7) of the Code which should be
liberally construed as they further the values protected by the guarantee of free expression. These
defences may be [page48] raised by the accused by pointing to facts capable of supporting the
defence, at which point the Crown must disprove the defence beyond a reasonable doubt. The
defence of "artistic merit" provided for in s. 163.1(6) must be established objectively and should
be interpreted as including any expression that may reasonably be viewed as art. Section 163.1(6)
creates a further defence for material that serves an "educational, scientific or medical purpose".
This refers to the purpose the material, viewed objectively, may serve, not the purpose for which
the possessor actually holds it. Finally, Parliament has made available a "public good" defence. As
with the medical, educational or scientific purpose defences, the defence of public good should be
liberally construed.

The possession of child pornography is a form of expression protected by s. 2(b) of the Charter.
The right to possess expressive material is integrally related to the development of thought,
opinion, belief and expression as it allows us to understand the thought of others or consolidate
our own thought. The possession of expressive material falls within the continuum of intellectual
and expressive freedom protected by s. 2(b). The accused accepts that harm to children justifies
criminalizing possession of some forms of child pornography. The fundamental question therefore
is whether s. 163.1(4) of the Code goes too far and criminalizes possession of an unjustifiable
range of material.

The accused also alleges that s. 163.1(4) violates his right to liberty under s. 7 of the Charter,
arguing that exposure to potential imprisonment as a result of an excessively sweeping law is
contrary to the principles of fundamental justice. It is not necessary to consider this argument
separately as it wholly replicates the overbreadth concerns that are the central obstacle to the
justification of the s. 2(b) breach. The s. 1 analysis generally, and the minimal impairment
consideration in particular, is the appropriate forum for addressing over broad restrictions on free
expression.

In adopting s. 163.1(4), Parliament was pursuing the pressing and substantial objective of
criminalizing the possession of child pornography that poses a reasoned risk of harm to children.
The means chosen by Parliament [page49] are rationally connected to this objective. Parliament is
not required to adduce scientific proof based on concrete evidence that the possession of child
pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice.
Applying this test, the evidence establishes several connections between the possession of child
pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it
fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims;
and (4) children are abused in the production of child pornography involving real children.
Criminalizing possession may reduce the market for child pornography and the abuse of children it
often involves. With respect to minimal impairment, when properly interpreted, the law catches
much less material unrelated to harm to children than has been suggested. However, the law does
capture the possession of two categories of material that one would not normally think of as "child
pornography" and that raise little or no risk of harm to children: (1) written materials or visual
representations created and held by the accused alone, exclusively for personal use; and (2) visual
recordings created by or depicting the accused that do not depict unlawful sexual activity and are
held by the accused exclusively for private use. The bulk of the material falling within these two
classes engages important values underlying the s. 2(b) guarantee while posing no reasoned risk
of harm to children. In its main impact, s. 163.1(4) is proportionate and constitutional.
Nonetheless, the law's application to materials in the two problematic classes, while peripheral to
its objective, poses significant problems at the final stage of the proportionality analysis. In these
applications the restriction imposed by s. 163.1(4) regulates expression where it borders on
thought. The cost of prohibiting such materials to the right of free expression outweighs any
tenuous benefit it might confer in preventing harm to children. To this extent, the law cannot be
considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the
legislation is not demonstrably justifiable under s. 1.

[page50]

The appropriate remedy in this case is to read into the law an exclusion of the two problematic
applications of s. 163.1. The applications of the law that pose constitutional problems are exactly
those whose relation to the objective of the legislation is most remote. Carving out those
applications by incorporating the proposed exceptions will not undermine the force of the law;
rather, it will preserve the force of the statute while also recognizing the purposes of the Charter.
The defects of the section are not so great that their exclusion amounts to impermissible redrafting
and carving them out will not create an exception-riddled provision bearing little resemblance to
the provision envisioned by Parliament. While excluding the offending applications will not subvert
Parliament's object, striking down the statute altogether would most assuredly do so. Accordingly,
s. 163.1(4) should be upheld on the basis that the definition of "child pornography" in s. 163.1
should be read as though it contained an exception for: (1) any written material or visual
representation created by the accused alone, and held by the accused alone, exclusively for his or
her own personal use; and (2) any visual recording, created by or depicting the accused, provided
it does not depict unlawful sexual activity and is held by the accused exclusively for private use.
These two exceptions apply as well to the offence of "making" child pornography under s. 163.1(2)
(but not to printing, publishing or possessing child pornography for the purpose of publication).
The exceptions will not be available where a person harbours any intention other than mere
private possession.
Per L'Heureux-Dubé, Gonthier and Bastarache JJ.: Under our society's democratic principles,
individual freedoms such as expression are not absolute, but may be limited in consideration of a
broader spectrum of rights, including equality and security of the person. The Crown conceded that
the right to free expression was infringed in all respects, unfortunately depriving the Court of the
opportunity to fully explore the content and scope of s. 2(b) of the Charter as it applies to this
case. At the same time, it is recognized that, at this stage, our jurisprudence leads to the
conclusion that, although harmful, the content of child pornography cannot be the basis for
excluding it from the scope of the s. 2(b) guarantee. No separate analysis under s. 7 of the
Charter is required. The s. 7 liberty interest is encompassed in the right of free expression and
proportionality falls to be considered under s. 1 of the Charter. The only issue is whether the
infringement of freedom of expression is [page51] justifiable under s. 1. Section 1 recognizes that
in a democracy competing rights and values exist. The underlying values of a free and democratic
society guarantee the rights in the Charter and, in appropriate circumstances, justify limitations
upon those rights. A principled and contextual approach to s. 1 ensures that courts are sensitive to
the other values which may compete with a particular right and allows them to achieve a proper
balance among these values. At each stage of the s. 1 analysis close attention must be paid to the
factual and social context in which an impugned provision exists.

An appraisal of the contextual factors in this case leads to the conclusion that Parliament's decision
to prohibit child pornography is entitled to an increased level of deference. Child pornography, as
defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This
harm exists independently of dissemination or any risk of dissemination and flows from the
existence of the pornographic representations, which on their own violate the dignity and equality
rights of children. Although not empirically measurable, nor susceptible to proof in the traditional
manner, the attitudinal harm inherent in child pornography can be inferred from degrading or
dehumanizing representations or treatment. Expression that degrades or dehumanizes is harmful
in and of itself as all members of society suffer when harmful attitudes are reinforced. The
possibility that pornographic representations may be disseminated creates a heightened risk of
attitudinal harm. The violation of the privacy rights of the persons depicted constitutes an
additional risk of harm that flows from the possibility of dissemination. Child pornography is
harmful whether it involves real children in its production or whether it is a product of the
imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in
society. It is based on the clear evidence of direct harm caused by child pornography, as well as
Parliament's reasoned apprehension that child pornography also causes attitudinal harm. The lack
of scientific precision in the social science evidence relating to attitudinal harm is not a valid
reason for attenuating the Court's deference to Parliament's decision.

[page52]

The importance of the protection of children is recognized in both Canadian criminal and civil law.
The protection of children from harm is a universally accepted goal. International law is rife with
instruments that emphasize the protection of children and a number of international bodies have
recognized that possession of child pornography must be targeted to effectively address the harms
caused by this type of material. Moreover, domestic legislation in a number of democratic
countries criminalizes the simple possession of child pornography.

As a form of expression, child pornography warrants less protection since it is low value expression
that is far removed from the core values underlying the protection of freedom of expression. Child
pornography has a limited link to the value of self-fulfilment, but only in its most base aspect.
Furthermore, in prohibiting the possession of child pornography, Parliament promulgated a law
which seeks to foster and protect the equality rights of children, along with their security of the
person and their privacy interests. The importance of these Charter rights cannot be ignored in the
analysis of whether the law is demonstrably justified in a free and democratic society and warrants
a more deferential application of the criteria set out in the Oakes test. Finally, Parliament has the
right to make moral judgments in criminalizing certain forms of conduct. The Court should be
particularly sensitive to the legitimate role of government in legislating with respect to our social
values.

Section 163.1(4) of the Code constitutes a reasonable and justified limit upon freedom of
expression. In proscribing the possession of child pornography, Parliament's overarching objective
was to protect children. Any provision which protects both children and society by attempting to
eradicate the sexual exploitation of children clearly has a pressing and substantial purpose. Section
163.1(4) is also proportionate to the objective. First, prohibiting the possession of child
pornography is rationally connected to the aim of preventing harm to children and society. The
possession of child pornography contributes to the cognitive distortions of paedophiles, reinforcing
their erroneous belief that sexual activity with children is acceptable. Child pornography fuels
paedophiles' fantasies, which constitute the motivating force behind their sexually deviant
behaviour. Section 163.1(4) plays an important role in an integrated law enforcement scheme
which protects children against the harms associated with child pornography. [page53]
Paedophiles use child pornography for seducing children and for grooming them to commit sexual
acts. Lastly, children are abused in the production of child pornography. The prohibition of the
possession of child pornography is intended to reduce the market for this material. If consumption
of child pornography is reduced, presumably production and the abuse of children will also be
reduced.

Second, the prohibition of the possession of child pornography minimally impairs the right to free
expression. Although s. 163.1(4) is directed only to the private possession of child pornography,
children are particularly vulnerable in the private sphere, since a large portion of child pornography
is produced privately and used privately by those who possess it. The harmful effect on the
attitudes of those who possess child pornography similarly occurs in private. Consequently,
prohibiting the simple possession of child pornography has an additional reductive effect on the
harm it causes. The prohibition of the possession of child pornography also captures visual and
written works of the imagination which do not involve the participation of any actual children or
youth in their production; in enacting s. 163.1(4), Parliament sought to prevent not only the harm
that flows from the use of children in pornography, but also the harm that flows from the very
existence of images and words which degrade and dehumanize children and to send the message
that children are not appropriate sexual partners. The focus of the inquiry must be on the harm of
the message of the representations and not on their manner of creation, or on the intent or
identity of their creator. Given the low value of the speech at issue in this case and the fact that it
undermines the Charter rights of children, Parliament was justified in concluding that visual works
of the imagination would harm children.

The inclusion of written material in the offence of possession of child pornography does not
amount to thought control. The legislation seeks to prohibit material that Parliament believed was
harmful. The inclusion of written material which advocates and counsels the commission of
offences against children is consistent with this aim, since, by its very nature, it is harmful,
regardless of its authorship. Evidence suggests that the cognitive distortions of paedophiles are
reinforced by such material and that written pornography fuels the sexual fantasies of paedophiles
and could incite them to offend. Although the prohibition in s. 163.1(4) extends [page54] to
teenagers between the ages of 14 and 17 who keep pornographic videotapes or pictures of
themselves, this effect of the provision is a reasonable limit on teenagers' freedom of expression.
A review of adolescent child pornography cases reveals that there is a great risk that they will be
exploited in its creation. Hence, while adolescents between the ages of 14 and 17 may legally
engage in sexual activity, Parliament had a strong basis for concluding that the age limit in the
definition of child pornography should be set at 18. It is not necessary that the provision contain a
defence to protect teenagers who are in possession of erotic videos or pictures of themselves.
Such a defence would undermine Parliament's objective of protecting all children, since some
adolescents under the age of 18 groom other children into engaging in sexual conduct. There is
also no guarantee, even when a teenager is in possession of a pornographic picture or videotape
depicting himself or herself, that it was created in a consensual environment. The creation of
permanent records of teenagers' sexual activities has consequences which children of that age
may not have sufficient maturity to understand. The Court should defer to Parliament's decision to
restrict teenagers' freedom in this area. The provision does not amount to a total ban on the
possession of child pornography. The provision reflects an attempt by Parliament to weigh the
competing rights and values at stake and achieve a proper balance. The definitional limits act as
safeguards to ensure that only material that is antithetical to Parliament's objectives in proscribing
child pornography will be targeted, and the legislation incorporates defences of artistic merit,
educational, scientific or medical purpose, and a defence of the public good.

Third, when the effects of the provision are examined in their overall context, the benefits of the
legislation far outweigh any deleterious effects on the right to freedom of expression and the
interests of privacy. Section 163.1(4) helps to prevent the harm to children which results from the
production of child pornography; deters the use of child pornography in the grooming of children;
curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law
enforcement scheme can be implemented. In sum, the legislation benefits society as a whole as it
sends a clear message that deters the development of antisocial attitudes. [page55] The law does
not trench significantly on speech possessing social value since there is a very tenuous connection
between the possession of child pornography and the right to free expression. At most, the law
has a detrimental cost to those who find base fulfilment in the possession of child pornography.
The privacy of those who possess child pornography is protected by the right against unreasonable
search and seizure as guaranteed by s. 8 of the Charter. The law intrudes into the private sphere
because doing so is necessary to achieve its salutary objectives. The privacy interest restricted by
the law is closely related to the specific harmful effects of child pornography. Moreover, the
provision's beneficial effects in protecting the privacy interests of children are proportional to the
detrimental effects on the privacy of those who possess child pornography.

Levis (City) v. Tetrault, [2006] 1 S.C.R. 420

The respondent company, which is charged with operating a motor vehicle for which the fees
relating to its registration had not been paid, raised the defences of due diligence and officially
induced error, alleging that a representative of the Société de l'assurance automobile du Québec
("SAAQ") had had it pay registration fees corresponding to a 15-month period and had told it that
a renewal notice would be sent to it before the period expired. Because of an error, the SAAQ sent
the notice to the company with an incomplete address and the postal service returned it to the
sender. As for the respondent T, who is charged with driving a motor vehicle without a valid
driver's licence, he raised the defence of due diligence, stating that he was unaware that the date
appearing on his licence was the date the licence expired rather than a payment due date. The
Municipal Court of the city of Lévis found that ss. 31.1 (registration) and 93.1 (driver's licence) of
the Highway Safety Code create strict liability offences and, accepting their due diligence defence,
acquitted the company and T. The Superior Court upheld the acquittals, and the Court of Appeal
dismissed the city's applications for leave to appeal.
Held: The appeals should be allowed.
The alleged offences belong to the category of strict liability offences. Section 93.1 does not place
the burden of proving mens rea on the prosecution and includes no expression of the legislature's
intent to create an absolute liability offence. Nor can such an intent be inferred from the scheme of
this provision, which seeks to ensure that the requirements of the regulation of highway safety are
met by monitoring drivers' licences without it being necessary to deprive an accused of a due
diligence defence. 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 [page422]
valid. Nor does s. 31.1, 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. The
same factors apply as in the case of the obligation to have a valid driver's licence when operating a
motor vehicle, and they justify the availability of a due diligence defence. [para. 7] [para. 29]
[para. 31]

The due diligence defence raised by the company and by T has not been made out. The concept of
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 licence 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 the defence of officially induced error, although it is available in
Canadian criminal law, the company has not established that the conditions under which it is
available have been met. The issues the company raised with the SAAQ's representative related at
most to administrative practices, not to the legal obligation to pay the fees by the prescribed date.
Two fundamental conditions that must be met for this defence to be available were
therefore missing: the company could not have considered the legal consequences of its
conduct on the basis of advice from the official in question, nor could it have acted in
reliance on that opinion, since no information regarding the nature and effects of the
relevant legal obligations had been requested or obtained. [para. 2] [para. 30] [paras.
32-34]
30  In Mr. Tétreault's case, the judgments of the courts below confused passivity with diligence.
The accused did no more than state that he expected to receive a renewal notice for his licence
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 concept of
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. Consequently, the
acquittals are unfounded in this case. The Municipal Court should have found the respondent guilty
as charged and imposed the fine prescribed by law.

o 2.Case of the Respondent 2629-4470 Québec inc.

31  In this case, the respondent raised the defences of due diligence and officially induced error in
order to avoid conviction on a charge of operating a [page438] motor vehicle for which the fees
relating to its registration had not been paid, contrary to s. 31.1 of the Safety Code. I note that, as it
is worded, this provision does not create an absolute liability offence. Absent a clear indication of
the legislature's intent, the offence must be categorized as one of strict liability. The same factors
apply as in the case of the obligation to have a valid driver's licence when operating a motor
vehicle, and they justify the availability of a due diligence defence. In this case, however, a due
diligence defence has not been made out, and it has not been demonstrated that all the conditions
under which the defence of officially induced error is available have been met.

32  The two defences are based on the same allegations of fact. Essentially, the respondent argues
that it was misled. An SAAQ representative had the respondent pay registration fees corresponding
to a 15-month period and told it that a renewal notice would be sent to it before the period
expired. Because of an error in the SAAQ's record keeping, the notice was sent to the respondent
with an incomplete address and the postal service returned it to the sender. The respondent
believed the registration was still valid at the time the police stopped the car.

33  In my view, the respondent's allegations of fact do not show conduct that meets the standard
of due diligence. The respondent was aware of the date when the fees relating to the registration
of its vehicle would be due and, accordingly, the date when the registration would cease to be
valid. It could and should have been concerned when it failed to receive a notice. Instead, it did
nothing. It had a duty to do more. The acquittal was therefore unjustified.

34  Nor has the respondent established that the conditions under which the defence or excuse of
officially induced error is available have been met in this case and justified a stay of proceedings.
The issues raised related at most to administrative practices, not to the legal obligation to pay the
fees by the prescribed date. Two fundamental conditions [page439] that must be met for this
defence to be available were therefore missing. In the circumstances, the respondent could not
have considered the legal consequences of its conduct on the basis of advice from the official in
question, nor could it have acted in reliance on that opinion, since no information regarding the
nature and effects of the relevant legal obligations had been requested or obtained.


o Conclusion

35  For these reasons, I would allow the appeals in both cases. I would set aside the respondents'
acquittals. I w
R v. Sundman
The accused and the victim were drug dealers with a mutual animosity. On the day of the victim's
murder, the accused unlawfully confined him in a moving pickup truck and repeatedly assaulted
him by hitting him with a handgun. The victim jumped from the truck when it slowed to make a
turn, but was then chased on foot by the accused and two accomplices. When the victim ran for
his life, the accused shot him at least three times, but did not manage to kill him. As he lay
wounded, the victim was shot and killed at close range by one of the accomplices.

The accused was charged with first degree murder. The Crown argued that the accused was guilty
of first degree murder because the murder was planned and deliberate. Alternatively, the Crown
argued that, because he murdered the victim while committing the offence of unlawful
confinement, the accused was guilty of first degree murder under s. 231(5)(e) of the Criminal Code.
The trial judge was not satisfied that the murder was planned and deliberate. He also found that
although the victim was unlawfully confined in the truck, he had managed to escape his
confinement by jumping from the truck; accordingly, because of the brief gap in time between
when the victim was confined in the truck and when he was killed, the accused did not murder him
while committing the offence of unlawful confinement. The accused was therefore acquitted of first
degree murder but convicted of second degree murder. The Court of Appeal unanimously allowed
the Crown's appeal, set aside the conviction of second degree murder, and substituted a conviction
of first degree murder. It held that the victim was still unlawfully confined when he jumped from
the truck and was chased before being killed, and accordingly, the accused murdered the victim
while committing the offence of unlawful confinement. It also held that the victim's unlawful
confinement in the truck was temporally and causally connected to his murder, making the entire
course of conduct a single transaction.
Held: The appeal should be dismissed.
The accused is guilty of first degree murder under s. 231(5)(e) of the Criminal Code. The victim was
still unlawfully confined when he escaped from the truck and ran for his life. Even though the
victim was not physically restrained outside the truck, he continued to be coercively restrained
through violence, fear, and intimidation. The accused then murdered him while unlawfully
confining him. These two distinct criminal acts were part of a continuous sequence of events
forming a single transaction. They were close in time and involved an ongoing domination of the
victim that began in the truck, continued when he escaped from the truck and ran for his life, and
ended with his murder.
Section 231(5) of the Criminal Code provides that murder is first degree murder, irrespective of
whether the murder is planned and deliberate, when the victim's death is caused "while
committing or attempting to commit" any of several listed crimes of domination. Section 231(5)
does not create a substantive offence; rather, it is essentially a sentencing provision reflecting
Parliament's decision to treat murder in connection with the listed offences as involving a
heightened degree of moral blameworthiness or an aggravating circumstance warranting a more
severe punishment. It applies only when the offender has been found guilty of murder beyond a
reasonable doubt. The organizing principle for the offences listed in s. 231(5) is that they are all
crimes involving the illegal domination of victims. Parliament has treated murder committed in
relation to these crimes of domination as especially serious and as warranting the exceptional
punishment for first degree murder. Illegal domination is not an essential element to be proved
under s. 231(5) but a principle that helps courts apply the provision purposively, so that the law
develops in a principled manner.

For a murder to be committed "while committing or attempting to commit" an underlying offence

listed in s. 231(5), the following elements are required: (1) an underlying crime of domination; (2)
murder; (3) substantial cause; (4) no intervening act; and (5) the same transaction. The Court's
decisions have adopted two approaches to the "same transaction" element, which have been used
interchangeably: the "single transaction" test and the temporal-causal connection approach. These
approaches do not involve different inquiries; they are simply different ways of addressing the
"same transaction" element. The "single transaction" approach asks if the listed offence of
domination and the killing all form part of one continuous sequence of events forming a single
transaction. It is the continuing illegal domination of the victim which gives continuity to the
sequence of events culminating in the murder. The murder represents an exploitation of the
position of power created by the underlying crime and makes the entire course of conduct a single
transaction. The temporal and causal connection approach asks whether the underlying offence of
domination and the murder have a close temporal and causal connection. There is a temporal
connection between an underlying offence of domination and a murder when the two criminal acts
are committed close together in time. There is a causal connection when there is a unifying
relationship, beyond mere closeness in time, between the act of illegal domination and the act of
murder, such as when the offender's reason or motivation for the killing arises from, or is linked
to, the offender's unlawful domination of a victim. The application of either of these two
approaches involves the same inquiry and will result in the same conclusion: when a single
transaction is found, there will necessarily be a temporal-causal connection, and when a temporal-
causal connection is found, there will necessarily be a single transaction.

The underlying offence of domination and the killing must involve two distinct criminal acts. The
underlying offence cannot be consumed in the very act of killing. If there is only one criminal act,
it cannot be said that the offender exploited the domination inherent in the underlying offence with
the act of killing. In such cases, the heightened moral blameworthiness required for first degree
murder is absent.

Unlawful confinement occurs if, for any significant time period, a person is coercively restrained or
directed contrary to their wishes so that they cannot move about according to their own inclination
and desire. The person need not be restricted to a particular place or physically restrained. The
restraint can be through violence, fear, intimidation or psychological or other means, and the
purpose of the confinement is not relevant.

In the present case, the victim's unlawful confinement continued when he escaped from the truck.
He was coercively restrained, deprived of his liberty, and unable to move about according to his
own inclination and desire. In fact, the victim was still unlawfully confined at the time of his death.
The accused thus murdered him while committing the offence of unlawful confinement. The
unlawful confinement and the murder were close in time, and involved an ongoing course of
domination. In addition, the unlawful confinement was distinct from and not consumed by the
shooting. As a result, the accused's first degree murder conviction is justified.
R v. Murray (2000)

Criminal law -- Attempting to obstruct justice -- Elements of offence -- Accused

lawyer retaining physical evidence of crimes -- Client instructing lawyer on how to
locate videotapes of crimes committed by client and H and to retain videotapes --
Lawyer retaining evidence for 17 months without advising Crown -- Crown
making plea bargain with H without knowing of existence of videotapes --
Physical evidence not covered by solicitor-client privilege -- No lawful basis for
retaining physical evidence of crime -- Retaining videotapes had tendency to
obstruct justice making out actus reus of attempting to obstruct justice -- Mens rea
requiring proof of intent to obstruct course of justice -- Lawyer knowing that
permanently suppressing tapes would have amounted to obstructing justice --
Lawyer might have believed that he had no obligation to disclose videotapes
before trial -- Reasonable doubt existing as to mens rea -- Lawyer found not guilty.

Criminal law -- Evidence -- Solictor-client privilege -- Physical evidence of crime

-- Accused lawyer retaining physical evidence of crimes -- Client instructing
lawyer on how to locate videotapes of crimes committed by client and H and to
retain videotapes -- Lawyer retaining evidence for 17 months without advising
Crown -- Crown making plea bargain with H without knowing of existence of
videotapes -- Physical evidence not covered by solicitor-client privilege -- No
lawful basis for retaining physical evidence of crime -- Retaining videotapes had
tendency to obstruct justice making out actus reus of attempting to obstruct justice
-- Mens rea requiring proof of intent to obstruct course of justice -- Lawyer might
have believed that he had no obligation to disclose videotapes before trial --
Reasonable doubt about lawyer's intent -- Lawyer found not guilty.

The accused was retained by B initially in regard to rape charges and, then, on May
18, 1993, in connection with charges of murder and related offences. On May 6,
1993, acting on the written instructions of B, the accused removed videotapes from
their place of concealment in B's home. Two of the tapes ("the critical tapes")
depicted B and his wife H sexually assaulting two young women who were later
murdered. The other tapes depicted H in sexual scenes. H agreed on May 14, 1993
to plead guilty to two counts of manslaughter in relation to the deaths of the two
young women and to provide evidence to assist the Crown. The accused did not
turn the tapes over to the Crown or describe their contents to anyone, although his
co-counsel and his law clerk were permitted to view short portions of the tapes. B
was arraigned on May 4, 1994 on the homicides and related charges and pleaded
not guilty. In August 1994, the accused persuaded R, an experienced criminal
lawyer, to take over the case. He did not disclose the existence of the tapes to R.
He personally retained another lawyer who wrote to the Law Society of Upper
Canada for advice. The Law Society convened a special ad hoc committee, which
advised the accused's lawyer that "certain material" in the possession of the
accused should be delivered to the trial judge in a sealed packet, to be subject to
court determination. In September 1994, R viewed the tapes and realized that he
might have an obligation to turn them over to the authorities. He assigned a
research team to find authority to allow him to keep them. According to R, every
case found by his research team indicated that physical items were not covered by
privilege and that counsel were obliged to deliver the items to the authorities.
Meanwhile, R approached the Crown, hinting of the existence of the tapes and
seeking to resolve the case. Crown counsel wanted to see the tapes first, and they
were turned over to the police. The tapes demonstrated conclusively that B was
guilty of forcible confinement, assault and sexual assault and provided strong
circumstantial evidence to prove that B was guilty of murder. They were used by
the Crown at trial. The accused was charged with wilfully attempting to obstruct
justice by concealing the tapes, contrary to s. 139 of the Criminal Code, R.S.C.
1985, c. C-46.

Held, the accused should be acquitted.

The actus reus of the offence of wilfully attempting to obstruct justice is the doing
of an act which has a tendency to pervert or obstruct the course of justice. The
word "wilfully" denotes the mens rea of the offence. This is a specific intent
offence, and the onus is on the Crown to prove that the accused intended to
obstruct the course of justice.

The effect of s. 139(2) of the Code is to prohibit improper interference with the
functioning of any part of the justice system.

The action of the accused in secreting the critical tapes had the tendency to obstruct
the course of justice at several stages of the proceedings.

The confidentiality of the tapes was not protected under the umbrella of solicitor-
client privilege, but if there was a legal justification for his conduct, then it cannot
be said that he attempted to obstruct justice. Solicitor-client privilege protects
communications between solicitor and client and the tapes were not
communications. They were, rather, dramatic evidence of crime and pre-existed
the solicitor-client relationship. The accused's discussions with B about the tapes
were covered by solicitor-client privilege, but the tapes were not. Hiding them
from the police on behalf of B could not be said to be an aspect of solicitor-client
communication.

Although the accused had a duty of confidentiality to B, absent solicitor-client

privilege there was no legal basis permitting concealment of the tapes. Nor could it
be said that concealing the critical tapes was permissible because they might have
some exculpatory value. They were overwhelmingly inculpatory. While he had no
obligation to assist the police in their investigation or the Crown in its prosecution,
the accused could not be a party to concealing this evidence. Having removed the
tapes from their hiding place, he could not hide them again; nor could he
implement any instructions from B that would result in their continued
concealment. Once he had discovered the overwhelming significance of the critical
tapes, the accused was left with three legally justifiable options: immediately turn
over the tapes to the prosecution, either directly or anonymously; deposit them
with the trial judge; or disclose their existence to the prosecution and prepare to do
battle to retain them. The accused's concealment of the critical tapes was an act that
had a tendency to pervert or obstruct the course of justice and, therefore, the actus
reus of the offence is made out.

The accused testified that he intended to use the tapes in the defence and that he
did not intend to conceal them permanently. The tapes provided a basis for
suggesting that it was H who committed the murders, and they would be used to
cross-examine H at trial or in resolution discussions with the Crown. While there
were numerous troubling aspects about the accused's evidence and his treatment of
the tapes, the alleged defence strategy was reasonably feasible. The accused's
explanation as to his use of the critical tapes in the defence of his client was one
that might reasonably be true.

The accused testified that he believed his conduct was lawful. Section 139(2) of
the Code casts a broad net, and does not specifically isolate as criminal the conduct
engaged in by the accused. The only official guide given to lawyers in Ontario by
the Law Society, in the L.S.U.C. Professional Conduct Handbook, was not helpful.
While the accused made only a token effort to find out what his obligations were,
had he done careful research he might have remained confused. The weight of
legal opinion in Ontario is to the effect that lawyers may not conceal material
physical evidence of crime, but how this rule applies to particular facts has been
the subject of extensive discussion. The accused may well have believed that he
had no legal duty to disclose the tapes until resolution discussions or trial. In the
context of the whole of the evidence, his testimony raised a reasonable doubt as to
his intention to obstruct justice. The accused is, therefore, found not guilty.

TRIAL on a charge of attempting to obstruct justice.

Krieger v. Law Society of Alberta
Constitutional law – Division of powers – Criminal law – Administration of
justice – Rule adopted under provincial Law Society legislation requiring lawyers engaged
as prosecutors to make timely disclosure of evidence to accused – Whether rule intra vires
province – Constitution Act, 1867, ss.  91(27), 92(14) – Alberta Code of Professional
Conduct, Rule 28(d).
 
Barristers and solicitors – Crown prosecutors – Breach of ethics – Law Society’s
jurisdiction – Law Society rule requiring lawyers engaged as prosecutors to make timely
disclosure of evidence to accused – Whether Law Society has jurisdiction to review
allegation Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant
information – Whether rule interfering with prosecutorial discretion – Alberta Code of
Professional Conduct, Rule 28(d).
 
K was assigned to prosecute an accused charged with murder.  Prior to the
commencement of the preliminary inquiry, he received the results of DNA and biological
tests conducted on blood found at the scene of the crime which implicated a different person
than the accused.  Ten days later, he advised the accused’s counsel that the results of the
testing would not be available in time for the preliminary inquiry.  The defence counsel only
learned of the testing results at the preliminary hearing, and  complained to the Deputy
Attorney General that there had been a lack of timely and adequate disclosure.  K was
reprimanded and removed from the case after a finding that the delay was unjustified.  Six
months later, the accused complained to the appellant Law Society about K’s conduct.  K
sought an order that the Law Society had no jurisdiction to review the exercise of
prosecutorial discretion by a Crown prosecutor and an order that the Rule of the Code of
Professional Conduct requiring a prosecutor to make timely disclosure to the accused or
defence counsel was of no force and effect.  K’s application was dismissed by the Court of
Queen’s Bench, but that decision was overturned by the Court of Appeal.
 
Held:  The appeal should be allowed and the trial judgment restored.
 
The legislature of Alberta has the power to regulate the legal profession, which it
has duly conferred upon the Law Society under the Legal Profession Act.  Since the federal
government has jurisdiction over criminal law and procedure and the province has
jurisdiction over the administration of justice, including the regulation of lawyers and reviews
of alleged breaches of ethics, there is a strong possibility of overlap between the provincial
and federal spheres.  Regard must be had to the pith and substance of the impugned rule to
determine if it is an unconstitutional regulation by the province of criminal law and
procedure.  Here, the Rule requiring timely disclosure is directed at governing the ethical
conduct of lawyers, is authorized by the Legal Profession Act, is limited to circumstances in
which the lawyer acted dishonestly or in bad faith, and is not 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.
 
 A decision of the Attorney General within the authority delegated by the
sovereign is not subject to interference by other arms of government.  An exercise of
prosecutorial discretion will, therefore, be treated with deference by the courts and by other
members of the executive, as well as statutory bodies like provincial law societies. 
Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. 
Decisions that do not go to the nature and extent of the prosecution, such as the decisions that
govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope
of prosecutorial discretion, however, but are governed by the inherent jurisdiction of the court
to control its own processes once the Attorney General has elected to enter into that forum.  
 
Because Crown prosecutors must be members of the Law Society, they are
subject to the Law Society’s code of professional conduct, and all conduct that is not
protected by the doctrine of prosecutorial discretion is subject to the conduct review process.
As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a
legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown
prosecutor acting dishonestly or in bad faith failed to disclose relevant information,
notwithstanding that the Attorney General had  reviewed it from the perspective of an
employer.  A clear distinction exists between prosecutorial discretion and professional
conduct, and only the latter can be regulated by the Law Society.  The Attorney General’s
office has the ability to discipline a prosecutor for failing to meet the standards set by that
office, but that is a different function from the ability to discipline the same prosecutor in his
or her capacity as a member of the Law Society.  The Act gives the Law Society jurisdiction
over a very broad range of conduct including prosecutorial decisions made dishonestly or in
bad faith.  Disclosure of relevant evidence is a matter of prosecutorial duty, and
transgressions related to this duty constitute a very serious breach of legal ethics. Here, it
appears that K failed to disclose relevant information, a violation of his duty, but later offered
an explanation which would help to determine if he had acted dishonestly or in bad faith.  If
so, this would be an ethical breach falling within the Law Society’s jurisdiction.  The Law
Society’s jurisdiction to review K’s failure to disclose relevant evidence to the accused is
limited to examining whether it was an ethical violation. 
Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] SCR 16

Criminal law—Murder—Alleged misdirection on doctrine of reasonable doubt and

circumstantial evidence—Alleged inflammatory language by Crown counsel to jury—
Criminal Code, ss. 1014(2), 1025.
The appellant was found guilty of murder. His appeal to the Court of appeal
was unanimously dismissed. He now appeals to this Court, by special leave, on
grounds of misdirection with reference to reasonable doubt, circumstantial evidence
and inflammatory language used by Crown counsel in his address to the jury.
Held (Taschereau and Abbott JJ. dissenting), that the appeal should be
allowed, the conviction quashed and a new trial ordered.
1. There was no misdirection in the trial judge's charge with respect to the
doctrine of reasonable doubt.
Per Kerwin ,C.J., Kellock, Estey, Locke, Cartwright and Fauteux JJ.: Difficulties
would be avoided if trial judges would use the well known and approved adjective
"reasonable" or "raisonnable" when describing that doubt which is sufficient to
require the jury to return a verdict of not guilty.
[Page 17]
2. There was misdirection by the trial judge with reference to the rule as to
circumstantial evidence. Neither the language of Rex v. Hodge ((1838) 1838 CanLII 1
(FOREP), 2 Lewin C.C. 227) nor anything remotely approaching it was used.
Per Kerwin C.J. and Estey J.: Even though expressions other than the
ones used in the Hodge case are permissible, a trial judge should use the well
settled formula and so obviate questions arising as to what is its equivalent.
3. Crown counsel exceeded his duty when he expressed in his address by
inflammatory and vindictive language his personal opinion that the accused was
guilty and left with the jury the impression that the investigation made before the trial
by the Crown officers was such that it had brought them to the conclusion that the
accused was guilty.
It is improper for counsel for the Crown or the defence to express his own
opinion as to the guilt or innocence of the accused. The right of the accused to have
his guilt or innocence decided upon the sworn evidence alone uninfluenced by
statements of fact by the Crown prosecutor, is one of the most deeply rooted and
jealously guarded principles of our law.
4. Per Kerwin C.J., Rand, Kellock, Estey, Cartwright and Fauteux JJ.: It could
not be safely affirmed that had such errors not occurred the verdict would
necessarily have been the same.
Per Locke J.: There was a substantial wrong and consequently s. 1014(2) of
the Code had no application.

Per Taschereau and Abbott JJ. (dissenting) : As the verdict would

have necessarily been the same there had been no substantial wrong or
miscarriage of justice.
APPEAL from the judgment of the Court of Queen's Bench, appeal
side, province of Quebec[1], affirming the appellant's conviction on a 'charge
.of murder.
It is the duty of crown counsel to bring before the Court the material witnesses, as
explained in Lemay v. The King[5]. In his address he is entitled to examine all the evidence
and ask the jury to come to the conclusion that the accused is guilty as charged. In all this he
has a duty to assist the jury, but he exceeds that duty when he expresses by inflammatory or
vindictive language his own personal opinion that the accused is guilty, or when his remarks
tend to leave with the jury an impression that the investigation made by the Crown is such
that they should find the accused guilty. In the present case counsel's address infringed both
of these rules.

It cannot be over-emphasized that the purpose of a criminal prosecution is not to

obtain a conviction, it is to lay before a jury what the Crown considers to be credible
evidence relevant to what is alleged to be a crime. Counsel
[Page 24]
have a duty to see that all available legal proof of the facts is presented: it should be
done firmly and pressed to its legitimate strength but it must also be done fairly. The
role of prosecutor excludes any notion 'of winning or losing; his function is a matter of
public duty than which in civil life there can be none charged with greater personal
responsibility. It is to be efficiently performed with an ingrained sense of the dignity,
the seriousness and the justness of judicial proceedings.
The answer of the Crown is that notwithstanding these objectionable features, there
has been no substantial miscarriage of justice; that the proof of guilt is overwhelming
and that the jury, acting judicially, must necessarily have come to the same verdict.

Sec. 1014(2) of the Criminal Code provides that the Court

may also dismiss the appeal if, notwithstanding that it is of opinion that on any
of the grounds above mentioned the appeal might be decided in favour of the
appellant, it is also of opinion that no substantial wrong or miscarriage of justice
has actually occurred.
By sec. 1024 this Court, on an appeal, shall
make such rule or order thereon in affirmance of the conviction or for granting a
new trial, or otherwise, or for granting or refusing such application, as the
justice of the case requires .. .
It will be seen that under the former section the Court is to exercise its discretion in
the light of all the circumstances. Appreciating to the full the undesirability, for many
reasons, of another trial, I find myself driven to conclude that nothing short of that will
vindicate the fundamental safe-guards to which the accused in this case was
entitled.
The conviction, therefore, must be set aside and a new trial directed.
 R. v. Nixon, [2011] 2 S.C.R. 566
The accused drove her motor home through an intersection and struck another vehicle, killing a
husband and wife and injuring their young son. She was charged with several Criminal
Code offences, including dangerous driving causing death, dangerous driving causing bodily harm,
and parallel charges for impaired driving. Counsel initially entered into a plea agreement according
to which the accused would plead guilty to a charge of careless driving under the provincial Traffic
Safety Act with a joint sentence recommendation for an $1,800 fine in return for which the Crown
agreed to withdraw the Criminal Code charges. When the Acting Assistant Deputy Minister of the
Criminal Justice Division of the Office of the Attorney General saw the proposed resolution, he
initiated an inquiry which led him to conclude that Crown counsel's assessment of the strength of
the case was flawed. In his view, a plea to careless driving in the circumstances was contrary to
the interests of justice and would bring the administration of justice into disrepute. Crown counsel
was thus instructed to withdraw the plea agreement and to proceed to trial. In response, the
accused brought a s. 7 Charter application alleging abuse of process and seeking a court direction
requiring the Crown to complete the plea agreement. The application judge held that negotiations
between counsel after charges are laid are matters of tactics or conduct which are subject to
review by the court, and that the repudiation of the plea agreement, in this case, was not justified.
He concluded that the accused's s. 7 Charter right to security of the person had been breached and
he directed the Crown to proceed with the agreement. The Court of Appeal allowed the Crown's
appeal, finding that the repudiation of a plea agreement is a matter of prosecutorial discretion not
reviewable by the courts, subject to the doctrine of abuse of process.
Held: The appeal should be dismissed.
The crucial importance of the distinction between prosecutorial discretion reviewable only for
abuse of process and matters of tactics or conduct before the court governed by the inherent
jurisdiction of the criminal trial court to control its own process was fully canvassed and explained
in Krieger v. Law Society of [page568] Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. Subject to the abuse of
process doctrine, supervising one litigant's decision-making process -- rather than the conduct of
litigants before the court -- is beyond the legitimate reach of the court. The Crown's decision in this
case to resile from the plea agreement and to continue the prosecution clearly constituted an act
of prosecutorial discretion subject to the principles set out in Krieger: it is only reviewable for abuse
of process. Prosecutorial discretion is not spent with the decision to initiate the proceedings, nor
does it terminate with a plea agreement. So long as the proceedings are ongoing, the Crown may
be required to make further decisions about whether the prosecution should be continued, and if
so, in respect of what charges.
There are two categories of abuse of process under s. 7 of the Charter: (1) prosecutorial conduct
affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental
notions of justice and thus undermines the integrity of the judicial process. While s. 24(1) of
the Charter allows for a wide range of remedies, this does not mean that abuse of process can be
made out by demonstrating a lesser degree of harm, either to the accused's fair trial interests or
to the integrity of the justice system. Achieving the appropriate balance between societal and
individual concerns defines the essential character of abuse of process.
The repudiation of a plea agreement may well constitute an abuse of process, either because it
results in trial unfairness or meets the narrow residual category of abuse that undermines the
integrity of the judicial process. The more difficult question in this appeal is how the initial exercise
of prosecutorial discretion -- Crown counsel's offer to resolve the matter on the basis of a plea to a
lesser charge -- should figure in the analysis regarding abuse of process. A plea agreement should
not be regarded as a contractual undertaking. Vitiating factors, such as mistake, misrepresentation
or fraud, which usually inform a private party's right to resile from a bargain, do not fully capture
the public interest considerations which are at play. However, the analogy can usefully underscore
the utmost importance of honouring the agreement. The situations in which the Crown can
properly repudiate a plea agreement are, and must remain, very rare. Moreover, the reasonably
defensible test applied by the application judge to Crown counsel's [page569] decision to enter
into a plea agreement is not the appropriate measure to determine whether there is an abuse of
process. Indeed, it is the circumstances surrounding the repudiation of a plea agreement which
should be reviewed to determine whether that decision amounts to an abuse of process. Reviewing
for "reasonableness" a decision made in the exercise of prosecutorial discretion runs contrary to
the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal
prosecutions as well as the principles set out in Krieger.

Given that acts of prosecutorial discretion are generally beyond the reach of the court, there is
good reason to impose a threshold burden on the applicant who alleges abuse of process. A court
should not embark on an inquiry into the reasons behind the exercise of prosecutorial discretion
without a proper evidentiary foundation. However, evidence that a plea agreement has been
entered into and subsequently reneged by the Crown meets the requisite threshold. Further, to the
extent that the Crown is the only party who is privy to the information, the evidentiary burden
shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to
resile from the agreement. The ultimate burden of proving abuse of process, however, remains on
the applicant.

In this case, the Crown's repudiation conduct cannot be considered so unfair or oppressive to the
accused, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed on
the dangerous driving Criminal Code charges would tarnish the integrity of the judicial system and
thus constitute an abuse of process. Indeed, the Acting Assistant Deputy Minister, in good faith,
determined that Crown counsel's assessment of the strength of the evidence was erroneous and,
on that basis, having regard to the seriousness of the offences, concluded that it would not be in
the public interest to terminate the prosecution on the criminal charges. This can hardly be
regarded as evidence of misconduct. Finally, the accused was returned to the position she was in
at the conclusion of the preliminary hearing before the plea agreement was entered into and thus
suffered no prejudice as a result of the repudiation.
 R. v. Babos, [2014] 1 S.C.R. 309
The accused were charged with numerous firearms offences, as well as offences related to the
importation, production and trafficking of methamphetamine. During the course of the trial, the
accused brought an application to stay the proceedings for abuse of process. They took issue with
three forms of state misconduct: attempts by the Crown to intimidate them into foregoing their
right to a trial by threatening them with additional charges should they choose to plead not guilty,
collusion on the part of two police officers to mislead the court about the seizure of a firearm, and
improper means used by the Crown in obtaining the medical records of one of the [page310]
accused. The trial judge stayed the proceedings. The Court of Appeal set aside the stay and
ordered a new trial.

Held (Abella J. dissenting): The appeals should be dismissed.

Per McLachlin C.J. and LeBel, Cromwell, Moldaver, Karakatsanis and Wagner JJ.: A stay of
proceedings for an abuse of process will only be warranted in the clearest of cases. Two types of
state conduct may warrant a stay. The first is conduct that compromises the fairness of an
accused's trial (the "main" category). The second is conduct that does not threaten trial fairness
but risks undermining the integrity of the judicial process (the "residual" category). The test for
determining whether a stay of proceedings is warranted is the same for both categories and
consists of three requirements: (1) there must be prejudice to the accused's right to a fair trial or
to the integrity of the justice system that will be manifested, perpetuated or aggravated through
the conduct of the trial, or by its outcome, (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 must balance the interests in favour of granting a stay against the
interest that society has in having a final decision on the merits.

When the residual category is invoked, the first stage of the test is met when it is established that
the state has engaged in conduct that is offensive to societal notions of fair play and decency, and
that proceeding with a trial in the face of that conduct would be harmful to the integrity of the
justice system. At the second stage of the test, the focus is on whether an alternate remedy short
of a stay of proceedings will adequately dissociate the justice system from the impugned state
conduct going forward. Finally, the court must decide whether staying the proceedings or having a
trial despite the impugned conduct better protects the integrity of the justice system. This inquiry
necessarily demands balancing. The court must consider such things as the nature and seriousness
of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing
problem, the circumstances of the accused, the charges he or she faces, and the interests of
society in having the charges disposed of on the merits.

[page311]
In the instant case, the three forms of state misconduct that are at issue fall squarely within the
residual category. The trial judge erred in his assessment of the impugned misconduct and in
concluding that a stay of proceedings was warranted. As regards the medical records, the trial
judge made a palpable and overriding error in finding that the Crown's conduct occasioned
prejudice to the integrity of the justice system. With respect to the police collusion, apart from its
limited extent, the trial judge failed to consider the existence of another remedy that would have
overcome the threat posed to the integrity of the justice system -- namely, excluding the firearm
from evidence in respect of both accused. As for the threats made by the Crown, while they were
reprehensible and should not be repeated, the trial judge failed to consider that they were made
more than a year before the trial began, and that the accused took no steps for over a year to
address the Crown's conduct. These factors shed light on how seriously the accused took the
threats. The trial judge also failed to consider that the Crown prosecutor who made the threats
was removed from the case months before the trial started. Moreover, the trial judge failed to
balance the need for a stay against society's interest in a trial on the merits. When the impugned
misconduct is weighed against society's interest in a trial, this is not one of the clearest of cases
where the exceptional remedy of a stay of proceedings is warranted.
Per Abella J. (dissenting): A stay of proceedings may be imposed when the state conduct is so
profoundly and disproportionately inconsistent with the public perception of what a fair justice
system requires, that proceeding with a trial means condoning unforgiveable conduct. A Crown
who makes threats intended to bully an accused into foregoing his or her right to a trial, takes
fatal aim at the heart of the public's confidence in that integrity.
The unjustifiable nature of the Crown's conduct in this case was not mitigated by the length of
time between the threats and the trial. Time is not a legal remedy for a fundamental breach of the
Crown's role and the passage of time does not attenuate her unpardonable conduct. It was the
mere fact that the threats were made at all that was key, not when they were made.

[page312]

Moreover, a further balancing exercise was not required in the circumstances. The trial judge was
unequivocal in concluding that the conduct justified a stay, and there was none of the uncertainty
as to the propriety of a stay that is a condition precedent to the need for a balancing exercise.
When a trial judge has found that the conduct cannot be condoned because it is such an
exceptional assault on the public's sense of justice, it is conceptually inconsistent to ask the court
to undermine its own conclusion by re-weighing the half of the scale that contains the public's
interest in trials on the merits. The public has an interest not only in trials on the merits, it has an
even greater interest in knowing that when the state is involved in proceedings, particularly those
that can result in an individual's loss of liberty, it will put fairness above expedience. Justice is not
only about results, it is about how those results are obtained. When a Crown threatens an accused
with additional offences if he or she does not plead guilty, the public's interest in the results of a
trial must yield to the transcendent interest in protecting the public's confidence in the integrity of
the justice system.
 R. v. Anderson, [2014] 2 S.C.R. 167
The accused was convicted of impaired driving. The offence of impaired driving carries with it a
minimum sentence of 30 days' imprisonment for a second offence and 120 days' imprisonment for
a subsequent offence. These mandatory minimum sentences apply only if the Crown notifies the
accused of its intention to seek a greater punishment prior to any plea. Crown counsel served a
Notice of intent to seek greater punishment by reason of the accused's four previous impaired
driving convictions. The trial judge held that Crown counsel breached s. 7 of the Canadian Charter of
Rights and Freedoms by tendering the Notice without considering the accused's Aboriginal status. The
accused was sentenced to a 90-day intermittent sentence. The Court of Appeal dismissed an
appeal from sentence.
Held: The appeal should be allowed and a term of imprisonment of 120 days should be substituted,
with service of the remainder of the sentence stayed in accordance with the concession of the
Crown.
This appeal raises two issues: (1) whether s. 7 of the Charter requires the Crown to consider an
accused's Aboriginal status when making decisions that limit the sentencing options available to a
judge -- here, the decision to seek a mandatory minimum sentence for impaired driving; and (2)
whether the decision to tender the Notice is a matter of "core" prosecutorial discretion, and if so,
the standard by which it may be reviewed.
No constitutional obligation

Crown prosecutors are not constitutionally required to consider the Aboriginal status of an accused
when deciding whether or not to seek a mandatory minimum sentence for impaired driving for two
reasons.

First, while it is a principle of fundamental justice that a sentence be proportionate to the gravity
of the offence and the degree of responsibility of the offender, the duty to impose a proportionate
sentence rests upon judges, not Crown prosecutors. The proportionality principle requires judges to
consider systemic and background factors, including Aboriginal status, which may bear on the
culpability of the offender. There is no basis in law to support equating the distinct roles of the
judge and the prosecutor in the sentencing process.
[page169]

Second, the principle of fundamental justice that the accused asks this Court to recognize does not
meet the test which governs principles of fundamental justice. A principle of fundamental justice
must be a legal principle, enjoy consensus that the rule or principle is fundamental to the way in
which the legal system ought fairly to operate, and be identified with sufficient precision to yield a
manageable standard against which to measure deprivations of life, liberty or security of the
person. The principle advanced by the accused does not meet the second requirement as it is
contrary to a long-standing and deeply-rooted approach to the division of responsibility between
the Crown prosecutor and the courts. It would greatly expand the scope of judicial review of
discretionary decisions made by prosecutors and put at risk the adversarial nature of our criminal
justice system by inviting judicial oversight of the numerous decisions that Crown prosecutors
make on a daily basis.

Prosecutorial discretion
Decisions by Crown prosecutors are either exercises of prosecutorial discretion or tactics and
conduct before the court. Subsequent to this Court's decision in Krieger v. Law Society of Alberta, 2002
SCC 65, [2002] 3 S.C.R. 372, confusion has arisen as to what is meant by "prosecutorial
discretion" and the law has become cloudy. In particular, the use of the word "core" in Krieger has
led to a narrow definition of prosecutorial discretion. The present appeal provides an opportunity
for clarification.

"Prosecutorial discretion" is an expansive term. It covers all decisions regarding the nature and
extent of the prosecution and the Attorney General's participation in it. Prosecutorial discretion is
entitled to considerable deference. It must not be subjected to routine second-guessing by the
courts. Judicial non-interference is a matter of principle based on the doctrine of separation of
powers. In contrast, tactics and conduct before the court are governed by the inherent jurisdiction
of the court to control its own processes. Deference is not owed to counsel who behave
inappropriately in the courtroom, but a high degree of deference is accorded to the tactical
decisions of counsel. Abuse of process is not a [page170] precondition for judicial intervention in
relation to a party's tactics and conduct before the court.
Prosecutorial discretion is reviewable for abuse of process. The abuse of process doctrine is
available where there is evidence that the Crown's conduct is egregious and seriously compromises
trial fairness or the integrity of the justice system. The burden of proof lies on the accused to
establish, on a balance of probabilities, a proper evidentiary foundation to proceed with an abuse
of process claim, before requiring the Crown to provide reasons justifying its decision.

Tendering the Notice was a matter of prosecutorial discretion. In the complete absence of any
evidence to support it, the accused's abuse of process argument must fail.
R. v. Arcuri, [2001] 2 S.C.R 828

Criminal law — Preliminary inquiry — Exculpatory evidence — Whether preliminary inquiry judge required to
weigh Crown's evidence against exculpatory evidence called by accused.

The accused was charged with first degree murder. At the preliminary inquiry, the Crown's case
was entirely circumstantial and the accused called two witnesses whose testimony was arguably
exculpatory. The preliminary inquiry judge rejected the accused's contention that he must weigh
the evidence and, after viewing the evidence as a whole, determined that the accused should be
committed to trial for second degree murder. The accused's certiorari application was dismissed
and that decision was affirmed by the Court of Appeal. The issue before this Court was whether
the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the
accused to trial, erred in refusing to weigh the Crown's evidence against the allegedly exculpatory
direct evidence adduced by the accused.

  Held: The appeal should be dismissed.  

The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is
whether there is any evidence upon which a reasonable jury properly instructed could return a
verdict of guilty. The question that arises in this case is whether the preliminary inquiry judge's
task differs where the defence tenders exculpatory evidence. The task is essentially the [page829]
same, in situations where the defence calls exculpatory evidence, whether it be direct or
circumstantial. 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 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.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences
from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the
Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt.
This task of limited weighing never requires consideration of the inherent reliability of the evidence
itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to
be drawn from the circumstantial evidence. In this case, before committing the accused to trial,
the preliminary inquiry judge considered the evidence as a whole, surveying the circumstantial
evidence presented by the Crown, as well as the allegedly exculpatory evidence tendered by the
defence. There is no reason to believe that he arrived at the wrong result in committing the
accused to trial.

Notwithstanding certain confusing language in Mezzo and Monteleone, nothing in this Court's
jurisprudence calls into question the continuing validity of the common law rule in Shephard.
 R. v. Gunning, [2005] 1 S.C.R. 627
The accused fatally shot C, a person unknown to the accused who had entered his home uninvited
during a party. The accused denied that he intended to kill C. Although his memory was sketchy
due to his consumption of alcohol, he testified that C had assaulted him and refused to leave his
house after they had argued. He claimed that he was scared, so he took out and loaded the
shotgun to intimidate C into leaving. He testified that the gun discharged accidentally. The focus of
the trial was on whether the shooting was intentional or accidental. The trial judge, however,
instructed the jury that the offence of careless use of a firearm had been made out and he refused
to instruct the jury on defence of property. Later in his charge, he purported to correct the
impugned instruction on careless use of a firearm. The accused was convicted of second degree
murder. The Court of Appeal upheld the conviction.

[page628]
Held: The appeal should be allowed. The conviction should be set aside and a new trial ordered.
The trial judge erred in instructing the jury that the Crown had proven the "unlawful act"
necessary to prove murder or manslaughter and his recharge did not cure the error. 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. In this case, if the
jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would
be the shooting itself and the accused would be guilty of murder. If the Crown failed to prove an
intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful act
of careless use of a firearm. If the jury had a reasonable doubt on this question, he was entitled to
an acquittal. In finding that the accused's use of the firearm was careless within the meaning of s.
86 of the Criminal Code, and an unlawful act that caused the death of C, the trial judge encroached
on the exclusive domain of the jury. That issue, together with the question of intent to kill, were
central in this trial. It was incumbent upon the trial judge to instruct the jury on the law in respect
of the careless use of a firearm, including any defences that arose on the evidence, and to leave
for the jury the application of the law to the facts. [para. 5] [paras. 21-22] [para. 35]
The trial judge also erred in failing to instruct the jury on the defence of house or property under
s. 41 of the Criminal Code. The accused advanced the defence in respect of his use of the firearm
prior and up to what he alleged to have been an accidental shooting. On the evidence, this defence
raised a real issue for the jury to decide, but the jurors were never told that a person is entitled at
law to forcibly remove a trespasser from his home, so long as he uses no more force than
necessary. They were directed, as a matter of law, that the accused's conduct before the shooting
was the unlawful act of careless use of a firearm. The trial judge effectively determined the merits
of the defence, a matter that was for the jury to resolve. [para. 6] [para. 22] [paras. 37-38]
[page629]

In view of the fact that the jury was not properly instructed in respect of matters fundamental to
the defence, reliance cannot be placed on the verdict to conclude that there is no reasonable
possibility that the verdict would have been different without these errors. [para. 7]
R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.
Appeal by the Crown from sentence. Hamilton and Mason pleaded guilty to importing cocaine.
They were both single black women with young children and limited financial resources. The two
incidents were unrelated but on a joint sentencing hearing, they each received a conditional
sentence. Hamilton was sentenced to 20 months with partial house arrest in the first year and a
curfew for the remainder of the sentence. Mason was sentenced to two years less a day with
partial house arrest in the first 15 months and a curfew for the remainder. The trial judge
concluded, based on his own materials and experience, that Hamilton and Mason were the victims
of systemic racial and gender bias which led to their impoverished circumstances and made them
vulnerable to those seeking cocaine couriers. He found that this was a factor which mitigated the
sentences they received. The Crown sought leave and appealed sentence.

HELD: Leave to appeal granted; appeal dismissed.

The sentences were unfit. The trial judge made use of voluminous raw statistical information
without the assistance of a properly qualified witness. From this he drew the conclusion that
sentencing practices, as applied to those who imported cocaine, reflected systemic, social, racial,
and gender bias against poor black women. His holding that such bias justified the imposition of
conditional sentences was a reversible error. Cocaine importation was a serious offence which was
harmful to the community and a conditional sentence did not properly reflect the gravity of the
offence or send the appropriate denunciatory and deterrent message. A more appropriate sentence
would have been 20 months imprisonment for Hamilton and two years less a day imprisonment for
Mason. Since both women had already served 17 months of their conditional sentences, it would
have imposed an unacceptable hardship to now incarcerate them. The administration of justice
was best served by allowing them to complete their conditional sentences.
R. v. Williams, [1998] 1 S.C.R 1128

The accused, an aboriginal, pleaded not guilty to a robbery charge and elected a trial by judge and
jury. The trial judge at the first trial allowed questions to be put to potential jurors but the Crown
successfully applied for a mistrial on the basis of procedural errors and the "unfortunate publicity"
of the jury selection process. At the second trial, the judge who heard the accused's motion for an
order permitting him to challenge jurors for cause dismissed the motion. The judge who presided
at the trial dismissed a renewed application and did not warn the jury, either in his opening or
closing addresses, to be aware of or to disregard any bias or prejudice that they might feel
towards the accused as a native person. The Court of Appeal dismissed an appeal from conviction.
The courts below accepted that there was widespread prejudice against aboriginal people in the
community. At issue here is whether the evidence of widespread bias against aboriginal people in
the community raises a realistic potential of partiality.

  Held: The appeal should be allowed.  

The prosecution and the defence are entitled to challenge potential jurors for cause on the ground
of partiality. Candidates for jury duty are presumed to be indifferent or impartial and this
presumption must be displaced before they can be challenged and questioned. Usually the party
seeking the challenge calls evidence substantiating the basis of the concern. Alternatively, where
the basis of the concern is widely known and accepted, the law of evidence may permit a judge to
take judicial notice of it. The judge has a wide discretion in controlling the challenge process and
should permit challenges if there is a realistic possibility that the jury pool may contain people
whose racial prejudice might incline them to favour the Crown rather than the accused in deciding
the matters that fall to them in the course of the trial.

Judicial directions to act impartially cannot always be assumed to be effective in countering racial
prejudice. Where doubts are raised, the better policy is to err on the side of caution and permit
prejudice to be examined. A motion to challenge for cause therefore need not be dismissed if there
was "no concrete evidence" that any of the prospective jurors could not set aside their biases. The
expectation that jurors usually behave in accordance with their oaths does not obviate the need to
permit challenges for cause where it is established that the community suffers from widespread
prejudice against people of the accused's race sufficient to create a realistic potential for partiality.

The contention that there need be some evidence of bias of a particular nature and extent against
aboriginal persons, or even further, that racial prejudice in the community must be linked to
specific aspects of the trial, is unduly restrictive. Evidence of widespread racial prejudice may,
depending on the nature of the evidence and the circumstances of the case, lead to the conclusion
that there is a realistic potential for partiality. The potential for partiality is irrefutable where the
prejudice can be linked to specific aspects of the trial, like a widespread belief that people of the
accused's race are more likely to commit the crime charged.

Racial prejudice against the accused may be detrimental to an accused in a variety of ways. The
link between prejudice and verdict is clearest where there is an "interracial element" to the crime
or a perceived link between those of the accused's race and the particular crime. Racial prejudice
may also play a role in other, less obvious ways such as how jurors assess the credibility of the
accused.

The trial judge has the discretion to determine whether widespread racial prejudice in the
community, absent specific "links" to the trial, is sufficient to give an "air of reality" to the
challenge in the particular circumstances of each case. It is impossible to provide an exhaustive
catalogue of those circumstances. Where specific "links" to the trial exist, the trial judge must
allow the challenge to proceed.

Section 638(2) of the Criminal Code requires two inquiries and entails two different decisions. The
first stage is the inquiry before the judge to determine whether challenges for cause should be
permitted. The test at this stage is whether there is a realistic potential or possibility for partiality.
If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The
defence may question potential jurors as to whether they harbour prejudices against people of the
accused's race, and if so, whether they are able to set those prejudices aside and act as impartial
jurors. At this stage, the question to be determined by the triers is whether the candidate in
question will be able to act impartially.

Section s. 638(1)(b) is intended to prevent persons who may not be able to act impartially from
sitting as jurors. This object cannot be achieved if the evidentiary threshold for challenges for
cause is set too high. To require evidence that some jurors will be unable to set their prejudices
aside is to ask the impossible. Similarly, extreme prejudice is a poor indicator of a realistic danger
or potential of partiality. Widespread racial prejudice is not exceptional.

The appropriate evidentiary standard on applications to challenge for cause based on racial
prejudice is a "realistic potential for partiality" (the rule in R. v. Sherratt). Absent evidence to the
contrary, where widespread prejudice against people of the accused's race is demonstrated at a
national or provincial level, it will often be reasonable to infer that such prejudice is replicated at
the community level. Prejudice less than widespread might in some circumstances meet this test.

A judge's discretion to allow challenge for cause must be exercised in accordance with the
Canadian Charter of Rights and Freedoms. Section s. 638(1)(b) should be read in light of the
fundamental rights to a fair trial by an impartial jury and to equality before and under the law. The
rule in Sherratt suffices to maintain these rights without adopting the United States model or a
variant on it. It protects the accused's right to a fair trial by an impartial jury and the privacy
interests of prospective jurors while avoiding lengthening trials or increasing their cost.
R. v. Find, 2001 SCC 32
The accused was charged with 21 counts of sexual offences involving complainants ranging
between 6 and 12 years of age at the time of the alleged offences. 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 on 17 of the 21 counts. The majority of the Court of Appeal
dismissed the accused's appeal, upholding the trial judge's ruling not to permit the accused to
challenge prospective jurors for cause.

Held: The appeal should be dismissed. The nature of the charges against the accused did not give
rise to the right to challenge prospective jurors for cause on the ground of partiality.

Section 638(1)(b) of the Criminal Code permits a party to challenge for cause where a prospective
juror is not indifferent between the Crown and accused. Lack of indifference constitutes partiality.
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, despite trial safeguards, to render an impartial decision. The
first branch of the test is concerned with the existence of a material bias, while the second is
concerned with the potential effect of the bias on the trial process. However, the overarching
consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour.
The first branch involves two concepts: "bias" and "widespread". "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. Prejudice capable of unfairly affecting the outcome of the case is required. Bias
is not determined at large but in the context of the specific case and may flow from a number of
different attitudes. The second concept, "widespread", relates to the prevalence or incidence of the
bias in question. The bias must be sufficiently pervasive in the community to raise the possibility
that it may be harboured by members of a jury pool. 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.
Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion
of the trial judge. Where a realistic potential for partiality is shown to exist, the right to challenge
must follow. If in doubt, the judge should err on the side of permitting challenges. Since jurors are
presumed to be impartial, in order to rebut the presumption of impartiality, a party must call
evidence or ask the trial judge to take judicial notice of facts, or both. In addition, the judge may
draw inferences from events that occur in the proceedings and may make common sense
inferences about how certain biases, if proved, may affect the decision-making process. The
accused did not call any evidence in support of his application but relied heavily on proof by
judicial notice. The threshold for judicial notice is strict: a court may properly take judicial notice of
facts that are either: (1) so notorious or generally accepted as not to be the subject of debate
among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to
readily accessible sources of indisputable accuracy.

Here, the material presented by the accused falls short of grounding judicial notice of widespread
bias in Canadian society against an accused in sexual assault trials. First, while the widespread
nature of abuse and its potentially traumatic impact are not disputed, widespread victimization,
standing alone, fails to establish widespread bias that might lead jurors to discharge their task in a
prejudicial and unfair manner. Second, strong views about a serious offence do not ordinarily
indicate bias and nothing in the material supports the contention, nor is it self-evident, that an
exception arises in the case of sexual assaults on children. Third, there was also no proof that
widespread myths and stereotypes undermine juror impartiality. While stereotypical beliefs might
incline some jurors against an accused, it is not notorious or indisputable that they enjoy
widespread acceptance in Canadian society. Fourth, 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. Strong emotions are
common to the trial of many serious offences and have never grounded a right to challenge for
cause. The proposition that sexual offences are generically different from other crimes in their
tendency to arouse strong passions is debatable, and does not, therefore, lend itself to judicial
notice. Fifth, the survey of past challenge for cause cases involving sexual offences does not,
without more, establish widespread bias arising from sexual assault charges. The number of
prospective jurors disqualified, although relied on as support for judicial notice of widespread bias,
is equally consistent with the conclusion that the challenge processes disqualified prospective
jurors for acknowledging the intense emotions, beliefs, experiences and misgivings anyone might
experience when confronted with the prospect of sitting as a juror on a case involving charges of
sexual offences against children. Lastly, the theory of "generic prejudice" against accused persons
in sexual assault trials has not been proved, nor could judicial notice be taken of the proposition
that such prejudice exists. While judicial notice could be taken of the fact that sexual crimes are
almost universally abhorred, this does not establish widespread bias arising from sexual assault
trials.

Although the accused failed to satisfy the first branch of the test for partiality, it is prudent to
consider the second branch, as the two parts are not watertight compartments. It is open to a trial
judge reasonably to infer, in the absence of direct evidence, that some strains of bias by their very
nature may prove difficult for jurors to identify and eliminate from their reasoning. The strength of
the inference varies with the nature of the bias in issue, and its amenability to judicial cleansing.
Fundamental distinctions exist between racial bias and the more general bias relating to the nature
of the offence itself. Firstly, racial bias may impact more directly on a jury's decision than bias
stemming from the nature of the offence because it is directed against a particular class of
accused by virtue of an identifiable immutable characteristic. Secondly, trial safeguards may be
less successful in cleansing racial prejudice because of its subtle, systemic and often unconscious
operation. Bias directed toward the nature of the offence, however, is more susceptible to
cleansing by the rigours of the trial process because it is more likely to be overt and
acknowledged. The trial judge is more likely to address these concerns in the course of directions
to the jury. Moreover, many of the safeguards the law has developed may be seen as a response
to this type of bias. In the absence of evidence that strongly held beliefs or attitudes may affect
jury behaviour in an unfair manner, it is difficult to conclude that they could not be cleansed by the
trial process. It is speculative to assume that jurors will act on their beliefs to the detriment of an
accused, in violation of their oath or affirmation, the presumption of innocence and the directions
of the trial judge. As well, absent evidence to the contrary, there is no reason to believe that
stereotypical attitudes about accused persons charged with a crime of a sexual nature are more
elusive of the cleansing measures than stereotypical attitudes about complainants. It follows that
such myths and stereotypes, even if widespread, provide little support for any inference of a
behavioural link between these beliefs and the potential for juror partiality. Finally, absent
evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes will lead
to prejudicial and unfair juror behaviour. The safeguards of the trial process and the instructions of
the trial judge are designed to replace emotional reactions with rational, dispassionate
assessment. Our long experience in the context of the trial of other serious offences suggests that
our faith in this cleansing process is not misplaced. The accused failed to establish that sexual
offences give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of trial
safeguards.
R. v. Yumnu, 2012 SCC 73
Following a trial in Barrie, Ontario, each of the appellants was convicted of two counts of first
degree murder and two counts of conspiracy to commit murder. They appealed from their
convictions, raising grounds relating to the adequacy of the trial judge's charge to the jury. While
the appeals were under reserve, the appellants became aware of a "jury vetting" practice in the
Barrie area, consisting 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. It was [page779] ascertained that in
the present case, vetting of the jury lists by the police in response to the Crown's request netted
information about 10 individuals who remained in the pool of prospective jurors at the peremptory
challenge stage of the proceedings. None of this information was shared with the defence. The
appeals were reopened to consider evidence and arguments concerning the propriety of the
vetting practice and its impact on the appellants' trial. The Court of Appeal dismissed all three
appeals. With respect to the ground of appeal related to jury vetting, the Court of Appeal found
that the Crown had failed to disclose information obtained from the jury vetting process that might
have assisted the appellants in the exercise of their peremptory challenges, but it was not satisfied
that the appellants suffered any prejudice from the Crown's failure to meet its disclosure
obligations. The Court of Appeal held that there was no basis to conclude that the Crown's failure
to disclose caused actual unfairness in the peremptory challenge process, or that the jury vetting
practice created an appearance of unfairness.

Held: The appeals should be dismissed.

Jury vetting by the Crown and police gives rise to a number of concerns. First is the prospect of
the Crown and police joining forces to obtain a jury favourable to their cause. Second 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". Third is juror privacy. There are, however,
countervailing interests at play that warrant some limited checking and some minimal intrusions
into the private lives of potential jurors. Only those persons eligible to serve as jurors should be
permitted to participate in the process. Under provincial statutes and the Criminal Code, a potential
juror's criminal antecedents, and in some provinces his or her pending charges, may render that
person ineligible for jury duty or result in his or her removal from the jury pool following a
successful challenge for cause. Self-reporting is one way of screening potential jurors, but it has
proved to be less than satisfactory. Accordingly, absent legislation to the contrary, the authorities
should be permitted to do criminal record checks on potential jurors to determine whether they are
eligible to serve as jurors. In addition, in those provinces where the eligibility criteria cover
persons who have been charged with a criminal offence, this [page780] is also something the
authorities may properly check for. It is thus permissible for the Crown, with the assistance of the
police, to do limited background checks using multiple police databases to identify potential jurors
who, by virtue of their criminal conduct, are not eligible for jury duty. The imbalance resulting
from the defence's inability to conduct such searches is overcome by the disclosure obligations
placed on the Crown. Information received by the Crown that is relevant to the jury selection
process must be turned over to the defence, thereby restoring the balance. In return, defence
counsel, as officers of the court, must make disclosure to both the court and Crown counsel where
they know or have good reason to believe that a potential juror has engaged in criminal conduct
that renders him or her ineligible for jury duty or cannot serve on a particular case due to matters
of obvious partiality.
When it is discovered at the appeal stage that information about prospective jurors which should
have been disclosed at trial was not disclosed, persons who seek a new trial on the basis that this
non-disclosure of information deprived them of their s. 7 Charter right to a fair trial must, at a
minimum, establish that (1) the Crown failed to disclose information relevant to the selection
process that it was obliged to disclose; and (2) had the requisite disclosure been made, there is a
reasonable possibility that the jury would have been differently constituted. In addition to these
two steps, in the event the jury would have been differently constituted, it may be that the Crown
should then have the opportunity to show, on balance, that the jury was nonetheless impartial.

With respect to the appearance of unfairness, there must be conduct on the part of the Crown and
the police, within and surrounding the jury selection process, that would constitute a serious
interference with the administration of justice and offend the community's sense of fair play and
decency. When conduct of that nature is found to exist, it matters not that the accused may
otherwise have had a fair trial; nor is it necessary to find that the accused may have been
wrongfully convicted. It is the conduct itself that gives rise to a miscarriage of justice and demands
that a new trial be ordered.

[page781]

In the case at bar, the Court of Appeal acted as a court of first instance in respect of the jury
vetting issue. In these circumstances, its findings, like those of a trial court, are entitled to
deference. On the issue of trial fairness, there is no basis for interfering with the findings of the
Court of Appeal on the impact -- or the lack of impact -- that the jury vetting practice had on the
jury selection process. Although the Crown failed in its disclosure obligations, as found by the
Court of Appeal, there was no reasonable possibility that the jury would have been differently
constituted had the pertinent information obtained from the vetting process been disclosed. The
appellants received a fair trial by an impartial jury.

As for the appearance of unfairness and the suggestion that the verdicts are the product of a
miscarriage of justice, although aspects of the Crown's conduct were improper and should not be
repeated, what occurred here did not constitute a serious interference with the administration of
justice, nor was it so offensive to the community's sense of fair play and decency that the
proceedings should be set aside as a miscarriage of justice. The record checks were carried out in
good faith and there was no attempt on the part of the police or the Crown to obtain a favourable
jury. There is no basis for ordering a new trial.
R. v. Kokopenace, 2015 SCC 28
Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — On being charged with an
offence — To trial by jury — Fair hearing — Independent and impartial tribunal — Appeal by prosecution from
judgment setting aside Kokopenace's conviction for manslaughter and ordering new trial allowed — Court of Appeal
held that Kokopenace's rights had been violated at trial due to problems relating to jury representativeness — Right
to representative jury promoted fairness of trial, in appearance and in reality — State satisfied accused's right to
representative jury by providing fair opportunity for broad cross-section of society to participate in jury process —
Assessed against proper standard of representativeness, Ontario's efforts were reasonable.

Criminal law — Procedure — Jury — Empanelling — Appeal by prosecution from judgment setting aside
Kokopenace's conviction for manslaughter and ordering new trial allowed — Court of Appeal held that
Kokopenace's rights had been violated at trial due to problems relating to jury representativeness — High standard
applied by Court of Appeal flowed from incorrect definition of representativeness based on ultimate makeup of jury
roll as opposed to process used to compile it — Court of Appeal also improperly held that Ontario had obligation to
actively encourage responses to jury notices in order to overcome low response rates — Assessed against proper
standard, Ontario's efforts were reasonable.

Criminal law — Constitutional issues — Canadian Charter of Rights and Freedoms — Legal rights — Procedural
rights — Fair hearing — Independent and impartial tribunal — Trial by jury — Appeal by prosecution from
judgment setting aside Kokopenace's conviction for manslaughter and ordering new trial allowed — Court of Appeal
held that Kokopenace's rights had been violated at trial due to problems relating to jury representativeness — Right
to representative jury promoted fairness of trial, in appearance and in reality — State satisfied accused's right to
representative jury by providing fair opportunity for broad cross-section of society to participate in jury process —
Assessed against proper standard of representativeness, Ontario's efforts were reasonable.

Appeal by the prosecution from the judgment of the Ontario Court of Appeal setting aside
Kokopenace's conviction for manslaughter and ordering a new trial. Kokopenace, an Aboriginal
man from the Grassy Narrows First Nation reserve, was charged with second degree murder for
stabbing his friend to death during a fight. After a trial by judge and jury, he was acquitted of
murder but convicted of the lesser included offence of manslaughter. Prior to sentencing, his trial
counsel learned that there were potential problems with the inclusion of Aboriginal on-reserve
residents on the jury roll, which raised questions about the representativeness of the jury. The
trial judge refused to adjourn the proceedings to hear a mistrial application, as he considered
himself to be functus officio. The representativeness issue was therefore first raised on appeal to
the Ontario Court of Appeal. Kokopenace alleged that his jury was derived from a jury roll that did
not adequately ensure the inclusion of Aboriginal on-reserve residents. Because of the allegedly
inadequate process used to prepare the jury roll, he argued that his rights under ss. 11(d), 11(f),
and 15 of the Canadian Charter of Rights and Freedoms (Charter) were violated. The Court of
Appeal held that Kokopenace's rights had been violated and ordered a new trial on that basis.

HELD: Appeal allowed.

The right to be tried by a jury of one's peers was one of the cornerstones of the criminal justice
system. It was enshrined in two provisions of the Charter: the s. 11(d) right to a fair trial by an
impartial tribunal and the s. 11(f) right to a trial by jury. The right to a representative jury was an
entitlement held by the accused that promoted the fairness of the trial, in appearance and in
reality. Representativeness focused on the process used to compile the jury roll, not its ultimate
composition. Consequently, the state satisfied an accused's right to a representative jury by
providing a fair opportunity for a broad cross-section of society to participate in the jury process. A
fair opportunity would be provided when the state made reasonable efforts to: (1) compile the jury
roll using random selection from lists that drew from a broad cross-section of society, and (2)
deliver jury notices to those who had been randomly selected. When this process was followed, the
jury roll was representative and the accused's Charter right to a representative jury was
respected. The principal error in the Court of Appeal's approach was its reliance on a test that
imposed too high a standard. It applied a standard that obliged Ontario to actively encourage
responses from Aboriginal on-reserve residents by investigating and addressing causes of the low
response rates to jury notices. The high standard applied by the Court of Appeal flowed from its
incorrect definition of representativeness, which was based on the ultimate makeup of the jury roll
as opposed to the process used to compile it. To the extent the low rate of return was caused by
problems with the source lists or delivery, Ontario was obliged to make reasonable efforts to
address the problem. However, the province was not required to address any and all causes of the
low response rates. It was not required to address systemic problems contributing to the
reluctance of Aboriginal on-reserve residents to participate in the jury process. The Court of Appeal
improperly held that Ontario had an obligation to actively encourage responses in order to
overcome the low response rates. Ontario was not obliged to encourage responses. Its
constitutional obligation was satisfied by providing a fair opportunity to participate. Assessed in
light of what was known at the time and against the proper standard, Ontario's efforts were
reasonable.

perspectives and identities that make up a community. I see the representativeness of a jury as
primarily functional, not descriptive. It acts on behalf of, and thus represents, society.

 B.What Does Representativeness Require?

o (1)Source Lists

164  A representative jury roll is one that is created through a fair and random process, based on
broadly inclusive source lists, that does not deliberately or substantially exclude a subset of the
community. Such lists lay the foundation for each step that follows in the jury process. Ensuring
that these lists are drawn broadly from the community is thus critical.

165  However, perfection is not required, for many reasons. First, provinces must be given leeway
to use a selection process that is practical given the nature of the source lists generally available.
Provinces in Canada have chosen different mechanisms to access the broader community. Some
use health records; others use electoral and assessment rolls, municipal directories, motor vehicle
registration records, or a combination of multiple sources: Iacobucci Report, at paras. 150-74.
Indeed, the use of these alternatives means that in many provinces it is impossible to determine
the extent to which Aboriginal people are included in source lists. In Ontario, the statistics relating
to the participation of Aboriginal people residing on reserves are only known because the Juries
Act provides a separate process for individuals living on reserves. Those living outside of reserves
are captured by municipal assessment lists, which do not include information about an individual's
Aboriginal status.

166  Second, unintentional exclusion of some segments of the community does not amount to a
constitutional defect. Even the best source lists will still exclude some, and that inadvertent
exclusion may disproportionately apply to certain groups of people. This alone is insufficient to
establish a s. 11 violation. Because there are no perfect source lists, it follows that the state must
be accorded flexibility in choosing a source list, recognizing that no list will be perfectly
comprehensive, and that each has its own advantages and drawbacks. Such flexibility also
recognizes the substantial leeway that governments must be given to define the boundaries of
judicial districts, which are established for administrative and practical purposes and are not
required to ensure the representation of any particular community or group. Such leeway is
restricted only by the requirement that exclusion not rise to such a substantial level that the jury
could not fulfill its representative function.

167  While unintentional exclusion is likely to occur as a result of the practical realities of jury roll
compilation, the same cannot be said of intentionally and improperly shutting out certain groups
from participating. A jury roll tainted by such deliberate exclusion could hardly be considered to be
drawn fairly and randomly from the broader community, nor could it be said to be independent
and impartial. An accused will accordingly succeed in her challenge if she establishes deliberate
exclusion for the purpose of restricting the representation of certain groups in the jury process.
R. v. Couhan, 2021 SCC 26
The appellant appeals his conviction for sexual assault on a number of grounds, including
ineffective assistance of trial counsel. In the course of case management, the respondent Crown
asked the case management judge to invoke section 11(f) of the Ineffective Assistance of Trial
Counsel Practice Directive in order to review and, if necessary, compel production of the redacted
portions of trial counsel's affidavit. Held: Section 11(f) of the Practice Directive does not apply. In
these circumstances, it was not the role of the case management judge to be involved in
preliminary matters prior to the filing of materials in accordance with the Practice Directive.

In my view, a case management judge should not be involved in what are essentially preliminary
matters between defence counsel prior to the filing of trial counsel's affidavit. Section 11(f) of the
Practice Directive does not apply at this stage, but only after a redacted affidavit has been filed in
accordance with the Practice Directive.
 Canada (Attorney General) v. Bedford, [2013]
S.C.J. No. 72
Appeals by Attorneys General from the Ontario Court of Appeal's decision that two Criminal Code
provisions which criminalized various activities related to prostitution, ss. 210 and 212(1) (j), were
unconstitutional. Cross-appeal by three current or former prostitutes from the decision that s.
213(1)(c) was constitutional and from the remedy with respect to the decision regarding s. 210.
The applicants brought an application seeking declarations that three Criminal Code provisions
were unconstitutional. The provisions are primarily concerned with preventing public nuisance, as
well as the exploitation of prostitutes. Section 210 makes it an offence to be an inmate of a
bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord,
lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy-house.
Section 212(1)(j) makes it an offence to live on the avails of another's prostitution. Section 213(1)
(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to
communicate with, someone in a public place for the purpose of engaging in prostitution or hiring
a prostitute. The applicants alleged that the provisions infringed s. 7 of the Canadian Charter of
Rights and Freedoms by preventing prostitutes from implementing certain safety measures, such
as hiring security guards or "screening" potential clients, that could protect them from violent
clients. They also alleged that s. 213(1)(c) infringed s. 2(b) of the Charter. The application judge
granted the application. She declared the communicating and living on the avails offences
unconstitutional, without suspension, and rectified the bawdy-house prohibition by striking the
word "prostitution" from the definition of "common bawdy-house" in s. 197(1) as it applies to s.
210. The Court of Appeal agreed that the bawdy-house and living on the avails provisions were
unconstitutional, but found that the prohibition on communicating in public for the purpose of
prostitution was constitutional.

HELD: Appeals dismissed.

Cross-appeal allowed. Sections 210, 212(1)(j) and 213(1)(c) were declared to be inconsistent with
the Charter were void. However, the declaration of invalidity was suspended for one year. The
prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for
the purposes of prostitution, heightened the risks faced in prostitution - itself a legal activity. The
prohibitions at issue did not merely impose conditions on how prostitutes operate. They went a
critical step further, by imposing dangerous conditions on prostitution; they prevented people
engaged in a risky - but legal - activity from taking steps to protect themselves from the risks.
Section 210 effectively prevents prostitutes from working in a fixed indoor location, which would
be safer than working on the streets or working in different locations. Hiring drivers, receptionists,
and bodyguards, could increase prostitutes' safety, but s. 212(1)(j) prevented them from doing so.
By prohibiting communicating in public for the purpose of prostitution, the law prevented
prostitutes from screening clients and setting terms for the use of condoms or safe houses.
Consequently, all three provisions impacted security of the person engaged s. 7 of the Charter.
The limits on security of the person were not in accordance with the principles of fundamental
justice. The objectives of s. 210 are to combat neighbourhood disruption or disorder and to
safeguard public health and safety. However, the negative impact of the bawdy-house prohibition
on the applicants' security of the person was grossly disproportionate to its objective. Parliament
has the power to regulate against nuisances, but not at the cost of the health, safety and lives of
prostitutes. The purpose of s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in
which they engage. However, this provision was overbroad. This provision punishes everyone who
lives on the avails of prostitution without distinguishing between those who exploit prostitutes and
those who could increase the safety and security of prostitutes. The law includes conduct that
bears no relation to its purpose of preventing the exploitation of prostitutes. The purpose of s.
213(1)(c) was to take prostitution "off the streets and out of public view" in order to prevent the
nuisances that street prostitution can cause. However, the provision's negative impact on the
safety and lives of street prostitutes was a grossly disproportionate response to the possibility of
nuisance caused by street prostitution. Since the laws violated s. 7 of the Charter, it was
unnecessary to determine if they violated s. 2(b). The impugned laws were not saved by s. 1 of
the Charter.
R. v. Grant, 2009 SCC 32

Criminal law — Constitutional issues — Canadian Charter of Rights and Freedoms — Legal rights — Protection
against arbitrary detention or imprisonment — Remedies for denial of rights — Specific remedies — Exclusion of
evidence — Appeal by Grant from his convictions on a series of firearms offences, relating to a gun seized by police
during an encounter on a Toronto sidewalk, allowed in part — The evidence of the firearm was obtained in a manner
that breached Grant's rights under ss. 9 and 10(b) of the Charter — However, the courts below did not err in
concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into
disrepute — Grant's conviction for possession of a firearm for the purposes of weapons trafficking was be quashed
on the ground that he did not "transfer" the firearm.

Criminal law — Criminal Code offences — Weapons offences — Weapons trafficking — Appeal by Grant from his
convictions on a series of firearms offences, relating to a gun seized by police during an encounter on a Toronto
sidewalk, allowed in part — Grant's conviction for possession of a firearm for the purposes of weapons trafficking
was quashed on the ground that he did not "transfer" the firearm when he moved the gun, as Parliament did not
intend s. 100(1) to address the simple movement of a firearm from one place to another.

Appeal by Grant from his convictions on a series of firearms offences, relating to a gun seized by
police during an encounter on a Toronto sidewalk. After noting that Grant, who was walking down
the street, was fidgeting with his pants, a police officer initiated an exchange with him, while
standing on the sidewalk directly in his intended path. At one point, Grant adjusted his jacket,
which prompted the officer to ask him to keep his hands in front of him. Two other two officers
approached the pair on the sidewalk and took up positions behind the first officer, obstructing the
way forward. The third officer then asked Grant whether he had anything he should not have, to
which he answered that he had marijuana and a firearm. Grant was convicted of five firearms
offences. The Court of Appeal concluded that a detention had crystallized during the conversation
with the officer, before Grant made his incriminating statements, and that the detention was
arbitrary and in breach of s. 9 of the Charter. However, it held that the gun should be admitted
into evidence under s. 24(2) of the Charter. The court agreed with the trial judge that Grant's act
of moving the gun from one place to another fell within the definition of "transfer" in the Criminal
Code, and that this justified the conviction for possession of a firearm for the purposes of weapons
trafficking.

HELD: Appeal allowed on trafficking charge.

Detention under ss. 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 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. It is for the trial judge, applying the proper legal principles to the particular facts of
the case, to determine whether the line has been crossed between police conduct that respects
liberty and the individual's right to choose, and conduct that does not. In this case, the sustained
and restrictive tenor of the conduct after the direction to Grant to keep his hands in front of him
reasonably supported the conclusion the that he was detained within the meaning of ss. 9 and 10
of the Charter before being asked the questions that led him to disclose his possession of the
firearm. The evidence of the firearm was obtained in a manner that breached Grant's rights under
ss. 9 and 10(b) of the Charter. The officers acknowledged at trial that they did not have legal
grounds or reasonable suspicion to detain the accused prior to his incriminating statements. Thus,
the detention was arbitrary. Section 10(b) of the Charter required the police to advise Grant that
he had the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal
advice if he so chose, before proceeding to elicit incriminating information from him. When faced
with an application for exclusion under s. 24(2), a court must assess and balance the effect of
admitting the evidence on society's confidence in the justice system having regard to: (1) the
seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-
protected interests of the accused, and (3) society's interest in the adjudication of the case on its
merits. When the three-stage inquiry was applied to the facts of this case, a balancing of the
factors favoured the admission of the firearm into evidence. The Charter infringing conduct was
not deliberate or egregious. Further, the impact of the breach on Grant's interests was significant,
but not at the most serious end of the scale. Finally, the gun was highly reliable evidence and
essential to a determination on the merits. The courts below did not err in concluding that the
admission of the gun into evidence would not, on balance, bring the administration of justice into
disrepute. Grant's conviction for possession of a firearm for the purposes of weapons trafficking
was quashed on the ground that he did not "transfer" the firearm, as Parliament did not intend s.
100(1) to address the simple movement of a firearm from one place to another.

Hunter v Southam, [1984] 2 SCR 145

Pursuant to s. 10(1) of the Combines Investigation Act, the Director of

Investigation and Research of the - Combines Investigation Branch
authorized several Combines Investigation officers to enter and examine
documents and other things at a respondent’s business premises in
Edmonton “and elsewhere in Canada”. The authorization was certified by a
member of the Restrictive Trade Practices Commission pursuant to s. 10(3)
of the Act. The Canadian Charter of Rights and Freedoms was proclaimed
after the authorization was made but before the actual search had begun.
Respondent unsuccessfully sought an interim injunction pending trial of the
question whether the search was in violation of s. 8 of the Charter—the
unreasonable search and seizure provision. The Alberta Court of Appeal
ordered all documents taken from the respondent’s premises sealed as an
interim measure and proceeded with the appeal on the basis that the issue
of whether s. 10 was inconsistent with the Constitution could have been
properly dealt with as an application for summary judgment at first instance.
Appellants appeal from that Court’s finding that s. 10(3), and, by
implication, s. 10(1) of the Act, were inconsistent with the Charter and
therefore of no force or effect.

Held: The appeal should be dismissed.

The Canadian Charter of Rights and Freedoms is a purposive

document, the provisions of which must be subjected to a purposive
analysis. Section 8 of the Charter guarantees a broad and general right to
be secure from unreasonable searches and seizures which extends at least
so far as to protect the right of privacy from unjustified state intrusion. Its
purpose requires that unjustified searches be prevented. It is not enough
that a determination be made, after the fact, that the search should not
have been conducted. This can only be accomplished by a requirement of
prior authorization. Accordingly, prior authorization, where feasible, is a
precondition for a valid search and seizure. It follows that warrantless
searches are prima facie unreasonable under s. 8. The party seeking to
justify a warrantless search bears the onus of rebutting the presumption of
unreasonableness.

Section 10(3) of the Combines Investigation Act provides for prior

authorization of searches by a member of the Restrictive Trade Practices
Commission. The procedures established by s. 10(3), however, are
constitutionally defective in two respects.

First, for the authorization procedure to be meaningful, it is necessary

for the person authorizing the search to be able to assess the conflicting
interests of the state and the individual in an entirely neutral and impartial
manner. This means that while the person considering the prior
authorization need not be a judge, he must nevertheless, at a minimum, be
capable of acting judicially. Inter alia, he must not be someone charged
with investigative or prosecutorial functions under the relevant statutory
scheme. The significant investigatory functions bestowed upon the
Restrictive Trade Practices Commission and its members by the Act
vitiated a member’s ability to act in a judicial capacity in authorizing a
s. 10(3) search and seizure and do not accord with the neutrality and
detachment necessary to balance the interests involved.

Second, reasonable and probable grounds, established upon oath, to

believe that an offence has been committed and that there is evidence to
be found at the place of the search, constitutes the minimum standard
consistent with s. 8 of the Charter for authorizing searches and seizures.
Subsections 10(1) and 10(3) of the Act do not embody such a requirement.
They do not, therefore, measure up to the standard imposed by s. 8 of
the Charter. The Court will not attempt to save the Act by reading into it the
appropriate standards for issuing a warrant. It should not fall to the courts
to fill in the details necessary to render legislative lacunae constitutional.

In the result, subss. 10(1) and 10(3) of the Combines Investigation

Act are inconsistent with the Charter and of no force or effect because they
fail to specify an appropriate standard for the issuance of warrants and
designate an improper arbiter to issue them.

Attorney General of Canada v. Law Society of British Columbia, 1982

CanLII 29 (SCC), [1982] 2 S.C.R. 307, followed; Petrofina Canada Ltd. v.
Chairman, Restrictive Trade Practices Commission (No. 2), 1979 CanLII
4114 (FCA), [1980] 2 F.C. 386, applied; Katz v. United States, 389 U.S.
347 (1967), adopted; Entick v. Carrington (1765), 19 St. Tr. 1029, 1 Wils.
K.B. 275; The Queen v. Metropolitan Toronto Pharmacists’
Association (unreported, Ont. H.C., May 4, 1983); Edwards v. Attorney-
General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C.
124; Minister of Home Affairs v. Fisher, [1980] A.C. 319; M’Culloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819); United States v. Rabinowitz, 339
U.S. 56 (1950); Inland Revenue Commissioners v. Rossminster
Ltd., [1980] 1 All E.R. 80; Minister of National Revenue v. Coopers and
Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495; McKay v. The
Queen, 1965 CanLII 3 (SCC), [1965] S.C.R. 798, referred to.
 APPEAL from a judgment of the Alberta Court of Appeal 1983 ABCA
32 (CanLII), [1983] 3 W.W.R. 385, 147 D.L.R. (3d) 420, 24 Alta. L.R. (2d)
307, 42 A.R. 93, allowing an appeal (heard as a proper case to have been
treated at first instance as an application for summary judgment) from a
judgment of Cavanagh J. dismissing an application for an interim injunction
pending trial of the matter in issue. Appeal dismissed.
[Page 148]

Eric A. Bowie, Q.C., and Ingrid C Hutton, Q.C., for the appellants.

A.H. Lefever and F.S. Kozak, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The Constitution of Canada, which includes the Canadian

Charter of Rights and Freedoms, is the supreme law of Canada. Any law
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect. Section 52(1) of the Constitution Act,
1982 so mandates. The constitutional question posed in this appeal is
whether s. 10(3), and by implication s. 10(1), of the Combines Investigation
Act, R.S.C. 1970, c. C-23, (the “Act”) are inconsistent with s. 8 of
the Charter by reason of authorizing unreasonable searches and seizures
and are therefore of no force and effect.
Katz v. United States, 389 U.S. 347 (1967)
Defendant was convicted of transmitting wagering information by telephone in violation of a
federal statute. At the trial, the government was permitted, over defendant's objection, to
introduce evidence of defendant's end of telephone conversations, which was overheard by FBI
agents who had attached an electronic listening and recording device to the outside of the public
telephone booth where he had placed his calls. A court of appeals, in affirming his conviction,
rejected the contention that the recordings had been obtained in violation of U.S. Const. amend.
IV because there was no physical entrance into the area occupied by defendant. The Supreme
Court reversed, finding that a person in a telephone booth could rely upon the protection of U.S.
Const. amend. IV. One who occupied a telephone booth, shut the door behind him, and paid the
toll that permitted him to place a call was entitled to assume that the words he uttered into the
mouthpiece would not be broadcast to the world. The Court determined that the government
agents ignored the procedure of antecedent justification, which was a constitutional precondition of
the kind of electronic surveillance involved in the case.
Outcome
The Court reversed defendant's conviction.

Defendant was convicted in the United States District Court for the Southern District of California
of transmitting wagering information by telephone. At trial the government was permitted, over
the defendant's objection, to introduce evidence of his end of telephone conversations, overheard
by FBI agents who had attached an electronic listening and recording device to the outside of the
public telephone booth from which he placed his calls. The Court of Appeals for the Ninth Circuit
affirmed. (369 F2d 130.)
On certiorari, the Supreme Court of the United States reversed. In an opinion by Stewart, J.,
expressing the views of seven members of the court, it was held that antecedent judicial
authorization, not given in the instant case, was a constitutional precondition of the kind of
electronic surveillance involved.
Douglas, J., with the concurrence of Brennan, J., joined the court's opinion, rejecting, however,
the view expressed by White, J., in his concurring opinion, that no antecedent judicial authorization
is necessary for electronic surveillance if the President of the United States or the Attorney General
has authorized electronic surveillance as required by national security.
Harlan, J., also concurred, joining in and elaborating on the opinion of the court.
White, J., also joined the opinion of the court.
Black, J., dissented on the ground that eavesdropping carried on by electronic means does not
constitute a "search" or "seizure" within the meaning of the Fourth Amendment.
Marshall, J., did not participate.
R. v. Wong, [1990] 3 S.C.R. 36
Police installed a video camera without prior judicial authorization and monitored the activities in a
hotel room registered to the appellant in the course of an investigation of a "floating" gaming
house. They conducted a raid and found the appellant to be in possession of profit lists. They
seized gaming paraphernalia and a large sum of money. The trial judge acquitted the appellant of
keeping a common gaming house. He held that the video surveillance was a violation of s. 8 of the
Canadian Charter of Rights and Freedoms and excluded the evidence thereby obtained under s.
24(2). The Court of Appeal allowed the appeal against acquittal and ordered a new trial on the
ground that s. 8 was not violated.

The constitutional questions stated in this Court were: (1) whether surreptitious video surveillance
by police of a hotel room without prior judicial authorization infringes s. 8 of the Charter; (2) if so,
whether it is justified by s. 1 of the Charter; and (3) if those rights have been infringed, whether
the admission into evidence of the videotape would bring the administration of justice into
disrepute under s. 24(2) of the Charter.

Held (Wilson J. dissenting): The appeal should be dismissed.

Per Dickson C.J. and La Forest, L'Heureux-Dubé and Sopinka JJ.: The degree of privacy reasonably
expected in a free society would be seriously diminished by unrestricted video surveillance by
agents of the state. A person who occupies a hotel room has a reasonable expectation of privacy,
and a warrantless video search there constituted an unreasonable search and seizure. Whether
persons who are the objects of an electronic search have a reasonable expectation of privacy does
not depend on whether or not those persons were engaged in illegal activities. The protection of s.
8 of the Charter is meant to shield against warrantless video surveillance and the unauthorized
video surveillance offended [page38] against the reasonable expectations of privacy protected by
that section.

It is for Parliament, and not the courts, to devise a code of procedure for judicial pre-authorization
of the use by law enforcement agencies of electronic video surveillance for the purposes of criminal
investigations. The courts' function is to assess the constitutionality of such procedures. Part IV.1
of the Criminal Code dealing with electronic interception of oral communications did not apply to
electronic video surveillance.

The surreptious video surveillance was not justified by s. 1 of the Charter. However, the appellant
did not establish that the admission of the evidence would bring the administration of justice into
disrepute for the purposes of s. 24(2) of the Charter. The police acted in good faith and had
reasonable and probable grounds to believe that the offence had been committed. The Charter
breach stemmed from an entirely reasonable misunderstanding of the law by the police officers
who had sought legal advice about the steps that could be taken to obtain evidence they could not
otherwise obtain.

Per Lamer C.J. and McLachlin J.: Not every unauthorized electronic surveillance carried out by the
agents of the state violates s. 8 of the Charter. R. v. Duarte stands for the proposition that the
recording of a private communication, without the consent of all parties thereto, constitutes a
search for the purpose of s. 8. Such a search may be reasonable only where prior judicial
authorization has been obtained. Unauthorized surreptitious electronic surveillance will violate s. 8
where the target of the surveillance has a reasonable expectation of privacy. The consideration of
whether an individual has a reasonable expectation of privacy can only be decided within the
particular factual context of the surveillance. The appellant had no reasonable expectation of
privacy as he had invited the public into the hotel room and, accordingly, no search took place
within the meaning of s. 8.

Per Wilson J. (dissenting): The reasons of La Forest J. on the s. 8 violation were agreed with. The
dissent was confined to the s. 24(2) issue.

[page39]
The presence of the words "having regard to all the circumstances" in s. 24(2) of the Charter
suggests that the context is vital in determining whether evidence obtained in violation of Charter
rights should nonetheless be admitted. The videotape evidence existed purely as a result of the
violation of s. 8. In this sense it was analogous to a confession and quite different from evidence
which has an independent existence apart entirely from the Charter violation.

Fair trial considerations favoured the exclusion of the videotape evidence. Police could and should
have sought an authorization for a wiretap under Part IV.1 of the Criminal Code, at which time
they could have put to the authorizing judge their desire to use video surveillance independent
from or in addition to audio surveillance. Instead, they proceeded in blatant disregard for the
appellant's Charter rights. Their conduct was deliberate and was not based on a reasonable, or
indeed any, misunderstanding of the law. The admission of this evidence would bring the
administration of justice into disrepute given the nature of the evidence, the gravity of the Charter
infringement and the fact the offence with which the appellant was charged did not fall into the
more serious category. To extend the principle in Duarte to this case is to ignore completely the
words "having regard to all the circumstances" in s. 24(2).

R. v. Plant, [1993] 3 S.C.R. 281

The police received an anonymous tip that marihuana was being grown in the basement of a house
within a specific city block. One of the officers conducted a reconnaissance and ascertained the
exact street address of the house described. He then used a terminal linked to the electrical
utility's computer that allowed police to check electrical consumption at a specified address after
entering a password and determined that consumption at that address was four times the average
of two other comparably sized residences over the same period. Later that day he and another
officer entered the property. [page282] They observed that two basement windows were covered
in something opaque and discovered that a vent was plugged with a plastic bag. The police then
prepared an information to obtain a search warrant which included the tip received, the
observations made during the perimeter search and the results of the electricity bill comparison.
On the basis of this information, a search warrant was issued pursuant to s. 12 of the Narcotic
Control Act ("NCA"). On execution of the warrant, the police discovered over a hundred seedling
marihuana plants. The accused was arrested and charged with unlawful cultivation of marihuana
and possession of marihuana for the purposes of trafficking. He was convicted of the cultivation
charge but acquitted on the charge of possession for the purposes of trafficking. The Court of
Appeal dismissed his appeal from conviction. This appeal is to determine whether the warrantless
perimeter search or the search under warrant violated s. 8 of the Canadian Charter of Rights and
Freedoms, whether the police check of computerized electrical records violated s. 8, and whether,
if any s. 8 violation occurred, the evidence should be excluded under s. 24(2) of the Charter.

  Held: The appeal should be dismissed.  

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ.: The perimeter search was
unreasonable and violated s. 8 of the Charter, since there is nothing to suggest that any exigent
circumstances existed to justify a search without a warrant, so that there was no legal basis for a
warrantless search pursuant to s. 10 NCA. The information obtained could therefore not be relied
on in obtaining the warrant. The police check of computerized records was not unreasonable,
however. In view of the nature of the information, the relationship between the accused and the
electrical utility, the place and manner of the search and the seriousness of the offence under
investigation, it cannot be concluded that the accused held a reasonable expectation of privacy in
relation to the computerized electricity records which outweighed the state interest in enforcing
the laws relating to narcotics offences. While they reveal the pattern of electricity consumption in
the residence, the records do not reveal intimate details of the accused's life. Since the search
does not fall within the parameters of s. 8 of the Charter, this information was [page283] available
to the police to support the application for a search warrant. Coupled with the anonymous tip, it
was sufficient to constitute reasonable grounds for the issuance of the warrant. The search
authorized by the search warrant was therefore reasonable. While there was a sufficient temporal
connection between the warrantless perimeter search and the obtaining of the evidence to trigger
s. 24(2) of the Charter, the evidence should not be excluded. The admission of real evidence does
not tend to bring the administration of justice into disrepute. Moreover, the police acted in good
faith. They were entitled to rely on the law as it was at the time and therefore to presume that
warrantless perimeter searches were constitutionally valid pursuant to s. 10 NCA. The seriousness
of the offence also militates in favour of admission of the evidence.

Per McLachlin J.: Sopinka J.'s reasons were agreed with, subject to certain comments on the right
of the police to search the computerized records of public utilities. The evidence here discloses a
sufficient expectation of privacy to require the police to obtain a warrant before eliciting the
information. The information was not public, since there is no evidence suggesting it was available
to the public and the police obtained access only by means of a special arrangement. The records
are capable of telling much about one's personal lifestyle and about what is happening inside a
private dwelling, the most private of places. A reasonable person would conclude that the records
should be used only for the purpose for which they were made, and not divulged to strangers
without proper legal authorization. Computers may and should be private places, where the
information they contain is subject to the legal protection arising from a reasonable expectation of
privacy. While the evidence obtained as a result of the computer search should not have been
used, there was sufficient other evidence to support the issuance of the warrant.

BIOGRAPHICAL CORE COMCEPT - While I do not wish to be taken as adopting the position that
commercial records such as cancelled cheques are not subject to s. 8 protection, I do agree with
that aspect of the Miller decision which would suggest that in order for constitutional protection to
be extended, the information seized must be of a "personal and confidential" nature. In fostering
the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should
seek to protect a biographical core of personal information which individuals in a free and
democratic society would wish to maintain and control from dissemination to the state. This would
include information which tends to reveal intimate details of the lifestyle and personal choices of
the individual. The computer records investigated in the case at bar while revealing the pattern of
electricity consumption in the residence cannot reasonably be said to reveal intimate details of the
appellant's life since electricity consumption reveals very little about the personal lifestyle or
private decisions of the occupant of the residence.

R v Tessling, [2004] 3 S.C.R. 432

The RCMP used an airplane equipped with a Forward Looking Infra-Red ("FLIR") camera to overfly
properties owned by the accused. FLIR technology records images of thermal energy or heat
radiating from a building. It cannot, at this stage of its development, determine the nature of the
source of heat within the building or "see" through the external surfaces of a building. The RCMP
were able to obtain a search warrant for the accused's home based on the results of the FLIR
image coupled with information supplied by two informants. In the house, the RCMP found a large
quantity of marijuana and several guns. The accused was charged with a variety of drug and
weapons offences. At trial, he unsuccessfully argued that [page433] the FLIR overflight was a
violation of his right to be free from unreasonable search and seizure guaranteed by s. 8 of
the Canadian Charter of Rights and Freedoms, and was convicted. The Court of Appeal set aside the
convictions. The court found that the use of FLIR technology constituted a search of the accused's
home and, since it was done without a warrant, violated his s. 8 right. The court concluded that
the evidence ought to have been excluded and the accused was acquitted on all charges.
Held: The appeal should be allowed. The FLIR overflight did not violate the accused's constitutional
right to be free from unreasonable search and seizure.
Few things are as important to our way of life as the amount of power allowed the police to invade
the homes, privacy and even the bodily integrity of members of Canadian society without judicial
authorization. Building upon the foundation laid by the common law, s. 8 of the Charter creates for
"everyone" certain areas of personal autonomy where the state, including the police, cannot
trespass. These areas we have now gathered up under the general heading of privacy. At the
same time, social and economic life creates competing demands. The community wants privacy
but it also insists on protection. Safety, security and the suppression of crime are legitimate
countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and
seizures.

Privacy is a protean concept, and the difficult issue is where the "reasonableness" line should be
drawn. The distinction between informational and territorial privacy is of assistance in the current
factual situation. Whereas the Court of Appeal treated the FLIR imaging as equivalent to a search
of the home, and thus "worthy of the state's highest respect", it is more accurately characterized
as an external surveillance of the home to obtain information that may or may not be capable of
giving rise to an inference about what was actually going on inside, depending on what other
information is available to the police. FLIR is not equivalent to entry. Because of the emphasis on
the informational aspect, the reasonableness line must be determined by focussing on the nature
and quality of the information FLIR can actually deliver and then evaluating its impact on an
accused's reasonable privacy interest.

[page434]

FLIR technology cannot, in its present state of development, permit any inferences about the
precise activity giving rise to the heat. The accused had a privacy interest in the activities taking
place in his home and it may be presumed that he had a subjective expectation of privacy in such
activities to the extent they were the subject matter of the search. The fact that it was his home
that was imaged using FLIR is an important factor, but it is not controlling and must be looked at
in context and in particular, in this case, in relation to the nature and quality of the information
made accessible to the police by FLIR technology. Everything shown in the FLIR photograph exists
on the external surfaces of the building and, in that sense, FLIR records only information exposed
to the public. Although the information about the distribution of the heat was not visible to the
naked eye, the FLIR heat profile did not expose any intimate details of the accused's lifestyle or
part of his core biographical data. It only showed that some of the activities in the house
generated heat.

Thus, when one considers the "totality of the circumstances", the use of FLIR technology did not
intrude on the reasonable sphere of privacy of the accused. Patterns of heat distribution on the
external surfaces of a house are not a type of information in which, objectively speaking, the
accused had a reasonable expectation of privacy. The heat distribution information offered no
insight into his private life and its disclosure scarcely affected his "dignity, integrity and
autonomy".

Technology must be evaluated according to its current capability, and its evolution in future dealt
with step by step. Concerns should be addressed as they truly arise. FLIR technology at this stage
of its development is both non-intrusive in its operations and mundane in the data it is capable of
producing. The taking of a FLIR image therefore did not violate the respondent's reasonable
expectation of privacy within the scope of s. 8 of the Charter.
R. v. Cole, 2012 SCC 53

Appeal by the Crown from a judgment of the Ontario Court of Appeal ordering the exclusion of
evidence relating to a charge of possession of child pornography. Cole, a high-school teacher, was
permitted to use his work-issued laptop computer for incidental personal purposes. While
performing maintenance activities, a technician found on Cole's laptop a hidden folder containing
nude and partially nude photographs of a female student. He notified the principal, and, under the
latter's discretion, copied the photographs to a compact disc or CD. The principal seized the laptop,
and school board technicians copied the temporary Internet files onto a second CD. The laptop and
both CDs were handed over to the police, who without a warrant reviewed their contents and then
created a mirror image of the hard drive for forensic purposes. Cole was charged with possession
of child pornography and unauthorized use of a computer. The trial judge excluded all of the
computer material pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and
Freedoms, and the charges were dismissed. The summary conviction appeal court reversed the
decision of the trial judge. The Court of Appeal for Ontario set aside that decision and excluded the
disc containing the temporary Internet files, the laptop, and the mirror image of its hard drive.

HELD: Appeal allowed.

The exclusionary order of the Court of Appeal was set aside and the order of a new trial was
affirmed. Computers that are reasonably used for personal purposes, whether found in the
workplace or the home, contain information that is meaningful, intimate, and touching on the
user's biographical core. Vis-Ó-vis the state, everyone in Canada is constitutionally entitled to
expect privacy in personal information of this kind. While workplace policies and practices could
diminish an individual's expectation of privacy in a work computer, these sorts of operational
realities do not in themselves remove the expectation entirely: the nature of the information at
stake exposed the likes, interests, thoughts, activities, ideas, and searches for information of the
individual user. The police infringed Cole's rights under section 8 of the Charter. He expected a
measure of privacy in his personal information on the laptop. Even taking into account the relevant
workplace policies, this expectation of privacy was reasonable in the circumstances. It was,
however, a diminished expectation of privacy. A reasonable though diminished expectation of
privacy was nonetheless a reasonable expectation of privacy, protected by section 8 of the
Charter. Accordingly, it was subject to state intrusion only under the authority of a reasonable law.
The lawful authority of Cole's employer, a school board, to seize and search the laptop did not
furnish the police with the same power. The school board's "third party consent" to the search was
of no legal consequence. Despite the Charter breach, none of the computer evidence should have
been excluded pursuant to s. 24(2). The laptop, the mirror image of its hard drive, and the disc
containing Cole's temporary Internet files were all highly reliable and probative physical evidence.
The admission of the evidence would not bring the administration of justice into disrepute. The
breach was not high on the scale of seriousness, and its impact was attenuated by both the
diminished privacy interest and the discoverability of the evidence. The exclusion of the material
would, however, have a marked negative impact on the truth-seeking function of the criminal trial
process.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 8, s.
24(2)

Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4), s. 342.1(1)

9  A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation
of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under
the authority of a reasonable law.
10  The Crown in this case could point to no law authorizing the police to conduct, as they did, a
warrantless search of Mr. Cole's work laptop. The lawful authority of his employer -- a school
board -- to seize and search the laptop did not furnish the police with the same power. And the
school board's "third party consent" to the search was of no legal consequence.
11  Unlike the Court of Appeal, however, I would not exclude any of the unconstitutionally
obtained evidence under s. 24(2).
39  Whether Mr. Cole had a reasonable expectation of privacy depends on the "totality of the
circumstances" (R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45).
40  The "totality of the circumstances" test is one of substance, not of form. Four lines of inquiry
guide the application of the test: (1) an examination of the subject matter of the alleged search;
(2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an
inquiry into whether the claimant had a subjective expectation of privacy in the subject matter;
and (4) an assessment as to whether this subjective expectation of privacy was objectively
reasonable, having regard to the totality of the circumstances (Tessling, at para. 32; Patrick, at para.
27). I will discuss each in turn.

R. v. Spencer, 2014 SCC 43

Appeal from a judgment of the Saskatchewan Court of Appeal that affirmed Spencer's conviction
for possession of child pornography, set aside his acquittal for making available child pornography
and ordered a new trial. The police identified the Internet Protocol (IP) address of a computer that
had been used to access and store child pornography through an Internet file-sharing program.
Without prior judicial authorization, they obtained from Shaw Communications Inc., the Internet
Service Provider (ISP), the subscriber information associated with that IP address. This led them to
Spencer. He had downloaded child pornography into a folder that was accessible to other Internet
users using the same file-sharing program. Spencer was charged and convicted of possession of
child pornography. He was acquitted on a charge of making it available. At trial, Spencer claimed
that the police had conducted an unconstitutional search by obtaining subscriber information
matching the computer's IP address and that the evidence obtained as a result should be
excluded. He also testified that he did not know that others could have access to the shared folder
and argued that he therefore did not knowingly make the material in the folder available to others.
The trial judge concluded that there had been no breach of Spencer's right to be secure against
unreasonable searches and seizures. However, he was of the view that the "making available"
offence required some positive facilitation of access to the pornography, which Spencer had not
done. The Court of Appeal upheld the conviction for possession of child pornography, but set aside
the acquittal on the making available charge on the basis that the trial judge had erred in requiring
proof of positive facilitation of access by others to the material. A new trial was ordered on this
charge.

HELD: Appeal dismissed.

The identity of a person linked to their use of the Internet had to be recognized as giving rise to a
privacy interest beyond that inherent in the person's name, address and telephone number found
in the subscriber information. The police request to link a given IP address to subscriber
information was in effect a request to link a specific person to specific online activities. This sort of
request engaged the anonymity aspect of the informational privacy interest by attempting to link
the suspect with anonymously undertaken online activities, activities which were recognized by the
Court in other circumstances as engaging significant privacy interests. In the totality of the
circumstances of this case, there was a reasonable expectation of privacy in the subscriber
information. The disclosure of this information could amount to the identification of a user with
intimate or sensitive activities being carried out online, usually on the understanding that these
activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such
information amounted to a search. Without the subscriber information, the warrant could not have
been obtained and the search of the residence was therefore unlawful. However, exclusion of the
evidence rather than its admission would bring the administration of justice into disrepute. Police
conduct in this case could not be characterized as constituting wilful or flagrant disregard of the
Canadian Charter of Rights and Freedoms, and society had an interest in seeing a full and fair trial
based on reliable evidence, and all the more so for a crime which implicated the safety of children.
With respect to the making available offence, given that the trial judge's error in holding that a
positive act was required to meet the mens rea component of this offence resulted in him not
considering the wilful blindness issue, the error could reasonably be thought to have had a bearing
on his decision to acquit. The Court of Appeal's order for a new trial on the making available count
was upheld.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 8, s.
24(2)

Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(3), s. 163.1(4), s. 487.014

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 3, s. 5(3), s. 7,
Schedule 1, clause 4.3
R. v. Marakah, [2017] 2 SCR 608
M sent text messages to an accomplice, W, regarding illegal transactions in firearms. The police
obtained warrants to search his home and that of W. They seized M's BlackBerry and W's iPhone,
searched both devices, and found incriminating text messages. They charged M and sought to use
the text messages as evidence against him. At trial, M argued that the messages should not be
admitted against him because they were obtained in violation of his s. 8 Charter right against
unreasonable search or seizure. The application judge held that the warrant for M's home was
invalid and that the text messages recovered from his BlackBerry could not be used against him,
but that M had no standing to argue that the text messages recovered from W's iPhone should not
be admitted against M. The judge admitted the text messages and convicted M of multiple firearms
offences. A majority of the Court of Appeal agreed that M could have no expectation of privacy in
the text messages recovered from W's iPhone, and hence did not have standing to argue against
their admissibility.
Held (Moldaver and Côté JJ. dissenting) : The appeal should be allowed, the convictions set aside
and acquittals entered.
Per McLachlin C.J. and Abella, Karakatsanis and Gascon JJ. : Text messages that have been sent
and received can, in some cases, attract a reasonable expectation of privacy and therefore can be
protected against unreasonable search or seizure under s. 8 of the Charter. Whether a claimant had
a reasonable expectation of privacy must be assessed in the totality of the circumstances. To claim
s. 8 protection, claimants must establish 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. Only if a claimant's subjective
expectation of privacy was objectively reasonable will the claimant have standing to argue that the
search was unreasonable. However, standing is merely the opportunity to argue one's case. It
does not follow that the accused's argument will succeed, or that the evidence will be found to
violate s. 8.
[page610]

With a text message, the subject matter of the search is the electronic conversation between the
sender and the recipient(s). This includes the existence of the conversation, the identities of the
participants, the information shared, and any inferences about associations and activities that can
be drawn from that information. The subject matter is not the copy of the message stored on the
sender's device, the copy stored on a service provider's server, or the copy received on the
recipient's device that the police are after; it is the electronic conversation itself, not its
components.

A number of factors may assist in determining whether it was objectively reasonable to expect
privacy in different circumstances, including : (1) the place where the search occurred whether it
be a real physical place or a metaphorical chat room; (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; and (3) control over the subject matter.

Control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control
fatal to a privacy interest. It is only one factor to be considered in the totality of the
circumstances. Control must be analyzed in relation to the subject matter of the search, which in
this case was an electronic conversation. Individuals exercise meaningful control over the
information that they send by text message by making choices about how, when, and to whom
they disclose the information. An individual does not lose control over information for the purposes
of s. 8 of the Charter simply because another individual possesses it or can access it. Nor does the
risk that a recipient could disclose an electronic conversation negate a reasonable expectation of
privacy in an electronic conversation. Therefore, even where an individual does not have exclusive
control over his or her personal information, only shared control, he or she may yet reasonably
expect that information to remain safe from state scrutiny.
In this case, M had a reasonable expectation of privacy in the text messages recovered from W's
iPhone. First, the subject matter of the alleged search was the electronic conversation between M
and W, not W's iPhone, from which the text messages were recovered. Second, M had [page611] a
direct interest in that subject matter. He was a participant in that electronic conversation and the
author of the particular text messages introduced as evidence against him. Third, he subjectively
expected the conversation to remain private. M testified that he asked W numerous times to delete
the text messages from his iPhone. Fourth, his subjective expectation was objectively reasonable.
Each of the three factors relevant to objective reasonableness in this case support this conclusion.
If the place of the search is viewed as a private electronic space accessible by only M and W, M's
reasonable expectation of privacy is clear. If the place of the search is viewed as W's phone, this
reduces, but does not negate, M's expectation of privacy. The mere fact of the electronic
conversation between the two men tended to reveal personal information about M's lifestyle;
namely, that he was engaged in a criminal enterprise. In addition, M exercised control over the
informational content of the electronic conversation and the manner in which information was
disclosed. The risk that W could have disclosed it, if he chose to, does not negate the
reasonableness of M's expectation of privacy. Therefore, M has standing to challenge the search
and the admission of the evidence of the text messages recovered from W's iPhone. This
conclusion is not displaced by policy concerns. There is nothing in the record to suggest that the
justice system cannot adapt to the challenges of recognizing that some electronic conversations
may engage s. 8 of the Charter. Moreover, different facts may well lead to a different result.
The Crown concedes that if M had standing the search was unreasonable. The text messages are
thus presumptively inadmissible against him, subject to s. 24(2) of the Charter. In considering
whether this evidence should be excluded under s. 24(2), society's interest in the adjudication of
M's case on its merits is significant. The text messages offer highly reliable and probative evidence
in the prosecution of a serious offence and their exclusion would result in the absence of evidence
by which M could be convicted. This favours admission. However, the police conduct in accessing
and searching the electronic conversation through W's iPhone without a warrant two hours after
his arrest was sufficiently serious to favour the exclusion of the evidence. This breached s. 8 of
the Charter not [page612] only because of the extent of the search, but also because of its timing.
On the application judge's findings, this simply was not a search incident to arrest. In addition, the
police conduct had a substantial impact on M's Charter-protected privacy interest in the electronic
conversation. On balance, the admission of the evidence would bring the administration of justice
into disrepute. It must therefore be excluded under s. 24(2).
Without the erroneously admitted evidence obtained from W's iPhone, M would have been
acquitted. He was convicted instead. To allow that conviction to stand would be a miscarriage of
justice. Therefore, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code does not apply.
Per Rowe J. : The approach based on the totality of circumstances set out by the majority with
respect to the existence of a reasonable expectation of privacy accords with the jurisprudence of
the Court. The technological means by which we communicate continue to change. An approach
based on the totality of circumstances responds to such change because the broad and general
right to be secure from unreasonable search and seizure guaranteed by s. 8 of the Charter is meant
to keep pace with technological development. Applying that approach to the facts of this case, M
has standing to challenge the search. The modalities of texting inherently limited M in his capacity
to exercise control over the record of his text message conversation with W. This alone should not
be fatal to M's reasonable expectation of privacy. Although the concerns raised by the minority are
shared, those concerns do not arise on the facts of this case.
Per Moldaver and Côté JJ. (dissenting) : M did not have a reasonable expectation of personal
privacy in his text message conversations with W and therefore, M lacked standing to challenge
the search of W's phone under s. 8 of the Charter. Both legal and policy considerations lead to this
conclusion. From a legal standpoint, the reasonableness of a person's expectation of privacy
depends on the nature and strength of that person's connection to the subject matter of the
search. This connection must be examined by looking at the totality of the circumstances in
[page613] a particular case. Control over the subject matter of the search in the circumstances is
a crucial factor in assessing an individual's personal connection to it.

Control does not need to be exclusive. While a lack of exclusive control may diminish the strength
of a reasonable expectation of privacy, it does not necessarily eliminate it. However, recognizing a
reasonable expectation of privacy in the face of a total absence of control is both unprecedented
and antithetical to the notion of personal privacy. Therefore, a total absence of control is a
compelling indicator that an expectation of personal privacy is unreasonable, and that the
individual does not have standing to challenge the search.

In addition, control need not be direct. A reasonable expectation of privacy will likely arise where a
claimant exercises personal control over the subject matter in issue, as in the case of one's home,
possessions and body. However, under a functional approach, constructive control may suffice to
ground a reasonable expectation of personal privacy in other contexts, including a legal,
professional or commercial relationship.

In this case, the subject matter of the search is the text message conversations between M and W.
Those conversations were accessed by police after they had been received on W's phone. The
conversations were not intercepted by police during the transmission process, and they were not
accessed on M's phone. These are important contextual distinctions that show that M had no
control over the subject matter of the search in the circumstances of this case. Rather, W had
exclusive control over the text message conversations on his phone. W was free to disclose them
to anyone he wished, at any time and for any purpose. To conclude that M had a reasonable
expectation of personal privacy in those conversations on W's phone despite his total lack of
control over them severs the interconnected relationship between privacy and control that has long
formed part of the Court's s. 8 jurisprudence. It is equally at odds with the fundamental principle
that individuals can and will share information as they see fit in a free and democratic society.

[page614]

The risks of state access and public access are not distinct for the purposes of the reasonable
expectation of privacy test. If an expectation of personal privacy is unreasonable against the
public, then it is also unreasonable against the state. If M assumed the risk of W allowing the
public to access his text message conversations, then M assumed the risk of the police also
accessing it.

The majority's approach to the reasonable expectation of privacy analysis in this case suffers from
three notable shortcomings. First, it does not determine where the search actually occurred,
despite maintaining that the strength of M's expectation of privacy will vary depending on the
place of the search. Without knowing whether the place of the search is a metaphorical chat room
or W's physical phone, courts have no way of knowing how to assess the strength of M's
expectation of privacy. This uncertainty will have serious implications when courts must assess the
impact of an unlawful search on a claimant's s. 8 right for the purposes of a s.
24(2) Charter analysis.

Second, although the majority purports to confine its finding of a reasonable expectation of privacy
to the circumstances of this case, applying its framework leads to only two possible conclusions.
Either all participants to text message conversations enjoy a reasonable expectation of privacy, or
criminal justice stakeholders, including trial and appellate judges, are left to decipher on a case-
by-case basis -- without any guidance -- whether a claimant has standing to challenge the search
of an electronic conversation. To hold that everyone has a reasonable expectation of privacy in
text message conversations when those conversations are on another person's phone effectively
eradicates the principle of standing and renders it all but meaningless. As such, under the
majority's all-encompassing approach to standing, even a sexual predator who lures a child into
committing sexual acts and then threatens to kill the child if he or she tells anyone will retain a
reasonable expectation of privacy in the text message conversations on the child's phone. It is
hard to think of anything more unreasonable. In the alternative, it is highly unsatisfactory to leave
criminal justice stakeholders to guess when and under what [page615] circumstances electronic
messages will not attract a reasonable expectation of privacy.

Third, from a policy standpoint, granting M standing in these circumstances vastly expands the
scope of persons who can bring a s. 8 challenge. The majority adopts an approach to s. 8 that has
no ascertainable bounds and threatens a sweeping expansion of s. 8 standing. This carries with it a
host of foreseeable consequences that will add to the complexity and length of criminal trial
proceedings and place even greater strains on a criminal justice system that is already
overburdened. Worse yet, expanding the scope of persons who can bring a s. 8 challenge risks
disrupting the delicate balance that s. 8 strives to achieve between privacy and law enforcement
interests, particularly in respect of offences that target the most vulnerable members of our
society. Although these consequences are not determinative of the reasonableness of M's
expectation of privacy, their cumulative effect weighs heavily in favour of denying him standing.

Denying M standing does not however grant the police immunity from s. 8 of the Charter. Where, as
here, the police activity amounts to a search or seizure, it remains subject to s. 8 and a particular
claimant's standing should not be mistaken as the exclusive means of enforcement. Another
claimant may have standing to bring a s. 8 challenge against the search or seizure in his or her
own criminal trial, or to bring a claim for Charter damages. Moreover, even where s. 8 standing is
denied, ss. 7 and 11(d) of the Charter offer residual protection that can, in certain circumstances,
provide a claimant with an alternative route to challenge the propriety of police conduct in the
course of a search or seizure. This ensures that the effects of the standing requirement are not
exploited by the police as a loophole in Charter protection.
This is not a case in which it is appropriate to exercise the residual discretion to exclude evidence
under ss. 7 and [page616] 11(d) of the Charter. The application judge found that the searches of
the text message conversations stored on the phones of M and W both infringed s. 8 of the Charter.
As neither claimant had standing to challenge the search of the other's phone, evidence of those
text message conversations was admissible against both M and W. It has not been suggested that
the police conduct giving rise to it was a product of design. Nor do the application judge's findings
indicate that the police engaged in deliberate Charter evasion or serious misconduct in the course of
either search. In these circumstances, there is no basis to conclude that the fairness of M's trial
was tainted by the admission of the record of the conversations obtained in the search of W's
phone.
Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d), 24(1), (2).
Criminal Code, R.S.C. 1985, c. C-46, Part VI, ss. 183 "private communication", 184.1, 184.4, 278.1
to 278.91, 686(1)(b)(iii).
[page618]
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.
R. v. Collins, [1987] 1 S.C.R. 265
Appellant had been under surveillance by two members of the R.C.M.P. Drug Squad. A police
officer approached her in a pub, laid hold of her identifying himself by saying "police officer",
grabbed her throat and pulled her to the floor. (The "throat hold" is used to prevent someone from
swallowing drugs contained in a condom or balloon and recovering them later.) The officer directed
her to let go of an object clenched in her hand -- a balloon containing heroin. The trial judge found
that the officer did not have a reasonable ground as required in s. 10 of the Narcotic Control Act
because the evidential basis for his suspicion was not admitted following an objection, albeit
unfounded, that it was hearsay. The search was found to be unlawful and therefore unreasonable
and in violation of s. 8 of the Charter but the evidence was nevertheless admitted because the
accused failed to satisfy the judge that it should be excluded under s. 24(2) of the Charter. The
[page266] Court of Appeal unanimously dismissed the accused's appeal. At issue is whether or not
this evidence should be excluded under s. 24(2) of the Charter.

Held (McIntyre J. dissenting): The appeal should be allowed and a new trial ordered.

Per Dickson C.J. and Lamer, Wilson and La Forest JJ.: The trial judge's decision under s. 24(2) is a
question of law from which an appeal will generally lie, except in so far as it is based on his
assessment of the credibility of witnesses.

Appellant bears the burden of persuading the court on a civil standard that a Charter right has
been infringed. In the case of a search without a warrant, the burden shifts to the Crown. The
Crown here was not able to prove the search reasonable because it did not establish under s. 10 of
the Narcotic Control Act that the officer had reasonable and probable grounds for believing there
were narcotics in the place where the person was searched. Because this failure to establish the
grounds for the search was due to an error by the trial judge, a new trial should be ordered if the
evidence would be excluded on the record as it now stands.

Where a search is unreasonable and violates appellant's rights under s. 8 of the Charter, the
evidence so obtained should be excluded pursuant to s. 24(2) of the Charter if the appellant
establishes on a civil standard that its admission would bring the administration of justice into
disrepute. The criminal justice system may be brought into disrepute by the admission of evidence
that would deprive the accused of a fair hearing or from judicial condonation of unacceptable
conduct by the authorities. Disrepute may also result from the exclusion of evidence.

Since the concept of disrepute involves some element of community views, the test should be put
figuratively in terms of the reasonable person: would the admission of the evidence bring the
administration of justice into disrepute in the eyes of the reasonable person, dispassionate and
fully apprised of the circumstances of the case. A judge's discretion under this test is thus not
untrammelled, for he should not render a decision that would be unacceptable to the community,
provided the community is not being wrought with passion or otherwise under passing stress due
to current events.

[page267]

Section 24(2) directs the judge to consider all the circumstances in determining whether the
admission of evidence would bring the administration of justice into disrepute. The courts have
considered a number of factors -- the list is not exhaustive -- and these factors can be broadly
summarized. Certain factors are relevant in determining the effect of the admission of evidence on
the fairness of the trial. The trial is a key part of the administration of justice and its fairness is a
major source of the repute of the system. A second group of factors relates to the seriousness of
the Charter violation and therefore to the disrepute that will result from judicial acceptance of
evidence obtained through that violation. The third group of factors relates to the effect of
excluding the evidence: exclusion of evidence essential to a charge because of a trivial breach of
the Charter would result in an acquittal and would bring the administration of justice into varying
degrees of disrepute directly proportionate to the seriousness of the charge. The more serious the
offence, however, the more damaging would be an unfair trial to the system's repute. A final
factor, the availability of other remedies, was not relevant.
The threshold for exclusion under s. 24(2) is lower than that under the "community shock test"
enunciated in Rothman v. The Queen, [1981] 1 S.C.R. 640. Under s. 24(2), there will have been a
constitutional violation as opposed to the absence of any unlawful behaviour as a result of the
resort to tricks in Rothman. The language of s. 24(2), furthermore, indicates a lower threshold.
The French version of the text, which translates could bring the administration of justice into
disrepute, is less onerous than the more stringent English version, "would bring the administration
of justice into disrepute", and consequently is preferable in that it better protects the right to a fair
trial.

The evidence should be excluded on the record as it stands at present, notwithstanding the fact
that the trial would not be rendered unfair by its admission or the fact that exclusion could bring
the administration of justice into disrepute by allowing a person convicted at trial of a relatively
serious offence to evade that conviction. The administration of justice would be brought into even
greater disrepute if the Court did not exclude the evidence and dissociate itself from the conduct of
the police which, assuming it was based on mere suspicion, flagrantly and seriously violated the
individual's rights. The matter might be clarified at a new trial where the officer could explain his
reasons for his actions, but [page268] absent adequate additional grounds for those actions, the
evidence must be excluded.

Per Le Dain J.: Assuming, as was necessary on the record here, that the police officer did not have
grounds for a reasonable belief that the accused was in possession of a narcotic and having regard
to all the circumstances and in particular the relative seriousness of the violation of the right
guaranteed by s. 8 of the Charter to be secure against unreasonable search, the admission of the
evidence would bring the administration of justice into disrepute. The nature of the test under s.
24(2) of the Charter and the factors to be weighed as discussed by Lamer J. were generally agreed
with without subscribing to what was said concerning the nature and general importance under s.
24(2) of the factor referred to as the effect of the admission of evidence on the fairness of the
trial. Opinion was reserved with respect to this factor which was not necessary to the
determination of this case. Concern was expressed as to the possible implications for such matters
as self-incrimination and confession and as to whether there was a basis in s. 24(2) for the view
that, to the extent that this factor was relevant, it should generally lead to the exclusion of the
evidence.

Per McIntyre J. (dissenting): The search can be considered unreasonable for the purposes of this
appeal. The admission of the evidence obtained on that search, nevertheless, would not bring the
administration of justice into disrepute contrary to s. 24(2) of the Charter. The issue of whether or
not the administration of justice will be brought into disrepute is to be seen through the eyes of
the community as a whole and accordingly an approach similar to the "reasonable man" should be
adopted. Rules and principles will be developed on a case-by-case basis to produce an applicable
standard for the application of s. 24(2). Recourse should not be had to the "community shock" test
or to public opinion polls and other devices used to sample public opinion. On a charge for
possession of narcotics for the purpose of trafficking, the admission of evidence of possession of a
balloon containing heroin in a public bar in the presence of other people would not bring the
administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully
apprised in the circumstances. [page269]

Canadian Charter of Rights and Freedoms, ss. 8, 11(d), 24(1), (2). Narcotic Control Act, R.S.C.
1970, c. N-1, s. 10(1)(a), (b), (c), rep. in part by S.C. 1985, c. 19, s. 200.
 R. v. MacDonald, [2014] S.C.J. No. 3
Appeal by the accused from a Court of Appeal judgment finding him guilty of careless use of a
firearm and possession of a weapon for dangerous purposes and finding police validly exercised
power to search without warrant. Appeal by the Crown from the same judgment acquitting the
accused of charges of possession of a loaded restricted firearm and which reduced his sentence.
The police responded to a complaint about the noise emanating from the accused's condominium
in Halifax. When the accused partially opened the door, the officer noticed something "black and
shiny" in the accused's right hand. The accused refused twice to say what was behind his leg.
Wanting to get a better look, the officer pushed the door open a few inches further and identified
the item as a handgun. He quickly forced his way into the unit and disarmed the accused. The gun
was found to be a loaded restricted firearm, registered to the accused. The trial judge concluded
that no Charter violation had occurred resulting from the officer's intrusion. The trial judge found
the accused guilty of the charges of careless use of a firearm, possession of a weapon for
dangerous purposes and possession of a loaded restricted firearm. The Court of Appeal found that
the officer had validly exercised the police power to search without a warrant where the safety of
the public or the police was at stake. The Court of Appeal overturned the conviction of possession
of a loaded restricted firearm. It found that the accused, who was licensed to possess and
transport the handgun in Alberta but not Nova Scotia, had made an honest mistake. Finally, the
Court of Appeal found the sentences of three years for possession of a weapon for dangerous
purposes and two years for careless use of a firearm to be unfit. It sentenced the accused to 18
days' imprisonment on the first count and 14 days' concurrent for the second.

HELD: Appeal by accused dismissed; appeal by Crown allowed.

The officer's action of pushing the door open further constituted an intrusion upon the accused's
reasonable privacy interest in his dwelling. This police action constituted a search of the accused's
home. To determine whether a safety search was justifiable, a number of factors must be weighed
to balance the police duty against the liberty interest in question, including the importance of the
performance of the duty to the public good, the necessity of the interference with individual liberty
for the performance of the duty, and the extent of the interference with individual liberty. A safety
search was a physical search that could uncover a broad array of information about an individual.
Even though all the officer did was push the door open slightly further, this had the potential to
reveal to the officers any number of things about the accused, as they could now see more of the
interior of the unit. However, because the officer had reasonable grounds to believe that the
accused was armed and dangerous, the further opening of the door was authorized by law. It was
hard to imagine a less invasive way of determining whether the accused was concealing a weapon.
The offence provided for in s. 95 of the Criminal Code was a mens rea offence. The Court of Appeal
erred in law by improperly reading a defence of ignorance of the law into s. 95(1). The Crown did
not need to prove the accused knew or was wilfully blind to the fact his possession in Halifax was
unauthorized. Section 95 did not include knowledge of unauthorized possession. Intent to possess
in a particular place coupled with knowledge of possession was enough. The accused's mistake of
law was not a defence. The accused's conviction under s. 95(1) was restored and the matter was
remitted to the Court of Appeal for sentencing.

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 8, s.
12, s. 24(2)

Criminal Code, R.S.C. 1985, c. C-46, s. 19, s. 86, s. 88, s. 95, s. 266, s. 351, s. 487.11, s. 495(1)
(a), s. 529.3
Firearms Act, S.C. 1995, c. 39, s. 17

R. v. Stairs, 2022 SCC 11

A call was placed to 9-1-1 to report a man repeatedly hitting a woman in a car. Police officers
located the car parked in the driveway of a house. They knocked on the front door and loudly
announced their presence, but no one answered. Fearing for the woman's safety, they entered the
house. A woman with fresh injuries to her face came up a flight of stairs leading from the
basement. The accused then ran past the bottom of the staircase and barricaded himself in the
basement laundry room, where he was arrested a short time later. After the arrest, the police
conducted a visual clearing search of the basement living room area, from which the accused and
the woman had just emerged. During the search, the police saw a clear container and a plastic bag
in plain view containing methamphetamine. The accused was charged with possession of a
controlled substance for the purpose of trafficking, and with assault and breach of probation.

The accused brought a pre-trial application alleging, among other things, violations of his right
against unreasonable search and seizure protected by s. 8 of the Charter. The trial judge found no
breach of s. 8 and no basis to exclude the methamphetamine. She held that it was reasonable for
the officers to do a quick scan of the basement living room after the accused was arrested, that
the search had a valid objective, and that the search and resulting seizure were lawful. The
accused was convicted of all charges. He appealed his conviction for the drug offence on the basis
that the drug evidence was improperly admitted. A majority of the Court of Appeal upheld the
conviction, holding that the search and subsequent seizure of the methamphetamine did not
breach the accused's s. 8 Charter rights. The majority was of the view that the search was a search
incident to a lawful arrest, that the common law standard for search incident to arrest applied, and
that the search of the basement living room met this standard.
Held (Karakatsanis, Brown and Martin JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ.: The basic common law standard for
search incident to arrest continues to apply when the police search an area of the arrested
person's home that is within that person's physical control. The common law standard permits the
police to search a lawfully arrested person and to seize anything in their possession or the
surrounding area of the arrest to guarantee the safety of the police and the arrested person,
prevent the person's escape, or provide evidence against them. Specifically, it permits a search of
the person arrested and the surrounding area of the arrest when (1) the arrest is lawful; (2) the
search is incidental to the arrest, such that there is some reasonable basis for the search
connected to the arrest and the search is for a valid law enforcement purpose, including safety,
evidence preservation, or evidence discovery; and (3) the nature and extent of the search are
reasonable.
However, where the area searched in the arrested person's home is outside that person's physical
control at the time of the arrest -- but the area is sufficiently proximate to the arrest -- the
common law standard for search incident to arrest must be modified to pass constitutional muster
under s. 8 of the Charter. The purpose of the distinction between the areas within and outside of
the arrested person's physical control is to recognize that the more extensive the warrantless
search in a home, the greater the potential for violating privacy. The key question in determining
whether an area is sufficiently proximate to the arrest is whether there is a link between the
location and purpose of the search and the grounds for the arrest. The inquiry is highly contextual;
the determination must be made using a purposive approach to ensure that the police can
adequately respond to the wide variety of factual situations that may arise. Depending on the
circumstances, the surrounding area may be wider or narrower.

Specifically, where the area searched incident to arrest in a home is outside the arrested person's
physical control at the time of the arrest, the common law standard for search incident to arrest
must be modified in two ways that make the standard stricter. First, the police must have reason
to suspect that there is a safety risk to the police, the arrested person, or the public which would
be addressed by a search. Reasonable suspicion is a higher standard than the common law
standard for search incident to arrest. The police require a constellation of objectively discernible
facts assessed against the totality of the circumstances giving rise to the suspicion of the risk.
Relevant considerations include (a) the need for a search; (b) the nature of the apprehended risk;
(c) the potential consequences of not taking protective measures; (d) the availability of alternative
measures; and (e) the likelihood that the contemplated risk actually exists. Moreover, when
assessing police conduct, the reviewing judge must be alive to the volatility and uncertainty that
police officers face -- the police must expect the unexpected.

Second, the police must carefully tailor their searches incident to arrest in a home to ensure that
they respect the heightened privacy interests implicated. The search incident to arrest power only
permits police to search the surrounding area of the arrest. The nature of the search must be
tailored to its specific purpose, the circumstances of the arrest, and the nature of the offence. The
search should be no more intrusive than is necessary to resolve the police's reasonable suspicion.

In the present case, the basement living room search met the standard for reasonable suspicion,
both in terms of its subjective and objective components. It was open to the trial judge to
conclude that the police subjectively believed there was a safety risk that would be addressed by
conducting a clearing search of the living room, which was a valid law enforcement purpose. It was
equally open to the trial judge to find that it was objectively reasonable for the police to clear the
area for hazards and other occupants. The dynamic before and during the arrest and the nature of
the offence for which the accused was arrested were factors that figured prominently in the
reason-to-suspect analysis. The situation was volatile and rapidly changing, and the arrest was for
domestic assault. In domestic violence cases, the police are not only concerned with the privacy
and autonomy of the person arrested; they must also be alert to the safety of all members of the
household, including both known and potential victims. In addition, the search was conducted
reasonably. It took place right after the arrest and the police merely conducted a visual scan of the
living room area to ensure that no one else was present and that there were no weapons or
hazards. The spatial scope of the search was appropriate: the living room was part of the
surrounding area of the arrest, it appeared to be a common living room space, and the police
engaged in the most cursory of searches, which was the least invasive possible.

The search of the living room incident to arrest did not violate the accused's s. 8 Charter right, and
the evidence from the living room search was therefore properly admitted at trial.
Per Karakatsanis, Brown and Martin JJ. (dissenting): The appeal should be allowed, the accused's
conviction for possession of a controlled substance for the purpose of trafficking set aside and an
acquittal entered. The police's warrantless search and seizures did not comply with s. 8 of
the Charter. The evidence should be excluded under s. 24(2) of the Charter in that its admission
would bring the administration of justice into disrepute.

The warrant requirement is a foundational check on police powers, and a cornerstone of Canada's
constitutional order. Any exceptions should be exceedingly rare. Still, some exceptions exist,
including the common law power of search incident to arrest. In some cases, the Court has
modified or tailored the common law framework to account for particularly compelling individual
interests. The strong privacy interests in a home call for modifying the common law standard in a
search incident to arrest. A home is the setting of individuals' innermost lives: at once a shield
from the outside world and a biographical record, its sanctity is indispensable. However, while
privacy interests in a home are significant, so too are the interests in protecting police and public
safety. Police must be able to address the hazards that may arise in unfamiliar, and potentially
hostile, environments, not least when investigating volatile offences like domestic violence.
Weighing the privacy and law enforcement interests under s. 8, the balance is best struck by
authorizing police to conduct a search incident to arrest inside a home when they reasonably
suspect there is an imminent threat to the safety of police or the public. Contrary to the standard
set by the majority, the threat must be imminent. The safety risks that arise from an arrest in a
home, for which a warrant cannot feasibly be procured, will generally be imminent. And imminence
is a useful concept because it defines those circumstances where obtaining a warrant is not
feasible. It signals that if police can get a warrant before searching a home, they should do so.

While reasonable suspicion is a relatively low threshold, it still requires the officers to articulate
some basis to suspect safety may be at risk. As in other searches incident to arrest, they must
have both subjective and objectives grounds for the search. The court's task is to examine the
evidence of the actual reasons for the search -- and not whether reasonable suspicion could have
justified the search. Ultimately, the task for the courts is, in each case, to apply the standard in
light of the specific evidence before them, focusing on the reasons actually relied on by the officer.
The issue is whether the search was constitutional at the time it was carried out.

Alongside the reasonable suspicion standard, the permissible scope of a search serves as another
limitation on the police's ability to conduct a search incident to arrest inside a home. This
constrains searches in two ways: by the nature of the concerns animating the arrest, and by the
need for temporal and spatial proximity between the search and the arrest. Just as the authority
for a search incident to arrest derives from the arrest itself, a search is only justifiable if the
purpose of the search is related to the purpose of the arrest. An arrest that only gives rise to
safety concerns cannot, without more, authorize a search for matters unrelated to safety. There
must be a purposive link to the nature of the arrest. A search that falls within those parameters
must also be spatially and temporally proximate to the arrest.

In the instant case, the search and seizures were not justified. The police only searched the
basement once the accused had been handcuffed and the victim had gone upstairs. There were no
particularized facts to justify a safety search, only generalized uncertainty about the presence of
weapons or other people. The searching officer gave no basis to ground a reasonable suspicion
that anybody's safety was at risk following the accused's arrest. The search and seizures were
therefore unlawful and violated the accused's s. 8 Charter rights.
The evidence ought to be excluded under s. 24(2) of the Charter. The state conduct in this case
falls on the higher end of the spectrum and favours exclusion. It was well known that private
homes attract a high privacy interest and generally cannot be searched without a warrant. The
accused's privacy interests inside the home were significant and the unlawful search and seizures
were a major incursion on his Charter-protected interests, which strongly favours exclusion. The
drugs were, however, highly reliable evidence that was central to the Crown's case, which strongly
favours inclusion. Weighing all three inquiries, the admission of the evidence would bring the
administration of justice into disrepute. The evidence is therefore inadmissible.
PerCôté J.: There is agreement with Karakatsanis J. on the reasonable suspicion standard for
searches incident to arrest inside a home, with her application of the standard to the facts of the
case and with her conclusion that the search and seizure of the evidence infringed S's rights
pursuant to s. 8 of the Charter. However, the unlawfully seized evidence should not be excluded as
admitting the evidence would not bring the administration of justice into disrepute. The appeal
should therefore be dismissed.
The seriousness of the Charter-infringing police conduct favours admission of the evidence. The
seriousness of the infringement is attenuated by the uncertainty of the law regarding residential
searches incident to arrest. Given the uncertainty in the law and the otherwise reasonable manner
in which the search was carried out, the seriousness of the police misconduct was at the lowest
end of the spectrum. The Crown concedes that the police conduct had a serious impact on
S's Charter- protected privacy interests which favours exclusion of the evidence. However, society's
interest in an adjudication of S's drug charges on the merits favours admission of the evidence.
On balance, the evidence should not be excluded under s. 24(2) of the Charter. Going forward, it
will be very difficult for police to justify admission in a similar scenario. However, the police were
acting in good faith on their understanding of unsettled law and society has a strong interest in the
adjudication of a charge involving a large quantity of a highly dangerous street drug.
Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2).
Criminal Code, R.S.C. 1985, c. C-46, ss. 266, 487.11, 529 to 529.5, 733.1(1).
Police Services Act, R.S.O. 1990, c. P.15, s. 42.

R. v. Mann, [2004] 3 S.C.R. 59

As two police officers approached the scene of a reported break and enter, they observed M, who
matched the description of the suspect, walking casually along the sidewalk. They stopped him. M
identified himself and complied with a pat-down search of his person for concealed weapons.
During the search, one officer felt a soft object in M's pocket. He reached into the pocket and
found a small plastic bag containing marijuana. He also found a number of small plastic baggies in
another pocket. M was arrested and charged with possession of marijuana for the purpose of
trafficking. The trial judge found that the search of M's pocket contravened s. 8 of the Canadian
Charter of Rights and Freedoms. He held that the police officer was justified in his search of M for
security reasons, but that there was no basis to infer that it was reasonable to look inside M's
pocket for security reasons. The evidence was excluded under s. 24(2) of the Charter, as its
admission would interfere with the fairness of the trial, and the accused was acquitted. The Court
of Appeal set aside the acquittal and ordered a new trial, finding that the detention and the pat-
down search were authorized by law and were reasonable in the circumstances.
Held (Bastarache and Deschamps JJ. dissenting): The appeal should be allowed and the acquittal
restored.
Per Iacobucci, Major, Binnie, LeBel and Fish JJ.: The police were entitled to detain M for
investigative purposes and to conduct a pat-down search to ensure their safety, but the search of
M's pockets was unjustified and the evidence discovered therein must be excluded.
Although there is no general power of detention for investigative purposes, police officers may
detain an individual if there are reasonable grounds to suspect in all the circumstances that the
individual is connected to a particular crime and that the detention is reasonably necessary on an
objective view of the circumstances. These circumstances include the extent to which the
interference with individual liberty is necessary to the performance of the officer's duty, to the
liberty interfered with, and to the nature and extent of the interference. At a minimum, individuals
who are detained for investigative purposes must be advised, in clear and simple language, of the
reasons for the detention. Investigative detentions carried out in accordance with the common law
power recognized in this case will not infringe the detainee's rights under s. 9 of the Charter. They
should be brief in duration, so compliance with [page61] s. 10(b) will not excuse prolonging,
unduly and artificially, any such detention. Investigative detentions do not impose an obligation on
the detained individual to answer questions posed by the police. Where a police officer has
reasonable grounds to believe that his safety or the safety of others is at risk, the officer may
engage in a protective pat-down search of the detained individual. The investigative detention and
protective search power must be distinguished from an arrest and the incidental power to search
on arrest.
In this case, the seizure of the marijuana contravened s. 8 of the Charter. The officers had
reasonable grounds to detain M and to conduct a protective search, but no reasonable basis for
reaching into M's pocket. This more intrusive part of the search was an unreasonable violation of
M's reasonable expectation of privacy in respect of the contents of his pockets. Moreover, the
Crown has not shown on the balance of probabilities that the search was carried out in a
reasonable manner.
The evidence should be excluded under s. 24(2) of the Charter. The trial judge erred in ruling the
evidence inadmissible on the basis of trial unfairness because the marijuana was non-conscriptive,
but his decision to exclude it was correct. The search went beyond what was required to mitigate
concerns about the officer's safety and reflects a serious breach of M's protection against
unreasonable search and seizure. When the officer reached into M's pocket, the purpose of the
search shifted from safety to the detection and collection of evidence, and the search became one
for evidence absent reasonable grounds. While a frisk search is a minimally intrusive search, the
search of M's inner pocket must be weighed against the absence of any reasonable basis for
justification. The good faith of the officer is but one factor to be considered alongside other factors
which speak to the seriousness of the breach, and good faith cannot be claimed if
a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as
to the scope of his authority. Lastly, although exclusion of the evidence would substantially
diminish, if not eliminate altogether, the Crown's case against M and possession of marijuana for
the purpose of trafficking is a serious offence, the nature of the fundamental rights at issue and
the lack of a reasonable foundation for the search suggest that [page62] inclusion of the evidence
would adversely affect the administration of justice.
Per Bastarache and Deschamps JJ. (dissenting): There is a common law power to detain and
search those who the police have an articulable cause to believe have been or will be involved in
the commission of a criminal offence. In formulating the standard which must be met in order to
give rise to the common law power to detain, the term "articulable cause" is preferable to the term
"reasonable grounds to detain". It is a criterion which Canadian courts are familiar with and which
they have had little difficulty applying. More importantly, using the term "reasonable grounds"
could lead to the erroneous conclusion that the same degree of justification is required to detain as
to arrest, which would undermine the very purpose of the common law power to detain. A search
incidental to detention has to be rationally connected to the purpose of the initial detention and
reasonably necessary to either to ensure the security of police officers or the public, to preserve
evidence or to prevent the escape of an offender. Under appropriate circumstances, other goals
might be permissible. However, since the power of search incidental to detention is less extensive
than the power of search incidental to arrest, the objective of discovering evidence of a crime
could not justify a search incidental to investigative detention.
While the search of M's pocket violated s. 8 of the Charter, the evidence should not be excluded
pursuant to s. 24(2). First, the evidence obtained by the police was not conscriptive and would not
affect the fairness of the trial. Second, the Charter violation was not serious. The search was
conducted in good faith, and the evidence was found during a search which was so closely related
to a legal search that it amounted to a minuscule departure from what would have been
permissible. Third, M is charged with a serious offence and the evidence is essential to the Crown's
case. Here, it is the exclusion of the evidence, not its inclusion, which would bring the
administration of justice into disrepute.

R. v. Aucoin, [2012] S.C.J. No. 66

Appeal by Aucoin from a judgment of the Nova Scotia Court of Appeal affirming his conviction for
possession of cocaine for the purpose of trafficking. Aucoin was convicted of possession of cocaine
for the purpose of trafficking after a pat-down search during the course of a roadside detention. He
was pulled over because the licence plate on his vehicle was registered to a different vehicle. As a
newly licensed driver, Aucoin was prohibited from having any alcohol in his system while driving.
The officer administered a roadside screening test which revealed alcohol in Aucoin's system and
he decided to impound Aucoin's vehicle and issue him a ticket for contravening the Motor Vehicle
Act. There were a lot of people milling around and the officer was concerned that Aucoin might
walk away and disappear if he were allowed to remain outside of the police vehicle. Accordingly,
he decided to secure Aucoin in the rear of his cruiser while completing the paper work. He then
sought and received permission from Aucoin to do a pat-down search for safety reasons. The
officer felt something soft in his pocket. He asked what it was and Aucoin replied that it was
ecstasy. That response prompted his arrest and a further search of his pocket revealed eight bags
containing cocaine. Aucoin submitted that the officer had no right in the circumstances to perform
a pat-down search on him. That search, he claimed, was unlawful and in violation of his right to be
free from unreasonable search and seizure. He further argued that the breach was serious and
that the cocaine found in consequence should have been excluded.

HELD: Appeal dismissed.

The case did not turn on whether the officer had the authority to detain Aucoin in the rear of his
police cruiser having lawfully stopped him for a regulatory infraction. Rather, the question was
whether he was justified in exercising it as he did in the circumstances of this case. In order to
justify securing the appellant in the back seat - knowing that this would also entail a pat-down
search - detaining the appellant in that manner had to be reasonably necessary. Backup was close
at hand, something the officer could readily have ascertained. Had he done so, he could have
waited an extra minute or two to do the paper work, without impinging on Aucoin's right to be
released from detention as soon as reasonably practicable. The officer's actions, though carried out
in good faith, were not reasonably necessary. Because detaining Aucoin in the back of the cruiser
would have been an unlawful detention - given there were other reasonable means by which the
officer could have addressed his concern that Aucoin might flee - it could not constitute the
requisite basis in law to support a warrantless search. Therefore, the pat-down search was
unreasonable and constituted a breach of his Charter right against unreasonable search and
seizure. In cases where the police acted in good faith and without deliberate disregard for or
ignorance of Charter rights - as was the case here - the seriousness of a breach could be
attenuated. The breach was not sufficiently egregious to warrant the exclusion of the cocaine from
evidence.

R. v. Suberu, [2009] S.C.J. No. 33

Appeal by Suberu from the Ontario Court of Appeal's decision to uphold the trial judge's ruling that
his right to counsel was not violated. A constable responded to a call about someone attempting to
use a stolen credit card at a store. The constable was advised that there were two suspects in the
store and upon entering the store, the constable observed an officer speaking to an employee and
a customer. Suberu walked past the constable and indicated that the other customer did it, so he
could go. The constable followed Suberu outside and said "Wait a minute. I need to talk to you
before you go anywhere", while Suberu was getting into a minivan. While speaking to Suberu, the
constable received a description and licence plate number of a van, which matched the van Suberu
was sitting in, driven by the men who used a stolen credit card earlier that day. The constable
looked into the van and saw shopping bags. At this point, the constable decided that he had
reasonable and probable grounds to arrest Suberu for fraud, advised him of the reason for his
arrest and gave a caution regarding Suberu's Charter rights. Suberu brought an application under
s. 24(2) of the Charter of Rights and Freedoms seeking the exclusion of any statements made by
him and of the physical evidence seized at the time of his arrest, on the ground that this evidence
had been obtained in a manner that infringed his s. 10(b) right to counsel. Suberu argued that he
was detained as soon as he was told to "wait" and was engaged in questioning by the police
officer, and the officer's failure to inform him of his right to retain and instruct counsel at that
point in time constituted a violation of s. 10(b). The trial judge dismissed the application and
Suberu was convicted on three counts. The Court of Appeal upheld the convictions and the ruling
on the Charter application.

HELD: Appeal dismissed.

Suberu's s. 10(b) Charter right to retain and instruct counsel was not violated. The police duty to
inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered
at the outset of an investigative detention. From the moment an individual is detained, s. 10(b) is
engaged and the police have the obligation to inform the detainee of his or her right to counsel
"without delay". The immediacy of this obligation is only subject to concerns for officer or public
safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the
Charter. However, not every interaction between the police and members of the public, even for
investigative purposes, constitutes a detention within the meaning of the Charter. Not every police
encounter triggers an individual's right to counsel under s. 10(b). The constitutional rights
recognized by s. 10 are not engaged by delays that involve no significant physical or psychological
restraint. Psychological detention is established either where the individual has a legal obligation to
comply with the restrictive 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. It is the task of the trial judge on
a Charter application to assess the circumstances and determine whether the line between general
questioning and detention has been crossed. While Suberu was momentarily "delayed" when the
police asked to speak to him, he was not subjected to physical or psychological restraint so as to
ground a detention within the meaning of the Charter. The evidence did not support Suberu's
contention that his freedom to choose whether or not to cooperate with the police was removed
during the period of time prior to his arrest. Thus, his s. 10(b) right to counsel was not engaged
during that period. It was only later, after the officer received additional information indicating that
Suberu was probably involved in the commission of an offence and determined that he could not
let him leave, that the detention crystallized and Suberu's rights under s. 10 were engaged. Upon
arresting Suberu, the police officer promptly and properly informed him of his right to counsel so
there was no violation of Suberu's right under s. 10(b).

R. v. Morales, [1992] 3 S.C.R. 711

The accused was charged with narcotics offences under ss. 4 and 5 of the Narcotic Control Act and
s. 465(1)(c) of the Criminal Code. He is alleged to have participated in a major network to import
cocaine into Canada. At the time of his arrest, he was awaiting trial for assault with a weapon, an
indictable offence. The accused was denied bail and was ordered detained in custody until trial.
Under the bail provisions of the Criminal Code, an accused is normally granted bail but pre-trial
detention is justified when the "detention is necessary in the public interest or for the protection or
safety of the public, having regard to all the circumstances including any substantial likelihood that
the accused will, if he is released from custody, commit a criminal offence or interfere with the
administration of justice" (s. 515(10)(b)). Under s. 515(6), the onus is on the accused to show
cause why the detention is not justified when he is charged with an indictable offence "that is
alleged to have been committed while he was at large after being released in respect of another
indictable offence" (s. 515(6)(a)), or charged with having committed a drug offence under s. 4 or
5 of the Narcotic Control Act or with conspiracy to commit any of these offences (s. 515(6)(d)).
The accused's application for a review of the detention order, made to a superior court judge
pursuant to s. 520 of the Code, was granted and he was released subject to a number of
conditions. The judge held that pre-trial detention is only justified where it is established that the
accused will not appear for trial or would represent a danger to public safety if released. The
Crown appealed to this Court. This appeal is to determine whether ss. 515(6)(a), 515(6)(d) and
515(10)(b) of the Criminal Code infringe ss. 7, 9, 11(d) or 11(e) of the Canadian Charter of Rights
and Freedoms; and, if so, whether the infringement is justified under s. 1 of the Charter.

  Held: The appeal should be allowed.  

Per Lamer C.J. and La Forest, Sopinka, McLachlin and Iacobucci JJ.: For the reasons given in
Pearson, the "public safety" component of s. 515(10)(b) is constitutionally valid. Section 11(d) of
the Charter creates a procedural and evidentiary rule which operates at the [page714] trial
requiring the prosecution to prove the guilt of the accused beyond a reasonable doubt. It has no
application at the bail stage where guilt or innocence is not determined and where punishment is
not imposed. The "public safety" component of s. 515(10)(b) therefore does not infringe s. 11(d).
With respect to s. 7 of the Charter, the accused's challenge should be determined under s. 11(e) of
the Charter because that section offers a highly specific guarantee which covers precisely his
claim. The presumption of innocence is a principle of fundamental justice which applies at all
stages of the criminal process, but its procedural requirements at the bail stage are satisfied
whenever the requirements of s. 11(e) are satisfied. This section creates a basic entitlement to be
granted reasonable bail unless there is "just cause" to do otherwise. There is just cause to deny
bail under s. 11(e) if two criteria are met: the denial of bail must occur only in a narrow set of
circumstances, and the denial of bail must be necessary to promote the proper functioning of the
bail system and must not be undertaken for any purpose extraneous to the bail system. The
"public safety" component of s. 515(10)(b) meets these criteria. First, bail is denied only for those
who pose a "substantial likelihood" of committing an offence or interfering with the administration
of justice, and only where this "substantial likelihood" endangers "the protection or safety of the
public". Moreover, detention is justified only when it is "necessary" for public safety. Second, the
bail system does not function properly if an accused interferes with the administration of justice or
commits crimes while on bail. While it is impossible to make exact predictions about recidivism and
future dangerousness, exact predictability of future dangerousness is not constitutionally
mandated. It is sufficient that the bail system establish a likelihood of dangerousness. The bail
provisions of the Code also provide for substantial procedural safeguards against the inefficacy of
predictions about dangerousness. Finally, with respect to s. 9 of the Charter, while the "public
safety" component of s. 515(10)(b) provides for persons to be "detained" within the meaning of s.
9, those persons are not detained "arbitrarily". Detention under the "public safety" component of
s. 515(10)(b) is not governed by unstructured discretion. The "public safety" component sets out a
process with fixed standards and sets specific conditions for bail. Furthermore, the bail process is
subject to very exacting procedural guarantees. It follows [page715] that the "public safety"
component of s. 515(10)(b) does not violate s. 9.

The "public interest" component as a basis for pre-trial detention under s. 515(10)(b) violates s.
11(e) of the Charter, however, because it authorizes detention in terms which are vague and
imprecise and thus authorizes a denial of bail without just cause. The term "public interest", as
currently defined by the courts, is incapable of framing the legal debate in any meaningful manner
or structuring discretion in any way. Nor would it be possible to give that term a constant or
settled meaning. The term gives the courts unrestricted latitude to define any circumstances as
sufficient to justify pre-trial detention but creates no criteria for defining these circumstances. No
amount of judicial interpretation of the term "public interest" would be capable of rendering it a
provision which gives any guidance for legal debate. Such unfettered discretion violates the
doctrine of vagueness. This doctrine applies to all types of enactments and is not restricted to
provisions which define an offence or prohibit certain conduct. The principles of fundamental
justice preclude a standardless sweep in any provision which authorizes imprisonment. A
standardless sweep does not become acceptable simply because it results from the discretion of
judges and justices of the peace rather than the discretion of law enforcement officials.

The violation of s. 11(e) is not justified under s. 1 of the Charter. Even if the term "public interest"
is not too vague to constitute a limit "prescribed by law", it cannot be justified under the Oakes
test. While the objectives of preventing crime and preventing interference with the administration
of justice by those who are on bail are of sufficient importance to warrant overriding a
constitutionally protected right, the "public interest" component of s. 515(10)(b) does not meet
the proportionality test. There is no rational connection between the measure and the objectives.
The provision is so vague that it does not provide any means to determine which accused are most
likely to commit offences or interfere with the administration of justice while on bail. It accordingly
authorizes pre-trial detention in many cases which are not related to the objectives of the
measure. Further, the measure does not impair rights as little as possible. The [page716] vague
and overbroad concept of public interest permits far more pre-trial detention than is required to
meet the objectives. Finally, there is no proportionality between the effects of the measure and its
objectives. By authorizing excessive pre-trial detention, the effects of the limit far exceed the
objectives of the measure. The "public interest" component of s. 515(10)(b) is thus
unconstitutional. The offending words, specifically "in the public interest or", are severable and
should be struck down pursuant to s. 52 of the Constitution Act, 1982. The criteria of "public
interest" and "public safety" in s. 515(10)(b) are disjunctive and striking down the specific
offending provision does not defeat the unitary scheme envisaged by Parliament. The balance of
the provision can stand as a functioning whole.
In light of Pearson, s. 515(6)(d) of the Code, to the extent that it requires the accused to show
cause why detention is not justified, does not violate ss. 7, 9, 11(d) or 11(e) of the Charter.

This conclusion is also applicable to s. 515(6)(a) of the Code. Since s. 11(d) of the Charter is not
applicable at the bail stage, s. 515(6)(a) therefore does not infringe s. 11(d). With respect to s. 7
of the Charter, the accused's case should be analysed under s. 11(e) rather than the more general
provisions of s. 7. While s. 515(6)(a) requires the accused to demonstrate that detention is not
justified, thereby denying the basic entitlement under s. 11(e) to be granted bail unless pre-trial
detention is justified by the prosecution, s. 515(6)(a) provides just cause to deny bail. First, the
denial of bail occurs only in a narrow set of circumstances. Section 515(6)(a) applies only to
indictable offences and denies bail only when the persons who have been charged with an
indictable offence while on bail for another indictable offence do not show cause why detention is
not justified. Second, the denial of bail is necessary to promote the proper functioning of the bail
system. The special bail rules in s. 515(6)(a) do not have any purpose extraneous to the bail
system, but rather merely establish an effective bail system in circumstances where there are
reasonable grounds to believe that the normal bail system is permitting continuing criminal
behaviour. By requiring the accused to justify bail, s. 515(6)(a) seeks to ensure that the objective
of stopping criminal behaviour will be achieved. The scope of these special rules is thus carefully
tailored to achieve a properly functioning [page717] bail system. With respect to s. 9 of the
Charter, s. 515(6)(a) does not provide for "arbitrary" detention. Like s. 515(6)(d), s. 515(6)(a)
sets out a process which is not discretionary and which is subject to fixed standards. Section
515(6)(a) contains highly structured criteria and sets out specific conditions for bail. In addition,
the bail process is subject to very exacting procedural guarantees and subject to review by a
superior court.

The Superior Court did not err in holding that pre-trial detention is only justified where it is
established that the accused will not appear for trial or would represent a danger to public safety if
released. These two grounds are the only grounds specified in s. 515(10) which survive Charter
challenge. However, the Superior Court did err in refusing to apply the procedure mandated by ss.
515(6)(a) and 515(6)(d), both of which are constitutionally valid. As a result, the matter must be
remitted to the Superior Court for a new bail review under s. 520 in which ss. 515(6)(a) and
515(6)(d) are applied and s. 515(10)(b) is applied after severance of the words "in the public
interest or".

Per L'Heureux-Dubé and Gonthier JJ.: The reasons of Lamer C.J. were agreed with, except for his
finding that the criterion of "public interest" in s. 515(10)(b) of the Code is unconstitutional on
grounds of vagueness. Public interest, as referred to in s. 515(10)(b), falls within the purview of
the concept of "just cause" in s. 11(e) of the Charter and is intended to be one particularization of
just cause. It is thus in terms of the entire concept that the meaning of public interest must be
understood. The evaluation and elaboration of a "public interest" criterion must also proceed with
reference to the particular context in which it is to operate. The identification of a measure of
discretion conferred by means of a legislative provision cannot alone provide the basis for a
constitutional evaluation of that provision.

The general sense of the phrase "public interest" refers to the special set of values which are best
understood from the point of view of the aggregate good and [page718] are of relevance to
matters relating to the well-being of society. Public interest is at the heart of our legal system and
inspires all legislation as well as the administration of justice. The breadth of the concept is a
necessary aspect of a notion which accommodates a host of important considerations which permit
the law to serve a necessarily wide variety of public goals. At the same time, the notion of public
interest operates as a reference for the rules of law which bear upon legal determinations of when
the interest of the public will be specially considered, the relationship which those interests will
have to other interests which fall to be considered, and the extent to which the public interest is to
be protected by the law.

A bail application does not involve a finding of guilt as to past conduct. It is rather concerned with
governing future conduct during the interim period awaiting trial. What is at issue are the reasons
for detention. The criterion set by the Charter is that of just cause. This implies (1) a cause or
reason and (2) a proportionality between the reason and the deprivation of liberty that makes the
cause "just". Public interest, as used in s. 515(10), must be understood in this context and
considered in relation to two main elements: the element of necessity, which involves a causal link
between the public interest and the detention such as to make the detention necessary and not
merely convenient or desirable and which is also an element of importance, weight or seriousness
of the public interest such as to outweigh the accused's right to personal liberty; and the element
of seriousness of the public interest, which serves to qualify the other element, namely the content
of the considerations that may be included within the public interest criterion. The considerations
to be weighed in determining the public interest are those which are consistent with the
safeguarding of the fundamental values of the rule of law and the Charter, including the
maintenance of order and security and a respect for the fundamental individual and collective
rights of others. Also important is the consideration that the criterion of necessity is capable of
encompassing circumstances which have not been foreseen, or are unforeseeable, but which
undoubtedly provide just cause for denying bail within the meaning of s. 11(e) of the Charter.
Public interest, as used in s. 515(10), thus provides for flexibility, not vagueness. Its dual
requirements of public interest and necessity, which itself predicates a public interest of a serious
nature, have meaning, give rise to legal debate and, though broad, are not vague but provide an
adequate framework and limit for the exercise of judicial discretion and a means for controlling
such exercise while at the same time allowing for the flexibility required for an effective
administration of justice and implementation of the rule of law. It must be underlined that the bail
process is subject to very exacting procedural guarantees which both structure and guide the
exercise of judicial discretion.

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 9, 10, 11(b), 11(d), 11(e). Constitution Act,
1982, s. 52(1). Criminal Code, R.S.C., 1985, c. C-46, ss. 465(1)(c), 504, 515(6)(a) [rep. & sub. c.
27 (1st Supp.), s. 83(3)], 515(6)(d), 515(10)(a), 515(10)(b), 516, 518 [am. idem, ss. 84 and
185], 520 [am. idem, s. 86], 521 [am. idem, s. 87], 523(2) [rep. & sub. idem, s. 89], 525 [am.
idem, s. 90], 526 [rep. & sub. idem, s. 91]. Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 4, 5.
R. v. St. Cloud, 2015 SCC 27
Appeal by the Crown from a judgment of the Quebec Superior Court allowing St-Cloud's
application for review of his detention order. St-Cloud was accused of aggravated assault after a
video system recorded him and two others assaulting a bus driver. The three individuals struck the
driver in the head many times, leaving him with serious long-term injuries. The Court of Québec
judge who heard St-Cloud's application for release upon completion of the preliminary inquiry
found that his detention was necessary to maintain confidence in the administration of justice,
noting the victim's severe medical condition. St-Cloud applied to the Superior Court for a review of
the detention order. The Superior Court concluded that the incident was repugnant, heinous and
unjustifiable, but not unexplainable. The Court held that the first judge erred in denying release on
the basis of the ground set out in s. 515(10)(c) of the Criminal Code (Cr.C.). The Crown appealed
that conclusion as well as the order granting St-Cloud's release.

HELD: Appeal allowed.

The scope of s. 515(10)(c) Cr.C. had unduly been restricted by the courts in some cases. This
ground for detention was not necessarily limited to exceptional circumstances, to the most heinous
of crimes or to certain classes of crimes. The interpretation of s. 515(10)(c) Cr.C. had also been
truncated by a misunderstanding of the meaning of the word "public" used in the provision's
French version. The "public" were reasonable, well informed members of the community, but not
legal experts with in depth knowledge of the criminal justice system. Since a decision whether to
order the pre-trial release of an accused involved a delicate balancing of all the relevant
circumstances, the power of a judge hearing an application under s. 520 or 521 Cr.C. to review
such a decision was not open-ended. Exercising this power would be appropriate in only three
situations: (1) where there was admissible new evidence; (2) where the impugned decision
contained an error of law; or (3) where the decision was clearly inappropriate. In the last of these
situations, a reviewing judge could not simply substitute his or her assessment of the evidence for
that of the justice who rendered the impugned decision. It was only if the justice gave excessive
weight to one relevant factor or insufficient weight to another that the reviewing judge could
intervene. The Superior Court judge made several errors that justified reviewing his entire
decision. The Crown's case appeared to be strong, since the incident was videotaped and there
was eyewitness testimony. The offence was objectively very serious, being an aggravated assault
for which the maximum sentence was 14 years, one of the most severe in the Criminal Code. St-
Cloud was an active participant in the extremely brutal assault. The fact that the assault was
committed against a bus driver, a civil servant who worked in the community to ensure the well-
being of the public, made the offence even more heinous. Also relevant were the nature and
severity of the injuries sustained by the driver, and in particular the long-term effects and the
impact on his career and his personal life. In light of all relevant circumstances required to be
weighed by s. 515(10)(c) Cr.C., St-Cloud's detention was necessary to maintain confidence in the
administration of justice. The detention order was restored.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s.
11(d), s. 11(e), s. 24(2)

Criminal Code, R.S.C. 1985, c. C-46, s. 34, s. 232, s. 267(b), s. 268, s. 469, s. 515(1), s. 515(2),
ss. 515(4)-515(4.3), s. 515(5), s. 515(6), s. 515(8), s. 515(10), s. 517(1)(b), s. 518, s. 520, s.
521, s. 523(2)(b), s. 680, s. 687, s. 718.2(d), s. 719(3), s. 719(3.1), s. 723, s. 730, s. 731, s.
732.1(3), s. 734

Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 59(2)

R. v. Antic, 2017 SCC 27
A was arrested and charged with several drug and firearms offences. He was denied release at his
bail hearing, and sought review of the detention order. The bail review judge declined to vacate
the order, indicating that he would have released A if he could have imposed both a surety and a
cash deposit as release conditions. However, 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 is
from out of the province or does not ordinarily reside within 200 km of the place in which he or
she is in custody. As an Ontario resident living within 200 km of the place in which he was
detained, A did not meet these criteria. A brought a subsequent bail review application,
challenging the constitutionality of s. 515(2)(e). The bail review judge found that since the
geographical limitation in s. 515(2)(e) prevented him from granting bail on the terms that he
deemed appropriate, the provision violated the right not to be denied reasonable bail without just
cause under s. 11(e) of the Charter. He severed and struck down the geographical limitation in s.
515(2)(e) and ordered A's release with a surety and a cash deposit of $100,000.
Held: The appeal should be allowed and the declaration of constitutionality reversed.
The right not to be denied reasonable bail without just cause is an essential element of an
enlightened criminal justice system. It entrenches the effect of the presumption of innocence at
the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons. This
right has two aspects: a person charged with an offence has the right not to be denied bail without
just cause and the right to reasonable bail. Under the first aspect, a provision may not deny bail
without "just cause" -- there is just cause to deny bail only if the denial occurs in a narrow set of
circumstances, and the denial is necessary to promote the proper functioning of the bail system
and is not undertaken for any purpose extraneous to that system. The second aspect, the right to
reasonable bail, relates to the terms of bail, including the quantum of any monetary component
and other restrictions that are imposed [page511] on the accused for the release period. It
protects accused persons from conditions and forms of release that are unreasonable.
While a bail hearing is an expedited procedure, the bail provisions are federal law and must be
applied consistently and fairly in all provinces and territories. A central part of the Canadian law of
bail consists of the ladder principle and the authorized forms of release, which are found in s.
515(1) to (3) of the Criminal Code. Save for exceptions, an unconditional release on an undertaking
is the default position when granting release. Alternative forms of release are to be imposed in
accordance with the ladder principle, which must be adhered to strictly: release is favoured at the
earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an
alternate form of release, it must show why this form is necessary for a more restrictive form of
release to be imposed. 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 judge to order a more restrictive form without justifying
the decision to reject the less onerous forms. A recognizance with sureties is one of the most
onerous forms of release, and should not be imposed unless all the less onerous forms have been
considered and rejected as inappropriate. 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. A recognizance is functionally equivalent to cash bail and
has the same coercive effect. Cash bail should be relied on only in exceptional circumstances in
which release on a recognizance with sureties is unavailable. When 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 be no higher than necessary to satisfy the concern that would otherwise
warrant detention and proportionate to the means of the accused and the circumstances of the
case. The judge is under a positive obligation to inquire into the ability of the accused to pay.
Terms of release under s. 515(4) should 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 is
released. They must not be imposed to change an accused person's behaviour or to punish an
accused person. Where a bail [page512] review is requested, courts must follow the bail review
process set out in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.
In the instant case, s. 515(2)(e) of the Criminal Code did not have the effect of denying A bail -- it
was the bail review judge's application of the bail provisions that did so. The bail review judge
committed two errors in fashioning A's release order. First, by requiring a cash deposit with a
surety, one of the most onerous forms of release, he failed to adhere to the ladder principle. Even
though A had offered a surety with a monetary pledge, the bail review judge was fixated on and
insisted on a cash deposit because he believed the erroneous assumption that cash is more
coercive than a pledge. Second, the bail review judge erred in making his decision on the basis of
speculation as to whether A might believe that forfeiture proceedings would not be taken against
his elderly grandmother if he breached his bail terms. A judge cannot impose a more onerous form
of release solely because he or she speculates that the accused will not believe in the
enforceability of a surety or a pledge. Parliament expressly authorized the possibility of an accused
being released on entering into a recognizance with sureties in the place of cash bail, and judges
should not undermine the bail scheme by speculating, contrary to any evidence and to
Parliament's intent, that requiring cash will be more effective.
Given that s. 515(2)(e) did not have the effect of denying A bail, it cannot be concluded that this
provision denies him bail without just cause. Thus, the first aspect of the s. 11(e) Charter right is
not triggered. As to the second aspect of the s. 11(e) right, it does not need to be addressed
because, properly interpreted, s. 515(2)(e) does not apply to A and cannot therefore authorize an
unreasonable form [page513] of release in his case. Had the bail review judge applied the bail
provisions properly, A could have been granted reasonable bail. Accordingly, the bail review
judge's declaration of unconstitutionality should be reversed and the cash-plus-surety release
ordered should be replaced with a cash-only release under s. 515(2)(d) on the same terms as
those previously imposed, since A has already posted the cash deposit.

Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable
Offences, S.C. 1869, c. 30.
Bail Reform Act, S.C. 1970-71-72, c. 37.
Bill of Rights (Eng.), 1688, 1 Will. & Mar. 2, c. 2.
Canadian Charter of Rights and Freedoms, s. 11(e).
Criminal Code, R.S.C. 1985, c. C-46, ss. 469, 515(1), (2), (3), (4), (6), (10), 520.
Criminal Code, S.C. 1953-54, c. 51, ss. 451, 463(3).
Statutes of Westminster, The First (Eng.), 1275, 3 Edw. 1, c. 15.
Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1).
R. v. Stinchcombe, [1991] 3 S.C.R. 326
The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his
was a Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to
the defence. After the preliminary inquiry but prior to trial, the witness was interviewed by an
RCMP officer and a tape-recorded statement was taken. Later, during the course of the trial, the
witness was again interviewed by a police officer and a written statement taken. Defence counsel
was informed of the existence but not of the content of the statements. His requests for disclosure
were refused. During the trial defence counsel learned conclusively that the witness would not be
called by the Crown and sought an order that the witness be called or that the Crown disclose the
contents of the statements to the defence. The trial judge dismissed the application. The trial
proceeded and the accused was convicted of breach of trust and fraud. Conditional stays were
entered with respect to the theft counts. The Court of Appeal affirmed the convictions without
giving reasons.

Held: The appeal should be allowed and a new trial ordered.

The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the
investigation which are in its possession are not the property of [page327] the Crown for use in
securing a conviction but the property of the public to be used to ensure that justice is done. The
obligation to disclose is subject to a discretion with respect to the withholding of information and
to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege
and to protect the identity of informers. A discretion must also be exercised with respect to the
relevance of information. The Crown's discretion is reviewable by the trial judge, who should be
guided by the general principle that information should not be withheld if there is a reasonable
possibility that this will impair the right of the accused to make full answer and defence. 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 which excludes the information from disclosure. 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.

Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any
failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will
enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new
trial.

Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead.
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. Where statements are not in existence, other information such as notes should be
produced. If there are no notes, all information in the prosecution's possession relating to any
relevant evidence the person could give should be supplied.

[page328]

Crown counsel was not justified in refusing disclosure here on the ground that the witness was not
worthy of credit: whether the witness is credible is for the trial judge to determine after hearing
the evidence. The trial judge ought to have examined the statements. Since the information
withheld might have affected the outcome of the trial, the failure to disclose impaired the right to
make full answer and defence. There should be a new trial at which the statements are produced.

R. v. O’Connor, [1995] 4 S.C.R. 411

The accused was charged with a number of sexual offences. Defence counsel obtained a pre-trial
order requiring that the Crown disclose the complainants' entire medical, counselling and school
records and that the complainants authorize production of such records. The Crown applied to a
different judge for directions regarding the disclosure order and for the early appointment of a trial
judge. After a trial judge had been appointed, the Crown again sought directions regarding the
disclosure order. By this time many of the impugned records had come into its possession. The
trial judge made it clear that he was to be provided promptly with therapy records relating to all
four complainants. The accused later applied for a judicial stay of proceedings based on non-
disclosure of several items. Crown counsel submitted that the two Crown prosecutors were
handling the case from different cities, and that there were difficulties concerning communication
and organization. She asserted that the non-disclosure of some of the medical records was due to
inadvertence on her part, and that she had "dreamt" the transcripts of certain interviews had been
disclosed. She submitted that uninhibited disclosure of medical and therapeutic records would
revictimize the victims, and suggested that the disclosure order exhibited gender bias. The trial
judge dismissed the application for a stay, finding that the failure to disclose certain medical
records had been an oversight. He noted, however, that the letters written by Crown counsel to
the counsellors had unacceptably limited the scope of the disclosure to only those portions of the
records which related directly to the incidents involving the accused. This resulted in the full
therapy records not being disclosed to the defence until just before the trial. He concluded that
while the conduct of the Crown was "disturbing", he did not believe that there was a "grand
design" to conceal evidence, nor any "deliberate plan to subvert justice". In light of the difficulties
encountered during discovery, Crown counsel then agreed to waive any privilege with respect to
the contents of the Crown's file and to prepare a binder in relation to each of the complainants
containing all information in the Crown's possession relating to each of them. On the second day of
the trial, counsel for the accused made another application for a judicial stay of proceedings based
largely on the fact that the Crown was still unable to guarantee to the accused that full disclosure
had been made. The trial judge stayed proceedings on all four counts. He noted the constant
intervention required by the court to ensure full compliance with the disclosure order and found
that the Crown's earlier conduct had created "an aura" that had pervaded and ultimately destroyed
the case. The Court of Appeal allowed the Crown's appeal and directed a new trial. This appeal
raises the issues of (1) when non-disclosure by the Crown justifies an order that the proceedings
be stayed and (2) the appropriate procedure to be followed when an accused seeks production of
documents such as medical or therapeutic records that are in the hands of third parties.

Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be dismissed.

 (1)Stay of Proceedings

Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: There is no need to maintain any type
of distinction between the common law doctrine of abuse of process and Charter requirements
regarding abusive conduct. Where an accused seeks to establish that non-disclosure by the Crown
has violated s. 7, he or she must 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. Such a determination requires reasonable inquiry into the materiality of the non-disclosed
information. Inferences or conclusions about the propriety of the Crown's conduct or intention are
not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus
must be primarily on the effect of the impugned actions on the fairness of the trial. Once a
violation is made out, the court must fashion a just and appropriate remedy, pursuant to s. 24(1).
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. 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. When choosing a remedy for a non-disclosure that has violated s. 7, the court should
also consider whether the Crown's breach of its disclosure obligations has violated fundamental
principles underlying the community's sense of decency and fair play and thereby caused prejudice
to the integrity of the judicial system. If so, it should be asked whether this prejudice is
remediable, having regard to the seriousness of the violation and to the societal and individual
interests in obtaining a determination of guilt or innocence.

While the Crown's conduct in this case was shoddy and inappropriate, the non-disclosure cannot
be said to have violated the accused's right to full answer and defence. The whole issue of
disclosure in this case arose out of the order requiring that the Crown "disclose" records in the
hands of third parties and that the complainants authorize production of such records. This order
was issued without any form of inquiry into their relevance, let alone a balancing of the privacy
rights of the complainants and the accused's right to a fair trial, and was thus wrong. The Crown
was ultimately right in trying to protect the interests of justice, and the fact that it did so in such a
clumsy way should not result in a stay of proceedings, particularly when no prejudice was
demonstrated to the fairness of the accused's trial or to his ability to make full answer and
defence. Even had a violation of s. 7 been found, this cannot be said to be one of the "clearest of
cases" which would mandate a stay of proceedings.

Per Cory and Iacobucci JJ.: While the actions of Crown counsel originally responsible for the
prosecution of this case were extremely high-handed and thoroughly reprehensible, the Crown's
misdeeds were not such that, upon a consideration of all the circumstances, the drastic remedy of
a stay was merited.

Per Lamer C.J. and Sopinka and Major JJ. (dissenting on this issue): A stay of proceedings was
appropriate here. The Crown's conduct impaired the accused's ability to make full answer and
defence. The impropriety of the disclosure order if any does not excuse the Crown's failure to
comply with it until immediately before the trial. The Crown never took proper action regarding the
objections it had. If it could not appeal the order it should have returned to the issuing judge to
request variation or rescission. The letters from the Crown prosecutor to the therapists narrowed
the scope of the order. As soon as the order was clarified for the therapists, complete records were
disclosed, suggesting that had the letters contained an accurate description of the order,
compliance would have occurred at a much earlier time. The Crown also breached its general duty
to disclose all relevant information. Each time disclosure was made in this case it was the result of
the defence having to raise the matter in court. The conduct of the Crown was such that trust was
lost, first by the defence, and finally by the trial judge. It is of little consequence that a
considerable amount of the non-disclosed material was ultimately released piecemeal to the
defence prior to the trial. The effect of continual discovery of more non-disclosed evidence,
coupled with the Crown's admission that disclosure was possibly incomplete, created an
atmosphere in which the defence's ability to prepare was impaired. The Crown's delay in making
disclosure and its inability to assure the trial judge that full disclosure had been made even after
commencement of the trial were fatal to the proceedings. The continual breaches by the Crown
made a stay the appropriate remedy. Proceedings had become unworkable and unfair. Remedies
under s. 24(1) of the Charter are properly in the discretion of the trial judge. This discretion should
not be interfered with unless the decision was clearly unreasonable.

The same breaches of the disclosure order, the general duty of disclosure and the undertaking to
disclose files to the defence which impaired the accused's right to make full answer and defence
also violated fundamental principles of justice underlying the community's sense of fair play and
decency. The trial judge showed admirable tolerance for the behaviour of the Crown but in the end
had no choice but to order a stay. When a criminal trial gains notoriety because of the nature of
the offence, the parties charged or any other reason, there is an added burden in the paramount
interest of ensuring fairness in the process. In this case, the fact that the offences alleged were
many years in the past and that the accused had a high profile in the community called for a
careful prosecution to ensure fairness and the maintenance of integrity in the process. The conduct
of the Crown during the time the trial judge was involved, as well as in the months before his
appointment, was negligent, incompetent and unfair. The trial judge was in the best position to
observe the conduct of the Crown and its effect on the proceedings. He found that the trial had
become so tainted that it violated fundamental principles underlying the community's sense of fair
play and decency and that the accused was impaired in his ability to make full answer and
defence.

 (2)Production of Records in the Possession of the Crown

Per Lamer C.J. and Sopinka J.: The Crown's disclosure obligations established in Stinchcombe are
unaffected by the confidential nature of therapeutic records when the records are in the possession
of the Crown. The complainant's privacy interests in therapeutic records need not be balanced
against the right of the accused to make full answer and defence in the context of disclosure, since
concerns relating to privacy or privilege disappear where the documents in question have fallen
into the Crown's possession. The complainant's lack of a privacy interest in records that are
possessed by the Crown counsels against a finding of privilege in such records. Fairness must
require that if the complainant is willing to release this information in order to further the criminal
prosecution, then the accused should be entitled to use the information in the preparation of his or
her defence. Moreover, any form of privilege may be forced to yield where such a privilege would
preclude the accused's right to make full answer and defence. Information in the possession of the
Crown which is clearly relevant and important to the ability of the accused to raise a defence must
be disclosed to the accused, regardless of any potential claim of privilege that might arise. While
the mere existence of therapeutic records is insufficient to establish the relevance of those records
to the defence, their relevance must be presumed where the records are in the Crown's
possession.

Per Cory and Iacobucci JJ.: The principles set out in the Stinchcombe decision, affirmed in Egger,
pertaining to the Crown's duty to disclose must apply to therapeutic records in the Crown's
possession, as found by Lamer C.J. and Sopinka J.

Per Major J.: The Crown's disclosure obligations established in Stinchcombe are unaffected by the
confidential nature of therapeutic records in its possession, as found by Lamer C.J. and Sopinka J.

Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: This appeal does not concern the
extent of the Crown's obligation to disclose private records in its possession, or the question
whether privacy and equality interests may militate against such disclosure by the Crown. These
issues do not arise in this appeal and were not argued before the Court. Any comment on these
questions would be strictly obiter.

 (3)Production of Records in the Possession of Third Parties

Per Lamer C.J. and Sopinka J.: 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. However, the court should be able, in the interests of justice, to waive the need for a
formal application in some cases. In either event, 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. The initial application for disclosure should be made to the
judge seized of the trial, but may be brought before the trial judge prior to the empanelling of the
jury, at the same time that other motions are heard. 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. While "likely relevance" is the appropriate threshold for
the first stage of the two-step procedure, it should not be interpreted as an onerous burden upon
the accused. A relevance threshold, at this stage, is simply a requirement to prevent the defence
from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming
requests for production.

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. In balancing the competing rights in question, 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. The effect on the integrity of the trial process of producing, or failing
to produce, the record, having in mind the need to maintain consideration in the outcome, is more
appropriately dealt with at the admissibility stage and not in deciding whether the information
should be produced. As for society's interest in the reporting of sexual crimes, there are other
avenues available to the judge to ensure that production does not frustrate the societal interests
that may be implicated by the production of the records to the defence. In applying these factors,
it is also appropriate to bear in mind that production of third party records is always available to
the Crown provided it can obtain a search warrant.
Per Cory and Iacobucci JJ.: The procedure suggested by Lamer C.J. and Sopinka J. for determining
whether records in the possession of third parties are likely to be relevant was agreed with, as
were their reasons pertaining to the nature of the onus resting upon the accused and the nature of
the balancing process which must be undertaken by the trial judge.

Per Major J.: The substantive law and the procedure recommended by Lamer C.J. and Sopinka J.
in obtaining therapeutic records from third persons were agreed with.

Per La Forest, L'Heureux-Dubé and Gonthier JJ. (dissenting on this issue): Private records, or
records in which a reasonable expectation of privacy lies, may include medical or therapeutic
records, school records, private diaries and social worker activity logs. An order for production of
private records held by third parties does not arise as a remedy under s. 24(1) of the Charter
since, at the moment of the request for production, the accused's rights under the Charter have
not been violated. Nonetheless, when deciding whether to order production of private records, the
court must exercise its discretion in a manner that is respectful of Charter values. The
constitutional values involved here are the right to full answer and defence, the right to privacy,
and the right to equality without discrimination.

Witnesses have a right to privacy in relation to private documents and records which are not part
of the Crown's "case to meet" against the accused. They are entitled not to be deprived of their
reasonable expectation of privacy except in accordance with the principles of fundamental justice.
Since an applicant seeking production of private records from third parties is seeking to invoke the
power of the State to violate the privacy rights of other individuals, the applicant must show that
the use of the State power to compel production is justified in a free and democratic society. The
use of State power to compel production of private records will be justified in a free and
democratic society when the following criteria are met: (1) it is shown that the accused cannot
obtain the information sought by any other reasonable means; (2) production that infringes
privacy must be as limited as reasonably possible to fulfil the right to make full answer and
defence; (3) the arguments urging production rest on permissible chains of reasoning, rather than
upon discriminatory assumptions and stereotypes; and (4) there is proportionality between the
salutary and deleterious effects of production. The measure of proportionality must reflect the
extent to which a reasonable expectation of privacy vests in the particular records, on the one
hand, and the importance of the issue to which the evidence relates, on the other. Moreover,
courts must remain alive to the fact that, in certain cases, the deleterious effects of production
may demonstrably include negative effects on the complainant's course of therapy, threatening
psychological harm to the individual concerned and thereby resulting in a concomitant deprivation
of the individual's security of the person.

The first step for an accused who seeks production of private records held by a third party is to
obtain and serve on the third party a subpoena duces tecum. When the subpoena is served, the
accused should notify the Crown, the subject of the records, and any other person with an interest
in the confidentiality of the records that the accused will ask the trial judge for an order for their
production. Then, at the trial, the accused must bring an application supported by appropriate
affidavit evidence showing that the records are likely to be relevant either to an issue in the trial or
to the competence to testify of the subject of the records. If the records are relevant, the court
must balance the salutary and deleterious effects of ordering that the records be produced to
determine whether, and to what extent, production should be ordered.

The records at issue here are not within the possession or control of the Crown, do not form part
of the Crown's "case to meet", and were created by a third party for a purpose unrelated to the
investigation or prosecution of the offence. It cannot be assumed that such records are likely to be
relevant, and if the accused is unable to show that they are, then the application for production
must be rejected as it amounts to nothing more than a fishing expedition. The burden on an
accused to demonstrate likely relevance is a significant one. It would be insufficient for the
accused to demand production simply on the basis of a bare, unsupported assertion that the
records might impact on "recent complaint" or the "kind of person" the witness is. Similarly, the
applicant cannot simply invoke credibility "at large", but must rather provide some basis to show
that there is likely to be information in the impugned records which would relate to the
complainant's credibility on a particular, material issue at trial. Equally inadequate is a bare,
unsupported assertion that a prior inconsistent statement might be revealed, or that the defence
wishes to explore the records for "allegations of sexual abuse by other people". Similarly, the mere
fact that a witness has a medical or psychiatric record cannot be taken as indicative of the
potential unreliability of the evidence. Any suggestion that a particular treatment, therapy, illness,
or disability implies unreliability must be informed by cogent evidence, rather than stereotype,
myth or prejudice. Finally, it must not be presumed that the mere fact that a witness received
treatment or counselling after a sexual assault indicates that the records will contain information
that is relevant to the defence. The focus of therapy is vastly different from that of an investigation
or other process undertaken for the purposes of the trial. While investigations and witness
testimony are oriented toward ascertaining historical truth, therapy generally focuses on exploring
the complainant's emotional and psychological responses to certain events, after the alleged
assault has taken place.

If the trial judge decides that the records are likely to be relevant, then the analysis proceeds to
the second stage, which has two parts. First, the trial judge must balance the salutary and
deleterious effects of ordering the production of the records to the court for inspection, having
regard to the accused's right to make full answer and defence, and the effect of such production
on the privacy and equality rights of the subject of the records. If the judge concludes that
production to the court is warranted, he or she should so order. Next, 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. Production should only be ordered in respect of those records,
or parts of records, that have significant probative value that is not substantially outweighed by
the danger of prejudice to the proper administration of justice or by the harm to the privacy rights
of the witness or to the privileged relation. The following factors should be considered in this
determination: (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; (5) the potential prejudice to the complainant's
dignity, privacy or security of the person that would be occasioned by production of the record; (6)
the extent to which production of records of this nature would frustrate society's interest in
encouraging the reporting of sexual offences and the acquisition of treatment by victims; and (7)
the effect on the integrity of the trial process of producing, or failing to produce, the record, having
in mind the need to maintain consideration in the outcome. Where a court concludes that
production is warranted, it should only be made in the manner and to the extent necessary to
achieve that objective.

A preliminary inquiry judge is without jurisdiction to order the production of private records held
by third parties. The disclosure order in the present case did not emanate from a preliminary
inquiry judge, but was issued in response to a pre-trial application by the defence. Even a superior
court judge, however, should not, in advance of the trial, entertain an application for production of
private third party records. Such applications should be heard by the judge seized of the trial,
rather than a pre-trial judge. In addition, it is desirable for the judge hearing an application for
production to have had the benefit of hearing, and pronouncing upon, the defence's earlier
applications, so as to minimize the possibility of inconsistency in the treatment of two similar
applications. More generally, applications for production of third party records should not be
entertained before the commencement of the trial, even by the judge who is seized of the trial.
First, the concept of pre-trial applications for production of documents held by third parties is alien
to criminal proceedings. Second, if pre-trial applications for production from third parties were
permitted, it would invite fishing expeditions, create unnecessary delays, and inconvenience
witnesses by requiring them to attend court on multiple occasions. Moreover, a judge is not in a
position, before the beginning of the trial, to determine whether the records in question are
relevant, much less whether they are admissible, and will be unable to balance effectively the
constitutional rights affected by a production order.

Since the right of the accused to a fair trial has not been balanced with the competing rights of the
complainant to privacy and to equality without discrimination in this case, a new trial should be
ordered.

Per McLachlin J. (dissenting on this issue): L'Heureux-Dubé J.'s reasons were concurred in entirely.
The test proposed strikes the appropriate balance between the desire of the accused for complete
disclosure from everyone of everything that could conceivably be helpful to his defence, on the one
hand, and the constraints imposed by the trial process and privacy interests of third parties who
find themselves caught up in the justice system, on the other, all without compromising the
constitutional guarantee of a trial which is fundamentally fair. The Charter guarantees not the
fairest of all possible trials, but rather a trial which is fundamentally fair. What constitutes a fair
trial takes into account not only the perspective of the accused, but the practical limits of the
system of justice and the lawful interests of others involved in the process, like complainants and
the agencies which assist them in dealing with the trauma they may have suffered. What the law
demands is not perfect justice, but fundamentally fair justice.

Canadian Charter of Rights and Freedoms, ss. 7, 8 to 14, 11(b), (d), 15, 24(1), (2). Charter of
Human Rights and Freedoms, R.S.Q., c. C-12, s. 5. Civil Code of Quebec, S.Q. 1991, c. 64, arts.
35, 36. Criminal Code, R.S.C., 1985, c. C-46, ss. 276(3) [rep. & sub. 1992, c. 38, s. 2], 487(1)(b)
[rep. & sub. c. 27 (1st Supp.), s. 68(1); repl. 1994, c. 44, s. 36], 545, 548(1), 581, 698, 700(1),
Part XXII. European Convention for the Protection of Human Rights and Fundamental Freedoms,
213 U.N.T.S. 221, Art. 8. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171,
Art. 17. United States Constitution, Fourteenth Amendment. Universal Declaration of Human
Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 12.

R. v. McNeil, 2009 SCC 3

Appeal by the Attorney General of Ontario from the decision granting McNeil's motion for the
production of police disciplinary records and criminal investigation files relating to the Crown's
main police witness in the case against him. McNeil was convicted on multiple drug charges.
Before being sentenced, McNeil learned that the arresting officer, who was the Crown's main
witness, was engaged in drug-related misconduct that had led to both internal disciplinary
proceedings under the Ontario Police Services Act and to criminal charges. McNeil sought
production of all documents related to the officer's misconduct, claiming that he required that
material to assist him in preparing an application to introduce fresh evidence on his appeal from
conviction. The Court of Appeal held that an O'Connor-type procedure was only required in cases
where third party records attracted a reasonable expectation of privacy. The court drew a
distinction between criminal investigation files and police disciplinary records, and concluded that
no expectation of privacy existed in respect of the former. The court ordered the third parties to
produce the criminal investigation files in their possession related to the charges against the
arresting officer to the federal Crown prosecuting McNeil's case. The Attorney General was granted
leave to appeal and the production order was stayed pending disposition of the appeal. However,
the arresting officer subsequently pleaded guilty to one of the criminal charges brought against
him. Evidence of the officer's conviction was admitted on McNeil's appeal before the Ontario Court
of Appeal, and his convictions were set aside, following which the Crown undertook not to re-
prosecute McNeil, who withdrew from the appeal.

HELD: Appeal allowed.

The Crown's first party disclosure obligation only extended to material relating to an accused's
case in the possession or control of the prosecuting Crown entity. Although distinct and
independent from the Crown at law, the investigating police force was not a third party. The
O'Connor application provided an accused with a mechanism for accessing third party records that
fell beyond the reach of the first party disclosure regime. The first step in any contested
application for production of non-privileged documents in the possession of a third party was for
the person seeking production to satisfy the court that the documents were likely relevant to the
proceedings. Once the true relevance of third party records was ascertained on an O'Connor
application for production of third party records, the ultimate question of production was
essentially governed by the same principles that applied to the disclosure of material in the
possession of the Crown.
R. v. J.J., 2022 SCC 28
Appeal by the Crown from a decision of the British Columbia Supreme Court that declared s.
278.93(4), a provision of the record screening regime in the Criminal Code, unconstitutional.
Cross-appeal by the accused J for a declaration the entire regime was unconstitutional. Appeal by
the complainant S, in proceedings against the accused Reddick, from a decision of the Ontario
Superior Court of Justice that declared the complainant participation regime provided for in the
impugned provisions violated the Charter. By way of pre-trial applications, two accused, J and
Reddick, challenged the constitutionality of ss. 278.92 to 278.94 of the Criminal Code. The
impugned provisions created a procedure for screening complainants' private records in the hands
of the accused to determine whether they were admissible as evidence at trial and a procedure to
provide complainants with additional participation rights in admissibility proceedings.

HELD: Appeals by Crown and S allowed; cross-appeal by J dismissed.

Sections 278.92 to 278.94 of the Criminal Code were constitutional in their entirety, as they
applied to both s. 276 evidence applications and private record applications. The admissibility
threshold in s. 278.92 did not impair fair trial rights as it did not breach ss. 7 or 11(d) of the
Charter. The accused's right to a fair trial did not include the unqualified right to have all evidence
in support of their defence admitted. The procedure in s. 278.92 was not overbroad as it did not
go further than was reasonably necessary. The Stage One application process, set out in s.
278.93, was constitutional. The record screening regime did not require compelled defence
disclosure in a manner that would violate an accused's right to a fair trial. Section 11(c) of the
Charter was not engaged as the accused was not compelled to testify. The complainant
participation provisions in s. 278.94 did not violate the accused's fair trial rights protected by ss. 7
and 11(d) of the Charter. The participation of complainants was justified because they had a direct
interest in whether their records, for which they had a reasonable expectation of privacy, were
adduced in open court, and their contributions were different from that of the Crown. The
impugned provisions struck a balance that protected fundamental justice for accused persons and
complainants. Dissenting reasons were provided.

R. v. Lifchus, [1997] 3 S.C.R. 320

The accused, a stockbroker, was charged with fraud. The trial judge told the jury in her charge on
the burden of proof that she used the words "'proof beyond a reasonable doubt' . . . in their
ordinary, natural every day sense", and that the words "doubt" and "reasonable" are "ordinary,
every day words that . . . you understand". The accused was convicted of fraud. On appeal, he
contended that the trial judge had erred in instructing the jury on the meaning of the expression
"proof beyond a reasonable doubt". The Court of Appeal allowed the appeal and ordered a new
trial.

  Held: The appeal should be dismissed.  

Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: A jury must be provided
with an explanation of the expression "reasonable doubt". This expression, which is composed of
words commonly used in everyday speech, has a specific meaning in the legal context. The trial
judge must explain to the jury that the standard of proof beyond a reasonable doubt is inextricably
intertwined with the presumption of innocence, the basic premise which is fundamental to all
criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never
shifts to the accused. The jury should be instructed that a reasonable doubt is not an imaginary or
frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based
on reason and common sense which must logically be derived from the evidence or absence of
evidence. While more is required than proof that the accused is probably guilty, a reasonable
doubt does not involve proof to an absolute certainty. Such a standard of proof is impossibly high.
Certain references to the required standard of proof should be avoided. A reasonable doubt should
not be described as an ordinary expression which has no special meaning in the criminal law
context, and 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. Nor is it helpful to describe
proof beyond a reasonable doubt simply as proof to a "moral certainty". As well, the word "doubt"
should not be qualified other than by way of the adjective "reasonable". To instruct a jury that a
"reasonable doubt" is a "haunting" doubt, a "substantial" doubt or a "serious" doubt may have the
effect of misleading the jury. Lastly, it is only after proper instructions have been given as to the
meaning of the expression "beyond a reasonable doubt" that jurors may be advised that they can
convict if they are "certain" or "sure" that the accused is guilty. The model charge set out in the
reasons may be useful but any charge which is consistent with these principles will suffice
regardless of the particular words used by the trial judge.

Here, the trial judge failed to explain the standard of proof fully and properly to the jury. He did
not provide a definition of "reasonable doubt" and told the jurors to evaluate the concept of
reasonable doubt as if these were "ordinary, every day words". This is an unacceptable direction.
In the context of a criminal trial, the words "reasonable" and "doubt" have a specific meaning.
Since the trial judge did not provide any further guidance to the jury concerning the meaning of
proof beyond a reasonable doubt, this serious error was not saved by further instructions and gave
rise to the reasonable likelihood that the jury misapprehended the burden of proof which they
were required to apply. Section 686(1)(b)(iii) of the Criminal Code is not applicable. The correct
explanation of the requisite burden of proof is essential to ensure a fair criminal trial and a serious
error was made on this fundamental principle of criminal law. It cannot be said that, had the trial
judge not erred, the verdict would necessarily have been the same.

Per La Forest, L'Heureux-Dubé and Gonthier JJ.: Cory J.'s approach and result on the question of
reasonable doubt are agreed with. Section 686(1)(b)(iii) of the Criminal Code is an inappropriate
remedy in this case. Given that the full trial record was not before the Court, and that the
submissions on the "miscarriage of justice" aspect of the provision were insufficient, the Crown has
failed to discharge its burden to satisfy the Court "that the verdict would necessarily have been the
same if the error had not been made".

Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].
R. v. Starr, [2000] 2 S.C.R. 144
The accused was convicted of two counts of first degree murder. He had been accused of shooting
C and W by the side of a highway. C and W had been drinking with the accused in a hotel. Outside,
C and W offered a couple a ride home in W's station wagon. W drove, and the group first stopped
at an adjacent gas station, where G, a sometime girlfriend of C, approached the station wagon and
had a conversation with C. During the conversation, G observed a car beside the gas station, and
saw the accused in the car. She became angry with C because he was out with W rather than her,
and she walked away from the car. C got out of the car and followed her into a laneway, where
they had a further conversation. G asked C why he would not come home with her. According to
G, C replied that he had to "go and do an Autopac scam with Robert". She understood "Robert" to
be the accused. A day or two later, G saw a picture in the newspaper of what she believed was the
car in which she had seen the accused. The car had been found at the scene of the murder. She
phoned the police and told them she had seen the car on the night of the murders at the gas
station, with the accused in it. The Crown's theory was that the killing was a gang-related
execution perpetrated by the accused. W was an unfortunate witness who was killed simply
because she was in the wrong place at the wrong time. The theory was that the accused had used
an Autopac scam as a pretext to get C out into the countryside. The trial judge found that G's
anticipated testimony regarding the scam was admissible under the "present intentions" or "state
of mind" exception to the hearsay rule.

[page146]

Two police officers visited the couple who had been given a ride. One of the officers testified that
the wife, B, had told them that she had seen a man talking to C at the gas station. The officer
testified that B indicated that the man in one of the photographs she was shown looked like the
man whom she had seen at the gas station talking to C and who was also "probably driving the
other car". The photograph was a photo of the accused. Following a voir dire the trial judge ruled
that the officers' anticipated testimony was admissible pursuant to the prior identification
exception to the hearsay rule, notwithstanding the fact that B had not testified at trial as to having
seen a man talking to C at the gas station, or as to having identified that man in one of the
photographs presented to her by the police.

The Court of Appeal, in a majority decision, upheld the convictions. At issue here is whether the
court erred in affirming the trial judge's decision to admit G's testimony regarding a statement of
intention made by the deceased C, in affirming the trial judge's decision to admit the testimony of
the police officers regarding B's out-of-court identification and in finding that the trial judge had
explained the concept of reasonable doubt to the jury in an adequate manner.

Held (McLachlin C.J. and L'Heureux-Dubé, Gonthier and Bastarache JJ. dissenting): The appeal
should be allowed and a new trial ordered.

Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Since C's out-of-court statement to G that he
had to "go and do an Autopac scam with Robert", meaning the accused, is sought to be adduced in
order to prove the truth of its contents, G's testimony regarding C's statement to her is hearsay
and would generally be inadmissible as such. The "state of mind" or "present intentions" exception
to the hearsay rule as it has developed in Canada permits the admission into evidence of
statements of intent or of other mental states for the truth of their contents and also, in the case
of statements of intention in particular, to support an inference that the declarant followed through
on the intended course of action, provided it is reasonable on the evidence for the trier of fact to
infer that the declarant did so. A statement of intention cannot be admitted to prove the intentions
of someone other than the declarant, unless a hearsay [page147] exception can be established for
each level of hearsay. The trial judge erred in admitting C's statement to G under the present
intentions exception and, having admitted it, in not limiting its use by the jury. The statement
contained no indicia of reliability since it was made under circumstances of suspicion. C may have
had a motive to lie in order to make it seem that he was not romantically involved with W, and
could easily point to the accused, who was sitting nearby in a car but out of earshot, as being the
person with whom he was going to do an Autopac scam. Moreover, the trial judge failed to instruct
the jury that the statement was only admissible as evidence regarding the intentions of C, not the
accused. It is well-established that when a piece of evidence may conceivably be put to both
proper and improper uses, the trial judge in a criminal case must give the jury a limiting
instruction regarding the permissible inferences that may be drawn from the evidence. In this case
the trial judge did not instruct the jury on the proper uses of C's statement; in fact, he did the
opposite by expressly inviting the jury to use the evidence to infer the accused's intentions. In so
doing, he clearly committed an error of law warranting reversal. Finally, when properly limited, the
evidence was more prejudicial than probative. The trial judge erred by not considering whether the
prejudicial effect of the prohibited use of the evidence overbears its probative value on the
permitted use. The impermissible inferences that the jury might well have drawn from C's
statement are that the accused was in the car that followed C, that the accused was alone in the
car (since C referred only to the accused), and that the accused went with C as part of a plan to
lure C to a secluded area and kill him. The prejudicial effect of the admission of C's statement
outweighed the statement's probative value. The statement ought to have been excluded on this
basis as well.

In Khan, Smith, and subsequent cases, this Court allowed the admission of hearsay not fitting
within an established exception where it was sufficiently reliable and necessary to address the
traditional hearsay dangers. This concern for reliability and necessity should be no less present
when the hearsay is sought to be introduced [page148] under an established exception. This is
particularly true in the criminal context given the fundamental principle of justice, protected by the
Canadian Charter of Rights and Freedoms, that the innocent must not be convicted. It would
compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to
introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an
existing exception. In addition to improving trial fairness, bringing the hearsay exceptions into line
with the principled approach will also improve the intellectual coherence of the law of hearsay. To
the extent that the various exceptions may conflict with the requirements of a principled analysis,
it is the principled analysis that should prevail. It is nevertheless important for a court to exercise
a certain degree of caution when reconsidering the traditional exceptions, which continue to play
an important role under the principled approach. In some rare cases, it may be possible under the
particular circumstances of a case for evidence clearly falling within an otherwise valid exception
nonetheless not to meet the principled approach's requirements of necessity and reliability. In
such a case, the evidence would have to be excluded. However, these cases will no doubt be
unusual, and the party challenging the admissibility of evidence falling within a traditional
exception will bear the burden of showing that the evidence should nevertheless be inadmissible.
The trial judge will determine the procedure (whether by voir dire or otherwise) to determine
admissibility under the principled approach's requirements of reasonable necessity and reliability.

C's statement to G was also inadmissible under the principled approach. Since it was made under
"circumstances of suspicion", the statement was not reliable. Nor are there any other
circumstantial guarantees of trustworthiness that could render the statement reliable. Having
found that the statement is unreliable, it is unnecessary to go on to ask whether it was necessary
or not. Since it does not fall under an existing exception either, the courts below erred in admitting
this evidence. There was no serious argument that the error was one that could be saved by the
curative proviso.

[page149]

The trial judge erred in admitting the police evidence regarding B's out-of-court identification
under a traditional exception to the hearsay rule. Under the "prior identification" exception, prior
statements identifying or describing the accused are admissible where the identifying witness
identifies the accused at trial, or where the identifying witness is unable to identify the accused at
trial, but can testify that he or she previously gave an accurate description or made an accurate
identification. These requirements are not satisfied in the circumstances of this case. Since B did
not identify the accused in court, only the second branch of the exception could possibly be
applicable. However, B did not testify that she could not remember whether the accused was the
person whom she identified. She was not asked to compare the accused with her recollections
about the person she saw on the night of the murders. Accordingly, the underlying circumstances
of necessity required to trigger the second branch of the traditional exception did not exist.
Moreover, the police evidence went far beyond the scope of the "prior identification" exception.
The officers' testimony went beyond simply asserting that B had identified the accused, and
provided almost the entirety of the narrative underlying the identification. The police testimony
was equally inadmissible under the principled approach. The testimony was not necessary, since B
was a witness at trial and could have provided first-hand evidence, had the Crown chosen to
question her on the point. Furthermore, there are strong indications that B's identification was
unreliable. The trial judge's cautionary instruction to the jury was insufficient to remedy the harm
caused by the admission of the evidence.

The reasonable doubt instruction given in this case falls prey to many of the same difficulties
outlined in Lifchus, and likely misled the jury as to the content of the criminal standard of proof.
The key difficulty with this instruction is that it was not made clear to the jury that the Crown was
required to do more than prove the accused's guilt on a balance of probabilities. The trial judge
told the jury that they could convict on the basis of something less than absolute certainty of guilt,
but did not explain, in essence, how much less. In addition, rather than telling the jury that the
words "reasonable doubt" have a specific meaning in the legal context, the trial judge expressly
instructed the jury that the words have no "special connotation" and "no magic meaning that is
peculiar to the law". By asserting that absolute [page150] certainty was not required, and then
linking the standard of proof to the "ordinary everyday" meaning of the words "reasonable doubt",
the trial judge could easily have been understood by the jury as asserting a probability standard as
the applicable standard of proof. The trial judge did refer to the Crown's onus and to the
presumption of innocence, and he stated that the accused should receive the benefit of any
reasonable doubt. The error in the charge is that the jury was not told how a reasonable doubt is
to be defined. As was emphasized repeatedly in Lifchus and again in Bisson, 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, and nearly all of the instructions they were
given weakened the content of the reasonable doubt standard in such a manner as to suggest that
probability was indeed the requisite standard of proof. The reasonable likelihood that the jury
applied the wrong standard of proof raises a realistic possibility that the accused's convictions
constitute a miscarriage of justice.

Per L'Heureux-Dubé and Gonthier JJ. (dissenting): The following framework of analysis should be
adopted for hearsay statements. First, it must be determined whether the statement is hearsay.
Second, the trial judge should determine whether the hearsay statement falls within an established
exception to the hearsay rule. Third, if the evidence does not fall within an established exception,
the trial judge should determine whether it would still be admissible under the principled approach.
Fourth, the trial judge maintains the limited residual discretion to exclude evidence where the risk
of undue prejudice substantially exceeds the evidence's probative value. Finally, once the
statements are found admissible, it is for the trier of fact to weigh the evidence and make a
determination as to the ultimate reliability of the hearsay evidence at issue. The case-by-case
application of the principled approach to statements falling within accepted exceptions to the rule
against hearsay should not be countenanced. Individual cases may illuminate or illustrate the need
to modify a particular traditional exception, but every piece of evidence that falls within a
traditional exception should not be subjected to the principled [page151] approach and the
concomitant voir dire that it may entail.

While it is the duty of the courts to review common law rules, this duty carries with it a
corresponding responsibility to proceed prudently. The usurpation of the traditional hearsay
exceptions by the principled approach is not warranted under the current state of our law. Our
jurisprudence has recognized the need to relax the hearsay rule to keep it in step with our
changing society, specifically our greater appreciation of jurors' abilities. However, the existing
common law exceptions should be retained. The principled necessity-reliability analysis, while
appropriate where hearsay evidence does not fall within an established exception to the hearsay
rule, has not replaced and should not supplant the traditional exceptions to the hearsay rule.

The traditional exceptions are built upon a determination that a threshold of reliability is met in
particular instances of hearsay statements. Reliability under the principled approach is similarly
restricted to a threshold inquiry. In re-evaluating a hearsay exception, the court must ask whether
some reason exists to doubt that the rationale underlying the exception applies in certain
circumstances. The scope of this inquiry is restricted; the court should not consider every possible
permutation of indicators of reliability or unreliability. The only time a court should entertain a
challenge to an existing exception is where there are facts, generally applicable to a class of
persons, which weaken the theoretical justification for the exception. While in principle the trial
judge's residual discretion to exclude admissible evidence where its prejudicial effect substantially
outweighs its probative value could, in appropriate circumstances, apply to evidence falling within
an exception to the hearsay rule, this point was not addressed in the Court of Appeal and was not
argued before this Court.

Since the Crown sought to use C's statement to G as proof of the truth of its contents, it is
hearsay. The statement falls squarely within the "present intentions" exception to the hearsay
rule. An exception to the hearsay rule arises when the declarant's statement is adduced in order to
demonstrate the intentions, or state of mind, of the declarant at the time when the statement was
made. A requirement that the statement must appear [page152] to have been made in a natural
manner and not under circumstances of suspicion should not be added. While statements of
intention may be admissible despite the fact that they refer to a joint act, the "present intentions"
exception may not be used to infer that a third party acted in accordance with the declarant's
stated intention. The trial judge did not err in leaving C's statement of intention to the jury.
Properly cautioned by the trial judge, juries are perfectly capable of determining what weight
ought to be attached to such evidence, and of drawing reasonable inferences therefrom. The
Crown did not ask the jury to draw an impermissible inference, and the trial judge did not err in
instructing the jury on this issue.

With respect to B's out-of-court identification, while the trial judge may have committed an error
by allowing the police officers to testify as to the out-of-court identification, any harm that such
evidence may have caused was effectively negated by the trial judge's instructions to the jury. The
harm caused by the introduction of the evidence was minimal given other testimony that placed
the accused at the gas station before the murders. B's statement that "he was probably driving the
other car" could not have suggested that B identified the accused in the town where the murders
took place, rather than at the gas station. Given the trial judge's admonition to the jury and the
accused's admission of the marginal role that the identification evidence played, there is no
reasonable possibility that the verdict would have been different if the alleged error had not been
made.

While trial judges are now expected to follow the Lifchus model charge, failure to do so in cases
tried before Lifchus does not constitute reversible error if the charge conveys to the jury the
special meaning attached to reasonable doubt. Despite not having the benefit of this Court's
decision in Lifchus, the trial judge included most of the suggested elements in his charge to the
jury. The charge instructed the jurors that a reasonable doubt must not be an imaginary or
frivolous doubt; that it is a doubt based upon reason and common sense; that it must be based on
the evidence that the jurors heard in the courtroom; and that the Crown is not required to prove
its case to absolute certainty. The trial judge's charge was not flawless, in that the trial judge
erroneously stated that the words "reasonable doubt" are used in their everyday, ordinary sense
and have no special legal meaning. The verdict ought not to be disturbed, however, because the
charge, when read as a whole, [page153] makes it clear that the jury could not have been under
any misapprehension as to the correct burden and standard of proof to apply. The charge
communicated clearly to the jury that they could not find the accused guilty on a balance of
probabilities. Moreover, the charge made it clear to them that the standard of proof beyond a
reasonable doubt is inextricably linked to the presumption of innocence and that this burden never
shifts to the accused. In light of the trial judge's compliance with the bulk of the principles
enunciated in Lifchus, the charge was not automatically vitiated by the failure to include a specific
item mentioned in Lifchus or by the inclusion of an improper item.

Per McLachlin C.J. and Bastarache J. (dissenting): L'Heureux-Dubé J.'s reasons on the issues of B's
out-of-court identification and the charge to the jury on reasonable doubt were agreed with, as
were her findings that the victim C's statement that he intended to do an Autopac scam with the
accused later the night of the murder was admissible and that the trial judge's charge to the jury
adequately warned them of the dangers associated with this evidence.

The following principles govern the admissibility of hearsay evidence: (1) Hearsay evidence is
admissible if it falls under an exception to the hearsay rule; (2) The exceptions can be interpreted
and reviewed as required to conform to the values of necessity and reliability that justify
exceptions to the hearsay rule; (3) Where the evidence is admissible under an exception to the
hearsay rule, the judge may still refuse to admit the evidence if its prejudicial effect outweighs its
probative value; (4) Where evidence is not admissible under an exception to the hearsay rule, the
judge may admit it provided that necessity and reliability are established. C's statement that he
intended to do an Autopac scam with the accused later that night is a statement of present
intention. Statements of present intention presented for the truth of their contents (i.e., to permit
inferences as to what the person in fact did) are admissible, provided they were not made in
circumstances of suspicion. There were no circumstances of suspicion here that precluded the trial
judge from admitting C's statement that he was doing an Autopac scam with the accused later that
night. The statement should accordingly be admitted as evidence of what the deceased intended to
do at the time he made the statement. While a statement of joint intention [page154] cannot
support an inference as to the state of mind of the third party, in some circumstances it can be
fairly considered along with other evidence in deciding what the third party did. C's statement may
thus be viewed as one piece of circumstantial evidence supporting the inference that the accused
was with C later that night. It may be that where the only source of inference as to the third
party's conduct is the statement of joint intention, it would be unsafe to permit the jury to rely on
it for that purpose. When this occurs, the jury should be so directed. This was not such a case; the
statement was merely one of a matrix of circumstances that the jury could consider in determining
whether the accused met C later that night as C stated was their common intention. Accordingly,
the trial judge was not required to tell the jury that they could not consider the statement on the
question of what the accused in fact did. While a more complete warning as to the danger of
drawing inferences on actual conduct from statements of joint intention would have been
preferable, the trial judge's instruction to the jury that it was "for [them] to decide whether the
evidence of [C's] statement about the scam goes as far as the Crown would have [them] believe"
could have left the jury in no doubt that they must not facilely jump from C's statement to the
conclusion that C and the accused actually met later that evening. The matter was fairly put to the
jury and no new trial is required on this ground.

R. v. J.H.S., 2008 SCC 30

Appeal by the Crown from decision of the Nova Scotia Court of Appeal setting aside the conviction
of the respondent for the sexual assault of his stepdaughter. The respondent was tried before a
judge and jury. The issue at trial was whether the alleged events had ever happened. The
complainant and the respondent were the principal witnesses. The trial judge charged the jury on
the credibility of the witnesses and specifically instructed the jury that the trial was not a choice
between two competing versions of events. The jury returned a verdict of guilty. A majority of the
Court of Appeal set aside the conviction and ordered a new trial on the basis that the jury was not
clearly instructed by the trial judge that lack of credibility on the part of the respondent did not
equate to proof of his guilt beyond a reasonable doubt as required by R. v. W. (D.).

HELD: Appeal allowed and conviction restored.

A general instruction on reasonable doubt without adverting to its relationship to the credibility or
lack of credibility of the witnesses left open too great a possibility of confusion or
misunderstanding. It had to be made crystal clear to the jury that the burden never shifted from
the Crown to prove every element of the offence beyond a reasonable doubt. Where credibility was
important, the trial judge's instructions could not leave the jury with the impression that it had to
choose between the two versions of events. Lack of credibility on the part of the respondent did
not equate to proof of his or her guilt beyond a reasonable doubt. When read as a whole, the
charge did not leave the jury with any misapprehension as to the correct burden and standard of
proof to apply. The trial judge explained that any reasonable doubt had to be resolved in favour of
the respondent. She explained that even if they did not accept all of the respondent's testimony,
they could still accept some of it. She also told the jury that they could not decide the case simply
by choosing between the evidence of the complainant and that of the respondent. She reminded
the jury, in that context, that they had to consider all of the evidence when determining
reasonable doubt. The charge was sufficient.
R. v. D.(J.), (2002 CANLII 16805 (Onc. C.A.)
D(j) a minor

[1]               On this appeal, the court must interpret s. 72(1) of the Criminal Code, R.S.C.
1985, c. C-46.  The section creates the longstanding, but seldom prosecuted, offence
of forcible entry.

II

[2]               The appellant was charged with break and enter, assault and forcible entry. 
The first two charges related to a break-in at the home of Mr. Koon Ming Tse.  The
third charge arose out of events at the home of Ms. Violet Bernard.  The appellant was
acquitted on counts 1 and 2, convicted on the charge of forcible entry and sentenced to
one day in jail followed by eighteen months probation.  He appeals his conviction
only. 

[3]               After receiving a report of a break and enter, two police officers with a police
dog attended at the scene of the alleged break in.  The dog picked up a scent and
followed it to a nearby park where the police officers saw the appellant, who matched
the general description of the intruder that had been provided to the police by the
victim.  The officers told the appellant to stop, but he walked away quickly after
looking in their direction.  With the officers and their dog in close pursuit, the
appellant walked to the front door of 157 Horseley Hill Drive, the residence of Violet
Bernard.  The appellant knocked and Mark, Ms. Bernard’s twelve year old son,
answered the door.  He recognized the appellant as a person he had spoken to in the
park on previous occasions.  The appellant said “Hi” and Mark let him into the house. 
The appellant then said “Pretend I live here”.  He walked to the back door, found it to
be blocked by a couch, and after observing a police officer waiting outside at the back
of the house, the appellant proceeded upstairs.

[4]               Ms. Bernard testified that Mark woke her up to tell her that the police were at
the door.  She spoke to the police who asked her, “Where’s the little boy that ran
through the house?”.  Ms. Bernard invited the police officers into her home.  They saw
the appellant coming down the stairs and placed him under arrest without incident.

[5]               Ms. Bernard knew the appellant by name and knew that he was an
acquaintance of two of her daughters.  He had been in her home before.  She was not
surprised that the appellant was in her house on that day, although she did not know
he was present until after the police had entered her home.

[6]               In his reasons, the trial judge observed that s. 72(1) did not require the actual
use of force upon entry.  In describing the ambit of the section, he said:
 It says “a person who commits forcible entry” and it goes
on to define it, and that includes situations where what we
usually mean by “force” is not used, such as peacefully
walking into a property or a place of residence when the
surrounding circumstances give rise to a reasonable
apprehension of a breach of the peace.

[7]               After reviewing Mark’s evidence in some detail, the trial judge concluded:
Okay, so we have [J.D.] coming in saying, “Pretend I live
here,” and that very sentence would spark in an adult some
concern that the young man, [J.D.], is running away from
some situation or is in some kind of trouble, and this,
coupled with the fact that he was in fact being pursued by
the police, including a dog, in all of these circumstances
coupled with the fact that he did not have permission by
the owner Violet Bernard to be there in all of these
circumstances I am satisfied and I am not persuaded by the
defence submissions.  I am satisfied that the Crown has
proved the third count on the Information beyond a
reasonable doubt and that this situation in these
circumstances does fall within section 72(1) of
the Criminal Code and that it is a situation where there
should be a reasonable apprehension of a breach of the
peace and there will be a guilty finding on the first count.

III

[8]               Section 72 of the Criminal Code reads:

[9]               The approach to be taken in interpreting provisions of the Criminal Code is

well established.  In R. v. Jarvis (2002), SCC 73 at para. 77, the court said:
The approach to statutory interpretation can be easily
stated:  one is to seek the intent of Parliament by reading
the words of the provision in context and according to
their grammatical and ordinary sense, harmoniously with
the scheme and the object of the statute …

[10]         The French and English versions of s. 72 are equally authoritative.  They
should be read together to discern their shared meaning:  R. v. Jarvis, supra, at para.
79;  R. v. Mac (2002), 2002 SCC 24 (CanLII), 163 C.C.C. (3d) 1 (S.C.C.);  Schreiber
v. Canada (Attorney General) (2002), SCC 62 at para. 54.

[11]         There are two distinctions between the French and English versions which take
on some importance in the interpretative exercise.  Section 72(1) in the English
version uses the word “enters” to describe the prohibited conduct, while the French
version uses the phrase “prend possession”.  The word “enters” can refer to a purely
physical act.  However, the phrase “prend possession” suggests the taking of some
form of control over the property.[1]

[12]         The second distinction between the two versions appears in s. 72(1.1).[2]  The
closing words of the English version declare that it is immaterial whether the person
entering the property “has any intention of taking possession of the real property”. 
The French version uses the phrase “s’emparer définitivement” meaning “to seize”
“for good” or “definitely”:  Collins-Robert French English Dictionary 2nd ed.

[13]         The English version, viewed in isolation, suggests that any intention to take
possession of the property, no matter how fleeting or qualified, is immaterial to
liability under the section.  The French version speaks of a more specific and limited
concept of possession.  That version declares that it is immaterial whether the person
entering the property intended to take over the property. 

[14]         The two differences between the French and English versions become
significant when s. 72 is placed in its historical context.  The French version is truer to
the crime’s historical roots.  Forcible entry was a crime at common law.  There was,
however, some uncertainty as to whether it prohibited the taking of possession of real
property by force from another where the person taking that possession had some
legal right to it:  J.W. Turner, Russell on Crime, 12th ed. vol. I, (London:  Stevens &
Sons, 1964) at 279.  Statutes were enacted as early as the fourteenth century
prohibiting the use of force to take real property from a person in possession of that
property, even where there was a legal right to take possession.  The Forcible Entry
Act, 1381 (U.K.) 5 Richard II, c. 7[3] provided:
[N]one from henceforth make any entry into any lands and
tenements, but in case where entry is given by the law, and
in such case not with strong hand, nor with multitude of
people, but only in peaceable and easy manner.

[15]         Attempts to take possession of real property by force from another person in
actual  possession invited violent confrontations which posed a real risk to the public
peace.  The forcible entry statutes looked to preserve public order by restraining those
who would use force to assert property rights against others in actual possession of
real property:  R. v. Mountford, [1971] 2 All E.R. 81 at 83 (C.A. Crim. Div.);  R. v.
Campey (1910), 1912 CanLII 717 (QC CA), 20 C.C.C. 492 at 494-95 (Alta. Dist.
Ct.);  R. v. Czegledi (1931), 1931 CanLII 246 (SK CA), 55 C.C.C. 114 at 115 (Sask.
C.A.).

[16]         In Article 79 of his Digest of the Criminal Law, published in 1877, Sir James
Stephen described the common law crime of forcible entry in these terms:[4]
 Everyone commits the misdemeanor called the forcible
entry, who, in order to take possession thereof, enters upon
any lands or tenements in a violent manner, whether such
violence consists of actual force applied to any other
person or in threats, or in breaking open any house, or in
collecting together an unusual number of people for the
purpose of making such entry. 
It is immaterial whether the person making such an entry
had or had not a right to enter, provided that a person who
enters upon land or tenements of his own, but which are in
the custody of his servant or bailiff, does not commit the
offence of forcible entry [emphasis added].[5]

[17]         The crime of forcible entry appeared as s. 89(1) in the first Criminal Code:[6]
Forcible entry is where a person, whether entitled or not,
enters in a manner likely to cause a breach of the peace, or
reasonable apprehension thereof, on land then in actual
and peaceable possession of another.

[18]         Although the language of s. 89(1) did not track that used by Sir James
Stephens in his Digest, the Criminal Code offence, like the common law crime, was
clearly designed to preserve public peace by prohibiting potentially violent
confrontations over entitlement to land between those claiming possession and those
in actual possession.  That purpose is apparent from the placement of s. 89 in Part II of
the Criminal Code (Offences Against Public Order, Internal and External), the express
indication that entitlement to entry was irrelevant to liability, and the requirement that
the manner of entry precipitate a breach of the peace or a reasonable apprehension of a
breach of the peace. 

[19]         No doubt because the Criminal Code provision shares the same purpose as the
common law offence, several appellate authorities have interpreted the Criminal
Code provision as a codification of Stephen’s definition of forcible entry despite the
differences in the language used in Stephen’s Digest and the Criminal Code:  R. v.
Pike (1898), 1898 CanLII 116 (MB CA), 2 C.C.C. 314 at 316, 319 (Man. Q.B.);  R. v.
Gordon (1947), 1947 CanLII 424 (BC CA), 88 C.C.C. 413 at 415 (B.C.C.A.);  R. v.
Scribner, 1968 CanLII 851 (NB CA), [1968] 4 C.C.C. 126 at 128 (N.B.S.C. App.
Div.).  For example, in R. v. Pike, supra, Killam J. said at p. 316:
Our Code, defines forcible entry, as where a person
“enters” on land in the actual and peaceable possession of
another, etc.  I think, in view of what I take, in the absence
of authority to the contrary, to have been the previous law,
that “entering” in the Code is not merely going upon land
or trespassing upon it, but there must accompany the act of
going upon the land some intent to take possession of the
 land itself and deprive the possessor the land, and that
such an interference with the possession as trespassing
upon it for the purpose of taking away chattels upon the
land is not an “entering” within the Code [emphasis
added].

[20]         The phrase “prend possession” in the French version of the current Criminal
Code captures the definition of “enters” favoured in R. v. Pike, supra, and the other
authorities.  It is also consistent with the common law concept of forcible entry.  In
addition, the requirement in s. 72(1) that the real property be in the actual and
peaceable possession of another at the time of the entry indicates that the prohibited
entry must interfere with the peaceable possession of the person in actual possession
at the time of the entry.  The common meaning of the French and English versions
of s. 72(1) speaks of more than a mere physical entry upon the property.  Read
together, I think, the two versions require a taking of possession in the sense of some
interference with the peaceable possession of the person in actual possession of the
real property at the time of the entry.  As Martin J.A. put it in R. v. Czegledi, supra, at
116:
The gist of the offence is the forcible depriving another
person of actual and peaceable possession in a manner
likely to cause a breach of peace.

[21]         My reading of s. 72(1) also assists in arriving at the shared meaning of s.
72(1.1).  While the English version speaks of an intention to take possession of the
property as being immaterial, the French version speaks of an intention to take over
the property for good or definitely as immaterial.  An interpretation of the provisions
which requires a taking of possession in the sense of an interference with the
peaceable possession of the person in actual possession, but does not require an
intention to take over possession of the property is consistent with the French and
English versions of the sections and the purpose of the section.  For example, an
intruder who forces his or her way into a home over the objection of the person in
actual possession intending only to run through the house and out the back door would
have no intention of taking over possession of the residence in any permanent sense. 
The intruder’s conduct would, however, interfere, albeit briefly, with the owner’s
peaceable possession of the residence.  On my reading of s. 72(1) and s. 72(1.1), the
fact that the intruder intended only to run through the house and out the back door
would not foreclose conviction for forcible entry since there was a taking of
possession in that there was an interference, albeit a brief one, with the peaceable
possession of the person in actual possession of the property:  see R. v.
Nickerson, [1997] B.C.J. No. 3121 (B.C. Prov. Ct.) at para. 31. 

[22]         In addition to the requirement of a taking of possession as I have described

it, s. 72(1) also requires that the taking of possession be done “in a manner” likely to
cause a breach of the peace or a reasonable apprehension of a breach of the peace. 
The section does not address breaches of the peace which may have some causal
connection to the taking of possession of the property, but are not associated with the
manner in which possession was taken.  The breach or the apprehended breach must
flow from the manner in which possession of the real property is taken and not from
subsequent events.  As was said in R. v. Campey, supra, at 495:
By these terms and from the context, I conceive a breach
of the peace or apprehension thereof as a present incident
existing or occurring at the time of entry, not something to
result or to be apprehended in the future. 

[23]         The direct link between the manner in which possession is taken and the
breach or apprehended breach of the peace found in the language of s. 72(1) is
consistent with the purpose underlying the offence, that being to prevent breaches of
the peace which can arise from confrontations between those seeking to take
possession of real property and those in actual and peaceable possession of that real
property. 

[24]         The appellant’s entry into Ms. Bernard’s residence was not accompanied by
any force, violence, or threat of force or violence.  He had been in the residence before
and was allowed into the residence by a person who had authority to grant him entry. 
The appellant was not even a trespasser as long as he was not asked to leave by Ms.
Bernard.  On these facts, there is no basis for concluding that the appellant took
possession of the residence when he entered it in the sense that he interfered in any
way with the peaceable possession of the residence by Ms. Bernard and her family. 

[25]         There is also no evidence that the manner in which the appellant entered the
Bernard residence was such as to create any possibility that his entry or presence in
the residence would be resisted by anyone thereby resulting in a breach of the peace or
a reasonable apprehension of a breach of the peace.  There was a possibility of a
breach of the peace if the police entered the Bernard residence in pursuit of the
appellant and he resisted any attempt to remove him.  Had that breach of the peace
eventuated, it would not have been a product of the manner in which the appellant
entered the Bernard residence, but would instead have been the consequences of
events that occurred after his entry and unrelated to the Bernards’ continued peaceable
possession of the property.  

IV

[26]         The evidence offered by the Crown was incapable in law of proving the
offence of forcible entry.  I would allow the appeal, set aside the conviction on the
charge of forcible entry and enter an acquittal. 
R. v. Mac, [2002] 1 SCR 856.
Ambiguity arising from English version of Criminal Code resolved by clear language in French
version .

Fagan v Metropolitan Police Commissioner, [1969] 1 QB 439

Facts:
The defendant (Fagan) accidentally drove his car onto a policeman’s (V) foot
and,  when he became aware of this, he intentionally took his time moving the
car in order to cause further pain. The problem was that when performing the
Actus Reus (driving onto the foot) D lacked Mens Rea, but when he gained
Mens Rea (intentionally causing pain) these acts were already complete. Hence
the defendant was accused of assaulting a police officer under Section 51 of the
Police Act 1964.

Issue:
The main issue in Fagan v Commissioner of Police of the Metropolis [1969] 1
QB 439:
Was this offence committed by omission ?
Held:
No. The Divisional Court agreed that assault cannot be committed by an
omission. However, in this case, the crime was not an omission to move the car;
rather, it constituted a continual act of battery. The offence was not complete
until the moment Fagan realised that he had driven onto the foot of the officer
and, in deciding not to cease this continuous act, formed an intent amounting to
the mens rea for common assault. Because of the fact that both Actus Reus and
Mens Rea were present,  Fagan’s conviction of assault was upheld.
R v. Gunning [2005] 1 SCR 627

The accused fatally shot C, a person unknown to the accused who had entered his home uninvited
during a party. The accused denied that he intended to kill C. Although his memory was sketchy
due to his consumption of alcohol, he testified that C had assaulted him and refused to leave his
house after they had argued. He claimed that he was scared, so he took out and loaded the
shotgun to intimidate C into leaving. He testified that the gun discharged accidentally. The focus of
the trial was on whether the shooting was intentional or accidental. The trial judge, however,
instructed the jury that the offence of careless use of a firearm had been made out and he refused
to instruct the jury on defence of property. Later in his charge, he purported to correct the
impugned instruction on careless use of a firearm. The accused was convicted of second degree
murder. The Court of Appeal upheld the conviction.

[page628]
Held: The appeal should be allowed. The conviction should be set aside and a new trial ordered.
The trial judge erred in instructing the jury that the Crown had proven the "unlawful act"
necessary to prove murder or manslaughter and his recharge did not cure the error. 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. In this case, if the
jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would
be the shooting itself and the accused would be guilty of murder. If the Crown failed to prove an
intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful act
of careless use of a firearm. If the jury had a reasonable doubt on this question, he was entitled to
an acquittal. In finding that the accused's use of the firearm was careless within the meaning of s.
86 of the Criminal Code, and an unlawful act that caused the death of C, the trial judge encroached
on the exclusive domain of the jury. That issue, together with the question of intent to kill, were
central in this trial. It was incumbent upon the trial judge to instruct the jury on the law in respect
of the careless use of a firearm, including any defences that arose on the evidence, and to leave
for the jury the application of the law to the facts. [para. 5] [paras. 21-22] [para. 35]
The trial judge also erred in failing to instruct the jury on the defence of house or property under
s. 41 of the Criminal Code. The accused advanced the defence in respect of his use of the firearm
prior and up to what he alleged to have been an accidental shooting. On the evidence, this defence
raised a real issue for the jury to decide, but the jurors were never told that a person is entitled at
law to forcibly remove a trespasser from his home, so long as he uses no more force than
necessary. They were directed, as a matter of law, that the accused's conduct before the shooting
was the unlawful act of careless use of a firearm. The trial judge effectively determined the merits
of the defence, a matter that was for the jury to resolve. [para. 6] [para. 22] [paras. 37-38]
[page629]

In view of the fact that the jury was not properly instructed in respect of matters fundamental to
the defence, reliance cannot be placed on the verdict to conclude that there is no reasonable
possibility that the verdict would have been different without these errors. [para. 7]

R v King, [1962] SCR 746

The accused went to his dentist by appointment to have two teeth extracted. He was injected with
a drug known as sodium pentothal, a quick-acting anaesthetic. Earlier, he had been required to
sign a printed form containing a warning not to drive after the anaesthetic until his head had
cleared. After he regained consciousness, the nurse in attendance, to whom he appeared to be
normal, warned him not to drive until his head was "perfectly clear". He replied that he intended to
walk. The accused said that he heard no such warning and did not remember signing any form
containing a warning. He remembered getting into his car and that while driving he became
unconscious. His car ran into the rear of a parked vehicle. Medical evidence was given that his
mental and physical condition (he was staggering and his co-ordination was poor) was consistent
with the after-effects of the drug in question which may induce a state of amnesia accompanied by
a period during which the subject may feel competent to drive a car and in the next second be in a
condition in which he would not know what was happening. The accused stated that he did not
know anything about this drug.

He was charged and convicted of the offence of driving a motor vehicle while his ability to do so
was impaired by a drug, contrary to s. 223 of the Criminal Code. After a trial de novo before a
County Court judge under s. 720 of the Code, his conviction was affirmed. The Court of Appeal
granted him leave to appeal and quashed the conviction. The Crown was granted leave to appeal
to this Court on the question as to whether mens rea relating to both the act of driving and to the
state of being impaired was an essential element of the offence.

  Held: The appeal should be dismissed.  

Per Taschereau J.: There can be no actus reus unless there is a willpower to do an act whether the
person knows or not that it is prohibited by law. In the present case, intention was not to be
confused with mens rea. Intention is an element of the offence in question only when the offender
voluntarily takes liquor or a drug. There must be an act proceeding from a free will which may
bring about the mental condition necessary to meet the requirements of s. 223. When a doctor has
given an injection of a drug to a patient, who is not aware of the state of mind it may produce,
there is no volitive act done by the patient and he could not be convicted under s. 223.

Per Locke and Judson JJ.: The question of law propounded did not arise upon the facts found at
the trial de novo by the County Court judge who found as a fact that the accused knew that he
had had a drug and that he was warned not to drive after the anaesthetic, but did not find that the
accused's condition was such that he could not appreciate the warnings given to him. The Court of
Appeal found that the accused believed that the drug did not possess properties which would
impair or were likely to impair his ability to drive or that he was led to believe and honestly
believed that the drug could not have the effect of impairing such ability. These findings were
directly in conflict with those of the trial judge. However, as the Crown did not ask leave to appeal
on the ground that the Court of Appeal had exceeded its jurisdiction and that question was not
argued, the proper course was to dismiss the appeal.

Per Martland and Ritchie JJ.: The enactment of s. 223 of the Criminal Code added a new crime to
the general criminal law, and neither the language in which it was enacted nor the evil which it
was intended to prevent are such as to give rise to a necessary implication that Parliament
intended to rule out mens rea as an essential ingredient of the crime therein described. When it
has been proved that a driver was driving while his ability was impaired by alcohol or a drug, a
rebuttable presumption arises that his condition was voluntarily induced. But if it appears that the
impairment was produced as a result of using a drug in the form of medicine on a doctor's order or
recommendation and that its effect was unknown to the patient, the presumption is rebutted.
Mens rea need not necessarily be present in relation both to the act of driving and to the state of
being impaired in order to make the offence complete. The defence that the accused became
impaired through no act of his own will and could not reasonably be expected to have known that
his ability was impaired or might thereafter become impaired when he undertook to drive and
drove his motor vehicle, was a good defence in this case.

APPEAL from a judgment of the Court of Appeal for Ontario [[1961] O.W.N. 37, 34 C.R. 264, 129
C.C.C. 391.], reversing the conviction of the accused. Appeal dismissed.

W.C. Bowman, Q.C., for the appellant. Irving Himel, Q.C., for the respondent.

Solicitor for the appellant: W.C. Bowman, Toronto. Solicitor for the respondent: I. Himel, Toronto.
R. v. Peterson, [2005] 2005 CanLII 37972 (Ont. C.A.)
Appeal by Peterson from conviction and sentence for failing to provide necessaries of life to his
father, thereby endangering his father's life. Peterson's father lived in the same building, a three-
storey house, as Peterson. Peterson occupied the second floor apartment and his father lived in
the basement and first floor apartment. Joyce lived in the third floor apartment. Peterson kept the
doors between the apartments locked. His father's apartment lacked a working kitchen, and was
filled with cockroaches. His daughter assumed he was eating with Peterson but he was not. He did
not have a working toilet. The basement had a dirt floor that was covered with dog feces. The bed
had no sheets on it. Peterson's father did not know how to dress himself appropriately, and did not
wash his clothes. Neighbours testified Peterson made fun of his father. His father repeatedly
locked himself out of his house. He was apprehended by police, who brought him home and
advised Peterson about community agencies that could help him look after his father. Peterson did
not contact any of the agencies. Peterson's father was hospitalized after collapsing on a street. It
was apparent he was not eating or bathing. He was released. Two days later, a gas company
employee found a dead dog at the residence, along with a confused, elderly man. Peterson's father
was found by police, dirty and hungry, and was placed in a nursing home. Peterson's sister
described her father as fiercely independent and contrary. She said he was very stubborn and
would do the opposite of what Peterson told him to do. She claimed Peterson never abused his
father, and tried to care for him by buying him clothes, cutting his hair and doing his laundry.
Although Peterson and his sister had powers of attorney drafted with respect to their father's
financial and personal affairs, they did not execute them because they considered their father well.
Peterson's sister admitted she had not entered the home where Peterson and his father lived for at
least six months. A doctor treating Peterson's father in the nursing home noted he was incontinent
and would not wash or eat without being reminded to do so. He considered him in the early stages
of Alzheimer's disease and suffering from dementia. The trial judge concluded Peterson's father
was in Peterson's charge while living at the same address, and that he was incapable of
withdrawing from Peterson's care due to his Alzheimer's and dementia. Peterson's father was
unable to provide necessaries of life for himself. The judge concluded Peterson failed in his duty to
provide his father with necessaries of life, and thereby endangered his life. Peterson was
sentenced to six months' imprisonment, two years probation and 100 hours of community service.

HELD: Appeal dismissed.

Peterson's father was dependent. Peterson had a familial relationship with his father and was
aware of his father's dependency. Peterson controlled his father's living conditions, and kept him in
an unsafe environment. He had control over his father's personal care, and chose not to make
decisions that would ensure his father was provided with the necessaries of life. Because she had
not recently been in the home, Peterson's sister was not in a position to testify about whether
Peterson failed to provide the necessaries of life to his father. The sentence imposed was
appropriate considering the length of time over which Peterson neglected his father's needs, and
the breach of a position of trust.

R. v. Browne, (1997), 1997 CanLII 1744 (Ont. C.A.)

The accused and his friend and fellow drug dealer G were stopped by police and
searched for drugs. No drugs were found and they were released. G had swallowed
a plastic bag containing crack cocaine to avoid its detection. After she and the
accused were released, she tried unsuccessfully to throw up the bag. The two then
spent almost an hour looking for the accused's partner to warn him about the police
raid. The accused then took G home with him. An hour or two later, G showed
signs of being very ill and the accused told her that he was going to take her to the
hospital. He called a taxi, which arrived about 15 minutes later. G died shortly after
arriving at the hospital. The accused was charged with criminal negligence causing
the death of G by failing to render assistance to her by taking her immediately to
hospital after undertaking to render such assistance. The trial judge concluded that
the accused's statement that he would take G to hospital constituted an
"undertaking" within the meaning of s. 217 of the Criminal Code and that by using
a taxi instead of calling 911, the accused showed a wanton and reckless disregard
for G's life contrary to s. 219(1) of the Code. The accused was convicted. He
appealed.

Held, the appeal should be allowed.

Section 217 of the Code provides that 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. The legal duty does not flow from the relationship between the parties, as it
does in s. 215. Under s. 217, there is no pre- existing relationship or situation that
creates a legal duty; there must be an undertaking before a legal duty is introduced
into the relationship. The relationship or context is relevant only to the
determination of whether the breach reflected a "wanton or reckless disregard"
under s. 219(1) of the Code, not to whether there was an undertaking under s. 217.

A conviction for criminal negligence causing death carries a maximum penalty of

life imprisonment. The word "undertaking" in s. 217 must be interpreted in this
context. The threshold definition must be sufficiently high to justify such serious
penal consequences. The mere expression of words indicating a willingness to do
an act cannot trigger the legal duty. Nothing short of a binding commitment can
give rise to the legal duty contemplated by s. 217.

The evidence in this case did not disclose any undertaking of a binding nature. His
statement that he would take G to the hospital did not constitute an undertaking
giving rise to a legal duty under s. 217. There being no legal duty, there could be
no breach of s. 219 of the Code.

The trial judge also made numerous findings of fact relevant to the finding of
criminal negligence for which there was no evidentiary foundation, including that
the accused knew when he and G were released by the police that G was or might
be in danger of death, that he took charge of or undertook to take care of G while
the crack cocaine was in her body, that G was in need of immediate medical
attention from the time of ingestion and that the accused knew or should have
known about this, that the calling of the taxi rather than 911 indicated that the
accused was not doing what he could to get to the hospital as quickly as possible,
that G's life could have been saved if 911 had been called, and that the accused
acted deliberately with full knowledge of the risk he took. The absence of
supporting evidence impugned the trial judge's conclusion not only that there was
an undertaking, but also that it was wantonly breached and that it resulted in G's
death. The conviction should be set aside and an acquittal entered.

APPEAL by the accused from his conviction on a charge of criminal negligence

causing death.
Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 215, 217, 219(1)
R. v. Jobidon, [1991] 2 S.C.R
Criminal law — Manslaughter — Assault — Fist fight — Effect of consent — Scope of consent —
Application of common law.

Appeal from a judgment setting aside an acquittal and convicting the appellant for manslaughter.
The appellant and the deceased were involved in a fist fight. The appellant punched the deceased
who fell onto the hood of a car. Unaware that the deceased was unconscious, the appellant
continued to punch the deceased on the head. The victim died as a result of one of the punches
received from the appellant. The trial judge held that the appellant did not intend to kill the
deceased and that he believed that the deceased had consented to a fight. The trial judge held
that the victim's consent negated assault and that there was no criminal negligence.

HELD: Appeal dismissed.

The common law limitations to consent applied in the context of section 265 of the Criminal Code.
Thus the victim's consent to a fist fight did not preclude the commission of an assault under
section 265. The limits on consent to assault vitiated consent between adults to apply force
causing serious bodily harm to each other in the course of a fist fight.

R. v. Mabior, 2012 SCC 47

Appeal by the Crown from the Manitoba Court of Appeal's decision to enter acquittals on four
counts of aggravated assault after the accused had sex with women without disclosing his HIV-
positive status. The accused was charged with nine counts of aggravated sexual assault (and other
related offences), based on his failure to disclose to nine complainants that he was HIV-positive.
The accused claimed that he was under treatment, and that he was not infectious or presented
only a low risk of infection at the relevant times. The trial judge convicted the accused of six
counts of aggravated sexual assault. She acquitted him on the other three, on the basis that
sexual intercourse using a condom when viral loads are undetectable does not place a sexual
partner at "significant risk of serious bodily harm". The accused appealed and the Court of Appeal
varied the trial judge's decision, holding that either low viral loads or condom use could negate
significant risk. This reduced to two the counts on which the accused could be convicted, and the
Court of Appeal entered acquittals on the four remaining counts.

HELD: Appeal allowed in part.

The convictions in respect of three complaints were restored and the appeal in respect of the
fourth complaint was dismissed. A person may be found guilty of aggravated sexual assault under
s. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there
is a realistic possibility that HIV will be transmitted. To obtain a conviction under ss. 265(3)(c) and
273, the Crown must show that the complainant's consent to sexual intercourse was vitiated by
the accused's fraud as to his HIV status. Failure to disclose amounts 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. A significant
risk of serious bodily harm is established by a realistic possibility of transmission of HIV. A realistic
possibility of transmission is negated by evidence that the accused's viral load was low at the time
of intercourse and that condom protection was used. However, the general proposition that a low
viral load combined with condom use negates a realistic possibility of transmission of HIV does not
preclude the common law from adapting to future advances in treatment and to circumstances
where risk factors other than those considered in the present case are at play. The Crown bears
the burden of establishing the elements of the offence - a dishonest act and deprivation - beyond a
reasonable doubt. Where the Crown has made a prima facie case of deception and deprivation, a
tactical burden may fall on the accused to raise a reasonable doubt, by calling evidence that he
had a low viral load at the time and that condom protection was used. With respect to the four
counts at issue, the complainants all consented to sexual intercourse and each claimed that they
would not have consented had they known that he was HIV-positive. The only issue was whether
their consent was vitiated because he did not tell them that he had HIV. The absence of a realistic
possibility of HIV transmission precluded a finding of fraud vitiating consent under s. 265(3) (c). In
the case at hand, no realistic possibility of transmission was established when the accused had a
low viral load and wore a condom. It followed that the appeal should be allowed insofar as the
decision of the Court of Appeal conflicts with this conclusion. The accused had a low viral load at
the time of intercourse with three of complainants, but did not use a condom. Consequently, the
trial judge's convictions on these counts should be maintained. With respect to the remaining
count, the record showed that the accused's viral load was low at the time of sexual relations with
that complainant. When combined with condom protection, this low viral load did not expose that
complainant to a significant risk of serious bodily harm. Consequently, the trial judge's conviction
on this count had to be reversed.

R. v. Smithers, [1978] 1 S.C.R. 506

Appellant and deceased both young hockey players were the leading players in two competing
teams. During the game, which was rough, the players were aggressive and feelings ran high.
Appellant was subjected to racial insults by the deceased and other members of the opposing
team. Following a heated exchange of profanities appellant and deceased were both ejected from
the game. Appellant however indicated that he intended to continue the confrontation and made
repeated threats. The deceased was apprehensive and left the arena at the end of the game.
Outside, appellant caught up with him, attacked him and, though held back managed to kick him
in the abdomen. Death resulted shortly thereafter. The medical evidence indicated that the
deceased had died from asphyxia from aspiration of foreign materials due to vomiting and that the
malfunction of the epiglottis was probably caused by the kick but could have resulted from fear.
Appellant testified he had acted in self-defence but was convicted of manslaughter.

Appellant appealed unsuccessfully and on further appeal, three grounds were urged, first, that the
trial judge failed to delineate clearly the issue as to the cause of death of the deceased and to
relate the evidence to that issue; second, that the Court of Appeal erred in holding that there was
evidence on the basis of which the jury was entitled to find that it had been established beyond a
reasonable doubt that the kick caused the death; and, third, that the charge to the jury on the
matter of self-defence amounted to misdirection.

  Held: The appeal should be dismissed.  

The issue as to the cause of death was properly and sufficiently delineated by the trial judge. The
assault by appellant on the deceased was clearly an unlawful act and there was cogent evidence to
which the jury could apply common sense in considering the issue of causality. The jury was not
limited to medical evidence but had the benefit of uncontradicted evidence of lay witnesses that
appellant kicked the deceased in the stomach area, that this kick caused immediate distress and
that the death followed in minutes. There was therefore evidence upon which the jury was entitled
to convict.

While the medical experts did not speak in terms of absolute certainty the weight to be given to
that expert evidence was a matter for the jury which was entitled to consider all of the evidence
expert and lay. There was substantial evidence before the jury indicating that the kick was at least
a contributing cause of death, outside the de minimis range, and that was all that the Crown was
required to establish. It was immaterial that the death was in part caused by a malfunctioning
epiglottis to the malfunction of which appellant may, or may not, have contributed. A person
commits homicide when directly or indirectly, by any means, he causes the death of a human
being and it was therefore no defence that appellant did not expect that death would ensue. Finally
there could be no criticism of the judge's charge on self-defence. For some considerable time
before the incident appellant alone was the aggressor.
R. v. Maybin, 2012 SCC 24
Appeal by two accused charged with manslaughter from the decision setting aside their acquittals
and ordering a new trial. Late at night, in a busy bar, the appellants Timothy and Matthew Maybin,
repeatedly punched the victim in the face and head. Timothy eventually struck a blow that
rendered the victim unconscious. Arriving on the scene within seconds, a bar bouncer then struck
the victim in the head. While the trial judge was not satisfied that Matthew's assault caused bodily
harm, he found that he was a party to his brother's more serious assault. The medical evidence
was inconclusive about which blows caused death. As a result, the trial judge acquitted the
appellants and the bouncer. The Crown appealed from the acquittals. At issue was whether the
trial judge could have concluded that the appellants caused the death in fact; and if so, whether
the subsequent assault by another person constituted an intervening act that nonetheless broke
the chain of legal causation. The British Columbia Court of Appeal concluded that factual causation
had been established: "but for" the actions of the appellants, the victim would not have died. It
allowed the Crown appeals and ordered a new trial for the appellants, and it dismissed the appeal
from the acquittal of the bouncer.

HELD: Appeal dismissed.

The test for causation in manslaughter was "a contributing cause of death, outside the de minimis
range". The Court had previously recognized that there could be a number of contributing causes
of death. Factual causation was not limited to the direct and immediate cause, nor was it limited to
the most significant cause. The appellants' unlawful acts not only seriously injured the victim, but
also rendered him unconscious on the pool table, where he was subsequently assaulted by the
bouncer. Consequently, the Court of Appeal was correct to conclude that even if the appellants'
actions were not the direct and immediate cause of the victim's death, "but for" their actions, the
victim would not have died. The trial judge erred in the factual causation inquiry. He stopped with
his assessment of the medical cause of death and did not consider the contribution of the
appellants to that result by asking whether the deceased would have died "but for" the actions of
the appellants. With respect to legal causation, neither an unforeseeable intervening act nor an
independent intervening act was necessarily a sufficient condition to break the chain of legal
causation. Similarly, the fact that the intervening act was reasonably foreseeable, or was not an
independent act, was not necessarily a sufficient condition to establish legal causation. Even in
cases where it was alleged that an intervening act interrupted the chain of legal causation, the
causation test remained the same. The question was whether the dangerous, unlawful acts of the
accused a significant contributing cause of the victim's death. It was the general nature of the
intervening acts and the accompanying risk of harm that needed to be reasonably foreseeable.
Legal causation did not require that the accused had to objectively foresee the precise future
consequences of their conduct. Nor did it assist in addressing moral culpability to require merely
that the risk of some non-trivial bodily harm was reasonably foreseeable Rather, the intervening
acts and the ensuing non-trivial harm had to be reasonably foreseeable in the sense that the acts
and the harm that actually transpired flowed reasonably from the conduct of the appellants. If so,
then the accused's actions could remain a significant contributing cause of death. It was open to
the trial judge to conclude that the risk of intervention by patrons and the bouncer was objectively
foreseeable when the appellants commenced a one-sided fight in a crowded bar. Accordingly, the
Court of Appeal was correct in finding that it was open to the judge to find that the intervening act
was reasonably foreseeable in the circumstances of this case. It was also open to the trial judge to
find that the assault of the bouncer was not independent of the appellants' unlawful acts and that
the appellants' actions remained a significant contributing cause of the victim's death.

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 21, s. 222(1), s. 222(5), s. 224, s. 225
R. v. Reid, 2003 NSCA 104
R. v. Stratton, 2002 NSSC 103
Sentencing of Stratton and Reid on convictions for manslaughter. Stratton and Reid were involved
in a fight with the victim, Reid, who was extremely intoxicated. They did not cause any physical
injury. Stratton restrained the victim in a sleeper hold resulting in a loss of consciousness. Other
persons present attempted to administer CPR. These attempts caused the aspiration of Reid's
stomach contents, which was the cause of death. Stratton, aged 24, was not a violent person, was
active in the community and had plans to return to school. He resided with his father and had no
criminal record. Reid, aged 24, performed well at his work. He got along well with other
employees. He accepted that his alcohol abuse played a part in the offence, but did not fully
understand the extent of the abuse and how it affected himself and others. He had a minor
criminal record and three Liquor Control Act violations. He resided with his common-law spouse.
Neither accused accepted full responsibility for Reid's death. They sought conditional sentences.

HELD: Both Stratton and Reid were given conditional sentences of two years less a day, to be
served in the community with punitive conditions of house arrest during the first year, and a
curfew during the second year.

Each was ordered to perform 240 hours of community service. Reid was given an additional two
years probation with an added measure of supervision. The manner of commission of the offence
was characterized as an almost accident which was at the lowest end of the spectrum for
manslaughter. There were no aggravating factors. This was not a case where the need for
denunciation and deterrence was so pressing that incarceration was necessary. Mere probationary
measures were not appropriate. Considering that Stratton had no criminal record and Reid had
only a relatively minor one, and the absence of any history of violence of any sort, a conditional
sentence was appropriate. The safety of the community would not be endangered by permitting
the accused to serve their sentences in the community. A conditional sentence provided significant
denunciation and deterrence with the onerous conditions imposed.

R. v. Cribbin, [1994] O.J. No. 477

R. v. Harbottle, [1993] 3 SCR 306

Appellant together with a companion forcibly confined a young woman. After his companion
brutally sexually assaulted her and subjected her to a litany of atrocities while appellant watched,
appellant and his companion discussed ways of killing her "nicely". When her struggling prevented
their slashing her wrists, they decided to strangle her. Appellant held the victim's legs to prevent
her from continuing to kick and struggle while his companion strangled her -- her hands were tied.
The trial judge told the jury that she had difficulty pointing to evidence of planning and
deliberation and also charged them on the basis that murder in the first degree could have
occurred while the victim was being sexually assaulted or forcibly confined. Since it was impossible
to know on which basis the jury reached its verdict of guilty, the charge with respect to s. 214(5)
(now s. 231(5)) of the Criminal Code had to be correct in order to obviate a new trial. The
conviction was upheld at the Court of Appeal where it was conceded that appellant was a party to
the murder while participating in her forcible confinement and sexual assault. At issue here was
whether appellant's participation was [page307] such that he can be found guilty of first degree
murder pursuant to s. 214(5).

  Held: The appeal should be dismissed.  

Given that appellant and his companion discussed ways of killing their victim "nicely", there was
ample evidence upon which the jury could have found that the murder was planned and
premeditated by both appellant and his companion.

The question of causation under s. 214(5) "does not require a determination of who is a party to
the commission of a particular offence" under s. 21. The broad wording of s. 21 makes a
consideration of fine distinctions between first and second degree principals to a crime and
between accessories before and after the fact unnecessary and inappropriate.

Parliament included a causation requirement in s. 214(5) with the words "when death is caused by
that person". This phrase is more than an adoption by reference of the phrase (in s. 212(a), now
s. 229(a)) "where a person who causes the death of a human being" means to cause his death.
The words in s. 214(1), do not compel the extremely narrow interpretation that the subsection
only applies to a person who diagnostically occasioned the victim's death. The word "caused" is
broad enough to include both perpetrators and those who assist in the murder and comes within
the purview of the substantial cause test.

First degree murder is an aggravated form of murder and not a distinct substantive offence.
Section 214(5) is a sentencing provision to be considered after the jury has found the accused
guilty of murder. The gravity of the crime and the severity of the sentence both indicate that a
substantial and high degree of blameworthiness, above and beyond that of murder, must be
established in order to convict an accused of first degree murder.

The test of causation for s. 214(5) must be a strict one, given the consequences of conviction for
first degree murder and given the wording of the section. An accused may only be convicted under
the subsection if [page308] the Crown establishes that he or she has committed an act or series of
acts which are of such a nature that they must be regarded as a substantial and integral cause of
the death.

Causation occurs when an act or a series of acts (in exceptional cases an omission or series of
omissions) consciously performed by the accused is or are so connected with the event that it or
they must be regarded as having a sufficiently substantial causal effect which subsisted up to the
happening of the event, without being spent or without being in the eyes of the law sufficiently
interrupted by some other act or event. The accused must play a very active role -- usually a
physical role -- in the killing. Under s. 214(5), the actions of the accused must form an essential,
substantial and integral part of the killing of the victim. Obviously, this requirement is much higher
than that necessary for manslaughter.

Physically causing the death of the victim will in most cases be required to convict under s. 214(5).
However, while the intervening act of another will often mean that the accused is no longer the
substantial cause of the death under s. 214(5), there will be instances where an accused could well
be the substantial cause of the death without physically causing it.

An accused may be found guilty of first degree murder pursuant to s. 214(5) if the Crown has
established beyond a reasonable doubt that: (1) the accused was guilty of the underlying crime of
domination or of attempting to commit that crime; (2) the accused was guilty of the murder of the
victim; (3) the accused participated in the murder in such a manner that he or she was a
substantial cause of the victim's death; (4) there was no intervening act of another which resulted
in the accused no longer being substantially connected to the death of the victim; and, (5) the
crimes of domination and murder were part of the same series of events. It would be appropriate
to charge a jury in those terms.

All of the elements of the test were established by the evidence. Had appellant not held her legs,
the victim probably would have been able to resist the attempts to strangle her.

The directions to the jury by the trial judge were eminently fair and adequately covered all the
requisite elements [page309] of the offences of domination, murder and first degree murder.
R v Nette, [2001] 3 S.C.R 488
A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed
with a garment around her head and neck. Sometime during the next 48 hours, she died from
asphyxiation. During an RCMP undercover operation, the accused told a police officer that he had
been involved in the robbery and death. The accused was charged with first degree murder under
s. 231(5) of the Criminal Code -- murder while committing the offence of unlawful confinement --
and tried before a judge and jury. At trial, he claimed that he had fabricated the admission. He
testified that he had gone alone to the victim's house only with intent to break and enter, that the
back door to the house was open as though someone already had broken into the home, and that
he [page489] left after finding the victim already dead in her bedroom. The trial judge charged the
jury on manslaughter, second degree murder and first degree murder under s. 231(5) of the Code.
In response to a request from the jury that he clarify the elements of first degree murder and the
"substantial cause" test, the trial judge essentially reiterated his charge. Overall, he charged that
the standard of causation for manslaughter and second degree murder was that the accused's
actions must have been "more than a trivial cause" of the victim's death while, for first degree
murder under s. 231(5), the accused's actions also must have been a "substantial cause" of her
death. On two occasions, however, once in the main charge and once in the re-charge, he
described the standard of causation for second degree murder as "the slight or trivial cause
necessary to find second degree murder" instead of "more than a trivial cause". The jury found the
accused guilty of second degree murder and the Court of Appeal upheld that verdict. The only
ground of appeal both before the Court of Appeal and this Court concerned the test of causation
applicable to second degree murder.

Held: The appeal should be dismissed. The jury's verdict of second degree murder is upheld.

Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Responsibility for causing a result, in this case
death, must be determined both in fact and in law. Factual causation concerns how the victim
came to death in a medical, mechanical, or physical sense and the accused's contribution. Legal
causation concerns the accused's responsibility in law and is informed by legal considerations such
as the wording of the offence and principles of interpretation. These considerations reflect
fundamental principles of criminal justice. The inquiry to find legal causation can be expressed as
determining whether the result can fairly be said to be imputable to the accused. Although the jury
does not engage in a two-part analysis of causation, the charge to the jury should convey the
requisite degree of factual and legal causation. The starting point is usually the unlawful act itself.
It will rarely be necessary to charge the jury on the standard of causation if the requisite mental
element for the offence exists because the mens rea requirement usually resolves concerns about
[page490] causation. The law of causation is in large part judicially developed but it is also
expressed in the Criminal Code. Where a factual situation does not fall within a statutory rule of
causation, the criminal common law applies. The civil law of causation is of limited assistance in
elucidating the criminal standard of causation.

It is not appropriate in jury charges to formulate a separate causation test for second degree
murder. The causation standard expressed in Smithers is still valid and applicable to all forms of
homicide. The standard, however, need not be expressed as "a contributing cause of death,
outside the de minimis range". The concept of causation and the terminology used to express that
concept are distinct. Latin expressions or the formulation of the test in the negative are not useful
means of conveying an abstract idea. It is preferable to use positive terms such as "significant
contributing cause" rather than "not a trivial cause" or "not insignificant". Also, because causation
issues are case-specific and fact-driven, trial judges should have discretion to choose terminology
relevant to the circumstances of the case. In the case of first degree murder under s. 231(5) of
the Code, a jury must also consider the additional Harbottle "a substantial causation" standard but
only after finding the accused guilty of murder. This standard, which indicates a higher degree of
legal causation, comes into play at the stage of deciding whether the accused's degree of
blameworthiness warrants the increased penalty and stigma of first degree murder. Such a high
degree of blameworthiness would only be established where the actions of the accused were found
to be an essential, substantial and integral part of the killing of the victim. The Harbottle standard
stresses the increased degree of participation required before an accused may be convicted of first
degree murder under s. 231(5).
The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal
conclusion that there were multiple operative causes of death. In a homicide trial, the question is
not who or what caused the [page491] victim's death but whether the accused caused the death.
The fact that other persons or factors may have contributed to the result may or may not be
legally significant in the trial of the one accused charged with the offence. It will be significant, and
exculpatory, if independent factors, occurring before or after the acts or omissions of the accused,
legally sever the link that ties him to the prohibited result. This case involves neither multiple
causes nor intervening causes nor a thin-skull victim so it was unnecessary to instruct the jury on
the law of causation beyond stating the need to find that the accused caused the victim's death.
However, in relation to the charge of first degree murder under s. 231(5) of the Code, it was
necessary for the trial judge to instruct the jury in accordance with Harbottle.

The trial judge accurately stated the correct standard of causation for second degree murder.
Although, on two occasions, he misspoke in describing the appropriate test, by contrasting the
high standard of causation for first degree murder with "the slight or trivial cause necessary to find
second degree murder", these errors would not have caused the jury to believe that the applicable
standard of causation for second degree murder was lower than the Smithers standard of "more
than a trivial cause". Given that the jury found the accused guilty of second degree murder, it
must be concluded that the jury found that the accused had the requisite intent for the offence of
murder, namely subjective foresight of death. The jury's conclusion with respect to intent could
not have been affected by the instructions on causation. No reasonable jury could have had any
doubt about whether the accused's actions constituted a significant, operative cause of the victim's
death. Whatever the jury's reasons for acquitting the accused of first degree murder, the jury's
verdict of second degree murder is unimpeachable.

Per McLachlin C.J. and L'Heureux-Dubé, Gonthier and Bastarache JJ.: The test for causation for
culpable homicide set out in Smithers should not be changed from "a contributing cause of death,
outside the de minimis range" into "a significant contributing cause". The current language is the
correct formulation and should be used to express the standard of causation to the jury for all
homicide offences. To avoid a Latin expression, an appropriate version would be "a contributing
cause [of death] that is not trivial or insignificant". The terms "not trivial" and "not insignificant"
accurately express a standard [page492] that has withstood the test of time as an authoritative
test of causation. There is no legitimate reasons to reformulate it.

There is a meaningful difference between "a contributing cause [of death] that is not trivial or
insignificant" and a "significant contributing cause". The suggested change in terminology
drastically changes the substance of the causation test and ignores the reason for using a double
negative. A "significant contributing cause" standard calls for a more direct causal relationship
than the "not insignificant" or "not trivial" test, thus raising the threshold of causation for culpable
homicide from where it currently stands. The word "significant" implies an elevated contribution
and is not equivalent to "not insignificant". It is crucial to use exact language because language is
the medium through which law finds expression and language is an outward sign of our legal
reasoning. Trial judges should continue to use the current language of "a contributing cause [of
death] that is not trivial or insignificant" for all homicide offences.
 R. v. Williams, [2003] 2 S.C.R. 134
The complainant and W had an 18-month relationship beginning in June 1991. On November 15,
1991, W learned that he had recently tested positive for HIV. The complainant tested negative
shortly thereafter. W [page135] kept the complainant in the dark about his HIV condition as well
as the fact that he had been tested. Although W was given counselling on at least three different
occasions by two doctors and a nurse about HIV, its transmission, safer practices and his duty to
disclose his HIV status to sexual partners, he continued to practise unprotected sex with the
complainant. 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. At trial, W was convicted of aggravated assault and common nuisance. The Court of Appeal
upheld the conviction for common nuisance but allowed the appeal against the conviction for
aggravated assault, substituting therefor a conviction for attempted aggravated assault.

Held: The appeal should be dismissed.

Where, as here, the Crown alleges an offence predicated on an aggravating consequence, it must
prove the consequence beyond a reasonable doubt. An accused who fails to disclose his HIV-
positive status cannot be convicted of an aggravated assault endangering life in circumstances
where the complainant could already have been HIV-positive. In such circumstances, however, W
was properly convicted of attempted aggravated assault.

While W acted with a shocking level of recklessness and selfishness, the Crown could not show
that sexual activity after November 15, 1991 harmed the complainant, or even exposed her to a
significant risk of harm, because 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. The complainant tested
negative for HIV shortly thereafter, although the expert evidence was that at that date she may
well have been infected with HIV but not yet had [page136] time to develop the antibodies that
would disclose her condition in the test.
To constitute a crime, the actus reus and the mens rea or intent must, at some point, coincide. Here,
however, 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.

The focus of the crime of aggravated assault is on the nature of the consequences rather than on
the nature of the assault. The same act of sexual assault by an HIV-positive accused would
undoubtedly injure or put at risk many potential partners but if, because of a complainant's
particular circumstances, there is a reasonable doubt that the complainant was put in harm's way
by the assault charged, there is no aggravated assault. In this case, there was a reasonable doubt
that the life of the complainant was capable of being endangered after November 15, 1991 by re-
exposure to a virus that she had likely already acquired.

There is nothing in the evidence to suggest that the complainant, believing rightly or wrongly that
she was HIV-free, consented to unprotected sexual intercourse with an HIV-positive partner. At all
relevant times, the complainant believed that both she and W were HIV-free.

W stands properly convicted of attempted aggravated assault. The crime of attempt requires the
Crown to establish the mens rea to commit the crime in question. The intent to commit the crime of
aggravated assault is established for the period after November 15, 1991. As to the actus reus,
failure to prove endangerment of life was fatal to the prosecution in this case of aggravated
assault but it is not fatal to a conviction for attempted aggravated assault. Clearly, W took more
than preparatory steps. He did everything he could to achieve the infection of the complainant by
repeated acts of unprotected intercourse for approximately one year between November 15, 1991
and November 1992, when the relationship ended. The reasonable doubt about the timing of her
actual infection was unknown to both partners. These facts, established in the evidence, are
sufficient to prove the attempt.
[page13

R. v. Buzzanga and Durocher, (1979), 25 O.R. (2d) 705 (Ont. C.A.)

The accused were charged with wilfully promoting hatred against an identifiable group, namely,
the French Canadian public in Essex County, by communicating statements contained in copies of
a certain handbill, contrary to s. 281.2(2) (enacted R.S.C. 1970, c. 11 (1st Supp.), s. 1) of the
Criminal Code. The charge arose out of attempts by the francophone minority in the county to
have the school board build a French-language secondary school. The accused closely identified
with the French Canadian minority. There was a great deal of opposition to the building of the high
school, one of the leading opponents being the chairman of a ratepayers association. The
controversy heightened at the time of the school board elections following which a majority of
members elected opposed the building of the school. The accused were disappointed and at this
time had printed up the handbill in question which they had distributed by two boys. The handbill,
entitled "Wake Up Canadians Your Future Is At Stake!", contained statements such as "You are
subsidizing separatism whether in Quebec or Essex County", "Who will rid us of this subversive
group if not ourselves?" and "The British solved this problem once before with the Acadians, what
are we waiting for ...?". The accused testified that the francophone community seemed "fed up"
with the high school issue and apathetic and they considered that while economics was said to be
the reason for not building the school they considered that the real reason was prejudice. The
accused testified that the purpose of the handbill was to show the prejudice towards French
Canadians and expose the truth. They hoped the handbill would be a catalyst that would bring a
quick solution to the problem. They intended the pamphlet as a satire, to create a furor that would
compel the Government to act. They both denied any intention to promote hatred. While the
pamphlet did not bear anyone's name it had been ordered by one of the accused using the name
of the chairman of the ratepayers association. The trial Judge in his reasons stated that "wilful" in
s. 281.2(2) means "intentional as opposed to accidental" and that "the accused themselves
testified they wished to create controversy, furor and an uproar. What better way of describing
active dislike, detestation, enmity or ill will. The motives of the accused may or may not be
laudable. The means chosen by the accused was the wilful promotion of hatred." On appeal by the
accused from their conviction, held, the appeal should be allowed and a new trial ordered.

While the word "wilfully" may sometimes include recklessness as well as intention when used in
criminal legislation, in the context of s. 281.2(2) it means with the intention of promoting hatred,
and does not include recklessness. This conclusion follows from the arrangement of the legislation
dealing with the incitement of hatred. Thus s. 281.2(1), which prohibits the incitement of hatred in
a public place where such incitement is likely to lead to a breach of the peace, does not contain
the word "wilfully" yet that section being included in the Criminal Code must be taken to import
the necessity of mens rea. The general mens rea which is required where no mental element is
mentioned in the definition of the crime is either the intentional or reckless bringing about of the
result which the law seeks to prevent. The insertion of the word "wilfully" in s. 281.2(2) was not
necessary to import mens rea since that requirement would be implied in any event because of the
serious nature of the offence. The statements proscribed in s. 281.2(2) do not pose such an
immediate threat to public order as those falling under s. 281.2(1), and it is therefore reasonable
to assume that Parliament intended to limit the offence under s. 281.2(2) to the intentional
promotion of hatred. The issue in this case then was what mental attitude must be established to
constitute an intention to promote hatred.

An accused's foresight that a consequence is highly probable, as opposed to substantially certain,

is not the same as an intention to bring it about. However, as a general rule, a person who
foresees that a consequence is certain or substantially certain to result from an act that he does in
order to achieve some other purpose intends that consequence. The person's foresight of the
certainty or moral certainty of the consequence resulting from his conduct compels a conclusion
that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit
regretfully), in order to achieve his ultimate purpose.
In this case then the accused wilfully promoted hatred if (a) their conscious purpose in distributing
the handbill was to promote hatred against the French Canadian community, or (b) they foresaw
that the promotion of hatred against that group was certain or morally certain to result from the
distribution of the pamphlet, but distributed it as a means of achieving their purpose of having the
high school built. The trial Judge erred in holding that "wilfully" means only "intentional as opposed
to accidental" and this error inevitably caused him to focus on the intentional nature of the
accused's conduct rather than on the question whether they actually intended to produce the
consequence of promoting hatred. What the accused intended or foresaw must be determined on a
consideration of all the circumstances, including their own evidence, as to what their state of mind
or intention was. While in some cases the inference from the circumstances that the necessary
intent existed may be so strong as to compel rejection of the accused's denial that he intended the
prohibited consequence, in this case the trial Judge did not reject the accused's evidence and in
fact erred in equating their admitted intention to create controversy, furor or uproar with an
intention to promote hatred. If the accused intentionally promoted hatred against the French
Canadian community as a means of obtaining the school then the offence was proven, but the
accused's evidence, if believed, did not inevitably lead to that conclusion. It was misdirection for
the trial Judge to fail to give appropriate consideration to the accused's evidence on the issue of
intent.

[Hyam v. Director of Public Prosecutions, [1975] A.C. 55, consd; R. v. Senior, [1899] 1 Q.B. 283;
Rice v. Connolly, [1966] 2 Q.B. 414; Willmott v. Atack, [1976] 3 All E.R. 794; R. v. Burnell, [1966]
Qd. R. 348; R. v. Rese, [1968] 1 C.C.C. 363, [1967] 2 O.R. 451, 2 C.R.N.S. 99; R. v. Prue; R. v.
Baril (1979), 46 C.C.C. (2d) 257, 96 D.L.R. (3d) 577, 8 C.R. (3d) 68, [1979] 4 W.W.R. 554, 24
N.R. 470; R. v. Lemon; R. v. Gay News Ltd., [1979] 1 All E.R. 898; R. v. Hetherington (1841), 4
State Tr. N.S. 563; R. v. Mohan (1975), 60 Cr. App. R. 272; R. v. Miller (1959), 125 C.C.C. 8, 31
C.R. 101, 29 W.W.R. 124; R. v. Ahlers, [1915] 1 K.B. 616; Sinnasamy Selvanayagam v. The
King, [1951] A.C. 83; R. v. Steane, [1947] 1 K.B. 997; R. v. Belfon, [1976] 3 All E.R. 46; R. v.
Mulligan (1974), 18 C.C.C. (2d) 270, 26 C.R.N.S. 179; affd 28 C.C.C. (2d) 266, [1977] 1 S.C.R.
612, 66 D.L.R. (3d) 627, 9 N.R. 27, refd to]

Criminal Law — Hate propaganda — Promotion of hatred — Wilful promotion of hatred against identifiable group
— Defence if accused in "good faith" intended to point out for removal matters tending to produce feelings of hatred
towards group — Fact that accused did not act openly or expressly state in communication purpose for its
distribution not depriving accused as matter of law of benefit of exemption — Exemption however provided merely
out of abundant caution and rare that persons could successfully invoke exemption where proved to have "wilfully"
promoted hatred — Cr. Code, s. 281.2(2), (3)(d).

Criminal Law — Hate propaganda — Promotion of hatred — Wilful promotion of hatred against identifiable group
— Charge arising out of handbill distributed by accused — Meaning of document to be gathered from its entirety
and as construed by average person into whose hands it fell — Cr. Code, s. 281.2(2).

APPEAL by the accused from their conviction on a charge of wilfully promoting hatred contrary to
s. 281.2(2) of the Criminal Code.

Marc Rosenberg, for appellant, Robert Buzzanga.

M. Manning, Q.C., and S. Rogin, for appellant, Jean Wilfred Durocher.

D. C. Hunt, for the Crown, respondent.

R v Vaillancourt, [1987] 2 S.C.R. 636

During an armed robbery in a pool hall, appellant's accomplice shot and killed a client. The
accomplice managed to escape but appellant was arrested and convicted of second degree murder
as a party to the offence pursuant to ss. 21(2) and 213(d) of the Criminal Code. Section 213(d)
provides that "Culpable homicide is murder where a person causes the death of a human being
while committing or attempting to commit... [page637] robbery... whether or not the person
means to cause death to any human being and whether or not he knows that death is likely to be
caused to any human being, if... he uses a weapon or has it upon his person during or at the time
he commits or attempts to commit the offence... and the death ensues as a consequence." At his
trial before judge and jury, appellant testified that at the time of the robbery, he was certain that
the gun in possession of the accomplice was not loaded. He stated that they had agreed to commit
the robbery armed only with knives and when, on the night of the crime, the accomplice arrived
with a gun he insisted that it be unloaded. The accomplice removed three bullets from the gun and
gave them to the appellant. Appellant's glove containing the three bullets was recovered by the
police at the scene of the crime. The Court of Appeal dismissed appellant's appeal from conviction.
In this Court, he challenged the constitutional validity of s. 213(d) of the Criminal Code. This
appeal raises two constitutional questions: (1) Is section 213(d) of the Code inconsistent with
either ss. 7 or 11(d) of the Charter and, therefore, of no force or effect? (2) If not, is the
combination of ss. 21 and 213(d) of the Code inconsistent with either ss. 7 and 11(d) of the
Charter and is s. 21 therefore of no force or effect in the case of a charge under s. 213(d)?

Held (McIntyre J. dissenting): The appeal should be allowed and a new trial ordered. The first
constitutional question should be answered in the affirmative. No answer was given to the second
constitutional question.

Per Dickson C.J. and Estey, Lamer and Wilson JJ: Prior to the enactment of the Charter, Parliament
had full legislative powers with respect to criminal law, including the determination of the essential
elements of any given crime. But the Charter has restricted these powers. Under section 7, if a
conviction will result in a deprivation of the life, liberty or security of the person of the accused,
then Parliament must respect the principles of fundamental justice. One of these principles is that
a minimum mental state is an essential element of an offence. However, because of the special
nature of the stigma attached to a conviction for murder, the principles of fundamental justice
require a mens rea reflecting the particular nature of that crime. While the current view of the
justices is that such a conviction cannot rest on anything less than proof beyond a reasonable
doubt of subjective foresight, for the purpose of this [page638] appeal, it is sufficient to say that,
as a principle of fundamental justice, there cannot be a conviction in the absence of proof beyond
a reasonable doubt of at least objective foreseeability.

The presumption of innocence in s. 11(d) of the Charter is offended when an accused may be
convicted despite the existence of a reasonable doubt on an essential element of the offence.
Where Parliament substituted proof of a different element for proof of an essential element, such
substitution is constitutionally valid if, upon proof beyond reasonable doubt of the substituted
element, it would be unreasonable for the trier of fact or a jury not to be satisfied beyond a
reasonable doubt of the existence of the essential element. Therefore, an accused cannot be found
guilty of murder absent proof beyond a reasonable doubt of at least objective foreseeability, and a
murder provision which allows a conviction in the absence of proof beyond reasonable doubt of at
least that essential element infringes ss. 7 and 11(d) of the Charter.

In the present case, s. 213(d) of the Code is prima facie in violation of ss. 7 and 11(d) of the
Charter. The mens rea required for s. 213 consists of the mens rea for the underlying offence and
the intent to commit one of the acts set forth in paras. (a) to (d). Section 213 does not completely
exclude the need to prove any objective foreseeability. Rather, it has substituted for proof beyond
a reasonable doubt of objective foreseeability, if that is the essential element, proof beyond a
reasonable doubt of certain forms of intentional dangerous conduct causing death. But this
substitution is not constitutionally valid because it is still possible that, notwithstanding proof
beyond a reasonable doubt of the matters set forth in paras. (a) and (d), a jury could reasonably
be left in doubt as to whether the accused ought to have known that death was likely to ensue.

Section 213(d) cannot be saved by s. 1 of the Charter. It is clear that Parliament's objective to
deter the use or carrying of a weapon in the commission of certain offences, because of the
increased risk of death, was of sufficient importance for the purpose of s. 1. However, the
measures adopted were not reasonable and demonstrably justifiable. While these measures
appear to be rationally connected to the objective, they unduly impair the rights and freedoms in
question. Indeed, it is [page639] not necessary to convict of murder persons who did not intend or
foresee the death and who could not even have foreseen the death in order to deter others from
using or carrying weapons. If Parliament wishes to deter the use or carrying of weapons, it should,
as in s.83 of the Code, punish the use or carrying of weapons.

Per Beetz and Le Dain JJ.: For the reasons given by Lamer and La Forest JJ., s. 213(d) of the
Criminal Code does not conform to the principles of fundamental justice entrenched in the Charter
and cannot be saved under s. 1. For the reasons given by Lamer J., s. 213(d) also violates s.
11(d) of the Charter and cannot be justified under s. 1. Given these conclusions, it is not
necessary to decide whether there exists a principle of fundamental justice that a conviction for
murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.

Per La Forest J.: Because of the stigma attached to a conviction for murder, the principles of
fundamental justice require a mens rea reflecting the particular nature of that crime, namely one
referable to causing death. In addition to the intention to cause death, this can include a closely
related intention such as intention to cause bodily harm likely to result in death combined with
recklessness as to that result. It is sufficient to say in this case that the mental element required
by s. 213(d) of the Criminal Code is so remote from the intention specific to murder that a
conviction under that paragraph violates fundamental justice. The provision is so broad that under
it a person may be found guilty of murder even though the death was the result of an accident.

Section 213(d) of the Code cannot be saved by s. 1 of the Charter. The objective of discouraging
the use of weapons in the commission of crimes can be achieved by means other than attaching
the stigma of a conviction for murder to a person who has caused death in the circumstances like
those described in the provision.

Per McIntyre J. (dissenting): The two constitutional questions should be answered in the negative.
Parliament has decided that possession and use of weapons in the course of the commission of
offences is a gravely aggravating factor and has chosen to term a killing arising in the
circumstances described in s. 213(d) as [page640] murder. While it may be illogical to
characterize an unintentional killing as murder, no principle of fundamental justice is offended
because serious criminal conduct, involving the commission of a crime of violence resulting in the
killing of a human being, is classified as murder and not in some other manner.

In this case, the accused was properly convicted of murder under the combined effect of ss. 21(2)
and 213(d) of the Code. The terms of s. 21(2) were fully met as there was evidence of the
accused's active participation in the commission of the robbery, the underlying offence. The
section gives expression to a principle of joint criminal liability long accepted and applied in the
criminal law, and there is no basis upon which one could exempt conduct which attracts criminal
liability, under s. 213 of the Code, from the application of that principle.

R v Vandergraaf, (1994) 93 CCC (3d) 286

R. v. Beaver, [1957] SCR 531
One who has physical possession of a package which he believes to contain a harmless substance
but which in fact contains a narcotic drug, cannot be convicted of being in possession of the drug
under s. 4(1)(d) of the Opium and Narcotic Drug Act. The essence of that crime is the possession
of the forbidden substance in a criminal case there is in law no possession without knowledge of
the character of the forbidden substance. Section 4(1)(d) is not an enactment of the class that
excludes mens rea as an essential ingredient of the offence, and there is nothing in the wording of
s. 17 of the Act requiring such a construction of s. 4(1)(d). It is, therefore, misdirection for a trial
judge to tell the jury that, if possession of a package is established, the only question for them to
decide is whether or not the package in fact contained a narcotic drug, and that the accused's
knowledge or lack of knowledge of that fact, or even his honest but mistaken belief that it was a
harmless substance, are wholly irrelevant to the question of his guilt or innocence and must not be
considered by them.

Rex v. Hess, [1949] 1 W.W.R. 577, approved; Morelli v. The King (1932), 58 C.C.C. 120; Rex v.
Lawrence, [1952] O.R. 149, overruled.

Per Fauteux and Abbott JJ., dissenting: The statute creates an absolute prohibition and mens rea
is therefore not an essential element of the offence of possession. The principle underlying the Act
is that possession of drugs covered by it is unlawful and where any exception is made to this
principle that exception is made subject to particular controlling provisions and conditions.

APPEAL by the accused from a judgment of the Court of Appeal for Ontario [[1956] O.W.N.
798, 116 C.C.C. 231, 25 C.R. 53.] dismissing an appeal from convictions. Appeal allowed in part.

C.L. Dubin, Q.C., for the appellant. Walter M. Martin, Q.C., for the respondent.

Solicitors for the appellant: Kimber & Dubin, Toronto.

R. v. Théroux, [1993] 2 SCR 5
The accused, the directing mind of a company involved in residential construction, was charged
with fraud. The company entered into agreements with a number of individuals for the purchase of
residences. The contracts were made and the deposits taken on the basis of a false representation
by the company that the deposits were insured. The representation was made orally and backed
up by a certificate of participation in the insurance program. In addition, a brochure describing the
program was distributed to most of the depositors. In fact, the company never paid the premiums
due on a first application for participation in the insurance program and a second application was
never completed. The company became insolvent, the project was not completed and most of the
depositors lost their money. The trial judge found that the accused, as directing mind of the
company, was responsible for the misrepresentations. The accused knew at the time that the
deposits were not guaranteed but nevertheless made misrepresentations to induce potential home
purchasers to sign a contract and give a deposit. The trial judge also found that the accused
sincerely believed that the residential project would be completed and hence that the deposits
[page6] would not be lost. The accused was convicted of fraud pursuant to s. 380(1)(a) of the
Criminal Code and the Court of Appeal upheld the conviction. The issue in this appeal is whether
the fact that the accused honestly believed that the project would be completed negates the mens
rea of the offence of fraud.

  Held: The appeal should be dismissed.  

Per La Forest, Gonthier, Cory and McLachlin JJ.: 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). Just as what constitutes a falsehood or a deceitful act for the
purpose of the actus reus is judged on the objective facts, 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 accused's belief that
the conduct is not wrong or that no one will in the end be hurt affords no defence to a charge of
fraud. While the scope of the offence may encompass a broad range of dishonest commercial
dealings, the proposed definition of mens rea will not catch conduct which does not warrant
criminalization. Only the deliberately practised fraudulent acts which, in the knowledge of the
accused, actually put the property of others at risk will constitute fraud. The requirement of
intentional fraudulent action excludes mere negligent misrepresentation, or sharp business
practice.

In this case, it is clear from the trial judge's findings that the offence of fraud is made out. The
actus reus is established: the accused committed deliberate falsehoods [page7] which caused or
gave rise to deprivation. First, the depositors did not get the insurance protection they were told
they would get and, second, the money they gave to the accused's company was put at risk, a risk
which in most cases materialized. The mens rea too is established: the accused told the depositors
that they had insurance protection when he knew this to be false. By this act he was knowingly
depriving the depositors of something they thought they had, namely insurance protection. It may
also be inferred from his knowledge that insurance protection was not in place that the accused
knew that he was subjecting the depositors' money to risk. The fact that he sincerely believed that
the houses would be built, and that the deposits would not be lost, was no defence to the crime.

Per Lamer C.J. and Sopinka J.: Subject to the following reservations, McLachlin J.'s analysis of the
law of fraud was generally agreed with. First, while the accused's belief that an act is honest will
not avail if it is objectively dishonest as determined by reasonable persons, it is critical to
distinguish this from the accused's belief in facts that, if true, would deprive the act of its
dishonest character. Secondly, mens rea is not typically concerned with the consequences of the
prohibited actus reus. The actus reus often includes the consequences, and, frequently, more
serious offences are distinguished from less serious offences by the consequences without any
additional mental element. Thirdly, the general proposition that "[r]ecklessness presupposes
knowledge of the likelihood of the prohibited consequences" is applicable in the case of fraud but
not necessarily for other offences.

In this case, the trial judge's finding that the accused deliberately lied to his customers determines
both the actus reus and mens rea of deceit. If the sole issue were whether the accused's conduct
created a risk that the depositors might be deprived of their deposits by reason of the non-
completion of the project, the appeal should be allowed. Where the risk of deprivation is
dependent on some future event not happening but the accused honestly believes that the future
event will happen and there will be no deprivation, a trial judge who accepts this evidence should
acquit. Here, the trial judge found there was no insurance in place, however, and therefore even if
the project were eventually completed, there would have been a deprivation or risk thereof during
the uninsured period. The trial judge, having made all the findings of fact which constitute a
deprivation, ought to have found that this element had been made out. Failure [page8] to make
such a determination would be an error of law and would entitle this Court to affirm the conviction
and dispose of the case on this basis.

Per L'Heureux-Dubé J.: Subject to the second and third reservations expressed by Sopinka J., the
reasons of McLachlin J. were generally agreed with.

R. v. ADH, 2013 SCC 28

Appeal by the Crown from a judgment of the Saskatchewan Court of Appeal affirming the
respondent's acquittal on a charge of child abandonment. The question on appeal concerned the
fault element of the offence of child abandonment. The respondent, not previously knowing that
she was pregnant, gave birth to a baby boy while using the toilet in a store. Thinking the child was
dead, she cleaned up as best she could and left, leaving the child in the toilet. The child was in fact
alive, was quickly attended to by others and, by all reports, was now a healthy little boy. The trial
judge believed the respondent's claim that she was not aware of her pregnancy until the child
appeared and that she believed the child was dead when she left him. The trial judge found that
the Crown had not proven beyond a reasonable doubt that the respondent intended to abandon
the child. The Court of Appeal agreed with the trial judge. The Crown submitted that the fault
element of the child abandonment offence should be assessed "objectively" according to what had
been called the "penal negligence" standard, whereas the respondent submitted that the fault
element should be assessed subjectively, adopting the position taken by the trial judge and a
majority of the Court of Appeal.

HELD: Appeal dismissed.

The text of the provision did not expressly set out a fault requirement, but the text read in light of
its full context supports the conclusion that subjective fault was required. There was nothing in the
text or context of the child abandonment offence to suggest that Parliament intended to depart
from requiring subjective fault. In fact, the text, scheme and purpose of the provision supported
the view that subjective fault was required. There was no doubt that the purpose of the
abandonment offence was the protection of children from risk, even when no harm occurred. It
followed that the scope of potential liability under section 218 of the Criminal Code was very
broad, encompassing a wide range of persons and conduct. Viewed in the light of the broad scope
of potential liability under section 218, the requirement for subjective fault served an important
purpose of ensuring that the reach of the criminal law did not extend too far. The words
"abandon", "expose" and "wilful" suggested a subjective fault requirement. The use of the word
"likely" in this context did not suggest an objective fault requirement. Further, what was absent
from the text of section 218 and the broader scheme in which it appeared strongly suggested that
subjective fault was required. The distinct structure and wording of the child abandonment offence
also countered any suggestion that its placement in the same part of the Code with the sections
creating legal duties informed the nature of the required fault element. Nothing in the text
suggested an intention to impose a minimum and uniform standard of care. The text, context and
purpose of section 218 of the Code showed that subjective fault was required. The trial judge did
not err in acquitting the respondent on the basis that this subjective fault requirement had not
been proved.

R v Briscoe, 2010 SCC 13

Appeal by Briscoe from a decision of the Court of Appeal of Alberta overturning his acquittal on
charges of kidnapping, rape and murder. Three young persons and two adults were charged for
their participation in the kidnapping, rape, and brutal murder of a 13-year-old girl. The two adults
in the group, Briscoe and Laboucan, were charged jointly with kidnapping, aggravated sexual
assault and first degree murder. Briscoe, Laboucan and the others lured two young victims into
their car. Laboucan had said earlier in the day that he would like to find someone to kill. Briscoe
drove the group to a secluded golf course. He then stood by and watched as the victim was raped
and murdered. The trial judge concluded that Briscoe did not know of Laboucan's intention to
commit each of the crimes and acquitted Briscoe. The Crown appealed Briscoe's acquittals to the
Court of Appeal of Alberta. The Court of Appeal held that the trial judge erred in law by failing to
consider whether Briscoe was wilfully blind to the harm his cohorts intended to cause the victim
and set aside the acquittals.

HELD: Appeal dismissed.

The mens rea requirement had two components: intent and knowledge. The Crown had to prove
that the accused intended to assist the principal in the commission of the offence. It was not
required that the accused desired that the offence be successfully committed. As for knowledge, in
order to have the intention to assist in the commission of an offence, the aider had to know that
the perpetrator intended to commit the crime, although he or she did not need to know precisely
how it would be committed. The aider and abettor of a murder did not need to have the same
mens rea as the actual killer. It was sufficient that he or she, armed with knowledge of the
perpetrator's intention to commit the crime, acted with the intention of assisting the perpetrator in
its commission. Wilful blindness did not define the mens rea required for particular offences.
Rather, it could substitute for actual knowledge whenever knowledge was a component of the
mens rea. The doctrine of wilful blindness imputed knowledge to an accused whose suspicion was
aroused to the point where he or she saw the need for further inquiries, but deliberately chose not
to make those inquiries. Briscoe's own statements to the police suggested that he had a strong,
well-founded suspicion that someone would be killed that night and that he might have been
wilfully blind to the kidnapping and prospect of sexual assault. The Court of Appeal rightly
concluded that the trial judge's failure to consider Briscoe's knowledge from that perspective
constituted a legal error which necessitated a new trial on all charges.

R v Sansregret, [1985] 1 S.C.R. 570

The appellant was charged with several offences, including rape with the complainant's consent
extorted by threats or fear of bodily harm under s. 143(h)(i) of the Criminal Code. The
complainant, after living with the appellant for a year ended their turbulent affair. Subsequently,
the appellant broke into her house twice. On both occasions, complainant feared for her safety
because of his threats and violent behaviour. To calm him down and to protect herself from further
violence, she held out some hope of reconciliation and consented to intercourse. Although she
reported both incidents to the police and complained of being raped, no proceedings were taken
after the first time because appellant's probation officer asked her not to press the matter.
Appellant was arrested and charged following the second incident. At trial, the judge found not
only that the complainant consented to intercourse solely because of fear engendered by
appellant's threats but also that the appellant honestly believed that the consent to intercourse
was freely and genuinely given. Applying the Pappajohn case, the trial judge acquitted the
appellant. On appeal, the Court of Appeal set aside the acquittal and entered a conviction for rape.
   Held: The appeal should be dismissed.  

The defence of mistake of fact rests on the proposition that the mistaken belief, honestly held,
deprives the accused of the requisite mens rea for the offence. The mens rea for rape under s.
143(h)(i) of the Criminal Code must involve a knowledge that the woman is consenting because of
threats or fear of bodily harm, or recklessness as to its nature. An honest belief on the part of the
accused -- even though unreasonably held -- that [page571] the woman was consenting to
intercourse freely and voluntarily and not because of threats would negate the mens rea and
entitle the accused to an acquittal. In the present circumstances, the defence of mistake of fact
was not available to the accused. The trial judge found that the complainant consented out of fear
and that the appellant blinded himself to the obvious and made no inquiry as to the nature of the
consent which was given. The evidence revealed that he knew of the complaint of rape caused by
the first incident and therefore was aware of the likelihood of the complainant's reaction to his
threats. To proceed with intercourse in such circumstances without further inquiry constitutes self-
deception to the point of wilful blindness. Where the accused is deliberately ignorant as a result of
blinding himself to reality the law presumes knowledge -- in this case knowledge of the forced
nature of the consent. There was therefore no room for the application of the defence.

R. v. Currie, (1975), 24 C.C.C. (2d) 292 (Ont. C.A.)

1   The accused was charged and convicted for uttering a forged document. I need not go into the
circumstances of the case because it is my judgment that, although not expressing himself in his
judgment as clearly as he might have, the Judge made sufficient findings to support the decision
that the appellant was guilty on the ground of wilful blindness.
2  I base my conclusion on the finding of the Judge that the appellant "deliberately or knowingly"
neglected to make the inquiries which he ought to have made. Such a finding plainly suggests that
the Judge decided that the appellant was in fact suspicious of the authenticity of the cheque, for
otherwise he could not have "deliberately" failed to make the necessary inquiries.
3  My brothers do not agree with me.

GALE C.J.O.

ARNUP J.A.

4   I agree with the conclusions reached by my brother Martin. To his recitation of the facts I would
add only two points. In his statement to the police, the accused said: "I didn't think anything was
wrong". In his evidence at trial, he gave this evidence:

o "A. I didn't think I was going against the law, I thought I was helping somebody.

o Q.Why did you feel this man needed help?

o A.He'd been drinking a lot.
o Q.Was he a clean cut fellow?
o A.Yes.
o Q.What was the impression he gave you?
o A.Honest type, respectable person.
o Q.Did you have any suspicion that that wasn't his cheque?
o A.No."
5  The trial Judge did not, in his reasons for judgment, indicate that he declined to accept this
evidence.
ARNUP J.A.

MARTIN J.A.

6   The appellant appeals from his conviction before a Provincial Court Judge sitting under Part XVI
of the Criminal Code on December 5, 1974, on a charge that:

o "... on or about the 8th day of April, 1974, at the Regional Municipality of
Niagara ... did unlawfully and knowingly utter a forged document, to wit: a cheque
payable to Edward Gerada in the amount of $478.15 at the Canadian Imperial
Bank of Canada, Main and Hellems in the City of Welland, with intent to use same
as if it were genuine. Contrary to the provisions of the Criminal Code of Canada."
7  The appellant was 19 years of age at the time of the events giving rise to this charge. On April
8, 1974, he presented for payment, at a branch of the Canadian Imperial Bank of Commerce at
Welland, a cheque payable to one Edward Gerada, in the amount of $478.15 There was endorsed,
on the back of the cheque at that time, a signature which purported to be that of the payee of the
cheque, Edward Gerada. The cheque in fact had been stolen from Mr. Gerada's mailbox and the
endorsement on the cheque was a forgery.
8  The appellant had a bank account at that branch with a small balance. He had had an account
there for some months and was known to the teller of the bank. When he presented the cheque
for payment he signed his own name on the back of the cheque, together with his address and
telephone number.
9  When Mr. Gerada failed to receive the cheque which he was expecting he communicated with
the police who arrested the appellant. At that time the appellant made a statement to the police,
which in substance was this: that he was sitting in the Reeta Hotel in Welland, having a beer with
a friend of his, Mr. Gilbert Davidson, when a man whom he had never seen before asked him to
cash the cheque for him, and said that he would pay the appellant $5.00 for cashing it. The
appellant then took the cheque, cashed it and gave the proceeds to this unknown man.
10  The appellant gave evidence at his trial and he gave the same explanation as that contained in
his statement to the police. His evidence on this point was confirmed by Mr. Davidson, who was
with him.
11  The learned trial Judge did not reject the evidence of the appellant. However, he registered a
conviction and based his finding of guilt upon his conclusion that the appellant was "wilfully blind"
as to the forged nature of the endorsement. The trial Judge in convicting the appellant said:

o "The Crown has submitted very strongly the doctrine of wilful blindness, said to be
in this set of circumstances. [sic] That the accused must take on some
responsibility, make some inquiries as to the validity of the cheque from whom he
was obtaining it, before he voluntarily proceeded to cash that cheque through his
bank. I am of the opinion that these responsibilities do fall upon the accused, that
for some reason either deliberately or knowingly he neglected to make these
inquiries which I believe he should have in the circumstances. And therefore that
he wilfully blinded himself to the situation he was entering upon and he should
have been suspicious of the circumstances, the manner in which the cheque was
handed to him from an unknown person and he had a responsibility before his
placing that cheque through his banking authorities to make some investigation as
to the authenticity of the cheque and the person from whom he was receiving it
from."
12  It is the view of my brother Arnup and myself, that this passage in the trial Judge's reasons for
judgment is not free from ambiguity and is reasonably open to the conclusion that the learned trial
Judge was of the view that the doctrine of wilful blindness applied because the accused should
have been suspicious in all the circumstances of the forged endorsement on the cheque when he
received it and should have made further inquiry.
13  This was a misconception on the part of the trial Judge as to the doctrine of wilful blindness,
which he purported to apply. I accept the statements of that doctrine as set out in Williams on
Criminal Law, the General Part, second edition at page 157, where the following is stated:

o "To meet this, the rule is that if a party has his suspicion aroused but then
deliberately omits to make further enquiries, because he wishes to remain in
ignorance, he is deemed to have knowledge."
He further states at page 158:


o "In other words, there is a suspicion which the defendant deliberately omits to turn
into certain knowledge. This is frequently expressed by saying that he 'shut his
eyes' to the fact, or that he was 'wilfully blind'. Lord Hewart, C.J., expressed it by
saying that 'the respondent deliberately refrained from making inquiries the result
of which he might not care to have'."
14  I refer also to the judgment of this Court in R. v. F.W. Woolworth Co. Ltd., 18 C.C.C. (2d) 23,
where Kelly, J.A. speaking for the Court pointed out at page 30 that, generally speaking, the
doctrine of constructive knowledge has no application in criminal law. The fact that a person ought
to have known that certain facts existed, while it may, for some purposes in civil proceedings, be
equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability,
and does not by itself form a basis for the application of the doctrine of wilful blindness.
15  For these reasons we are of the opinion that the appeal must be allowed, the conviction
quashed and a verdict of acquittal directed to be entered.

MARTIN J.A.

R v Tutton, [1989] 1 S.C.R. 1392

Respondents were parents of a five-year-old diabetic. They believed in faith healing but their
religious convictions did not prevent them from seeking and acting on medical advice or from
taking medicines. As the result of the intentional withholding of prescribed insulin upon the belief
that the child had been miraculously cured, the child died.

Respondents were charged with causing their son's death by criminal negligence in that they
denied him the necessaries of life without lawful excuse and thereby committed manslaughter.
They raised the defence of an honest although mistaken belief in the existence of a circumstance
which would render their conduct non-culpable. Respondents were convicted of manslaughter and
appealed to the Court of Appeal which set aside the [page1393] convictions and directed new
trials. This appeal was taken by leave.

  Held: The appeal should be dismissed.  

Per Dickson C.J. and Wilson and La Forest JJ.: The imposition of criminal liability in the absence of
proof of a blameworthy state of mind, either as an inference from the nature of the act committed
or by other evidence, does not sit comfortably with the principles of penal liability and fundamental
justice. A serious criminal offence, absent clear statutory language and purpose to the contrary,
should not be interpreted as an absolute liability offence. Rather, the presumption should be in
favour of some degree of mental blameworthiness if the text and purpose can support such an
interpretation.

Section 202 of the Criminal Code is notorious in its ambiguity; its interpretation depends on which
words are emphasized. Given its fundamental ambiguity, it should be given the interpretation most
consonant not only with its text and purpose but also, where possible, with the broader concepts
and principles of the criminal law.

The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more
than gross negligence in the objective sense. It requires some degree of awareness or advertence
to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which
is culpable in light of the gravity of the risk assumed.

Conduct that displays a wanton or reckless disregard for the lives or safety of others will constitute
the actus reus of the offence under s. 202 and be prima facie evidence of the accused's
blameworthy state of mind. A person functioning with normal faculties of awareness and engaging
in a grave departure from the norm can be assumed to be either aware of the risk or wilfully blind
to it. Proof of the conduct will cast an evidentiary burden on the accused to explain why the
inference should not be drawn.

Malice or intent in the sense of a mind directed to a purpose is not an element of s. 202. The fact
that an accused may desire or calculate that his purpose can be achieved without the realization of
the risk does not relieve the accused of liability under s. 202 if he either adverted to or became
aware of the risk or closed his eyes to the reality of it.

[page1394]

This Court has established that the criminal negligence prohibited under s. 202 is advertent
negligence. The case for the adoption of an objective standard of liability is not strong enough to
justify a departure from established principles. Before overruling a previous decision, the Court
should consider the introduction of the Charter, the alteration of a precedent in later authorities,
the creation of uncertainty by the continued existence of the precedent and whether overturning
the precedent will expand the range of criminal liability and work to the detriment of the accused.
A departure from established principles is not justified in this case.

Proof of the mental element of advertence to the risk or wilful blindness to the risk will not
undermine the policy objectives of s. 202. The subjective test would at most offer protection for
those who due to some peculiarity or unexpected accident commit conduct which, although wanton
or reckless with respect to the lives and safety of others, can be explained as inconsistent with any
degree of awareness of or wilful blindness to such a risk.

A subjective interpretation of s. 202 does not render superfluous the role of manslaughter within
the scheme of the Code's homicide provisions. The murder provisions will in general be available
only if a higher degree of intent is proven than awareness of or wilful disregard of a risk to the
lives and safety of others.

Constitutional issues did not arise in this case, and constitutional considerations would not be
precluded if a case involving constitutionality were to arise.

Per McIntyre and L'Heureux-Dubé JJ.: An objective test must be used in determining criminal
negligence. It is the conduct of the accused, not his intention or mental state, which is examined.
No distinction should be made between any acts of commission or omission. Section 202 clearly
applies to a person who is negligent in doing anything or in omitting to do anything that is his duty
and shows a wanton or reckless disregard for the lives or safety of others.

Negligence is a factor that may lead to criminal liability. It connotes the opposite of thought-
directed action and precludes the element of positive intent to achieve a given result. Section 202,
therefore, restrains [page1395] conduct and its results; it punishes the consequence of mindless
action and not the state of mind.

The application of the objective test under s. 202 may not be made in a vacuum. The surrounding
circumstances and the accused's perception of those facts must be considered in order to
determine whether or not his conduct was reasonable. Where an offence rests on the concept of
negligence, honestly held belief in circumstances which would afford a defence must, to be
effective, be reasonably held.

Here, the jury should consider respondents' belief that their son had been cured by Divine
intervention in light of the whole background of the case in order to determine if it was honest and
reasonable. The jury would then have to determine if their conduct represented a marked and
significant departure from the standard to be observed by reasonably prudent parents.

Per Lamer J.: The reasons of McIntyre J. were agreed with, subject to certain considerations.
Firstly, the application of the objective norm in s. 202 of the Criminal Code must make generous
allowance for factors particular to the accused such as youth, mental development and education.
Further, Parliament did not determine the nature of the negligence required to ground criminal
liability when enacting s. 202 but merely defined the expression "criminal negligence" wherever
used in the Code. Finally, the constitutionality of s. 205(5)(b) was not in issue in this case.
Assuming without now deciding that it is a principle of fundamental justice that knowledge of a
likely risk or deliberate ignorance thereof (foresight or wilful blindness) is an essential element of
the offence of manslaughter, the issue as to whether proof of the substituted element of "criminal
negligence" as defined by Parliament and interpreted by this Court satisfies the test set out in R. v.
Vaillancourt, [1987] 2 S.C.R. 636, does not arise. This constitutional consideration is not to be
precluded by concurrence in McIntyre J.'s decision.
R. v. Beatty, 2008 SCC 5
Appeal by accused from Court of Appeal decision setting aside acquittals and ordering a new trial.
The accused was charged with three counts of dangerous operation of a motor vehicle causing
death under s. 249(4) of the Criminal Code. The accused's truck had suddenly crossed the solid
centre line into the path of an oncoming motor vehicle, killing all three occupants. Witnesses had
observed the accused's vehicle being driven in a proper manner prior to the accident, and that the
accident happened instantaneously. There was no evidence of speeding or vehicle failure, and
intoxicants were not a factor. After the accident, the accused stated that he was not sure what
happened but that he must have fallen asleep and collided with the other vehicle. The trial judge
acquitted the accused on all three counts. She found that the test in R. v. Hundal required more
than a few seconds of lapsed attention to establish objectively dangerous driving. She noted that,
in the absence of something more, the accused's few seconds of negligent driving was insufficient
evidence to support a finding of a marked departure from the standard of care of a prudent driver.
The Court of Appeal found that the accused's driving was a marked departure from the standard of
care of a reasonable person. It found that the trial judge did not adequately engage the analysis
required under the second step in R. v. Hundal.

HELD: Appeal allowed and acquittals restored.

There was an important distinction between civil negligence and penal negligence. An act of
negligent driving did not necessarily constitute the offence of dangerous driving. Pursuant to R. v.
Hundal, the requisite mens rea could only be found when there was a marked departure from the
standard of care expected of a reasonable person in the circumstances of the accused. There was
no evidence in this case of any deliberate intention to create a danger for other drivers. The
limited evidence that was adduced about the accused's actual state of mind suggested that the
dangerous conduct was due to a momentary lapse of attention. There was no reason to interfere
with the trial judge's assessment of the accused's conduct in this case and her conclusion on his
criminal liability. The accused's momentary act of negligence was insufficient to support a finding
of a marked departure from the standard of care of a reasonably prudent driver, and was therefore
insufficient to constitute dangerous operation of a motor vehicle causing death within the meaning
of s. 249(4).

R. v. Martineau, [1990] 2 S.C.R. 633

Martineau and a friend, Tremblay, set out armed knowing that they were going to commit a crime;
Martineau testified that he thought it would only be a break and enter. Tremblay shot and killed
two people after robbing them and their house. Martineau allegedly said or thought, after he heard
the shot which killed the first victim, "Lady, say your prayers". As they left, Martineau asked
Tremblay why he killed them and Tremblay answered, "They saw our faces". Martineau responded,
"But they couldn't see mine 'cause I had a mask on".

[page634]

Respondent was convicted of second degree murder. The trial judge charged the jury on s. 213(a)
and (d) and on s. 21(1) and (2) of the Criminal Code. The Court of Appeal held that s. 213(a) was
inconsistent with ss. 7 and 11(d) of the Charter for reasons given in R. v. Vaillancourt and that it
was not saved by s. 1 of the Charter. The Court could not conclude that a conviction should be
entered pursuant to s. 613(1)(b)(iii) of the Code because the jury had not been not instructed on
any portion of s. 212.
The constitutional questions queried whether s. 213(a) of the Criminal Code infringed s. 7 and/or
s. 11(d) of the Charter, and if so, whether or not it was justified by s. 1.

Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed. Section 213(a) of the
Criminal Code infringes both ss. 7 and 11(d) of the Charter and is not justified by s. 1.

Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: The principles of fundamental
justice require that a conviction for murder be based upon proof beyond a reasonable doubt of
subjective foresight of death. This appeal was disposed of on the basis of the principle of
subjective foresight of death, even though it could have been disposed of on the basis of objective
foreseeability.

The introductory paragraph of s. 213(a) expressly removes the Crown's burden of proving beyond
a reasonable doubt that the accused had subjective foresight of death. This section is an anomaly
as regards the other murder provisions, especially in light of the common law presumption against
convicting a person of a true crime without proof of intent or recklessness. In a free and
democratic society that values the autonomy and free will of the individual, the stigma and
punishment attaching to murder should be reserved for those who choose intentionally to cause
death or who choose to inflict bodily harm knowing that it is likely to cause death. Requiring
subjective foresight of death in the context of murder maintains a proportionality between the
stigma and punishment attached to a murder conviction and the moral blameworthiness of the
offender.

A special mental element with respect to death is necessary before a culpable homicide can be
treated as murder and gives rise to the moral blameworthiness that justifies the stigma and
punishment attaching to a [page635] murder conviction. It is a principle of fundamental justice
that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of
subjective foresight of death. Section 213 of the Code expressly eliminates the requirement for
proof of subjective foresight and therefore infringes ss. 7 and 11(d) of the Charter.

The objective of deterring the infliction of bodily harm during the commission of certain offences
because of the increased risk of death is sufficiently important to warrant overriding a Charter
right. The section, however, unduly impairs Charter rights because it is not necessary to convict of
murder persons who do not intend or foresee the death in order to achieve this objective.

Since subjective foresight of death must be proven beyond a reasonable doubt before a conviction
for murder can be sustained, the phrase "ought to know is likely to cause death" in s. 212(c) of
the Code probably infringes ss. 7 and 11(d) of the Charter. Section 212(c) would not likely be
saved by s. 1.

Per Sopinka J.: The issue of subjective foresight of death should be addressed only if it is
necessary to do so in order to decide this case or if there is an overriding reason making it
desirable to do so. Overbroad statements of principle are inimical to the tradition of incremental
development of the common law. Here, ruling on the issue of subjective foresight was not
necessary for the disposition of this case because R. v. Vaillancourt, [1987] 2 S.C.R. 636, applied.
Since objective foreseeability of death is a constitutional minimum for the definition of murder, the
conclusion must follow that s. 213(a) does not meet this constitutional minimum. This section
places a restriction on s. 7 of the Charter by permitting a person to be convicted of murder without
proof beyond a reasonable doubt of objective foreseeability of death, or of an equivalent substitute
requirement, and cannot be saved by s. 1 for the reasons expressed by Lamer J., as he then was,
in Vaillancourt and in the case at bar.

Per L'Heureux-Dubé J. (dissenting): Section 213(a) does not offend the principles of fundamental
justice and accordingly does not violate ss. 7 and 11(d) of the Charter.

[page636]

Neither the subjective foresight of death test nor the objective foreseeability test violate the
principle of fundamental justice. It has been decided in a number of cases, including R. v.
Vaillancourt, that subjective foresight of death is not the exclusive standard for murder and no
other common law jurisdiction has adopted that standard as the exclusive standard for murder.
Significant policy considerations favour upholding the existing legislation.

The invocation of s. 213(a) may not have been necessary in the instant case. The statement,
"Lady, say your prayers", whether it was actually said or thought, reflected a mental state of mind
sufficient to anchor a charge under s. 212(a) which is the only truly subjective foresight murder
provision of the Criminal Code.

The tests of subjective foresight and objective foreseeability are not static or distinct concepts and
are not mutually exclusive. In most instances, and certainly those delineated by s. 213(a), death
will be both objectively and subjectively foreseeable. The two are profoundly interrelated,
especially when dealing with a crime committed during the execution of a predicate crime. The
validity of a provision should not be evaluated on a strict "either-or" approach. A fastidious
adherence to prescribed labels becomes particularly obdurate when gauging the constitutionality of
legislation.

Vaillancourt settled only two legal questions. First, it established a standard of objective
foreseeability of death for the crime of murder. Second, it only disposed of s. 213(d) of the
Criminal Code.

The legislature, rather than simply eliminating any need to prove the essential element, may
substitute proof of a different element. This will be constitutionally valid only if, upon proof beyond
reasonable doubt of the substituted element, it would be unreasonable for the trier of fact not to
be satisfied beyond reasonable doubt of the existence of the essential element. Section 213(d)
could not meet that test; s. 213(a) does.

Section 213(a) is completely different in its historical development in its consistency with the
objective foreseeability of death test established in R. v. Vaillancourt and in the parallel provisions
adopted in other common law jurisdictions.

[page637]

An exacting combination of factors must be proven, all beyond a reasonable doubt, before the
accused can be found guilty of murder under s. 213(a). The offender must: (1) cause the death by
committing a "culpable homicide"; (2) cause the death while committing or attempting to commit
one of a limited number of very serious, inherently dangerous and specific intent crimes; (3)
intentionally inflict bodily harm while committing one of these offences; (4) inflict the bodily harm
purposefully in order to perpetrate the underlying crime or to facilitate escape; and (5) the death
must ensue from the bodily harm intentionally inflicted.

No Charter violation of ss. 7 or 11(d) takes place if the test of objective foreseeability has been
met. The accused must specifically intend to, and actually commit the underlying offence, and
must specifically intend to, and actually inflict bodily harm. The law necessitates conclusive proof
beyond a reasonable doubt of factors that are collectively tantamount to an objective foreseeability
requirement. The inexorable conclusion is that the resulting death is objectively foreseeable.
Neither the presumption of innocence nor the other reference provisions which give content and
scope to s. 7 are impugned.

How harm or injury is to be defined and what level of harm or injury is required are matters for
Parliament to consider and decide. Many factors enter into the determination of an appropriate
penalty for a particular offence; the degree of blameworthiness is only one. So long as Parliament
does not act irrationally or arbitrarily or in a manner otherwise inconsistent with the fundamental
principles of justice, its choice must be upheld.

Concentration on social "stigma" is overemphasized, and in the great majority of cases, completely
inapplicable. The "stigma" and punishment attached to murder need not be proportionate to the
mens rea alone. Rather they must correspond to the combination of the physical and mental
elements that collectively define a murder.
R. v. J.F. 2008 SCC 60
Appeal and cross-appeal of the accused's conviction on a charge of manslaughter by criminal
negligence. The accused was convicted of manslaughter by criminal negligence, yet acquitted on a
charge of manslaughter by failing to provide the necessaries of life, following the death of his
wife's foster child. The Court of Appeal ruled that the verdicts were inconsistent and overturned
the conviction. A new trial was ordered on the charge of manslaughter by criminal negligence. The
Crown appealed on the issue of inconsistent verdicts. The accused asserted that an acquittal
should have been entered rather than an order for a new trial and cross-appealed the order.

HELD: Appeal dismissed, cross-appeal allowed, with dissent.

Though each count alleged different "underlying" or "predicate" offences, the respondent's guilt in
respect of both counts was made by the Crown to depend on exactly the same failure to perform
exactly the same duty. The same actus reus was common to both offences. Further, both counts
involved similar fault requirements. To the extent that they differed, the count on which the
accused was convicted, criminal negligence, was more serious than the count upon which he was
acquitted. The conviction could only be supported upon a finding that the accused failed in his duty
to protect the child, the factual foundation of both counts. The verdicts at trial signified that a
lesser degree of fault was not established, while a greater degree of fault was proven beyond a
reasonable doubt. Even if the trial judge provided an erroneous instruction in law, the recourse
would have been for the Crown to appeal the acquittal, not for the Court to uphold the conviction
on another count. Improper instructions would not make improper verdicts proper. Nor would they
make inconsistent verdicts consistent. The verdicts rendered at trial were inconsistent and the
accused's conviction of manslaughter by criminal negligence had to be quashed. It would not be
appropriate to order a new trial. Since the accused's acquittal was not appealed, to order a new
trial in these circumstances would deprive him of the benefit of that acquittal, now final, and
expose him to a finding that he did in fact commit the offence of which he was acquitted,
definitively, by the jury in this case.
R. v. Chase, [1987] 2 S.C.R. 293
Respondent was convicted of sexual assault contrary to s. 246.1(1)(a) of the Criminal Code. He
entered the home of the complainant, a fifteen year-old girl, without invitation, seized her around
the shoulders and arms and grabbed her breasts. When she fought back, he said: "Come on dear,
don't hit me, I know you want it." She testified at trial that he tried to grab her "private" but did
not succeed. On appeal, the Court of Appeal expressed the view that the modifier "sexual" in the
new offence of sexual assault should be taken to refer to parts of the body, particularly the
genitalia. Because there was no contact with the complainant's genitals, the conviction at trial was
set aside and a conviction for common assault substituted. The only question arising in this appeal
is that of the definition of the offence of sexual assault.

  Held: The appeal should be allowed.  

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,
[page294] 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.

R. v. V. (K.B.), [1993] 2 S.C.R. 857

The accused was charged with sexually assaulting his three-year-old son. In a statement to the
police, he explained that he grabbed his son's genitals in order to deter him from grabbing the
genital region of adults and to show him how much it hurts. The accused was convicted. The trial
judge concluded that the absence of evidence of sexual gratification on the part of the accused
was irrelevant in this case, given the other indicia which lead to the conclusion that the assault
was in fact a sexual assault. The majority of the Court of Appeal upheld the accused's conviction.

Held (Sopinka J. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, L'Heureux-Dubé, Cory, McLachlin and Iacobucci JJ.: It was clearly
open to the trial judge in this case to conclude, from all the circumstances, that the assault was
one of a sexual nature. The assault was such that the sexual integrity of the child was violated.

Per Sopinka J. (dissenting): The lack of an intention of sexual gratification on the part of the
accused was relevant in this case and changes the whole complexion of the accused's activity. In
every aspect of the test for sexual assault, except the part of the body attacked, the assault was
non-sexual in nature. The proper disposition [page858] is to dismiss the appeal and substitute a
conviction for common assault.
Pappajohn v. R., [1980] 2 S.C.R. 120

The appellant listed his house for sale with the real estate firm with which the complainant, a real
estate saleswoman, was associated. After an appointment at a downtown restaurant for lunch to
discuss the house sale, during which lunch a good deal of liquor was consumed by both parties,
they went to the appellant's house, the one which was listed for sale. There, the complainant
contended, she was raped over her protests and struggles, while the appellant claims he had an
amorous interlude involving no more than a bit of coy objection on her part and several acts of
intercourse with her consent. Whatever occurred in the house, the complainant eventually ran out
of the house naked with a man's bow tie around her neck and her hands tightly tied behind her
back with a bathrobe sash. She was in an upset state and exhibited great fear and emotional
stress.

When the defence closed its case and before the trial judge commenced his charge, the jury was
excluded while counsel for the appellant argued that the trial judge should put the defence of
mistake of fact to the jury, i.e. that the judge tell the jury that if the appellant entertained an
honest though mistaken belief that the complainant was consenting to the acts of intercourse as
they occurred, the necessary mens rea would not be present, and the appellant would be entitled
to an acquittal. The trial judge refused to accede to the request and the appellant was eventually
convicted of the rape of the complainant. The conviction was affirmed in the Court of Appeal with
one dissent, upon the fact that the trial judge failed to put to the jury the defence of mistake of
fact, the majority adopting the view that the issue emerging from the evidence was a simple one
of consent or no consent.

Held (Dickson and Estey JJ. dissenting): The appeal should be dismissed.

Per Martland, Pigeon, Beetz, McIntyre and Chouinard JJ.: It is well established that the trial judge
must put before the jury any defences which may be open to the accused upon the evidence
whether raised by the accused's counsel or not. This, however, does not mean that the trial judge
becomes bound to put every defence suggested to him by counsel. There must be in the evidence
some basis upon which the defence can rest and the judge must consider, assuming that the
evidence relied upon by the accused to support a defence is true, whether that evidence is
sufficient to justify the putting of the defence. The test to be applied is that there must be in the
record some evidence which would convey a sense of reality in the submission. In this case, to
convey such a sense of reality, there must be some evidence which if believed would support the
existence of a mistaken but honest belief that the complainant was in fact consenting to the acts of
intercourse. Here, the complainant's version excludes consent and any possible mistaken belief in
consent, while the appellant's version speaks of actual consent and no suggestion of any mistaken
belief could arise, and in this situation the only realistic issue which can arise is the simple issue of
consent or no consent. To require the putting of the alternative defence of mistaken belief in
consent, the evidence must appear from or be supported by sources other than the appellant in
order to give it any air of reality.

Per Martland J.: If a case arises which raises the issue as to whether, on a charge of rape, an
accused person who seeks to rely upon a defence of mistake of fact must, in order to succeed,
establish that his mistake was reasonable as well as honest, it is open to this Court to determine
that issue, and it is not precluded from so doing by the judgment in Beaver v. The Queen, [1951]
S.C.R. 531.

Per Dickson and Estey JJ., dissenting: The point in this appeal is whether the trial judge erred in
failing to put before the jury a defence of mistaken belief in consent, such failure being a non-
direction amounting to misdirection.

With respect to the mens rea: The mens rea which is required, and its nature and extent, will vary
with the particular crime: it can only be determined by detailed examination of the actus reus of
the offence. In a case of alleged rape, where a fact or circumstance is not known to, or is
misapprehended by, the accused, leading to a mistaken but honest belief in the consent of the
woman, his act is not culpable in relation to that element of the offence. The actus reus of rape is
complete upon (a) an act of sexual intercourse; (b) without consent. An affirmative finding as to
each of these elements does not finish the inquiry, however, for the requirement that there be a
guilty intention must also be satisfied. The great weight of authority is in support of the view that
the accused's perception of the woman's consent is an important aspect of any prosecution for the
crime of rape. Intention or recklessness must be proved in relation to all elements of the offence,
including absence of consent.

With respect to the defence of mistake of fact: An honest and reasonable mistake of fact is on the
same footing as the absence of a reasoning faculty, as with infants, or impairment of the faculty,
as in lunacy. Culpability rests upon commission of the offence with knowledge of the facts and
circumstances comprising the crime. If the accused's act would be innocent, according to facts as
he believed them to be, he does not have the criminal mind and ought not be punished for his act.
Mistake is a defence where it prevents an accused from having the mens rea which the law
requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a
negation of guilty intention than as the affirmation of a positive defence. Whether the mistake is
rooted in an accused's mistaken perception, or is based upon objective, but incorrect, facts
confided to him by another, should be of no consequence.

With respect to whether a defence of honest, though mistaken, belief in consent must be based on
reasonable grounds: The mind with which the jury is concerned is that of the accused, not that of
a reasonable man. By importing a standard external to the accused, there is created an
incompatible mix of subjective and objective factors. If an honest lack of knowledge is shown, then
the subjective element of the offence is not shown. To apply the reasonable standard in this
appeal, the Court would defy accepted and sound principles of criminal law.

With respect to the Plea and the Evidence: It is not necessary that an accused specifically plead
mistake. If there was "some" evidence to "convey a sense of reality" to a defence of mistake as to
consent, then the jury ought to have been instructed to consider that plea. Here, even on the
complainant's version there is much common ground with the appellant's version which supports
his defence of belief in consent, and there is also circumstantial evidence supportive of a plea of
belief in consent.

R. v. Ewanchuk, [1999] 1 S.C.R. 330

The complainant, a 17-year-old woman, was interviewed by the accused for a job in his van. She
left the van door open as she was hesitant about discussing the job offer in his vehicle. The
interview was conducted in a polite, business-like fashion. After the interview, the accused invited
the complainant to see some of his work which was in the trailer behind the van. The complainant
purposely left the trailer door open but the accused closed it in a way which made the complainant
think that he had locked it. There was no evidence whether the door was actually locked. The
complainant stated that she became frightened at this point. The accused initiated a number of
incidents involving touching, each progressively more intimate than the previous, notwithstanding
the fact that the complainant plainly said "no" on each occasion. He stopped his advances on each
occasion when she said "no" but persisted shortly after with an even more serious advance. Any
compliance by the complainant was done out of fear and the conversation that occurred between
them clearly indicated that the accused knew that the complainant was afraid and certainly not a
willing participant. The trial judge acquitted the accused of sexual assault relying on the defence of
implied consent and the Court of Appeal upheld that acquittal. At issue here are whether the trial
judge erred in his understanding of consent in sexual assault and whether his conclusion that the
defence of "implied consent" exists in Canadian law was correct.

  Held: The appeal should be allowed.  

Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.: If the trial judge misdirected
himself as to the legal meaning or definition of consent, then his conclusion is one of law, and is
reviewable. It properly falls to this Court to determine whether the trial judge erred in his
understanding of consent in sexual assault, and to determine whether his conclusion that the
defence of "implied consent" exists in Canadian law was correct.
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that
the accused committed the actus reus and that he had the necessary mens rea. The actus reus of
assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being
reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being
touched.

The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the
sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are
objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The
Crown need not prove that the accused had any mens rea with respect to the sexual nature of his
behaviour. The absence of consent, however, is purely subjective and determined by reference to
the complainant's subjective internal state of mind towards the touching, at the time it occurred.
While the complainant's testimony is the only source of direct evidence as to her state of mind,
credibility must still be assessed by the trier of fact in light of all the evidence. It is open to the
accused to claim that the complainant's words and actions, before and during the incident, raise a
reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to
take place. If, however, the trial judge believes the complainant that she did not consent, the
Crown has discharged its obligation to prove the absence of consent. The accused's perception of
the complainant's state of mind is not relevant and only becomes so when a defence of honest but
mistaken belief in consent is raised in the mens rea stage of the inquiry.

The trier of fact may only come to one of two conclusions: the complainant either consented or did
not. There is no third option. If the trier of fact accepts the complainant's testimony that she did
not consent, no matter how strongly her conduct may contradict that claim, the absence of
consent is established and the third component of the actus reus of sexual assault is proven. No
defence of implied consent to sexual assault exists in Canadian law. Here, the trial judge accepted
the complainant's testimony that she did not want the accused to touch her, but then treated her
conduct as raising a reasonable doubt about consent, described by him as "implied consent". This
conclusion was an error.

To be legally effective, consent must be freely given. Therefore, even if the complainant
consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may
arise which call into question what factors prompted her apparent consent. Section 265(3) of the
Criminal Code enumerates a series of conditions -- including submission by reason of force, fear,
threats, fraud or the exercise of authority -- under which the law will deem an absence of consent
in assault cases, notwithstanding the complainant's ostensible consent or participation. In a
situation where the trier of fact finds that the complainant did not want to be touched sexually and
made her decision to permit or participate in the sexual assault activity as a result of an honestly
held fear, the law deems an absence of consent and the third component of the actus reus of
sexual assault is established. The complainant's fear need not be reasonable, nor must it be
communicated to the accused in order for consent to be vitiated. While the plausibility of the
alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of
the complainant's claim that she consented out of fear, the approach is subjective. If, as in this
case, the complainant's testimony establishes the absence of consent beyond a reasonable doubt,
the actus reus analysis is complete, and the trial judge should have turned his attention to the
accused's perception of the encounter and the question of whether the accused possessed the
requisite mens rea.

The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being
reckless of or wilfully blind to, a lack of consent on the part of the person touched.

The accused may challenge the Crown's evidence of mens rea by asserting an honest but mistaken
belief in consent. The defence of mistake is simply a denial of mens rea. It does not impose any
burden of proof upon the accused. The accused need not testify in order to raise the issue.
Support for the defence may stem from any of the evidence before the Court, including the
Crown's case-in-chief and the testimony of the complainant. However, as a practical matter, this
defence will usually arise in the evidence called by the accused.

Consent is an integral component of the mens rea, but considered from the perspective of the
accused. In order to cloak the accused's actions in moral innocence, the evidence must show that
he believed that the complainant communicated consent to engage in the sexual activity in
question. A belief by the accused that the complainant, in her own mind, wanted him to touch her
but did not express that desire, is not a defence. The accused's speculation as to what was going
on in the complainant's mind provides no defence.

There is a difference in the concept of "consent" as it relates to the state of mind of the
complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect
of the mens rea. For the purposes of the actus reus "consent" means that the complainant in her
mind wanted the sexual touching to take place. In the context of mens rea -- specifically for the
purposes of the honest but mistaken belief in consent -- "consent" means that the complainant
had affirmatively communicated by words or conduct her agreement to engage in sexual activity
with the accused. The two parts of the analysis must be kept separate.

Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the
mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and
273.2 of the Criminal Code.

The accused's putting consent into issue is synonymous with an assertion of an honest belief in
consent. If his belief is found to be mistaken, then honesty of that belief must be considered. As
an initial step the trial judge must determine whether any evidence exists to lend an air of reality
to the defence. If so, then the question which must be answered by the trier of fact is whether the
accused honestly believed that the complainant had communicated consent. Any other belief,
however honestly held, is not a defence. Moreover, to be honest the accused's belief cannot be
reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss.
273.1(2) and 273.2. If at any point the complainant has expressed a lack of agreement to engage
in sexual activity, then it is incumbent upon the accused to point to some evidence from which he
could honestly believe consent to have been re-established before he resumed his advances. If
this evidence raises a reasonable doubt as to the accused's mens rea, the charge is not proven.

Here, the accused knew that the complainant was not consenting before each encounter. The trial
judge ought to have considered whether anything occurred between the communication of non-
consent and the subsequent sexual touching which the accused could honestly have believed
constituted consent. The trial record conclusively establishes that the accused's persistent and
increasingly serious advances constituted a sexual assault for which he had no defence. But for his
errors of law, the trial judge would necessarily have found the accused guilty. Since a new trial
would not be in the interests of justice, this Court can properly exercise its discretion under s.
686(4) of the Code and enter a conviction.

Whether the accused took reasonable steps to ascertain that the complainant was consenting is a
question of fact to be determined by the trier of fact only after the air of reality test has been met.
Given the way the trial and appeal were argued, s. 273.2(b) did not have to be considered.

Per L'Heureux-Dubé and Gonthier JJ.: Agreement was expressed generally with the reasons of
Major J. on most issues.

Canada is a party to the Convention on the Elimination of All Forms of Discrimination against
Women, which requires respect for and observance of the human rights of women. Violence
against women is as much a matter of equality as it is an offence against human dignity and a
violation of human rights. These human rights are protected by ss. 7 and 15 of the Canadian
Charter of Rights and Freedoms and their violation constitutes an offence under the assault
provisions of s. 265 and under the more specific sexual assault provisions of ss. 271, 272 and 273
of the Criminal Code.

This case is not about consent, since none was given. It is about myths and stereotypes. The trial
judge believed the complainant and accepted her testimony that she was afraid and he
acknowledged her unwillingness to engage in any sexual activity. However, he gave no legal effect
to his conclusion that the complainant submitted to sexual activity out of fear that the accused
would apply force to her. The application of s. 265(3) requires an entirely subjective test. As
irrational as a complainant's motive might be, if she subjectively felt fear, it must lead to a legal
finding of absence of consent.

The question of implied consent should not have arisen. The trial judge's conclusion that the
complainant implicitly consented and that the Crown failed to prove lack of consent was a
fundamental error given that he found the complainant credible, and accepted her evidence that
she said "no" on three occasions and was afraid. This error does not derive from the findings of
fact but from mythical assumptions. It denies women's sexual autonomy and implies that women
are in a state of constant consent to sexual activity.

The majority of the Court of Appeal also relied on inappropriate myths and stereotypes.
Complainants should be able to rely on a system free from such myths and stereotypes, and on a
judiciary whose impartiality is not compromised by these biased assumptions.

The findings necessary to support a verdict of guilty on the charge of sexual assault were made. In
particular, there was no evidence that would give an air of reality to a defence of honest but
mistaken belief in consent for any of the sexual activity which took place in this case. Section
273.2(b) precludes an accused from raising that defence if he did not take reasonable steps in the
circumstances known to him at the time to ascertain that the complainant was consenting. The
position that the nature of the defence of honest but mistaken belief does not need to be based on
reasonable grounds as long as it is honestly held has been modified by the enactment of s.
273.2(b), which introduced the "reasonable steps" requirement.

Finally, on the facts as found at trial, s. 273.1(2)(d) also applies to this case and could not be
ignored by the trial judge.

Per McLachlin J.: The reasons of Major J. and the finding of L'Heureux-Dubé J. that stereotypical
assumptions lay at the heart of this case were agreed with. These stereotypical assumptions no
longer find a place in Canadian law.

R. v. Levigne, [2010] 2 S.C.R. 3
The accused communicated by computer for a sexual purpose with an undercover police officer
posting as a 13-year-old boy, "JG". Throughout their online chat sessions, the accused reiterated
his wish to perform oral sex on JG. The accused eventually arranged to meet JG at a local
restaurant where the accused, upon his arrival, was arrested and charged with "luring a child"
under s. 172.1(1)(a) and (c) of the Criminal Code. By virtue of s. 172.1(3) of the Code, an accused is
presumed by law, in [page4] the absence of evidence to the contrary, to have believed that he
was communicating with an underage sexual target and, under subs. (4), it is not a defence to a
charge that the accused believed that the person was not underage, unless he took reasonable
steps to ascertain the age of the person. At trial, the accused acknowledged that he took no steps
to ascertain JG's real age and testified that he did not believe him to be 13 because his online
profile indicated that he was 18, even though, at the very beginning of their chat, JG had informed
the accused that the age on his profile was wrong. The trial judge acquitted the accused. He did
not apply s. 172.1(4) because the accused's belief was not put forward as a defence and, with
respect to subs. (3), concluded that it was reasonably possible that the accused, despite all
indications, believed he was dealing with an adult who was representing himself as a 13-year-old.
The Court of Appeal overturned the acquittals and substituted convictions, finding that the trial
judge had misapprehended the combined effect of s. 172.1(3) and (4) of the Code, notably in
failing to apply the requirement in subs. (4) to take reasonable steps to ascertain JG's age.
Held: The appeal should be dismissed.

Read together and harmoniously with the overarching purpose of s. 172.1, the combined effect of
subss. (3) and (4) should be understood and applied this way. Where it has been represented to
the accused that the person with whom he or she is communicating by computer is underage, the
accused is presumed to have believed that the interlocutor was in fact underage. This presumption
is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that
the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the
steps taken must be reasonable in the circumstances. The prosecution will fail where the accused
took reasonable steps to ascertain the age of his or her interlocutor and believed that the
interlocutor was not underage. In this regard, the evidential burden is on the accused but the
persuasive burden is on the Crown. Such evidence will at once constitute "evidence to the
contrary" under s. 172.1(3) and satisfy the "reasonable steps" requirement of s. 172.1(4). Where
the evidential burden of the accused has been discharged, he or she must be acquitted if the trier
of fact is left with a reasonable doubt whether the accused in fact believed that his or her
interlocutor was not underage.

In this case, the accused's convictions must be upheld. The "reasonable steps" invoked by the
accused were in fact neither "reasonable" nor "steps to ascertain [page5] the age of the person"
with whom he was communicating by computer for the avowed purpose of his own sexual
gratification. Rather, they were circumstances which explain why he in fact took no steps to
ascertain the actual age of JG. And this despite the latter's repeated assertion that he was only 13.

R. v. Sharpe, [2002] B.C.J. No. 610

Trial of Sharpe for four counts of possession of child pornography. Counts 1 and 3 involved
possession of stories for the purpose of distribution or sale. Counts 2 and 4 involved possession of
the photographs and the stories. The photographs depicted the sexual organs or the anal regions
of boys under 18 for a sexual purpose, or depicted boys engaged in explicit sexual activity. The
written materials constituted a 245-page of short stories, and a story written by Sharpe involving
young boys. Sharpe argued that the photographs did not constitute child pornography because they
depicted private recordings of lawful sexual activity, and were held exclusively for his private use.
He alleged that the boys were likely 14 years or older so that they were of the age of consent to
engage in sexual activity. He also contended that the photographs were kept in his private
possession. The evidence led by the Crown indicated that the boys in the photographs were 13 and
15 years old.
HELD: Sharpe was acquitted for counts 1 and 3, and was convicted of counts 2 and 4 with regard to
the photographs only.
There was no evidence that Sharpe kept the photographs in strict privacy, or that the photographs
were intended for the sole use of the boys in the photographs. With respect to the written
materials, it could not be said that they actively advocated or counselled the reader to engage in
the acts described. As well, they did not send a message that sex with children could and should
be pursued. Even if they did, they had sufficient artistic merit so as to fall within the exception
under section 163.1(6) of the Criminal Code. The issue of community standards of tolerance test
did not apply to this exception.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 24(2).

R. v. Alicandro, 2009 ONCA 133

Criminal law -- Child luring -- Elements of offence -- Accused communicating

with police officer posing as 13-year- old girl in Internet chat room -- Accused
transmitting video of himself masturbating to "girl" -- Accused properly convicted
under s. 172.1(1)(c) of Criminal Code of communicating with person believed to
be under 14 for purpose of facilitating commission of indecent act under s.
173(2) -- Accused's belief that he was communicating with person under 14
sufficient to fix him with liability under s. 172.1(1)(c) despite fact that offence
under s. 173(2) requires exposure of genitals to person who is actually under 14 --
No defence to child luring charge that was impossible to complete offence of
exposing genitals to child -- Section 173(2) not requiring that accused and victim
be in same place -- Section 173(2) applying to images sent over Internet
-- Criminal Code, ss. 172.1(1)(c), 173(2).

Criminal law -- Sentence -- Child luring -- Accused communicating with police

officer posing as 13-year-old girl in Internet chat room, engaging in sexually
explicit conversation and transmitting video of himself masturbating -- Accused
having no criminal record -- Custodial sentence of 90 days intermittent followed
by two years' probation affirmed on appeal -- Deterrence and denunciation being
primary sentencing considerations for child luring offences.

Criminal law -- Indecent act -- Exposure -- Offence of exposing genitals to child

not requiring that accused and victim be in same place and applying to images sent
over Internet -- Criminal Code, R.S.C. 1985, c. C-46, s. 173(2).

The accused struck up a conversation with a police officer posing as a 13-year-old

girl in an Internet chat room, quickly moved the conversation in a sexual direction
and transmitted a video of himself masturbating to ejaculation to the "girl". The
accused was convicted of communicating with a person he believed to be under the
age of 14 for the purpose of facilitating the commission of the offence of exposing
his genitals to a child contrary to s. 172.1(1)(c) of the Criminal Code. He was
sentenced to 90 days in jail, to be served intermittently, followed by two years'
probation. He appealed the conviction and the sentence.

Held, the appeal should be dismissed.

The accused was properly convicted of Internet child luring, communicating over a
computer system for the purpose of facilitating the commission of an offence under
s. 173(2) of the Code despite the fact that an offence under s. 173(2) requires
exposure of one's genitals to a person who is actually under the age of 14. Section
172.1 creates an inchoate offence. Liability for inchoate offences turns on what the
accused believed the material facts to be and not what those facts actually were. If
the Crown proves that the culpable mens rea existed with the prohibited conduct,
the offence under s. 172.1(1)(c) is made out regardless of whether the designated
crime is ever committed, attempted or is even factually possible.

Section 173(2) of the Code applies to images sent over the Internet. The phrase "in
any place" in s. 173(2) speaks to the location where the perpetrator exposes
[page174] himself. There is no requirement that the accused and the victim must be
in the same place when the offence is committed.

The accused had no criminal record and did not actually expose himself to a young
person. Nevertheless, a short custodial sentence was appropriate. Deterrence and
denunciation are the primary considerations when sentencing for an offence like
the one committed here.
APPEAL from the conviction entered by J.E. Allen J. of the Ontario Court of
Justice dated December 12, 2007 for child luring and from the sentence imposed
on December 20, 2007.

R. v. Legare, 2009 SCC 56

Appeal by the accused, a 32-year-old man, from the Alberta Court of Appeal's decision to set aside
his acquittal and order a new trial. The accused engaged in two private online chats with the
female complainant, who was 12 years old at the time. The chats were sexual in nature, with both
parties indicating a desire to engage in sexual activity with one another. The accused inquired
about the complainant's age and she replied that she was 13. The accused claimed to be 17 years
old. The complainant gave the accused her phone number and the accused gave her his postal
address. The accused then called the complainant and told her that he would have loved to
perform oral sex on her. The complainant hung up and there were no more phone calls. The
accused was charged with one count of invitation to sexual touching, contrary to s. 152 of the
Criminal Code, and one count of luring a child, contrary to s. 172.1(1)(c). The accused was
acquitted of both counts. The Court of Appeal held that the trial judge had adopted an unduly
narrow interpretation of s. 172.1(1)(c) and had misapprehended the elements of the offence. The
Court of Appeal affirmed the acquittal of the accused on the first count, but set aside his acquittal
on the second count and ordered a new trial.

HELD: Appeal dismissed.

In acquitting the accused, the trial judge adopted an unduly restrictive construction of s. 172.1(1)
(c) and, in the result, misapprehended the essential elements of the offence. Section 172.1(1)(c)
created an incipient or "inchoate" offence, that is, a preparatory crime that captured otherwise
legal conduct meant to culminate in the commission of a completed crime. The offender did not
need to meet or intend to meet the victim with a view to committing any of the specified
secondary offences. Section 172.1(1)(c) comprised three elements: (1) an intentional
communication by computer; (2) with a person whom the accused knew or believed to be under
14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary
offence with respect to the underage person. In this context, "facilitating" included helping to bring
about and making easier or more probable. The intention of the accused had to be determined
subjectively. The accused had to have been shown to have "engage[d] in the prohibited
communication with the specific intent of facilitating the commission of one of the designated
offences" with respect to the underage person who was the intended recipient of the
communication. In determining whether the Crown had discharged its burden under s. 172.1, it
was neither necessary nor particularly helpful for trial judges to recast every element of the
offence in terms of its actus reus and its mens rea. In this unusual context, determining whether
each of the essential elements that were set out constituted all or part of the actus reus or mens
rea of s. 172.1(1)(c) was of no assistance in reaching the appropriate verdict on a charge under
that provision. Finally, it was neither necessary nor necessarily sufficient for the impugned acts of
the accused to be objectively capable of facilitating the commission of the specified secondary
offence with respect to the underage person concerned. Accordingly, the content of the
communication was not necessarily determinative.

R. v. Creighton, (1993) 3 S.C.R. 3

Over an 18-hour period, the accused, a companion of his and the deceased shared a large quantity
of alcohol and cocaine at the deceased's apartment. With the deceased's consent, the accused
injected a quantity of cocaine into her forearm. She immediately began to convulse violently and
appeared to cease breathing. Subsequent expert testimony confirmed that, as a result of the
injection, she had experienced a cardiac arrest, and later asphyxiated on the contents of her
stomach. Both the accused and his companion attempted unsuccessfully to resuscitate the
deceased. The companion indicated he wanted to call for emergency assistance but the accused,
by verbal intimidation, convinced him not to. The accused placed the deceased, who was still
convulsing, on her bed. He then proceeded to clean the apartment of any possible fingerprints,
and the two men then left. The companion returned unaccompanied to the deceased's apartment
six to seven hours later and called for emergency assistance. The deceased was thereupon
pronounced dead. The accused was charged with manslaughter. Defence counsel conceded at trial
that the injection into the deceased's body constituted "trafficking" within the meaning of s. 4(1)
of the Narcotic Control Act. The Crown argued that the accused was guilty of manslaughter as the
death was the direct consequence of an unlawful act, contrary to s. 222(5)(a) of the Criminal
Code. The accused was convicted, and the Court of Appeal upheld the conviction. This appeal is to
determine whether the common law definition of unlawful act manslaughter contravenes s. 7 of
the Canadian Charter of Rights and Freedoms.

  Held: The appeal should be dismissed.  

Per L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: The test for the mens rea of unlawful act
manslaughter is objective foreseeability of the risk of bodily harm which is neither trivial nor
transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required.
This test does not violate the principles of fundamental justice under s. 7 of the Charter. The mens
rea requirement of foreseeability of harm is entirely appropriate to the stigma associated with the
offence of manslaughter. By the very act of calling the killing manslaughter, the law indicates that
the killing is less blameworthy than murder. Nor does the sentence attached to manslaughter
require elevation of the degree [page5] of mens rea for the offence. Finally, the principle that
those causing harm intentionally must be punished more severely than those causing harm
unintentionally is strictly observed in the case of manslaughter. The standard of mens rea required
for manslaughter is thus appropriately tailored to the seriousness of the offence.

Risk of bodily harm is not appreciably different from risk of death in the context of manslaughter:
when the risk of bodily harm is combined with the established rule that a wrongdoer must take his
victim as he finds him and the fact that death did in fact occur, the distinction disappears. Further,
while the rule that there must be symmetry between the mens rea and the prohibited
consequences of the offence is a general rule of criminal law, it is not a principle of fundamental
justice. Just as it would offend fundamental justice to punish a person who did not intend to kill for
murder, so it would equally offend common notions of justice to acquit a person who has killed
another of manslaughter and find him guilty instead of aggravated assault on the ground that
death, as opposed to harm, was not foreseeable. Fundamental justice does not require absolute
symmetry between moral fault and the prohibited consequences. Consequences, or the absence of
consequences, can properly affect the seriousness with which Parliament treats specified conduct.
Policy considerations support a test for the mens rea of manslaughter based on foreseeability of
the risk of bodily injury, rather than death.

The objective test for criminal fault, which requires a "marked departure" from the standard of the
reasonable person, should not be extended to incorporate a standard of care which varies with the
background and predisposition of each accused. Considerations of principle and policy dictate the
maintenance of a single, uniform legal standard of care for such offences, subject to one
exception: incapacity to appreciate the nature of the risk which the activity in question entails. The
principle that the criminal law will not convict the morally innocent does not require consideration
of personal factors short of incapacity. The criminal law, while requiring mental fault as an element
of a conviction, has steadfastly [page6] rejected the idea that a person's personal characteristics
can (short of incapacity) excuse the person from meeting the standard of conduct imposed by the
law. The fundamental premises upon which the criminal law rests mandate that personal
characteristics not directly relevant to an element of the offence serve as excuses only at the point
where they establish incapacity, whether the inability to appreciate the nature and quality of one's
conduct in the context of intentional crimes, or the incapacity to appreciate the risk involved in
one's conduct in the context of crimes of manslaughter or penal negligence.

While the legal duty of the accused is not particularized by his or her personal characteristics short
of incapacity, it is particularized in application by the nature of the activity and the circumstances
surrounding the accused's failure to take the requisite care. The question is what the reasonably
prudent person would have done in all the circumstances. The legal standard of care is always the
same -- what a reasonable person would have done in all the circumstances. The de facto or
applied standard of care, however, may vary with the activity in question and the circumstances in
the particular case.

In cases of penal negligence, the first question is whether the actus reus is established. This
requires that the negligence constitute a marked departure from the standards of the reasonable
person in all the circumstances of the case. The next question is whether the mens rea is
established. As is the case with crimes of subjective mens rea, the mens rea for objective foresight
of risking harm is normally inferred from the facts. The standard is that of the reasonable person
in the circumstances of the accused. If a prima facie case for actus reus and mens rea is made
out, it is necessary to ask a further question: did the accused possess the requisite capacity to
appreciate the risk flowing from his conduct? If this further question is answered in the affirmative,
the necessary moral fault is established and the accused is properly convicted. If not, the accused
must be acquitted.

In this case a reasonable person in all the circumstances would have foreseen the risk of bodily
harm. At the very least, a person administering a dangerous drug [page7] like cocaine to another
has a duty to inform himself as to the precise risk the injection entails and to refrain from
administering it unless reasonably satisfied that there was no risk of harm. As that was not the
case here, as the trial judge found, the conviction was properly entered and should not be
disturbed.

Per La Forest J.: Both at the constitutional level and in the interpretation of offences, the adoption
of subjective rather than objective mens rea was favoured. The subjective view of mens rea
underlines that no one will be punished for anything he or she did not intend or at least advert to,
and its use supports one's feeling that a morally innocent person will not be punished. The
objective view, however qualified, does not fully serve these ends, and loses most of the practical
advantages sought to be attained by the objective approach. Objective mens rea as to
consequence should accordingly not be qualified in the manner proposed by Lamer C.J. The
position taken by McLachlin J. would also seem to be favoured by this Court's decision in R. v.
DeSousa. McLachlin J.'s view that foreseeability of the risk of bodily injury, rather than death, is
sufficient was also preferred.

Per Lamer C.J. and Sopinka, Iacobucci and Major JJ.: There is no general constitutional principle
requiring subjective foresight for criminal offences. There are, however, certain crimes where,
because of the special nature of the stigma attached to a conviction therefor or the available
penalties, the principles of fundamental justice require a mens rea reflecting the particular nature
of that crime. In analysing social stigma, the court must first look to the conduct being punished to
determine if it is of sufficient gravity to import significant moral opprobrium on the individual found
guilty of engaging in such conduct. The second branch of the stigma test concerns the moral
blameworthiness not of the offence, but of the offender found guilty of committing it. As a general
proposition, more stigma will attach to those who knowingly engage in wrongful conduct than to
those who recklessly or inadvertently engage in the same conduct.

Unlawful act manslaughter falls into the class of offences where a mental element in relation to the
consequence must be established, and the stigma attached to a conviction for culpable homicide is
significant enough [page8] to require, at a minimum, objective foresight of the risk of death in
order for the offence to comply with s. 7 of the Charter. Section 222(5)(a) of the Code is open to
the interpretation that objective foreseeability of death is required by virtue of the section, an
interpretation that would render it constitutional. In accordance with the requirements of s. 7 of
the Charter, the proper interpretation of unlawful act manslaughter under s. 222(5)(a) of the Code
requires the Crown to prove beyond reasonable doubt: (a) that the accused has committed an
unlawful act which caused the death of the deceased; (b) that the unlawful act must be one that is
objectively dangerous (i.e., in the sense that a reasonable person would realize that it gives rise to
a risk of harm); (c) that the fault requirement of the predicate offence, which cannot extend to
offences of absolute liability, was in existence and (d) that a reasonable person in the
circumstances of the accused would foresee the unlawful act giving rise to a risk of death.

In determining whether a reasonable person in the circumstances of the accused would have
foreseen the risk of death arising from the unlawful act, the trier of fact must pay particular
attention to any human frailties which might have rendered the accused incapable of having
foreseen what the reasonable person would have foreseen. Once the Crown has established
beyond a reasonable doubt that this reasonable person in the context of the offence would have
foreseen the risk of death created by his or her conduct, the focus of the investigation must shift
to the question of whether a reasonable person in the position of the accused would have been
capable of foreseeing such a risk.

Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must
ask the threshold question of whether a reasonable person in the same circumstances would have
been aware that the likely consequences of his or her unlawful conduct would create the risk of
death. If the answer is no, then the accused must be acquitted. If the answer is yes, however, the
trier must then ask whether the accused was unaware (a) because he or she did not turn his or
her mind to the consequences of the conduct and thus to the risk of death likely to result, or (b)
because he or she lacked the capacity to turn his or her mind to the consequences of the conduct
and thus to the risk of death likely to result, due to human frailties. If the answer is (a), the
accused must be convicted, since the criminal law cannot allow the absence of actual awareness to
be an excuse to criminal liability. If the answer is (b), the trier must ask whether in the context of
the particular [page9] offence, the reasonable person with the capacities of the accused would
have made him- or herself aware of the likely consequences of the unlawful conduct and the
resulting risk of death. In this third and final stage of the inquiry, the accused's behaviour is still
measured against the standard of the reasonable person, but the reasonable person is constructed
to account for the accused's particular capacities and resulting inability to perceive and address
certain risks.

Human frailties encompass personal characteristics habitually affecting an accused's awareness of

the circumstances which create risk. Such characteristics must be relevant to the ability to
perceive the particular risk. In addition, the relevant characteristics must be traits which the
accused cannot control or otherwise manage in the circumstances. Two central criteria are the
gravity of the offence and the inherent purposefulness of the conduct involved.

In this case the trial judge concluded that the accused foresaw the risk of death or serious bodily
harm in injecting the deceased with cocaine, given the lethal nature of the narcotic in question and
the fashion in which it was administered, the familiarity of the accused with the drug and its
dangerous properties. The trial judge erred in adopting the standard of objective foreseeability
with respect to unlawful act manslaughter contained in an earlier line of cases which referred to
"the risk of some harm", but since he found that the accused actually did appreciate the risk of
death, it is clear that had he instructed himself properly, he would necessarily have arrived at the
same verdict. There is therefore no substantial wrong or miscarriage of justice which would require
a new trial.

Ochoa v. Canadian Mountain Holidays Inc., 7 BCLR (3d) 182

Plaintiff sued the defendants Canadian Mountain Holidays (CMH) et al in criminal negligence, or in
the alternative, negligence for the death of her husband during a skiing expedition. The deceased
was one of eight people who were killed during an avalanche while heli-skiing in Western Canada.
Five guides decided that the run was suitable for skiing that day. The deceased left behind the
plaintiff, and six children. He was a very wealthy and successful Mexican businessman. The issues
were whether the senior guide was criminally negligent in taking her guests on the run, and if not,
whether any of the defendants were negligent in relation to the decision to ski that run. Finally,
there was the issue of whether the waiver of liability signed by the deceased was binding.

HELD: Action dismissed.

The court found the plaintiff's witnesses were not experts in the field of heli-skiing in avalanche
conditions. However, all the evidence was considered. Establishing criminal negligence required
showing negligence, acts which constituted a marked departure from the norm, and an objective
test that the defendant failed to direct her mind to the risk and the need to take care. The guide's
evidence was credible. She remained observant, and did the kind of testing she normally did on
that day. There was absolutely no evidence which established a departure constituting criminal
negligence. All the guides decided it was safe to ski the run, and this decision was not based on a
negligent application of the knowledge of reasonably competent heli-ski guides. Nor did the
particular guide fail to exercise the skill and care of her position. The CMH system for avalanche
forecasting was not shown to be below the standard in the profession, it was among the highest,
and the industry standards were not negligent. None of the defence witnesses considered the
profile of the run revealed a potential deep layer instability problem. This was revealed only in
hindsight. The action had to be dismissed. The court nevertheless considered the waiver of
liability, and found the deceased knew or had every reason to know that the document affected his
legal rights. He had participated in such expeditions before, and had every opportunity to read the
waiver.

R. v. Cooper, 79 CCC (3d) 289 (SCC Not found

R. v. Fontaine, 2002 MBCA 107, 7 CR (6th) 139

Appeal by Fontaine from conviction for first degree murder. Fontaine attempted suicide by
crashing his car. He survived, but a passenger died. Fontaine was charged with first degree
murder. In instructing the jury on transfer of intent, the judge stated that Fontaine was guilty if he
intended to kill himself and the passenger died because of his attempt. The criminal legislation
regarding transfer of intent for murder was ambiguous. The jury sent notes that it was
deadlocked. The judge disclosed the essence of the notes but refused to release them. Fontaine
was convicted.

HELD: Appeal allowed.

A new trial was ordered. The judge erred in her charge on transferred intent and it was impossible
to know whether the jury convicted because of it. The legislation's ambiguity was resolved by
reference to its context, ordinary sense, and harmony with the legislative purpose. Equating the
mens rea of suicide with murder was not consistent with its stigma, penalties, or blameworthiness.
Suicide was not a criminal offence, as contrasted with murder, which was the most serious crime
and required specific intent. The jury's notes regarding deadlock were not administrative. They
concerned Fontaine's vital interests, and non disclosure violated his rights to make full answer and
defence and to fairness and openness, increasing the need for a new trial.

Moreover, where one act is legal and the other act is illegal, the transfer of intent from one to
another should not necessarily follow.

R. v. J.S.R., 2008 ONCA 544 – not found.

R. v. Russell, [2001] 2 SCR 804

The accused was committed to stand trial for several offences, including forcible confinement and
first degree murder. The events took place at the home of S with whom the accused was
romantically involved. The accused threatened her with a knife, allegedly sexually assaulted her
and tied her up in the bedroom. He then left S and went to the basement where, a few minutes
later, he stabbed S's tenant to death. The preliminary inquiry judge held that the accused could be
committed to trial for first degree murder, rather than second degree murder, on the basis of s.
231(5) of the Criminal Code, which states that murder is first degree if the accused caused the
death of another person while committing an offence enumerated under that provision -- in this
case, forcible confinement. The committal was quashed on certiorari, and a committal for second
degree murder was substituted on the theory that s. 231(5) requires the victim of the murder and
the victim of the enumerated offence to be the same person. The Court of Appeal restored the
preliminary inquiry judge's order committing [page805] the accused to trial for first degree
murder. The court held that, even if the preliminary inquiry judge had erred in his interpretation of
s. 231(5), the error constituted an error within his jurisdiction and accordingly was not reviewable
on certiorari.

Held: The appeal should be dismissed.

If the preliminary inquiry judge erred in holding that s. 231(5) of the Criminal Code may apply
even where the victim of the murder and the victim of the enumerated offence are not the same
person, such an error is reviewable on certiorari. The scope of certiorari is very limited, permitting
review only where it is alleged that the tribunal has acted in excess of its assigned statutory
jurisdiction. It is jurisdictional error for a preliminary inquiry judge to commit an accused to trial
where there is no evidence on an essential element of the offence or, as here, in the absence of
evidence as to an essential condition of a sentence-classification provision like s. 231. The "while
committing" requirement is an essential condition to the application of s. 231(5).

The preliminary inquiry judge did not err in finding that s. 231(5) may apply even where the victim
of the murder and the victim of the enumerated offence are not the same. If the ordinary meaning
of the words is consistent with the context in which the words are used and with the object of the
Act, then that is the interpretation that should govern. The language of s. 231(5) is clear. The
provision does not state that the victim of the murder and the victim of the enumerated offence
must be one and the same. It requires only that the accused have killed while committing or
attempting to commit one of the enumerated offences. If Parliament had intended to restrict the
scope of s. 231(5), it could have done so explicitly. Judgments from this Court dealing with s.
231(5) never intended to foreclose its application to multiple-victim scenarios. None of those
previous cases involved multiple-victim scenarios, and the issue was simply not addressed by the
Court. Section 231(5) reflects Parliament's determination that murders committed in connection
with crimes of domination are particularly blameworthy and deserving of more severe punishment.
The expression "while committing or [page806] attempting to commit" requires the killing to be
closely connected, temporally and causally, with an enumerated offence. As long as that
connection exists, it is immaterial that the victim of the killing and the victim of the enumerated
offence are not the same.

In this case, there was sufficient evidence to warrant committing the accused to trial for first
degree murder. The existence of a temporal link was conceded, and the preliminary inquiry judge
found that the Crown had adduced sufficient evidence to allow a jury to find the requisite causal
connection. A preliminary inquiry judge's determination of sufficiency is entitled to the greatest
deference; only if there is no evidence on an element of the offence, or on an essential condition of
s. 231(5), can a reviewing court vacate the committal. While the jury would be entitled to find that
the accused's intention in confronting the tenant was entirely independent of the forcible
confinement of S, it would also be entitled to conclude that the accused murdered the tenant to
facilitate his forcible confinement of S, or that he forcibly confined S to facilitate his murder of the
tenant.
R. v. Tran, [2010] 3 S.C.R. 350
The accused had knowledge that his estranged wife was involved with another man. One
afternoon, the accused entered his estranged wife's home, unexpected and uninvited, and he
discovered his estranged wife in bed with her boyfriend. The accused viciously attacked them both,
killing the boyfriend by repeatedly stabbing him. Having accepted the defence of provocation, the
trial judge acquitted the accused of murder, but convicted him of manslaughter. The Court of
Appeal allowed the Crown's appeal and substituted a conviction for second degree murder.

Held: The appeal should be dismissed.

Provocation is a partial defence exclusive to homicide which reduces the conviction from murder to
manslaughter. There is both an objective and a subjective component to provocation in s. 232 of
the Criminal Code. Once it is established that the wrongful act or [page351] 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.
The "ordinary person" standard is informed by contemporary norms of behaviour, including
fundamental values such as the 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. A restrictive approach to the "ordinary person" approach
ignores relevant contextual circumstances. Conversely, an individualized approach would lead to
anomalous results if all the accused's characteristics were taken into account; it would also ignore
the cardinal principle that the criminal law is concerned with setting standards of human
behaviour.

It is important not to subvert the logic of the objective inquiry. The proper approach is one that
takes into account some, but not all, of the individual characteristics of the accused. Personal
circumstances may be relevant to determining whether the accused was in fact provoked -- the
subjective element of the defence -- but they do not shift the ordinary person standard to suit the
individual accused. There is an important distinction between contextualizing the objective
standard, which is necessary and proper, and individualizing it, which would only serve to defeat
its purpose.

The subjective element of the defence of provocation focuses on the accused's subjective
perceptions of the circumstances, including what the accused believed, intended or knew. The
accused must have killed because he was provoked and not merely because the provocation
existed. The requirement of suddenness serves to distinguish a response taken in vengeance from
one that was provoked. Suddenness applies to both the act of provocation and the accused's
reaction to it.

Here, on the basis of the trial judge's findings of fact and uncontested evidence, there was no air
of reality to the defence of provocation. The conduct at issue does not amount to an "insult" within
the meaning of s. 232 of the [page352] Criminal Code, as the accused alleges, nor does it meet the
requirement of suddenness. The discovery of his estranged wife's involvement with another man is
not an "insult" within the meaning of s. 232 of the Criminal Code. The accused's view of his
estranged wife's sexual involvement with another man after the couple had separated -- found at
trial to be the insult -- cannot in law be sufficient to excuse a loss of control in the form of a
homicidal rage and constitute an excuse for the ordinary person of whatever personal
circumstances or background. Furthermore, there was nothing sudden about the accused's
discovery and it cannot be said that it struck upon a mind unprepared for it.
POSESSION

R. v. York, (2005), 193 C.C.C. (3d) 331 (B.C. C.A.)

Appeal by York from a conviction for possession of stolen property. York operated a warehouse
with several business partners. York discovered vans with furniture parked outside the warehouse.
One of his business partners refused to disclose the origin of the goods. York realized the goods
were stolen and drove the vans away in order to take them off his property. York was stopped by
the police and charged with theft and possession of stolen property. At trial, the judge stated that
he had reasonable doubt about York's involvement in the theft, that he believed York's explanation
about the manner in which York came into possession of the goods but convicted York.

HELD: Appeal allowed.

While York knew the goods were stolen and he exercised control over the goods for a brief period
of time, he did not take the objects into custody with the intention of using them in a prohibited
manner. York's conduct was inconsistent with any intention to retain or deal with the goods. The
judge should have acquitted York given that he believed his explanation and that he had
reasonable doubt about his guilt.

21  In this case, the appellant was charged with having in his possession property knowing that it
was obtained by the commission in Canada of an offence punishable by indictment. Intent is an
essential ingredient of both the offences of theft and possession of stolen property. The appellant
testified. He knew the goods were stolen. He also exercised physical control over the goods.
However, there was no evidence that he had any intention to deprive the rightful owner of the
stolen goods. As well, it appears the judge found the appellant's explanations regarding his
discovery of the goods to be reasonable. The judge said that he had a reasonable doubt that the
appellant "was aware of the theft or of the presence of the stolen property in his warehouse". He
then went on to say that the appellant provided an innocent explanation. With respect, the judge
made an error in law when he stated that:


o [38] While the presence of the reasonable doubt must necessarily result in Mr.
York's acquittal on Count 1, it does not, in my opinion, lead to an acquittal on the
other counts. The evidence of Mr. York, even if I were to accept it as true rather
than as merely raising a reasonable doubt, renders him guilty of the offence of
possession of stolen property as charged in Counts 2 through 5 inclusive, for the
reasons I will now set out.

[Emphasis added.]  

R. v. Marshall, 1968 CanLII 999 (AB CA)

R. v. Terrence, [1983] 1 S.C.R. 357
Respondent, the passenger in a stolen car, was charged with its possession contrary to s. 313 of
the Criminal Code. At trial, respondent's testimony -- (1) that he had accepted an invitation from
one of his friends to go for a ride in his "brother-in-law's car" and (2) that he did not know the car
to be stolen property -- was not contradicted by any direct evidence. The judge disbelieved him,
however, and proceeded on the assumption that the respondent's knowledge of the stolen
character of the vehicle was a proven fact and found him guilty. The Court of Appeal quashed the
conviction holding that some evidence of control on the accused's part was necessary to establish
possession under s. 3(4)(b). This appeal is to determine whether the word "possession" used in s.
3(4)(b) of the Code imports control as essential element.

  Held: The appeal should be dismissed.  

A measure of control on the part of the person deemed to be in possession is a constituent and
essential element of possession under s. 3(4)(b) of the Criminal Code. The "knowledge and
consent" required cannot exist without some measure of control over the subject-matter.

As I have indicated, I agree with the Court of Appeal that a constituent and essential element of
possession under s. 3(4)(b) of the Criminal Code is a measure of control on the part of the person
deemed to be in possession by that provision of the Criminal Code and accordingly I do not
consider that the Court of Appeal for the Province of Ontario erred in this regard.

R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253

On September 5, 2002, a computer technician arrived unannounced at the accused's house to
install [page254] a high-speed Internet connection the accused had ordered. The accused lived
with his wife and two children, aged three and seven, but was alone that day with his younger
daughter. When the technician opened the accused's Web browser, he noticed several links to both
adult and child pornography sites in the taskbar's "favourites" list, including two that were labelled
"Lolita Porn" and "Lolita XXX". He also saw a legal pornographic image, but he could not remember
afterwards if it was on the browser's home page or on the computer desktop. In the room, he
noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and
was pointed at the toys and at the child. Unable to finish his work on that day, the technician
returned the following morning and noted that everything had been "cleaned up": the child's toys
had been placed in a box, the videotapes could no longer be seen, the webcam was pointed at the
computer user's chair and the computer hard drive had been "formatted".
. The trial judge convicted the accused and the majority of the Court of Appeal upheld the
conviction.
[page255]
Held (Deschamps, Charron and Rothstein JJ. dissenting): The appeal should be allowed. The
accused's conviction is quashed and an acquittal is entered.
Per McLachlin C.J. and Binnie, Fish and Abella JJ.: 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. An ITO seeking a warrant to search for evidence of possession, rather than
accessing, must therefore provide reasonable grounds to believe that the alleged offender
possesses (or has possessed) digital files of an illegal image, and that evidence of that possession
will be found in the place to be searched at the time the warrant is sought. Here, the search and
seizure of the accused's computer infringed his right under s. 8 of the Charter. Even when corrected
and amplified on review, the ITO was insufficient to permit any justice of the peace, acting
reasonably, to find adequate grounds for the search. The ITO did not allege the distinct and
separate offence of accessing child pornography and, stripped of its defects and deficiencies, all
that really remained were two Internet links, seen four months earlier in the "Favourites" menu of
a Web browser on a computer that was subsequently formatted, deleting both links. The prior
presence of the two "Lolita" links supports a reasonable inference that the accused browsed a Web
site that contained explicit images of females under the age of 18, but this does not suffice to
establish possession.
[page256]
The misleading passages in the ITO that suggested that the technician had actually viewed illegal
pornography on the computer, rather than suspiciously labelled "favourites", must be excised.
That pornographic images of children were actually seen on the computer is an entirely false claim.
Aside from false statements, the ITO in several places gave an incomplete and misleading account
of the facts, in contravention of the informant's duty to make full and frank disclosure of all
material information. The ITO does not mention, as the voir dire revealed, that the two "favourites"
were "just scattered through the favourites" among additional links pointing to "regular adult
material". The failure to mention these facts creates a misleading impression. Once it is
understood that the suspicious "Favourites" were in fact exceptions, found together with much
more material that was undisputedly legal, the inference that the accused possessed illegal images
becomes significantly less compelling. Furthermore, the descriptions of the webcam and its
placement are juxtaposed immediately alongside the descriptions of the suspicious "Favourites"
and the technician's claims that he had "observed 'Lolita Porn'", clearly suggesting that the
accused might have been making (and possessing) his own illegal pornography. The ITO, however,
did not include a number of additional facts known to the police. First, the three-year-old child
mentioned, but not identified, in the ITO was in fact the accused's daughter. Second, the ITO
stated that the accused was alone in the house with the girl, but failed to mention that his wife
lived with them. Third, the ITO also failed to mention that the child was fully clothed, that there
was no evidence of abuse, that the computer room had a child gate and appeared to double as a
playroom for the child, and that the child was playing with the scattered toys in the middle of the
room when the technician arrived. While the reviewing judge found no deliberate attempt to
mislead, it is nonetheless evident that the police officer's selective presentation of the facts
painted a less objective and more villainous picture than the picture that would have emerged had
he disclosed all the material information available to him at the time. It seems much more
plausible that the accused was simply using the VCR and webcam to videotape his young daughter
at play for posterity's sake, rather than for any purpose connected to child pornography.
To conclude that evidence of possession would be found four months after the hard drive was
erased, one must accept either that the accused had made external copies of illegal images
present in the computer before [page257] formatting its hard drive or that he acquired additional
illegal images after the formatting. While the ITO seeks to establish inferences based on the likely
behaviour of the accused on the basis of generalizations made by B and H about the propensities
of certain "types of offenders" to hoard and copy illegal images, the ITO does not establish either
the veracity of the generalization about the alleged "type of offender", or that the accused is in
fact the "type" to which the generalization might have applied. The ITO contains no evidentiary
material in this regard apart from the bald assertion of the two police officers and there is virtually
nothing to describe, let alone establish, the expertise of the officers. Moreover, the class of
persons to whom specific proclivities are attributed is defined so loosely as to bear no real
significance. There is no reason to believe, on the basis of the information in the ITO as amplified,
that all child pornography offenders engage in hoarding, storing, sorting, and categorizing activity.
To permit reliance on broad generalizations about loosely defined classes of people is to invite
dependence on stereotypes and prejudices in lieu of evidence. It is not the role of courts to
establish by judicial fiat broad generalizations regarding the "proclivities" of certain "types" of
people, including offenders. Matters of this sort are best left to be established by the Crown,
according to the relevant standard -- in this case, reasonable grounds for belief. Here, two
suspiciously labelled links in the "Favourites" do not suffice to characterize a person as an habitual
child pornography offender of the type that seeks out and hoards illegal images. The fact that the
bulk of the pornographic material that the technician observed at the accused's house was legal
adult pornography suggests that the accused did not have a "pronounced" interest in child
pornography.

The presence of the webcam, which was functioning as a camcorder recording to a VCR, has only a
tenuous relation to the crime alleged. While it may be true that the accused was adept at
recording videotapes and storing the tapes for future use -- as is nearly everyone who owns a
camcorder -- this says nothing about his propensity to store a different kind of image (child
pornography), in a different medium (a computer, as opposed to videotape), acquired in a
different manner (downloading, as opposed to filming). To draw an inference that he is of the type
to hoard illegal images is to speculate impermissibly. Nor does the accused's conduct after the
technician's visit support the conclusion that he was the sort of person to seek out and hoard child
pornography. The accused might well have tidied up the room and formatted his computer simply
to avoid further embarrassment from having an outsider see the disorderly state of his home and
the evidence of his consumption [page258] of pornography on his computer. The accused's
conduct might raise suspicions but, as a matter of law, mere suspicion is no substitute for
reasonable grounds.

The evidence obtained as a result of the illegal search should be excluded under s. 24(2) of
the Charter. When the three relevant factors are balanced, admitting the illegally obtained evidence
in this case would bring the administration of justice into disrepute. The trial judge found no
deliberate attempt to mislead and no deliberate misconduct on the part of the officer who swore
the ITO, but the repute of the administration of justice would nonetheless be significantly eroded,
particularly in the long term, if criminal trials were permitted to proceed on the strength of
evidence obtained from the most private "place" in the home on the basis of misleading,
inaccurate, and incomplete ITOs upon which a search warrant was issued. The public must have
confidence that invasions of privacy are justified, in advance, by a genuine showing of probable
cause.
Per Deschamps, Charron and Rothstein JJ. (dissenting): A specific intention to deal with the object
in a particular manner is not an element of the offence of possession of child pornography.
Sections 4(3) and 163.1(4) of the Criminal Code indicate that possession of child pornography is
criminal in and of itself, irrespective of the use to which the accused intends to put the prohibited
material. The requisite mens rea will be established at trial if it is shown that the accused willingly
took or maintained control of the object with full knowledge of its character. The accused does not
need to have control in a place belonging to him or her, such as his or her hard drive. The
provision simply requires the material to be "in any place" for the use or benefit of the accused.
Therefore, even if an accused does not actually download offending material, possession is
established if the accused has control over the material for his or her use or benefit or for that of
someone else. When applying for a search warrant, it is sufficient that there be credible evidence
to support a reasonable belief that the search will provide evidence of commission of the offence.
Although the ITO could have been more elaborate in many respects, the omissions the accused
complains of do not support a conclusion that the ITO was so deficient that it did not provide the
authorizing judge with a sufficiently credible factual basis. The information [page259] concerning
the presence of the child, the toys, and the webcam was necessary to convey to the authorizing
judge the technician's concerns about the safety of the child. From this perspective, the facts that
the accused was the child's father and that he resided with his wife, which were not mentioned in
the ITO, were not determinative since, in the technician's mind, what was at stake was the safety
of a child. The references in the ITO to the removal of child pornography from the accused's
computer cannot be characterized as false. Viewed in context, there is no question that what had,
according to the technician, been removed from the computer were the links in the "favourites" list
to child pornography. Therefore the authorizing judge must have understood this to be the case.
Since there is no indication that the allegations or references were meant to mislead or were so
lacking in informational context, they should not be expunged from the ITO.

It was neither inappropriate nor erroneous to rely on the information provided by officers B and H
about the propensity of child pornography offenders to collect and hoard such materials. This
propensity, which seems to be notorious, has been accepted in numerous child pornography cases
as part of the factual backdrop giving rise to reasonable grounds for issuing search warrants. While
more contextual information on both the subject matter and the source would have made it easier
to understand and assess the officers' statements, there is no indication that they were not
qualified or that there was any intention to mislead. Consequently, it was open to the reviewing
judge to receive evidence which amplified the information and conclude that the authorizing judge
was provided with sufficient evidence. The positions the officers held in their respective forces
were also enough to support a conclusion that their statements had sufficient probative value to be
included in the ITO. Lastly, the officers did not state that the accused was a habitual child
pornography offender. The conversations between O and the other officers took place several
months after the technician's visits, and they related to what material might be found in the
computer and whether material would still be found there despite the time elapsed between the
visits and the swearing of the ITO. These are facts that O had to put before the authorizing judge.

Although there was a four-month delay between the technician's visits and the swearing of the
ITO, it was reasonable for the authorizing judge to conclude that the accused still had the
computer in question in his [page260] residence and that any "child pornography" was still in the
house. There was adequate information in the ITO about the storage of the materials, and no
reason to presume that the accused would have changed his computer after the visits and no
indication that the computer was in any way in need of being replaced. It was therefore
appropriate for O to rely on common sense and on the ongoing subscription to an Internet
connection to support his allegation that the computer was still in the accused's residence. The
police officers' statements concerning the proclivity of child pornography users to save and collect
such material could also serve as a basis for concluding that it was reasonable to believe that, if
the accused was this type of offender, evidence of the offence would still be found in the computer
after four months.

In this case, the facts alleged in the ITO, as amplified at the voir dire, were sufficient for the
reviewing judge to conclude that there was a basis for the authorizing judge's decision to issue the
warrant. The facts that there were several links to both adult and child pornography in the
"favourites" list and that a "graphic" pornographic image was prominently displayed on the
computer justified the authorizing judge's drawing the reasonable inference that the accused had a
conspicuous interest in this type of material. The position of the camera and the fact that it was
connected to a videotape recorder at the time of the technician's first visit, together with the
presence of both labelled and unlabelled videotapes, showed that he was interested in reproducing
images, accumulating such material, and keeping it for his future use. The accused's desire not to
arouse suspicion with respect to his reproduction of images or his computer practices could
reasonably be inferred from his actions after being informed that the technician needed to return.
There was a credibly based probability that the accused was in the habit of reproducing and saving
images and had a propensity to pornography, and more specifically to child pornography. While
the police officers' statements could not be used to demonstrate that he was a type of person who
was likely to be in possession of child pornography, given that there is credible independent
evidence of this, they do shed light on the implications of that evidence. In these circumstances,
the statements that child pornography offenders are collectors could only make it more likely that
evidence of the possession of prohibited material would still exist at the time the ITO was drafted.
R. v. Milne, [1992] 1 S.C.R. 697
The accused, through his company, supplied goods and services to H.B. Co., which paid for them
by sending the company a cheque. A month later, owing to an error by H.B. Co., a second cheque
was issued to the accused's company. Like the first one, the second cheque was deposited by the
accused in his company's account. The accused then appropriated the money by writing company
cheques in his own favour, reducing the balance of the account to practically nil. Despite leaving
repeated messages, a security officer for the H.B. Co. was unable to contact the accused
concerning the mistaken payment. The accused was later charged with theft under s. 322(1) of
the Criminal Code and convicted. A majority of the Court of Appeal set aside the conviction. This
appeal is to determine whether, in some circumstances, a transferee may commit theft in respect
of property for which the transferor has a right of recovery because of a mistake known to the
transferee.

  Held: The appeal should be allowed.  

Where a transferor mistakenly transfers property to a recipient, and the recipient knows of the
mistake, property does not pass for the purpose of the criminal law if under the law of property
the original transfer is void or [page698] voidable and the transferor has a right of recovery. The
distinction between void and voidable transfers has no purpose in the context of the criminal law.
In either case, where the law of property provides at least a right of recovery, property does not
pass for the purpose of the criminal law. If the recipient then converts the property to his own use,
fraudulently and without colour of right, and with intent to deprive the transferor of the property,
he is guilty of theft.

In the present case, the conviction should be restored. The trial judge found that the accused was
aware that the second cheque had been issued to his company by mistake. Therefore, property in
the cheque did not pass to his company for the purpose of the criminal law. The trial judge also
found that the accused's actions in depositing the second cheque in his company's account and
then withdrawing the money amounted to converting that money to his own use with intent to
deprive the H.B. Co. of its property. This conversion was done fraudulently and without colour of
right, since the accused was aware that the cheque had been issued by mistake.

R. v. DeMarco, [1973] OJ No 533 (Ont. C.A.)

1   This is an appeal by the accused from her conviction before His Honour Judge E.W. Grant in the
Court of General Sessions of the Peace at Brampton, on March 28, 1972 upon an indictment which
reads as follows:

o "The Jurors of Her Majesty the Queen present that JANET DEMARCO, of the City of
Toronto, in the County of York, on or about the 20th day of June, 1971, at the
Town of Mississauga, in the County of Peel, did unlawfully steal, one 1971 Ford
Ranch Wagon, Serial No. 1B72H108140, the property of Hertz Drive Yourself
Stations of Ontario Limited, of a value exceeding $50.00, contrary to the Criminal
Code of Canada."
2  The appellant rented a station wagon from the complainant on June 19, 1971. The rental
agreement which the appellant signed provided for the return of the car on June 20th. The
appellant, however, retained it for almost a month. The appellant, when she rented the car gave
the address which was on her driver's licence as her then address. She had, in fact, moved from
that address some time before. On June 19th she moved from the second address to live with her
sister and rented the car to assist her in moving. The manager of the branch from which the
appellant rented the car, after endeavouring unsuccessfully to contact her on three or four
occasions, laid an information against her on July 9th. He stated in his evidence that when people
do not intend to return the car on the day specified they usually inform the company that they
wish to keep the car for a longer period.
3  A police officer had a telephone conversation with the appellant on July 16th and as a result of
this conversation the car was found about four blocks from her residence and was in good
condition at that time. The appellant, a married woman with four children, gave evidence in her
own defence. She said she fully intended to pay the rental due on the car and intended to return it
on July 19th. She had parked the car on a dead end street to avoid a parking violation in parking it
in front of her sister's house. Her defence was, therefore, based on the absence of the necessary
criminal intent required to constitute the offence of theft.
4  She said that she had no intention of stealing the car. When she moved she filled out a card at
the post office giving a forwarding address. After she had moved to her sister's residence she used
the car to drive her children to school and then used it to take them on a vacation. The appellant
gave the following evidence in cross-examination:

o "Q. Did you ever call Hertz and tell them?


 A.No I never thought of it at the time, I never thought you had to

phone you know.
 Q.Pardon?
 A.I just assumed that they knew that I had the car for moving purposes
and that you know and it didn't enter my mind at the time."

And later:

Did it never occur to you over all this time that maybe Hertz would be kind of wondering
  "Q.   where their car was?  

o
A.Really I guess I wasn't thinking straight. I mean afterwards you sort of think
about it, but at the time I didn't.
o Q.So when you think about it now you feel that maybe they would have been a
little perturbed?
o A.It was a bit ridiculous when you come to think of it. At the time it never
occurred to me."
5  She said that she expected to be able to pay for the rental from her savings and a cheque which
she was expecting.
6  The Court is of the opinion that the learned trial Judge did not adequately instruct the jury with
respect to the mental element which is required to be proved in order to constitute the crime of
theft. The Crown was required to establish that the appellant acted fraudulently and without colour
of right. If the appellant honestly thought that the complainant would not object to her keeping the
car for a longer period than the rental agreement provided for and intended to pay the rental for
the car her mere retention of the car did not constitute the crime of theft.
7  It is to be observed that the definition of theft requires that the accused's conduct be both
fraudulent and without colour of right. The King v. Clark, 5 C.C.C. 235 at p. 240.
8  The term "colour of right" generally, although not exclusively refers to a situation where there is
an assertion of a proprietary or possessory right to the thing which is the subject matter of the
alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said
to act "without colour of right", even though it may be unfounded in law or in fact. Reg. v.
Howson, [1966] 2 O.R. 63. The term "colour of right" is also used to denote an honest belief in a
state of facts which, if it actually existed would at law justify or excuse the act done: Reg. v.
Howson, supra. The term when used in the latter sense is merely a particular application of the
doctrine of mistake of fact.
9  The existence of a colour of right negatives fraud. There may be an absence of any fraudulent
intention, however, notwithstanding the absence of a colour of right to do the act in question, for
example, the taking of another's property temporarily by way of a prank: Reg v. Wilkins, [1964] 2
O.R. 365; Handfield v. The Queen, 109 C.C.C. 53; Reg. v. Kerr, [1965] 4 C.C.C. 37; McCormick v.
The Queen, [1968] 3 C.R.N.S. 150; Cooper v. The King, 93 C.C.C. 286.
10  Conduct is not fraudulent merely because it is unauthorized unless it is dishonest and morally
wrong. Stephen H.C.L. Vol. III, p. 124; Hirschman v. Beal, 28 C.C.C. 319, per Masten, J. at p.
300; Reg. v. Cooper, supra, per MacQuarrie, J. at p. 288.
11  In Reg. v. Feely, [1973] 2 W.L.R. 201, Lawton, J. in delivering the judgment of the Court of
Appeal (Criminal Division) said at page 207:- "In our judgment a taking to which no moral obloquy
can reasonably attach is not within the concept of stealing either at common law or under the
Theft Act, 1968."
12  The learned trial Judge in his charge to the jury did not define the meaning of the terms
"fraudulently" and "without colour of right". Upon request by defence counsel to charge the jury
with respect to colour of right the learned trial Judge re-called the jury and gave them the
following direction:

o "HIS HONOUR: I have been asked to charge you again on what is colour of right.
Now colour of right means an honest intention or state of facts which would
constitute a legal justification or excuse for this woman having this car.

o Now it's entirely up to you gentlemen to decide that on the evidence that you have
heard here in the court room. As I said before anything that I have said about
evidence, or anything that counsel have said, why you are absolutely at liberty to
disregard it. But if there is a reasonable doubt, any question that the accused had
a bona fide claim or right to which she is charged with stealing, she is entitled to
that doubt and entitled to be acquitted."
13  In our view this direction failed to make clear to the jury that if the accused had any honest
belief in a state of facts which if they existed would constitute a legal justification or excuse for her
retaining the car such belief itself negatived theft.
14  After deliberating for some time the jury returned and said "the members of the jury would like
to have the definition of colour of right clarified". The learned trial Judge then charged the jury as
follows:

o "HIS HONOUR: Now the question arises here as to the intent and the colour of
right that you have asked for a definition of. I think the best definition I can give
you as to the meaning of colour of right is this. A colour of right means an honest
belief in a state of fact, which, if it actually existed would constitute a legal
justification or excuse. Now that's the best definition that I can give you.

o Now as I said before if this woman's evidence is to the effect that you believe that
she had under the state of facts that you heard, that she had a justifiable excuse
to think she was entitled to keep that car indefinitely. Why then you have got to
give her that benefit of the doubt. But it is entirely a question for the jury as to
whether she had that. Her explanation to you is that she would have that idea,
that she could keep that car indefinitely because she got it under the, and you
have to take all of the evidence into consideration, not just what but if you believe
her and that she did and that you find that she did have a justifiable belief, why
then you will have to dismiss the case."
15  While the first part of the re-charge was correct we are of the view it was vitiated by the error
in the latter part of the charge which conveyed the impression that the appellant was asserting
that she believed she could keep the car indefinitely and which may have had the effect of
diverting the jury's attention from the real issue which was whether she honestly believed that the
complainant would not object to her keeping the car for the period for which she did keep it and
whether she honestly intended to return it and pay the rent in respect of her use of it.
16  In addition to misdirection we are of the opinion that there was non direction amounting to
misdirection in failing to direct the jury with respect to what was necessary to be proved in order
to satisfy the requirement of a fraudulent intention on the part of the appellant in accordance with
the authorities referred to above.
17  We also point out that the learned trial Judge's charge to the jury with respect to the
requirement of unanimity may be open to objection although we are not required in the view that
we have already taken to make an express finding in this respect. The learned trial Judge
instructed the jury as follows:- "The other thing is, and most important if anything is that all 12
jurors must agree. It has to be a unanimous jury; that means that everybody has to be of the one
opinion whether the accused is guilty or not guilty."
18  We are of the view that this comes perilously close to the type of instruction that was held by
the Supreme Court of Canada to be error in the case of Latour v. The King, 98 C.C.C. 258. This is
quite a different direction to instructing the jury that they must be unanimous with respect to any
verdict that they return to the Court.
19  We are therefore all of the opinion that the appeal must be allowed, the conviction quashed
and a new trial ordered
R. v. Thatcher, [1987] 1 S.C.R. 652
Appellant was arrested and charged with causing the death of his ex-wife. Following their
separation in 1979 after seventeen years of marriage, the relation between the estranged spouses
became increasingly bitter and acrimonious as they fought a long, hotly contested series of
custody, access and matrimonial property battles. On January 21, 1983, appellant's ex-wife was
ferociously beaten and then shot to death. At trial, the Crown led direct and circumstantial
evidence to prove that the appellant had personally murdered his ex-wife or, alternatively, that he
aided or abetted the killer and was [page653] therefore guilty as a party to the offence pursuant
to s. 21 of the Criminal Code. The bulk of the evidence tendered by the Crown was consistent with
either theory.

In defence, appellant adduced alibi evidence and denied any involvement in the killing. Several
witnesses corroborated appellant's whereabouts at the time of the crime.

In his charge, the trial judge instructed the jurors that the appellant could be found guilty of
murder if they were satisfied beyond a reasonable doubt that he was the principal offender or a
party to the offence under s. 21 of the Code. He explained briefly the position of the defence and
spent considerable time summarizing the Crown's evidence. The jury returned a verdict of guilty of
first degree murder contrary to s. 218 of the Code. The majority of the Court of Appeal dismissed
his appeal.

On appeal to this Court, appellant contended that: (1) there was no evidentiary basis for a
direction pursuant to s. 21 of the Code; (2) the trial judge failed to direct the jury on the
application of the legal principles of parties to an offence to the evidence of the case; (3) the trial
judge erred in directing the jury to weigh the appellant's evidence against the evidence of other
witnesses and to choose which they accepted, thereby reducing the burden of proof; (4) the trial
judge failed to summarize fairly and adequately the evidence and the theory of the defence; and
(5) the trial judge failed to instruct the jury that a verdict of guilty must be unanimous in relation
to one or other of the alternative means of committing the offence of murder.

  Held: The appeal should be dismissed.  

There was an evidentiary foundation to justify putting to the jury the Crown's alternative theory
that appellant was a party to the offence under s. 21, rather than a principal. Where an accused is
being tried alone and there is evidence that more than one person was involved in the commission
of the offence, it is also appropriate for the trial judge to direct the jury with respect to the
provisions of s. 21 of the Code, even though the identity of the other participant or participants is
unknown and even though the precise part played by each participant may be uncertain. Here,
there was very strong evidence connecting appellant with the crime. There was also some
evidence which, if believed, indicated that he did [page654] not commit the crime personally. The
facts were for the jury, and the trial judge was correct not to preclude the jury from considering all
the alternatives.

The trial judge adequately instructed the jury on the application of the legal principles of s. 21 to
the evidence in the case. He accurately stated the law as to s. 21(1) and went through the
evidence of each witness in turn. The fact that he did not carve his jury charge into discrete
sections in which he reviewed the evidence consistent with appellant having personally committed
the murder, appellant having committed the murder by means of s. 21(1), and, finally, appellant
not having committed the murder at all, was not wrong. Much of the Crown's evidence was
consistent with either Crown theory, and much of the defence evidence was consistent with either
appellant's innocence or his guilt under s. 21(1).

The contention that the trial judge erred in putting the jurors to a choice between accepting the
evidence of some witnesses or accepting appellant's evidence, thereby reducing the burden of
proof, must fail. Although one passage of the trial judge's charge, if it stood alone, would be wrong
in law, the charge, read as a whole, made it clear that the jury was not obliged to take a binary
view of the evidence (accept or reject it) but had to give effect to reasonable doubt.

The trial judge adequately summarized the evidence or the theory of the defence. A trial judge is
not required in his charge to paint in the details or to comment on every argument which has been
used or to remind them of the whole of the evidence. Here, the gist of the appellant's complaint is
that the trial judge revealed to the jurors his own perception of the accused's guilt, through undue
emphasis on the Crown's evidence and inadequate summary of the defence. The defence evidence
was simple and the Crown's case was complex, relying on circumstantial evidence from a large
number of witnesses. It is simply inappropriate to try to measure the fairness of the charge by
reference to quantity.

Per Dickson C.J. and Beetz, Estey Wilson and Le Dain JJ.: The trial judge did not err in failing to
instruct the jurors that they must be unanimous in the way in which the murder was committed.
Section 21(1) of the Criminal Code is designed to make the difference between aiding and abetting
and personally committing [page655] an offence legally irrelevant. It provides that either mode of
committing an offence is equally culpable and, indeed, that whether a person personally commits
or only aids and abets, he is guilty of that offence -- in this case, murder -- and not some separate
distinct offence. There is no need for the Crown to specify in the charge the nature of an accused's
participation in the offence. Where there is evidence before a jury that points to an accused either
committing a crime personally or, alternatively, aiding and abetting another to commit the offence,
provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is
a matter of indifference which alternative actually occurred. It follows that s. 21 precludes a
requirement of jury unanimity as to the particular nature of the accused's participation in the
offence.

Per Lamer J.: The Crown presented two factually inconsistent theories: that the appellant actually
killed the deceased or that he aided and abetted the killer. The overwhelming mass of the
evidence against the appellant, however, was consistent with both theories and pointed only to his
participation in the murder. The jury could not have been convinced beyond a reasonable doubt of
one theory to the exclusion of the other, but must have been convinced beyond a reasonable
doubt that the appellant participated in the murder, either as principal or aider and abettor. Since
s. 21(1) of the Criminal Code makes the distinction between participation as a principal and
participation as aider and abettor legally irrelevant, it was not necessary for the jury to decide on
the form of his participation and the jury was correct in convicting. But s. 21 does not always
preclude a requirement of jury unanimity as to the particular nature of the accused's participation
in the offence. Depending on the nature of the evidence presented by the Crown, the jury
unanimity issue may arise in any case where the Crown alleges factually inconsistent theories,
even if those theories relate to the particular nature of the accused's participation in the offence. If
the Crown presents evidence which tends to inculpate the accused under one theory and exculpate
him under the other, then the trial judge must instruct the jury that if they wish to rely on such
evidence, then they must be unanimous as to the theory they adopt. Otherwise, the jury would be
adding against the accused the inculpatory [page656] elements of evidence which cannot stand
together because they are inconsistent.

Per La Forest J.: Although alternative theories of culpability were advanced by the Crown, there
were ample grounds for the jury to find appellant guilty beyond a reasonable doubt while
remaining unsure whether he had committed the murder himself or through another person. But
there may be cases where the interrelationship between competing Crown theories and the
evidence adduced in relation thereto will not justify a verdict of guilt. In each case, therefore, it
will be for the trial judge, having regard to the nature of the offence, the theories of the parties,
and the totality of the evidence, to realistically assess the possibility that the evidence will be used
improperly, and to direct the jury accordingly. The present, however, is not such a case.

Section 21 of the Criminal Code is merely one example of a situation where the Crown is relying on
alternative theories of culpability to found an accused's guilt. The fact that s. 21 makes the
particular nature of the accused's involvement in an offence legally irrelevant does not in and of
itself justify conviction on the basis of mutually exclusive or alternative theories of culpability.
Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881
The appellants were twice tried and convicted on a charge of rape. It was alleged that they unlawfully had
sexual intercourse with the complainant without her consent. They were sentenced to serve six years in
penitentiary. In an appeal taken following the second trial, the Manitoba Court of Appeal found error on the part of
the trial judge, but by a three to two majority sustained the conviction by applying s. 613(1)(b)(iii) of
the Code. From that judgment an appeal was taken to this Court.
A gang rape of the complainant occurred late at night in an isolated area, the site of a former dump, where
members of a motorcycle club were having a party. Some eighteen men had intercourse with the complainant
while she was being held by two other members of the group. She identified the accused as two of the men who
attacked her. The accused denied the charge. They testified that they had attended a meeting of the club at the
dump earlier in the evening in question, and later were present in a beverage room where the complainant and a
friend were spending some time. Still later, the accused delivered a quantity of beer at the dump. Dunlop saw a
female having intercourse; with whom, he could not say, but he believed the person to be a member of the
motorcycle club. After three minutes he and his co-accused left.
The issue for the jury was a simple one—did the two accused have intercourse with the complainant? She
said that they had, and they denied it. The judge chose,
[Page 882]
however, to instruct the jury upon parties to an offence under s. 21 of the Code,  and it was in this respect
that the convictions were challenged.
Held (Martland, Ritchie and Pigeon JJ. dissenting): The appeals should be allowed.
Per Laskin C.J. and Spence, Dickson and Estey JJ.: It was common ground that the trial judge erred in
charging the jury on s. 21(2) of the Code,  common intention, when there was no evidence that the appellants had
formed any common intention with those involved in the gang rape to commit rape upon the complainant.
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. In this case there was no evidence that while the crime was being committed either
of the accused rendered aid, assistance, or encouragement to the rape of the complainant. There was no
evidence of any positive act or omission to facilitate the unlawful purpose. One could 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 was not sufficient. A person cannot properly be convicted of aiding and abetting in the
commission of acts which he does not know may be or are intended. 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.
The evidence failed to disclose any facts as distinguished from surmise or suspicion, upon which a jury
could conclude beyond reasonable doubt that the accused had assumed a role which would qualify them as
aiders and abettors under s. 21(1) of the Code.
In these circumstances, the trial judge erred in charging the jury on the alternative bases of (i) principal
offender and (ii) aider and abettor.
The error, unfortunately, was compounded when the jury, which had retired at 3:15 p.m., returned at 5:40
with the following question: "If the accused were aware of a rape taking place in their presence and did nothing to
prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act under law?"
[Page 883]
That question should have been answered in one word—"No." However, the judge, who initially intended
to respond with a "No" answer, was persuaded, during argument, to the point of view, advanced for the first time
on behalf of the Crown, that the accused might be guilty as parties to the offence under s. 21 of the Code.
The recharge was in error in three respects: (i) it was not responsive to the question asked; (ii) on the
facts of the case, it might leave the jury with the impression that the accused could be parties to the offence if
they knew that an offence was being committed and failed to do anything to hinder or prevent it; and (iii) the jury
received no help in applying the instruction given; no act or omission was identified as providing a possible
factual underpinning to the operation of s. 21.
The difficulty now faced by this Court was that it did not know, and would never know, whether the jury
found the appellants guilty because they had had intercourse with the complainant, or by reason of the operation
of subss. (1) or (2) of s. 21 of the Code. The Court did know from the question of the jury, and its timing, that after
two hours and twenty-five minutes of deliberation the jury had not accepted the evidence of the complainant as to
direct participation by the appellants. Fifteen minutes after resuming deliberation, following the recharge, the
guilty verdict was returned.
 This was not an appropriate case for the application of s. 613(1)(b)(iii). One could not say that the verdict
would have been the same in the absence of error. In the circumstances a verdict of acquittal should be directed,
rather than have the applicants undergo a third trial.
Per Beetz and Pratte JJ.: With respect to subs. 21(2), there was agreement in the Court of Appeal—and it
was not challenged here—that the trial judge had erred in charging the jury in, that respect. The difference in the
Court of Appeal was solely as to the application of subpara. 613(1)(b)(iii) to such error. This was not a dissent on
a question of law.
As to subs. 21(1), for the reasons given by Dickson J., the reply of the trial judge to the question of the jury
was inadequate and amounted to a misdirection in law. One could not say, in the light of the evidence, that this
error on the part of the trial judge caused the appellants no substantial wrong or miscarriage of justice. Therefore,
[Page 884]
subpara. 613(1)(b)(iii) should not be invoked in respect to such error.
DISSENT REMOVED
However, as the point had been thoroughly canvassed in argument, it was considered. The gist of the
reasons of Hall J.A. was found in his statement that the presence of the accused at the dump, and their passive
observation of a girl having sexual intercourse was not sufficient in law to make them parties to an offence under
s. 21(1) of the Code.  But the statement that the appellants were merely present at the dump and were passive
observers of an act of sexual intercourse had to be based upon the evidence of the appellants. It was for the jury
to decide whether or not to accept that evidence. The statement overlooked entirely other evidence on which the
jury could conclude that the appellants had aided and abetted the commission of the offence. The
[Page 885]
jury had been properly instructed as to what was necessary in order to establish aiding and abetting, The
sufficiency of that evidence was solely a matter for the determination of the jury and was not a matter to be
decided by the Court of Appeal.
As to the criticism of the trial judge for his response to the question asked by the jury, the reasons of
Matas J.A. for his view that the Crown had satisfied the onus of showing that the trial judge did not err in either
the instructions or the answer on the question of the applicability of s. 21(1) were adopted.

R. v. Logan, [1990] 2 S.C.R. 731

Respondents were convicted of attempted murder. During a robbery -- one of a series -- a person was shot and
severely injured. Neither respondent did the shooting. Respondent Johnson, however, admitted to being one of
the robbers but stated that he had no intention to shoot and that there had been no discussion concerning the
use of guns. Respondent Logan had boasted of being involved in planning the robberies. The trial 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. The Court of Appeal allowed appeals
with respect to the convictions for attempted murder and substituted convictions for robbery. At issue here was
(1) whether s. 21(2) of the Criminal Code infringed ss. 7 and/or 11(d) of the Charter, and (2), if so, whether it was
justified under s. 1.

  Held: The appeal should be dismissed.  

Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: R. v. Vaillancourt cannot be construed as
saying that, as a general proposition, Parliament cannot ever enact provisions requiring different levels of guilt for
principal offenders and parties. As a matter of policy, the proposition seems more equitable than not but should
not be characterized as a principle of fundamental justice.

There are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict
the rights of an accused under s. 7. If an offence is one of the few for which s. 7 requires a minimum degree of
mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on
the basis of a degree of mens rea below the constitutionally required minimum.

The question whether a party to an offence had the requisite mens rea to found a conviction pursuant to s. 21(2)
must be answered in two steps. 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 principal for this particular offence? Secondly, if the
principles of fundamental justice do 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.
The requisite mens rea for a murder conviction logically must be the same for a conviction of attempted murder.
However, logic is not sufficient reason to label something a "constitutional requirement".

The sentencing range available to the judge is not conclusive of the level of mens rea constitutionally required.
Instead, the crucial consideration is whether there is a continuing serious social stigma which will be imposed on
the accused upon conviction.

The mens rea for attempted murder cannot, without restricting s. 7 of the Charter, require less than subjective
[page733] foresight of the accused -- the mental element required of a murderer under s. 212(a)(i). Parliament
could well extend our definition of attempted murder to include the unsuccessful murderers of s. 212(a)(ii) but it
cannot go further and include objective foreseeability as being sufficient for a conviction without restricting s. 7 of
the Charter.

[page734]

When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted
murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of
attempted murder. Any conviction for attempted murder, whether of the principal directly or of a party pursuant to
s. 21(2), will carry enough stigma to trigger the constitutional requirement. To the extent that s. 21(2) would allow
for the conviction of a party to the offence of attempted murder on the basis of objective foreseeability, its
operation restricts s. 7 of the Charter.

Given that a minimum degree of mens rea (subjective foresight) is constitutionally required to convict a principal
of the offence of attempted murder, the restriction of s. 7 in this case is in convicting, through the operation of s.
21(2), a non-principal who does not have that same degree of mens rea. It is not the legislative objective of s.
21(2) as a whole which this Court must scrutinize, but only the legislative objective of that portion of s. 21(2) that
restricts the accused's rights under s. 7 of the Charter in issue in the present case. This differential treatment of
parties and principals charged with attempted murder is the restriction which must undergo the s. 1 test.

In this case, the objective of such a differentiation is to deter joint criminal enterprises and to encourage persons
who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful
purpose. This is a legislative objective of sufficient importance to justify overriding the rights of an Accused under
s. 7 of the Charter.

The objective of the legislation is that this possibility of conviction through s. 21(2) will make parties more
responsible for the actions of their accomplices. Clearly, then, there is a rational connection between the
restriction and the legislative objective. It, nevertheless, does not satisfy the proportionality test because it unduly
impairs an accused's rights under s. 7 of the Charter.

Because of the importance of the legislative purpose, the objective component of s. 21(2) can be justified with
respect to most offences. However, with respect to the few offences for which the Constitution requires subjective
intent, the stigma renders the infringement too serious and outweighs the legislative objective which, therefore,
cannot be justified under s. 1.

The words "or ought to have known" are inoperative when considering under s. 21(2) whether a person is a party
to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be
subjective, which is the case for attempted murder. 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 probable that
his accomplice would do something with the intent to kill in carrying out the common purpose.

Per L'Heureux-Dubé J.: The factors which, according to the majority, operated to render the objective
foreseeability standard unconstitutional in R. v. Martineau are not importable to the crime of attempted murder. A
conviction for attempted murder requires proof of the specific intent to kill. No lesser mens rea will suffice.
Parliament has decided to create a distinct offence for attempted murder, recognizing that the results of criminal
acts are not to be ignored. The death of a victim renders a standard of objective foreseeability constitutionally
permissible. When the attempt does not result in death, logic as well as principles of fundamental justice
enshrined in the Charter dictate that the specific intent to have committed the attempted murder must be
conclusively proven. When mere attempts are at issue, mens rea assumes a dominant role. The rationale for
invoking a test of subjective foresight for attempted murder does not stem from the crime's relationship to the
crime of completed murder, but rather from its connection to crimes of attempt generally. The motivation for
requiring subjective foresight for attempt crimes radiates from the primacy of the mens rea component, not from
any potential penalties or social stigma that might attend conviction for the completed offence.
For mere attempts, no other unlawful act is necessary. Intent is what is being punished by s. 222, not the act
itself. The mens rea criteria for the full offence of murder and mere attempt are necessarily different.

[page735]

The words "ought to know" are not to be read out of the section in all cases. This measure of objective
foreseeability is certainly appropriate when the mens rea of the principal can be ascertained according to an
objective standard as well.

No killing took place here. The crime was one for which the specific intent of the principal had to be shown. In
those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot
constitutionally be convicted for the same crime on the basis of an objective foreseeability standard. In this
regard the actus reus component of the offence cannot be ignored. Policy considerations addressed in Martineau
justify treating completed killings more harshly than attempted ones. If someone who attempts to kill cannot be
convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the
principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable.

Per Sopinka J.: There is no principle of fundamental justice whereby in all cases the level of mens rea possessed
by the principal offender must also be possessed by the party. The correct constitutional principle is that if social
stigma and other factors require the principal offender to possess a constitutional minimum mind state in order to
be convicted of an offence, then a party under s. 21(2) must possess that same minimum mind state. If it is
assumed that murder requires subjective foresight of death, it follows that subjective foresight is a constitutional
requirement for attempted murder.

R. v. Gauthier, 2013 SCC 32

G was charged with being a party, together with her spouse, L, to the murder of their three
children at the dawn of the year 2009. According to the Crown's theory, G was a party to the
murder in planning it as part of a murder-suicide pact and in supplying the murder weapon. She
did not act to prevent the children from being poisoned with drinks served by her spouse, which
contained Gravol and oxazepam. Thus, she aided L to kill the children. At her jury trial, G
submitted in her defence that she had not bought the medication to poison her children, that she
was in a dissociative state on December 31, 2008 when she wrote some incriminating documents,
and that this state meant she could not have formed the specific intent to commit the murders. In
the alternative, should her argument based on the absence of mens rea be rejected, she claimed to
have abandoned the common purpose of killing the children and to have clearly communicated her
intention to do so to her spouse. The jury found G guilty of the first degree murder of her three
children. The Court of Appeal upheld the guilty verdict, concluding that the trial judge had not
erred in refusing to put the defence of abandonment to the jury, since it was incompatible with the
defence's principal theory.
Held (Fish J. dissenting): The appeal should be dismissed.
Per LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.: There is no cardinal rule
against putting to a jury an alternative defence that is at first glance incompatible with the primary
defence. The issue is not whether such a defence is compatible or incompatible with the primary
defence, but whether it meets the air of reality test. In any case, the trial judge must determine
whether the alternative 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.
The defence of abandonment must be submitted to the jury only if there is evidence in the record
that is reasonably capable of supporting the necessary inferences in respect of each of the
elements of this 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 (s. 21(2) of the Criminal Code), 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.
In this case, G's evidence that she communicated her withdrawal from the deadly plan and that
her communication was timely and unequivocal is insufficient. The only relevant passage from her
testimony is one in which she used the plural pronoun "we" (using the French pronoun "on" as an
equivalent for the plural "nous") in saying "I told Marc we couldn't [do that]". But even if it were
assumed that this evidence would be sufficient for a jury to reasonably conclude that G had
communicated her intention to withdraw from the plan and that her communication was timely and
unequivocal, that communication would not on its own have sufficed, in the circumstances of this
case, for the judge to put the defence of abandonment to the jury. G did more than merely
promise to take part in the murder-suicide pact. She supplied her spouse with the intoxicants he
used to cause the children's deaths. She therefore had to do more either to neutralize the effects
of her participation or to prevent the commission of the offence. For example, she could have
hidden or destroyed the medication she had purchased, remained watchful and taken the children
to a safe place for the evening, insisted that her spouse give her verbal confirmation of what he
intended to do, or simply called the authorities. The record did not therefore contain evidence
upon which a properly instructed jury acting reasonably could have found that G had abandoned
the common unlawful purpose, and could accordingly have acquitted her, if it believed the
evidence to be true. The defence of abandonment therefore did not meet the air of reality test,
and the trial judge was not required to put the defence to the jury.
PerFish J. (dissenting): Canadian courts have for more than 70 years held that the defence of
abandonment comprises only two essential elements: (i) change of intention; and (ii) where
practical and reasonable, timely and unequivocal notice of withdrawal. This test has been
repeatedly and consistently applied in prosecutions under s. 21(1) and s. 21(2) of the Criminal
Code alike. The defence of abandonment does not require that the accused take steps to neutralize
prior participation in the criminal enterprise or to prevent the commission of the offence. While
such evidence may strengthen a defence of abandonment, failure to take neutralizing or
preventative steps is not fatal.

In light of the state of the law universally accepted in Canada at the time of G's trial, it would be
fundamentally unfair at this stage to fault her for failing to demonstrate anything more than a
change of intention, plus timely and unequivocal notice of withdrawal from the murder-suicide
pact. Since G's testimony provided some evidence on these two essential elements, there was an
air of reality to the defence. The trial judge therefore erred by withholding the defence of
abandonment from the jury. Incompatibility between G's defence of abandonment and her primary
defence should not be relied upon to deprive the accused of a defence for which an air of reality
has been established.

G testified that she told L his plan did not make sense and he "could not do it". She also told him
that she did not want to be a part of it. She demonstrated her disapproval of the murder-suicide
pact by tearing up two documents: a last will and testament written by her and a story of L's life
containing references to the pact. She was convinced by his facial expression that the murder-
suicide pact was off. This testimony provides some evidence that G no longer intended to
participate in the murder-suicide pact and that she provided timely and unequivocal notice of this
change of intention to the principal offender. That the evidence could have left the jury with a
reasonable doubt as to G's guilt is all that was required. It was for the jury to determine whether
G's words and conduct were believable and sufficient to demonstrate timely and unequivocal notice
of withdrawal.

G is entitled to a fresh trial, where the jury will not be wrongly prevented from considering on its
merits her defence of abandonment, however weak and unpromising this Court might believe it to
be.

R. v. Cowan, 2021 SCC 45

Appeal by Cowan from a judgment of the Saskatchewan Court of Appeal that set aside his
acquittal for armed robbery and ordered a new trial. Appeal by the Crown from the limitation of
the scope of the new trial. Two individuals robbed a Subway restaurant. One wore a mask and
brandished a knife, while the other stood watch at the front door. Cowan denied committing the
robbery but admitted to the police that he had told a group of individuals, including his friends
Tone and Littleman, how to commit the robbery. At trial, Cowan was acquitted of armed robbery.
The trial judge found it had not been proven that Cowan was one of the principal offenders and
that Cowan could not be convicted as a party because it was not established that Tone and
Littleman had committed the robbery. A majority of the Court of Appeal found no error in the trial
judge's analysis regarding Cowan's role as a principal but found he made a serious error on the
issue of party liability, which may have affected the verdict. It ordered a new trial limited to the
question of Cowan's guilt as a party, on the basis of abetting or counselling.

HELD: Appeal by Cowan dismissed; appeal by Crown allowed.

The trial judge erred in law in his analysis of party liability, which had a material bearing on the
acquittal. Where an accused prosecuted as an abettor or counsellor was being tried alone and
there was evidence that more than one person participated in the commission of the offence, the
Crown was not required to prove the identity of the other participants or the precise part played by
each in order to prove the accused's guilt as a party. The Crown was only required to prove that
any one of the individuals encouraged by Cowan went on to participate in the offence either as a
principal offender or as a party. Cowan could still have been found guilty of being a party to the
offence even if the precise identity or part played by each individual who participated in the
robbery was uncertain, so long as Cowan had committed the necessary act with the requisite
intent. The appropriate remedy was to set aside the acquittal and order a full new trial. While an
appellate court had the power to make any order that justice required, it did not have the power to
limit the scope of a new trial to a particular theory of liability on a single criminal charge. In
separating the Crown's theories of liability in its ancillary order, the effect was to uphold Cowan's
acquittal on the single charge in part, which was at odds with the underlying judgment that
allowed the appeal and set aside the verdict as a whole. Issue estoppel did not apply to preclude a
full retrial. No issue had been finally decided in the first trial because the result of that trial had
been set aside. Dissenting reasons were provided.

R. v. Hamilton, [2005] 2 S.C.R. 432

The accused sent "teaser" e-mails on the Internet to more than 300 people, marketing the sale of
"Top Secret" files he himself had purchased off a website. The teaser 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. A document describing a credit card number
generator that was not part of the files was discovered on the accused's computer. As well, a
handwritten list of Visa numbers was seized in his possession. No complaints were received by the
bank regarding their improper use. [page433] The accused was charged under s. 464 of
the Criminal Code with counselling four indictable offences that were not committed, including fraud.
The accused testified that he had seen a computer-generated list of the contents of the files but
that he had not read the files. The trial judge accepted the accused's evidence in this regard and
also accepted his evidence that he had not used the credit card numbers he had generated. She
acquitted the accused, concluding that the actus reus of the offence had been proven in respect of
each of the counts but not the mens rea. The Court of Appeal upheld the acquittal. The Crown
appealed to this Court on the issue of mens rea.
Held (Major, Abella and Charron JJ. dissenting): The appeal should be allowed on the count of
counselling fraud.
Per McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps and Fish JJ.: 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 the counselling: that is, it must be
shown that the accused either intended that the offence counselled be committed, or 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. Courts cannot
contain the inherent dangers of cyberspace crime by expanding or transforming offences, such as
counselling, that were conceived to meet a different and unrelated need. [para. 21] [para. 29]
[para. 31]
The trial judge acquitted the accused on the count of counselling fraud because his motivation was
mercenary as opposed to malevolent. The trial judge's conclusion that the accused did not intend
to induce the recipients to use those numbers is incompatible with the plain meaning of the
"teaser" e-mail and with her other findings of fact, including her finding that the accused
understood that the use of the generated numbers was illegal. Her assertion that "[h]is motivation
was monetary" immediately after her reference to these facts demonstrates an error of law as to
the mens rea for counselling the commission of a crime, and warrants a [page434] new trial. The
trial judge confounded "motive" and "intent". [para. 40] [para. 45]
Per Major, Abella and Charron JJ. (dissenting): In interpreting a Criminal Code provision, it is
important not to overreach the purpose of the criminal sanction at the expense of other important
social values. This is particularly so in a case such as this one where the conduct in question
consists of communications. The actus reus under s. 464 of the Criminal Code consists of "counsel[ling]
another person to commit an indictable offence". In order for the actus reus to be proven, the words
communicated by the accused, viewed objectively, must be seen as actively inducing, procuring or
encouraging the commission of an offence. However, it is well established that it is not necessary
that the person counselled be in fact persuaded. The mens rea of the offence is largely inferred from
the actus reus itself. It is not sufficient that the communication simply raise the possibility of
affecting its recipient. At the very least, the counsellor must subjectively intend to persuade the
person counselled to commit the offence. Mere recklessness as to the counselled person's reaction
to the communication is insufficient. Except in the most unusual circumstances, the counsellor who
intends to persuade the person counselled to commit an offence will intend that the offence be
committed. This restricted interpretation of the actus reus and mens rea of the offence of counselling
ensures that the scope of the offence remains within the justifiable limits of the criminal law and
protects freedom of expression by limiting the potential overbreadth of a criminal sanction whose
sole target is speech. While the Internet poses particular risks because of the ease with which
mass communications may be disseminated worldwide, the remedy does not lie in an expansive
interpretation of the offence of counselling. [paras. 66-67] [para. 72] [paras. 76-77] [para. 81]
There is no reason to interfere with the trial judge's conclusion that the accused did not have the
necessary mens rea. Her consideration of the accused's motivation must be examined in the context
of the evidence before her, and her reasons must be read as a whole. Here, the Court of Appeal
correctly concluded that the trial judge had considered motive as part of her findings of fact, but
that her decision on the issue of mens rea was based on other facts relating to the accused's
knowledge. It was on the basis of these other facts that the trial judge found [page435] the
accused lacked sufficient knowledge of the consequences of his actions to satisfy the mens
rea requirement. [para. 84] [para. 86]
R. v. Deutsch, [1986] 2 S.C.R. 2
Appellant, who was in the business of selling franchises of various kinds, placed advertisements in
several newspapers for a secretary/sales assistant. He conducted interviews with three female
applicants and with a police officer who posed as an applicant and recorded the interview on a tape
recorder. Appellant indicated to the applicants that a secretary/sales assistant would be expected
to have sexual intercourse with clients or potential clients of the company where that appeared to
be necessary to conclude a contract. He also indicated that a successful secretary/sales assistant
could earn as much as $100,000 annually through commission or bonus on the sale of franchises.
Appellant did not make an offer of employment to any of the three applicants who became
uninterested after hearing the requirements of the position. The police officer, while not made an
offer, was told to think it over and let appellant know when she expressed an interest in the
position notwithstanding its requirements. At trial, appellant was acquitted of counts of (1)
attempting to procure female persons to become common prostitutes and (2) attempting to
procure female persons to have illicit intercourse with another person. The Court of Appeal
dismissed the appeal from acquittal on the first count, but allowed the [page3] appeal with respect
to the second and ordered a new trial. Appellant appealed. At issue here are: (1) whether
appellant's acts or statements could, as a matter of law, constitute an attempt to procure rather
than mere preparation; and (2) whether the sexual intercourse contemplated by appellant would
be illicit sexual intercourse within s. 195(1)(a) of the Criminal Code.

Held: The appeal should be dismissed.

Per Beetz, McIntyre, Wilson and Le Dain JJ: The word "illicit" in s. 195(1)(a) of the Criminal Code
must be given the meaning that has been assigned by the weight of judicial opinion to the word
"unlawful" in comparable legislative tests -- as referring to sexual intercourse not authorized or
sanctioned by lawful marriage. The alternative meaning -- sexual intercourse prohibited by the
criminal law or other enactment of positive law -- apart from reducing the scope of the offence of
procuring a person to have illicit sexual intercourse with another person so as to make it rarely, if
ever, applicable, is not reconcilable with other provisions of the Criminal Code.

The evil to which s. 195(1)(a) is directed is procuring or soliciting, not the actual act of sexual
intercourse itself. The provision is parallel to and of the same kind as that in s. 195(1)(d), which
makes it an offence to procure a person to become a prostitute although prostitution is not itself a
crime. This is true of all the offences created by s. 195. They are directed to conduct which is
designed to encourage or promote conduct which itself is not criminal. If fault be found with that
legislative policy it is for Parliament to make the necessary changes, not for the court to do so by
giving the word "illicit" in s. 195(1)(a) such a restricted meaning as not only to give s. 195(1)(a) a
very limited, if not improbable application, but also to restrict very severely the application of
other important provisions of the Criminal Code for the protection of girls and women in which the
words "illicit sexual intercourse" are used.

No satisfactory general criterion has been, or can be, formulated for drawing the line between
preparation and attempt. The application of this distinction to the facts of a particular case must
be left to common sense judgment.

[page4]

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 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.

Relative proximity may give an act, which might otherwise appear to be mere preparation, the
quality of attempt. But an act which on its face is an act of commission does not lose its quality as
the actus reus of attempt because further acts were required or because a significant period of
time may have elapsed before the completion of the offence.

The Court of Appeal's finding, that the offence of procuring a person to have illicit sexual
intercourse with another person is not committed unless sexual intercourse actually takes place,
was accepted for the purposes of deciding whether appellant's acts could, as a matter of law,
constitute the actus reus of an attempt to procure.

If the appellant had the necessary intent to induce or persuade the women to seek employment
that would require them to have sexual intercourse with prospective clients, then the holding out
of the large financial rewards in the course of the with prospective clients was disclosed, could
constitute the actus reus of an attempt to procure. It would clearly be an important step in the
commission of the offence. Before an offer of employment could be made in such circumstances an
applicant would have to seek the position, despite its special requirement. Thus such inducement
or persuasion would be the decisive act in the procuring. There would be little else that the
appellant would be required to do towards the completion of the offence other than make the
formal offer of employment. The holding out of the large financial rewards in the course of the
interviews would not lose its quality as a step in the commission of the offence, and thus as an
actus reus of attempt, because a considerable period of time might elapse before a person
engaged for the position had sexual intercourse with prospective clients or because of the
otherwise contingent nature of such sexual intercourse.

Per Lamer J.: Agreement with Le Dain J.'s broad definition of "illicit sexual intercourse" was only to
the extent that those words were resorted to in s. 195(1)(a) of the Criminal Code. Accepting such
a wide definition depended on the fact that an essential ingredient of [page5] "procuring" or of
"soliciting" under s. 195(1)(a) was that what was being done was done for lucre, gain, or some
advantage.

R. v. Ancio, [1984] 1 S.C.R. 225

Respondent, who wanted to speak with his estranged wife, broke into an apartment building with a
loaded sawed-off shotgun. Kurely, the man with whom his wife had been living, went to
investigate the sound of breaking glass and threw the chair he was carrying at respondent when
he saw him climbing the stairs. The gun discharged, missing Kurely, and a struggle followed.
Shortly after his arrest, respondent stated to police that he "had him [Kurely] by the throat and I
would have killed him." The trial judge found respondent had broken into the apartment building
with the intent to use the shotgun to force his wife to leave and convicted him of attempted
murder. The Court of Appeal overturned that conviction and ordered a new trial. At issue here is
whether the mens rea in attempted murder is limited to an intention to cause death or to cause
bodily harm knowing it to be likely to cause death, or whether the mens rea required extended to
the intention to do some action constituting murder as defined by ss. 212 or 213 of the Code.

Held (Ritchie J. dissenting): The appeal should be dismissed.

Per Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.: 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. The
completed offence of murder involves killing and any intention to complete that offence must
include the intention to kill. An attempt to murder should have no lesser intent. Nothing illogical
arises from the fact that in certain circumstances a lesser intent will suffice for a conviction for
murder. A person cannot intend to commit the unintentional killings described in ss. 212 and 213
of the Code. Any illogic lies in the statutory characterization of unintentional killing as murder.

The crime of attempt developed as, and remains, an offence separate and distinct from murder.
While the Crown must still prove both mens rea and actus reus, the mens rea is the more
important element. The intent to commit the desired offence is a basic element of the offence of
attempt, and indeed, may be the sole criminal element in the offence given that an attempt may
be complete without completion of the offence intended.

R. v. Déry, 2006 SCC 53

DÚry and Savard were charged with conspiring to commit theft and conspiring to possess stolen
liquor. The trial judge found that no agreement had been established between the two men to
steal or possess liquor and acquitted them of conspiracy. However, finding their actions more than
merely preparatory to conspiracy, the judge convicted them of attempting to conspire. DÚry
appealed, and a majority of the Court of Appeal affirmed his convictions.

HELD: Appeal allowed.

DÚry's convictions should be set aside and acquittals entered. An attempt to conspire to commit a
substantive offence is not an offence under Canadian law. Acts that precede a conspiracy are not
sufficiently proximate to a substantive offence to warrant criminal sanction. Given that conspiracy
is essentially a crime of intention, it is difficult to reach further than the law of conspiracy already
allows. Only agreement exposes the otherwise hidden criminal intentions of the parties to it and
demonstrates their commitment to a prohibited act. By contrast, overt steps are thought
necessary to disclose and establish with sufficient certainty the criminal intention that is an
essential element of the attempt to commit an offence when someone acts alone. By its very
nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its
commission. Early intervention through the criminalization of conspiracy is therefore both
principled and practical. Likewise, the criminalization of attempt is warranted because its purpose
is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. However,
when applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to
conspire amounts, at best, to a risk that a risk will materialize.

R. v. JF, 2013 SCC 12

Appeal by the accused from a judgment of the Ontario Court of Appeal affirming his conviction for
conspiracy to commit murder. According to the Crown, the accused learned that his friend and her
sister were planning to kill their mother and the accused took various steps to help his friends
achieve their plan. In an internet conversation, the accused provided information to them about
death by drowning and explained what they should do if their mother woke up during the drowning
process. He further suggested that in addition to plying their mother with alcohol, they should give
her about five Tylenol pills. Autopsy results revealed codeine levels consistent with the
consumption of four to six Tylenol tablets. The Crown advanced evidence that it was the accused
who supplied his friends with Tylenol tablets shortly before the killing. In the same conversation,
the accused promised to provide his friends with an alibi for the time of the murder. The Crown
invited the jury to find the appellant guilty on one of two bases: either as a principal in the
conspiracy, or as a party to the conspiracy under ss. 21(1)(b) or (c) of the Criminal Code. In other
words, it argued that either the accused had become a member of the conspiracy or, in the
alternative, he had become an aider of the conspiracy. The trial judge acceded to the Crown's
request that the jury be instructed on both bases of liability and the accused was convicted of
conspiracy to commit murder.

HELD: Appeal dismissed.

As a matter of law, a person can be found liable as a party to the offence of conspiracy. Party
liability should be restricted to conduct that aids or abets the formation of the agreement that
comprises the essence of the crime of conspiracy. In all other cases, a conviction for conspiracy
will not lie absent proof of membership in the conspiracy. Aiding or abetting the furtherance of the
unlawful object does not establish aiding or abetting the principal with any element of the offence
of conspiracy. It cannot ground party liability for conspiracy. In the case at hand, the fear is that,
had the accused's friends not killed their mother or attempted to do so, the accused would have
ended up going free, despite his efforts to further the planned killing, unless the Crown could
prove that he entered into the agreement formulated by his friends and thus became a member of
the conspiracy. Where a person, with knowledge of a conspiracy, does something for the purpose
of furthering the unlawful object, with the knowledge and consent of one or more of the existing
conspirators, this provides powerful circumstantial evidence from which membership in the
conspiracy can be inferred. It is not necessary that all members of a conspiracy play, or intend to
play, equal roles in the ultimate commission of the unlawful object. Indeed, members in a
conspiracy need not personally commit, or intend to commit, the offence which each has agreed
should be committed. Any degree of assistance in the furtherance of the unlawful object can lead
to a finding of membership as long as agreement to a common plan can be inferred and the
requisite mental state has been established. To sum up, party liability to a conspiracy is limited to
cases where the accused encourages or assists in the initial formation of the agreement, or when
he encourages or assists new members to join a pre-existing agreement. Party liability should not,
in the circumstances, have been left to the jury. There is no evidence that the accused aided or
abetted the formation of the agreement to murder his friends' mother or aided or encouraged a
new member to join the existing conspiracy. This error, though significant, could not possibly have
affected the verdict. The evidence implicating the accused as a member of the conspiracy was
overwhelming. Once the jury rejected his explanation that he was not being serious, as it must
have, a finding of guilt on the basis of membership was inevitable.

Reference re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2

S.C.R. 486
The B.C. Motor Vehicle Act provided for minimum periods of imprisonment for
the offence of driving on a highway or industrial road without a valid driver's licence or with a
licence under suspension. Section 94(2) of the Act, moreover, provided that this offence was
one of absolute liability in which guilt was established by the proof of driving, whether or not
the driver knew of the prohibition or suspension. The Court of Appeal, on a reference by the
provincial government, found s. 94(2) to be of no force or effect as it was inconsistent with s.
7 of the Canadian Charter of Rights and Freedoms: "the right to life, liberty and security of
the person and the right not to be deprived thereof except in accordance with the principles
of fundamental justice." That decision was appealed to this Court.
 Held: The appeal should be dismissed.
 Per Dickson C.J. and Beetz, Chouinard, Lamer and Le Dain JJ.: A law with the potential of
convicting a person who really has done nothing wrong offends the principles of fundamental
justice and violates a person's right to liberty under s. 7 of the Charter if imprisonment is
available as a penalty.
The analysis of s. 7 was limited to determining the scope of the words "principles
of fundamental justice". That phrase is not a protected right but a qualifier to the protected
right not to be deprived of "life, liberty and security of the person"; its function is to set the
parameters of that right. Interpretation of the term must be with reference to the protected
rights but not so as to frustrate or stultify them. An interpretation equating "fundamental
justice" with "natural justice" would not only be wrong, in that it would strip the protected
interests of most of their content, but also would be inconsistent with the affirmative
purposive expression of those rights.
 
Sections 8 to 14 address specific deprivations of the "right" to life, liberty and
security of the person in breach of the principles of fundamental justice, and as such,
violations of s. 7. These sections are illustrative of the meaning of "principles of fundamental
justice" in criminal or penal law. They recognize principles given expression at common law,
by international convention and in the very entrenchment of the Charter as essential
elements for the administration of justice founded on the dignity and worth of the human
person and the rule of law.
The principles of fundamental justice are to be found in the basic tenets and
principles not only of our judicial process but also of the other components of our legal
system. These principles are not limited to procedural guarantees, although many are of that
nature. Whether any given principle may be said to be a principle of fundamental justice
within the meaning of s. 7 must rest on an analysis of the nature, sources, rationale and
essential role of that principle within the judicial process and in our evolving legal system.
The words "principles of fundamental justice", therefore, cannot be given any exhaustive
content or simple enumerative definition but will take on concrete meaning as the courts
address alleged violations of s. 7.
The Minutes of the Proceedings of the Special Joint Committee were admissible
but without much weight given the inherent unreliability of such speeches and statements.
The comments of a few public servants, however distinguished, could not be determinative
in light of the many actors and the role of the provinces in arriving at the Charter. To cast the
interpretation of s. 7 in terms of the comments made at the Joint Committee Proceedings
would freeze the rights, values and freedoms expressed in the Charter as of the moment of
adoption and deny it growth and adjustment over time.
 
The Canadian Bill of Rights, too, was of little assistance in construing s. 7. The
words "principles of fundamental justice" in s. 2(e) of the Canadian Bill of Rights are placed
explicitly in context of and qualify a "right to a fair hearing". Section 7 of the Charter does not
create the same context: the words "principles of fundamental justice" are placed in context
of and qualify much more fundamental rights. The distinction was important.
Absolute liability does not per se violate s. 7 of the Charter. An absolute liability
offence violates s. 7 only if and to the extent that it has the potential to deprive life, liberty or
the security of the person. There is no need that imprisonment be mandatory. The
combination of imprisonment and absolute liability, however, violates s. 7 irrespective of the
nature of the offence and can only be salvaged if the authorities demonstrate, under s. 1,
such a deprivation to be a justified limit in a free and democratic society. Generally, no
imprisonment may be imposed for an absolute liability offence and an offence punishable by
imprisonment cannot be an absolute liability offence.
Public interest cannot be a factor in determining if absolute liability offends the
principles of fundamental justice but only as a justification under s. 1. Administrative
expediency, invoked as a justification for sacrificing s. 7 rights, should only succeed in cases
arising out of exceptional conditions such as war, natural disasters or epidemics.
Section 94(2) enacts in the clearest of terms an absolute liability offence for
which conviction will result in a person's being deprived of his liberty. Whether or not the
provision is of limited or broad effect cannot change the fact that it is in violation of
the Charter and at best could only be considered under s. 1. Notwithstanding the desirability
of keeping bad drivers off the roads or of punishing them, no evidence was adduced
demonstrating this end or the risk of imprisonment of a few innocent people to be a
reasonable and justifiable limit on s. 7 within the meaning of s. 1 of the Charter.
Per McIntyre J.: Section 94(2) of the Motor Vehicle Act is inconsistent with s. 7 of
the Charter. Fundamental justice, as used in the Charter, involves more than natural justice,
which is largely procedural, and includes a substantive element. On any definition of the
term "fundamental justice", the imposition of minimum imprisonment for an offence which
may be committed unknowingly and without intent and for which no defence can be made
deprives or may deprive of liberty and offends the principles of fundamental justice.
Per Wilson J.: Section 94(2) of the Motor Vehicle Act violates s. 7 of
the Charter and is not saved by s. 1. This is because a mandatory sanction of imprisonment
cannot be attached to an absolute liability offence without offending s. 7.
The phrase "in accordance with the principles of fundamental justice" is not a
qualification on the right to life, liberty and security of the person in the sense that it limits or
modifies that right or defines its parameters. Rather it protects the right against deprivation
or impairment unless such deprivation or impairment is effected in accordance with the
principles of fundamental justice.
Section 7 does not affirm a right to the principles of fundamental justice per se.
Accordingly an absolute liability offence does not offend s. 7 unless it violates the right to
either the life, liberty or security of the person through a violation of the principles of
fundamental justice.
Section 1 of the Charter permits reasonable limits to be placed on the citizen's s.
7 right provided the limits are "prescribed by law" and can be demonstrably justified in a free
and democratic society. If these limits are not imposed in accordance with the principles of
fundamental justice, however, they can be neither reasonable nor justified under s. 1. The
phrase "except in accordance with the principles of fundamental justice" restricts the
government's power to impose limits under s. 1. A limit imposed on the s. 7 right in
accordance with the principles of fundamental justice must still meet the tests in s. 1.
The courts must determine the principles which fall under the rubric "principles of
fundamental justice". It would seem, however, that the phrase must include the fundamental
tenets of our justice system. The framers of the Charter obviously deliberately avoided the
concepts of "natural justice" and "due process". There seems no good reason to restrict the
principles of fundamental justice to procedural matters in light of the reference to the rule of
law in the preamble. Indeed, no purpose is achieved by importing the dichotomy between
substance and procedure into s. 7.
The principles of sentencing, and especially that the minimum sentence required
to obtain the objectives of the system be imposed, were key to determining that s. 94(2)
offended fundamental justice. Imprisonment is the most severe sentence imposed by law,
apart from death, and is generally reserved as a last resort for occasions when other
sanctions cannot achieve the objectives of the system. Mandatory imprisonment for an
absolute liability offence committed unknowingly and unwittingly and after the exercise of
due diligence is excessive and inhumane. Such sanction offends the principles of
fundamental justice embodied in our penal system and accordingly is inconsistent with s.
7 of the Charter.

R. v. Wholesale Travel Inc., [1991] 3 S.C.R. 154

Wholesale Travel Group Inc., a travel agency, was charged with false or misleading advertising
contrary to section 36(1)(a) of the Competition Act. It offered vacations at "wholesale prices"
which were marked up from wholesale. The accused pleaded not guilty to summary conviction
charges and brought a preliminary motion for a declaration that sections 36(1)(a) and 37.3(2) of
the Competition Act were inconsistent with sections 7 and 11(d) of the Canadian Charter of Rights
and Freedoms and therefore of no force or effect. Section 36(1)(a) created the offence for which
the guilty intent was really negligence and section 37.3(2) established a defence of due diligence
coupled with a timely retraction, but in doing so, section 37.3(2) imposed a reverse onus on the
accused. The Chief Justice declared three constitutional issues which were answered as follows:
(1) It is not an infringement of section 7 of the Charter to create an offence for which the mens
rea component is negligence, so that a due diligence defence is available; (2) The timely retraction
provisions infringe section 7, are not justified under section 1, and are accordingly
unconstitutional; (3) The reverse onus provision is constitutional. The first two conclusions were
arrived at unanimously; the third, with dissent. A further issue arose as to the standing of a
corporation to raise Charter rights to challenge the constitutionality of the charges. The
corporation has the standing to raise that defence, although the conclusion might be different if
the charges applied to corporations only and not to natural persons as well.

HELD: The matter was remitted to trial on the bases that: (a) a negligence mens rea regulatory
offence is constitutional; (b) the timely retraction provisions are unconstitutional; and (c) the
reverse onus provision is constitutional.

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

The respondent City entered into an agreement with a company for the disposal of all refuse
originating in the City. The company was to furnish a site and adequate labour, material and
equipment. The site selected bordered Cannon Creek which runs into Root River. The method of
disposal adopted was the "area" or "continuous slope" method of sanitary land fill, whereby
garbage is compacted in layers which are covered each day by natural sand or gravel. The side
had previously been covered with a number of fresh water springs that flowed into the creek.
Material was dumped to submerge these springs and the garbage and wastes dumped over this
material, ultimately to within twenty feet of the creek. Pollution resulted and the company was
convicted of a breach of s. 32(1) of The Ontario Water Resources Commission Act. The City also
charged under that section, which provides that every municipality or person that discharges, or
deposits, or causes, or permits the discharge or deposit of any material of any kind into any water
course, or on any shore or bank thereof is guilty of an offence. In dismissing the charge against
the City the trial judge found that the City had nothing to do with the actual operations, that the
company was an independent contractor and that its employees were not employees of the City.
On appeal by trial de novo the judge found that the offence was one of strict liability and he
convicted. The Divisional Court set aside the charge as duplicitous and also held that it required
mens rea with respect to causing or permitting the discharge. The Court of Appeal, while rejecting
the ground of duplicity as a basis to quash, as there had been no challenge to the information at
trial, agreed that mens rea was required and ordered a new trial.

  Held: The appeal and cross-appeal should be dismissed.  

The primary test for duplicity should be the practical one based on the only valid justification for
the rule against duplicity, the requirement that the accused know the case he has to meet and be
not prejudiced in the preparation of his defence by ambiguity in the charge. In this case there was
nothing ambiguous or uncertain in the charge. Section 32(1) is concerned with only one matter,
pollution, and only one generic offence was charged, the essence of which was "polluting". As the
charge was not duplicitous it was not necessary to consider whether a duplicity objection can be
raised for the first time on appeal.

Regarding mens rea the distinction between the true criminal offence and the public welfare
offence is of prime importance. Where the offence is criminal mens rea must be established and
mere negligence is excluded from the concept of the mental element required for conviction. In
sharp contrast "absolute liability" entails conviction on mere proof of the prohibited act without any
relevant mental element. The correct approach in public welfare offences is to relieve the Crown of
the burden of proving mens rea, having regard to Pierce Fisheries, [1971] S.C.R. 5, and to the
virtual impossibility in most regulatory cases of proving wrongful intention, and also, in rejecting
absolute liability, admitting the defence of reasonable care. This leaves it open to the defendant to
prove that all due care has been taken. Thus while the prosecution must prove beyond reasonable
doubt that the defendant committed the prohibited act, the defendant need only establish on the
balance of probabilities his defence of reasonable care. Three categories of offences are therefore
now recognised (first) offences in which mens rea must be established, (second) offences of "strict
liability" in which mens rea need not be established but where the defence of reasonable belief in a
mistaken set of facts or the defence of reasonable care is available, and (third) offences of
"absolute liability" where it is not open to the accused to exculpate himself by showing that he was
free of fault. Offences which are criminal are in the first category. Public welfare offences are prima
facie in the second category. Absolute liability offences would arise where the legislature has made
it clear that guilt would follow on mere proof of the proscribed act.

Section 32(1) being a provincial enactment does not create an offence which is criminal in the true
sense; and further the words "cause" and "permit" which are frequently found in public welfare
statutes do not denote clearly either full mens rea or absolute liability and therefore fit much
better into an offence of the strict liability class. As the City did not lead evidence directed to a
defence of due diligence and the trial judge did not address himself to the availability of such a
defence there should be a new trial to determine whether the City was without fault.

R. v. Raham, 2010 ONCA 206 (C.A.) Page of 4054

Section 172 of the Highway Traffic Act creates the offence of stunt driving, which is punishable by
a fine, a term of imprisonment or both. "Stunt" is defined in s. 3 of O. Reg. 455/07 as including
driving a motor vehicle "at a rate of speed that is 50 kilometres per hour or more over the speed
limit" (para. 7). The defendant was clocked at 131 kph in an 80 kph zone as she was passing a
truck and was charged with stunt driving by speeding. The defendant's argument that the offence
is one of absolute liability for which a term of imprisonment is a possible punishment, thus
violating her rights under s. 7 of the Canadian Charter of Rights and Freedoms, was rejected at
trial but was successful on her appeal from conviction. The appeal judge found that the offence is
unconstitutional and acquitted the defendant. The Crown appealed.

Held, the appeal should be allowed.

Section 172 of the HTA does not create two offences (driving a motor vehicle on a highway in a
race or contest while performing a stunt; and driving a motor vehicle on a highway in a race or
contest on a bet or wager). Rather, it creates three offences: driving a motor vehicle on a highway
in a race or contest; driving a motor vehicle on a highway while performing a stunt; and driving a
motor vehicle on a highway on a bet or wager.
Because of the presumption of constitutionality, it will take very clear language to create an
absolute liability offence that is potentially punishable by incarceration. The offence of stunt driving
by speeding is one of strict liability. The due diligence defence is not limited to persons who
believed they were not speeding. A due diligence defence to a strict liability charge amounts to a
claim that the defendant took all reasonable care to avoid committing the offence with which he or
she is charged. It cannot be said that driving over the speed limit, regardless of how much over
the speed limit, will necessarily preclude a [page242] finding that an individual took all reasonable
steps to avoid driving at 50 kph or more over the reasonable limit. While it is true that the
prohibited conduct in stunt driving by speeding is identical to the conduct prohibited by the offence
of speeding simpliciter created by s. 128 of the HTA, there is nothing illogical in treating the
former as a st rict liability offence and the latter as an absolute liability offence. The legislature has
chosen, through s. 172, to up the penal stakes for speeding at 50 kph or more over the speed limit
by including the risk of incarceration. In doing so, it must be taken, in the absence of clear
language excluding the defence, to have accepted the availability of the due diligence defence.
Clear exclusionary language is not found in s. 172 of the HTA or s. 3(7) of the Regulation. A new
trial is ordered as the accused was not given an opportunity to raise a due diligence defence.
 R. v. Cooper, [1980] 1 S.C.R. 1149
The appellant, an out-patient at the Hamilton Psychiatric Hospital, was charged with the murder of
Denise Hobbs, an in-patient at the same institution. After a party at the hospital, the appellant
unsuccessfully attempted to have sexual intercourse with the victim then choked her. Appellant
had a lengthy psychiatric history. The defence of insanity was not raised at the trial. A psychiatrist
was called by the defence to seek to establish that the accused did not have the capacity to form
an intention to kill. In answer to a question put by the trial judge the psychiatrist testified that he
did not think that the accused was suffering with a disease of the mind. None the less, the trial
judge dealt with this issue of insanity in her charge to the jury. The jury found the appellant guilty
of non-capital murder and he was sentenced to life imprisonment. An appeal was dismissed
without written reasons, Dubin J.A. dissenting on the grounds that there was misdirection and
non-direction amounting to misdirection in the trial judge's charge to the jury on the defence of
insanity. The appellant then appealed to this Court pursuant to s. 618(1)(a) of the Criminal Code
on the basis of a dissent in the Court of Appeal on a question of law.

Held (Martland and Pratte JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Dickson, Beetz, Estey and McIntyre JJ.: Section 16 of the Criminal Code does
not set out a test of insanity but, rather, the criteria to be taken into account in determining
criminal responsibility. The question raised by this appeal is whether there was evidence upon
which a properly charged jury could conclude, on a balance of probabilities, that the appellant had
disease of the mind to an extent that rendered him incapable of appreciating the nature and
quality of the act of which he was charged or of knowing that it was wrong.

With respect to the phrase "disease of the mind" (s. 16): That phrase has eluded satisfactory
definition by both legal and medical disciplines. It should be given a broad and liberal legal
construction, as it embraces any illness, disorder or abnormal condition which impairs the human
mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as
well as transitory mental states such as hysteria or concussion. The trial judge confused the legal
issue of whether the appellant's disorder could constitute disease of the mind with the factual issue
of whether the appellant was suffering from disease of the mind at the relevant time, which factual
issue ought to have been left to the jury in clear terms.

With respect to the phrase "appreciating the nature and quality of an act or omission" (s. 16): In
using "appreciate" rather than "know", the draftsmen of the Code made a deliberate change in
language from the common law rule in order to broaden the legal and medical considerations
bearing upon the mental state of the accused and to make it clear that cognition was not to be the
sole criterion. Our Code stipulates an independent test, requiring a level of understanding of the
act which is more than mere knowledge that it is taking place: in short, a capacity to apprehend
the nature of the act and its consequences.

With respect to the evidence and the charge to the jury: The trial judge was correct in instructing
the jury on the issue of insanity, whatever the posture of defence counsel, but she erred 1) in
treating a doctor's reply to an isolated question as virtually determinative of the issue of whether
the appellant had a "disease of the mind"; 2) in failing to review adequately the evidence bearing
upon the insanity issue and in failing to relate the evidence bearing upon the insanity issue and in
failing to relate the evidence of the accused's capacity to intend certain acts to the issue of
insanity; 3) in concluding her charge in language which to all intents withdrew from the jury the
essential determination of fact which it was its province to decide.

Per Martland J., dissenting: There are two main criticisms of the charge to the jury in the
dissenting reasons in the Court of Appeal. The first is that there was misdirection, or non-direction
amounting to misdirection, on the issue as to whether the accused was suffering from a disease of
the mind or natural imbecility. The second is that there was non-direction, amounting to
misdirection, in failing to relate the evidence of the psychiatrist on the issue as to whether the
appellant was able to appreciate the nature and quality of the act. As to the first criticism, the trial
judge did not treat the opinion of the psychiatrist that the accused was not suffering from a
disease of the mind as determinative. The jury was told that if there was other evidence on this
issue they were entitled to weigh it. There was no evidence to show a state of natural imbecility.
As to the second criticism, it is desirable to stress the fact that the appellant elected not to raise
the question of insanity: The trial judge cannot be criticized for not relating the evidence given in
relation to another issue, to an issue which had not been raised at trial. The evidence does not
establish an incapacity to appreciate the nature and quality of the appellant's act. The onus of
proving that he was not sane rested upon the appellant.

There was no substantial wrong or miscarriage of justice. The Court of Appeal was entitled to
dismiss the appeal of the accused under ss. 613(1)(b)(iii) of the Criminal Code.

R. v. Oommen, [1994] 2 S.C.R. 507

The accused killed, without apparent motive, a friend who was sleeping in his apartment. For a
number of years the accused had been suffering from a mental disorder 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. On the night of the murder, he
became convinced that they had surrounded his apartment building with the intention of killing
him. This delusion, combined with his belief that the victim was one of the conspirators, persuaded
him that he was obliged to kill the victim to prevent her from killing him.

At his trial on a charge of second degree murder, the accused raised the defence of insanity.
Psychiatrists testified that the accused possessed the general capacity to distinguish right from
wrong and would know that to kill a person is wrong but that, on the night of the murder, his
delusion deprived him of that capacity and led him to believe that killing was necessary and
justified under the circumstances as he perceived them. The trial judge rejected the defence of
insanity, concluding that in view of the accused's general capacity to know right from wrong, he
was not relieved from criminal responsibility under s. 16(1) of the Criminal Code, notwithstanding
his subjective belief, at the time of the killing, that what he did was right and his inability to apply
his general knowledge of right and wrong. The Court of Appeal allowed the accused's appeal and
ordered a new trial on the ground that the trial judge had erred in his interpretation of s. 16(1).

  Held: The appeal should be dismissed.  

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. Indeed, the section focuses on the particular capacity of the accused to understand
that his act was wrong at the time of committing the act. An accused should thus 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.

R. v. Kjeldson, [1981] 2 S.C.R. 617

Appellant, whose only defence was insanity, was convicted of first degree murder at trial. Medical
evidence revealed that he was a psychopath and understood the physical nature and
consequences of his act, though indifferent to such consequences. The trial judge instructed the
jury (1) that psychopathy could be a disease of the mind and (2) on the meaning of the word
"appreciate" in s. 16 of the Criminal Code. On appeal, the Court dismissed the appeal but
substituted a verdict of second degree murder because the trial judge failed to instruct the jury
adequately on the difference between first and second degree murder. The principal issue to be
determined was the definition of the word "appreciating" and the adequacy of the trial judge's
charge to the jury in that respect.
   Held: The appeal should be dismissed.  

A person appreciates the nature and quality of an act within the meaning of s. 16 if he knows what
he is doing and is aware of the physical consequences which will result from his acts. The trial
judge correctly instructed the jury that psychopathy could be a disease of the mind and on the
meaning of "appreciating"; and, in view of the evidence of the medical witnesses, the instruction
was adequate.

R. v. Stone, [1999] 2 S.C.R. 290

The accused admitted stabbing his wife 47 times but claimed to have done it while in an
automatistic state brought on by nothing more than his wife's insulting words. The accused
testified that he felt a "whoosh" sensation washing over him. When his eyes focussed 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. He disposed of the body in his truck
tool box, cleaned up, drove home, prepared a note for his step-daughter, and checked into a hotel.
He then collected a debt, sold a car and flew to Mexico. While in Mexico, the accused awoke one
morning to the sensation of having his throat cut. In trying to recall his dream, he remembered
stabbing his wife twice in the chest before experiencing a "whooshing" sensation. He returned to
Canada about six weeks later, spoke to a lawyer and surrendered himself to police. He was
charged with murder.

In his defence, the accused claimed: insane automatism, non-insane automatism, lack of intent,
and alternatively, provocation. The trial judge ruled that the defence had laid a proper evidentiary
foundation for insane, but not non-insane automatism. Accordingly, he instructed the jury on
insane automatism, intention in relation to second degree murder and provocation. The accused
was found guilty of manslaughter and sentenced to seven years' imprisonment.

In opening remarks at trial, counsel for the defence stated that the evidence which would be given
by the defence psychiatrist would support the defence of automatism. The defence only made this
expert's report available to the Crown after the latter successfully brought a motion for disclosure.

The Court of Appeal upheld accused's conviction and dismissed the Crown's appeal of the
sentence. Both the accused and the Crown appealed to this Court. At issue here were: (1) whether
the "defence" of sane automatism should have been left to the jury; (2) whether the defence
psychiatric report was properly ordered disclosed to the Crown; and (3)(a) whether the sentencing
judge could consider provocation as a mitigating factor for manslaughter where the same
provocation had already been considered in reducing the charge to manslaughter; and (b) whether
the sentence was fit and properly reflected the gravity of the offence and the moral culpability of
the offender.

Held (Lamer C.J. and Iacobucci, Major and Binnie JJ. dissenting on the appeal from conviction):
The accused's appeal from conviction should be dismissed. The Crown's sentence appeal should
also be dismissed.

o (1)"Defence" of sane automatism

Per L'Heureux-Dubé, Gonthier, Cory, McLachlin and Bastarache JJ.: Two forms of automatism are
recognized at law. 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, on the other
hand, 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.
The law presumes that people act voluntarily. Since a defence of automatism amounts to a claim
that one's actions were not voluntary, the accused must establish a proper foundation for this
defence before it can be left with the trier of fact. This is the equivalent of satisfying the
evidentiary burden for automatism. Once the evidentiary foundation has been established, the trial
judge must determine whether the condition alleged by the accused is mental disorder or non-
mental disorder automatism.

A two-step approach should therefore apply to all cases involving claims of automatism. First, the
defence must establish a proper foundation for automatism. This burden is only met where the
trial judge concludes that there is evidence upon which a properly instructed jury could find that
the accused acted involuntarily on a balance of probabilities. In all cases, this will require that the
defence make an assertion of involuntariness and call confirming psychiatric evidence. Other
relevant factors to be considered in determining whether this defence burden has been satisfied
include: the severity of the triggering stimulus; corroborating evidence of bystanders;
corroborating medical history of automatistic-like dissociative states; whether there is evidence of
a motive for the crime; and whether the alleged trigger of the automatism is also the victim of the
automatistic violence. No one factor is determinative. The trial judge must weigh all of the
available evidence on a case-by-case basis. Placing this burden on the defence, while constituting
a limitation of an accused's s. 11(d) Charter rights, is justified under s. 1.

Second, given the establishment of a proper foundation, the trial judge must determine whether
the condition alleged by the accused is mental disorder or non-mental disorder automatism. The
assessment of which form of automatism should be left with the trier of fact comes down to the
question of whether or not the alleged condition is a mental disorder. Mental disorder is a legal
term defined in the Code as "a disease of the mind". The question of what conditions are included
in that term is a question of mixed law and fact because it involves an assessment of the particular
evidence in the case rather than a general principle of law. Trial judges should start from the
proposition that the condition is a disease of the mind and then determine whether the evidence in
the particular case takes the condition out of the disease of the mind category.

There are two distinct approaches to the disease of the mind inquiry. Under the first, the internal
cause theory, the trial judge must compare the accused's automatistic reaction to the way one
would expect a normal person to react in order to determine whether the condition the accused
claims to have suffered from is a disease of the mind. The trial judge must consider the nature of
the alleged trigger of the automatism and determine whether a normal person might have reacted
to it by entering an automatistic state. This comparison is a contextual objective one. Evidence of
an extremely shocking trigger will be required to establish that a normal person might have
reacted to it by entering an automatistic state as the accused claims to have done.

The objective element of the internal cause theory does not violate ss. 7 (the fundamental
principles of justice) and 11(d) (the right to be presumed innocent) of the Charter. The objective
inquiry is applied to assess whether the condition claimed by the accused is a disease of the mind
only after a subjective inquiry has been completed by the trial judge into whether there is
evidence upon which a properly instructed jury could find, on a balance of probabilities, that the
accused acted involuntarily. The objective standard affects only the classification of the defence
rather than the assessment of whether the actus reus of the offence has been established. That is,
the objective component does not affect the burden of proof on the issue of whether the accused
voluntarily committed the offence. Moreover, the impact of the objective comparison is limited
even with regard to the disease of the mind inquiry because the internal cause theory is only an
analytical tool. Consideration of the subjective psychological make-up of the accused in the
internal cause theory would frustrate the very purpose of making the comparison which is the
determination of whether the accused was suffering from a disease of the mind in a legal sense.

The second approach, the 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. While a
continuing danger suggests a disease of the mind, a finding of no continuing danger does not
preclude a finding of a disease of the mind. Trial judges may consider any of the evidence before
them in order to assess the likelihood of recurrence of violence and in particular the psychiatric
history of the accused and the likelihood that the trigger alleged to have caused the automatistic
episode will recur.
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 under which either or both of these approaches to the inquiry may be
considered by trial judges. It is therefore more appropriate to refer to the internal cause factor and
the continuing danger factor. 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.

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, on a balance of probabilities, that the accused acted involuntarily. The
question for the trier of fact will then be whether the defence has proven, on a balance of
probabilities, that the accused acted involuntarily. A positive answer to this question by the trier of
fact will result in an absolute acquittal. On the other hand, if the trial judge concludes that the
alleged condition is a disease of the mind, only mental disorder automatism will be left with the
trier of fact. The case will then proceed like any other s. 16 case, leaving for the trier of fact the
question of whether the defence has proven, on a balance of probabilities, that the accused
suffered from a mental disorder which rendered him or her incapable of appreciating the nature
and quality of the act in question. The determination of this issue by the trier of fact will absorb
the question of whether the accused in fact acted involuntarily.

No substantial wrong or miscarriage of justice occurred here.

Per Lamer C.J. and Iacobucci, Major and Binnie JJ. (dissenting): The defence of non-mental
disorder automatism should not have been taken away from the jury in light of the trial judge's
evidentiary ruling that there was evidence the accused was unconscious throughout the
commission of the offence. The correctness of the ruling was affirmed by the British Columbia
Court of Appeal.

Automatism is conceptually a sub-set of the voluntariness requirement, which in turn is part of the
actus reus, and accordingly puts in issue the Crown's ability to prove all of the elements of the
offence beyond a reasonable doubt. While sane individuals are presumed to be responsible for
their voluntary acts or omissions, no such inference of voluntariness can be drawn if the accused
leads credible evidence, supported by expert testimony, that he was unconscious throughout the
commission of the offence. A judge-made classification of situations into mental disorder
automatism and non-mental disorder automatism cannot relieve the Crown of the obligation to
prove all elements of the offence, including voluntariness. Otherwise there would be strong
objections under s. 7 (fundamental principles of justice) and s. 11(d) (presumption of innocence)
of the Charter, and no attempt was made in this case to provide a s. 1 justification. Similar
Charter objections apply to any attempt to add to the evidential burden on the accused the further
persuasive or legal burden to establish automatism on a balance of probabilities.

The law on automatism is correctly concerned with public safety. The risk of recurrence is
legitimately part of the "policy component" of the legal analysis of "disease of the mind". In the
present case, neither psychiatrist considered recurrence a significant possibility.

The mental disorder provisions of the Criminal Code were not appropriate to resolve the
automatism issue here. It was wrong of the courts to require the accused to substitute for his
chosen defence of involuntariness the conceptually quite different plea of insanity. Both Crown and
defence psychiatrists agreed that the accused did not suffer from a medically defined disease of
the mind. He was either unconscious at the time of the killing or he was not telling the truth at the
time of the trial. This was a question for the jury. The statutory inquiry into whether he was
"suffering from a mental disorder" that rendered him "incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong" are qualitative questions that are
not really responsive to his allegation that he was not conscious of having acted at all. While s. 16
of the Code may provide an appropriate structure to resolve cases of medical "diseases of the
mind", it may not be responsive to the real issues where the "disease of the mind" derives from
legal classification, rather than medical classification. If the jury was satisfied that the s. 16
requirements were met, that would end the matter: the accused would have been found not
criminally responsible on account of mental disorder (NCRMD). He or she would not be permitted
to ignore NCRMD status and seek a full acquittal on the basis of involuntariness. However, if the
jury rejects NCRMD status, it should still be left with the elementary instruction that the accused is
entitled to an acquittal if the Crown fails to establish beyond a reasonable doubt all of the
elements of the offence, including voluntariness.

The evidence established that there are states of automatism where perfectly sane people lose
conscious control over their actions. Once the trial judge exercised his gatekeeper function to
screen frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the
plea of automatism. This jurisdiction should not be removed by "judicially created policy". It is to
be expected that the jury will subject the evidence of involuntariness to appropriate scrutiny.
There was discussion in Rabey v. The Queen about the need to maintain the credibility of the
justice system. The jury is as well placed as anyone in the justice system to uphold its credibility.
The bottom line is, after all, that the task of weighing the credibility of such defences was confined
by Parliament to the jury. The Court should respect the allocation of that responsibility.

o (2)Disclosure

Per the Court: The defence waived the privilege in its psychiatrist's report at the opening of its
case when counsel disclosed the elements in that report favourable to his client. In any event, if
disclosure was premature, the accused suffered no prejudice. A witness, once on the stand, is no
longer offering private advice to a party but rather is offering an opinion for the assistance of the
court. The opposing party must be given access to the foundation of such opinions to test them
adequately. Thus, even if the defence counsel's opening address had been insufficient to constitute
a waiver, s. 686(1)(b)(iii) of the Code would properly be applied to cure the error.

o (3)Sentence Appeal

Per the Court: The sentencing judge must consider all of the circumstances of the offence,
including whether it involved provocation. An accused does not gain a "double benefit" if
provocation is considered in reducing a verdict from murder to manslaughter under s. 232 of the
Code. Rather, s. 232 provides an accused with a single benefit and to give it full effect,
provocation must be considered in sentencing as well.

The judiciary must bring the law into harmony with prevailing social values. A spousal connection
between offender and victim is recognized as an aggravating factor in sentencing under s.
718.2(a)(ii) and under the common law. Here, the Crown failed to establish that the sentencing
judge did not properly consider the domestic nature of this offence in reaching his decision on
sentence.

Appellate courts, in minimizing disparity of sentences in cases involving similar offences and
similar offenders, may fix ranges for particular categories of offences as guidelines for lower courts
provided they clearly describe the category created and the logic behind the range appropriate to
it. They must not, however, interfere with sentencing judges' duty to consider all relevant
circumstances in sentencing.

Variation of sentence should only be made if an appellate court is convinced that a sentence is "not
fit" or "clearly unreasonable", provided the trial judge has not erred in principle, failed to consider
a relevant factor or overemphasized the appropriate factors. This was not the case here.

R. v. Luedecke, 2008 ONCA 716

Appeal by the Crown from the respondent's acquittal on a charge of sexual assault. The
respondent acknowledged that he engaged in non-consensual sexual relations with the victim. He
claimed he was asleep when the sexual activity occurred, was unaware of what was happening,
and unable to control his actions. The respondent raised the defence of non-mental disorder
automatism. The Crown argued that the respondent had not established that his actions were
involuntary and was therefore guilty of sexual assault. In the alternative, the Crown argued that if
the respondent's actions were involuntary, those actions were the product of a mental disorder
and the respondent should be found not criminally responsible on account of mental disorder
(NCR-MD).

HELD: Appeal allowed.

The acquittal was set aside and a new trial ordered. The respondent suffered from parasomnia. As
a result, he sexually assaulted a defenseless, young victim. The reason for his conduct,
automatism brought on by parasomnia, rendered his actions non-culpable in the eyes of the
criminal law. However, that same explanation made his behaviour potentially dangerous and
raised legitimate public safety concerns. An outright acquittal reflected the non-culpable nature of
the conduct but did not address the potential danger posed by the respondent's condition. The
Criminal Code responded to public safety concerns by treating almost all automatisms as the
product of a mental disorder leading not to an acquittal but to an NCR-MD verdict. A new trial was
ordered for the limited purpose of determining whether the respondent's automatism should result
in a verdict of not guilty or an NCR-MD verdict.

The Queen v. George, [1960] S.C.R. 871

Respondent was charged under s. 288 of the Criminal Code with robbery with violence, and was
acquitted by the trial judge on the ground that he was so intoxicated as to be incapable of forming
the specific intent to commit robbery. In appealing this decision the Crown contended that the trial
judge did not consider the included offence of common assault and, in the result, failed to direct
himself with respect to the divisibility of the charge laid and to the incidence of drunkenness as a
defence to a charge of common assault, as distinguished from a charge of robbery with violence.
The appeal was dismissed by the Court of Appeal, and the Crown then sought and obtained the
leave of this Court to appeal from that judgment.

Held (Locke J. dissenting): The appeal should be allowed, the verdict of acquittal with respect to
common assault set aside, and a verdict of guilty of that offence entered.

Per Taschereau and Fauteux JJ.: As provided by s. 569(1)(a) of the Code, when the commission of
the offence charged, as described in the enactment creating it or as 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 that the whole offence that is charged is not
proved. The King v. Wong On (No. 3), 8 C.C.C. 423; Rex v. Stewart, 71 C.C.C. 206, referred to.
In a like situation, the offence included is part of the case which the accused has to meet under
the law. The mere omission of the Crown to raise the issue cannot per se and without more relieve
the trial judge from the duty imposed upon him under the section. The words "may convict" give
an authority which must be exercised when the circumstances described in the section are
present. Rex v. Bishop of Oxford, (1879) 4 Q.B.D. 245, applied; Wexler v. His Majesty The
King, [1939] S.C.R. 350, distinguished.
Contrary to what is the case in the crime of robbery, where, with respect to theft, a specific intent
must be proved, there is no specific intent necessary to constitute the offence of common assault.
Here the manner in which force was applied by the respondent to his victim was not accidental or
unintentional. Re Beard, [1920] A.C. 479, referred to.

The finding of the trial judge that the accused had not the capacity to form the specific intent to
commit robbery did not justify the conclusion reached in appeal that he could not then have
committed the offence of common assault.
Per Martland and Ritchie JJ.: Pursuant to s. 569 of the Code the trial judge was under a duty to
consider the included offence of assault, and the fact that his report to the Court of Appeal
contained a statement "that common assault was not raised by Crown counsel at the trial" is not
sufficient ground for concluding that he did not consider this offence.

The duty which rests upon the trial judge to consider all included offences of which there is
evidence can, in no way, be affected by the fact that the Crown has omitted to make reference to
such offences, and it follows that where the trial judge has wrongly applied the law applicable to
an included offence the Crown is not deprived of its statutory right of appeal because of its
omission at trial to address the Court on the matter.

The offence of robbery requires the presence of the kind of intent and purpose specified in ss. 269
and 288 of the Code, but the use of the word "intentionally" in defining "common assault" in s.
230(a) is exclusively referable to the physical act of applying force to the person of another.

Per Locke J., dissenting: The Crown's contention that where a trial judge hearing a criminal charge
fails not to deal with, but to consider independently, an offence included in the offence specifically
charged, and this is done with the approval of counsel for the Crown, the provisions of s. 584 of
the Code may be invoked to again place the accused in jeopardy, should be rejected.

The right of the Crown to appeal, while given in clear terms, may not be exercised in all
circumstances, as was decided in Wexler v. R., supra. To construe the section differently would
mean that accused persons could be subjected to a succession of trials for the same offence on
grounds that were not advanced at the first and succeeding previous trials, and which the accused
person had not accordingly attempted to meet. The King v. Miles, (1890) 24 Q.B.D. 423, referred
to.

Although s. 569 imposes a duty upon the judge to consider the included offence of assault, his
failure to do so does not render the proceeding defective and a new trial necessary. The King v.
Wong On, supra, applied; The Queen v. Bishop of Oxford, supra, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia [126 C.C.C. 127.], affirming a
judgment of Morrow C.C.J. Appeal allowed, Locke J. dissenting.

R. v. Robinson, [1996] 1 S.C.R. 683

The accused killed a man but claimed to have acted without intent because he was intoxicated.
The evidence revealed that he had been drinking with the victim and some friends and that the
killing occurred when the victim said something to offend him. After being instructed on
provocation, self-defence and intoxication, the jury found the accused guilty of second-degree
murder. The Court of Appeal, however, allowed his appeal. At issue here are: (1) how juries
should be instructed regarding evidence of intoxication; (2) whether the charge to the jury, read
as a whole, constituted misdirection and reversible error on the issues of intoxication, the
common-sense inference that a person intends the natural and probable consequences of his or
her acts, and the burden on the Crown to prove the intent required for murder beyond a
reasonable doubt; and (3) whether the curative provisions of s. 686(1)(b)(iii) of the Criminal Code
should be applied.

Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed.

Should MacAskill be Overruled?

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: 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.

Five separate considerations favoured overruling the Beard rules: (1) the opinions of Laskin and
Dickson C.JJ. which, albeit in dissent, suggested that the real focus should be on whether the
Crown, in light of the intoxication evidence, has established the requisite intent beyond a
reasonable doubt; (2) developments in provincial appellate courts which no longer follow the Beard
rules and have developed two different approaches in its place -- R. v. Canute and R. v.
MacKinlay; (3) developments in England, New Zealand and Australia where "capacity" language
has fallen out of favour and intoxication is now simply a factor jurors can consider in assessing
whether the prosecution has proved beyond a reasonable doubt that the accused had the required
intent; (4) academic commentary which favours abandoning the Beard rules; and (5) the Canadian
Charter of Rights and Freedoms which is violated by the Beard rules.

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 strict application of the Oakes test is appropriate. While decisions of the legislatures may be
entitled to judicial deference under s. 1 as a matter of policy, such deference is not required when
reviewing judge-made law. The protection of the public from intoxicated offenders is of sufficient
importance to warrant overriding a constitutionally protected right. A rational connection exists
between the "capacity" restriction of the defence contained in the impugned common law rule and
its objective. The restriction fails the proportionality prong, however, because it does not impair an
accused's ss. 7 and 11(d) rights as little as is reasonably possible. The Beard rules cast the
criminal net too far in that all accused with the capacity to formulate the requisite intent cannot
rely on their state of intoxication even though it might create a reasonable doubt as to whether the
accused actually had the intent necessary to the crime.

Per L'Heureux-Dubé J.: The rule in MacAskill v. The King infringes ss. 7 and 11(d) of the Charter
because it prevents the trier of fact from considering evidence capable of raising a reasonable
doubt as to whether the accused had the specific intent required to commit the offence. The effect
of the rule is that an accused may be convicted of murder even if the evidence raises a reasonable
doubt as to the existence of the intent element of the offence.

The common law may impose reasonable limits on Charter rights. While the analysis of a common
law rule under s. 1 need not adhere strictly to the structure set out in Oakes, the substance of the
analysis will be similar because its purpose is to ascertain whether the particular rule is a
justifiable limit on rights.

The rule in MacAskill is not a reasonable limit on the rights guaranteed in ss. 7 and 11(d) of the
Charter. Case law from the many jurisdictions that have abandoned the rule has had no apparent
adverse consequence that might give rise to pressing and substantial concerns. The absence of a
convincing causative link between intoxication and violent crime, too, shows that the rule is not
rationally connected to the objective of preventing crime. Finally, the MacAskill rule is not well
tailored to address a particular objective in that it applies to all crimes of specific intent and
therefore does not meet the proportionality or minimal impairment requirements.

For offences of specific intent, evidence of intoxication should no longer be subject to a rule
requiring that it be considered only if intoxication attains such a degree that it deprives the
accused of the capacity to form the specific intent. Evidence of intoxication can be considered with
all other evidence in determining whether the accused actually had the specific intent required to
constitute the offence.

The Replacement for the Beard Rules

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: 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.

A single step charge (Canute) is a useful model as it omits any reference to "capacity" or
"capability" and focuses the jury on the question of "intent in fact". Arguments in favour of a two-
stage charge (MacKinlay) are based on the need to put the evidence of experts who often testify in
"capacity" terms in context for the jury. In certain cases, in light of the particular facts of the case
and/or in light of the expert evidence called, it may be appropriate to use the two-step charge.

If a two-step charge is used with "capacity" and "capability" type language and the charge is the
subject of an appeal, then a determination will have to be made by appellate courts on a case by
case basis of whether there is a reasonable possibility that the jury may have been misled into
believing that a determination of capacity was the only relevant inquiry. The following factors, not
intended to be exhaustive, should be considered: (a) the number of times that reference to
capacity is used; (b) the number of times that reference to the real inquiry of actual intent is used;
(c) whether there is an additional "incapacity" defence; (d) the nature of the expert evidence (i.e.,
whether the expert's evidence relates to the issue of capacity rather than to the effect of alcohol
on the brain); (e) the extent of the intoxication evidence; (f) whether the defence requested that
references to "capacity" be used in the charge to the jury; (g) whether during a two-step charge it
was made clear that the primary function of the jury was to determine whether they were satisfied
beyond a reasonable doubt that the accused possessed the requisite intent to commit the crime.

Per L'Heureux-Dubé J.: As a preliminary matter, the threshold for putting any defence to the jury
is whether it has an evidentiary basis on which a reasonable jury might acquit. Where the
accused's defence rests on evidence of intoxication, the question is whether there is sufficient
evidence of intoxication that a jury could have a reasonable doubt as to whether the accused had
the specific intention, knowledge or foresight required for the offence.

Assuming that the evidence meets this threshold, two approaches have been developed as to how
the judge must present the evidence of intoxication to the jury: a one-step charge, referring only
to intent; and a two-step charge that also mentions that intoxication may be relevant to the
accused's capacity to form the required intent. Where a trial judge has referred to capacity or used
a two-step charge, the question is not whether there is a "reasonable possibility that the jury may
have been misled" since that question arises only after an ambiguity or error has been identified.
If the evidence in a particular case puts the accused's capacity in issue, it cannot be an error to tell
the jury that they must acquit the accused if they have a reasonable doubt as to whether the
accused had the capacity to form the required intent. Nor is a charge necessarily ambiguous
simply because it discusses capacity. Rather, each charge must be reviewed individually to
ascertain whether it meets the basic requirements of correctness, completeness and clarity. If it
does, it cannot be impeached, regardless of whether it contains one step or two.

This Court need not and should not express a general preference for either form of charge, or
construct a special test, based on minutiae, for determining whether references to capacity were
acceptable. The role of an appellate court in reviewing a jury charge is to determine whether the
effect of the charge as a whole is to leave the jurors with an adequate understanding of the issues
involved, the law relating to the issues, and the evidence that they should consider in resolving the
issues. It is not to express vague disapproval of a form of charge that, in frequent cases, will be
perfectly appropriate.

Application to this Case

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The
charge in this case left the jury with the impression that there was a threshold test that had to be
met before the intoxication evidence became relevant. No instruction was given informing the jury
that they were entitled to consider whether, in light of the intoxication evidence, the accused had
the requisite intent in fact. In this case, a charge linking the evidence of intoxication with the issue
of intent in fact was particularly important since there was also some, albeit weak, evidence of
provocation and self-defence. The jury, even if it may have rejected each individual defence, could
have had a reasonable doubt about intent had they been instructed that they could still consider
the evidence of intoxication, provocation and self-defence cumulatively on that issue.
The trial judge's incorrect use of the term presumption in discussing the common-sense inference
that a sane and sober person intends the natural consequences of his or her actions did not result
in reversible error when read in the context of the charge as a whole. He made it sufficiently clear
to the jury that they were not obligated to follow it.

Where some evidence of intoxication exists, a trial judge must link his or her instructions on
intoxication with the instruction on the common-sense inference so that the jury is specifically
instructed that evidence of intoxication can rebut the inference. In both the model charges set out
in MacKinlay and Canute, this approach is taken. This instruction is critical since in most cases
jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, a
confused jury may see a conflict between the inference and the defence and resolve that conflict in
favour of their own evaluation of common sense. Therefore, an instruction which does not link the
common-sense inference with the evidence of intoxication constitutes reversible error. In this
case, the trial judge's failure to make this linkage constitutes reversible error.

The trial judge correctly stated the distinction between the two intents for murder under s. 229 at
some points in the charge but he also misstated or blurred the distinction at others. The lapses
and errors in the charge as it related to specific intent for murder in s. 229(a)(ii) of the Code
aggravated the other errors in the charge but did not warrant ordering a new trial on this ground
alone.

The jury would not have adequately understood the issues concerning intoxication and intent or
the law and evidence relating to those issues. The curative provisions of s. 686(1)(b)(iii) of the
Code should not be applied as the accused was denied a defence to which he was entitled to at
law. The appeal was therefore dismissed.

Per L'Heureux-Dubé J. (dissenting): Most of the errors alleged by the accused are non-existent,
and the few imperfections that do exist are immaterial. In describing the common-sense inference
that people intend the natural consequences of their acts, the use of the term "presumption" was
not an error because the jury understood that the "presumption" or "inference" was optional.
Moreover, the trial judge put the common-sense inference in its proper perspective and made it
clear that the overriding issue was whether the Crown had proved specific intent. There is no
absolute requirement that the evidence of intoxication be linked to the common-sense inference. It
was clear to the jury, exercising its common sense, that the evidence of intoxication could be
considered together with the other evidence in ascertaining the accused's intent.

R. v. Tatton, 2015 SCC 33

Appeal by the Crown from a judgment of the Ontario Superior court, confirmed by the Court of
appeal, which determined that Tatton could rely on self-induced intoxication as a defence to arson
and acquitted him of that offence. Tatton was living in a guest room at a home owned by his ex-
girlfriend Spencer. He and Spencer had broken off their relationship, but Tatton remained hopeful
that they would reconcile. Tatton was an alcoholic. He had a tendency to binge drink. There was
evidence that in the past he had come home drunk, started to cook food, and then passed out,
only to awake to a house filled with smoke. On September 24, 2010, Spencer went to Kingston to
visit friends. Tatton was not happy about this and became jealous and upset. He drank heavily
throughout the day and evening, consuming approximately 52 ounces of alcohol. Over the course
of the evening, he left Spencer a series of agitated voice messages on her cell phone, two of which
referred to her home being on fire. Eventually, Tatton passed out. When Tatton awoke, he decided
to cook some bacon. Tatton placed a pan with oil on the stove, set the burner to "high", and left
the house to get a coffee. When he returned approximately 20 minutes later, the house was on
fire. The fire investigator determined that the source of the fire was the vegetable oil on the stove.
Tatton was arrested and charged with arson contrary to s. 434 of the Criminal Code. At trial,
Tatton sought to rely on the defence of accident based on his drunkenness to rebut the intent
required for the offence of arson. A central question at trial was whether Tatton had the requisite
intent to commit the offence of arson, and more particularly whether the court could take his state
of intoxication into account in making its assessment. The trial judge determined that s. 434 was a
specific intent offence, meaning that Mr. Tatton could rely on self-induced intoxication as a
defence. In the end, he acquitted Tatton because he was not convinced beyond a reasonable doubt
that Tatton intentionally or recklessly left the stove on "high". A majority of the Court of Appeal for
Ontario upheld Tatton's acquittal.

Appeal allowed. Arson was a general intent offence for which intoxication falling short of
automatism was not available as a defence. The actus reus was the damaging of property by fire.
The mental element required intentional or reckless performance of an illegal act. There was no
reason to resort to policy considerations to determine the availability of the defence of intoxication.
However, had the Court found it necessary to do so, the same conclusion would have been
reached. Damage to property was often associated with alcohol consumption and it would erode
the policy underlying the offence of causing damage to property by fire if an accused could rely on
self-induced intoxication as a defence. The lower courts erred in determining that arson was a
specific intent offence and in considering evidence of Tatton's self-induced intoxication in assessing
his intent. The Crown successfully demonstrated that the trial judge erred in finding that he could
consider Tatton's state of intoxication and that this error had a material bearing on the acquittal.
When the trial judge's reasons were read in their entirety, it was apparent that Tatton's
intoxication played a material role in the outcome. The acquittal was set aside and a new trial was
ordered.

R. v. Daviault, [1994] 3 S.C.R. 63

The complainant, a 65-year-old woman who is partially paralysed and thus confined to a
wheelchair, knew the accused through his wife. At about 6:00 p.m. one evening, at her request,
the accused arrived at her home carrying a 40-ounce bottle of brandy. The complainant drank part
of a glass of brandy and then fell asleep in her wheelchair. When she awoke during the night to go
to the bathroom, the accused appeared, grabbed her chair, wheeled her into the bedroom, threw
her on the bed and sexually assaulted her. He left the apartment at about 4:00 a.m. The
complainant subsequently discovered that the bottle of brandy was empty. The trial judge found
as a fact that the accused had drunk the rest of the bottle between 6:00 p.m. and 3:00 a.m. The
accused was a chronic alcoholic. He testified that he had spent the day at a bar where he had
consumed seven or eight bottles of beer. He recalled having a glass of brandy upon his arrival at
the complainant's residence but had no recollection of what occurred between then and when he
awoke nude in the complainant's bed. He denied sexually assaulting her. The pharmacologist
called by the defence as an expert witness testified that an individual with the blood-alcohol ratio
he hypothesized the accused would have had after consuming that amount of alcohol might suffer
a blackout. 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. The trial judge found as a fact
that the accused had committed the offence as described by the complainant, but acquitted him
because he had a reasonable doubt about whether the accused, by virtue of his extreme
intoxication, had possessed the minimal intent necessary to commit the offence of sexual assault.
The Court of Appeal allowed the Crown's appeal and ordered that a verdict of guilty be entered. It
held that the defence of self-induced intoxication resulting in a state equal to or akin to
automatism or insanity is not available as a defence to a general intent offence.

Held (Sopinka, Gonthier and Major JJ. dissenting): The appeal should be allowed and a new trial
ordered.

Per L'Heureux-Dubé, Cory, McLachlin and Iacobucci JJ.: The strict application of the rule
established in this Court's decision in Leary that the mens rea of a general intent offence cannot be
negated by drunkenness offends both ss. 7 and 11(d) of the Canadian Charter of Rights and
Freedoms. The mental aspect of an offence has long been recognized as an integral part of crime,
and to eliminate it would be to deprive an accused of fundamental justice. The mental element in
general intent offences may be minimal; in this case it is simply an intention to commit the sexual
assault or recklessness as to whether the actions will constitute an assault. The necessary mental
element can ordinarily be inferred from the proof that the assault was committed by the accused,
but the substituted mens rea of an intention to become drunk cannot establish the mens rea to
commit the assault. Moreover, the presumption of innocence requires that the Crown bear the
burden of establishing all elements of a crime, including the mental element of voluntariness.
Assuming that voluntary intoxication is reprehensible, it does not follow that its consequences in
any given situation are either voluntary or predictable. Further, self-induced intoxication cannot
supply the necessary link between the minimal mens rea required for the offence and the actus
reus. To deny that even a very minimal mental element is required for sexual assault offends the
Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that
it cannot be justified under s. 1 of the Charter. The experience of other jurisdictions which have
completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the
defence would be available only in the rarest of cases, demonstrate that there is no urgent policy
or pressing objective which need to be addressed. Studies on the relationship between intoxication
and crime do not establish any rational link. Finally, as the Leary rule applies to all crimes of
general intent, it cannot be said to be well tailored to address a particular objective and it would
not meet either the proportionality or the minimum impairment requirements.

The flexible approach suggested by Wilson J. in Bernard, whereby evidence of intoxication could
properly go before a jury in general intent offences if it demonstrated such extreme intoxication
that there was an absence of awareness which was akin to a state of insanity or automatism,
should be adopted. Given the minimal nature of the mental element required for crimes of general
intent, even those who are significantly drunk will usually be able to form the requisite mens rea
and will be found to have acted voluntarily. Extreme intoxication akin to automatism or insanity
should, like insanity, be established by the accused on a balance of probabilities. It will only be on
rare occasions that evidence of such an extreme state of intoxication can be advanced. While such
a burden constitutes a violation of the accused's rights under s. 11(d) of the Charter, it can be
justified under s. 1. It is only the accused who can give evidence as to the amount of alcohol
consumed and its effect upon him. Expert evidence would be required to confirm that the accused
was probably in a state akin to automatism or insanity as a result of his drinking.

Should it be thought that the mental element involved relates to the actus reus rather than the
mens rea, the result must be the same. The actus reus requires that the prohibited criminal act be
performed voluntarily as a willed act. A person in a state of automatism cannot perform a
voluntary willed act, and someone in an extreme state of intoxication akin to automatism must
also be deprived of that ability. It would equally infringe s. 7 of the Charter if an accused who was
not acting voluntarily could be convicted of a criminal offence. Here again the voluntary act of
becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault. To
convict in the face of such a fundamental denial of natural justice could not be justified under s. 1
of the Charter.

Per Lamer C.J.: Cory J.'s position on the law was agreed with, and the carving out of an exception
to the rule laid down in Leary was supported.

Per La Forest J.: Dickson C.J.'s view in Bernard and Quin which strongly challenged the rule in
Leary having been rejected by a majority of the Court, Wilson J.'s approach in that case as
developed in Cory J.'s reasons was preferred.

Per Sopinka, Gonthier and Major JJ. (dissenting): This Court's decision in Leary still stands for the
proposition that evidence of intoxication can provide a defence for offences of specific intent but
not for offences of general intent. Since sexual assault is a crime of general intent, intoxication is
no defence. This rule is supported by sound policy considerations. One of the main purposes of the
criminal law is to protect the public. Society is entitled to punish those who of their own free will
render themselves so intoxicated as to pose a threat to other members of the community. The fact
that an accused has voluntarily consumed intoxicating amounts of drugs or alcohol cannot excuse
the commission of a criminal offence unless it gives rise to a mental disorder within the terms of s.
16 of the Criminal Code.

Since the Leary rule does not relieve the Crown of the responsibility of proving the existence of a
mens rea or any of the other elements of the offence of sexual assault which are required by the
principles of fundamental justice, it does not violate s. 7 or s. 11(d) of the Charter. While this is
one of the rare cases in which the accused was sufficiently intoxicated to raise a reasonable doubt
as to whether he intended to commit the offence of sexual assault, none of the relevant principles
of fundamental justice require that the intent to perform the actus reus of an offence of general
intent be an element of the offence. The requirements of the principles of fundamental justice are
satisfied by proof that the accused became voluntarily intoxicated. The general rule that the
mental fault element of a crime must extend to the actus reus, including consequences forming
part thereof, is subject to exceptions. The principles of fundamental justice can exceptionally be
satisfied provided the definition of the offence requires that a blameworthy mental element be
proved and that the level of blameworthiness not be disproportionate to the seriousness of the
offence. These requirements are satisfied in this case. Individuals who render themselves
incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs
possess a sufficiently blameworthy state of mind that their imprisonment does not offend the
principle of fundamental justice which prohibits imprisonment of the innocent. Those found guilty
of committing sexual assault are rightfully submitted to a significant degree of moral opprobrium,
and that opprobrium is not misplaced in the case of the intoxicated offender. While as a general
rule an act must be the voluntary act of an accused in order for the actus reus to exist, the rules of
fundamental justice are satisfied by a showing that the drunken state was attained through the
accused's own blameworthy conduct. Finally, although distinguishing between offences of specific
and general intent may lead to some illogical results, the underlying policy of the Leary rule is
sound. Rather than jettisoning the rule, the Court should clarify the distinction by clearly
identifying and defining the mental element of offences. It can then be determined whether
applying the criteria for the identification of offences of specific and general intent in a particular
case serves the public interest in punishing the offender notwithstanding the absence of the mens
rea associated with the offence.

R. v. Brown, [2022] S.C.J. No. 18

Appeal by Brown from a decision of the Alberta Court of Appeal that set aside his acquittals for
break and enter and aggravated assault. Brown consumed alcohol and magic mushrooms, which
contained psilocybin, at a house party. In a psychotic state, Brown left the party, broke into a
nearby home and attacked the occupant, causing permanent injuries. He also broke into a second
home. Expert evidence adduced at trial opined Brown had no voluntary control over his conduct at
the time. While capable of physical movement, Brown was in a delusional state and had no willed
control over his actions. In response to Brown's constitutional challenge, the voir dire judge
concluded s. 33.1 of the Criminal Code violated the Charter and declared the section was of no
force and effect. The trial judge found the defence of extreme intoxication akin to automatism was
an answer to the charges against Brown and entered acquittals. The Court of Appeal reversed the
declaration that s. 33.1 was of no force and effect, set aside the acquittals and entered
convictions.

HELD: Appeal allowed.

Section 33.1 of the Criminal Code was unconstitutional and of no force of effect pursuant to s.
52(1) of the Constitution Act. Section 33.1 breached s. 7 of the Charter by allowing a conviction
without proof of mens rea or proof of voluntariness. It further breached the right to be presumed
innocent until proven guilty guaranteed by s. 11(d) of the Charter. It improperly substituted proof
of self-induced intoxication for proof of the essential elements of an offence. Section 33.1 did not
minimally impair an accused's rights, was not proportional and could not be saved under s. 1. The
legitimate goals of protecting the victims of crimes and holding extremely self-intoxicated
individuals accountable did not justify the Charter infringements. The common law rule that
intoxication short of automatism was not a defence to violent crimes of general intent was not
affected by the declaration. On a constitutional standard, Brown did not commit the guilty act of
aggravated assault voluntarily and he was incapable of forming even the minimally-required
degree of mens rea required for conviction of that offence. The acquittals were restored.
R. v. Cinous, [2002] 2 SCR 3
The accused was charged with the first degree murder of a criminal accomplice, M. He testified
that he had been involved in the theft and resale of computers along with M and another
accomplice, Y. The accused said that about a month before the killing, convinced that M had stolen
his gun, he decided that he would have no more contact with either Y or M and told them that
there would be no more thefts. The accused also testified that he began to hear rumours that Y
and M wanted to kill him, [page4] and that he was warned by a friend to watch out for them. One
morning Y and M called the accused and asked him to participate in a computer theft and the
accused agreed to meet with them that evening at his apartment. The accused testified that when
Y and M arrived, they kept their jackets on and whispered to one another as they sat in the living
room and he saw Y constantly placing his hand inside his coat, which made the accused suspicious
that the two were armed. The accused said he decided to participate in the theft to see if they
really intended to kill him. They left the apartment and got into the accused's van. The accused
said that he knew M and Y wanted to kill him when he saw the gloves that they were wearing. Y
had on different gloves than the ones he had arrived with at the apartment and M got into the van
wearing surgical latex gloves. The accused said he associated this type of gloves with situations
where bloodshed was expected. The accused testified that in the van Y avoided making eye
contact with him and kept touching his jacket as if he had a gun. He said he interpreted Y's hand
inside his jacket as a threat. The accused said he was sure that he was going to be killed and that
the shot would more than likely come from behind -- from M. However, since he was driving, he
could not get to his own gun quickly enough, were anything to happen. He pulled into a populated
and well-lit gas station, where he bought a bottle of windshield washer fluid. After returning to the
van, he opened the back door, "saw the opportunity", pulled out his gun and shot M in the back of
the head. The accused testified that this was an instinctive reaction to a situation of danger. He
said that it did not occur to him to run away or to call the police. At trial, the judge allowed the
defence of self-defence to be put to the jury. The accused was nonetheless found guilty of second
degree murder. The Court of Appeal held that the defence was not properly explained to the jury.
It overturned the conviction and ordered a new trial.

Held (Iacobucci, Major and Arbour JJ. dissenting): The  

appeal should be allowed and the accused's conviction    

restored.    

Per McLachlin C.J. and L'Heureux-Dubé, Bastarache, and LeBel JJ.: 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. This is so even if the defence is the only [page5] defence open to the accused.
The air of reality test imposes a burden on the accused that is merely evidential, rather than
persuasive. In applying the air of reality test, a trial judge considers the totality of the evidence,
and assumes the evidence relied upon by the accused to be true. The threshold determination by
the trial judge is not aimed at deciding the substantive merits of the defence. That question is
reserved for the jury. The trial judge does not make determinations about the credibility of
witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor
is the air of reality test intended to assess whether the defence is likely to succeed at the end of
the day. The question for the trial judge is whether the evidence discloses a real issue to be
decided by the jury, and not how the jury should ultimately decide the issue.

The pre- and post-Pappajohn authorities support a two-pronged question for determining whether
there is an evidential foundation warranting that a defence be put to a jury. The question is
whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could
acquit if it believed the evidence to be true. The terms "no evidence", "some evidence" or "any
evidence" can be used to describe the applicable evidential standard, provided these terms are
understood as elliptical references to the full question. The second part of this question can be
rendered by asking whether the evidence put forth is reasonably capable of supporting the
inferences required to acquit the accused. This is the current state of the law, uniformly applicable
to all defences.

The air of reality test must be applied to each of the three elements of self-defence under s. 34(2)
of the Criminal Code, which have both a subjective and an objective component. With regard to
the first element it would be possible for the jury reasonably to conclude that the accused believed
that he was going to be attacked, and that this belief was reasonable in the circumstances. There
is an air of reality to the subjective component of the defence as there is direct evidence on the
accused's beliefs, in the form of the accused's testimony. A jury acting reasonably could draw an
inference from the circumstances described by the accused, including particularly the many
threatening indicators to which he [page6] testified, to the reasonableness of his perception that
he was going to be attacked. With respect to the second element of self-defence, reasonable
apprehension of death or grievous bodily harm, for the same reason there is also an air of reality
to the accused's perception that the attack would be deadly. The accused's testimony is
unambiguously to the effect that he feared a deadly attack. A jury acting reasonably could draw an
inference from the circumstances described by the accused, including particularly the indications
that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and
the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger.
With respect to the third element of self-defence, namely a reasonable belief in the absence of
alternatives to killing, it must be established both that the accused believed that he could not
preserve himself except by shooting the victim, and that he held this belief on reasonable grounds.
There is an air of reality to the accused's claim that, at the time he shot the victim, he actually
believed that he had no alternative. The accused's extensive direct testimony regarding his
subjective perceptions at the relevant time amounts to more than a "mere assertion" of the
element of the defence. However, the belief that the accused had no other option but to kill must
have been objectively reasonable. Section 34(2) requires that the accused have believed on
reasonable grounds that there was no alternative course of action open to him at that time, so
that he reasonably thought he was obliged to kill in order to preserve himself from death or
grievous bodily harm. In this case, there is absolutely no evidence from which a jury could
reasonably infer the reasonableness of a belief in the absence of alternatives.

As the three conditions of self-defence were not all met on the facts of this case, the defence
lacked the "air of reality" required and should never have been put to the jury. Any errors in the
charge to the jury relating to it are therefore irrelevant. The curative proviso of s. 686(1)(b)(iii)
should be applied and the conviction upheld.

Per Gonthier and Binnie JJ.: The reasons of the majority were agreed with. In this case, the only
way the defence could succeed is if the jury climbed into the skin of the accused and accepted as
reasonable a sociopathic view of appropriate dispute resolution. There is otherwise no air of
reality, however broadly or narrowly defined, [page7] to the assertion that the accused believed
on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily
harm, as required by s. 34(2)(b) of the Criminal Code. The objective reality of his situation would
necessarily be altogether ignored, contrary to the intention of Parliament as interpreted in our
jurisprudence. A criminal code that permitted preemptive killings within a criminal organization on
the bare assertion by the killer that no course of action was reasonably available to him while
standing outside a motor vehicle other than to put a shot in the back of the head of another
member sitting inside the parked vehicle at a well-lit and populated gas station is a criminal code
that would fail in its most basic purpose of promoting public order.

Per Iacobucci, Major and Arbour JJ. (dissenting): The test upon which a trial judge must decide
whether a defence has an "air of reality" so as to be left to the jury only involves a determination
of whether there is "some evidence" in support of the defence, and should not otherwise involve a
measure of the sufficiency of that evidence. In other words, when examining whether there is
evidence upon which a reasonable jury, properly instructed and acting judicially, could convict, it is
the "no evidence" test, rather than the "sufficient evidence" test, which must be applied. The test
should be substantially the same as the one applied to cases of directed verdicts of acquittal or
motions for non-suit, as well as committal for trial under s. 548(1) of the Criminal Code. The test
for committal for trial, directed verdicts of acquittal and the withdrawing of a defence from the jury
strives to respect the long-standing divisions of tasks between judges and jury, and favours great
deference to the wisdom of the jury. Discharges at the preliminary inquiry and directed verdicts of
acquittal also promote judicial economy and may serve as an early barrier to the danger of a
wrongful conviction. Not so where a defence is withdrawn from the jury.
The "air of reality" test was never meant to lead to directed verdicts of conviction, but was mostly
designed to avoid confusing the jury, particularly in cases of inconsistent alternative defences.
Where only one defence is raised and guilt is otherwise admitted, if any real meaning is to be
given to the right to a trial by jury, the application of the test should be strictly limited to
situations where a technical evidentiary requirement necessary to fulfill the accused's evidential
burden for a specific defence is lacking, or when there is a complete absence of evidence on
[page8] one or more of the essential ingredients of the defence. Only in those cases can it be said
that the defence is not available in law, and only in this manner can the proper role of the jury be
respected. It is important to distinguish cases where there is a complete lack of evidence from
those cases where there is some evidence, but the court does not consider it strong enough to
raise a reasonable doubt. Especially where appellate review is involved, the "air of reality"
analysis, when applied to the sole defence raised and available to the accused, should focus only
on the presence or absence of evidence, as opposed to its quality, sufficiency, or weight.

The only principled and practical justification for withdrawing a defence is to avoid confusing the
jury. When the requisite legal elements of a single defence are properly explained to the jury,
there is little risk of confusion on the part of the jury solely because the evidence in support of the
defence is weak and unpersuasive. The cost of risking a wrongful conviction and possibly violating
the accused's constitutionally protected rights by inadvisably withdrawing a defence from the jury
is a high one. Since this Court has consistently been of the view that the possible advantages that
would be gained by adopting a higher threshold for the test respecting directed verdicts of
acquittal are not sufficient to justify a change in the test, then there is no possible justification for
the adoption of a higher threshold in the "air of reality" context, where such an adoption would
involve fewer advantages and more risks.

While reasonableness constitutes a legal requirement of self-defence under s. 34(2) of the Criminal
Code, the law is clear that it is for the jury to decide whether an accused's perceptions were
reasonable. The fact that reasonableness involves an objective, rather than a purely subjective,
assessment does not authorize judges to substitute their own appreciation of that critical factual
element for that of the jury. For there to be some evidence of reasonableness, there must merely
be some evidence of the circumstances surrounding the conduct at issue, so that its
reasonableness can be assessed in context. Since reasonableness is a question for the jury, an
accused is entitled to have a properly instructed jury assess his reasonableness when the defence
of self-defence is put forward. In this case the factual record is complete and the accused
explained, and was cross-examined about, the events, his thoughts, his feelings, assumptions
[page9] and rationale for acting as he did. Given the evidence, whether or not he acted
reasonably, subjectively and objectively, is a matter of judgment, and that judgment is the raison
d'être of the jury system. Where a reasonableness requirement is involved in a defence, the "air of
reality" test must focus on assessing whether there is any evidence of an explanation for the
accused's perceptions and conduct. The court should not embark upon an assessment of the
reasonableness, or potential reasonableness, of this explanation for that is precisely the task that
the law reserves for the jury.

For the purpose of assessing whether the accused's defence had "an air of reality" in this case, it
must be determined whether there is any evidence relevant to the three elements of self-defence.
The accused introduced evidence that he believed he was being assaulted and he also provided an
explanation for this belief. His testimony detailed the circumstances which gave rise to his state of
mind on the night of the offence, as well as the broader context which he said led him to believe
that M and Y were assaulting him, including the rumours that he had previously heard and his
belief that M had stolen his gun. The accused's belief that the behaviour of Y and of M was
increasingly unusual as the evening progressed was also evidence of an explanation for the
accused's ultimate perception that he was in fact being threatened or that an attempt to kill him
was in progress. Whether on these facts, the accused's perception was reasonable is for the jury.
Secondly, the factors which led the accused to believe that he was being assaulted also caused
him, according to his evidence, to apprehend death. There were numerous factors and their
relevance to the accused was clearly explained in his testimony. They amount to some evidence
upon which the jury may make its own assessment of reasonableness, since the jurors were
provided with the full background and explanation for the accused's perceptions. Lastly, the
accused testified that he believed that shooting M was the only way to preserve his life on the
night in question. His testimony was clearly to the effect that he believed himself to be in a
situation of "kill or be killed", so that shooting M was, in his mind, the only way to get out of the
situation. The accused explained why he believed that he could not simply walk away from the
situation. Whether or not that explanation is compelling, and whether or not the accused's belief
was reasonable, will once again be a matter for the jury.

R. v. Lavallee, [1990] 1 S.C.R. 852

Appellant, a battered woman in a volatile common law relationship, killed her partner late one
night by shooting him in the back of the head as he left her room. 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 kill him or he would get her. She had frequently been a
victim of his physical abuse and had concocted excuses to explain her injuries to medical staff on
those occasions. A psychiatrist with extensive professional experience in the treatment of battered
wives prepared a psychiatric assessment of the appellant which was used in support of her defence
of self-defence. He explained her ongoing terror, her inability to escape the relationship despite
the violence and the continuing pattern of abuse which put her life in danger. He testified that in
his opinion the appellant's shooting of the deceased the [page853] final desperate act of a woman
who sincerely believed that she would be killed that night. In the course of his testimony, he
related many things told to him by the appellant for which there was no admissible evidence. She
did not testify at the trial. The jury acquitted the appellant but its verdict was overturned by a
majority of the Manitoba Court of Appeal.

The issues before this Court were whether the evidence of the psychiatrist should have been
before the court at all and whether, if it should, the trial judge's instructions with respect to it were
adequate.

  Held: The appeal should be allowed.  

Per Dickson C.J. and Lamer, Wilson, L'Heureux-Dubé, Gonthier and McLachlin JJ.: Expert
testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert
has relevant knowledge or experience beyond that of the lay person. It is difficult for the lay
person to comprehend the battered wife syndrome. It is commonly thought that battered women
are not really beaten as badly as they claim, otherwise they would have left the relationship.
Alternatively, some believe that women enjoy being beaten, that they have a masochistic strain in
them. Each of these stereotypes may adversely affect consideration of a battered woman's claim
to have acted in self-defence in killing her partner. Expert evidence can assist the jury in dispelling
these myths.

Expert testimony relating to the ability of an accused to perceive danger from her partner may go
to the issue of whether she "reasonably apprehended" death or grievous bodily harm on a
particular occasion. Expert testimony pertaining to why an accused remained in the battering
relationship may be relevant in assessing the nature and extent of the alleged abuse. By providing
an explanation as to why an accused did not flee when she perceived her life to be in danger,
expert testimony may also assist the jury in assessing the reasonableness of her belief that killing
her batterer was the only way to save her own life.

Expert evidence does not and cannot usurp the jury's function of deciding whether, in fact, the
accused's perceptions and actions were reasonable. But fairness [page854] and the integrity of the
trial process demand that the jury have the opportunity to hear that opinion.

Here, there was ample evidence on which the trial judge could conclude, apart from the
psychiatrist's evidence, that the appellant was battered repeatedly and brutally by the deceased
over the course of their relationship. The expert testimony was properly admitted in order to assist
the jury in determining whether the appellant had a reasonable apprehension of death or grievous
bodily harm and believed on reasonable grounds that she had no alternative but to shoot. Each of
the specific facts underlying the expert's opinion need not be proven in evidence before any weight
could be given to it. As long as there is some admissible evidence to establish the foundation for
the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the
testimony. The judge must, of course, warn the jury that the more the expert relies on facts not
proved in evidence the less weight the jury may attribute to the opinion.
Per Sopinka J.: The very special facts in R. v. Abbey, and the decision required on those facts,
have contributed to the development of a principle concerning the admissibility and weight of
expert opinion evidence that is self-contradictory: an expert opinion relevant in the abstract to a
material issue in a trial but based entirely on unproven hearsay is admissible but entitled to no
weight whatsoever. Such an opinion, however, is irrelevant and therefore inadmissible. A practical
distinction exists between evidence that an expert obtains and acts upon within the scope of his or
her expertise, as in consultation with colleagues, and evidence that an expert obtains from a party
to litigation touching a matter directly in issue. Where the information upon which an expert forms
his or her opinion comes from a party to the litigation, or from any other source that is inherently
suspect, a court ought to require independent proof of that information. The lack of such proof will
have a direct effect on the weight to be given to the opinion. Where an expert's opinion is based in
part upon suspect information and in part upon either admitted facts or facts sought to be proved,
the matter is purely one of weight. That was the situation here, and in the circumstances, the trial
judge properly admitted the expert evidence and adequately charged the jury.

R. v. Cormier, 2017 NBCA 10 – NOT FOUND

R. v. Khill 2021 SCC 37

Appeal by Khill from a decision of the Court of Appeal of Ontario that overturned his acquittal, by a
jury, on a charge of second-degree murder. Khill, who had some military training, was awoken by
his partner who reported sounds outside their home. Khill looked out the window and saw the
dashboard lights of his truck were on. He loaded a shotgun and approached the truck. He observed
the victim bent over into the truck. He shouted "hands up". As the victim turned, Khill fired twice,
shooting the victim in the chest and shoulder. Khill searched the victim for weapons and found a
folding knife in the victim's pants. Khill told the 911 dispatcher and police that he had shot the
victim in self-defence, as he thought the victim had a gun and was going to shoot him. At trial, the
jury was not instructed on Khill's role in the incident. The Court of Appeal unanimously overturned
Khill's acquittal by a jury and ordered a new trial on the basis that the trial judge's omission of
Khill's "role in the incident" as a discrete factor for the jury to consider in deciding the issue of self-
defence was a material error.

HELD: Appeal dismissed.

The phrase "the person's role in the incident" in s. 34(2)(c) of the Criminal Code referred to the
accused's conduct, such as actions, omissions and exercises of judgment, during the course of the
incident, from beginning to end, that was relevant to whether the ultimate act was reasonable in
the circumstances. The expression included, but was not limited to, conduct that could be
classified as wrongful, unlawful, provocative, morally blameworthy, or labelled excessive. The
conduct in question had to be both temporally and behaviourally relevant to the incident. Khill's
role in the incident leading up to the shooting was potentially a significant factor in the assessment
of the reasonableness of the shooting. The failure to instruct the jury to consider the effect of
Khill's role in the incident on the reasonableness of his response was an error of law that had a
material bearing on the jury's verdict. The charge failed to communicate that the jury had to
consider all of Khill's actions, omissions and exercises of judgment throughout the entirety of the
incident and might have left the misleading impression that the reasonableness inquiry focused on
the mere instant between the time Khill perceived an uplifted gun and the time he shot the victim.
A new trial was necessary to ensure the jury was appropriately instructed with respect to the
principles of self-defence and the significance of Khill's role in the incident. Concurring and
dissenting reasons were provided.
 R. v. Perka, [1984] 2 S.C.R. 232
Following the seizure of their cannabis cargo by the police in Canadian waters, appellants were
charged with importing cannabis into Canada and with possession for the purpose of trafficking. At
trial, the accused advanced the defence of necessity claiming that they did not plan to import into
Canada as their destination was Alaska but that, following a series of mechanical problems
aggravated by deteriorating weather, they had decided for the safety of ship and crew to seek
refuge on the Canadian shoreline to repair the vessel. The vessel found a sheltered cove but
grounded amidships on a rock. The defence tendered evidence that the captain, fearing he was
going to capsize, ordered the men to off-load the cargo. When the police arrived on the scene
most of the marihuana was onshore. The accused also relied upon a "botanical defence" arguing
that the Crown had failed to prove that the ship's cargo was "Cannabis sativa L." as provided for in
the schedule to the Narcotic Control Act. The trial judge, however, withdrew the botanical defence
from the jury. The appellants were acquitted. The Court of Appeal set aside the acquittal and
ordered a new trial holding that the trial judge erred in refusing to grant the Crown's application to
call rebuttal evidence with respect to the condition of the vessel. The Court also held that the trial
judge was correct in withdrawing the botanical defence from the jury.

  Held: The appeals should be dismissed.  

Per Ritchie, Dickson, Chouinard and Lamer JJ.: The defence of necessity is available in Canada and
should be recognized as an excuse operating by virtue of s. 7(3) of the Criminal Code. The
essential criteria for the operation of the defence is the moral involuntariness of the wrongful
action measured on the basis of society's expectation of appropriate and normal resistance to
pressure. The defence only applies in circumstances of imminent risk where the action was taken
to avoid a direct and immediate peril. The act in question may only be characterized as involuntary
where it was inevitable, unavoidable, and where no reasonable opportunity for an alternative
course of action that did not involve a breach of the law was available to the accused. As well the
harm inflicted by the violation of the law must be less than the harm the accused sought to avoid.
Where it was contemplated or ought to have been contemplated by the accused that his actions
would likely give rise to an emergency requiring the breach of the law it may not be open to him to
claim his response was involuntary; mere negligence or involvement in criminal or immoral activity
when the emergency arose, however, will not disentitle an accused from relying upon the defence.
Finally, where sufficient evidence is placed before the Court to raise the issue of necessity the onus
falls upon the Crown to meet the defence and prove beyond a reasonable doubt that the accused's
act was voluntary; the accused bears no burden of proof. In this case, the trial judge was correct
in instructing the jury upon necessity, however, he erred in his directions to them. Although he
adequately charged the jury upon the majority of issues pertinent to the proper test for necessity
he did not direct their attention to the issue of the availability of a reasonable legal alternative.
This error goes to the heart of the defence and justifies a new trial.

The trial judge was correct in withdrawing the appellants' botanical defence from the jury as the
phrase "Cannabis sativa L." in the Narcotic Control Act was meant to embrace all forms of
marihuana. In keeping with the doctrine of contemporanea expositio the meaning to be given to
this phrase is the meaning the botanical community ascribed to it when the Act became law in
1961. At that time, botanists were virtually unanimous in holding that cannabis (marihuana)
consisted only of one species and that the plants which some botanists referred to as "Cannabis
indica Lam." and "Cannabis ruderalis Jan." were merely subspecies of "Cannabis sativa L.". Where
the legislature has deliberately chosen a specific scientific or technical term to represent an equally
specific and particular class of things, it would do violence to Parliament's intent to give a new
meaning to that term whenever the taxonomic consensus among members of the relevant
scientific fraternity has shifted.

Since a new trial must be ordered there is no need to decide whether the trial judge erred in
refusing to allow the Crown to tender rebuttal evidence.

Per Wilson J.: The defence of necessity must be grounded either on excuse or on justification. The
only way in which the defence of necessity can be applied as an excuse is where the accused's act
is done in the interest of self-preservation. Such an act must be characterized not by the
voluntariness of the act but by its unpunishable nature. As such, the act may be exempted from
culpability if it arose in a life-threatening situation of necessity. Where, however, a defence by way
of excuse is premised on compassion for the accused or on a perceived failure to achieve a desired
instrumental end of punishment, the judicial response must be to fashion an appropriate sentence
but to reject the defence as such.

Where necessity is invoked as a justification, the accused must show that he operated under a
conflicting legal duty which made his seemingly wrongful act right. Such justification must be
premised on a right or duty recognized by law. This excludes conduct attempted to be justified on
the ground of an ethical duty internal to the conscience of the accused as well as conduct sought
to be justified on the basis of a perceived maximization of social utility resulting from it. Rather,
the conduct must stem from the accused's duty to satisfy his legal obligations and to respect the
principle of the universality of rights. The justification therefore does not depend on the immediacy
or "normative involuntariness" of the accused's act. Finally, the justification is not established
simply by showing a conflict of legal duties. Since the defence rests on the rightfulness of the
accused's choice of one over the other, the rule of proportionality is central to the evaluation of the
justification.

R. v. Latimer, [2001] 1 S.C.R. 3

The accused was charged with first degree murder following the death of T, his 12-year-old
daughter who had a severe form of cerebral palsy. T was quadriplegic and her physical condition
rendered her immobile. She was said to have the mental capacity of a four-month-old baby, and
could communicate only by means of facial expressions, laughter and crying. T was completely
dependent on others for her care. She suffered five to six seizures daily, and it was thought that
she experienced a great deal of pain. She had to be spoon-fed, and her lack of nutrients caused
weight loss. There was evidence that T could have been fed with a feeding tube into her stomach,
an option that would have improved her nutrition and health, and that might also have allowed for
more effective pain medication to be administered, but the accused and his wife rejected this
option. After learning that the doctors wished to perform additional surgery, which he perceived as
mutilation, the accused decided to take his daughter's life. He carried T to his pickup truck, seated
her in the cab, and inserted a hose from the truck's exhaust pipe into the cab. T died from the
carbon monoxide. The accused at first maintained that T had simply passed away in her sleep, but
later confessed to having taken her life. The accused was found guilty of second degree murder
and sentenced to life imprisonment without parole eligibility [page5] for 10 years; the Court of
Appeal upheld the accused's conviction and sentence, but this Court ordered a new trial.

During the second trial defence counsel asked the trial judge for a ruling, in advance of his closing
submissions, on whether the jury could consider the defence of necessity. The trial judge told
counsel that he would rule on necessity after the closing submissions, and later ruled that the
defence was not available. In the course of its deliberations, the jury sent the trial judge a note
inquiring, in part, whether it could offer any input into sentencing. The trial judge told the jury it
was not to concern itself with the penalty. He added: "it may be that later on, once you have
reached a verdict, you -- we will have some discussions about that". After the jury returned with a
guilty verdict, the trial judge explained the mandatory minimum sentence of life imprisonment,
and asked the jury whether it had any recommendation as to whether the ineligibility for parole
should exceed the minimum period of 10 years. Some jury members appeared upset, according to
the trial judge, and later sent a note asking him if they could recommend less than the 10-year
minimum. The trial judge explained that the Criminal Code provided only for a recommendation
over the 10-year minimum, but suggested that the jury could make any recommendation it liked.
The jury recommended one year before parole eligibility. The trial judge then granted a
constitutional exemption from the mandatory minimum sentence, sentencing the accused to one
year of imprisonment and one year on probation. The Court of Appeal affirmed the conviction but
reversed the sentence, imposing the mandatory minimum sentence of life imprisonment without
parole eligibility for 10 years.

Held: The appeals against conviction and sentence should be dismissed.

The defence of necessity is narrow and of limited application in criminal law. The accused must
establish the existence of the three elements of the defence. First, there is the requirement of
imminent peril or danger. [page6] Second, the accused must have had no reasonable legal
alternative to the course of action he or she undertook. Third, there must be proportionality
between the harm inflicted and the harm avoided. Here, the trial judge was correct to remove the
defence from the jury since there was no air of reality to any of the three requirements for
necessity. The accused did not himself face any peril, and T's ongoing pain did not constitute an
emergency in this case. T's proposed surgery did not pose an imminent threat to her life, nor did
her medical condition. It was not reasonable for the accused to form the belief that further surgery
amounted to imminent peril, particularly when better pain management was available. Moreover,
the accused had at least one reasonable legal alternative to killing his daughter: he could have
struggled on, with what was unquestionably a difficult situation, by helping T to live and by
minimizing her pain as much as possible or by permitting an institution to do so. Leaving open the
question of whether the proportionality requirement could be met in a homicide situation, the
harm inflicted in this case was immeasurably more serious than the pain resulting from T's
operation which the accused sought to avoid. Killing a person -- in order to relieve the suffering
produced by a medically manageable physical or mental condition -- is not a proportionate
response to the harm represented by the non-life-threatening suffering resulting from that
condition.

It is customary and in most instances preferable for the trial judge to rule on the availability of a
defence prior to closing addresses to the jury. While the timing of the removal of the defence of
necessity from the jury's consideration was later in the trial than usual, it did not render the
accused's trial unfair or violate his constitutional rights. The trial judge's decision did not ambush
the accused nor should it have caught him unaware.

The trial judge did not prejudice the accused's rights in replying to the question from the jury on
whether it could offer input on sentencing. The trial did not become unfair simply because the trial
judge undermined the jury's de facto power to nullify. In most if not all cases, jury nullification will
not be a valid factor in analyzing trial fairness for the accused. Guarding against jury nullification is
a desirable and legitimate exercise for a trial judge; in fact a judge is required to [page7] take
steps to ensure that the jury will apply the law properly.

The mandatory minimum sentence for second degree murder in this case does not amount to cruel
and unusual punishment within the meaning of s. 12 of the Canadian Charter of Rights and
Freedoms. Since in substance the accused concedes the general constitutionality of ss. 235 and
745(c) of the Criminal Code as these sections are applied in combination, this appeal is restricted
to a consideration of the particularized inquiry and only the individual remedy sought by the
accused -- a constitutional exemption -- is at issue. In applying s. 12, the gravity of the offence,
as well as the particular circumstances of the offender and the offence, must be considered. Here,
the minimum mandatory sentence is not grossly disproportionate. Murder is the most serious
crime known to law. Even if the gravity of second degree murder is reduced in comparison to first
degree murder, it is an offence accompanied by an extremely high degree of criminal culpability.
In this case the gravest possible consequences resulted from an act of the most serious and
morally blameworthy intentionality. In considering the characteristics of the offender and the
particular circumstances of the offence, any aggravating circumstances must be weighed against
any mitigating circumstances. On the one hand, due consideration must be given to the accused's
initial attempts to conceal his actions, his lack of remorse, his position of trust, the significant
degree of planning and premeditation, and T's extreme vulnerability. On the other hand, the
accused's good character and standing in the community, his tortured anxiety about T's well-
being, and his laudable perseverance as a caring and involved parent must be taken into account.
Considered together the personal characteristics and particular circumstances of this case do not
displace the serious gravity of this offence. Finally, this sentence is consistent with a number of
valid penological goals and sentencing principles. Although in this case the sentencing principles of
rehabilitation, specific deterrence and protection are not triggered for consideration, the
mandatory minimum sentence plays an important role in denouncing murder. Since there is no
violation of the accused's s. 12 right, there is no basis for granting a constitutional exemption.

[page8]

Apart from the foregoing, s. 749 of the Criminal Code provides for the royal prerogative of mercy,
which is a matter for the executive to consider, not the courts.
 R. v. Ryan, 2013 SCC 3
Appeal by the Crown from the Nova Scotia Court of Appeal's decision to uphold the acquittal of
Ryan. Ryan was the victim of a violent, abusive and controlling husband. She believed that he
would cause her and their daughter serious bodily harm or death, as he had threatened to do
many times. She hired an undercover RCMP officer who posed as a hit man. She was arrested and
charged with counselling the commission of an offence not committed contrary to s. 464(a) of the
Criminal Code. The trial judge was satisfied beyond a reasonable doubt that the requisite elements
of the offence had been established. The only issue at trial was whether Ryan's otherwise criminal
acts were excused because of duress. The trial judge found that her sole reason for her actions
was her fear of her husband. He also was satisfied that Ryan had led evidence to the requisite
standard that she reasonably believed that her husband would cause her and her daughter serious
bodily injury and that there was no safe avenue of escape other than having him killed. The trial
judge found that the common law defence of duress applied, and acquitted her. The Court of
Appeal rejected the Crown's submission that duress applies only when an accused is forced by
threats to commit an offence against a third party and upheld the acquittal.

HELD: Appeal allowed.

The defence of duress is available when a person commits an offence while under compulsion of a
threat made for the purpose of compelling him or her to commit it. That was not Ryan's situation.
She wanted her husband dead because he was threatening to kill her and her daughter, not
because she was being threatened for the purpose of compelling her to have him killed. That being
the case, the defence of duress was not available to her, no matter how compelling her situation
was viewed in a broader perspective. The Court of Appeal erred in law when it found that there
was no principled basis upon which Ryan should be excluded from relying on the defence of
duress. While duress and self-defence are both concerned with providing a defence to what would
otherwise be criminal conduct because the accused acted in response to an external threat, there
are differences that provide a basis for a meaningful juridical difference between duress and self-
defence. Duress cannot be extended so as to apply when the accused meets force with force, or
the threat of force with force in situations where self-defence is unavailable. Duress is, and must
remain, an applicable defence only in situations where the accused has been compelled to commit
a specific offence under threats of death or bodily harm. The Court of Appeal erred in law in finding
that duress was a legally available defence on these facts. While the appeal should be allowed, the
interests of justice required that a stay of proceedings be entered. The uncertainty surrounding the
law of duress coupled with the Crown's change of position between trial and appeal created
unfairness to Ryan's defence. As a result, a stay of proceedings was entered. The court also
clarified the law of duress by indicating that the defence of duress, in its statutory and common
law forms, share certain common elements. First, there must be an explicit or implicit threat of
present or future death or bodily harm. This threat can be directed at the accused or a third party.
Second, the accused must reasonably believe that the threat will be carried out. Third, there must
be no safe avenue of escape. This element is evaluated on a modified objective standard. Fourth,
there must be a close temporal connection between the threat and the harm threatened. The fifth
element involves the proportionality between the harm threatened and the harm inflicted by the
accused. The harm caused by the accused must be equal to or no greater than the harm
threatened. This is also evaluated on a modified objective standard. Finally, the accused cannot be
a party to a conspiracy or association whereby the accused is subject to compulsion and actually
knew that threats and coercion to commit an offence were a possible result of this criminal
activity, conspiracy or association.

R. v. Aravena, 2015 ONCA 250

Appeals by the accused, Aravena, Gardiner, Kellestine, Mather and Mushey, from convictions for
first degree murder and/or manslaughter. Eight members of a motorcycle gang were shot and
killed on a farm property owned by Kellestine. The Crown alleged that the killings resulted from
internal gang strife. The Crown alleged that Kellestine persuaded the eight victims to attend his
property to discuss revoking their chapter's membership, and with the knowledge amongst the
accused that violence might ensue. Gunfire erupted in a barn where one victim was shot and
killed, and others were injured. Each victim was disarmed and executed individually. Extensive
efforts were undertaken to clean the scene, destroy evidence, and transport the bodies and
vehicles to other locations. The appellants were all charged with eight counts of first degree
murder. Of the appellants, Mushey and Kellestine were convicted by a judge and jury of first
degree murder as the perpetrators. The other appellants were found to have aided and abetted in
the murders. Mather and Aravena were convicted of manslaughter in respect of the first homicide
and seven counts of first degree murder on the other homicides. Gardiner was convicted of
manslaughter in respect of the first two homicides, and first degree murder on the other six
counts. Each of the accused filed appeals from their respective convictions.

HELD: Appeals dismissed.

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. That error caused no substantial wrong or miscarriage of
justice to Gardiner, Mather or Aravena, as there was no air of reality on the evidence to support
that defence on any of the charges. Gardiner and Mather did not adduce evidence in support of the
defence. The criminal association exception rendered the defence unavailable to Aravena, as he
willingly put himself under Kellestine's authority. The trial judge did not err in finding an
evidentiary basis upon which Mather and Aravena could be convicted for aiding and abetting under
the constructive first degree murder provision based on their role in the subjugation and unlawful
confinement of the victims prior to their executions. The trial judge did not err in finding an
evidentiary basis upon which the jury could find that Gardiner had aided and abetted in six of the
killings based on his preparation of the firearms and his monitoring of a police scanner for any
activity. No error in the instructions to the jury regarding Aravena's post-offence conduct was
established, as his conduct was relevant to whether he was a party to a planned and deliberate
murder. The trial judge did not err in finding a witness protected from questioning by virtue of
confidential informant privilege in respect of the witness's dealings with Winnipeg police.

R. v. Willis, 2016 MBCA 113

Appeal by the accused from his conviction of first degree murder. The accused faced death threats
over a drug debt. The dealers threatening him also wanted the victim killed for an unrelated
reason. In order to avoid the threat to his life, the accused chose to murder the victim. Prior to
committing the murder, the accused consumed MDMA. At this trial, the accused sought to put
forward the defense of duress based on his claim that he was in a situation of kill or be killed. The
accused unsuccessfully brought a s. 7 Charter challenge to s. 17 of the Criminal Code, which
prohibited reliance on the defense of duress for a principal or co-principal charged with murder.
The trial then proceeded on the basis that the accused could not rely on the defense of duress and
the accused was convicted of first degree murder. The accused sought to appeal his conviction on
the grounds that the statutory prohibition against duress being a defense to murder by a principal
or co-principal violated s. 7 of the Charter. The accused also argued that the trial judge erred in
his instructions to the jury on the effect of evidence of intoxication o proof of the state of mind
required to establish that an unlawful killing was a murder and that his answer to a jury question
was inadequate.

HELD: Appeal dismissed.

The purpose of s. 17 of the Criminal Code was to prevent anyone from deciding who should live or
die. The removal of the defense of duress in the case of murder did not deprive a person of any
realistic choice whether to break the law. In addition, certain death was not a proportionate
response to an uncertain threat from another. The act of murdering an innocent person could
never satisfy the proportionality requirement of moral involuntariness. The challenged law was not
overbroad. Its impact only affected those charged with murder as a principal or co-principal and
therefore it did not capture conduct that bore no relation to its purpose. Even if the trial judge
erred in failing to find s. 17 of the Code unconstitutional, the verdict would have been the same as
there was no air of reality to the accused's claim of duress. The accused had a safe avenue of
escape as he could have gone to the police or fled the jurisdiction. The trial judge's instructions to
the jury on the question of the accused's state of mind, in light of the evidence about possible
intoxication, were balanced and fair. The judge's answer to the jury's question regarding planning
and deliberation was appropriate and responsive and there was no reasonable possibility that the
jury misunderstood the distinction.

R. v. Lilly, [1983] 1 S.C.R. 794

Appellant, a licensed real estate broker, was convicted of theft of $26,759.58, being sums
deposited "in trust" with respect to real property transactions. The appellant relied, for 18 of the
21 transactions involved in the count on which he was found guilty, on the defence of colour of
right alleging he thought he could lawfully transfer the amounts from the "in trust" account to the
agency's general account once the offer to purchase the property had been accepted. As to the
other transactions involving a total of $13,500 he relied on an alleged lack of knowledge of the
transfers. The Court of Appeal dismissed appellant's appeal. This appeal is to determine whether
the trial judge misdirected the jury as to the meaning of the phrase "colour of right".

Held: The appeal should be allowed and a new trial ordered.

In his charge, the trial judge misdirected the jury. The fate of the appellant's defence of colour of
right was not dependent upon the jury determining when the commissions were payable. Rather,
the defence was dependent upon whether the jurors were satisfied beyond a reasonable doubt that
the appellant had not, at the time of the transfers, an honest belief that he had the right to that
money, and not, as they were told, dependent upon what they thought his rights were. Further,
the conviction cannot stand for it was impossible to know whether the conviction stood solely on
those transactions that did not raise the defence of colour of right.

APPEAL from a judgment of the Saskatchewan Court of Appeal dismissing the appellant's appeal
from his conviction on a charge of theft. Appeal allowed and new trial ordered.

R. v. Jones, [1991] 3 SCR 110

The appellants were charged with unlawfully conducting a bingo contrary to s. 206(1)(d) of the
Criminal Code. The charges arose out of gaming operations at the Shawanaga Reserve, which
were initiated under three Band Council resolutions signed by the appellants as Chief and
Councillor of the Shawanaga First Nation. Before conducting the lotteries, the appellants had been
advised by representatives of the province, including the Ontario Provincial Police, that the
Criminal Code prohibits lottery schemes, other than those conducted under the auspices of a
provincial licence. The appellants were convicted at trial and their convictions affirmed by the
Court of Appeal. In addition to the constitutional questions dealt with in R. v. Furtney, [1991] 3
S.C.R. 89, this appeal also raises the issue of whether the appellants were entitled to be acquitted
by reason of a defence of colour of right. That right was the belief that s. 206 did not apply to their
activities since they were carried out on a reserve which they thought was not subject to the laws
of Canada relating to gaming.

  Held: The appeal should be dismissed.  

For the reasons given in Furtney, the challenged provisions of s. 207 of the Criminal Code are not
ultra vires, nor do they offend s. 11(g) of the Canadian Charter of Rights and Freedoms.

The defence of colour of right does not apply to a charge under s. 206(1)(d) of the Code. First, no
authority was cited for the proposition that colour of right is relevant to any crime which does not
embrace the concept within its definition. Second, appellants' mistake was one of law, rather than
of fact. They mistakingly believed that the law did not apply because it was inoperative [page112]
on Indian reserves. A mistake about the law is no defence to a charge of breaching it.
 Levis (City) v. Tetrault, [2006] 1 SCR 420
The respondent company, which is charged with operating a motor vehicle for which the fees
relating to its registration had not been paid, raised the defences of due diligence and officially
induced error, alleging that a representative of the Société de l'assurance automobile du Québec
("SAAQ") had had it pay registration fees corresponding to a 15-month period and had told it that
a renewal notice would be sent to it before the period expired. Because of an error, the SAAQ sent
the notice to the company with an incomplete address and the postal service returned it to the
sender. As for the respondent T, who is charged with driving a motor vehicle without a valid
driver's licence, he raised the defence of due diligence, stating that he was unaware that the date
appearing on his licence was the date the licence expired rather than a payment due date. The
Municipal Court of the city of Lévis found that ss. 31.1 (registration) and 93.1 (driver's licence) of
the Highway Safety Code create strict liability offences and, accepting their due diligence defence,
acquitted the company and T. The Superior Court upheld the acquittals, and the Court of Appeal
dismissed the city's applications for leave to appeal.
Held: The appeals should be allowed.
The alleged offences belong to the category of strict liability offences. Section 93.1 does not place
the burden of proving mens rea on the prosecution and includes no expression of the legislature's
intent to create an absolute liability offence. Nor can such an intent be inferred from the scheme of
this provision, which seeks to ensure that the requirements of the regulation of highway safety are
met by monitoring drivers' licences without it being necessary to deprive an accused of a due
diligence defence. 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 [page422]
valid. Nor does s. 31.1, 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. The
same factors apply as in the case of the obligation to have a valid driver's licence when operating a
motor vehicle, and they justify the availability of a due diligence defence. [para. 7] [para. 29]
[para. 31]

The due diligence defence raised by the company and by T has not been made out. The concept of
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 licence 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 the defence of officially induced error, although it is available in
Canadian criminal law, the company has not established that the conditions under which it is
available have been met. The issues the company raised with the SAAQ's representative related at
most to administrative practices, not to the legal obligation to pay the fees by the prescribed date.
Two fundamental conditions that must be met for this defence to be available were therefore
missing: the company could not have considered the legal consequences of its conduct on the
basis of advice from the official in question, nor could it have acted in reliance on that opinion,
since no information regarding the nature and effects of the relevant legal obligations had been
requested or obtained. [para. 2] [para. 30] [paras. 32-34]
 R. v. Mack, [1988] 2 S.C.R. 903
Appellant testified at his trial for drug trafficking and, at the close of his defence, brought an
application for a stay of proceedings on the basis of entrapment. His testimony indicated that he
had persistently refused the approaches of a police informer over the course of six months, and
that he was only persuaded to sell him drugs because of the informer's persistence, his use of
threats, and the inducement of a large amount of money. Appellant testified that he had had a
drug habit but that he had given up his use of narcotics. The application for a stay was refused
and appellant was convicted of drug trafficking. The Court of Appeal dismissed an appeal from that
conviction. The central issue here concerns the conceptual basis of the doctrine of entrapment and
the manner in which an entrapment claim should be dealt with by the courts.

  Held: The appeal should be allowed.  

Entrapment occurs when (a) the authorities provide a person with an opportunity to commit an
offence without acting on a reasonable suspicion that this person is already engaged in criminal
activity or pursuant to a bona fide inquiry, or, (b) although having such 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. It is essential [page904] that the factors relied on by a court relate to
the underlying reasons for the recognition of the doctrine in the first place.

The doctrine of entrapment is not dependant upon culpability and the focus, therefore, should not
be on the effect of the police conduct on the accused's state of mind. As far as possible, an
objective assessment of the conduct of the police and their agents is required. The predisposition,
or the past, present or suspected criminal activity of the accused, is relevant only as a part of the
determination of whether the provision of an opportunity by the authorities to the accused to
commit the offence was justifiable. Further, there must be sufficient connection between the
accused's past conduct and the provision of an opportunity, since otherwise the police suspicion
will not be reasonable. While the accused's predisposition is of some relevance, albeit not
conclusive, in assessing initial approach by the police of a person with the offer of an opportunity
to commit an offence, it is never relevant as regards whether they went beyond an offer, since
that is to be assessed with regard to what the average non-predisposed person would have done.

The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the conduct
of the police because of the risk that the police will attract people otherwise without involvement in
a crime and because it is not a proper use of the police power to randomly test the virtue of
people. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will,
however, never justify entrapment techniques: the police may not go beyond providing an
opportunity regardless of their perception of the accused's character and regardless of the
existence of an honest inquiry.

The following factors may be considered in determining if the police have gone further than
providing an opportunity: (1) the type of crime being investigated and the availability of other
techniques for the police detection of its commission; (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; (3) the persistence and number of attempts made by the police before the accused
agreed to committing the offence; (4) the type of inducement used by the police including: deceit,
fraud, trickery or reward; (5) the timing of the police conduct, in particular whether the police
have instigated the offence or became involved in ongoing criminal activity; (6) whether the police
conduct involves an exploitation of human characteristics such as the emotions of compassion,
sympathy [page905] and friendship; (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; (9) the existence of any threats,
implied or express, made to the accused by the police or their agents; (10) whether the police
conduct is directed at undermining other constitutional values. This list is not exhaustive.
Entrapment is not a substantive or culpability-based defence and the adoption of rules which
historically, and by virtue of the Charter, conform to most substantive defences is neither
necessary nor correct.

Objective entrapment involving police misconduct, and not the accused's state of mind, is a
question to be decided by the trial judge, and the proper remedy is a stay of proceedings.

The issue of entrapment should be decided by the trial judge, as opposed to jury, for policy
reasons. A judge should consider the question from the perspective of a reasonable person,
dispassionate and fully apprised of all the circumstances, and the reasonable person is usually the
average person in the community but only when that community's current mood is reasonable.
The issue is maintaining respect for the values which, over the long term, hold the community
together. One of those very fundamental values is the preservation of the purity of the
administration of justice. A judge is particularly well suited to make this determination. Then, too,
the determination of whether the admission of evidence obtained in violation of a Charter right
would bring the administration of justice into disrepute is one which should be made by a trial
judge. If one of the advantages of allowing claims of entrapment is the development of standards
of conduct on the part of the state, it is essential that decisions on entrapment, and those allowing
the claim especially, be carefully explained so as to provide future guidance; this is not something
the jury process lends itself to.

Before a judge considers whether a stay of proceedings lies because of entrapment, it must be
absolutely clear that the Crown has discharged its burden of proving beyond a reasonable doubt
that the accused had committed all the essential elements of the offence. If [page906] this is not
clear and there is a jury, the guilt or innocence of the accused must be determined apart from
evidence which is relevant only to the issue of entrapment. This protects the right of an accused to
an acquittal where the circumstances so warrant. If the jury decides the accused has committed all
of the elements of the crime, it is then open to the judge to stay the proceedings because of
entrapment by refusing to register a conviction. Because the guilt or innocence of the accused is
not in issue at the time an entrapment claim is to be decided, the right of an accused to the
benefit of a jury trial in s. 11(f) of the Charter is in no way infringed.

The requirement that the accused prove entrapment on a balance of probabilities is not
inconsistent with the requirement that the Crown prove the guilt of the accused beyond a
reasonable doubt. The guilt or innocence of the accused is not in issue. The accused has done
nothing to warrant an acquittal; the Crown, however, has engaged in conduct, however, that
disentitles it to a conviction. Requiring an accused to raise only a reasonable doubt is entirely
inconsistent with a rule which permits a stay in only the "clearest of cases". More fundamentally,
the claim of entrapment is a very serious allegation against the state. To place a lighter onus on
the accused would unnecessarily hamper state action against crime. The interests of the court, as
guardian of the administration of justice, and the interests of society in the prevention and
detection of crime can be best balanced if the accused is required to demonstrate by a
preponderance of evidence that the prosecution is an abuse of process because of entrapment.
This is consistent with the rules governing s. 24(2) applications where the general issue is similar
to that raised in entrapment cases: would the administration of justice be brought into disrepute?

The defence of entrapment is to be recognized in only the "clearest of cases": this description is
preferable to the term "shocking and outrageous". Once the accused has demonstrated that the
strategy used by the police goes beyond acceptable limits, a judicial condonation of the
prosecution would by definition offend the community. It is not necessary to go further and ask
whether the demonstrated entrapment would "shock" the community, since the accused has
already shown that the administration of justice has been brought into disrepute.

[page907]

The state must be given substantial leeway with drug trafficking because the traditional devices of
police investigation are not effective. The police or their agents must get involved and gain the
trust and confidence of the people trafficking or supplying the drugs. The social consequences of
this crime are enormous and harmful.
The police here were not interrupting an ongoing criminal enterprise; the offence was clearly
brought about by their conduct and would not have occurred without their involvement. Nor were
they exploiting appellant's narcotics addiction. The persistence of the police requests and the
equally persistent refusals, and the length of time needed to secure appellant's participation in the
offence, indicate that the police had tried to make appellant take up his former life style and had
gone further than merely providing him with the opportunity. The most important and
determinative factor, however, was that appellant had been threatened and had been told to get
his act together when he did not provide the requested drugs. This conduct was unacceptable and
went beyond providing the appellant with an opportunity. The fact that the appellant eventually
committed the offence when shown the money was not significant because he knew of the profit
factor much earlier and still refused. The average person in appellant's position might also have
committed the offence, if only to finally satisfy this threatening informer and end all further
contact.

The police had reasonable suspicion that the appellant was involved in criminal conduct but they
went too far in their efforts to attract him into the commission of the offence. The doctrine of
entrapment was applicable to preclude appellant's prosecution and appellant met the burden of
proof. The trial judge should have entered a stay of proceedings for abuse of process.

R. v. Hart, 2014 SCC 52

Appeal by the Crown from a judgment of the Newfoundland and Labrador Court of Appeal setting
aside Hart's convictions for first degree murder and ordering a new trial. Following his twin
daughters' drowning, Hart's unusual behaviour provoked the suspicion of the police. Two years
later, the police decided to target Hart in a Mr. Big operation, where undercover officers lured a
suspect into a fictitious criminal organization of their own making in order to obtain a confession.
Two undercover officers offered a driver job to Hart in a trucking company. Shortly after, they
revealed that they were part of a criminal organization. From then on, Hart participated in
simulated criminal activity with the officers. During the operation, Hart confessed on three
occasions that he murdered his two daughters. Hart's arrest came four months after the Mr. Big
operation began. At trial, the confessions Hart made during the Mr. Big operation were admitted
into evidence, and he was convicted by a jury of two counts of first degree murder. A majority of
the Newfoundland Court of Appeal concluded that two of the three confessions should have been
excluded, but allowed a third confession to be introduced and, on that basis, ordered a new trial.

HELD: Appeal dismissed.

Where the state recruited an accused into a fictitious criminal organization of its own making and
sought to elicit a confession from the accused, any confession made to the state during the
operation was to be treated as presumptively inadmissible. This presumption of inadmissibility
would be overcome where the Crown could establish, on balance, that the probative value of the
confession outweighed its prejudicial effect. In this context, the confession's probative value was a
function of its reliability. Its prejudicial effect stemmed from the harmful character evidence that
necessarily accompanied its admission. If the Crown was unable to demonstrate that the accused's
confession was admissible, the rest of the evidence surrounding the Mr. Big operation became
irrelevant. Trial judges were also required to carefully scrutinize the conduct of the police to
determine if an abuse of process had occurred. The Court excluded all three of Hart's confessions.
Each of them came about in the face of overwhelming inducements. At the time the Mr. Big
operation began, Hart was socially isolated, unemployed, and living on welfare. Over the next four
months, the Mr. Big operation transformed Hart's life, becoming its focal point. This called into
question the confessions' reliability - and there was no confirmatory evidence capable of restoring
faith in them. As such, they carried little if any probative value. On the other hand, the bad
character evidence accompanying the confessions carried an obvious and serious potential for
prejudice. In these circumstances, the prejudicial effect of Hart's confessions outweighed their
probative value. Hart knew that his ticket out of poverty and social isolation was at stake. The
circumstances left Hart with a stark choice: confess to Mr. Big or be deemed a liar by the man in
charge of the organization he so desperately wanted to join. These circumstances, considered as a
whole, presented Hart with an overwhelming incentive to confess - either truthfully or falsely.
When the circumstances in which Hart's confessions were made were considered alongside their
internal inconsistencies and the lack of any confirmatory evidence, their reliability was left in
serious doubt, and the Court concluded that their probative value was low. On the other hand, the
bad character evidence accompanying the confessions carried with it an obvious and serious
potential for prejudice. In these circumstances, the prejudicial effect of Hart's confessions
outweighed their probative value.

In sum, the law as it stands provides insufficient protection to accused persons who confess during
Mr. Big operations. A two-pronged response is needed to address the concerns with reliability,
prejudice and police misconduct raised by these operations.

The first prong requires recognizing a new common law rule of evidence. Under this rule, where
the state recruits an accused into a fictitious criminal organization and seeks to elicit a confession
from him, any confession made by the accused to the state during the operation should be treated
as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown
can establish, on a balance of probabilities, that the probative value of the confession outweighs
its prejudicial effect.

The probative value of a Mr. Big confession is a function of its reliability. In assessing the reliability
of a Mr. Big confession, courts must first look to the circumstances in which the statement was
made. These circumstance include -- but are not strictly limited to -- the length of the operation,
the number of interactions between the police and the accused, the nature of the relationship
between the undercover officers and the accused, the nature and extent of the inducements
offered, the presence of any threats, the conduct of the interrogation itself, and the personality of
the accused, including his or her age, sophistication and mental health. The question for the trial
judge is whether and to what extent the reliability of the confession has been called into doubt by
the circumstances in which it was made.

After considering the circumstances in which the confession was made, the court should look to
the confession itself for markers of reliability. Trial judges should consider the level of detail
contained in the confession, whether it leads to the discovery of additional evidence, whether it
identifies any elements of the crime that have not been made public, or whether it accurately
describes mundane details of the crime the accused would likely not know had he or she not
committed it. Confirmatory evidence is not a hard and fast requirement, but where it exists, it can
provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances
in which the confession was made, the more important it will be to find markers of reliability in the
confession itself or the surrounding evidence.

Weighing the prejudicial effect of a Mr. Big confession is a more straightforward and familiar
exercise. Trial judges must be aware that admitting Mr. Big confessions creates a risk of moral and
reasoning prejudice. With respect to moral prejudice, the jury learns that the accused wanted to
join a criminal organization and committed a host of "simulated crimes" that he believed were
real. Moral prejudice may increase with operations that involve the accused in simulated crimes of
violence, or that demonstrate the accused has a past history of violence. As for reasoning
prejudice -- defined as the risk that the jury's focus will be distracted away from the charges
before the court -- it too can pose a problem depending on the length of the operation, the
amount of time that must be spent detailing it, and any controversy as to whether a particular
event or conversation occurred. However, the risk of prejudice can be mitigated by excluding
certain pieces of particularly prejudicial evidence that are unessential to the narrative, or by
providing limiting instructions to the jury.

In the end, trial judges must weigh the probative value and the prejudicial effect of the confession
at issue and decide whether the Crown has met its burden. Because trial judges, after assessing
the evidence before them, are in the best position to conduct this exercise, their decision to admit
or exclude a Mr. Big confession will be afforded deference on appeal.

This new common law rule of evidence goes a long way toward addressing the concerns with
reliability, prejudice, and police misconduct that are raised by Mr. Big operations. It squarely
tackles the problems with reliability and prejudice. In addition, it takes account of police
misconduct both by placing the admissibility onus on the Crown and by factoring the conduct of
the police into the assessment of a Mr. Big confession's probative value. However, the common
law rule of evidence I have proposed does not provide a complete response to the problems raised
by Mr. Big operations. On its own, it might suggest that abusive police conduct will be forgiven so
long as a demonstrably reliable confession is ultimately secured.

The second prong of the response fills this gap by relying on the doctrine of abuse of process. The
doctrine of abuse of process is intended to guard against state misconduct that threatens the
integrity of the justice system and the fairness of trials.

Trial judges must be aware that Mr. Big operations can become abusive. It is of course impossible
to set out a precise formula for determining when a Mr. Big operation will reach that threshold.
But there is one guideline that can be suggested. In conducting an operation, the police cannot be
permitted to overcome the will of the accused and coerce a confession. This would almost certainly
amount to an abuse of process. While violence and threats of violence are two forms of
unacceptable coercion, operations can become abusive in other ways. Operations that prey on an
accused's vulnerabilities, such as mental health problems, substance addictions, or youthfulness,
can also become unacceptable.

The trial judge did not apply this two pronged framework in determining the admissibility of H's
confessions. Nor did the parties address it in the courts below or before this Court. Nonetheless,
this Court is in a position to decide whether the respondent's confessions were properly admitted. 

R. v. Barnes, [1991] 1 S.C.R. 449

The Vancouver Police were conducting a "buy-and-bust" operation in an area -- the Granville Mall
-- considered to have a drug trafficking problem. In a "buy-and-bust" operation, undercover police
officers attempt to buy illicit drugs from individuals who appear, in the officers' opinion, to be
inclined to sell drugs. The appellant, who in the words of a police officer was "dressed scruffy", was
in the Granville Mall area when approached on a "hunch" by an undercover police officer. The
officer asked him if he had any "weed". Despite a negative answer, the officer asked the question
again and persisted until the appellant agreed to sell a [page450] small amount of cannabis resin.
Another officer arrested the appellant shortly afterwards.

The appellant was found guilty of trafficking in cannabis resin, of the included offence of
possession of cannabis resin for the purpose of trafficking, and of possession of marijuana. The
trial judge found, however, that the police officer had engaged in "random virtue testing" and
granted a judicial stay for entrapment. The British Columbia Court of Appeal allowed the Crown's
appeal of the finding of entrapment and ordered a new trial. The issues before this Court were: (1)
whether appellant was subjected to random virtue-testing; and, (2) whether this Court, absent a
cross-appeal by the Crown, has jurisdiction to modify the court of appeal's decision allowing the
Crown's appeal from the judicial stay of proceedings and enter three convictions.

Held (L'Heureux-Dubé J. dissenting in part, McLachlin J.dissenting): The appeal should be

dismissed.

Per Lamer C.J. and Wilson, La Forest, Sopinka, Gonthier, Cory and Stevenson JJ.: 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.

Random virtue-testing only arises when a police officer presents a person with the opportunity to
commit an offence without a reasonable suspicion that: (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.

The police officer here did not have a "reasonable suspicion" that the appellant was already
engaged in unlawful drug-related activity. The factors drawing her [page451] attention to the
appellant -- his manner of dress, the length of his hair -- were not sufficient to give rise to a
reasonable suspicion that criminal acts were being committed. The subjectiveness of her decision
to approach the appellant, based on a "hunch" or "feeling" rather than extrinsic evidence, also
indicated that the appellant did not arouse a reasonable suspicion as an individual. The appellant,
however, was presented with the opportunity to sell drugs in the course of a bona fide inquiry. The
officer's conduct was motivated by the genuine purpose of investigating and repressing criminal
activity and the investigation was directed at a suitable area within Vancouver. Although the size
of the area itself may indicate that the investigation is not bona fide, it was reasonable for the
Vancouver Police Department to focus its investigation on the Granville Mall.

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.

Section 695(1) does not allow this Court to make, in all circumstances, a decision that in its
opinion the Court of Appeal could have and should have made. This Court has jurisdiction under s.
695(1) to modify an order at the request of the Crown when there is an appeal by the Crown
making such a request. When there is no appeal by the Crown, an appellant cannot leave this
Court with less than what he gained from the Court of Appeal.

In the absence of an appeal by the Crown, this Court has no jurisdiction to allow the Crown's
request that the order below be modified. To hold otherwise would allow the Crown to appeal to
this Court where such an opportunity has not been provided by the Criminal Code or the Supreme
Court Act. The Crown is not given by statute the ability to appeal to this Court a decision which
allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less
than what had been requested. As a result, there is no statutory provision which would allow the
Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is
no right of appeal.

Per L'Heureux-Dubé J. (dissenting in part): The appeal on the entrapment issue should be
dismissed for the reasons given by Lamer C.J.

[page452]

As a general rule, an appellate court cannot disturb a verdict of acquittal or modify an order
directing a new trial, absent an appeal by the Crown asking it to do so. Appellate jurisdiction is
conferred entirely by statute. The rationales underlying the general rule, however, become
inoperative in certain situations. One such situation deals with circumstances where the Kienapple
principle is triggered.

Due to the operation of the rule against multiple convictions, an exception to the general rule
regarding Crown appeals and appellate jurisdiction has been formulated. The general rule has little
meaning in a situation where the Kienapple principle applies. The continued effect of the
"acquittal" is lifted and the conviction is reinstated should the Crown's appeal of the stay, by
appealing the application of the rule itself, be successful or should the accused successfully appeal
one of the convictions. There is really nothing of substance for the Crown to appeal.

No "live" issue regarding the second branch of the entrapment test existed. In this light, it is as
unreal to entertain arguments of prejudice to the accused in entering convictions as it is to order a
new trial in such circumstances. The lack of adjudication by the trial judge regarding the second
branch of the entrapment test can neither prevent the entering of a conviction nor justify the order
for a new trial on that issue. Accordingly, the Court of Appeal erred in ordering a new trial on this
second branch of the test of entrapment.

While not laying waste to the general rule, the present case offers convincing reasons for treating
it in the same fashion as a situation falling more squarely within the Kienapple exception. Like the
situation in a Kienapple context, the full force of the general rule obliging the Crown to appeal is
avoided in an entrapment situation because of the nature of the proceedings and the
underpinnings of the "acquittal" entered in such situations. The Crown's position, after an appeal
by the accused in an entrapment situation, is closely analogous to that in a Kienapple context:
there is nothing meaningful for the Crown to appeal. If the Crown's appeal is successful and the
entrapment arguments of the accused are unsuccessful on appeal, the stay will be set aside and
the convictions will stand. As in a Kienapple situation, the "acquittal" fails to remain relevant after
the entrapment [page453] issue is dispensed with and an accused cannot ignore that necessary
result. Requiring the Crown to appeal the "acquittal" in order to formalize this necessary
consequence is a meaningless formality easily dispensed with in a Kienapple situation. The same
result should also obtain in an entrapment situation.

Per McLachlin J. (dissenting): Determination of entrapment must involve a balancing between the
individual interest in being left alone and the state's interest in the repression of crime. Only where
considerations such as fairness, justice and the need for protection from crime tip the balance in
favour of the state will police conduct which offends the individual interests at stake be acceptable.

The significance of the individual interest at stake here must not be underestimated and the
adverse effect that police investigatory techniques can have on this interest should not be
overlooked. Limits must be placed on the state's ability to intrude into the daily lives of its citizens.
A further risk inherent in overbroad undercover operations is that of discriminatory police work,
where people are interfered with not because of reasonable suspicion but because of the colour of
their skin or the quality of their clothing and their age.

The test for entrapment must permit the measuring of relative harms. In determining whether
there was a bona fide inquiry, the court must consider not only the motive of the police and
whether there is crime in the general area, but also other factors relevant to the balancing
process, such as the likelihood of crime at the particular location targeted, the seriousness of the
crime in question, the number of legitimate activities and persons who might be affected, and the
availability of other less intrusive investigative techniques. The question is whether the
interception at the particular location was reasonable having regard to the conflicting interests of
private citizens in being left alone from state interference and of the state in suppressing crime. If
the answer to this question is yes, then the inquiry is bona fide. This test offers sufficient guidance
to the police.

That crime may be said to occur generally within a given area does not suffice to establish a bona
fide [page454] inquiry, given proper police motives. Other factors must be considered. The first is
the likelihood of crime in the particular area targeted. The fact that trafficking occurred at different
locations in the six-block area of the mall does not establish that trafficking was likely to occur at
the time and place where the appellant was intercepted. The second relates to the possibility that
this undercover operation would interfere with the legitimate activities of law-abiding citizens. This
factor, while not in itself conclusive, weighed against the right of undercover police to intercede at
will. On the other side of the balance must be weighed the seriousness of the criminal activity
which the police have targeted. The offence here in question, while not to be condoned, could not
be considered as one of the most serious and alternative investigatory techniques were available
to detect it.

The individual interest in being left alone and free to pursue one's daily business without being
confronted by undercover police operatives vastly outweighs the state interest in the repression of
crime. The police officer here, therefore, was not acting pursuant to a bona fide inquiry.
 R. v. M. (C.A.), [1996] 1 S.C.R. 500

The accused pleaded guilty to numerous counts of sexual assault, incest and assault with a
weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual,
physical and emotional abuse inflicted upon his children over a number of years. None of the
offences committed carried a penalty of life imprisonment. The trial judge, remarking that the
offences were as egregious as any he had ever had occasion to deal with, sentenced the accused
to a cumulative sentence of 25 years' imprisonment, with individual sentences running both
consecutively and concurrently. The Court of Appeal reduced the sentence to 18 years and 8
months.

Following a line of jurisprudence it had developed in recent years, the court concluded that where
life imprisonment is not available as a penalty, the totality principle requires trial judges to limit
fixed-term cumulative sentences under the Criminal Code to a term of imprisonment of 20 years,
absent special circumstances.

Held: The appeal should be allowed and the sentence of 25 years' imprisonment restored.

For offences where imprisonment is available, the Code sets maximum terms of incarceration in
accordance with the relative severity of each crime. The Code staggers maximum sentences for
the full range of offences at numerical intervals ranging from one year to 14 years, followed by the
most severe punishment, life imprisonment. The Code is silent, however, with regard to whether
there is an upper limit on fixed-term or numerical (i.e., non-life) terms of imprisonment, both as
sentences for single offences where life imprisonment is available but unwarranted, and as
sentences for multiple offences involving consecutive terms of imprisonment. It is a well
established tenet of our criminal law that the quantum of sentence imposed should be broadly
commensurate with the gravity of the offence committed and the moral blameworthiness of the
offender. Within broader parameters, the principle of proportionality expresses itself as a
constitutional obligation. 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 s. 12 of the Canadian Charter of Rights
and Freedoms. 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. Whether under the rubric of the totality principle or a more generalized principle of
proportionality, Canadian courts have been reluctant to impose single and consecutive fixed-term
sentences beyond 20 years.

In contrast to the absence of any explicit codal rules governing the limits on fixed-term sentences
of imprisonment, the Criminal Code, read together with the Corrections Act, sets very clear rules
governing the determination of parole eligibility. A person sentenced to a numerical term of
imprisonment under the Code becomes eligible for full parole after serving the lesser of one third
of the sentence or seven years. The commencement date for the determination of parole eligibility
has generally been understood to coincide with the commencement of sentence, namely the date
when sentence is imposed. A person sentenced to life imprisonment other than as a minimum
punishment becomes eligible for full parole after serving seven years. However, in contrast to a
person sentenced to a numerical term of imprisonment, the calculation of parole eligibility for life
imprisonment begins at an earlier date, in that the parole eligibility clock effectively begins to run
from the date of arrest.

There is no evidence in either the Code or the Corrections Act that Parliament intended to
constrain a trial judge's traditionally broad sentencing discretion through the imposition of a
qualified legal ceiling on numerical sentences pegged at 20 years' imprisonment. Parliament
established the parole system as a regime by which the conditions of incarceration of a sentence
could be altered by subsequent executive review, rather than as a regime by which the sentence
itself could be reduced. In setting threshold periods of parole ineligibility, Parliament was
principally motivated by the sentencing goals of deterrence and denunciation. But the fact that
conditions of incarceration are subject to review at a particular point in time says little about the
efficacy and limits of a global fixed-term sentence in advancing the traditional goals of sentencing.
There is no indication that the default periods of parole ineligibility exhaust a court's ability to
advance the goals of deterrence, denunciation, rehabilitation and the protection of society through
the imposition of a numerical sentence beyond 20 years. Even though the conditions of
incarceration may be subject to change after seven years, the interaction of accepted sentencing
principles could still require that the offender remain under the aegis of the parole system (if not
under imprisonment) for beyond 20 years. There is no necessary inference that Parliament
implicitly imposed a qualified cap on fixed-term sentences through its adoption of the Corrections
Act.

There is no obvious absurdity on the face of the parole eligibility scheme. The Corrections Act
provides that an offender sentenced to life imprisonment would be eligible for parole before an
offender sentenced to a numerical term beyond 20 years. One can readily infer an intelligible
intent behind the operation of the rules. Parliament could have concluded that as a result of the
unique life-long parole restrictions associated with a term of life imprisonment, an offender
sentenced to life ought to be entitled to have his or her pre-trial custody credited to his or her
parole ineligibility time. Furthermore, any alleged absurdity on the face of the statute will rarely
manifest itself in the actual release dates of prisoners. The rules of the Corrections Act only govern
an offender's eligibility for full parole; the actual granting of full parole remains within the
discretion of the National Parole Board. Finally, even if one assumes that the parole eligibility rules
result in an absurdity, such a legislative absurdity would only be compounded rather than
corrected by imposing a strict restriction on the sentencing discretion of trial judges under the
Criminal Code. The Corrections Act was intended to facilitate the sentencing discretion of trial
judges. It would seriously pervert both the very purpose and function of the statute to suggest
that the peculiarities of the parole eligibility rules contained within the Corrections Act ought to
dictate and control the structure of sentences under the Code.

The Court of Appeal erred in applying as a principle of sentencing that fixed-term sentences under
the Criminal Code ought to be capped at 20 years, absent special circumstances. A numerical
sentence beyond 20 years may still significantly advance the traditional continuum of sentencing
goals ranging from deterrence, denunciation and rehabilitation to the protection of society,
notwithstanding the fact that an offender is eligible for review of the conditions of his or her
incarceration after seven years (absent an order extending the period of ineligibility). Within the
broad statutory maximum and minimum penalties defined for particular offences under the Code,
trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed-
term sentence which adequately promotes the traditional goals of sentencing, subject only to the
fundamental principle that the global sentence imposed should reflect the overall culpability of the
offender and the circumstances of the offence. There is no pre-fixed boundary to the sentencing
discretion of a trial judge, whether at 20 or 25 years' imprisonment. There is no reason why
numerical sentences should be de facto limited at 20 years as a matter of convention. Whether a
fixed-term sentence beyond 20 years is imposed as a sentence for a single offence where life
imprisonment is available but not imposed, or as a cumulative sentence for multiple offences
where life imprisonment is not available, there is no a priori ceiling on fixed-term sentences under
the Code.

Retribution is an accepted, and indeed important, principle of sentencing in our criminal law. As an
objective of sentencing, it represents nothing less than the hallowed principle that criminal
punishment, in addition to advancing utilitarian considerations related to deterrence and
rehabilitation, should also be imposed to sanction the moral culpability of the offender. Retribution
represents an important unifying principle of our penal law by offering an essential conceptual link
between the attribution of criminal liability and the imposition of criminal sanctions. The legitimacy
of retribution as a principle of sentencing has often been questioned as a result of its unfortunate
association with "vengeance" in common parlance, but retribution bears little relation to
vengeance. Retribution should also be conceptually distinguished from its legitimate sibling,
denunciation. Retribution requires that a judicial sentence properly reflect the moral
blameworthiness of the particular offender. The objective of denunciation mandates that a
sentence should also communicate society's condemnation of that particular offender's conduct.
Neither retribution nor denunciation, however, alone provides an exhaustive justification for the
imposition of criminal sanctions. Retribution must be considered in conjunction with the other
legitimate objectives of sentencing.
The Court of Appeal erred in reducing the accused's sentence. Absent an error in principle, failure
to consider a relevant factor 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.
Appellate courts serve an important function in reviewing and minimizing the disparity of
sentences. However, a court of appeal should only intervene to minimize the disparity of sentences
where the sentence imposed is in substantial and marked departure from the sentences
customarily imposed for similar offenders committing similar crimes. While the court reduced the
accused's sentence primarily as a result of a framework of sentencing principles that was incorrect
in law, it also justified its reduction with reference to a contextual application of the accepted
principles of sentencing to this case. The Court of Appeal erred in this instance by engaging in an
overly interventionist mode of appellate review of the fitness of sentence which transcended the
standard of deference articulated by this Court in Shropshire. It was open to the sentencing judge
to reasonably conclude that the particular blend of traditional sentencing goals required a sentence
of 25 years in this instance. Moreover, on the facts, the sentencing judge was entitled to find that
a overall term of imprisonment of 25 years represented a just sanction for the accused's crimes.
The accused committed a vile pattern of physical and sexual abuse against the very children he
was entrusted to protect. The degree of violence exhibited in these crimes was disturbingly high,
and the children will undoubtedly be scarred for life. The psychiatrist and psychologist who
examined the accused agree that he faces dim prospects of rehabilitation. Without doubt, the
accused deserves a severe sentence which expresses society's revulsion at his crimes

R. v. Pham, [2013] 1 S.C.R. 739

The accused, a non-citizen, was convicted of two drug-related offences. In light of a joint
submission by the Crown and defense counsel, the sentencing judge imposed a sentence of two
years' imprisonment. Under [page740] the Immigration and Refugee Protection Act, a non-citizen
sentenced to a term of imprisonment of at least two years loses the right to appeal a removal
order against him or her. In the present case, neither party had raised the issue of the collateral
consequences of a two-year sentence on the accused's immigration status before the sentencing
judge. The majority of the Court of Appeal dismissed the appeal and refused to vary the sentence.
Held: The appeal should be allowed and the sentence of imprisonment reduced to two years less a
day.

A sentencing judge may exercise his or her discretion to take collateral immigration consequences
into account, provided that the sentence ultimately imposed is proportionate to the gravity of the
offence and the degree of responsibility of the offender. The significance of collateral immigration
consequences will depend on the facts of the case. However, it remains that they are but one of
the relevant factors that a sentencing judge may take into account in determining an appropriate
sentence. Those consequences must not be allowed to skew the process either in favour of or
against deportation. Further, it remains open to the sentencing judge to conclude that even a
minimal reduction of a sentence would render it inappropriate in light of the gravity of the offence
and the degree of responsibility of the offender.

An appellate court has the authority to vary a sentence if the sentencing judge was not aware of
the collateral immigration consequences, or if counsel had failed to advise the judge on this issue.
Where the matter was not raised before the sentencing judge and where the Crown does not give
its consent to the appeal, some evidence should be adduced for consideration by the Court of
Appeal. In the case at bar, the sentencing judge was unaware of the sentence's collateral
immigration consequences and the Crown had conceded that sentence should be reduced by one
day. It was wrong for the Court of Appeal to refuse the sentence reduction based solely on the fact
that the accused had a prior criminal record or on its belief that the accused had abused the
hospitality that had been afforded to him by Canada. It is therefore appropriate to grant the
variation of the sentence from two years to two years less a day.

R. v. Gladue, [1999] 1 S.C.R. 688

The accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law
husband and was sentenced to three years' imprisonment. On the night of the incident, the
accused was celebrating her 19th birthday and drank beer with some friends and family members,
including the victim. She suspected the victim was having an affair with her older sister and, when
her sister left the party, followed by the victim, the accused told her friend, "He's going to get it.
He's really going to get it this time". She later found the victim and her sister coming down the
stairs together in her sister's home. She believed that they had been engaged in sexual activity.
When the accused and the victim returned to their townhouse, they started to quarrel. During the
argument, the accused confronted the victim with his infidelity and he told her that she was fat
and ugly and not as good as the others. A few minutes later, the victim fled their home. The
accused ran toward him with a large knife and stabbed him in the chest. When returning to her
home, she was heard saying "I got you, you fucking bastard". There was also evidence indicating
that she had stabbed the victim on the arm before he left the townhouse. At the time of the
stabbing, the accused had a blood-alcohol content of between 155 and 165 milligrams of alcohol in
100 millilitres of blood.

At the sentencing hearing, the judge took into account several mitigating factors. The accused was
a young mother and, apart from an impaired driving conviction, she had no criminal record. Her
family was supportive and, while on bail, she had attended alcohol abuse counselling and
upgraded her education. The accused was provoked by the victim's insulting behaviour and
remarks. At the time of the offence, the accused had a hyperthyroid condition which caused her to
overreact to emotional situations. She showed some signs of remorse and entered a plea of guilty.
The sentencing judge also identified several aggravating circumstances. The accused stabbed the
deceased twice, the second time after he had fled in an attempt to escape. From the remarks she
made before and after the stabbing it was clear that the accused intended to harm the victim.
Further, she was not afraid of the victim; she was the aggressor. The judge considered that the
principles of denunciation and general deterrence must play a role in the present circumstances
even though specific deterrence was not required. He also indicated that the sentence should take
into account the need to rehabilitate the accused. The judge decided that a suspended sentence or
a conditional sentence of imprisonment was not appropriate in this case. He noted 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". The sentencing judge concluded that the offence was a very
serious one, for which the appropriate sentence was three years' imprisonment. The majority of
the Court of Appeal dismissed the accused's appeal of her sentence.

  Held: The appeal should be dismissed.  

The considerations which should be taken into account by a judge sentencing an aboriginal
offender have been summarized at para. 93 of the reasons for judgment. The following is a
reflection of that summary.

Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and
the factors that should be considered by a judge in striving to determine a sentence that is fit for
the offender and the offence. In that Part, s. 718.2(e) mandatorily requires sentencing judges to
consider all available sanctions other than imprisonment and to pay particular attention to the
circumstances of aboriginal offenders. The provision is not simply a codification of existing
jurisprudence. It is remedial in nature and is designed to ameliorate the serious problem of
overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have
recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's
remedial purpose real force. Section 718.2(e) must be read in the context of the rest of the factors
referred to in that section and in light of all of Part XXIII. In determining a fit sentence, all
principles and factors set out in that Part must be taken into consideration. Attention should be
paid to the fact that Part XXIII, through certain provisions, has placed a new emphasis upon
decreasing the use of incarceration.

Sentencing is an individual process and in each case the consideration must continue to be what is
a fit sentence for this accused for this offence in this community. The effect of s. 718.2(e),
however, is to alter the method of analysis which sentencing judges must use in determining a fit
sentence for aboriginal offenders. 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
appropriate in the circumstances for the offender because of his or her particular aboriginal
heritage or connection. In order to undertake these considerations the sentencing judge will
require information pertaining to the accused. Judges may take judicial notice of the broad
systemic and background factors affecting aboriginal people, and of the priority given in aboriginal
cultures to a restorative approach to sentencing. In the usual course of events, additional case-
specific information will come from counsel and from a pre-sentence report which takes into
account the systemic or background factors and the appropriate sentencing procedures and
sanctions, which in turn may come from representations of the relevant aboriginal community. The
offender may waive the gathering of that information. The absence of alternative sentencing
programs specific to an aboriginal community does not eliminate the ability of a sentencing judge
to impose a sanction that takes into account principles of restorative justice and the needs of the
parties involved.

If there is no alternative to incarceration the length of the term must be carefully considered. The
jail term for an aboriginal offender may in some circumstances be less than the term imposed on a
non-aboriginal offender for the same offence. However, 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.
It is also unreasonable to assume that aboriginal peoples do not believe in the importance of
traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In
this context, generally, the more serious and violent the crime, the more likely it will be as a
practical matter that the terms of imprisonment will be the same for similar offences and
offenders, whether the offender is aboriginal or non-aboriginal.

Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-
reserve, in a large city or a rural area. In defining the relevant aboriginal community for the
purpose of achieving an effective sentence, the term "community" must be defined broadly so as
to include any network of support and interaction that might be available, including one in an
urban centre. At the same time, the residence of the aboriginal offender in an urban centre that
lacks any network of support does not relieve the sentencing judge of the obligation to try to find
an alternative to imprisonment.

In this case, the sentencing judge may have erred in limiting the application of s. 718.2(e) to the
circumstances of aboriginal offenders living in rural areas or on-reserve. Moreover, he does not
appear to have considered the systemic or background factors which may have influenced the
accused to engage in criminal conduct, or the possibly distinct conception of sentencing held by
the accused, by the victim's family, and by their community. The majority of the Court of Appeal,
in dismissing the accused's appeal, also does not appear to have considered many of the relevant
factors. Although in most cases such errors would be sufficient to justify sending the matter back
for a new sentencing hearing, in these circumstances it would not be in the interests of justice to
order a new hearing in order to canvass the accused's circumstances as an aboriginal offender.
Both the sentencing judge and all members of the Court of Appeal acknowledged that the offence
was a particularly serious one. For that offence by this offender a sentence of three years'
imprisonment was not unreasonable. More importantly, the accused was granted, subject to
certain conditions, day parole after she had served six months in a correctional centre and, about
a year ago, was granted full parole with the same conditions. The results of the sentence with
incarceration for six months and the subsequent controlled release were in the interests of both
the accused and society.

R. v. Nur, [2015] S.C.J. No. 15

Appeal by the Crown from judgments of the Ontario Court of Appeal which affirmed sentences
imposed on Nur and Charles, but held that the mandatory minimum terms of imprisonment in s.
95(2)(a) of the Criminal Code violated s. 12 of the Canadian Charter of Rights and Freedoms
(Charter) and declared them to be null and void under s. 52 of the Constitution Act, 1982. Nur and
Charles were charged with possession of a loaded prohibited firearm contrary to s. 95(1) of the
Criminal Code. This offence carried with it a maximum one-year term of imprisonment for a first
offence where the crown elected to proceed summarily and mandatory minimum sentences of
three years' imprisonment for a first offence and five years' imprisonment for a second or
subsequent offence where the Crown elected to proceed by indictment. The Crown elected to
proceed by indictment against both Nur and Charles. Both accused entered guilty pleas, but they
each asserted that the mandatory minimum sentences imposed by s. 95(2)(a) of the Criminal
Code were unconstitutional because they resulted in grossly disproportionate sentences in some
cases, violating the guarantee in s. 12 of the Charter against cruel and unusual punishment. They
submitted that the mandatory minimum terms of imprisonment were not disproportionate as
applied to them, but that the mandatory minimum sentences violated s. 12 of the Charter as they
applied to other offenders. The Crown asserted that the focus of the s. 12 Charter analysis should
be mainly or exclusively on the offenders before the court and that considerations pertaining to
how the law might impact third parties in "reasonable hypotheticals" should be excluded.

HELD: Appeal dismissed.

The Court concluded that a mandatory minimum sentence could be challenged on the ground that
it would impose a grossly disproportionate sentence either on the offender or on other persons in
reasonably foreseeable situations. Two questions arose in the s. 12 Charter analysis of a challenge
to a mandatory minimum sentencing provision. The first was whether the provision resulted in a
grossly disproportionate sentence on the individual before the court. If the answer was no, the
second question was whether the provision's reasonably foreseeable applications would impose
grossly disproportionate sentences on others. This approach was consistent with the settled
jurisprudence on constitutional review and rules of constitutional interpretation,; was workable;
and provided sufficient certainty. In the case at bar, the challenged minimum terms of
imprisonment could result in grossly disproportionate sentences in reasonably foreseeable cases.
Section 95(1) captured a wide range of potential conduct. At the far end of the range stood the
licensed and responsible gun owner who stored his unloaded firearm safely with ammunition
nearby, but made a mistake as to where it could be stored. For this offender, a three-year
sentence was grossly disproportionate to the sentence the conduct would otherwise merit under
the sentencing provisions of the Criminal Code. Section 95(1) foreseeably caught licensing
offences which involved little or no moral fault and little or no danger to the public. There was little
doubt that in many cases those who committed second or subsequent offences for the purpose of
s. 95(2)(a)(ii) should be sentenced to terms of imprisonment, and some for lengthy terms of
imprisonment. The seven-year term of imprisonment imposed on Charles was an example.
However, the five-year minimum term of imprisonment would be grossly disproportionate for less
serious offenders captured by the provision. Having concluded that the impugned provisions failed
under s. 12 of the Charter, it was unnecessary to consider whether they also violated s. 7 of the
Charter. The s. 12 Charter infringement was not justified under s. 1 of the Charter. Although a
rational connection existed between the mandatory minimum terms of imprisonment and the goals
of denunciation and retribution, the minimal impairment and proportionality branches of the Oakes
test were not met. The mandatory minimum sentences imposed by s. 95(2)(a) were inconsistent
with s. 12 of the Charter and were therefore declared of no force or effect. The Court declined to
interfere with the sentences imposed on the respondents by the trial judges; the imposition of
weighty sentences in the circumstances of those cases was appropriate.

R. v. Morrisey, [2000] S.C.J. No. 39

The accused was drinking with his friend T and T's father at an isolated camp in the woods, where
the accused also began taking prescription drugs. The accused and T successfully cut off a length
of a rifle barrel. While T remained at the camp, the accused drove T's father home. Upon returning
to the camp, the accused found T lying in the top bunk in the cabin. While holding the rifle, which
he knew to be loaded, he jumped up to the lower bunk in order to shake T -- either to awaken
him, or to get his attention. The accused lost his footing, and fell. The gun discharged, and the
bullet struck T in the head, killing him instantly. The gun was not susceptible to shock discharge.
There was no evidence that the accused intended to aim the gun at T. The accused pleaded guilty
to criminal negligence causing death, contrary to s. 220(a) of the Criminal Code, and unlawfully
pointing a firearm contrary to s. 86(1). He had spent five months in pre-trial custody. The trial
judge found that the four-year minimum sentence provided for in s. 220(a) violated s. 12 of the
Canadian Charter of Rights and Freedoms, and sentenced the accused to two years' imprisonment
for the criminal negligence charge (taking into account pre-trial custody) plus one year for the s.
86(1) charge. The trial judge was directed by the Court of Appeal to rehear the matter, as the
Attorney General of Canada had not been given notice of the constitutional challenge. Having
heard additional arguments, he maintained his original ruling. The Court of Appeal allowed the
Crown's appeal, and imposed a four-year sentence for the criminal negligence charge, without any
credit for pre-trial custody.

Held: The appeal should be dismissed in all respects except one. The accused's sentence should be
adjusted to take pre-trial custody into account.

Per Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.: Parliament has created criminal liability
under s. 219 of the Criminal Code for people whose conduct evinces a wanton or reckless
disregard for the lives or safety of other people. To be convicted of an offence under s. 220, that
wanton or reckless disregard must have caused the death of another person. To receive a four-
year minimum sentence, a firearm must have been used in the commission of this offence. Any
behaviour that is "reasonable" cannot be "wanton". Parliament has thus set a very high threshold
that must be met in order to attract criminal liability under s. 220(a) of the Code.

Section 12 of the Charter provides a broad protection to Canadians against punishment which is so
excessive as to outrage our society's sense of decency. The court must be satisfied that the
punishment imposed is grossly disproportionate for the offender, such that Canadians would find
the punishment abhorrent or intolerable. In assessing whether a sentence is grossly
disproportionate, the court must first consider the gravity of the offence, the personal
characteristics of the offender and the particular circumstances of the case in order to determine
what range of sentences would have been appropriate to punish, rehabilitate or deter this
particular offender or to protect the public from him or her. As well, a court is to consider the
actual effect of the punishment on the individual, the penological goals and sentencing principles
upon which the sentence is fashioned, the existence of valid alternatives to the punishment
imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction.
These contextual factors must be first evaluated in light of the particular circumstances of the
offender before the court. If the sentence is grossly disproportionate for the individual offender,
the court then proceeds to analyse whether the infringement of s. 12 can be justified under s. 1 of
the Charter. If it is not disproportionate for the individual offender, then the court is still to
consider the constitutionality of the sentence with reasonable hypotheticals.

Both the courts below agreed, and the defence has conceded, that a four-year minimum sentence
would not be cruel and unusual punishment for this offender. An analysis of the gravity of the
offence requires an understanding of both the character of the offender's actions, and the
consequences of those actions. That the accused's actions in this case had particularly grave
consequences for the victim is not challenged. With respect to the character of the actions, to
attract criminal liability under s. 220(a) one must demonstrate wanton and reckless disregard for
life and safety. When both aspects of the gravity of the offence factor are considered, it is clear
that s. 220(a) involves those who have committed a particularly grave offence. While there are
mitigating factors, these do not offset the aggravating factors in this case, nor do they displace the
gravity of the offence. With respect to the actual effect of the punishment on the offender,
although a four-year term in a federal penitentiary is unquestionably a serious sentence, there are
no special punitive measures created to punish these offenders, and they would be eligible for
parole after 16 months unless the trial judge directs otherwise. Moreover, pre-trial custody can be
counted against a minimum sentence. While it may be ideal to craft a minimum sentencing regime
for this crime that would simultaneously pursue all of the traditional sentencing principles, this is
not necessary for s. 12 purposes. This legislation survives constitutional scrutiny even if the
sentence pursues sentencing principles of general deterrence, denunciation and retributive justice
more than the principles of rehabilitation and specific deterrence.

The proper approach to reasonable hypotheticals is to develop imaginable circumstances which

could commonly arise with a degree of generality appropriate to the particular offence. In both of
the hypotheticals that commonly arise from the reported cases, a four-year imprisonment would
not be cruel and unusual punishment for such offenders.
The trial judge credited the accused with one year for the five months spent in pre-trial custody,
taking into account the fact that he pleaded guilty at the outset. Since this one-year credit was not
demonstrably unfit, the accused must serve the four-year minimum sentence, less the one-year
credit for pre-trial custody.

Per McLachlin and Arbour JJ.: The four-year minimum sentence provided for in s. 220(a) of the
Criminal Code is not so excessive or grossly disproportionate as to constitute cruel and unusual
punishment for this offender in the particular circumstances of this case. Because the offence of
criminal negligence causing death with a firearm is so fact-driven, however, it cannot be concluded
that the four-year minimum sentence is not grossly disproportionate for "any" reasonable
hypothetical offender. It is impossible to canvass, with the requisite richness of factual details, the
many varied circumstances in which a charge of manslaughter could arise, even when the factual
scenarios are restricted to manslaughter by criminal negligence, and involving the use of a
firearm. Furthermore, real cases, representing situations that have arisen, must be seen as
reasonable hypotheticals for purposes of a s. 12 analysis, no matter how unusual they may
appear.

To the extent possible, mandatory minimum sentences must be read consistently with the general
principles of sentencing expressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code.
By fixing a minimum sentence, particularly when the minimum is still just a fraction of the
maximum penalty applicable to the offence, Parliament has not repudiated completely the principle
of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar
to sentences imposed on similar offenders for similar offences committed in similar circumstances.
The mandatory minimum sentences for firearms-related offences must therefore act as an
inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender
whose conduct is caught by these provisions. The mandatory minimum must not become the
standard sentence imposed on all but the very worst offender who has committed the offence in
the very worst circumstances. The latter approach would not only defeat the intention of
Parliament in enacting this particular legislation, but also offend against the general principles of
sentencing designed to promote a just and fair sentencing regime and thereby advance the
purposes of imposing criminal sanctions. The proper approach to the interpretation of the
constitutional validity of mandatory minimum sentences, under the guidance of the jurisprudence
of this Court, is to give effect to this inflationary scheme, except when the statutory impossibility
of going below the minimum is offensive to s. 12 of the Charter, where the mandatory minimum
requires the imposition of a sentence that would be not merely unfit, which is constitutionally
permissible, but rather grossly disproportionate to what the appropriate punishment should be.

There will unavoidably be a case in which a four-year minimum sentence for this offence will be
grossly disproportionate. Since the inflationary effect of the mandatory floor is likely to increase all
penalties for this offence, there will arguably be fewer such cases for which four years will be
grossly disproportionate and therefore unconstitutional. Nonetheless, in light of the variety of
conduct captured by this prohibition, it is likely that there will continue to be some. In general
terms, gross disproportionality is likely to manifest itself in the context of spousal abuse, for
example. Another type of situation in which the four-year mandatory minimum sentence under s.
220(a) could be found to violate s. 12 involves police officers or security guards who are required
to carry firearms as a condition of their employment and who, in the course of their duty,
negligently kill someone with their firearm. While the law will of course hold such persons to a high
standard of care in the use and handling of their firearms, it is nonetheless conceivable that
circumstances could arise in which a four-year penitentiary term could constitute cruel and unusual
punishment. The constitutionality of s. 220(a) should therefore be upheld generally, although it
should not be applied in a future case if the minimum penalty is found to be grossly
disproportionate for that future offender.

R. v. Nasogaluak, [2010] S.C.J. No. 6

Appeal by the Crown and cross-appeal by the accused from the Court of Appeal's sentencing
decision. The RCMP received a tip about an intoxicated driver. After a high-speed pursuit of the
accused, the accused stopped his car, opened the door and swung his feet out. The accused
refused to comply with an officer's orders to get out of the vehicle and place his feet back inside
the vehicle. Another officer grabbed the accused, punched him in the head and when the accused
reached out to the officer, he was punched a second time and pulled from the vehicle and wrestled
to the ground. The accused was punched a third time and was pinned face down onto the
pavement, with an offer straddling his back. When the accused refused to offer up his hands to be
handcuffed, an officer punched him in the back, resulting in broken ribs, which subsequently
punctured one of his lungs. The accused subsequently provided breath samples that placed him
well over the legal blood alcohol limit. The accused entered a guilty plea to the charges of impaired
driving under s. 253(a) of the Criminal Code and flight from police under s. 249.1(1) of the Code.
At the sentencing hearing, the judge found that the police actions constituted a violation of ss. 7
and 11(d) of the Charter. He found that the third punch to the head and the punches to the back
were unwarranted and therefore excessive. As a remedy for the Charter breaches, the accused
was granted a reduced sentence, a 12-month conditional discharge on both counts, served
concurrently, with a one-year driving prohibition. The Court of Appeal agreed that the excessive
use of force and subsequent failure to report the accused's injuries and obtain medical care
amounted to a s. 7 breach. The Court of Appeal agreed that a sentence could be reduced pursuant
to s. 24(1) of the Charter, but held that a sentence falling below a statutorily mandated minimum
sentence could not be ordered as it would constitute an unlawful interference with the role of
Parliament. Given the minimum fine of $600 for a first offence mandated by s. 255(1)(a)(i) of the
Criminal Code, the trial judge's order for a conditional discharge in respect of the impaired driving
offence was set aside and the minimum fine was imposed. The Crown appealed the finding of a s.
7 violation and the use of the sentence reduction as a remedy for a Charter breach. The accused
cross-appealed the Court of Appeal's decision to substitute a fine for the conditional discharge.

HELD: Appeal dismissed.

Cross-appeal dismissed. The Court of Appeal did not err in upholding the trial judge's finding of
excessive force by police in arresting the accused. The police officers' excessive use of force
amounted to a violation of the accused's right to life, liberty and security of the person under s. 7
of the Charter. The sentencing judge committed no error of law or principle in choosing to take this
conduct into account as a factor tending toward a reduced sentence. The sentencing regime
provided some scope for sentencing judges to consider not only the actions of the offender, but
also those of state actors. Where the state misconduct in question related to the circumstances of
the offence or the offender, the sentencing judge could properly take the relevant facts into
account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. However,
when acting within the boundaries of the statutory sentencing regime, the sentencing judge had to
exercise his or her discretion within the parameters of the Criminal Code. These constraints also
applied where the remedial power of the court under the Charter was invoked. A sentence
reduction outside statutory limits did not generally constitute an "appropriate" remedy within the
meaning of s. 24(1), unless the constitutionality of the statutory limit itself was challenged.
However, the remedial power of the court under s. 24(1) was broad. Consequently, the Court did
not foreclose the possibility that, in some exceptional cases, a sentence reduction outside statutory
limits could be the sole effective remedy for some particularly egregious form of misconduct by
state agents in relation to the offence and the offender. However, this was not such a case. The
sentencing judge erred in ordering a sentence that fell below the statutory minimum in the Code.
The Court of Appeal correctly substituted the order of a conditional discharge on the offence of
impaired driving with the statutorily mandated minimum fine.

R. v. Ferguson, [2008] S.C.J. No. 6

Appeal by the accused from the decision of the Alberta Court of Appeal which overturned the
sentencing ruling of the trial judge. Accused was an RCMP officer who shot and killed a detainee.
The accused was convicted by a jury of manslaughter. Section 236(a) of the Criminal Code
required a minimum sentence of four years for manslaughter with a firearm. Trial judge imposed a
conditional sentence of two years less a day on the basis of a constitutional exemption from the
minimum sentence as he found the mandatory sentence constituted cruel and unusual punishment
in violation of s. 12 of the Charter of Rights and Freedoms. The Court of Appeal overturned the
sentence and held that the mandatory minimum must be imposed. The accused appealed, arguing
the minimum sentence provision was a breach of his Charter right to be free from cruel and
unusual punishment and that he should be given a constitutional exemption from the application of
the minimum sentence provision.
HELD: Appeal dismissed.

There was no basis for the conclusion that the mandatory four-year minimum sentence was cruel
or unusual punishment on the facts of this case. Since there was no s. 12 Charter violation in the
circumstances, the trial judge should have imposed the minimum four-year sentence. A
constitutional exemption was not an appropriate remedy for a s. 12 Charter violation. Any law
imposing a mandatory minimum sentence that was found to be unconstitutional in a given case
should have been declared inconsistent with the Charter and held to be of no force or effect.

R. v. Anthony-Cook, 2016 SCC 43

Appeal from a judgment of the British Columbia Court of Appeal affirming a sentencing decision
which set aside a joint submission regarding Anthony-Cook's sentence. Anthony-Cook entered a
plea of guilty to manslaughter on the basis of a joint submission as to sentence. The trial judge
rejected the joint submission and imposed a longer custodial sentence than the sentence proposed
by the Crown and the defence counsel. He also imposed a probation order for three years, even
though the joint submission did not contemplate a period of probation. The Court had to determine
whether the trial judge erred in departing from the joint submission proposed by the parties. The
trial judge expressed two concerns with the joint submission. First, he noted that counsel had
mistakenly overestimated by some six months the amount of credit to which Anthony-Cook was
entitled for time spent in pre-sentence custody. Second, the trial judge was concerned that
without a probation order, the sentence would not adequately protect the public. Applying the
"fitness of sentence" test, the trial judge rejected the joint submission. While giving it careful
consideration, he concluded that it did not give adequate weight to the principles of denunciation,
deterrence, and protection of the public. The Court of Appeal for British Columbia unanimously
dismissed Anthony-Cook's sentence appeal.

HELD: Appeal allowed.

Provincial appellate courts across the country did not agree on a uniform test that trial judges
could apply in deciding whether it was appropriate in a particular case to depart from a joint
submission. Minor variations aside, four possible tests or approaches emerged from the
submissions received by the Court. The public interest test was the proper test. It was more
stringent than the other tests proposed, and it best reflected the many benefits that joint
submissions brought to the criminal justice system and the corresponding need for a high degree
of certainty in them. Under the public interest test, a trial judge could not depart from a joint
submission on sentence unless the proposed sentence brought the administration of justice into
disrepute or was otherwise contrary to the public interest. A high threshold for departing from joint
submissions was not only necessary to obtain all the benefits of joint submissions, it was
appropriate. Counsel were required to provide the trial judge with a description of the facts
relevant to the offender and the offence in order to give him or her a proper basis upon which to
determine whether the joint submission was to be accepted. In circumstances where the trial
judge was not satisfied with the sentence proposed by counsel, an opportunity should be afforded
to counsel to make further submissions to address the judge's concerns, and the accused could
even be allowed to apply to withdraw his or her guilty plea. Setting aside that the trial judge
evaluating the proposed sentence for Anthony-Cook failed to apply the proper test, he failed to
take into account the important systemic benefits of joint submissions, and the corresponding
need for them to be reasonably certain. The trial judge treated the joint submission as though it
was a conventional sentencing hearing. He erred in doing so. The parties made a clear and firm
recommendation on the appropriate sentence. There was no basis for the trial judge to substitute
his opinion for the considered agreement of counsel. The custodial term proposed, while low, was
not so low as to bring the administration of justice into disrepute or be contrary to the public
interest. Counsel's view that the probation order was duplicative and therefore unnecessary to
protect the public was reasonable in the circumstances. The sentence jointly proposed by the
Crown and defence was not one that would bring the administration of justice into disrepute, nor
was it otherwise contrary to the public interest. Sentence: 18 months' imprisonment, with no
period of probation.
R. v. Biniaris, [2000] 1 S.C.R. 381

The accused was charged with second degree murder. The accused and S, a young offender,
participated in a senseless and violent beating which left a man dead. S threw the deceased
against a plate glass window, then propelled him to the ground, causing the deceased to strike the
back of his head on the pavement. Once the deceased was on the ground, S straddled the
deceased's thighs and began to punch the deceased in the stomach. The accused entered into the
fray, ran up to the deceased and stomped on his forehead a number of times with sufficient force
to leave tread marks from his shoes on the deceased's forehead. The Crown's expert testified that
the fatal injuries to the deceased's brain resulted from the accused's actions. The defence expert
was of the opinion that the deceased had sustained lethal brain injuries when S caused him to
strike his head on the pavement, fracturing the thickest bone in the skull. During the course of the
trial, after consulting with the defence expert and another expert, the Crown's expert also came to
share the view that the fatal injuries were attributable to the actions of S. The Crown's expert was
recalled and testified to this effect. In its closing submissions to the jury, the Crown maintained its
original theory and invited the jury to rely on its common sense and to convict the accused of
second degree murder as the perpetrator of the fatal injuries, notwithstanding the medical
evidence to the contrary. The Crown also suggested to the jury that it could find the accused guilty
of second degree murder as S's co-perpetrator or accomplice. The trial judge charged the jury that
they should proceed carefully before rejecting the ultimately unanimous expert evidence regarding
causation. The accused was convicted of second degree murder. The majority of the Court of
Appeal dismissed the accused's appeal but substituted a conviction for manslaughter on the basis
that the jury's verdict was unreasonable and unsupported by the evidence. The dissenting judge
concluded [page383] that it was not unreasonable for the jury to convict the accused of second
degree murder.

  Held: The appeal should be allowed.  

While the language of s. 686(1)(b)(i) and (3) of the Criminal Code does not contain an explicit
direction to a court of appeal to set aside a conviction, when a court of appeal dismisses the
accused's appeal from the original conviction by substituting a verdict on another count or part of
the indictment, the court of appeal implicitly sets aside the conviction by the trial court and also
implicitly affirms the new conviction on the included offence. Thus, there are co-existing rights of
appeal for both the accused, under s. 691, and the Crown, under s. 693, to this Court from a court
of appeal order for a substituted verdict.

This Court, in Yebes, decided unequivocally that the reasonableness of a verdict, within the
meaning of s. 686(1)(a)(i) of the Criminal Code, involves a decision on a question of law, and as
such gives rise to a further appeal to this Court. Whether a conviction can be said to be
unreasonable, or not supported by the evidence, imports in every case the application of a legal
standard. As a jurisdictional issue of appellate access, the application of that legal standard is
enough to make the question a question of law. The conclusion that a finding by an appeal court
that a verdict is unreasonable or cannot be supported by the evidence raises a question of law is in
harmony with the overall intent and spirit of the two-tier criminal appeal structure in the Criminal
Code, even if there are some statutory constructions that may lend support to a different
conclusion.

The test set out in Yebes continues to be the binding test that appellate courts must apply in
determining whether the verdict of the jury is unreasonable or cannot be supported by the
evidence. A dissent on the issue of whether the verdict was reasonable is a dissent on a question
of law, whether the dissent is based on the articulation of the applicable test or on its actual
application to the particular circumstances of the case. The proper test is "whether the verdict is
one that a properly instructed jury acting judicially could reasonably have rendered". In embarking
on the exercise mandated by s. 686(1)(a)(i), the reviewing court must engage in a [page384]
thorough re-examination of the evidence and bring to bear the weight of its judicial experience to
decide whether, on all the evidence, the verdict was a reasonable one. It is not sufficient for the
reviewing court to simply take a different view of the evidence than the trier of fact. Nor is it
sufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based
on its own review of the evidence. While a "lurking doubt" may be a powerful trigger for thorough
appellate scrutiny of the evidence, it is not, without further articulation of the basis for such doubt,
a proper basis upon which to interfere with the findings of the trier of fact. Rather, the appeal
court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the
verdict is inconsistent with the requirements of a judicial appreciation of the evidence.

In the present case, the "real question to be faced by the jury" was whether the accused intended
to cause the victim's death or to cause bodily harm which he knew was likely to cause death and
was reckless as to whether death ensued or not. The reasons of the majority of the Court of
Appeal focused principally on the issue of causation and did not contain a thorough review and re-
examination of the evidence as it relates to intent. The determination of the intent or foresight of a
person at the time of his participation in a homicide is often a difficult question of fact. The trial
judge thoroughly canvassed all the evidence adduced on the issue of intent in her charge to the
jury. There is nothing in the compendium of accumulated judicial experience that should cause
concern that the jury went astray in its review and assessment of the evidence. Even though it
might have been reasonable for the jury to conclude otherwise, it was perfectly reasonable for the
jury to be satisfied beyond a reasonable doubt that the accused had acted with the requisite intent
for murder. In light of his responsibility as a party, the fact that the specific blows inflicted by the
accused were not the ones which were the immediate cause of death was of no significance. In
overturning the verdict of the jury as unreasonable, the majority of the Court of Appeal was also
concerned about the change in the Crown's theory of the case and the jury's ability to appreciate
the nuances of all of this, as well as about the fact that the case was "highly emotional by reason
of these outrageous assaults". The concerns of the majority of the Court of Appeal were
insufficient to set aside the verdict of the jury as unreasonable. They were more than adequately
addressed by the trial judge, whose charge to the jury was instructive and fair. The verdict was
one that this [page385] properly instructed jury, acting judicially, could reasonably have rendered,
and it should be restored.

R. v. Walker, [2008] 2 S.C.R. 245

After a night of drinking, the accused shot and killed his common law spouse and was charged with
second degree murder. At his trial before a judge alone, the trial judge acquitted the accused of
murder but convicted him of manslaughter. In reaching his decision, the trial judge noted evidence
of intoxication and accident, and indicated that he was not satisfied beyond a reasonable doubt
that the accused either meant to cause his spouse's death or meant to cause her bodily harm
which he knew was likely to cause death. The majority of the Court of Appeal set aside the
acquittal and ordered a new trial on the charge of second degree murder. In the majority's view,
the trial judge's reasons did not make it clear whether the acquittal was based on the evidence of
the accused's intoxication, or on the evidence of his having accidentally shot his spouse or on
some combination of the two. This inadequacy was such [page246] as to preclude meaningful
appellate review of the correctness of the trial decision. The dissenting judge held that the reasons
were sufficient to permit an assessment of the acquittal based on the intoxication defence.

Held: The appeal should be allowed and the acquittal on the murder charge restored. The
conviction on the charge of manslaughter was not appealed and is maintained.
Sheppard recognized a duty to give adequate reasons on a number of broad policy grounds, and it is
apparent that these grounds apply as much to acquittals as to convictions. The Crown and the
police, no less than the accused and the public generally, have a legitimate interest in knowing the
reasons for the unsuccessful outcome. However, an appellate court is not given the power to
intervene simply because it thinks the trial court did a poor job of expressing itself. Reasons are
sufficient if they are responsive to the case's live issues and the parties' key arguments. Their
sufficiency should be measured not in the abstract, but as they respond to the substance of what
was in issue. Whether the perceived deficiencies in the trial judge's reasons undermined the
exercise of the Crown's right of appeal must be assessed in light of the limited nature of this right.
Section 676(1) of the Criminal Code only permits appeals from acquittals on questions of law alone
and contrasts with the broader right of appeal from a conviction given to an accused. [paras. 19-
21]
The adequacy of reasons must also be assessed in light of the fact an accused benefits from the
presumption of innocence. A conviction requires the prosecution to establish each of the factual
elements of the offence beyond a reasonable doubt. An acquittal, on the other hand, can rest
simply on the absence of proof. This difference does not excuse a trial judge from failure to
provide intelligible reasons for an acquittal, but it necessarily informs an assessment of whether
the reasons are so deficient as to preclude effective appellate review. [para. 22]

Here, the trial judge adequately explained his reasons for the acquittal on the second degree
murder charge. He did not find that the consumption of alcohol prevented the accused from
forming the requisite intent for murder. Rather, on a fair reading of his reasons as a whole, his
reasonable doubt as to intent was [page247] raised by what he considered to be the real
possibility that the shooting was the result of an accident in which the accused's alcohol
consumption played a significant role. While the trial judge's reasons, delivered orally, fell well
short of the ideal, they were not so inadequate that the Crown's limited right of appeal was
impaired. [paras. 23-24] [paras. 26-27]

R. v. JMH, 2011 SCC 45

Appeal by the accused from a judgment of the Ontario Court of Appeal setting aside his acquittals
and ordering a new trial. The complainant alleged that, on two occasions, the accused had non-
consensual sexual intercourse with her while she was sleeping with him in his bed. She testified
that she said no before they had unprotected intercourse. While the trial judge found that he had
no doubt that sexual intercourse had taken place, he concluded that he could not be satisfied that
the complainant was sexually assaulted without her consent. The trial judge referred to the poem
that the complainant had written shortly after the second incident and in which she described the
intercourse. The Court of Appeal found that the trial judge erred in law in his approach to the
evidence. Specifically, it concluded that he failed to consider some lines of the poem in the context
of the others, and that he failed to consider the poem in the context of the complainant's
testimony on consent. It found that this "piecemeal" approach was incompatible with the trial
judge's obligations to consider the cumulative effect of all relevant evidence and constituted an
error of law.

HELD: Appeal allowed.

The trial judge did not fail to consider the evidence as a whole. The Court of Appeal
misapprehended the record when it faulted the trial judge for not referring to the complainant's
evidence about the fact that she did not consent to the sexual activity. The judge referred to her
evidence that she had not consented on at least three occasions in his reasons. The trial judge also
gave extensive reasons as to why he was left with a reasonable doubt on the issue of consent. In
addition, there was no basis in the trial judge's reasons to conclude, as did the Court of Appeal,
that he used small excerpts from the poem out of context. The judge quoted the poem as a whole
and then drew attention to language that raised concerns in his mind, in the context of the rest of
the evidence which he had heard. The Court of Appeal erred in its conclusion that the trial judge
had taken a piecemeal approach to the evidence, and that his use of the poem had been out of
context and had tilted the balance in his decision to acquit. A fair reading of the trial judge's
reasons disclosed that he had reasonable doubt based on his consideration of all the evidence.
There were certain circumstances recognized in the jurisprudence under which alleged
shortcomings in a trial judge's assessment of the evidence constituted an error of law and thereby
allowed appellate review of an acquittal. It was an error of law to make a finding of fact for which
there was no evidence. Another such circumstance was when the legal effect of findings of fact or
of undisputed facts raised a question of law. An assessment of the evidence based on a wrong
legal principle was an error of law. Finally, the trial judge's failure to consider all of the evidence in
relation to the ultimate issue of guilt or innocence was an error of law. A reasonable doubt did not
need to be based on the evidence and could arise from an absence of evidence or a simple failure
of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt. It
was only where a reasonable doubt was tainted by a legal error that appellate intervention in an
acquittal was permitted. While it was an error of law for a trial judge to assess the evidence
piecemeal, the trial judge's reasons in this case did not disclose any such error.