CRIM - CHIAO

Codification
● Criminal Code is federal statute
● Why do courts have a substantial role in interpreting the Code?
○ Argument (1): Prospectivity
■ Jeremy Bentham - common law as “dog law”
● We wait for people to make mistakes and then punish them after,
people don’t know what the rule is until someone does it and then
we know
● Inevitably retrospective
○ Argument (2): Cesare Beccaria - moral relationship between the law-giver and
the subject of the law
■ Judges are an aristocratic class that impose their standards on other
people
■ Codify laws because we want Parliament to be in control because they
are more democratic and easier to be held accountable
■ Trynarry of the majority
● In Canada, the Criminal Code was accepted as a way of nation-building and creating
unity
○ Historically however, criminal law is very local. Norms were general and you
would be tried by a jury of those who could speak to your personal history.
● Criminal law should not be based on application of generic principles to facts (Frey)
○ if adopted, it would introduce great uncertainty into the administration of the
criminal law, leaving it to the judicial officer trying any particular charge to decide
that the acts proved constituted a crime or otherwise, not by reference to any
defined standard to be found in the Code or in reported decisions, but according
to his individual view as to whether such acts were a disturbance of the tranquility
of people tending to provoke physical reprisal.
● Common law duty to refrain from conduct which it is reasonably foreseeable could cause
serious harm to other persons is a “legal duty” within the meaning of that term in s.
180(2) (Thornton)
● Common law cannot be used to make new offences, but can be for defences, unless
Parliament expressly excludes it (Amato)

Common Nuisance
180 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of
not more than two years or is guilty of an offence punishable on summary conviction who
commits a common nuisance and by doing so
○ (a) endangers the lives, safety or health of the public, or
○ (b) causes physical injury to any person.

(2) For the purposes of this section, every one commits a common nuisance who does an
unlawful act or fails to discharge a legal duty and thereby
○ (a) endangers the lives, safety, health, property or comfort of the public; or
○ (b) obstructs the public in the exercise or enjoyment of any right that is
common to all the subjects of Her Majesty in Canada.
Case Summary

Frey v Fedoruk Facts: Fedoruk’s mother saw Frey peeping at her standing in her nightgown
in her bedroom. Mother was frightened and called to Fedoruk who seized a
butcher knife and ran outside. He shouted at the plaintiff who was then just
leaving Fedoruk’s property. The plaintiff started to run; Fedoruk chased him
about one hundred yards to a point where the plaintiff was trying to unlock
and get into his truck. Fedoruk took the plaintiff back to his house,
threatening him with the knife. Police officer arrived, formed the opinion that
the plaintiff had been “peeping”, and the plaintiff arrested and taken to the
police station where he was confined. Charged with breach of peace,
miscellaneous charge used for anything not in Criminal Code.

Application: Court finds that actions do not necessarily breach the peace
just because they cause violent reactions. While it is true that seeing a man
peeping into one's home can be horrifying, that would not necessarily make
a violent reaction a defence. Without evidence that the "peeping tom" is
attacking, a violent response would simply be revenge. Peeping was "not
otherwise criminal and not falling within any category of offences defined by
the Criminal Law," and that recognizing it as criminal now could lead to
many other legal actions, such as adultery or giving insults, being
considered criminal. In general, this would make the law less clear. If any
course of conduct is now to be declared criminal, which has not up to the
present time been declared, such declaration should be made by
Parliament and not by the Courts. Shift power in criminal law away from
courts and into Parliament.

Conclusion: Frey’s conduct did not amount to any criminal offence and did
not commit a breach of the peace.

R v Thornton Facts: Thornton tested positive for HIV antibodies and still donated blood to
the Red Cross at a clinic in Ottawa. Not an offence under the Code to
donate contaminated blood.

Application: Deeply embedded in the common law there is a broad

fundamental duty which requires everyone to refrain from conduct which
could injure another. At very least, it requires everyone to refrain from
conduct which it is reasonably foreseeable could cause serious harm to
other persons.

Conclusion: therefore, the indictment which alleges the commission of a

nuisance by the donation of blood which the appellant knew to be HIV
contaminated does allege an offence known to law.

Amato v The Facts: Amato was entrapped by undercover cop to traffic cocaine.
Queen
Rules: s7(3) - Every rule and principle of the common law that renders any
circumstance a justification or excuse for an act or a defence to a charge
continues in force and applies in respect of proceedings for an offence
 under this Act or any other Act of the Parliament of Canada, except in so far
as they are altered by or are inconsistent with this Act or any other Act of
the Parliament of Canada.

Application: As long as a new common law defence is consistent with the

Criminal Code, it should be allowed. s. 7(3) is the authority for the courts of
criminal jurisdiction to adopt, if appropriate in the view of the court,
defences, including the defence of entrapment.

Federalism
Parliament holds criminal law power through s.91(27) of the Constitution. The criminal law
power has always been made subject to two requirements: laws purporting to be upheld under
s. 91(27) must contain prohibitions backed by penalties; and they must be directed at a”
legitimate public purpose” (Hydro Quebec). The powers conferred on Parliament by s. 91(27) is
the criminal law in its widest sense. It is entirely within the discretion of Parliament to determine
what evil it wishes by penal prohibition to suppress and what threatened interest it thereby
wishes to safeguard - it just cannot be used colourably (Hydro Quebec). Furthermore, the
criminal law does not need to be limited to acts that carry some moral taint, however public
peace, order, security, health, morality are the ordinary though not exclusive ends served by
that law (Dairy Reference). Lastly, through section 92(14) of the Constitution, Provinces can
legislate in matters related to the prevention of crime (Bedard). However, Parliament can
legislate around passing enforcement powers to Provinces and do enforcement themselves,
which suggests a narrow interpretation of s 92(14) (Wetmore).

● s.91(27) - criminal law power (exercise through Criminal Code); other federal law under
criminal law power (CDSA, FDA)
● Criminal law power has always been made subject to two requirements: laws purporting
to be upheld under s. 91(27) must contain prohibitions backed by penalties; and they
must be directed at a” legitimate public purpose” (Hydro Quebec)
● Power conferred on Parliament by s. 91(27) is the criminal law in its widest sense. It is
entirely within the discretion of Parliament to determine what evil it wishes by penal
prohibition to suppress and what threatened interest it thereby wishes to safeguard - just
cannot be used colourably (Hydro Quebec)
○ Test for "colourability" is whether the law has a "legitimate public purpose" that
underlies the prohibition
● Criminal law does not need to be limited to acts that carry some moral taint (Dairy
Reference)
○ A crime is an act which the law, with appropriate penal sanctions, forbids; but as
prohibitions are not enacted in a vacuum, we can properly look for some evil or
injurious or undesirable effect upon the public against which the law is directed.
That effect may be in relation to social, economic or political interests; and the
legislature has had in mind to suppress the evil or to safeguard the interest
threatened.
● Public peace, order, security, health, morality: are the ordinary though not exclusive
 ends served by that law (Dairy Reference)
● Provinces can legislate in matters related to the prevention of crime (Bedard)
○ However, Parliament can legislate around passing enforcement powers to
Provinces and do enforcement themselves. Suggests narrow interpretation of s
92(14) (Wetmore)

Centralization

Pro-Centralization: Anti-Centralization:
● Increase fairness ● different communities have different
● increase consistency (assuming needs and different crime rates
people know the law) ● Not reasonable for people to know the
● common morality law so doesn’t make a difference if
provinces set crimes or Parliament

Case Summary

Reference re: Facts: seeking validity of Dairy Industry Act which forbid the manufacture
Dairy Industry and import into Canada, or offer, sell or possession for sale of any
Act oleomargarine, margarine, butterine, or other substitute for butter

Application: Butter substitutes are no longer unhealthy compared to

butter as the preamble suggests (and as they were historically). Public
peace, order, security, health, morality: are the ordinary though not
exclusive ends served by that law, but did not appear to be the object of
the parliamentary action here; real purpose was economic and to give
trade protection to dairy industry in the production and sale of butter.

Conclusion: Held to be UV. Importation part was upheld under trade and
commerce power.

Switzman v Facts: Quebec Act on Communistic propaganda. Illegal to occupy house

Ebling or use it for propagating communism, and illegal to print, publish or
distribute any writing propagating communism. AG had power to close
house.

Application: real object of the Act here under consideration is to prevent

propagation of communism within the Province and to punish anyone who
does so. In pith and substance criminal law, which is beyond provinces
power.

Conclusion: UV Quebec.

Bedard v Fact: Quebec Act making it illegal to own or occupy disorderly house (ie.
Dawson prostitution, gambling etc).

Application: Act takes certain sections of Criminal Code as the basis of

 its subject matter and then proceeds to apply convictions thereunder as
the basis of its application. There are many instances of other nuisances
which can be better rectified by local legislation within the power of the
Legislatures over property and civil rights than by designating them crimes
and leaving them to be dealt with by Parliament. The cooperation of the
two legislative powers is desirable in these cases.

Conclusion: Provinces can legislate in matters related to the prevention

of crime, IV.

Note: this decision seems very similar to Switzman however the ruling is
different. Likely because SCC is concerned about prostitution, but doesn’t
think we should limit free speech.

Hydro Quebec Facts: Company charged under Canadian Environmental Protection Act.
Is environmental issues within a federal head of power? The law worked
by which once a priority listed substance was found to be toxic within the
meaning of s. 11, the Ministers could recommend adding it to the List of
Toxic Substances. After a federal-provincial advisory committee
(established under s. 6) had been given an opportunity to provide its
advice, the Governor in Council could add the substance to the list and
bring it under the regulatory control of s. 34. The Governor in Council was
given extensive powers to prescribe regulations dealing with every
conceivable aspect of the listed substance, including: the quantity or
concentration in which it can be released; the commercial or
manufacturing activity in the course of which it can be released. The Act
prescribed a number of civil and criminal penalties.

LAMER: DISSENT
● The Pith and substance is protecting the environment and human
life and health from any and all harmful substances by regulating
these substances
● The fact that a statute contains a prohibition and a penalty does
not necessarily mean that statute is criminal in nature. Regulatory
statutes commonly prohibit violations of their provisions or
regulations promulgated under them and provide penal sanctions
to be applied if violations do, in fact, occur
● Governor in Council may exempt a province from the application of
regulations made under ss. 34 or 35 if that province already has
equivalent regulations in force there. However, Provinces cannot
enact criminal legislation so deferring to provincial regulatory
schemes on the basis that they are “equivalent” to federal
regulations made under s. 34(1) creates a strong presumption that
the federal regulations are themselves regulatory
● Distinguish from RJR:
○ RJR contained broad prohibitions, tempered by certain
exemptions. Here: there is no general prohibition → The aim
of these provisions is not to prohibit toxic substances or any
aspect of their use, but simply to control the manner in
 which these substances will be allowed to interact with the
environment.
○ RJR also addressed narrow field of activity, whereas here
there is a broad area of concern
● There should be shared jurisdiction over environment
● UV Feds: Lamer = traditionalist

LA FOREST (majority):
● power conferred on Parliament by s. 91(27) is the criminal law in its
widest sense. it is entirely within the discretion of Parliament to
determine what evil it wishes by penal prohibition to suppress and
what threatened interest it thereby wishes to safeguard - just
cannot be used colourably
○ test for "colourability" is whether the law has a "legitimate
public purpose" that underlies the prohibition → protection of
the environment constitutes such a legitimate purpose.
■ It is a subject that has international implications yet
it does not preclude the provinces from regulating in
the matter along with the federal government.
● Parliament may validly enact prohibitions under its criminal law
power against specific acts for the purpose of preventing pollution

Conclusion: IV Feds.
Traditionalist approach: will make it challenging for Parliament to pass any
laws.

R v Wetmore Facts: charge under Food and Drugs Act under section restricting drug
manufacturing. Under Act, if charged, was liable on summary conviction
and could face a fine or imprisonment.

LASKIN (majority): Food and Drugs Act goes beyond mere prohibition to
bring it solely within s. 91(27) but that it also involves a prescription of
standards, including labelling and packaging as well as control of
manufacture. The ramifications of the legislation, encompassing food,
drugs, cosmetics and devices and the emphasis on marketing standards
seem to me to subjoin a trade and commerce aspect beyond mere
criminal law alone. However, the first purpose (protecting physical health
and safety of public) and third (protecting the moral health of the public)
categories of Act fall under criminal law power. Parliament can legislate
around passing enforcement powers to Provinces and do enforcement
themselves. Suggests narrow interpretation of s 92(14).

Conclusion: AG of Canada is authorized to prosecute violations of federal

statutes and Parliament can pass legislation authorizing the AG to
prosecute these violations.

DICKSON (dissent): Authority over the administration of criminal justice,

including the Constitution, maintenance and organization of courts of
criminal jurisdiction, is given to the provinces by s. 92(14). Provinces have
 exclusive jurisdiction under s. 92(14) to enforce legislation enacted under
s. 91(27) and generally to administer the criminal justice system, including
authority to prefer indictments and conduct criminal proceedings.
Constitutionally required that the Code is set nationally and enforced
locally; Criminal Code is a set of powers that Parliament can pass to
Provinces for enforcement. Dickson’s argument rests on how narrowly or
broadly you interpret 92(14).

Conclusion: s. 2(2) of the Criminal Code is ultra vires insofar as it

purports to give the Attorney General of Canada authority to institute and
conduct proceedings in respect of any Act of Parliament that depends
solely on the criminal law power in s. 91(27).

Causation
To prove causation, the Crown must establish that the accused's action was at least a
contributing cause of death, outside the de minimis (non-trivial) range (Smithers). What the
Crown must show is that the accused is a “but for” cause that was also a significant (proximate
cause) contribution to the outcome.

In some cases, there may be a potential novus actus interveniens. The general question of this
inquiry is: were the dangerous, unlawful acts of the accused a significant contributing cause of
the victim’s death? (Maybin) One can also draw on the lenses of reasonable foreseeability and
voluntariness, but neither are determinative. These approaches grapple with the issue of the
moral connection between the accused’s acts and the death; they acknowledge that an
intervening act that is reasonably foreseeable to the accused may well not break the chain of
causation, and that an independent and intentional act by a third party may in some cases make
it unfair to hold the accused responsible. These approaches may be useful tools depending
upon the factual context. However, the analysis must focus on first principles and recognize
that these tools are analytical aids and do not alter the standard of legal causation or substitute
new tests. Even in cases where it is alleged that an intervening act has interrupted the chain of
legal causation, the causation test remains whether the dangerous and unlawful acts of the
accused are a significant contributing cause of the victim’s death.

● In considering the issue of causation in homicide, must distinguish between causation as

a question of fact and causation as a question of law. The factual determination is
whether A caused B. The answer to the factual question can only come from the
evidence of witnesses. It has nothing to do with intention, foresight or risk. In certain
types of homicide jurors need little help from medical experts (Smithers)
● Test: Crown must establish that the accused's action was at least a contributing cause of
death, outside the de minimis (non-trivial) range (Smithers)
○ Were the dangerous, unlawful acts of the accused a significant contributing
cause of the victim’s death? (Maybin)
○ What the Crown must show is that the accused a “but for” cause that was also a
significant contribution to the outcome
 ○ Serious bodily harm was significant and was more than de minimis; proximate
cause
■ Not background condition
● ‘Beyond de minimis:’ meant to be a low bar for causation
● But-for = factual cause
○ Start with this, then look at:
■ proximate cause = legal
● Novus Actus Interveniens:
○ Both below lenses are useful, but neither is necessary nor determinative. Even in
cases where it is alleged that an intervening act has interrupted the chain of legal
causation, the causation test remains whether the dangerous and unlawful acts
of the accused are a significant contributing cause of the victim’s death (Maybin)
■ Smithers test for causation still controls
○ Intentional, independent act lens: Any act by a third party is a novus actus
interveniens only if it was purely voluntary. Acts of self preservation are not
voluntary, and neither are acts done in the execution of a legal duty. (Pagett)
■ When the intervening acts are those of a person, exercising his or her
free will, the focus is often on the independence of the actions (Maybin)
■ Did the act of the accused merely set the scene, allowing other
circumstances to (coincidentally) intervene, or did the act of the accused
trigger or provoke the action of the intervening party? (Maybin)
○ Reasonable foreseeability lens: an act is seen as a novus actus interveniens
(intervening act) which breaks the causal chain only if it was not reasonably
foreseeable (Roberts)
■ time to assess reasonable foreseeability is at the time of the initial assault
(Maybin)
■ When the intervening acts are natural events, they are more closely tied
to the theory of foreseeability, and the courts ask whether the event was
“extraordinary” (Maybin)
■ However consider: general nature of the intervening acts and the
accompanying risk of harm that needs to be reasonably foreseeable -
acts and the harm that actually transpired flowed reasonably from the
conduct of the appellants. (Maybin)
● Thin skull principle: defendant liable for the plaintiff's injuries even if the injuries are
unexpectedly severe owing to a pre-existing condition (Smithers)
○ Must take victim as they are (including non-physical conditions such as religion)
(Blaue)

Case Summary

R v Smithers Facts: Hockey game where a fight breaks out. Appellant was subject to
racial insults by Cobby. The appellant made repeated threats that he was
going to “get” Cobby. The appellant caught up with Cobby outside after the
game and directed one or two punches to Cobby’s head. Cobby’s
 teammates grabbed the appellant and held him. Cobby, who had taken no
steps to defend himself, was observed to double up and stand back while
the appellant struggled to free himself from those holding him. While
Cobby was thus bent over, the appellant delivered what was described as
a hard, fast kick to Cobby’s stomach area. Cobby died. Expert opinion was
that death was due to the aspiration of foreign materials present from
vomiting. Consensus among the doctors was that spontaneous aspiration
was a rare and unusual cause of death in the case of a healthy teenager
such as Cobby.

Application: There was a very substantial body of evidence, both expert

and lay, before the jury indicating that the kick was at least a contributing
cause of death, outside the de minimis (non-trivial) range, and that is all
that the Crown was required to establish. It was contended that the burden
on the Crown was to prove beyond a reasonable doubt that the kick
caused both the vomiting and the aggravated condition of aspiration. Court
rejects this argument: person commits homicide, according to s. 205(1) of
the Code, when directly or indirectly, by any means, he causes the death
of a human being. Once evidence had been led concerning the
relationship between the kick and the vomiting, leading to aspiration of
stomach contents and asphyxia, the contributing condition of a
malfunctioning epiglottis would not prevent conviction for manslaughter.
Must take victim as they find them - even if chances of them dying was
very low.

Conclusion: Smithers is guilty.

Pagett v the Facts: Accused, who was armed with a shotgun and cartridges, shot at
Queen police officers who were attempting to arrest him for various serious
offences. The appellant had with him a 16-year-old girl who was pregnant
by him, and against her will used her body to shield him from any
retaliation by the officers. The officers in fact returned the appellant’s fire
and as a result the girl was killed.

Application: The Court rejects the proposition that no man should be

convicted of homicide unless he himself, or another person acting in
concert with him, fired the shot which was the immediate cause of the
victim’s death. A reasonable act performed for the purpose of self-
preservation, being of course itself an act caused by the accused’s own
act, does not operate as a novus actus interveniens. Free, deliberate,
informed independent actions break causation, except when action results
from self-preservation or a legal duty.

R v Roberts Facts: Girl met Accused at party, and left with him in his car. Accused
tried to get Girl to take her clothes off, and after some fighting she was
able to jump out of the car and run to a nearby house. Accused claimed
Girl led him on; she was game and then changed her mind. In trial, the jury
had to decide what evidence to accept from the girl herself and from the
appellant. Jury found there to be assault occasioning actual bodily harm.
 Application: The test for whether a victim’s own acts were not to be
considered capable of breaking the chain of causation was: whether the
act was a natural result of what the alleged assailant said and did, in the
sense that it was something that could reasonably have been foreseen as
the consequence of what he was saying or doing? If the victim’s act was
so unexpected that it could not be foreseen by a reasonable man, then the
act would be a remote and unreal consequence of the assault and as such
would then break the chain of causation. The victim jumping out of the car
was reasonably foreseeable, as an attempt to escape risk of further
assault or worse.

Conclusion: trial judge was not misdirected. Accused is convicted.

R v Blaue Facts: Appellant attacked girl with knife, inflicting serious wounds, after
she refused to have sex with him. Serious injury caused that required
surgery. Would need to have a blood transfusion, but was a JW. She died
because of her refusal to have a blood transfusion. Did so consciously and
deliberately.

Application: It has long been the policy of the law that those who use
violence on other people must take their victims as they find them. This in
our judgment means the whole man, not just the physical man. It does not
lie in the mouth of the assailant to say that his victim's religious beliefs
which inhibited him from accepting certain kinds of treatment was
unreasonable. The question for decision is what caused her death. The
answer is the stab wound. The fact that the victim refused to stop this end
coming about did not break the causal connection between the act and
death. Does not matter if refusal was reasonable or not (protected
religious choice). Novus exception here based on thin skull issue.

Conclusion: Appellant conviction upheld.

R v Maybin Facts: Victim annoyed the accused by touching a pool ball on the
appellant’s table. Accused then grabbed the victim and punched his face
and head. Other accused, brother, also helped in this. Bouncer, upon
hearing who started the fight, struck the victim in the back of the head.
Victim subsequently died as a result of bleeding in the brain.

Application: If the 3rd party’s acts are directly linked to and are not
independent of the accused act’s and either (1) don’t overwhelm the
original actor or (2) produce a harm that was reasonably foreseeable at
the time of the accused actions’ even though the exact manner is not
foreseeable, then legal causation is likely met. The accused’s 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. Even if the accused’s actions were not the direct and
immediate cause of the victim’s death, but for their actions, the victim
would not have died. In terms of reasonable foreseeability of effects of
actions, we should instead look at the general nature of the intervening
acts and the accompanying risk of harm that needs to be reasonably
 foreseeable. Chain of causation should not be broken only because the
specific subsequent attack by the bouncer was not reasonably
foreseeable: time to assess reasonable foreseeability is at the time of the
initial assault. If the physical intervention of the bar staff, with its risk of
non-trivial harm was objectively foreseeable, then the specific details of
that intervention did not themselves need to be foreseen. Did the act of the
accused merely set the scene, allowing other circumstances to
(coincidentally) intervene, or did the act of the accused trigger or provoke
the action of the intervening party? Must be latter: dangerous and unlawful
acts of the accused must be a significant contributing cause of the victim’s
death. Agrees with the Court of Appeal that based upon the trial judge’s
findings of fact, it was open to him to conclude that the general nature of
the intervening act and the accompanying risk of harm were reasonably
foreseeable; and that the act was in direct response to the appellants’
unlawful actions. The judge could have concluded that the bouncer’s
assault did not necessarily constitute an intervening act that severed the
link between Timothy and Matthew Maybin’s conduct and the victim’s
death, such that it would absolve them of moral and legal responsibility.
The trial judge could have found that the appellants’ actions remained a
significant contributing cause of the death. Overall, it was open to the trial
judge to find that the appellants caused the death.

Conclusion: Accused caused the death → unforeseeable or independent

action does not necessarily break causation

Omissions
In Canada, there is no duty to rescue. The law, under s 217, does criminalize omissions, only
where there is a basis of some pre-existing legal duty, often imposed by statute or common law
(Beardsley). The two primary ways of finding someone guilty of an omission are through special
relationships, where there are pre existing duties that the law has created or if you promise that
you will effectuate a rescue, where you have induced reliance and a quasi-contractual
commitment.

s.217: Every one who undertakes to do an act is under a legal duty to do it if an omission to
do the act is or may be dangerous to life.
● To find a charge under s. 217 of the Criminal Code, first must be a finding of an
undertaking

● Duty neglected must be a legal duty and not a mere moral obligation (Beardsley)
○ Must be duty imposed by law or by contract and the omission to perform the duty
must be the immediate and direct cause of death
● 2 primary ways of finding someone guilty of an omission:
○ (1) Special relationships → pre existing duties that law has created OR
○ (2) If you promise that you will effectuate a rescue, then you have to rescue
 ■ But only if designed to induce reliance and quasi-contractual
● No duty to rescue in Canada (but there are in other jurisdictions - see: ‘Some duty to
rescue statues’

Case Summary

People v Facts: Respondent convicted of manslaughter. Was drinking excessively

Beardsley with a female acquaintance while wife was out of town. Woman ordered
camphor and morphine tablets. Woman took morphine and when the
respondent saw, he struck the box from her hand and crushed several
with his foot but she still picked up two and swallowed them. Respondent
asked the young boy who had delivered the morphine to help him move
the woman into the basement into a room occupied by Mr Skoba. The
Respondent was too drunk to help with this. Respondent asked Skoba to
help look after her. Woman died.

Application: Not correct to say that every moral obligation is a legal duty;
but every legal duty is founded upon a moral obligation. Deceased woman
went to the house voluntarily, and so continued to remain with him and
also had ample experiences in such affairs. The fact that this woman was
in the respondent's house created no legal duty as exists in law and is due
from a husband towards his wife (may have been different if they were
married).

Conclusion: Defendant acquitted.

R v Browne Facts: Browne was charged with criminal negligence causing the death of
Audrey Greiner by failing “to render assistance to her by failing to take her
immediately to the hospital after undertaking to render such assistance.
They were drug dealers, and probably boyfriend and girlfriend. Audrey
swallowed a plastic bag containing crack cocaine to avoid detection by
police when the pair was stopped that night. After, they tried but could not
get her to throw up the bag, then spent almost an hour driving around
looking for their drug partner to warn about the police raid. Then, they
went back to Dexter’s family home. While making food, Browne left
Audrey alone, and after 15 minutes went back to find her shaking and
sweating. Called a taxi and took her to hospital. Audrey died.

Application: Legal duty would not arise from relationship between parties
as it does in s.215 which creates legal duties between spouses, between
parents and children, and between dependants and their caregivers.
Given that a conviction for criminal negligence causing death carries a
maximum penalty of life imprisonment, the threshold definition must be
sufficiently high to justify such serious penal consequences. Nothing short
of such a binding commitment can give rise to the legal duty contemplated
by s. 217, and the evidence in this case does not disclose any undertaking
of a binding nature. There was no evidence that the appellant knew that
Audrey Greiner was in a life-threatening situation until 2:00 a.m., when he
immediately phoned for a taxi. He said he would take her to the hospital
 when he saw the severity of her symptoms, and he did. There is no
evidence either that a 911 call would have resulted in a significantly
quicker arrival at the hospital at that hour, or even that had she arrived
earlier, Audrey Greiner’s life could have been saved.

Conclusion: There being no undertaking within the meaning of s. 217 of

the Criminal Code, there can be no finding of a legal duty. There being no
duty, there can be no breach contrary to s. 219 of the Code.

Homicide
There are three main provisions that one could be charged under for homicide: s229(a)(i);
s229(a)(ii) and s229(b).
(a)(i) → The mens rea requirement under s.229(a)(i) is ‘means to,’ which is equivalent to Model
Penal Code ‘purpose’ (ie. killing of person was the accused’s conscious object).
(a)(ii) → The mens rea standard under s.229(a)(ii) is subjective, and requires the requisite
knowledge that the intended injury was likely to cause death. It is not sufficient that the accused
foresee simply a danger of death, the accused must foresee a likelihood of death flowing from
the bodily harm that he is occasioning the victim (Cooper).
(b) → For s.229(b), the mens rea is means to cause bodily harm and knows that bodily harm
was likely to cause death (requires subjective foresight). This provision is applicable where an
accused kills a different person than they initially intended to kill.

Mens Rea Requirements from Model Penal Code:

Purposely: A person acts purposely with respect to a material element of an offense when:
○ (i) if the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result;
and
○ (ii) if the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes that they exist.
○ Ie. it is your conscious object, the thing you were trying to bring about

Knowingly: A person acts knowingly with respect to a material element of an offense when:
○ (i) if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that such
circumstances exist; and
○ (ii) if the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result.
○ Ie. practically certain that something will happen

Recklessly: A person acts recklessly with respect to a material element of an offense when
he consciously disregards a substantial and unjustifiable risk that the material element exists
or will result from his conduct. The risk must be of such a nature and degree that, considering
the nature and purpose of the actor's conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-abiding person
would observe in the actor's situation.
○ Ie. Conscious disregard: some level of cognition on part of excused
○ Substantial and unjustifiable risk → vs. practically certain (knowingly)
■ Difference between recklessly and knowingly is difference in degree

Negligently: A person acts negligently with respect to a material element of an offense when
he should be aware of a substantial and unjustifiable risk that the material element exists or
will result from his conduct. The risk must be of such a nature and degree that the actor's
failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor's situation.
○ Ie. Objective fault

s.229: Culpable homicide is murder

● (a) where the person who causes the death of a human being
○ (i) means to cause his death, or
○ (ii) means to cause him bodily harm that he knows is likely to cause his death,
and is reckless whether death ensues or not;
● (b) where a person, meaning to cause death to a human being or meaning to cause
him bodily harm that he knows is likely to cause his death, and being reckless whether
death ensues or not, by accident or mistake causes death to another human being,
notwithstanding that he does not mean to cause death or bodily harm to that human
being;

● Liability under s.229(a)(i): ‘means to’ = Model Penal Code ‘purpose’

● Liability under s. 229(a)(ii) is subjective, and the requisite knowledge that the intended
injury is likely to cause death must be brought home to the accused subjectively. An
intention to cause bodily harm that the offender ought to have known was likely to cause
death is merely evidence from which, along with all the other circumstances, the jury
may infer that the accused actually had the requisite intention and knowledge required
by the section. It does not, however, constitute the requisite state of mind (Simpson)
○ The intent that must be demonstrated in order to convict under s.212(a)(ii) has
two aspects (Cooper)
■ (a) subjective intent to cause bodily harm;
■ (b) subjective knowledge that the bodily harm is of such a nature that it is
likely to result in death. It is only when those two elements of intent are
established that a conviction can properly follow.
■ One who causes bodily harm that he knows is likely to cause death must,
in those circumstances, have a deliberate disregard for the fatal
consequences which are known to be likely to occur. That is to say he
must, of necessity, be reckless whether death ensues or not.
 ○ requires actual subjective knowledge that the bodily harm was likely to cause
death: it is the matter of the actual psychological state of the accused at the time
○ it is not sufficient that the accused foresee simply a danger of death, the accused
must foresee a likelihood of death flowing from the bodily harm that he is
occasioning the victim (Cooper)
● Liability under s.229(b): means to cause death or bodily harm and knows that bodily
harm was likely to cause death (subjective foresight)
○ Kills a different person than you intended to kill
● Legal principles relevant to determining the constitutionality of a mens rea requirement:
(Fontaine)
○ 1. The stigma attached to the offence, and the available penalties requiring a
mens rea reflecting the particular nature of the crime;
○ 2. Whether the punishment is proportionate to the moral blameworthiness of the
offender; and
○ 3. The idea that those causing harm intentionally must be punished more
severely than those causing harm unintentionally.
○ Thus, the guiding principle underlying the constitutional analysis of fault in
criminal law is that the state cannot punish a person as morally blameworthy
unless such blameworthiness has been established. The gravity of the conduct
itself, as well as the moral blameworthiness of the offender, must be analyzed in
order to determine the extent of the social stigma to be attached to the crime.
● Simultaneous Principle: not only must the guilty mind, intent or mens rea be present, it
must also be concurrent with the impugned act (Cooper)
○ However, may not need to be concurrent throughout. The determination of
whether the guilty mind or mens rea coincides with the wrongful act will depend
to a large extent upon the nature of the act.
○ If death results from a series of wrongful acts that are part of a single transaction
then it must be established that the requisite intent coincided at some point with
the wrongful acts.
Case Summary

R v Simpson Facts: Accused on two counts of attempted murder.

Count 1 → Cathy left the tavern to meet her boyfriend, as she was walking,
s.229(a)(ii) passed a man who grabbed her, pushed him, he punched her and then she
began running away from him. Grabbed her by hair and pulled her down,
hitting her and asking for a knife back. When she told him she did not have
it, he said he wanted to ‘fuck.’Cathy was screaming and trying to escape.
Car drove up and stopped at corner, so man got up, smashed her face
against the sidewalk and ran away

Count 2 → Beatrice went to Village Pump where appellant came over to her
table. Left the tavern together and went back to his apartment. Appellant
walked over naked and said because he bought her a beer, she had to
come across. She was scared, and removed her clothing and they had sex/
 Got dressed and left through back staircase. As she was near leaving the
building, hair pulled back and lost consciousness. Suffered a wound by
knife, appellant says to her: “you will never talk again.”

Application: Trial judge incorrectly substituted an objective mens rea for

229(a)(ii), when it actually requires actual subjective knowledge that the
bodily harm was likely to cause death. However, no reasonable jury would
have found that A did not know stabbing V in the neck could kill her. "You
will never talk again," was consistent only with an intent to kill or an intent to
inflict bodily harm which the appellant knew was likely to cause death, being
reckless whether death ensued or not. For Cathy, order a retrial.

Conclusion: Appeal dismissed on count 2, allowed on count 1.

R v Cooper Facts: Respondent, Lyndon Cooper, and the deceased, Deborah Careen at
one time had been friends and lovers. Spent night together at a bar, drank a
s.229(a)(ii) lot. Cooper drove deceased to a secluded parking lot. Engaged in
consensual sexual activity. Began to argue and the deceased struck
respondent, hit back and grabbed her by throat and shook her. Had no
recollection of death but woke up beside her. Expert evidence: deceased
struck twice but this didn’t kill her. Death caused by one handed manual
strangulation. Drunk victims are more likely to die from asphyxiation than
sober one.

Application: not only must the guilty mind, intent or mens rea be present, it
must also be concurrent with the impugned act (simultaneous principle). Yet,
it is not always necessary for the guilty act and the intent to be completely
concurrent. In order to obtain a conviction the Crown must demonstrate that
the accused intended to cause bodily harm that he knew was ultimately so
dangerous and serious that it was likely to result in the death of the victim,
but that intent need not persist throughout the entire act of strangulation.
The determination of whether the guilty mind or mens rea coincides with the
wrongful act will depend to a large extent upon the nature of the act. When
Cooper testified that he seized the victim by the neck, it was open to the jury
to infer that by those actions he intended to cause her bodily harm that he
knew that was likely to cause her death. Since breathing is essential to life, it
would be reasonable to infer the accused knew that strangulation was likely
to result in death. It could be reasonably inferred by the jury that when the
accused grabbed the victim by the neck and shook her that there was, at
that moment, the necessary coincidence of the wrongful act of strangulation
and the requisite intent to do bodily harm that the accused knew was likely
to cause her death. Cooper was aware of these acts before he “blacked
out.” It was sufficient that the intent and the act of strangulation coincided at
some point. It was not necessary that the requisite intent continue
throughout the entire two minutes required to cause the death of the victim.
In order to obtain a conviction under s. 212(a)(ii) the Crown must prove that
the accused caused and intended to cause bodily harm that he knew was
likely to cause the death of the victim. If death results from a series of
wrongful acts that are part of a single transaction then it must be established
that the requisite intent coincided at some point with the wrongful acts.
 Conclusion: conviction restored.

R v Fontaine Facts: Accused wanted to commit suicide and during the course of a high-
speed chase, deliberately drove his car into a parked semi-trailer in the
s.229(b) oncoming lane. One passenger in the accused’s car died.

Application: Section 229(b) is ambiguous in its interpretation as to whether

it is intended to be limited to the killing of another or to include the killing of
oneself. Where ambiguity is present in a piece of penal legislation, the
statutory interpretation rule of strict construction should be applied because
of the potential for serious interference with individual rights. The resolution
of the ambiguity in favour of the accused in this case is reinforced when one
considers the present differing social attitudes towards murder as opposed
to suicide. Suicide is normally seen as an act of desperation, often
impulsive, and the act of a person who is ill and in need of treatment. By
removing the crime of attempted suicide from the Criminal Code, Parliament
recognized society’s desire to see individuals who attempt suicide treated
instead of criminalized.

Conclusion: where one act is legal and the other act is illegal, the transfer
of intent from one to another should not necessarily follow. There are good
policy reasons to differentiate between the two in terms of culpability.
Suicide is not currently an offence pursuant to the Criminal Code. We can
contrast this with murder, which is recognized as the most serious crime in
our Criminal Code and a crime that requires specific intent.

Note: the Court here uses the rule of lenity. However, this is mostly just
marketing, and doesn't actually show up in cases often. Generally speaking,
Courts will do everything else before turning to this rule to reason their way
into saying there is no ambiguity.

Second-degree Murder
Second-degree murder is based on the fact that if you are doing something that is seriously
wrongful, and you cause someone’s death while doing it, you chose to do that unlawful thing
and now it does not lie in your mouth to complain about. The underlying principle is that you
shouldn’t be doing it in the first place. Section 229(c) is the relevant provision for this crime.
There are two basic components to s. 229(c): (1) the accused was pursuing an unlawful object
(defined as conduct which, if prosecuted fully, would amount to a serious crime that is an
indictable offence requiring mens rea (Vasil) and (2) the accused pursued an unlawful object
(other than causing death/bodily harm), knowing that death was likely (Shand). Vague
realization that death is possible will not be sufficient and similarly, if the dangerous act was
done as a reaction, and out of panic, this may tend to show that the required subjective foresight
of death was not present at the time that the act was committed. It has to be understood as
being something more than an awareness of risk or a possibility or chance of death (Shand),
and the mens rea requirement is subjective.
s229 Culpable homicide is murder
● (c) if a person, for an unlawful object, does anything that they know is likely to cause
death, and by doing so causes the death of a human being, even if they desire to
effect their object without causing death or bodily harm to any human being.

● Two ways to rationalize felony murder: (Serne)

○ Transfer of intent: certain types of activities, such as armed robberies, are so
inherently dangerous to life and known that if you choose to engage in the
activity then the court will constructively attribute intent or knowledge based on
how inherently dangerous the conduct was
○ Deterrence: some activities are so inherently dangerous to life that we want to
deter people from doing them
● Two basic components to s. 229(c).
○ The first requires that the perpetrator be pursuing an unlawful object. An unlawful
object is conduct which, if prosecuted fully, would amount to a serious crime that
is an indictable offence requiring mens rea. This is ultimately what the accused
sets out to do, their purpose or goal (Vasil)
○ The second is that the accused pursued an unlawful object (other than causing
death/bodily harm), knowing that death was likely (Shand)
■ if the unlawful object was the death of the victim or to cause bodily harm
to the victim knowing death was likely, s. 229(c) would not apply.
■ The accused must intentionally commit a dangerous act pursuant to the
unlawful act.
● Vague realization that death is possible will not be sufficient.
● Similarly, if the dangerous act was done as a reaction, and out of
panic, this may tend to show that the required subjective foresight
of death was not present at the time that the act was committed. It
likely has to be understood as being something more than an
awareness of risk or a possibility or chance of death (Shand)
■ Subjective fault - The Crown must prove that, when the dangerous act
was committed, the person knew that death was likely

Case Summary

R v Serne Facts: Serne and Goldfinch indicted for murder of the sons of Serne by
willfully setting a house and shop on fire. Serne was in a state of pecuniary
embarrassment and put into the house furniture and other goods of very
little value. Before fire, he insured the life of his boy who had mental
differences, and insured stock of the house, furniture and rent (within a
month of fire). The evidence showed that the fire was set in a number of
locations within the house and shop and it was helped along by strategically
placed inflammables. Evidence also indicated that both men were seen
together in the shop just before the fire broke out and there were two fires
started on each floor.
 Application: Any act that is known to be dangerous and likely to cause
death, if done for the purpose of committing a felony which causes death,
amounts to murder. Two ways to rationalize felony murder: (1) Transfer of
intent: certain types of activities, such as armed robberies, are so inherently
dangerous to life and known there as that if you choose to engage in the
activity then the court will constructively attribute intent or knowledge based
on how inherently dangerous the conduct was and (2) Deterrence: some
activities are so inherently dangerous to life that we want to deter people
from doing them.

R v Vasil Facts: Vasil, a chronic alcoholic, set fire to the house where he lived with
one Mrs. Gilchrist and her two young children. Prior to these events, Vasil,
who became unemployed shortly after going to live with Mrs. Gilchrist, had
difficulty accepting the role reversal that resulted from the fact that, since
Mrs. Gilchrist was working steadily, he was expected to assume many of the
domestic responsibilities in the household; furthermore, he was very
sensitive of the fact that Mrs. Gilchrist was paying for the living and dining
room furniture he had purchased in the autumn of 1975. Vasil and Gilchrist
went to a party together, where Vasil was drinking before and during dinner
party. Vasilt became upset with Mrs. Gilchrist through the course of the
evening. He asked her to leave a few times but she wished to remain until
the food was served. He testified that he saw her dancing very closely with
another person on one occasion and was upset because he was unable to
locate her from time to time. Eventually, Vasil ended up leaving alone.
During the evening he called back to the party owner’s home at least three
times, mentioning on one occasion to Mrs. Gilchrist that he had driven the
babysitter home. When Vasil asked whether Mrs. Gilchrist would come
home, she replied that she would be home shortly. Mrs. Gilchrist feared
Vasil that evening. Vasil went to the basement, opened the freezer,
disconnected it and poured a can of barbecue fluid on the meat in order to
spoil it so that no one else could eat it. He then went upstairs and did the
same to the kitchen refrigerator and to its contents. He then went to the
living room and saw the furniture that had been a sore spot for him. He
wanted to mark it in some way so as if she wanted to use it she would have
to get it recovered or replaced, and he claimed he thought they were fire
proofed. Expert witness from fire marshall was of the opinion that an
accelerant had been poured on the carpeting and ignited, but Vasil denies
this. He went back to the party and later called the police department, telling
police that he opened the fridge and the freezer and poured barbecue fluid
over everything and set it alight, then drove around the block several times
to make sure it was going good, that the windows had a red glow. The
children were in the house, and died.

Application: while the test under s. 212(c) is objective, and the behaviour of
the accused is to be measured by that of the reasonable man, such a test
must nevertheless be applied having regard not to the knowledge a
reasonable man would have had of the surrounding circumstances that
allegedly made the accused’s conduct dangerous to life but to the
knowledge the accused had of those circumstances. As a result,
drunkenness, though not relevant in the determination of what a reasonable
 man, with the knowledge the accused had of those circumstances, would
have anticipated, is relevant in the determination of the knowledge which the
accused had of those circumstances. Since he was drunk, he did not know
that anyone was sleeping inside and that any reasonable person who
thought a house was empty would not have thought death was likely to
ensue.

Note: Lamer’s first attempt at requiring subjective MR for any ‘murder’ crime.

Rv Facts: Vaillancourt was convicted of second degree murder. He then

Vaillancourt challenged the constitutional validity of s. 213(d), alone and in combination
with s. 21(2), under the Charter. Vaillancourt and his accomplice committed
an armed robbery in a pool hall. Vaillancourt was armed with a knife and his
accomplice with a gun. During the robbery, V remained near the front of the
hall while the accomplice went to the back. There was a struggle between
the accomplice and a client. A shot was fired and the client was killed. The
accomplice managed to escape and has never been found. In the course of
his testimony, V said that he and his accomplice had agreed to commit this
robbery armed only with knives. On the night of the robbery, however, the
accomplice arrived at their meeting place with a gun. V said that he objected
because on a previous armed robbery his gun had discharged accidentally,
and he did not want that to happen again. He insisted that the gun be
unloaded. The accomplice removed three bullets from the gun. V then went
to the bathroom and placed the bullets in his glove. The glove was
recovered by the police at the scene of the crime and was found at trial to
contain three bullets. V testified that at the time of the robbery he was
certain that the gun was unloaded.

Application: At no point does the Crown have to prove that a reasonable

person in Vaillancourt’s position ought to have known death was likely: there
is pure strict liability.

Conclusion: s230 is held to be unconstitutional because it does not require

objective fault.

Note: Lamer’s next attempt at requiring subjective fault for murders. He

made it so murder at least requires objective fault. This is also the
introduction of the use of ‘stigma crimes:’ Lamer says theft and murder both
are stigmatizing.

R v Martineau Facts: Martineau and his friend, Tremblay, had set out one evening armed
with a pellet pistol and rifle respectively. Martineau testified that he knew
that they were going to commit a crime, but that he thought it would only be
a “b and e”. After robbing the trailer and its occupants, Martineau’s friend
Tremblay shot and killed the McLeans. Tremblay said he killed them
because they saw their faces, although Martineau was wearing a mask so
they couldn’t have seen his face anyways.

Application: LAMER
 ● in a free and democratic society that values the autonomy and free
will of the individual, the stigma and punishment attaching to the
most serious of crimes, murder, should be reserved for those who
choose to intentionally cause death or who choose to inflict bodily
harm that they know is likely to cause death
● Murder has long been recognized as the “worst” and most heinous of
peace time crimes. It is, therefore, essential that to satisfy the
principles of fundamental justice, the stigma and punishment
attaching to a murder conviction must be reserved for those who
either intend to cause death or who intend to cause bodily harm that
they know will likely cause death
● minimum mens rea for murder as at least subjective foresight of
death
● It is a PFJ that unless the Crown can show BRD that there is
subjective MR, one cannot be convicted of a ‘stigma’ crime, such as
murder

Conclusion: all of s213 is unconstitutional.

Application: DISSENT (LHD)

● 230a captures people who intended to commit a crime and commit a
harm. As there are two subjective requirements already, this is
sufficient for a finding that someone is a murderer, so long as there
is also objective foreseeability
● MR is not the only thing that stigma should track and being branded
a manslaughterer in the public’s eyes is still highly stigmatizing

Note: What changes occur between Vaillancourt and Martineau? New

justices on Court in Martineau, and thus a swing vote has changed. SCC is
a political institution, and this is an instance of that. Lamer is really drawn to
the idea that the criminal law is about punishing people for choosing evil.
The label ‘murder’ means something very specific: that you made a decision
to end another person’s life. Lamer is a well known
traditionalist/subjectionist. Lamer doesn’t cite any evidence for his argument
about stigma, so impliedly referring to stigma as what he imagined the
ordinary Canadian to have; not an empirical claim. On the other hand, LHD
is generally on the more conservative side of the spectrum. Lamer has
fixated on the expressive moral judgement and neglected the other function
of the criminal law (ie. criminal law as deterrent).

R v Shand Facts: Shand accompanied two friends to a drug dealer's home with the
intention of stealing some marijuana. At one point, Shand produced a gun
and one of the persons in the home was shot and killed. One of Shand's
companions claimed the shot occurred accidentally when the victim
approached Shand while the pair argued. Another person present in the
home claimed that Shand threatened the home's occupants with the gun
before striking the drug dealer in the face with the gun, pointing the gun at
the victim, and firing. The drug dealer told police that he heard the gun
accidentally discharge as Shand struck him on the head with it, but testified
in court that Shand grabbed him and pointed the gun at his head, causing
 him to stumble, and that the gun went off as he fell. The drug dealer's
girlfriend gave a similar statement to police to her boyfriend's, later changing
her story in court because she noted there were no bumps or bruises on
Shand's head to show that he had been struck with the gun. Shand did not
testify, but conceded that he was guilty of manslaughter and possession of a
loaded, restricted firearm.

Application: The unlawful object here was robbery. It is upon entering the
basement bedroom that the appellant committed the dangerous act. The
dangerous act was the choice to draw and use the gun in order to subdue
the occupants of the basement bedroom and take the bag of marijuana. The
fact that the gun may have discharged accidently while being used to that
end does not remove these facts from the ambit of s. 229(c). This act was
clearly done in furtherance of the unlawful object, being the robbery.
Whether the gun was intentionally or accidentally discharged, it was the
choice to use the gun in order to subdue the occupants that caused the
death.

Conclusion: s229(c) ‘ought to know’ is unconstitutional, but otherwise

s229c is constitutional.

Manslaughter and objective fault

IF NO MURDER PROVISIONS APPLY: There are two types of manslaughter, criminal
negligence causing death and unlawful act manslaughter, which in practicality, are not all that
different, and their distinction is not important for this course. The test that must be satisfied for
a conviction in manslaughter is as follows: (1) establish actus reus – the activity must constitute
a marked departure of the care of a reasonable person in the circumstances; (2) Establish mens
rea – the activity must have been done while there was objective foresight of harm (not death)
that can be inferred from the facts. The standard is of the reasonable person in the
circumstances of the accused; (3) Establish capacity – given the personal characteristics of the
accused, were they capable of appreciating the risk of harm flowing from their conduct? (test
should only take into account incapacities; this is a very high bar) (Creighton).

s.219 (1) Every one is criminally negligent who

○ (a) in doing anything, or
○ (b) in omitting to do anything that it is his duty to do,
● shows wanton or reckless disregard for the lives or safety of other persons.

Definition of duty
(2) For the purposes of this section, duty means a duty imposed by law.

S. 222 (5) A person commits culpable homicide when he causes the death of a human being,
● (a) by means of an unlawful act;
● (b) by criminal negligence;
● (c) by causing that human being, by threats or fear of violence or by deception, to do
anything that causes his death; or
 ● (d) by wilfully frightening that human being, in the case of a child or sick person.

● Residual crime: If you can rule out murders, then it must be manslaughter
● Two types of Manslaughter: (which in practicality, are not all that different - distinction is
not important for this course)
○ Criminal negligence causing death
○ Unlawful act manslaughter: (Creighton)
■ requires an unlawful and dangerous act that a reasonable person would
foresee and that involves the risk of at least bodily harm that is neither
trivial nor transitory (must be proved in full)
■ The Crown must prove the requisite mens rea of the underlying unlawful
act → MR is objective
■ The test requires an objective foreseeability of the risk of bodily harm
which is neither trivial nor transitory, in the context of a dangerous act
● There is no need to establish a foreseeability of death
● Test that must be satisfied for a conviction in manslaughter: (Creighton)
○ Establish actus reus – the activity must constitute a marked departure of the care
of a reasonable person in the circumstances.
○ Establish mens rea – the activity must have been done while there was objective
foresight of harm (not death) that can be inferred from the facts. The standard is
of the reasonable person in the circumstances of the accused.
○ Establish capacity – given the personal characteristics of the accused, were they
capable of appreciating the risk of harm flowing from their conduct? (test should
only take into account incapacities; very high bar)
■ Contrast to Lamer: wants a more contextual objective standard which
takes into account particular frailties.

Case Summary

R v Tutton & Facts: Carol Anne Tutton and Arthur Thomas Tutton, were the parents of a
Tutton 5-year-old child, Christopher Tutton, who died. Tuttons were deeply
religious and they belonged to a religious sect which believes in faith
s.219 healing. Their religious convictions did not prevent them from seeking and
acting on medical advice or from taking medicines, but they believed that
divine intervention could miraculously effect cures for illnesses and ailments
beyond the power of modern medical science. Christopher, as a diabetic
and admitted him to hospital, where he remained for some week. Was
educated on insulin injections and learned about son’s condition and how to
deal with it. Advised that Tuttons would not be able to discontinue the son’s
insulin injections. However, Mrs. Tutton stopped giving the child insulin in
the belief that he was being healed by the power of the Holy Spirit. In two
days, the child became quite ill and was taken to a hospital emergency unit.
Physician told the parents that insulin would be required by their son for life.
After this incident Mr. Tutton assured the family physician that insulin would
not be withheld in future without consulting a doctor. A year later, however,
insulin was again stopped. Mrs. Tutton believed that she had a vision of
God in which she was told that Christopher was cured, that no more insulin
was needed, and that God would take care of her son. The child sickened
quickly.

Application: (MCINTYRE)
● The objective test must be employed where criminal negligence is
considered, for it is the conduct of the accused, as opposed to his
intention or mental state, which is examined in this inquiry.
● what is sought to be restrained by punishment under s. 202 of the
Code is conduct, and its results. What is punished, in other words, is
not the state of mind but the consequence of mindless action
● Should be a strictly objective test with no MR requirement.
Criminalizing criminal negligence, which by definition is a
consequence of a mindless person. Standard is a reasonable
person, and any marked departure from that standard should justify
a conviction.

Application: (LAMER)
● Largely agrees with McIntyre
● when applying the objective norm set out by Parliament in s. 202
[now s. 219] of the Criminal Code there must be made “a generous
allowance” for factors which are particular to the accused, such as
youth, mental development and education
● Modified objective test which generously takes into account factors
that are particularly to the accused such as youth, mental
development, and education

Application: (WILSON)
● the phrase “reckless disregard for the lives or safety of other
persons” found in s. 202, when read in the context of Canadian
criminal law jurisprudence, requires the Crown to prove advertence
or awareness of the risk that the prohibited consequences will come
to pass. 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 that is prohibited.
● unable to agree with their conclusion that the offence of
manslaughter by criminal negligence consists of conduct in breach
of an objective standard. Dube’s standard is too strict: criminal
negligence would be an absolute liability offence, and it forces the
court to assess the reasonableness of religious beliefs.
Manslaughter has significant stigma, and needs some subjective
fault.

Conclusion: new trial ordered

Note: the Court here cannot resolve the issue of objective v subjective
mens rea.
R v Creighton Facts: Mr. Creighton was convicted of manslaughter, arising from the death
of Kimberly Ann Martin, who died as a result of an injection of cocaine given
s.222(5) by Mr. Creighton. All parties involved were experienced cocaine users.
Appellant’s companion attempted to resuscitate Martin, wanted to call 911
but appellant, by verbal intimidation, convinced him not to.
guilty of manslaughter

Application: (MCLACHLIN - Maj): At the very least, a person administering

a dangerous drug 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. That was not the
case here, as the trial judge found. Reasonable standard should not be
concerned with "frailties" of the accused's character (only take into account
incapacities - conditions that make it impossible for accused to foresee
defends thin skull rule
possible outcomes, very high bar, must actually be incapacitated), and that
public policy demands a single, uniform legal standard to be identified. The
wants F of HARM standard is what a reasonable prudent person would have understood in
the circumstances. Sets out a three-part test that must be satisfied for a
conviction in manslaughter: (1) Establish actus reus – the activity must
constitute a marked departure of the care of a reasonable person in the
circumstances. (2) Establish mens rea – the activity must have been done
while there was objective foresight of harm (not death) that can be inferred
from the facts. The standard is of the reasonable person in the
circumstances of the accused. (3) Establish capacity – given the personal
characteristics of the accused, were they capable of appreciating the risk of
harm flowing from their conduct?

Application: (LAMER): Suggests a three-part test to approach unlawful act

manslaughter. (1) Establish unlawful act:The crown must show that the
accused performed an unlawful act that was objectively dangerous. That is,
a reasonable person would foresee the risk of harm. (2) Establish mens rea
of predicate offence. (3) Establish foresight of risk of death: must show that
a reasonable person in the circumstances and possessing the
characteristics of the accused would foresee the act creating a risk of death.
wants F of DEATH
At the third stage, it must be asked whether the accused had any special
knowledge related to their conduct that would enhance their foresight.
Alternatively, was the accused unaware because they did not turn their
mind to the consequences or because they lacked capacity to do so due to
their "human frailties"? If so, it must be asked whether, in the context of the
accused, would a reasonable person have made themselves aware of the
consequences of the unlawful act. The key to this analysis rests on whether
the accused had any control over their "frailty" which rendered them unable
to foresee the risk. It is the control that produces the moral culpability.
Charter requires a minimum of objective mens rea. He also goes on to say
that the test for manslaughter is an objective test; however, a mere
objective test would violate s. 7 – therefore it needs to be a modified
objective test that takes the specific circumstances of the individual into
considerable note. He says that you must consider the capacities of the
individual in determining whether they were able to live up to the objective
reasonable standard, and then alter the standard accordingly if they were
not.
 Application: (LA FOREST): La Forest states that he prefers a subjective
test for mens rea in manslaughter, but realizes that this is not going to be
accepted and sides with McLachlin over Lamer.

Conclusion: Conviction affirmed.

R v H(AD) Facts: The respondent, not previously knowing that she was pregnant,
gave birth to a baby boy while using the toilet in a Wal-Mart 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, is now a healthy little boy.

Rule: involves s.218 (unlawfully abandons or exposes a child under the age
of 10) and s.214, which defines abandon or expose as: (a) a wilful omission
to take charge of a child by a person who is under a legal duty to do so, and
(b) dealing with a child in a manner that is likely to leave that child exposed
to risk without protection

Application: (CROMWELL) The text, context and purpose of s. 218 of the

Code shows that subjective fault is required. Applies to anyone (not only
particular relationships).

Application: (MOLDAVER) Section 218 can and should, be read

purposefully and harmoniously, such that it applies only to persons who are
cloaked with a duty, whether pre-existing and ongoing or situational, to
protect a particular child under the age of 10 from death or permanent
injury, all of whom are properly subject to an objective standard with respect
to the consequences element of s. 218. A.D.H.’s conduct in abandoning her
child and leaving him exposed to the risk of death or permanent injury was
not morally blameworthy. As such, she was entitled to be acquitted.

Conclusion: Although different approaches, ADH is acquitted because it

was both objectively and subjectively acceptable to believe the child was
dead.

Strict and absolute liability

Where a statute is silent on the mens rea requirement for an offence, one must identify whether
the act is a true crime or a regulatory offence (Sault Ste Marie). If a true crime, there is a
presumption of subjective mens rea (Beaver). If it is a regulatory offence, there is a presumption
of strict liability, where there is no Crown proof of mens rea required, as doing the act
establishes prima facie, the offense. Further, in rare cases, a crime may also be an absolute
liability offence. To identify this, Courts look to the overall regulatory pattern adopted by the
legislature; the subject matter of the legislation; the importance of the penalty and; the precision
of the language used (ie. may explicitly say absolute liability offence) (Sault Ste Marie).

IF STRICT: For strict liability offences, the onus of responsibility lies with the accused to
exonerate themselves. The accused can raise a due diligence defence, where they must prove
that they took every action that a reasonable person would take to prevent the incident or
offence from happening. The defence will also be available if the accused reasonably believed
in a mistaken set of facts which, if true, would render the act or omission innocent (Sault Ste
Marie).

IF ABSOLUTE: With an absolute liability offence, the accused cannot use the defence of due
diligence. Therefore, when you are charged with an absolute liability offence, you can only show
that the Crown did not prove beyond a reasonable doubt, that you committed the offence.
However, the combination of imprisonment and of absolute liability violates s. 7 of the Charter
and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of
liberty in breach of those principles of fundamental justice is, in a free and democratic society,
under the circumstances, a justified reasonable limit to one’s rights under s. 7 (Motor Vehicles).
Nonetheless, absolute liability offences which do not infringe s7 are constitutionally sound.

● First we ask: is the statute silent re: MR? (Sault Ste Marie)
○ If yes, then we ask if it is a true crime or regulatory offence
■ If it is a true crime offence, there is a presumption of MR
● When there is no MR mentioned whatsoever, subjective MR will
be read in (Beaver)
■ If it is a regulatory offence (public welfare), there is a presumption of strict
liability. No Crown proof of MR required, doing act establishes prima facie
offence
● wide category of offences created by statutes enacted for the
regulation of individual conduct in the interests of health,
convenience, safety and the general welfare of the public which
are not subject to any MR presumption (Pierce)
■ In rare cases, may also be an absolute liability offence
● Look to: the overall regulatory pattern adopted by the legislature;
the subject matter of the legislation; the importance of the penalty
and; the precision of the language used (ie. may explicitly say
absolute liability offence) (Sault Ste Marie)
○ Note: Whether something is prohibitory or regulatory seems to be an exercise of
framing
● Strict: means that the onus of responsibility lies with the accused to exonerate
themselves. Must prove that he/she took every action that a reasonable person would
take to prevent the incident or offence from happening.
○ can use a “due diligence” defense, meaning they took every measure to try to
avoid the offence.
■ The defence will also be available if the accused reasonably believed in a
mistaken set of facts which, if true, would render the act or omission
innocent (Sault Ste Marie)
● Absolute: AR sufficient to find guilt. With an absolute liability offence, the accused
cannot use the defence of due diligence. Therefore when you are charged with an
 absolute liability offence, you must show that the Crown did not prove beyond a
reasonable doubt, that you committed the offence.
○ combination of imprisonment and of absolute liability violates s. 7 of the Charter
and can only be salvaged if the authorities demonstrate under s. 1 that such a
deprivation of liberty in breach of those principles of fundamental justice is, in a
free and democratic society, under the circumstances, a justified reasonable limit
to one’s rights under s. 7 (Motor Vehicles)
○ However, the court confirmed that absolute liability offences which do not infringe
s7 are constitutionally sound, and that strict liability offences can result in
custodial sentences.
● Even in strict and absolute liability, there is possibility of defending on actus reus -
involuntary action
● Policy Arguments:
○ there is a debate as to whether strict or absolute liability is a better framework.
■ Strict liability incentivizes the defendant to perform cost justified
precautions to prevent harm because once courts have deemed than an
accused acted reasonably, they will no longer be liable for the harm that
they did cause.
■ Absolute liability, on the other hand, allows the Crown to only prove
causation/AR, which makes it typically easier/cheaper to prove an
absolute offence than a strict one. Because it is cheaper/easier to prove
this, it could arguably prove to be a stronger deterrent.
○ The overall question in determining which regime we want to impose is: is the
main concern that the entity takes reasonable care (strict), or is it that they only
engage in conduct only to the point where there is no social harm (absolute)?
○ The court is trying to come to grips with the question of what the place of criminal
law is in the modern regulatory state.
■ There are two camps here: traditionalists, and modernists
● Traditionalists: (ie. Dickson (Majority in SSM), and Lamer) say that
true crimes require subjective MR, and regulatory offences require
(generally) objective MR.
○ nature of the offence matters greatly, and that crime is
about punishing moral faults
● Modernists: true crimes can also require objective MR. In fact,
there is a trend towards more and more objective MR true crimes.
○ Parliament should have more extensive criminal law
making powers than just making true, subjective crimes

Case Summary

R v Beaver Facts: Beaver unlawfully sold a drug without the authority of a licence
from the Minister of National Health and Welfare or other lawful authority,
contrary to Section 4(1)(f) of the Opium and Narcotic Drug Act, Revised
Statutes of Canada. Sold to a police officer, who was working undercover.
 Appellant had no knowledge that the substance contained in the package
was a drug and believed he was scamming the buyer and giving him only
sugar of milk.

Application: (CARTWRIGHT)
● mens rea is an essential ingredient of the offence created
○ not similar to public welfare cases that have been
discussed in the courts previously (ie. selling expired meat).
Difference is that one is to ensure that a lawful and
necessary trade shall be carried on in a manner not to
endanger the public health, the other to forbid altogether
conduct regarded as harmful in itself.

Conclusion: Not guilty of possession. Offence based on possession, such

as possession of a narcotic, requires the Crown to prove that the accused
had subjective knowledge of the nature of the object in possession

Application: (FAUTEUX - dissent)

● Provisions are indicative of the will of Parliament to give the most
efficient protection to public health against the danger attending
the uncontrolled use of drugs as well as against the social evils
incidental thereto, by measures generally centred and directed to
possession itself of the drugs covered by the Act.

R v Pierce Facts: Fishery captured lobsters of a length less than three and three
Fisheries sixteenths inches, the minimum length specified in the schedule for that
district, contrary to s. 3(1)(b) of the Lobster Fishery Regulations, P.C.
1963-745 as amended, made pursuant to s. 34 of the Fisheries Act.
Evidence showed that on the day in question the respondent would have
bought and brought to its plant, by truck and by boat, 50,000 to 60,000
pounds of lobsters, and amongst these a Fishery Officer found 26
undersized lobsters.

Application: (RITCHIE)
● The case of Beaver v. The Queen, supra, affords an example of
provisions of a federal statute other than the Criminal Code which
were found to have created a truly criminal offence, but in the
present case, little similarity between a statute designed, by
forbidding the possession of undersized lobsters, to protect the
lobster industry, and a statute making it a serious crime to possess
or deal in narcotics.
● Statute contains no such words as “knowingly”, “wilfully”, “with
intent” or “without lawful excuse”, whereas such words occur in a
number of sections of the Fisheries Act itself which create offences
for which mens rea is made an essential ingredient. Thus, lack of
MR here seems purposeful.
● Regulations around fisheries are intended to protect lobsters from
depletion, hence serving a general public interest. It is not an
offence similar to the ones found in the Code, hence it is not a
 new crime added to the criminal law, and hence it need not have
mens rea.

Conclusion: Fishery is guilty.

Application: (CARTWRIGHT - dissent)

● From Beaver: The essence of the crime is the possession of the
forbidden substance and in a criminal case there is in law no
possession without knowledge of the character of the forbidden
substance.
● Applying this principle to the words of the charge against the
respondent in the case at bar, it appears that the express finding of
fact that the respondent had no knowledge, factually or
inferentially, that any of the lobsters on its premises and under its
control were undersized necessarily leads to a finding of not guilty.
● Beaver states that to be found criminally responsible for
possession, you must have knowledge of that possession: this is
the essence of criminal possession. The Parliament could not have
intended it to be such. Hence, accused cannot be found guilty

Note: Strict liability can make companies not want to try (‘why bother trying
to sort lobsters if we will get charged no matter what’). On the other hand,
it can be calibrated: companies that make a few mistakes will pay nominal
fines, but companies that blatantly ignore it will pay huge fines.

R v Sault Ste Facts: City of Sault Ste. Marie was charged for discharging materials into
Marie Cannon Creek and Root River in a place that might impair the quality of
the water under s. 32(1) of the Ontario Water Resources Act, R.S.O.
1970, c. 332. If guilty of an offence, on summary conviction, is liable on
first conviction to a fine of not more than $5,000 and on each subsequent
conviction to a fine of not more than one year or to both fine and
imprisonment.

Application: recognition of three categories of offences rather than the

traditional two:
1. True crime: offences in which mens rea, consisting of some positive
state of mind such as intent, knowledge, or recklessness, must be proved
by the prosecution either as an inference from the nature of the act
committed or by additional evidence.
2. Public welfare: Offences in which there is no necessity for the
prosecution to prove the existence of mens rea; the doing of the prohibited
act prima facie imports the offence, leaving it open to the accused to avoid
liability by proving that he took all reasonable care. This involves
consideration of what a reasonable man would have done in the
circumstances. The defence will be available if the accused reasonably
believed in a mistaken set of facts which, if true, would render the act or
omission innocent, or if he took all reasonable steps to avoid the particular
event. These offences may properly be called offences of strict liability.
3. Offences of absolute liability where it is not open to the accused to
exculpate himself by showing that he was free of fault.
 - The overall regulatory pattern adopted by the legislature, the
subject matter of the legislation, the importance of the penalty and
the precision of the language used will be primary considerations
in determining whether the offence falls into the third category.

Pollution offences are undoubtedly public welfare offences enacted in the

interest of public health. There is thus no presumption of a full mens rea.

Conclusion: new trial

Reference re Facts: Section 94(2) of the Motor Vehicle Act of British Columbia created
Motor Vehicle an absolute liability offence of driving while with a suspended licence. To
Act (BC) obtain a conviction, the Crown needed only to establish proof of driving
regardless of whether the driver was aware of the suspension. A
successful conviction carried a prison term of a minimum of seven days.

Application: A law enacting an absolute liability offence will violate s. 7 of

the Charter only if and to the extent that it has the potential of depriving
the life, liberty, or security of the person. combination of imprisonment and
of absolute liability violates s. 7 of the Charter and can only be salvaged if
the authorities demonstrate under s. 1 that such a deprivation of liberty in
breach of those principles of fundamental justice is, in a free and
democratic society, under the circumstances, a justified reasonable limit to
one’s rights under s. 7. Main question is whether the government of British
Columbia has demonstrated as justifiable that the risk of imprisonment of
a few innocent is, given the desirability of ridding the roads of British
Columbia of bad drivers, a reasonable limit in a free and democratic
society. That result is to be measured against the offence being one of
strict liability open to a defence of due diligence, the success of which
does nothing more than let those few who did nothing wrong remain free -
has not been satisfied.

Conclusion: The court held that an absolute liability offence cannot

impose a custodial sentence, as it is not constitutional to combine
absolute liability with imprisonment.

Note: The rationale behind this seems to focus on not punishing the
morally innocent in such a severe way so as to limit their freedom. In this
way, it tracks one’s fair opportunity to comply with the law. If you know
what you are doing is likely to cause death, then you have a reason not to
do it. But if you do not know, then there is no reason. This contrasts to the
mens rea focus in Vaillancourt/Martineau, where it was centered on
blameworthiness.

Assault
Simple assault is very broad, but there is an incentive to criminalize broadly. If you criminalize
narrowly, you will be underinclusive. However, if it is broad, Parliament can say: “don’t blame
me, it was the Crown's responsibility to prosecute this!” Thus, when in doubt, criminalize, that
way you can pass poor decision making to police and Crown, who exercise discretion in who
they want to prosecute [TEST TO APPLY BELOW IN BULLET POINTS].

S265 Simple Assault:

(1) A person commits an assault when
● (a) Without the consent of another person, he applies force intentionally to that other
person, directly or indirectly ...
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a
weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or
does not resist by reason of
● (a) the application of force to the complainant or to a person other than the
complainant;
● (b) threats or fear of the application of force to the complainant or to a person other
than the complainant;
● (c) fraud; or
● (d) the exercise of authority.

Mens rea: application of force is intentional

Actus rea: applies force intentionally directly or indirectly
Circumstantial element: without consent of another person

Have to satisfy simple assault before moving on to...

S267 Assault with a weapon or causing bodily harm:

Every person is guilty of an indictable offence and liable to imprisonment for a term of not
more than 10 years or is guilty of an offence punishable on summary conviction who, in
committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof,
(b) causes bodily harm to the complainant, or
(c) chokes, suffocates or strangles the complainant.

S268 Aggravated assault:

268 (1) Everyone commits an aggravated assault who wounds, maims, disfigures or
endangers the life of the complainant [actus rea term]
(2) Everyone who commits an aggravated assault is guilty of an indictable offence and liable
to imprisonment for a term not exceeding fourteen years.

S269 Unlawfully causing bodily harm:

Everyone who unlawfully causes bodily harm to any person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b)
an offence punishable on summary conviction.
MPC: 211.1 (1). A person is guilty of assault if he ... purposely, knowingly or recklessly causes
bodily injury to another … [subjective mens rea]

210.0 (2). “Bodily injury” means physical pain, illness, or any impairment of physical condition.

2.11 (2). When conduct is charged to constitute an offense because it causes or threatens
bodily harm, consent to such conduct or to the infliction of such harm is a defense if:
(a) The bodily harm consented to or threatened by the conduct consented to is
not serious; or
(b) The conduct and the harm are reasonably foreseeable hazards of joint
participation in a lawful athletic contest or competitive sport

● Test:
○ (1) Was there the application of force, directly or indirectly? (actus reus)
○ (2) Was the application of force intentional? (mens rea)
■ has to be more than a mere institive reflex; but does not need to rise to a
definite resolve to create injury (somewhere between that)
■ the essential intent required for an assault, as defined, remains the same
for all forms of assault, including aggravated assault (LeClerc)
○ (3) Was the application of force without consent of the other person?
(circumstantial element)
■ Consent to the application of force may be actual or implied, and in any
event its scope is limited by circumstance (Cey)
● This is an objective inquiry: courts look to what was agreed, and to
the specific factors/conditions
● Ordinarily consent, being a state of mind, is a wholly subjective
matter to be determined accordingly, but when it comes to implied
consent in the context of a team sport, there cannot be as many
different consents as there are players so the scope of the implied
consent, having to be uniform, must be determined by reference
to objective criteria (Cey)
○ The conditions under which the game in question is played
○ the nature of the act which forms the subject matter of the
charge
○ the extent of the force employed
○ the degree of risk of injury
○ probabilities of serious harm are
● if there is a deliberate purpose to inflict injury, then contact will
necessarily be outside of the scope of consent (LeClerc)
■ Even if you seemingly consent to a fight, you cannot consent in law to the
other person causing you non-trivial bodily harm (Jobidon)

Case Summary
R v Cey Facts: Event occurred at amateur league hockey game. Accused, in the course
of the game, checked an opposing player. At the time, the victim was facing the
boards attempting to retrieve the puck. His face was pushed into the boards and
he suffered injuries to his mouth and nose. He had to be carried from the ice and
was found at the hospital to be suffering from a concussion and a whiplash. He
was in hospital for approximately three days. The accused received from the
referee a five minute penalty for cross-checking. Victim says he still would have
played hockey if he knew this would happen, this is the exact kind of hockey he
likes to play.

Application (Maj):
● Consent to the application of force may be actual or implied, and in any
event its scope is limited by circumstance
● Intentional bodily contact in the context of an organized sporting situation
requires that implied consent be considered
● It is clear that in agreeing to play the game, a hockey player consents to
some forms of intentional bodily contact and to the risk of injury
therefrom. Those forms sanctioned by the rules are the clearest
example. Other forms, denounced by the rules but falling within the
accepted standards by which the game is played, may also come within
the scope of the consent.
● It is equally clear that there are some actions which can take place in the
course of a sporting conflict that are so violent it would be perverse to
find that anyone taking part in a sporting activity had impliedly consented
to subject himself to them.
● Ordinarily consent, being a state of mind, is a wholly subjective matter to
be determined accordingly, but when it comes to implied consent in the
context of a team sport such as hockey, there cannot be as many
different consents as there are players on the ice, and so the scope of
the implied consent, having to be uniform, must be determined by
reference to objective criteria.
● ingredients which ought to be looked to in determining whether in all of
the circumstances the ambit of the consent at issue in any given case
was exceeded:
○ The conditions under which the game in question is played
○ the nature of the act which forms the subject matter of the charge,
○ the extent of the force employed,
○ the degree of risk of injury,
○ probabilities of serious harm are,
■ of course, all matters of fact to be determined with
reference to the whole of the circumstances.
● Trial judge ought to have addressed question of implied consent
according to the general framework mentioned and ought to have
determined as a matter of fact whether the action of cross-checking from
behind across the back of the neck (assuming he found this to be the
conduct intended by the accused), in such close proximity to the boards
and with such force as was employed, was so violent and inherently
dangerous as to have been excluded from the implied consent

Conclusion: new trial ordered

 Application (dissent):
● person who plays hockey expects the game to be played according to its
rules, but recognizes that penalties are the appropriate sanction for
disobedience. A player also expects that, in the heat of action, some
contact will take place, which is dangerous and will therefore
occasionally cause injury, even severe injury, but no injury is intended.
This conduct will likewise call for a penalty, but not criminal charges, for it
is such an integral part of the game that a player cannot expect to avoid
it and therefore must be taken to have given his consent.
● It is not appropriate to conclude that everything done in the heat of action
is necessarily consented to.
● Assuming then that one can conclude there is a general consent to
violent physical contact, which takes place in the heat of action, there is
no difficulty in concluding that while the trial judge may have provided
some rather imprecise statements of the need to consider whether a
consent had been given here, he did make some findings of fact which
are adequate to support the application of is the appropriate standard.
○ He found, for example, that this cross-check was done in the heat
of action and without the intent to injure. That being so, it did not
matter that he may have made the error of assuming that the
willingness of the injured party to return to hockey was the
equivalent of consent

Conclusion: no assault

Rv Facts: The aggravated assault was alleged to have taken place in the course of
LeClerc a semi-final playoff hockey game in the Lanark Municipal Arena between
contending teams in an industrial league, The Lanark Sportsmen’s Recreational
League. Under C.A.H.A. rules, no bodily contact is allowed. The respondent,
who played in the forward position for the Calabogie team, pursued the
complainant, James R. Conboy, a defenceman for Joe’s Lake, the opposing
team, who was attempting to retrieve the puck which had been shot into his own
end. There was a collision on the boards as the respondent hit the complainant
in the back with his hockey stick. The referee immediately blew his whistle and
called a “match penalty” against the respondent for a deliberate attempt to
injure. The game was halted. It was subsequently determined that the
complainant had suffered a dislocation of a portion of the cervical spine: he was
permanently paralyzed from the neck down.

Application: Parliament intended that the severity of the punishment should

increase to reflect the more serious consequences of the assault. It never
intended that, on an indictment charging “aggravated assault”, the prosecution
would be required to prove that the accused intended to wound, maim or
disfigure the complainant or endanger his life. Trial judge required the Crown to
prove that the object of the respondent’s push, shove or cross-check was to
inflict bodily harm on the complainant, and that the Crown had to prove that the
tragic consequences thereof were either intended or contemplated. Later, in
rejecting the prosecution’s contention that the conduct of the accused met the
standard required for a conviction on a charge of criminal assault in the course
 of a hockey game, the trial judge repeated what he regarded as an essential
ingredient of the charge, namely “a definite resolve to cause serious injury.” This
is an error of law with respect to the required mens rea to support a charge of
aggravated assault: this court will, in the dispositive part of the judgment,
consider its effect on the verdict of acquittal. Conduct which evinces a deliberate
purpose to inflict injury will generally be held to be outside of the immunity
provided by the scope of implied consent in a sports arena. The question of
implied consent, which the Crown was required to negative, was not addressed
properly in the court below. This error, together with the confusion in dealing with
the mens rea requirement of aggravated assault, had the result of placing an
inappropriate burden on the prosecution. Having regard to the clear findings of
fact made by the trial judge as to the circumstances of that particular hockey
game, the Crown has not satisfied me that the verdict of acquittal would not
necessarily have been the same if there had been no self-misdirection in law.

Conclusion: appeal dismissed

Rv Facts: The appellant was involved in a fight in which a bystander was injured
DeSouza when a bottle allegedly thrown by the appellant broke against a wall and a glass
fragment from the bottle struck the bystander. Teresa Santos attended a New
Year’s Eve party in Toronto. Shortly after midnight, a fight broke out at the party.
As she was attempting to gather her belongings, which were located at a table in
the vicinity of the fight, Ms. Santos was struck on the arm by a piece of glass.
The glass fragment produced a large gash on her left forearm which required
seven stitches to mend the underlying pronator muscle in her arm and a further
seven stitches to mend the skin above the muscle.

Application: Charged for unlawfully causing bodily harm (very similar charge to
assault, so getting clarity on mens rea on assault is moot). We can think of this
as a junior version of felony muder. Court says they will adopt Larkin test:
underlying harm must be objectively dangerous (similar to Serne - objectively
foreseeable). The charge itself is broken down into two separate requirements.
First, there must be an underlying offence (the "unlawful act") with a valid mens
rea requirement. This includes provincial and federal offences, criminal or
otherwise, but precludes any absolute liability offences. Secondly, the "unlawful
act" must be at least "objectively dangerous" so that a reasonable person would
realize that the act created a risk of bodily harm. Due to the lack of stigma or any
sort of significant prison sentence attached to the offence it did not warrant a
higher "subjective fault" requirement. The Court dismissed the argument that the
offence would punish the morally innocent by not requiring proof of intention to
bring about the consequences. Instead the offence aims to prevent objectively
dangerous acts

Conclusion: s.269 does not violate s7 of the Charter.

Note: Again, we see the debate between objective and subjective MR here. The
Defence is arguing that each AR aspect has to have a requisite MR element,
trying to extend Vaillancourt/Martineau to assault as well. However, the court
refuses to extend it, and say ‘no, we will not go much further than we already
have.’ DeSousa did something he was not supposed to do, and so is
 responsible for whatever bad outcome occurred, so long as it is objectively
foreseeable. S.269 has neither the criminal sanction nor the stigma required to
warrant subjective MR.

Rv Facts: the respondent punched the victim in the face with a closed fist, in which
Johnson he held a metal flashlight. The blow fractured the victim’s jaw, required surgical
reconstruction, and left permanent significant symptoms. The victim of the
respondent’s assault, Mr. Gettle, had been drinking with his brother in some
Gastown pubs. A woman approached them in the last pub they were at and
invited them to come to her room in a Gastown single occupancy hotel for
drinks. The respondent and his wife also lived there in an adjacent room. Not
long after midnight, Mr. Gettle and the woman started to argue over Mr. Gettle’s
cell phone. He accused the woman of stealing it from him. The argument spilled
out into the hallway, where Mr. Gettle pushed the woman against the wall. The
hotel manager saw what was going on and went to the altercation. She said she
told the women and Mr. Gettle she had called the police, they were coming, and
that they were to go to the hotel front office and wait there. Mr. Gettle stayed
behind while his brother and the woman went to the front of the hotel to wait for
the police to arrive. Security camera showed the respondent emerging from the
room he and his wife occupied and punching Mr. Gettle in the face with his fist,
clenching a flashlight within it.

Application: objective foreseeability of bodily harm is not required for conviction

of assault causing bodily harm. Notwithstanding the presence of the words
‘objectively’ and ‘reasonably’ in the reasons, the trial judge implicitly applied a
subjective test of foreseeability, at best, a modified objective test; i.e. whether
the respondent foresaw harm to Mr. Gettle, were he to smash him in the cheek
with his fist, versus smashing him in the cheek with a weapon, in this case, the
flashlight in his punching hand. It did not matter what the respondent intended or
knew about the flashlight in this case, except with respect to the assault with a
weapon count. Objective foreseeability of harm is not concerned with what the
accused intended to do or knew at the time. Rather, an analysis of objective risk
is what should have been in the accused’s mind, had the accused proceeded
reasonably, the mental fault lying in the failure to direct the mind to risk of bodily
harm, in this case from a punch to the complainant’s face, which the reasonable
person would have appreciated.

Conclusion: The respondent’s conviction for assault is set aside, his acquittal of
assault causing bodily overturned, and he is convicted of assault causing bodily
harm.

Note: Court is trying to figure out what the mens rea for causing bodily harm is.
Based on the judgement, the answer is probably no mens rea, but that
application of force has to be intentional but the causing of harm does not need
to be present (strict liability). This is a BC case which demonstrates that this is
not a clearly resolved appointed part of law.

Rv Facts: the accused and deceased engage in a series of conflicts/fights

Jobidon throughout the night at a hotel bar. Eventually, this leads them out to the parking
lot where Jobidon punches Haggard and he is knocked unconscious,
eyewitnesses say he is unconscious and Jobidon realizes he is unconscious, but
continues to hit. By Jobidon’s account, the deceased was staggering, attempting
to fight back. It is agreed that there was a “fair fight” here and that parties had
consented to initial fighting. Amidst the disputed factual interpretation, the trial
court decides to treat it as one fluid action.

Application (Maj): Parliament could have specified whether the term “consent”
is aimed simply at the kind of activity being purportedly consented to (here a fist
fight), or whether it refers to consent to a trivial injury which does not amount to
bodily harm (such as might be sustained in sporting activities), or whether for the
defence to apply the consent must be as to the precise extent of harm actually
caused by the application of force. At any point in the history of the provision,
Parliament could have taken the opportunity to specify whether the common law,
which already had had much to say about assault and the requirement of
consent, was being emptied of relevance. But it did not do these things. The
common law legitimately serves in this appeal as an archive in which one may
locate situations or forms of conduct to which the law will not allow a person to
consent. All criminal law is “paternalistic” to some degree — top-down guidance
is inherent in any prohibitive rule. That the common law has developed a strong
resistance to recognizing the validity of consent to intentional applications of
force in fist fights and brawls is merely one instance of the criminal law’s concern
that Canadian citizens treat each other humanely and with respect. The policy of
the common law will not affect the validity or effectiveness of freely-given
consent to participate in rough sporting activities, so long as the intentional
applications of force to which one consents are within the customary norms and
rules of the game. Unlike fist fights, sporting activities and games usually have a
significant social value; they are worthwhile.

Conclusion: cannot consent to death; guilty.

Application (concurring in result only): Majority is attempting to create an

offence where one does not exist in the Code by applying the common law;
intentional application of force with the consent of the victim. It appears clear
from the findings of the trial judge that the accused had an honest belief in
consent, but that consent extended only until Haggart “gave up or retreated.”
The extent of the consent given by Haggart did not, therefore, extend to being
struck once he had been knocked unconscious. The accused knew that
Haggart’s consent did not extend beyond consciousness.

Note: Amato has interpreted s8 to say they can create new defences, not
offences → but Court here uses this as an argument here and says this is just a
formality (Chiao: very bad argument). The Crown bears burden of proof on all
offences (actus reus, mens rea), not on defences - so these are very different
things. Court might be doing here what it is not supposed to be doing on a
common law basis as Amato warns against. Should the court be making up laws
like this, or should we leave it to parliament? Seemingly here, the court is going
against the Amato principle, and so it raises the question of how seriously we
should take it.
 Courts here take a very paternalistic view, and say that there are some things
you cannot consent to. The argument here is that there are some things we as a
society simply do not want people to be able to consent to, and want the
courts to impose some sort of common morality. However, some believe this is
wrong, and that courts should be more libertarian here. Could be said that the
court is almost being classist; the justices are deciding that this kind of behaviour
is just of a lower class, and are trying to suppress it.

R v Brown Facts: appellants belonged to a group of sadomasochistic homosexuals who

willingly and enthusiastically participated in the commission of acts of violence
against each other for the sexual pleasure which it engendered in the giving and
receiving of pain. Other men were involved than those who were charged. Some
of those who were charged and convicted have not appealed. The activities took
place at a number of different locations, including rooms equipped as torture
chambers at the homes of two men called Wilkinson and Grindley and the
appellant Cadman. Video cameras were used to record the activities and the
resulting tapes were then copied and distributed amongst members of the group.
Counts facing the appellants included beating, branding, burning, caning,
cutting, piercing with hooks, nails, needles and pins, “sandpapering” and
whipping. Common ground that all the actions to which the appellants pleaded
guilty were done with the consent of the passive partner or victim. There was no
permanent injury; no infection of the wounds; no evidence of any medical
attention being sought. There was no complaint to the police. The facts came to
light by chance during investigation of other matters. The actions were carried
out in private. There was no profit motive and no sale of the video tapes.

Application: It is an offence for a person to abuse his own body and mind by
taking drugs. Although the law is often broken, the criminal law restrains a
practice which is regarded as dangerous and injurious to individuals and which if
allowed and extended is harmful to society generally. In any event the appellants
in this case did not mutilate their own bodies. They inflicted bodily harm on
willing victims. Suicide is no longer an offence but a person who assists another
to commit suicide is guilty of murder or manslaughter. In principle there is a
difference between violence which is incidental and violence which is inflicted for
the indulgence of cruelty. The violence of sado-masochistic encounters involves
the indulgence of cruelty by sadists and the degradation of victims. Such
violence is injurious to the participants and unpredictably dangerous. Pleasure
derived from the infliction of pain is an evil thing. Cruelty is uncivilised.

Sexual Assault
Sexual assault builds off of the framework assault, adding to it a sexual assault analysis. First, is
there application of force and is it intentional? (objective inquiry). Second, Is it sexual in nature?
(objective inquiry). To determine this, the situation must be viewed in light of all the
circumstances: is the sexual or carnal context of the assault visible to a reasonable observer?
The part of the body touched, the nature of the contact, the situation in which it occurred, the
words and gestures accompanying the act, and all other circumstances surrounding the
conduct, including threats, which may or may not be accompanied by force, will be relevant to
this determination (Chase). The intent or purpose of the person committing the act, to the extent
that this may appear from the evidence, may also be a factor in considering whether the
conduct is sexual (though none of these factors are dispositive). For example, If the motive of
the accused is sexual gratification, to the extent that this may appear from the evidence it may
be a factor in determining whether the conduct is sexual. It must be emphasized, however, that
the existence of such a motive is simply one of many factors to be considered, the importance
of which will vary depending on the circumstances. Consent of the complainant is a separate
and distinct actus reus requirement, and is the next determination. Consent is subjective -
determined by reference to the complainant’s subjective internal state of mind towards the
touching (Ewanchuk). Common sense should dictate that, once the complainant has expressed
her unwillingness to engage in sexual contact, the accused should make certain that she has
truly changed her mind before proceeding with further intimacies. The accused cannot rely on
the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there
has been a change of heart and that consent now exists, nor can he engage in further sexual
touching to “test the waters.” Continuing sexual contact after someone has said “No” is, at a
minimum, reckless conduct which is not excusable. There is no acceptance of implied consent
here, consent must be clear and actively demonstrated.

If the above has been established by the Crown, the burden then shifts to the accused to raise
any defences, such as honest but mistaken belief, which can be raised where there is sufficient
evidence presented by an accused, by his testimony or by the circumstances in which the act
occurred [MORE ON HONEST BELIEF AND WILLFUL BLINDNESS BELOW]

NOTE: if ‘fraud’ is relevant: check below.

S271: Sexual Assault

S272: Sexual Assault with a weapon, threats to a third party or causing bodily harm
(1) Every person commits an offence who, in committing a sexual assault,
● (a) carries, uses or threatens to use a weapon or an imitation of a weapon;
● (b) threatens to cause bodily harm to a person other than the complainant;
● (c) causes bodily harm to the complainant;
● (c.1) chokes, suffocates or strangles the complainant; or
● (d) is a party to the offence with any other person.

S273: Aggravated Sexual Assault

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

s273.1(2): No consent is obtained if

● (a) the agreement is expressed by the words or conduct of a person other than the
complainant;
● (a.1) the complainant is unconscious;
● (b) the complainant is incapable of consenting to the activity for any reason other than
the one referred to in paragraph (a.1);
● (c) the accused induces the complainant to engage in the activity by abusing a position
of trust, power or authority;
 ● (d) the complainant expresses, by words or conduct, a lack of agreement to engage in
the activity; or
● (e) the complainant, having consented to engage in sexual activity, expresses, by
words or conduct, a lack of agreement to continue to engage in the activity.

S273.2: Where belief in consent not a defence

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that
the complainant consented to the activity that forms the subject-matter of the charge, where
● (a) the accused’s belief arose from
○ (i) the accused’s self-induced intoxication,
○ (ii) the accused’s recklessness or wilful blindness, or
○ (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in
which no consent is obtained;
● (b) the accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting; or
● (c) there is no evidence that the complainant’s voluntary agreement to the activity was
affirmatively expressed by words or actively expressed by conduct.

● Chase framework for assault + sexual assault analysis:

○ (1) Is there application of force and is it intentional? (objective inquiry)
○ (2) Is it sexual in nature? (objective inquiry)
■ Viewed in the light of all the circumstances, is the sexual or carnal context
of the assault visible to a reasonable observer?
■ The part of the body touched, the nature of the contact, the situation in
which it occurred, the words and gestures accompanying the act, and all
other circumstances surrounding the conduct, including threats, which
may or may not be accompanied by force, will be relevant
■ The intent or purpose of the person committing the act, to the extent that
this may appear from the evidence, may also be a factor in considering
whether the conduct is sexual.
● If the motive of the accused is sexual gratification, to the extent
that this may appear from the evidence it may be a factor in
determining whether the conduct is sexual. It must be
emphasized, however, that the existence of such a motive is
simply one of many factors to be considered, the importance of
which will vary depending on the circumstances.
● None of these factors are dispositive
■ Actus reus: touching, such that a reasonable person would consider it to
violate the sexual integrity of the person
● Consent of the complainant is a separate and distinct actus reus
requirement
○ (3) Is there consent to application of force? (subjective - determined by reference
to the complainant’s subjective internal state of mind towards the touching)
(Ewanchuk)
 ■ The definition of consent for sexual assault requires the complainant to
provide actual active consent throughout every phase of the sexual
activity (J(A))
● Cannot even even express consent in advance
■ Cannot be implied consent (Ewanchuk)
○ (4) Accused can raise defence
● Honest but mistaken belief: the defence should avail when there is an honest belief in
consent or an absence of knowledge that consent has been withheld (Pappajohn)
○ defence is available only where there is sufficient evidence presented by an
accused, by his testimony or by the circumstances in which the act occurred, to
found the plea
■ 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
■ An accused cannot raise the defence of mistaken belief in consent if they
did not take some reasonable steps to ascertain that the complainant was
consenting, where reasonable steps are based on the accused’s
subjective perception (Darrach)
● 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
(Ewanchuk)
■ Common sense should dictate that, once the complainant has expressed
her unwillingness to engage in sexual contact, the accused should make
certain that she has truly changed her mind before proceeding with
further intimacies. The accused cannot rely on the mere lapse of time or
the complainant’s silence or equivocal conduct to indicate that there has
been a change of heart and that consent now exists, nor can he engage
in further sexual touching to “test the waters”. Continuing sexual contact
after someone has said “No” is, at a minimum, reckless conduct which is
not excusable
○ subjective mens rea component: does not require that a mistaken belief in
consent must be reasonable in order to exculpate. The provision merely requires
that a person about to engage in sexual activity take “reasonable steps to
ascertain that the complainant was consenting.” Were a person to take
reasonable steps, and nonetheless make an unreasonable mistake about the
presence of consent, he or she would be entitled to ask the trier of fact to acquit
on this basis (Darrach - however this is a flawed judgement)
○ However, willful blindness will negate this defence (Sansregret)
■ Wilful blindness arises where a person who has become aware of the
need for some inquiry declines to make the inquiry because he does not
wish to know the truth. He would prefer to remain ignorant.
● Cannot consent if unconscious (J(A))
● Fraud and consent: (Cuerrier)
 ○ First requirement of fraud is proof of dishonesty: dishonest action or behaviour
must be related to the obtaining of consent to engage in sexual intercourse, in
this case unprotected intercourse.
■ The actions of the accused must be assessed objectively to determine
whether a reasonable person would find them to be dishonest.
○ The second requirement of fraud is that the dishonesty results in deprivation,
which may consist of actual harm or simply a risk of harm. Yet it cannot be any
trivial harm or risk of harm that will satisfy this requirement in sexual assault
cases where the activity would have been consensual if the consent had not
been obtained by fraud.
■ For example, where there is a realistic possibility of transmission of HIV, a
significant risk of serious bodily harm is established, and the deprivation
element of the Cuerrier test is met. Cuerrier requirement of “significant
risk of serious bodily harm” should be read as requiring disclosure of HIV
status if there is a realistic possibility of transmission of HIV. If there is no
realistic possibility of transmission of HIV, failure to disclose that one has
HIV will not constitute fraud vitiating consent to sexual relations under s.
265(3)(c) (ie. combined effect of condom use and low viral load) (Mabior)
○ 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 as described in these
reasons, 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 (Mabior)
● There is no crime of rape, only broad category of sexual assault
○ Progression in this area of law was from Parliament, not an innovation of courts
● Sexual assault with a weapon, 14 years max, sometimes minimum of 4-7
● There is a mandatory minimum for aggravated sexual assault, and maximum of life
○ Everyone commits an aggravated assault who wounds, maims, disfigures or
endangers the life of the complainant (s 268) (Cuerrier)
■ There is no prerequisite that any harm must actually have resulted

Case Summary

R v Chase Facts: The respondent, Chase, was a neighbour of the complainant, a 15-year-
old girl. Chase entered the home of the complainant without invitation. The
respondent seized the complainant 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.” Eventually, the complainant and her brother were able
to make a telephone call to a neighbour and the respondent left. Prior to
leaving, he said that he was going to tell everybody that she had raped him. The
whole episode lasted little more than half an hour.

Application: sets test for sexual assault. Here, 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.

Conclusion: convicted.

Rv Facts: The two met at lunch to discuss the sale of the appellant’s residence.
Pappajohn The complainant was his agent in the matter. Throughout the afternoon, until
approximately 4:00 p.m., a considerable amount of alcohol was imbibed by both
parties and by friends who joined the table. Witnesses throughout the day say it
was obvious there was courtship happening. The appellant and the complainant
departed for the appellant’s home, where it was intended that they would
complete the business discussion. She testified that upon arrival at his house,
the appellant closed the door and pushed her down the hall. She was resisting
him, in the sense of trying to reason with him, asking him why he was pushing
her. He said he was going to break her. In the bedroom, while he took her
blouse off, she reasoned with him. When he succeeded in removing it she knew
he was going to rape her. She tried to escape, but he threw her down on the
bed and she became totally hysterical. She screamed at the top of her lungs.
He gestured with his upraised arm that she was to undo his cufflinks. When she
refused he threatened her with his fist, and she began to scream. He removed
her underclothing and skirt in one tug. When he suggested and commenced
acts of oral gratification, she refused and he did not continue. Then, she said,
he raped her. After the first act there was a conversational session. She
pleaded with him to let her go. She tried to escape, and on each occasion he
would catch her at the door, push her back down and rape her again. On three
occasions she tried to escape, and on each he raped her. After she had been
there about an hour he became angry and threw her off the end of the bed. He
took her right hand, wrenched it hard and tightly and tied both hands tightly
behind her back with a bathrobe cord. He threw her face down on the bed and
raped her from behind. She was trying to talk and reason with him. At some
point he gagged her with a bow tie. She was tied for an hour before being
gagged, and it was an hour before she got away. When he left the room to get
cigarettes she ran out the front door and went down the lane screaming.
Appellant’s testimony differed significantly, claiming that short of a few coy
objections, she consented.
Jury had to determine whether the complainant consented to those acts of
intercourse. An alternative “defence” was raised: could be excused from
criminal responsibility if he had honestly albeit mistakenly, believed that the
complainant was a willing partner. Though the trial judge did not dismiss the
defence as being unavailable at law, in the circumstances he disallowed the
plea, ruling that there was insufficient evidential foundation to warrant an
instruction on the issue.

Application (Maj): It is not for the trial judge to weigh both stories and prefer
one to the other. It is for him in this situation, however, to recognize the issue
which arises on the evidence for the purpose of deciding what defences are
open. In this situation the only realistic issue which can arise is the simple issue
of consent or no consent. The trial judge was correct in concluding that there
simply was not sufficient evidence to justify the putting of the defence of mistake
of fact to the jury. He left the issue of consent, and that was the only one arising
on the evidence. Defence should be used when there is "some evidence which
 would convey a sense of reality in the submission." On the facts, there was no
evidence, other than the statement of the accused, that if believed, would have
allowed for the possibility of consent.

Conclusion: appeal dismissed.

Application (dissent): Defence was derived from the mens rea requirement
which is a subjective standard, and consequently the mistaken belief did not
need to be reasonable, it just needed to exist. The evidence of the complainant
is that of no consent, at any time, to any act of intercourse with the appellant.
Her version of the incident is interspersed with assertions of screaming, fighting,
reasoning, and attempted escape. But even on the complainant’s version there
is much common ground with the appellant’s version which supports his
defence of belief in consent. There was ample evidence in his testimony which
points to circumstances from which arise an inference of willingness or consent,
at least for those activities which preceded the so-called “bondage.” It is not
proper, in my view, to look at the two pieces of testimony that are in conflict and
to conclude that the only issue is one of credibility and that a blurred perception
on the part of the appellant is inconceivable when cast alongside the
complainant’s evidence. That is a matter for the jury to decide. Here, there was
circumstantial evidence supportive of a plea of belief in consent such as none of
her clothes were damaged in the slightest way; she was in the house for a
number of hours; she did not leave while he undressed; there was no evidence
of struggle; she suffered no physical injuries, aside from three scratches.

Conclusion: new trial ordered.

Rv Facts: Sansregret and the complainant lived together. Their relationship had
Sansregret been violent: "slappings" or "roughing up" in his description, "blows" in hers.
The complainant ended their relationship. A few days later Sansregret attacked
the complainant with a file-like object. The complainant managed to calm him
down by holding out hope of some sort of reconciliation and engaging in
intercourse. The complainant reported the incident to the police, but
Sansregret's parole officer encouraged her not to press charges as it would
interfere with his parole. Later, Sansregret again broke into the complainant's
house where he picked up a butcher knife and entered the complainant's
bedroom. The complainant, fearful for her life, again tried to calm him down by
pretending that there was some hope of reconciliation. They engaged in
intercourse shortly later, but the complainant stated that she engaged in
intercourse only to prevent further violence. She later filed charges against the
appellant for rape. Trial court acquitted Sansregret on the defence of honest but
mistaken belief.

Application: This application of the defence of mistake of fact would be

supportable were it not for the fact that the trial judge found in addition that the
appellant had been wilfully blind to reality in his behaviour on 15th October.
Such a finding would preclude the application of the defence and lead to a
different result. It is my opinion then that the trial judge erred in this matter in
that though she made the requisite findings of fact that the appellant was wilfully
blind to the consequences of his acts she did not apply them according to law.
 Wilful blindness is distinct from recklessness. The culpability in recklessness is
justified by consciousness of the risk and by proceeding in the face of it, while in
wilful blindness it is justified by the accused’s fault in deliberately failing to
inquire when he knows there is reason for inquiry. Where the accused is
deliberately ignorant as a result of blinding himself to reality the law presumes
knowledge, in this case knowledge of the nature of the consent.

Conclusion: accused is convicted.

Rv Facts: Ewanchuk brought a 17-year-old woman into his van for a job interview.
Ewanchuk After the interview Ewanchuk invited the woman to his trailer in behind. He took
her into his trailer and began to make a series of advances. every time she
would say "no" to his advance and he would stop but would renew his sexual
advances. She testified at trial that during her time in the trailer she was very
afraid and thus did not take further action to stop the sexual conduct. Before
she left, Ewanchuk paid her $100 and told her not to tell anyone. At trial,
Ewanchuk successfully argued that, although the woman had initially said "no"
to his sexual touching, because he had continued and she had failed to object
further this constituted "implied consent.”

Application: for consent to be legally effective, must be freely given. 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. A series of conditions under which the law will
deem an absence of consent in cases of assault, notwithstanding the
complainant’s ostensible consent or participation: force, fear, threats, fraud or
the exercise of authority, and codify the longstanding common law rule that
consent given under fear or duress is ineffective. Common sense should dictate
that, once the complainant has expressed her unwillingness to engage in sexual
contact, the accused should make certain that she has truly changed her mind
before proceeding with further intimacies. The accused cannot rely on the mere
lapse of time or the complainant’s silence or equivocal conduct to indicate that
there has been a change of heart and that consent now exists, nor can he
engage in further sexual touching to “test the waters.” Continuing sexual contact
after someone has said “No” is, at a minimum, reckless conduct which is not
excusable.

Application (LHD/McLachlin): stereotypical assumptions lie at the heart of what

went wrong in this case. The specious defence of implied consent (consent
implied by law), as applied in this case, rests on the assumption that unless a
woman protests or resists, she should be “deemed” to consent. On appeal, the
idea also surfaced that if a woman is not modestly dressed, she is deemed to
consent. Such stereotypical assumptions find their roots in many cultures,
including our own. They no longer, however, find a place in Canadian law.. The
idea that she is a young woman and sexually experienced and thus should
know how to get out of a situation is completely unfounded and incorrect, a
person’s sexual history should not be relevant.

Conclusion: defence of implied consent is not a valid defence in Canada.

Conviction entered.
Rv Facts: Appellant submits that provision 273.1(2)(d) is void for vagueness and
Darrach breaches principles of fundamental justice (not a defence where consent = the
complainant expresses, by words or conduct, a lack of agreement to engage in
the activity).

Application: The provision can be regarded as introducing an objective

component into the mental element of the offence but it is one which, in itself, is
a modified one. It is personalized according to the subjective awareness of the
accused at the time. The accused is to “take reasonable steps, in the
circumstances known to the accused at the time, to ascertain that the
complainant was consenting.” In other words, the accused is not under an
obligation to determine all the relevant circumstances - the issue is what he
actually knew, not what he ought to have known. The subjective mens rea
component of the offence remains largely intact. The provision does not require
that a mistaken belief in consent must be reasonable in order to exculpate. The
provision merely requires that a person about to engage in sexual activity take
“reasonable steps ... to ascertain that the complainant was consenting.” Were a
person to take reasonable steps, and nonetheless make an unreasonable
mistake about the presence of consent, he or she would be entitled to ask the
trier of fact to acquit on this basis. Thus, this is a subjective standard as it
requires reasonable steps be taken ‘in the circumstances known to the
accused;’ and second, it does not preclude a defence of mistaken belief in
consent as it only requires that some steps be taken.

Conclusion: provision is constitutional.

Note: From this decision, it seems possible for a person to take reasonable
steps, and land at an unreasonable conclusion. This is also inconsistent with
Vasil, where a standard of subjective knowledge + objective foresight was
considered to be an objective standard. Here, however, the court is arguing that
Darrach is a subjective standard because it is objective foresight with subjective
knowledge. This is a pretty flawed and uncompelling decision from ONCA.

Also raises several policy questions:

(1) Sex assault looks like a stigma crime, as it is seen as horrible in he
public’s eye. And theft is a stigma crime, so surely sex assault.
However, it is a general intent crime, has no minimum, and has a max of
just 10 years. If this is a stigma crime, then Vasil is necessarily wrong,
as a stigma crime requires subjective fault. Conversely, if Vasil cannot
be wrong, then if this is a stigma crime it is unconstitutional.
(2) Rules vs standards and discretion: if parliament/the SCC does not trust
front line decision makers, they will set clear rules. However, if they trust
them, they will instead set standards. Here, there is lots of discretion
going to the Courts.
(3) Main two models of crime: (a) The community standards model →
criminal law follows community’s moral sense. This explains the SCC’s
general tendency to like standards over rules, as it gives more power to
the front line decision makers. However this is unable to explain the
 timeless view of morality, instead reflecting current communal views;
instrument model: criminal law is an instrument of social policy that tries
to change public attitudes. This explains myths/stereotypes, and leads to
more bright rules.

Overall, both models are prevalent in our legal system, and are given weights
for different crimes.

Rv Facts: respondent tested positive for HIV. A public health nurse explicitly
Cuerrier instructed him to use condoms every time he engaged in sexual intercourse and
to inform all prospective sexual partners that he was HIV-positive. The
aggravated respondent angrily rejected this advice. Three weeks later, the respondent met
assault the complainant KM and an 18-month relationship began. The couple had
sexual intercourse, for the most part unprotected, at least 100 times. Near the
beginning of the relationship, KM discussed sexually transmitted diseases with
the respondent and although she did not specifically ask him about HIV or
AIDS, he assured her that he had tested negative for HIV eight or nine months
earlier. KM developed hepatitis and was advised to have an HIV test. Both she
and the respondent were tested. A nurse informed KM that her test was
negative but that the respondent had tested HIV-positive. KM was advised to
undertake subsequent tests to determine whether she had developed the virus.
Once again, the respondent was told that he must use condoms and inform his
sexual partners that he was HIV-positive. The respondent replied that in order
to avoid using condoms he would wait and see if KM tested positive in a few
months and, if not, he would leave her and start a relationship with an HIV-
positive woman. For several months KM continued to have unprotected sex with
the respondent. This she did because she loved him and she did not want to put
another woman at risk. Their relationship ended. KM testified that if she had
known that the respondent was HIV-positive she would never have engaged in
unprotected sexual intercourse with him. Shortly thereafter, the respondent
formed a sexual relationship with BH. They had sex 10 times, on most
occasions without a condom. Although BH told the respondent that she was
afraid of diseases he did not inform her that he was HIV-positive. In late June
BH discovered that the respondent had HIV. She confronted him and he
apologized for lying. BH testified that if she had known the respondent had HIV
she would never have engaged in unprotected sexual intercourse with him.

Application (Cory): There can be no doubt the respondent endangered the

lives of the complainants by exposing them to the risk of HIV infection through
unprotected sexual intercourse. The potentially lethal consequences of infection
permit no other conclusion. Further, it is not necessary to establish that the
complainants were in fact infected with the virus. There is no prerequisite that
any harm must actually have resulted. This first requirement of s. 268(1) is
satisfied by the significant risk to the lives of the complainants occasioned by
the act of unprotected intercourse. The second requirement of applied force
without the consent of the complainants presents greater difficulties. Both
complainants consented to engage in unprotected sexual intercourse with the
respondent. Essential elements of fraud are dishonesty, which can include non-
disclosure of important facts, and deprivation or risk of deprivation: fraud
 pertaining to the nature and quality of the act or the identity of the partner will
still constitute fraud which can be found to vitiate consent. First requirement of
fraud is proof of dishonesty, and the second is that the dishonesty results in
deprivation, which may consist of actual harm or simply a risk of harm. Without
disclosure of HIV status there cannot be a true consent. The consent cannot
simply be to have sexual intercourse. Rather it must be consent to have
intercourse with a partner who is HIV-positive.

Application (LHD): Fraud is simply about whether the dishonest act in question
induced another to consent to the ensuing physical act, whether or not that act
was particularly risky and dangerous. The focus of the inquiry into whether fraud
vitiated consent so as to make certain physical contact non-consensual should
be on whether the nature and execution of the deceit deprived the complainant
of the ability to exercise his or her will in relation to his or her physical integrity
with respect to the activity in question. Since Parliament has, through the
assault provisions, granted broad protection to individual autonomy and
physical integrity in order to guard everyone’s right to decide under what
conditions another may touch them, it is not for this Court to narrow this
protection because it is afraid that it may reach too far into the private lives of
individuals; we can rely on prosecutorial discretion.

Application (McLachlin): return to pre Clarence rule - the law permitted fraud
to vitiate consent to contact where there was (a) a deception as to the sexual
character of the act; (b) deception as to the identity of the perpetrator; or (c)
deception as to the presence of a sexually transmitted disease giving rise to
serious risk or probability of infecting the complainant. The test for deception
would be objective, focussing on whether the accused falsely represented to the
complainant that he or she was disease-free when he knew or ought to have
known that there was a high risk of infecting his partner. The test for
inducement would be subjective, in the sense that the judge or jury must be
satisfied beyond a reasonable doubt that the fraud actually induced the consent.
Therefore, fraud should only vitiate consent where the deception is relevant to
the sexual character of the act. Should not rely on prosecutorial discretion.

Conclusion: new trial ordered

R v Mabior Facts: the respondents home was a party place. People came in and out,
including a variety of young women. Alcohol and drugs were freely dispensed.
From time to time, Mr. Mabior had sex with women who came to his house,
including the nine complainants in this case. Mr. Mabior did not tell the
complainants that he was HIV-positive before having sex with them; indeed, he
told one of them that he had no STDs. On some occasions, he wore condoms,
on others he did not. Sometimes the condoms broke or were removed, and in
some cases, the precise nature of the protections taken is unclear. Eight of the
nine complainants testified that they would not have consented to sex with Mr.
Mabior had they known he was HIV-positive. None of the complainants
contracted HIV.

Application: significant risk of serious bodily harm” connotes a position

between the extremes of no risk (the trial judge’s test) and “high risk” (the Court
 of Appeal’s test). Where there is a realistic possibility of transmission of HIV, a
significant risk of serious bodily harm is established, and the deprivation
element of the Cuerrier test is met. Cuerrier requirement of “significant risk of
serious bodily harm” should be read as requiring disclosure of HIV status if
there is a realistic possibility of transmission of HIV. If there is no realistic
possibility of transmission of HIV, failure to disclose that one has HIV will not
constitute fraud vitiating consent to sexual relations under s. 265(3)(c) (ie.
combined effect of condom use and low viral load). 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 as described in these reasons, 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.

Conclusion: convicted on some counts.

R v J(A) Facts: J.A. and his long-time partner K.D. spent an evening together at home.
While watching a movie on the couch, they started to kiss and engage in
foreplay. After some time, they went upstairs to their bedroom and became
more intimate. They both undressed, and started kissing on the bed. While K.D.
was lying on her back, J.A. placed his hands around her throat and choked her
until she was unconscious. K.D. testified that she consented to J.A. choking her,
and understood that she might lose consciousness. She stated that she and
J.A. had experimented with erotic asphyxiation, and that she had lost
consciousness before. When K.D. regained consciousness, she was on her
knees at the edge of the bed with her hands tied behind her back, and J.A. was
inserting a dildo into her anus. K.D. gave conflicting testimony about whether
this was the first time J.A. had inserted a dildo into her anus. K.D. testified that
J.A. removed the dildo ten seconds after she regained consciousness. The two
then had vaginal intercourse. When they had finished, J.A. cut K.D.’s hands
loose. K.D. made a complaint to the police on July 11. In a videotaped
statement, she told the police that she had not consented to the sexual activity
that had occurred. She later recanted her allegation, and claimed that she made
a false complaint to the police because J.A. had threatened to seek sole
custody of their two-year old son.

Application: The accused argues that requiring conscious consent to sexual

activity may result in absurd outcomes. He cites the example of a person who
kisses his sleeping partner. In that situation, he argues, the accused would be
guilty of sexual assault unless he is permitted to argue that his sleeping partner
consented to the kiss in advance. McLachlin raises several points in response.
For instance, there is the risk that the unconscious person’s wishes would be
innocently misinterpreted by his or her partner. Sexual preferences may be very
particular and difficult for individuals to precisely express. If the accused fails to
perform the sexual acts precisely as the complainant would have wanted - by
neglecting to wear a condom for instance - the unconscious party will be
unintentionally violated. Another difficulty is evidentiary. If the complainant is
unconscious during the sexual activity, she has no real way of knowing what
happened, and whether her partner exceeded the bounds of her consent. Only
one person really knows what happened during the period of unconsciousness,
 leaving the unconscious party open for exploitation. The definition of consent for
sexual assault requires the complainant to provide actual active consent
throughout every phase of the sexual activity. It is not possible for an
unconscious person to satisfy this requirement, even if she expresses her
consent in advance.

Application: DISSENT
According to the Majority, the question is “whether an unconscious person can
qualify as consenting to sexual activity.” That is not the question at all: no one
has suggested in this case that an unconscious person can validly consent to
sexual activity. Rather, the question is whether a conscious person can freely
and voluntarily consent in advance to agreed sexual activity that will occur while
he or she is briefly and consensually rendered unconscious.

Conclusion: Any sexual activity with an individual who is incapable of

consciously evaluating whether she is consenting is not consensual within the
meaning of the Criminal Code.

Note: Majority is relying on prosecutorial discretion, whereas dissent is saying

no we can’t trust them.

ATTEMPTS
Attempts are cases where the actus reus is not complete, but there is sufficient mens rea. There
are a couple potential actus reus formations used by the courts, such as mere preparation and
last step. Last step refers to when the preparation to commit a crime is in fact fully complete and
ended, whereby the next step done by the accused for the purpose and with the intention of
committing a specific crime constitutes an actus reus sufficient in law to establish a criminal
attempt to commit that crime (Cline). Mere preparation refers to an actus reus which is more
than mere preparation to commit a crime. The distinction between preparation and attempt is
qualitative and dependent on the relative proximity of the act (in time, location and between the
acts under the control of the accused remaining to be accomplished) to the nature of the
completed offence (Deutsch). For attempt crimes, the mens rea is of primary importance, and
aligned with one of ‘purpose.’ The exception is attempted murder cases, where the
constitutional floor is subjective awareness of the likelihood of death ‘knowledge’ (Ancio).

S24: (1) Everyone who, having an intent to commit an offence, does or omits to do anything
for the purpose of carrying out the intention is guilty of an attempt to commit the offence
whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an
offence is or is not mere preparation to commit the offence, and too remote to constitute an
attempt to commit the offence, is a question of law.

● Attempts are cases where the actus reus is not complete, but there is sufficient mens
rea
○ Potential actus reus formations: (Cline)
 ■ Mere preparation: the actus reus must be more than mere preparation to
commit a crime.
● The distinction between preparation and attempt is qualitative and
dependent on the relative proximity of the act (in time, location
and between the acts under the control of the accused remaining
to be accomplished) to the nature of the completed offence
(Deutsch)
■ Last step: when the preparation to commit a crime is in fact fully complete
and ended, the next step done by the accused for the purpose and with
the intention of committing a specific crime constitutes an actus reus
sufficient in law to establish a criminal attempt to commit that crime
(Cline)
○ Mens rea is one of ‘purpose’
■ Mens rea is of primary importance
■ Exception is: Constitutional floor of subjective awareness of the likelihood
of death ‘knowledge’
● For attempted murder, nothing short of intent to kill will suffice for
the mens rea of that offence (Ancio)
● There is just one general provision for all attempts
○ The statute has criminalized broadly, but what courts have done is impose a
narrowing construction on this
● There are two kinds of attempts:
○ (1) complete attempts: has done everything within your power to bring about a
prohibited conduct, but fail (bad luck, bad aim)
○ (2) incomplete attempt: has gotten sufficiently close
● With attempts, we are trying to regulate the risk of crime; risk management
● For most sentencing, you will get a discount of what you would get if it was an actual
murder
○ However, sentencing varies. Could have a graduated system where attempt to
kill is 10 years, and actually killing is 20 years (deterrence argument).
■ Some jurisdictions treat them the same. A justification of this could come
from Martineau and tracks with Lamer generally: criminal law is about
punishing subjective choices of evil.
● One can still be convicted for attempt even if their actions, if carried out, could not
possibly have led to a crime; all that is required is the intent to commit the crime and
actions attempting to further this intent (i.e. legal impossibility is not a defence) (Dynar)
○ May be different if what you believe you are doing is a crime, when it is not
(imaginary crimes)

Case Summary

R v Cline Facts: Peter C., 12 years old, was walking when the appellant stopped him and
asked him if he would carry his suitcases. The appellant had no suitcases with
him. Peter said “No” and kept on his way. Peter started to run and the appellant
 pursued him into a yard “where they make pipes for sewers and such things”.
The appellant caught up with Peter at that place and grabbed him by the sleeve
and stopped him. Peter states: “He told me I didn’t have to carry his suitcases
unless I wished to do so, and he told me not to tell anybody and said they would
be after him if I told anybody, and he gave me some money.” The appellant
then ran away. About a month later, Peter was near the same area again when
the appellant approached him and asked him “what street it was” and then “he
asked me if I wanted to make a couple of dollars carrying his suitcases.” Again,
the appellant had no suitcases with him. Peter said “No”, and the appellant went
on his way. Several other young boys testified to experiencing something
similar. In at least two cases, 2 boys said yes to Cline and he performed
‘indecent acts’ near them.

Application: the criminality of misconduct lies mainly in the intention of the

accused. Evidence of similar acts done by the accused before the offence with
which he is charged, and also afterwards if such acts are not too remote in time,
is admissible to establish a pattern of conduct from which the Court may
properly find mens rea.

Conclusion: convicted.

Rv Facts: Appellant was carrying on a business known as “Global Franchises

Deutsch Marketing,” which was engaged in selling franchises of various kinds. During
this period the appellant placed an advertisement in newspapers inviting
applications for the position of secretary/sales assistant and conducted
interviews with three women who responded to the advertisement and with a
police officer who posed as an applicant for the position and recorded the
interview on a tape-recorder. In the interviews the appellant indicated 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. The appellant also indicated that a successful
secretary/sales assistant could earn as much as $100,000 per year through
commission or bonus on the sale of franchises. The appellant did not make an
offer of employment to the three applicants who testified at his trial. After
hearing what the position required they said they were not interested and the
interviews were terminated. Nor did he make an offer of employment to the
police officer who posed as an applicant, but when she told him she was
interested in the position despite its requirements he told her to think it over and
let him know.

Application: if the appellant had the necessary intent to induce or persuade the
woman 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 interviews in which the necessity of having sexual intercourse with
prospective clients was disclosed could constitute the actus reus of an attempt
to procure. It would clearly be a step, and 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 to make the formal offer of
employment. 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.

Conclusion: retrial ordered.

R v Ancio Facts: Ancio had been married some 25 years. His wife had left the matrimonial
home and was living with a man named Kurely. Ancio was depressed and had
been drinking to excess on the date in question. He telephoned his wife at
Kurely’s residence and told her he was afraid that their 23-year-old son was
about to commit suicide and asked her to meet him. She refused to cooperate.
Later the same evening the respondent broke into a friend’s home while its
owners were absent and took away three shotguns. He sawed off the barrel of
one, loaded it and, taking some extra ammunition with him, went to Kurely’s
apartment building and gained entry by breaking the glass in the front door. On
hearing the noise caused by the breaking glass, Kurely came from his bedroom
to investigate, carrying a chair with a jacket hanging on it. He saw the
respondent, carrying the shotgun, ascending the stairs to the second floor. He
threw the chair and jacket, hitting the respondent. The gun went off. The blast
missed Kurely by some three feet but put a hole in the jacket, which had been
on the chair.
According to the respondent’s account of events, the gun was discharged
accidentally, although under tests conducted by the police the weapon was not
found to be prone to accidental discharge.

Application: 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. A person cannot intend to commit the unintentional killings
described in ss.212 and 213 of the Code (now ss.229 and 230). 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.

Conclusion: new trial ordered

R v Sorrell Facts: The regular closing time for the store was 11:00 p.m., but, on the
evening in question, since almost all the chicken had been sold, the manager
decided to close the store earlier, and locked the customer entrances at
approximately 10:45 p.m. Around ten minutes to eleven Miss Arbuckle noticed
two men, wearing balaclavas, on the Markland Street side of the store; they
 then came to one of the customer entrances on Montreal Street. They tapped
on the window, but were told the store was closed. They were holding a gun.
They walked away.

Application: there was no evidence of the intent to rob other than that
furnished by the acts relied on as constituting the actus reus. There was no
extrinsic evidence in the form of statements of intention, or admissions by the
respondents showing what their intention was. Actus reus is not sufficient here,
because they are unsure about going in.

Conclusion: acquitted.

Haughton v Facts: a considerable quantity of corned beef was stolen. Some days later, an
Smith overloaded van was noticed by the police travelling south. They stopped the
van and found the corned beef inside. The van was so badly overloaded, that
part of the cargo had to be removed, but it was then allowed to go on with the
remainder of the load and with two policemen concealed inside, and one
disguised policeman beside the driver. The object was to catch the London
receivers by using the van, and its load, as a decoy. After a rather adventurous
journey, the van arrived by a circuitous route at a rendezvous on the Ml at the
Scratchwood Service Area in Hertfordshire, where it was met, or joined, by the
Respondent and at least one other, evidently by arrangement, and then driven
on to London under the Respondent’s direction, but with the police still on
board. The Respondent played a prominent part in assisting in the disposal of
the van and its load and thus handled the goods within the meaning of the Theft
Act, 1968, s. 22. Finally the trap was sprung and various members of the
conspiracy were arrested. The completed offence of handling was not charged
since the prosecution were of the opinion that, by the time the goods were
handled, they were no longer to be treated as stolen, because in the view
taken, they were restored to lawful custody within the meaning of s. 24(3) of the
Theft Act, 1968, after the police had prepared the trap.

Application: REID
● A man may set out to commit a crime with inadequate tools. He finds
that he cannot break in because the door is too strong for him. Or he
uses poison which is not strong enough. He is certainly guilty of attempt:
with better equipment or greater skill he could have committed the full
crime. Or the person whom he attempted to murder has moved a short
distance away and he shoots at the place where the person was a short
time earlier. There may well be borderline cases of that kind. We are not
applying a rule but a principle and it must be applied sensibly.

Application: MORRIS
● To convict him of attempting to handle stolen goods would be to convict
him not for what he did but simply because he had had a guilty intention.
In my view, that would not be right.
● The word attempt clearly conveys with it the idea, that if the attempt
“had succeeded the offence charged would have been committed”; ... so
also: “An attempt must be to do that which, if successful, would amount
“to the felony charged.”
 Conclusion: not charged

United Facts: Dynar was attempting to launder money. He communicated with people
States v in the United States who were going to bring money across the border for him
Dynar to launder and return to them. However, the other party that he was dealing with
was actually an undercover FBI officer. The money that the officer was offering
Dynar to launder was not actually the proceeds of a crime. Therefore, it was
technically impossible for Dynar to commit the crime of money laundering
because this requires dealing with money that is a benefit of a crime. The US
Government wants Dynar extradited to the US to stand trial.

Application: sufficient evidence was produced to show that Mr. Dynar intended
to commit the money-laundering offences, and that he took steps more than
merely preparatory in order to realize his intention. That is enough to establish
that he attempted to launder money contrary to s. 24(1) of the Criminal Code.
There is a relevant difference between a failed attempt to do something that is a
crime and an imaginary crime. A mistaken belief cannot be eliminated from the
description of a person's mental state simply because it is mistaken. A person
who believes they are committing a crime has the mens rea of a criminal.
However, there would be a difference if the accused thought that what he was
attempting to do was a crime when it in fact was not. Therefore, only attempts
to commit "imaginary crimes", and not impossible crimes, will bar a conviction
for attempt. One can still be convicted for attempt even if their actions, if carried
out, could not possibly have led to a crime; all that is required is the intent to
commit the crime and actions attempting to further this intent (i.e. legal
impossibility is not a defence).

Conclusion: convicted.

COMPLICITY - Aiding and Abetting

There are two routes to party liability: aiding - which is contributing to acts of crime and abetting
- which is the encouraging of a crime. s. 21 has been designed to alleviate the necessity for the
Crown choosing between two different forms of participation in a criminal offence. The law
stipulates that both forms of participation are not only equally culpable, but should be treated as
one single mode of incurring criminal liability. The Crown is not under a duty to separate the
different forms of participation in a criminal offence into different counts (Thatcher). There is no
causation requirement for party liability. The Crown must prove that the accused had “purpose
with intention” (not MPC purpose) (Hibbert) (distinguished from “purpose” with “desire”). Once
this mens rea has been established, an accused can raise defences such as duress, which
ensures just acquittals in cases involving coercion by threats of death or bodily harm or
abandonment.

S.21: (1) Everyone is a party to an offence who

○ (a) actually commits it;
○ (b) does or omits to do anything for the purpose of aiding any person to commit
it; or
 ○ (c) abets any person in committing it.

● Two routes to party liability

○ Aiding - contribute to acts of crime
○ Abetting - encouraging
● Actus reus: statute is designed in a maximally offending way
● s. 21 has been designed to alleviate the necessity for the Crown choosing between two
different forms of participation in a criminal offence. The law stipulates that both forms of
participation are not only equally culpable, but should be treated as one single mode of
incurring criminal liability. The Crown is not under a duty to separate the different forms
of participation in a criminal offence into different counts (Thatcher)
● There is no causation requirement
● Some indication that by omitting to say anything, you are encouraging crime (Kulbacki)
● Some indication that if you are paying to be witness to an illegal act, you are
encouraging crime (Wilcox)
● However, mere presence at crime is not sufficient (Dunlop)
○ Something more is needed:
■ encouragement of the principal offender;
■ an act which facilitates the commission of the offence, such as keeping
watch or enticing the victim away;
■ or an act which tends to prevent or hinder interference with
accomplishment of the criminal act, such as preventing the intended
victim from escaping or being ready to assist the prime culprit
● While motive is not an element of counselling, it may be taken into account by the trier of
fact in making findings with respect to the element of intent (O’Brien)
● Mens rea for s. 21(1)(b) of the Code = “purpose” with “intention” (Hibbert) (distinguished
from “purpose” with “desire”)
○ Crown must prove the accused intended to assist the principal in the commission
of the offence
○ Equivalent to mens rea: knowledge
○ this interpretation of the mens rea for liability under s. 21(1)(b) will not result in
unjust convictions in cases involving coercion by threats of death or bodily harm,
since in these cases the common law defence of duress will remain available to
the accused.
■ Establish mens rea, then can introduce defence
○ Also, willful blindness will not negate mens rea. If it is clear that there was a
deliberate suppression of questioning and a strong suspicion that crime was
gonna happen, will have the necessary mens rea (Briscoe)
● See also: ‘conspiracy’ for abandonment defence

Case Summary
Rv Facts: JoAnn Wilson came home, drove into the garage of her home and was
Thatcher ferociously beaten and then shot to death. Twenty-seven wounds were inflicted
on her head, neck, hands and lower legs. The injuries included a broken arm, a
fracture of the wrist and a severed little left finger. A single bullet entered her
skull causing death. It was clear that either Thatcher killed her, or hired someone
to do so. Thatcher was charged with first degree murder. The trial judge also
referred the jury to s. 21(1) of the Criminal Code and further commented: Colin
Thatcher is charged with committing the offence of murder. If you do not find that
he did the act of murder himself, he is equally guilty if you find and are satisfied
that he either aided or abetted another or others in its commission. The jury was
unanimous that A did one or the other.

Application: an accused cannot be acquitted in situations when every juror is

convinced that the accused committed a murder in one of two ways, merely
because the jury cannot agree on which way.

Conclusion: conviction confirmed.

Rv Facts: The accused, a young man 20 years of age, was not actually driving the
Kulbacki motor vehicle himself but was the owner of it and had permitted a female infant,
16 years of age, although duly licensed to drive, to take the wheel of the car and
drive the motor vehicle over an unimproved municipal highway in excess of 90
m.p.h. The accused, who was sitting in the front seat beside the driver, was
charged with the substantive offence. According to the stated case, the accused
did or said nothing to stop, prevent, or attempt to stop or prevent the driver of the
car from driving in the manner in which she did.

Application: when the accused, the owner of the car, sat in the front seat on the
passenger’s side and permitted this young lady to increase the speed to such a
dangerous rate, he did, by his lack of action, encourage her to violate the law.
Every passenger in an unlawfully driven motor vehicle is not necessarily
convicted as an aider and abettor, as it is conceivable that a passenger might
not have any authority over the car or any right to control the driver, but that is
not the situation in the instant case. As above stated, he failed to make any
effort to stop or prevent the commission of the offence when he was in a position
to do so and when he had the authority to do so.

Conclusion: conviction confirmed.

Note: this is an outlier case. Not entirely clear why he has a duty to intervene,
could be due to pre-existing duty (he is car owner here).

Wilcox v Facts: Hawkins is a celebrated saxophone player. Curtis and Hughes, owners of
Jeffrey a jazz club in Willesden, invited Hawkins to the United Kingdom to perform a
concert. Although Curtis and Hawkins had applied for permission for Hawkins to
land, their petition was refused. Wilcox was present when Hawkins landed at the
airport and overheard the customs officer tell Hawkins that he would not be
allowed to seek employment while in the UK, paid or unpaid. Despite the law,
Hawkins came to the country and a concert was arranged at the Princess
Theatre in London. Wilcox purchased a ticket for the show and subsequently,
 wrote about that show for publication in his magazine.

Application: There was no accidental presence in this case. The appellant paid
to go to the concert and he went there because he wanted to report it. He must,
therefore, be held to have been present, taking part, concurring, or encouraging,
whichever word you like to use for expressing this conception. It was an illegal
act on the part of Hawkins to play the saxophone or any other instrument at this
concert. The appellant clearly knew that it was an unlawful act for him to play.
He had gone there to hear him, and his presence and his payment to go there
was an encouragement. He went there to make use of the performance,
because he went there, as the magistrate finds and was justified in finding, to
get “copy” for his newspaper. In this case it seems clear that he was there, not
only to approve and encourage what was done, but to take advantage of it by
getting “copy” for his paper.

Conclusion: convicted.

Note: this is a UK case, and could also be wrongly decided.

Rv Facts: Shortly before the robbery took place, Mr. O’Brien and William Lank were
O’Brien with Ms. Richard at her residence, according to the testimony of Ms. Richard
and the police statement of the appellant. At different places in her evidence,
Ms. Richard testified about the discussions that took place at that time about the
proposed robbery. She testified that during these discussions Mr. O’Brien said
that with only a young girl working at the store at that time a robbery would be
easy, that the robbery would be not be hard, that Ms. Richard did not have to
worry, that no one would put themself at risk for minimum wage, and that he
agreed with Mr. Lank that she should “paint” her face. Notably, if Richard had
robbed the store, she would have money to subsequently buy drugs from
O’Brien. Trial judge convicted O’Brien of counselling Richard because: O’Brien
offered words of encouragement for her to continue with the robbery. He said he
heard it was just going to be a young girl, it would be easy, not to worry about it.

Application: facts suggests that Ms. Richard had not made up her mind to rob
Elliott’s, that she was still in the process of deciding what to do at the time Mr.
O’Brien made this and his various other comments to her, contrary to Mr.
O’Brien’s submission that the robbery would have occurred with or without his
comments. While motive is not an element of counselling, it may be taken into
account by the trier of fact in making findings with respect to the element of
intent. Mr. O’Brien was a drug trafficker who made money selling drugs to
addicts such as Ms. Richard. He had sold drugs to Ms. Richard previously,
including following the November robbery. When he met Ms. Richard prior to the
December robbery she was in the process of deciding whether to commit the
robbery to get money to buy drugs. His discussion with her prior to the robbery
was supportive.

Conclusion: conviction confirmed.

R v Hibbert Facts: On November 25, 1991, Cohen, a friend of Hibbert, was shot four times
in the lobby of his apartment building. Hibbert had called for his friend Cohen to
 come downstairs from his apartment at which point another man, Bailey, shot
Cohen four times when he came downstairs. Hibbert contends that he only
acted the way he did (in calling Cohen downstairs) because Bailey threatened
him and therefore the defence of duress should apply.

Application: the term “purpose” is capable of bearing two distinct meanings,

both of which can be supported by reasoned arguments. In a case, such as this
one, where an interpretation of the term in a specific statutory context is
required, the court’s task is to determine which of the two possible meanings
best accords with Parliament’s intention in drafting the particular statutory
provision at issue. In the context of s. 21(1)(b) of the Code, the second of the
two meanings of “purpose” discussed above — that is, the interpretation that
equates “purpose” with “intention” — best reflects the legislative intent
underlying the subsection. Distinguished from “purpose” with “desire.” There is
no requirement under s. 21(1)(b) that the person charged as a party “desire” that
the victim die (that is, subjectively wish that this result come to pass), just as the
principal’s intent to kill is not negated even if, all other things being equal, he or
she regrets the fact that he or she is killing the victim.

Conclusion: new trial ordered.

R v Dunlop Facts: 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
Sylvestor party. Some eighteen men had intercourse with the complainant while she was
being held by two other members of the group. She identified Dunlop and
Sylvester as two of the men who attacked her but they 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.

Application: (Maj)
● Mere presence at the scene of a crime is not sufficient to ground
culpability. Something more is needed: encouragement of the principal
offender; an act which facilitates the commission of the offence, such as
keeping watch or enticing the victim away; or an act which tends to
prevent or hinder interference with accomplishment of the criminal act,
such as preventing the intended victim from escaping or being ready to
assist the prime culprit
● There was no evidence that while the crime was being committed either
of the accused rendered aid, assistance, or encouragement to the rape.
There was no evidence of any positive act or omission to facilitate the
unlawful purpose. One can infer that the two accused knew that a party
was to be held and that their presence at the dump was not accidental or
in the nature of casual passers-by, but that is not sufficient. A person
cannot properly be convicted of aiding or abetting in the commission of
acts which he does not know may be or are intended
 Conclusion: acquitted.

Application: dissent
● The evidence was of a nature which would permit the jury to draw an
inference that the accused were more than merely present at a crime
and had done nothing about it. The jury could conclude, beyond a
reasonable doubt, that the accused had assumed a role which would
qualify them as aiders or abettors under s. 21(2) (sic) of the Code.
● the statement that the appellants were merely present at the dump and
were passive observers of an act of sexual intercourse has 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 overlooks entirely the other
evidence which was before the jury.

Rv Facts: Courtepatte, a 13‑year‑old girl, and a young friend were lured into a car
Briscoe on the false promise of being taken to a party. Briscoe drove the group
(Laboucan and three youths) to a secluded golf course. Laboucan had said
earlier in the day that he would like to find someone to kill and Courtepatte was
chosen as the victim. On their arrival, Briscoe opened the trunk and, at
Laboucan's request, handed him some pliers. Briscoe stayed behind at the car
as the others went onto the golf course under the guise of seeking the party.
Briscoe rejoined the group around the time that one of the youths hit Courtepatte
from behind with a wrench. For a moment, Briscoe held on to Courtepatte and
angrily told her to be quiet or shut up. Briscoe then stood by and watched as
Courtepatte was brutally raped and murdered. All five persons involved were
charged with kidnapping, aggravated assault and first degree murder and the
two adults, Briscoe and Laboucan, were jointly tried by a judge alone. Briscoe
was acquitted. Did not have the mens rea because Briscoe did not have the
requisite knowledge that Laboucan intended to commit the crimes. The Court of
Appeal overturned the acquittals and ordered a new trial, holding that the trial
judge erred in law by failing to consider wilful blindness.

Application: Mr. Briscoe’s own statements to the police suggest that he had a
“strong, well-founded suspicion that someone would be killed at the golf course”
and that he may have been wilfully blind to the kidnapping and prospect of
sexual assault. His statements also show that he deliberately chose not to
inquire about what the members of the group intended to do because he did not
want to know. As he put it, “whatever you guys wanna do just do it. Don’t do it
around me I don’t want to see nothing I don’t know what the fuck you’re gonna
do”. It is clear that there was a deliberate suppression of questioning and a
strong suspicion that someone was to be killed.

Conclusion: convicted.

COMPLICITY - Conspiracy & related doctrines

CONSPIRACY: Whereas attempts and party liability are a general type of criminal law,
conspiracy is a crime itself (although it is a conspiracy to commit a further crime) and can be
charged separately. Thus, one can be both a party and be liable for conspiracy. The basic
element of a conspiracy is an agreement between 2 or more people to commit a crime.
Agreements do not need to be explicit, look at behaviour and what they agreed to.
Knowledge alone is not enough to enter a conspiracy, but rather there needs to be an intention
to agree to the plan. However, intent can be inferred from knowledge, and may be imposed
more easily for more serious crimes (Lamantagne), as there may be pressure to expand mens
rea in cases where crime is very severe (ie. carrying homeware goods vs human trafficking).
Fundamentally, must always ask: who has agreed to do what? Simply sharing the objective is
not sufficient, there must be a meeting of the minds (Cotroni).

COMMON INTENTION: The doctrine of common intention, codified in s. 21(2), attributes

criminal liability for acts done by a member of a group to the other members of the group. The
effect of this provision is that a member of a group committing a criminal act can be liable for
any incidental offences committed by its other members so long as the incidental offence was a
"probable consequence" of carrying out the initial offence. Actual assistance is not necessary.
There may be a requirement that the committed offence must not only be similar but must be
sufficiently contemporaneous with the contemplated offence (Kirkness - dissent). Also, it may be
that s21(2) is reserved for those instances where there has been a break in time between the
two offences, and the offence actually committed follows after, but as a consequence of the
offence originally planned (Kirkness - dissent). Notably, on charges where subjective foresight is
a constitutional requirement (murder and attempted murder), the objective component of s.21(2)
is not justified (Logan).

DEFENCE OF ABANDONMENT: Abandonment: in the context of s. 21(1) of the Criminal Code,

the defence of abandonment should be put to the jury only if there is evidence in the record that
is capable of supporting a finding that a person who was initially a party to the carrying out of an
unlawful purpose subsequently took reasonable steps in the circumstances either to neutralize
the effects of his or her participation or to prevent the commission of the offence (Gauthier). To
abandon liability under 21(1) or 21(2), all four of the following must be met: (1) The accused
must have an intent to abandon or withdraw from the
unlawful purpose; (2) There must have been timely communication of this intent to those who
wish to continue (3) The communication must be unequivocal and (4) The accused must take
reasonable steps to neutralize or cancel out the effects of their participation, or to prevent the
commission of the offence (meaning, there must be proportionality between the response and
the initial participation) (Gauthier).

S465(1)(c): everyone who conspires with anyone to commit an indictable offence is guilty of
an indictable offence and liable to the same punishment as that to which an accused who is
guilty of that offence would, on conviction, be liable

Party Liability - Common intention doctrine

S21(2): Where two or more persons form an intention in common to carry out an unlawful
purpose and to assist each other therein and any one of them, in carrying out the common
purpose, commits an offence, each of them who knew or ought to have known that the
 commission of the offence would be a probable consequence of carrying out the common
purpose is a party to that offence

Conspiracy under the MPC:

5. 03 (1) A person is guilty of conspiracy…to commit a crime if the purpose of promoting or
facilitating its commission he:
- agrees with such other person or persons that they…will engage in conduct which
constitutes such crime or an attempt or solicitation to commit such crime …

5. 03 (5) No person may be convicted of conspiracy to commit a crime, other than a felony of
the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and
proved…

5.03 (6) It is an affirmative defense that the actor…thwarted the success of the conspiracy,
under circumstances manifesting a complete and voluntary renunciation of his criminal
purpose

Conspiracy
● Whereas attempts and party liability are a general type of criminal law, conspiracy is a
crime itself (although it is a conspiracy to commit a further crime) and can be charged
separately
○ Party vs conspiracy: don’t have to pick or choose
■ Can be both a party and be liable for conspiracy
○ Basic elements for conspiracy: Agreement → Crown trying to approve that two
parties agreed to commit a crime
● The Code does not treat conspiracy as a defined thing, and it is not very commonly
charged
○ The focus is on collaborative elements
○ It is used as an enterprise provision → allows prosecutors to dismantle large
scale crimes and incentivize cooperation
● In international law there is: joint criminal enterprise (JCE)
○ Has been criticized: just convict everyone
○ Varying adoptions of conspiracy internationally: not seen favourably by civil
criminal systems (whereas very common in common law systems)
● There are 2 kinds of conspiracies:
○ Chain Conspiracy → hierarchy of command; connected by series of links
○ Hub and Spoke Conspiracy → one person coordinating conspiracy in the middle,
everyone is dealing with person in the middle (Interstate Circuit)
● knowledge alone is not enough to enter a conspiracy, but rather there needs to be an
intention to agree to the plan. However, intent can be inferred from knowledge, and may
be imposed more easily for more serious crimes (Lamantagne)
○ May be pressure to expand mens rea in cases where crime is very severe (ie.
carrying homeware goods vs human trafficking)
● Agreements do not need to be explicit, look at behaviour and what they agreed to
 ● Wilful blindness is not enough for a conspiracy, as a conspiracy requires agreement
between multiple parties to commit a crime (Lamantagne)
● In terms of buyer/seller arrangements, even if a seller knows that a buyer is going to use
their good/service for a crime, that generally is not enough to form a conspiracy. Rather,
knowledge + a special interest in the crime must exist (Lauria - note: US case)
● There may be a distinction between felonies and misdemeanors/petty offences and
one’s duty to take positive action to dissociate oneself (Lauria - note: US case)
● Uniform prices as the result of independent decisions, which reflect “conscious
parallelism” do not amount to conspiracy (Atlantic Sugar)
● Does not matter that a conspiracy has already been plotted and actions have been taken
to forward crime, can still be liable (Lamontagne - dicta)
● Always ask: who has agreed to do what? (Cotroni)
○ Simply sharing the objective is not sufficient. Must be a meeting of the minds.

s.21(2):
● On charges where subjective foresight is a constitutional requirement (murder and
attempted murder), the objective component of s.21(2) is not justified (Logan)
● For s21(1), the committed offence must not only be similar but must be sufficiently
contemporaneous with the contemplated offence (Kirkness - dissent)
● Section 21(2) is reserved for those instances where there has been a break in time
between the two offences, and the offence actually committed follows after, but as a
consequence of the offence originally planned (Kirkness - dissent)

Defence of Abandonment:
● Abandonment: in the context of s. 21(1) of the Criminal Code, the defence of
abandonment should be put to the jury only if there is evidence in the record that is
capable of supporting a finding that a person who was initially a party to the carrying out
of an unlawful purpose subsequently took reasonable steps in the circumstances either
to neutralize the effects of his or her participation or to prevent the commission of the
offence (Gauthier)
● To abandon liability under 21(1) or 21(2), all four of the following must be met: (Gauthier)
○ (1) The accused must have an intent to abandon or withdraw from the
unlawful purpose;
○ (2) There must have been timely communication of this intent to those who
wish to continue
○ (3) The communication must be unequivocal
○ (4) The accused must take reasonable steps to neutralize or cancel out the
effects of their participation, or to prevent the commission of the offence
(meaning, there must be proportionality between the response and the initial
participation).

Case Summary

Interstate Facts: The Government sued two groups of defendants for engaging in a price-
Circuit v fixing conspiracy. One group of eight defendants were distributors (such as
United Paramount Pictures) of motion picture films, that distributed about 75 percent of
States all first-class feature films exhibited in the United States. A second group of
defendants were dominant theater owners in Texas and New Mexico, and
included Interstate Circuit, which had a monopoly of first-run theaters in various
Texas cities. The manager of the defendant theater owners sent a letter to each
of the distributor defendants, in which he demanded as a condition of continued
dealing in the distributor's films that the distributor require that second-run
theaters never exhibit such films at any time or in any theater at a smaller
admission price than 25¢ for adults in the evening, and on such films that are
exhibited at night, minimum admission of 40¢ and that they shall never be
exhibited in conjunction with another feature picture (so-called double
features).Conferences discussing the matter were held between representatives
of Interstate and individual distributors. The distributors each agreed and
complied with the demands. It does not appear that there was evidence of
communication between distributors, but it was clear that each knew that the
other distributors were being asked to join in the plan.

Application: The theatres had no contact with each other, but A had cc’d them
all and so each theatre knew the other theatre was also fixing their price. While
a conspiracy requires proof that each party had an agreement with one another,
proof of simultaneous action is not required. Here, a tacit agreement could be
inferred to enter a conspiracy because (1) each party knew that the other parties
were involved and (2) as competitors, anyone not agreeing to the terms would
lose financially.

Conclusion: conspiracy

Note: US case but can be persuasive.

People v Facts: Lauria answering a telephone answering service, being used by sex
Lauria workers to help facilitate their business. Lauria knows it is being used by sex
workers, but his attitude is that he is running a business and he doesn’t care
what is going on, as long as he is getting paid.

Application: The duty to take positive action to dissociate oneself from activities
helpful to violations of the criminal law is far stronger and more compelling for
felonies than it is for misdemeanors or petty offenses. Positive knowledge of the
supplier that his products or services are being used for criminal purposes does
not, without more, establish an intent of the supplier to participate in the
misdemeanors. No proof that Lauria took any direct action to further, encourage,
or direct the call-girl activities of his co-defendants and we find an absence of
circumstance from which his special interest in their activities could be inferred.
Neither excessive charges for standardized services, nor the furnishing of
services without a legitimate use, nor an unusual quantity of business with call
girls, are present. The offense which he is charged with furthering is a
misdemeanor, a category of crime which has never been made a required
subject of positive disclosure to public authority. Under these circumstances,
although proof of Lauria’s knowledge of the criminal activities of his patrons was
sufficient to charge him with that fact, there was insufficient evidence that he
 intended to further their criminal activities, and hence insufficient proof of his
participation in a criminal conspiracy with his codefendants to further
prostitution. Since the conspiracy centered around the activities of Lauria’s
telephone answering service, the charges against his co defendants likewise fail
for want of proof.

Conclusion: not charged.

Note: US case so not binding.

Atlantic Facts: a group of sugar manufacturers were charged with conspiracy to

Sugar v enhance sugar prices and prevent competition. After a price war which resulted
Canada in one company going out of business, the other two agree to maintain
traditional market shares. Further, they posted price lists publicly.

Application: a tacit agreement to adopt a similar marketing policy does not

necessarily establish an agreement to conspire to lessen competition unduly.
Uniform prices were the result of independent decisions, which he called
“conscious parallelism” and do not amount to conspiracy.

Conclusion: acquitted.

R v Cotroni Facts: This case arose out of a charge of conspiracy to possess extorted funds
against the accused Cotroni and Papalia. In 1973 Papalia and Swartz extorted
$300,000.00 from another using the names of Cotroni and Violi as threats.
Cotroni and Violi were unaware that their names were being so used. A year
later Cotroni and Violi heard about the extortion and demanded half of the
extorted money from Paplia, who said that he had received only $40,000.00
from Swartz and that the rest would have to come from Swartz. It was agreed
between Cotroni, Violi and Paplia to try to obtain the money from Swartz. The
four were charged with conspiracy to possess the extorted funds and were
convicted by a judge and jury.

Application: The Crown contends that the “object” was the indictable offence of
having possession of funds, knowing they were obtained by extortion; that there
existed only one conspiracy to achieve one object; and hence that all four
accused may be convicted of conspiracy. This view overlooks the essential point
that in order to have a conspiracy one must have agreement between the co-
conspirators. There was simply no evidence of agreement between the four
alleged conspirators. There was not the common purpose of a single enterprise,
but rather the several purposes of two separate adventures. It is true that in the
most general of terms it might be said that each of these adventures had a
common object, money, with Swartz and Papalia in possession of extorted funds
and Cotroni and Violi desirous of relieving them of those funds, but there was no
general agreement. A common desire to have money cannot create a
conspiracy in the absence of a meeting of minds. The facts here show two
competing and mutually exclusive objects. In the present case, the evidence
shows that there existed two conspiracies: the first one involved Papalia and
Swartz, and its purpose was to have possession of extorted funds; the second
one involved Cotroni and Violi, and possibly Papalia, and its purpose was to
 acquire, and consequently to have possession of, part of the same extorted
funds.

Rv Facts: Trailers full of merchandise from Sears were stolen, of the value
Lamontagn exceeding $400,000. The two trailers were hidden in a warehouse located in
e Vanier, near Quebec City. These trailers were controlled by a criminal group
from the Quebec City area which wanted to sell them for approximately one fifth
of their value to another criminal group located in the Montreal area. On March
24, 1994, Jean-François Fréchette Tourigny went from Montreal to Quebec City
to act as the intermediary between the two groups of conspirators. On March 25,
1994, at around noon, he telephoned to Montreal, confirmed the transaction and
asked that he be sent the two trucks needed to transport the merchandise. The
same day, at around 12:30 p.m., Lamontagne, an independent trucker from the
Montreal area, took his truck and went to the Dunkin’ Donuts in Vanier. Mario
Demers and Guy Laroche, members of the Quebec City group, then took
possession of his truck and went and got one of the two stolen trailers.
According to the testimony of Mario Demers, the keys to the warehouse where
the stolen trailers were hidden, were on the front seat of Lamontagne’s truck,
along with a walkie-talkie. A few minutes later, Mario Demers returned with one
of the stolen trailers attached to Lamontagne’s truck, and parked next to the gas
pumps at a Petro Canada station located directly across from Dunkin’ Donuts.
Mario Demers was then alone in the truck, as Guy Laroche had got out of the
vehicle a few streets before.

Application: The evidence proves beyond a reasonable doubt that Mario

Demers was in possession and control of the stolen trailer at the time that
Lamontagne was arrested; that the appellant gave him his keys shortly before
so that Mario Demers and Guy Laroche could go and get the trailer; that the
keys to the warehouse in which the stolen merchandise was hidden were on the
seat of the appellant’s truck when Mario Demers and Guy Laroche got into it;
that when Mario Demers returned with the appellant’s truck, to which the trailer
was attached, the appellant headed to the gas pumps of the Petro Canada
station in order to fill it up. This evidence proves that having formed an intention
in common with Mario Demers to possess the trailer, Lamontagne knowingly
facilitated the former’s possession and control. Lamontagne had the requisite
mens rea not because he inferred it from his possession of recently stolen
property, but rather by basing himself on evidence of wilful blindness.
Lamontagne had suspicions, but deliberately failed to inform himself. However,
in order to prove the intent to adhere to an existing conspiracy, it is not sufficient
to prove that the accused had knowledge of an unlawful plan. It had to be
proven that he adopted it as his own and consented to participate in achieving it.
It was not sufficient for the Crown to prove that the appellant was wilfully blind as
to the unlawful provenance of his load, in order to prove that the appellant
voluntarily participated in the conspiracy. The Crown had to prove beyond a
reasonable doubt that the appellant agreed with the other conspirators to
commit the crime of possession of property obtained by crime and to participate
in achieving it.

Conclusion: acquitted from conspiracy charge.

R v Logan Facts: During one of a series of robberies by the respondents and others, a
person had been shot and severely injured. Neither of the accused had done the
shooting. Johnson, however, had admitted to being one of the robbers. He had
stated that he had had no intention to shoot and that no discussion concerning
the use of guns had taken place. Logan had boasted of being involved in
planning the robberies. The trial judge had instructed the jury that Crown was
required to establish beyond a reasonable doubt that the respondents knew or
ought to have known that someone would probably shoot with intention of killing.
The respondents were convicted of attempted murder at trial, but the Court of
Appeal overturned the convictions and substituted convictions for armed
robbery.

Application: for a murder charge under 21(2), subjective foresight is required.

Note: This also likely applies to all stigma offences; if something requires
subjective foresight per a PFJ, then liability for it under 21(2) also, most likely,
requires subjective foresight.

Rv Facts: The appellant and his friend, Alexander Snowbird went to a number of
Kirkness bars and undoubtedly drank a good deal. Snowbird took the appellant to the
alley behind the residence of Elizabeth Johnson and suggested that they break
into her house. The appellant readily agreed. They opened a window through
which the appellant entered and opened the back door for Snowbird. Elizabeth
Johnson was a slight, frail woman of 83 years. Snowbird saw her. He went into
her bedroom, removed her clothes, and sexually assaulted her. The appellant,
on the instructions of Snowbird, remained outside. He sat in a chair in the
hallway on the other side of the bedroom door for some time and otherwise
occupied himself by stealing various things from the house. The appellant also
placed a chair against the front door of the house while Snowbird was in the
bedroom sexually assaulting Mrs. Johnson. Subsequent to the sexual assault,
Alexander Snowbird dragged Elizabeth Johnson from the bedroom into the
hallway where, according to the appellant, she “just laid there.” The appellant
then entered the bedroom and there proceeded to steal various items. Upon
leaving the bedroom, the appellant saw Snowbird begin to choke the victim. The
appellant told Snowbird “not to do that because he (Snowbird) was going to kill
her.” According to the appellant, Snowbird then placed a plastic bag over the
head of Elizabeth Johnson, dragged her into the bathroom, dumped her into the
bathtub, and turned on the hot water. Appellant denied ever touching Elizabeth
Johnson or that he had participated in either the sexual assault, the choking, or
the suffocation of the victim.
The trial judge set out two options to the jury: either they could find both
Snowbird and appellant guilty of murder or the lesser included offence of
manslaughter or alternatively they could find that the death occurred because of
suffocation at the hands of Snowbird.

Application: CORY
● A verdict of manslaughter was only open to the jury if the appellant was
found to be a party to the sexual assault and the death was found to be a
result of the sexual assault. The possibility of reaching such a verdict
was not withdrawn from the jury.
 ● Cannot be said that the appellant, who had formed an intent in common
with Snowbird to carry out the unlawful purpose of breaking and entering,
knew before entering that Snowbird would either commit a sexual assault
or kill the victim.
● There is no evidence that the appellant was a party to the suffocation of
Elizabeth Johnson. Rather, he told Snowbird not to strangle the victim as
he was going to kill her. His statement makes it clear that he was not
aiding or abetting Snowbird in the strangulation or suffocation of
Mrs.Johnson
● Could perhaps be seen as a party to the sex assault, as he
aided/abetted by placing the chair at the door, but he abandoned all
intentions after he yelled ‘hey stop,’ and so cannot be liable for the
murder

Conclusion: not guilty

Application: DISSENT
● The accused neither aided nor abetted this murder because he did not
have the specific intent to assist in bringing about the death of the victim.
His liability for the victim's death turned solely upon whether he aided or
abetted the sexual assault of this woman. His actions amounted to more
than "mere acquiescence"; they were akin to those of a "look‑out" and
therefore could be considered as assisting and encouraging Snowbird in
the commission of the sexual assault which he knew was taking place.
● If the jury found that the common purpose encompassed only the
breaking and entering it might be hard to justify a finding that the death of
the occupant was a probable consequence of that purpose. If, however,
the jury determined that the common purpose also encompassed acts of
physical violence against the occupant, then the route to party liability is
much clearer.
● By placing the chair at the door, Kirkness formed a common intent with
Snowbird for the sex asault, and death was a foreseeable consequence
of it.

Rv Facts: G was charged with being a party, together with her spouse, L, to the
Gauthier 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.

Application: The appellant 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 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.

Conclusion: guilty

Application: DISSENT
● there was evidence at Ms. Gauthier’s trial upon which a properly
instructed jury might well have found that she had abandoned the suicide
pact in respect of which she was charged and convicted of murder. Or at
least have been left with a reasonable doubt on this issue, which would
of course have sufficed to warrant Ms. Gauthier’s acquittal.
● in light of the state of the law universally accepted in Canada at the time
of the appellant’s trial, it would be fundamentally unfair at this stage to
fault the appellant for failing to demonstrate anything more than a
change of intention, plus timely and unequivocal notice of withdrawal
from the murder-suicide pact. Since the appellant’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.

INTOXICATION
There are general and specific intent crimes (note that the difference between them is not clear
and it is possible that this distinction in crimes all stems from a misunderstanding of Beard). A
general intent offence is one in which the only intent involved relates solely to the performance
of the act in question with no further ulterior intent or purpose. The minimal intent to apply force
in the offence of common assault affords an example (Bernard). A specific intent offence is one
which involves the performance of the purpose going beyond the mere performance of the
questioned act. Striking a blow or actus reus, coupled with an intent or administering poison with
the intent to kill, or assault with intent to maim or wound, are examples of such offences
(Bernard). When determining whether an offence is of general or specific intent, ask: what is the
mental element of the offence, and its ‘relative importance? For example, crimes with a more
sophisticated and relatively important mens rea will likely be classified as specific intent,
whereas those which require little mental acuity – in other words, where the actus reus is truly
the crux of the offence – would fall under the latter category. The importance of the mental
element refers to the complexity of the thought and reasoning processes that are required for
any given offence. For general intent offences, the mental element simply relates to the
performance of the illegal act. Such crimes do not require an intent to bring about certain
consequences that are external to the actus reus. Nor do they require actual knowledge of
certain circumstances or consequences, to the extent that such knowledge is the product of
complex thought and reasoning processes. General intent crimes involve such minimal mental
acuity that it is difficult to see how intoxication short of automatism could deprive the accused of
the low level of intent required. In contrast, specific intent offences involve a heightened mental
element. That element may take the form of an ulterior purpose or it may entail actual
knowledge of certain circumstances or consequences, where the knowledge is the product of
more complex thought and reasoning processes. Alternatively, it may involve intent to bring
about certain consequences, if the formation of that intent involves more complex thought and
reasoning processes.

However, if that inquiry fails to yield a clear answer, courts should direct their intention towards
policy considerations (Tatton). For example, would it be wise, given the nature of the crime, for
accused persons to rely on self-induced intoxication as an exculpatory defence? Where alcohol
consumption is habitually associated with the crime in question, recognizing intoxication as a
defence may be counterintuitive whereas where self-induced intoxication rarely, if ever, plays a
role in the commission of a particular crime, preventing an accused from relying on it makes
less sense from a policy perspective. Without setting out a general rule, alcohol habitually plays
a role in crimes involving violent or unruly conduct and in crimes involving damage to property.
Although there are exceptions to this general proposition, the prevalence of alcohol in these
crimes means that there are likely to be strong policy reasons militating against an intoxication-
based defence. Other residual policy considerations may also come into play such as the
presence of a lesser included general intent offence in the main offence may be relevant and
the presence of judicial sentencing discretion may also be a factor to consider.

In Ontario, as it currently stands: If an accused is charged with a specific intent offence, the
intoxication defense is admissible. If an accused is charged with a general intent offence, the
intoxication defence inadmissible, unless the accused can prove on a balance of probabilities
they were intoxicated to the level of an automaton.

● Intoxication is not an affirmative defence, but goes to the mens rea element of crime
● Intoxication can be many things beyond alcohol (ie. prescription medication and other
drugs)
● Generally, cases concern people who are plainly drunk.
○ In these cases, the law presumes you intend the natural consequences of your
actions
○ However, in rare circumstances, there may be a person who is drunk to the
extent they are acting like an automaton
■ Not aware of what they are doing, body acting in a way that was
completely disassociated from them
● In the 19th century, criminal law began to focus on moral fault and subjective fault –
more attention being paid to the possibility that the person didn’t intend this bad
outcome.
● General and Specific Intent Crimes
○ The general intent offence is one in which the only intent involved relates solely
to the performance of the act in question with no further ulterior intent or purpose.
 The minimal intent to apply force in the offence of common assault affords an
example (Bernard)
○ A specific intent offence is one which involves the performance of the purpose
going beyond the mere performance of the questioned act. Striking a blow or
actus reus, coupled with an intent or administering poison with the intent to kill, or
assault with intent to maim or wound, are examples of such offences (Bernard)
○ Note: Distinction is not clear and could just be a basic misunderstanding of Beard
● Factors to consider for determining a specific intent offence: (Tatton)
○ (1) What is the mental element of the offence, and its ‘relative importance?
■ Crimes with a more sophisticated and relatively important mens rea will
likely be classified as specific intent, whereas those which require little
mental acuity – in other words, where the actus reus is truly the crux of
the offence – would fall under the latter category.
■ The importance of the mental element refers to the complexity of the
thought and reasoning processes that are required for any given offence.
For general intent offences, the mental element simply relates to the
performance of the illegal act. Such crimes do not require an intent to
bring about certain consequences that are external to the actus reus. Nor
do they require actual knowledge of certain circumstances or
consequences, to the extent that such knowledge is the product of
complex thought and reasoning processes. General intent crimes involve
such minimal mental acuity that it is difficult to see how intoxication short
of automatism could deprive the accused of the low level of intent
required.
■ In contrast, specific intent offences involve a heightened mental element.
That element may take the form of an ulterior purpose or it may entail
actual knowledge of certain circumstances or consequences, where the
knowledge is the product of more complex thought and reasoning
processes. Alternatively, it may involve intent to bring about certain
consequences, if the formation of that intent involves more complex
thought and reasoning processes.
■ Because of the more complicated thought and reasoning processes
required for specific intent crimes, one can more readily understand how
intoxication short of automatism may negate the required mental element.
○ (2) If the analysis under (1) fails to yield a clear answer, courts should direct their
intention towards policy considerations.
■ Would it be wise, given the nature of the crime, for accused persons to
rely on self-induced intoxication as an exculpatory defence?
● Where alcohol consumption is habitually associated with the crime
in question, recognizing intoxication as a defence may be
counterintuitive.
● where self-induced intoxication rarely, if ever, plays a role in the
commission of a particular crime, preventing an accused from
relying on it makes less sense from a policy perspective.
 ■ Without setting out a general rule, alcohol habitually plays a role in crimes
involving violent or unruly conduct and in crimes involving damage to
property. Although there are exceptions to this general proposition, the
prevalence of alcohol in these crimes means that there are likely to be
strong policy reasons militating against an intoxication-based defence.
■ Other residual policy considerations may also come into play:
● The presence of a lesser included general intent offence in the
main offence may be relevant.
● The presence of judicial sentencing discretion may also be a
factor to consider.
● If an accused is charged with a specific intent offence: intoxication defense admissible
● If an accused is charged with a general intent offence: intoxication defence inadmissible,
unless the accused can prove on a balance of probabilities they were intoxicated to the
level of an automaton
○ However: s.33(1) bars use of intoxication offence in any general intent crime that
includes as an element an assault or any other interference or threat of
interference by a person with the bodily integrity of another person)
○ Note: as law stands in Ontario right now, s. 33.1 is unconstitutional and of no
force (but on leave to appeal to SCC)

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

(2) For the purposes of this section, a person departs markedly from the standard of
reasonable care generally recognized in Canadian society and is thereby criminally at fault
where the person, while in a state of self-induced intoxication that renders the person
unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily
interferes or threatens to interfere with the bodily integrity of another person.

(3) This section applies in respect of an offence under this Act or any other Act of Parliament
that includes as an element an assault or any other interference or threat of interference by a
person with the bodily integrity of another person.

● The courts and Parliament are supposed to have a dialogue, but Daviault puts a lot of
pressure on this concept
○ Here the SCC gives their opinion on the Charter, and Parliament says no!
Introduces above legislation and doesn’t even go through the notwithstanding
clause.
● Preamble of Bill C-72 mentions that there is scientific evidence to suggest that most
intoxicants, including alcohol, by themselves, will not cause a person to act involuntarily
(Sullivan/Chan)
 ○ suggests it may not be applicable for alcohol cases but maybe drug cases only if
the legislation gets upheld at SCC
● Possible to divide charge for an indictable offence if the facts include another offence
that is punishable by indictment or summary conviction (ie. common assault + theft =
robbery) (George)

Recognized General Intent Crimes Recognized Specific Intent Crimes

● Assault (George) ● Theft (usually)

○ Mens rea for general assault is ● Robbery
so basic that it is not plausible ● Murder (or attempted murder)
that being intoxicated would
impair the person's ability that
severely
● Sexual assault (Bernard)
● Arson (Tatton)
● Manslaugher

Case Summary

DPP v Established general vs specific intent of crime. Where a specific intent is an

Beard essential element in the offence, evidence of a state of drunkenness rendering
the accused incapable of forming such an intent should be taken into
consideration in order to determine whether he had in fact formed the intent
necessary to constitute the particular crime. evidence of drunkenness which
renders the accused incapable of forming the specific intent essential to
constitute the crime should be taken into consideration with the other facts
proved in order to determine whether or not he had this intent. Evidence of
drunkenness falling short of a proved incapacity in the accused to form the intent
necessary to constitute the crime, and merely establishing that his mind was
affected by drink so that he more readily gave way to some violent passion,
does not rebut the presumption that a man intends the natural consequences of
his acts.

Rv Facts: On February 8th, 1959, George tried to sell a fur to Mr. Avergis but the
George man declined. Late the same night, when the defendant was very drunk, he
came back to the house and assaulted the man, stealing $22. He was charged
with robbery under s.288 of the Criminal Code (now s.343). The accused stated
that he was very drunk and did not remember much about the incident, but he
did remember hitting someone, and remembered the house being the same one
that he had been in earlier that day, and indeed it was the same one.

Application: Trial judge first erred by not considering whether or not to divide
the charge of robbery into the theft and assault. S.569 of the Code (now s. 662),
states that any charge for an indictable offence can be divided if the facts
include another offence that is punishable by indictment or summary conviction.
Therefore, the trial judge should have considered the charge of common assault.
The court then considered how the respondent's drunkenness affects the
 charges. The court agrees with the trial judge that the intoxication prevented the
defendant from forming the specific intent required for the original charge.
However, unless intoxicated to the point of insanity the accused could still form
the intention to strike the man (and the charge of assault only requiring that the
defendant have applied force intentionally).

Conclusion: conviction for common assault.

Leary v the Facts: The complainant testified that Leary, in a drunken condition, forced her at
Queen knife point to submit to coition and other acts of sexual humiliation. The defence
was consent. After instructing the jury that the only issue was whether or not the
complainant had consented to sexual intercourse, Meredith J. said: “I should add
too at this point, drunkenness is not a defence to a charge of this sort.” The
issue in this appeal is whether that is a correct statement of law.

Application: Rape is a crime involving only a general intention as distinguished

from a specific intention and it is therefore a crime in which the defence of
drunkenness can have no application.

Conclusion: conviction upheld.

Application: DISSENT
● drunkenness, as such, is not a defence to a charge of rape but evidence
of drunkenness may be considered by the jury, together with all other
relevant evidence, in determining whether the prosecution has proved
beyond a reasonable doubt the mens rea required to constitute the crime
● Rape is a subjective fault offence: requires that the accused be aware
that the complainant was not consenting
● Evidence of intoxication should always be admissible, because the jury
should be allowed to consider whether or not it undermined the mens rea
in any particular context
● This does not mean the jury has to rule it as a defence, in fact, often
times it will not be helpful towards to accused at all, but should still be
presented

Note: Dickson’s dissent is important here.

Rv Facts: The appellant was charged with sexual assault causing bodily harm. The
Bernard twenty-four-year-old appellant committed the sexual assault upon the eighteen-
year-old complainant in his apartment. It was conceded that intercourse had
taken place without the consent of the complainant. During the course of the
assault, the appellant punched her, caused an injury to her eye, and threatened
to kill her.

Application: MACINTRYE
● While this Court has consistently recognized the basic proposition that an
accused person should not be subject to criminal sanction unless the
Crown shows the existence of a blameworthy or criminal mental state
associated with the actus reus of the crime, it does not follow that a
person who so deprives himself by the voluntary consumption of alcohol
 or a drug of the normal power of self-restraint that a crime results, should
be entitled to an acquittal. Compelling reasons grounded in logic,
common sense, and sound social policy dictate otherwise.
● Specific intent → intent or purpose going beyond the mere purpose of the
act; (ie. assault with intent to escape; break and enter with an intent to
commit a felony)
● Charter is not violated

Application: WILSON
● The evidence of the appellant's intoxication consisted of his own
statements to the police that he was drunk; the complainant's testimony
that, while the appellant was acting out of character in making advances
to her, he was able to walk, talk and put albums on the record player; a
friend's testimony that prior to the incident the appellant had been
drinking at a bar and had become "very rowdy" although still capable of
talking and walking straight. By his own admission the appellant had
sufficient wits about him after the violent assault to hide a bloodied towel
and pillowcase from the police. There is no evidence that we are dealing
here with extreme intoxication, verging on insanity or automatism, and as
such capable of negating the inference that the minimal intent to apply
force was present
● The evidence of intoxication in this case was simply not capable of
raising a reasonable doubt as to the existence of the minimal intent
required.

Conclusion: sexual intent is general intent crime

Application: DISSENT (Dickson)

● The effect of the majority holding in Leary is to impose a form of absolute
liability on intoxicated offenders, which is entirely inconsistent with the
basic requirement for a blameworthy state of mind as a prerequisite to
the imposition of the penalty of imprisonment mandated by the above-
cited authorities
○ This would violate s.7 and 11(d) of the Charter

Rv Facts: The accused was a chronic alcoholic. He testified that he had spent the
Daviault 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. He went to the
complainant's home and sexually assaulted the woman in a wheelchair. 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.
 Application: Principles embodied in Charter and in ss. 7 and 11(d), mandate a
limited exception to, or some flexibility in, the application of the Leary rule. This
would permit evidence of extreme intoxication akin to automatism or insanity to
be considered in determining whether the accused possessed the minimal
mental element required for crimes of general intent. 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. In reality it is only those who can demonstrate
that they were in such an extreme degree of intoxication that they were in a state
akin to automatism or insanity that might expect to raise a reasonable doubt as
to their ability to form the minimal mental element required for a general intent
offence. It is obvious that it will only be on rare occasions that evidence of such
an extreme state of intoxication can be advanced and perhaps only on still rarer
occasions is it likely to be successful. Nonetheless, the adoption of this
alternative would avoid infringement of the Charter. Extreme intoxication akin to
automatism or insanity should, like insanity, be established by the accused on a
balance of probabilities.

Conclusion: direct a new trial

Application: DISSENT
● Sexual assault is a crime of general intent. In Leary v. The Queen, supra,
a majority of this Court held that drunkenness is not a defence to a crime
of general intent. While some of the judges of this Court have sought to
overrule Leary, it has not happened
● 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.
● Sexual assault is a heinous crime of violence. Those found guilty of
committing the offence are rightfully submitted to a significant degree of
moral opprobrium. That opprobrium is not misplaced in the case of the
intoxicated offender. Such individuals deserve to be stigmatized.

R v Tatton Facts: The charge against the respondent, Mr. Tatton, arose out of a fire that
destroyed the contents of his ex-girlfriend’s home. The fire began after Mr.
Tatton, in a highly intoxicated state, placed a pan with oil on the stove, set the
burner to “high”, and left the house to get a coffee at a nearby Tim Hortons.
When he returned approximately 20 minutes later, the house was on fire.

Application: s. 434 is a general intent offence for which intoxication falling short
of automatism is not available as a defence. The actus reus is the damaging of
property by fire. The mental element is the intentional or reckless performance of
the illegal act - the causing of damage to property. No additional knowledge or
purpose is needed. No complex thought or reasoning processes are required.
On its face, the level of intent required for the offence would appear to be
minimal. Challenging to see how Intoxication short of automatism would prevent
an accused from foreseeing the risk of causing damage to someone else’s
 property by fire. Complex reasoning is not required to recognize the danger.
Thus, preventing an accused from advancing the defence of intoxication does
not transform recklessness into an objective inquiry. Rather, it recognizes the
fact that intoxication short of automatism will not deprive an accused of the
minimal intent required for this crime. No need to resort to policy considerations,
but if had, would have reached the same conclusion.

Conclusion: set aside acquittal, and order a new trial.

Rv Facts:
Sullivan/C Chan Appeal
han Mr. Thomas Chan became intoxicated by consuming magic mushrooms,
something he had done before. When he realized he was not high like his
friends, he consumed more. A few hours later Mr.Chan’s behaviour changed, he
began to express that he was scared, began speaking gibberish, and ran
upstairs to his mother’s room where she and her boyfriend were sleeping. He
began calling his mother and his sister “Satan” and “the Devil” and claimed to
“see the light.” Mr. Chan then ran outside with only pants on, in below freezing
and snowing weather, to his father's house, which was just around the corner.
Although he had access to the front door, Mr. Chan broke in through a window.
Mr. Chan did not seem to recognize his father and stabbed him repeatedly. His
father died of his injuries. Mr.Chan also attacked his father’s partner, she did not
think he recognized her either, he stabbed her in her abdomen, arm, back and
chest, he also stabbed her right eye and slashed her neck. The trial judge found
that s. 33.1 violated s. 7 and 11(d) of the Charter but was saved under s. 1 of the
Charter.

Sullivan Appeal
On December 1, 2013, after ingesting between 30 to 80 of the Wellbutrin tablets
in a suicide attempt, Sullivan had a profound break with reality. He believed he
had captured an Archon in the condominium living room. Believing his mother
was an alien, he attacked her, stabbing her several times with two kitchen
knives. Mr. Sullivan attempted to rely on the defence of non-mental disorder
automatism but did not challenge the constitutional validity of s 33.1. He argued
instead that s. 33.3 did not apply in his case since his intoxication was not
voluntary. In the alternative, he invoked the mental disorder defence.
The trial judge rejected the mental disorder defence under s.16 of the criminal
code because the automatism was not caused by mental disorder, but by
intoxication. The trial judge rejected the non-mental disorder automatism
defence under section 33.1 because Mr. Sullivan’s intoxication had been
voluntary.

Application: Maj
● Voluntariness breach: It would be contrary to the principles of
fundamental justice (Charter, s. 7) and the presumption of innocence
(Charter s. 11(d)), to permit accused persons to be convicted for their
involuntary acts, as those acts are not willed and therefore not truly the
acts of the accused. S. 33.1 is contrary to the voluntariness principle of
fundamental justice and permits conviction without proof of voluntariness.
The principles of fundamental justice require that voluntariness is an
 element of every criminal offence. It is also contrary to s.11(d) to convict
someone where there is a reasonable doubt about voluntariness. The
purpose of voluntariness is to ensure that individuals are convicted only
of conduct they choose. What must be voluntary is the conduct that
constitutes the criminal offence charged, in this case the assaultive
attacks by Mr.Chan.
● Improper substitution breach: It would be contrary to the presumption of
innocence (s. 11(d)) to convict an accused person in the absence of
proof of a requisite element of the charged offence, unless a substituted
element is proved that inexorably or inevitably includes that requisite
element. A prior decision to become intoxicated cannot serve as a
substituted element because it will not include the requisite mental state
for the offences charged. Substituting voluntary intoxication for the
required elements of a charged offence violates s. 11(d) because doing
so permits conviction where a reasonable doubt remains about the
substituted elements of the charged offence. As the trial judge pointed
out s.33.1 would purport to permit Mr.Chan to be convicted of
manslaughter and aggravated assault without proof of the mental state
required by those offences, namely, the intention to commit assaults.
Proving voluntary intoxication does not necessarily prove the intention to
commit assaults, let alone the assaults charged.
● Mens rea breach: It would be contrary to the principles of fundamental
justice (Charter, s. 7) to convict accused persons where the accused
does not have the minimum mens rea that reflects the nature of the
crime. Penal negligence is the minimum, constitutionally-compliant level
of fault for criminal offences. The question becomes whether the fault
imposed by s.33.1 satisfies the penal negligence standard? It does not.
In Creighton the SCC defines penal negligence as negligence that
constitutes a marked departure from the standard of a reasonable
person. The concept of negligence that girds this standard, which is
common to the tort of negligence, operates as an objective measure that
involves an assessment of the relationship between an act or omission
and a damaging consequence. “Negligence” is not based on whether the
reasonable person intended or foresaw the damaging consequence, but
on whether a reasonable person would have foreseen and avoided the
risk that the damaging consequence could occur by not engaging in the
alleged negligent act or omission. If so, this is civil negligence. For penal
negligence to exist so that criminal liability can be imposed, the relevant
risk must be reasonably foreseeable such that it not only falls below
standards of ordinary prudence to engage in the risky behaviour but
doing so amounts to a marked departure from standards of ordinary
prudence. Elements of s.33.1: The provision applies where three
conditions are met: (1) the accused was intoxicated at the material time;
(2) the intoxication was self-induced; and (3) the accused departed from
the standard of reasonable care generally recognized in Canadian
society by interfering or threatening to interfere with the bodily integrity of
another person. A reasonable person in Mr.Chan’s position could not
have foreseen that his self-induced intoxication might lead to assaultive
behaviour, let alone a knife attack on his father and step-mother, people
he loved. The implication is that a decision to become intoxicated to any
 degree is enough to trigger s.33.1, even where the accused person
cannot reasonably expect that, as a result of that intoxication, they may
become unaware of their behaviour or incapable of consciously
controlling their behaviour. The notion that it is a marked departure from
the standards of the norm to become intoxicated, let alone mildly
intoxicated, is untethered from social reality.
● S. 33.1 cannot be justified under s.1 of the Charter
○ A pressing and substantial purpose is that the accountability
purpose is to hold individuals who are in a state of automatism
due to self-induced intoxication accountable for their violent acts.
The protective purpose is to protect potential victims, from violent
acts committed by those who are in the state of automatism. Only
the protecting purpose is pressing and substantial (accountability
is the purpose behind all criminal law)
○ rational connection: is effective at achieving accountability, but
accountability is not a legitimate goal to employ to override
Charter rights. Deterrence will also not be an outcome of this
provision.
○ Minimal impairment: not confined to general intent offences. Self-
induced intoxicated automatism cannot be used to rebut
voluntariness for any violence-based offence, regardless of
whether it involves general or specific intent. Crown has failed to
demonstrate that there are not less intrusive reasonable
alternatives.
○ The deleterious effects of s.33.1 are profound. S. 33.1 enables
the conviction of individuals of alleged violence-based offences,
even though the Crown cannot prove the requisite elements of
those offences, which is contrary to the principles of fundamental
justice and presumption of innocence. It enables the conviction of
individuals for acts they do not will.

Application: concurrence
● Although it is plausible that the legislation could discourage people from
extreme alcohol intoxication, that dynamic would not apply to people like
Mr. Chan and Mr. Sullivan. Neither was drinking. Neither had any reason
to believe that their voluntary self- intoxication would culminate in violent
psychosis. Common sense suggests that s. 33.1 would not discourage
people who lack any basis for believing that self-intoxication would cause
them to become psychotic from self-intoxicating. Because their conduct
was captured under s. 33.1, the provision is overbroad in the Bedford
sense because there is no connection between the law’s objectives and
its effects on the appellants. The law is also arbitrary in the area of
overbreadth because its effects on Mr. Chan and Mr. Sullivan bear no
connection to its stated objectives: it punishes those who did not foresee
that self-intoxication would lead to acts of violence.
● Parliament was seeking to discourage “self-induced intoxication,” which it
described as “blameworthy,” in order to prevent violence, “particularly
violence against women and children,” for which persons “should be held
accountable”: its protective and penal objectives in enacting s. 33.1 are
self-evidently pressing and substantial objectives.
 ● The expert evidence before the Standing Committee emphasized the
high correlation between intoxication (particularly alcohol-induced
intoxication) and violence, particularly violence against women and
children. While scientific research does not show that intoxication causes
violence, there is a correlation between them. Statistics confirm that
intoxication creates an environment conducive to violence and, in the
domestic violence context, alcohol is linked to an increase in the severity
of violence. The social science evidence even though not dispositive,
does establish a “reasoned apprehension” capable of grounding s. 33.1
as a rational social policy response by Parliament to a real problem. The
Preamble reflects both these issues and expressly refers to the social
science evidence.
● Parliament took pains to tailor s. 33.1 to its stated objectives, as noted by
the trial judge. The result of those efforts falls within the range of
reasonable alternatives, since: “The tailoring process seldom admits of
perfection and the courts must accord some leeway to the legislator”:
However, because s. 33.1 does not contain an exception for people like
Mr. Chan and Mr. Sullivan and those similarly situated, it is not minimally
impairing.
● The countervailing burdens are weighty. The fundamental rights of
persons caught by s. 33.1 under ss. 7 and 11(d) of the Charter are
severely limited: these are, to repeat, the presumption of innocence and
the strong criminal law requirement that the Crown prove beyond a
reasonable doubt that the violent acts of the accused were voluntary and
met the mental element requirements for criminal convictions on the
predicate violence-based charges. While it is true that the incidence of
the application of s. 33.1 is rare, that does not justify depriving even such
a small number of persons of their fundamental rights. The dramatic
effect on these rights is disproportionate to the small number of
individuals affected. Further, Parliament’s core target under s. 33.1 was
the person whose extreme alcohol intoxication would cause non-mental
disorder automatism. But it is not clear that extreme alcohol intoxication
causes non-mental disorder automatism as a matter of basic science. In
short, the defence might not even be viable as a matter of fact.

Conclusion: ss.33.1 is unconstitutional.

Note: on leave to appeal to SCC.

Appendix
Statutory Interpretation Tools:
Text: do the words used suggest
or rule out certain meanings?
● Plain meaning: read the
statute. If language is
clear, then no further
questions necessary
Context: do surrounding Purpose: what is the apparent
provisions suggest or rule out purpose of the provision?
certain meanings?
● Read specific provisions
in light of whole
regulatory framework

Stare decisis: is a particular Framers’ intent: what did the Policy: what would be the
meaning entailed by a previous
judicial decision?
● Conservatism (status
quo ante): unless
legislature specifically
states, assume status
quo continues (s. 8 of
CC: common law
remains in force if not
addressed)
Change is meaningful:
preference against having
meaningless statutes. If rights
include X and the statue says X,
then statute is pointless. Read it
so that it means something
Lastly: rule of lenity/strict construction → rule in favour of accused where ambiguous statutory provision
framers mean by the words? practical consequences of the
● Expressio unius ext proposed interpretation?
exclusio alterius: if
Parliament expressly
includes something, it
implicitly excludes
others
Constitutional avoidance: if Absurdity: don’t interpret
presented with statutory statutes in a way that could lead
interpretation argument that to absurd result
raises constitutional question,
the court prefers to avoid it