Criminal Law Cases

Andrew McKenzie

Frey v Fedoruk
Facts: -is a decision by the Supreme Court of Canada on the definition of a breach of the peace and whether being a "peeping tom" is a crime; -At the time, peeping was not specifically prohibited. Allegedly, the appellant Frey had left his truck to look into a window of a house at 11:15 P.M. A woman saw him looking in, and shouted, and her adult son took a butcher knife and went outside. He chased Frey, caught him, and called the police. The police, seeing footprints near the house, arrested Frey. Frey also alleged the police constable attacked him, although in court Frey mainly fought his arrest as false imprisonment.[1]
ISSUE Can someone be imprisoned for something (being a peeping tom ) that does not fall within a category of offences known under the criminal law?

Area of Law: Sources of the Criminal Law Principal of Law: -many rules of criminal procedure are created in the Criminal Code, and many other rules are common law based; breach of the peace is not itself a criminal offence . -Stone's arrest, done without an arrest warrant, could not be justified under the Criminal Code of Canada. The Criminal Code could not protect an officer's wrong opinion that something that is not an offence is an offence.
RATIO People can only be prosecuted for offences known to the criminal law (either in the Criminal Code or by the authority of a reported case).

Held: Imprisonment in this case failed to be justified since peeping was not a recognized crime.

R v Jobidon
Facts: Jobidon fights a man named Haggard outside a pub a hits him with such a force that Haggard was knocked unconscious. Jobidon continues to hit him in the head. Haggard dies. Haggard has consented to the fight. Area of Law: Sources of Criminal Law Principle of Law: 1. Under s.8 (3) of CC, courts may look to pre-existing common law rules and principles to give meaning to and explain the outlines and boundaries of an existing defence or justification to indicate where they will not be held legally effective, provided there is no clear language in the Code to indicate its displacement of the common law. 2. is a leading Supreme Court of Canada decision where the Court held that consent cannot be used as a defence for a criminal act such as assault which may cause "serious hurt or non-trivial bodily harm". 3. consent would be a valid defence where the harm was trivial or where it is part of a socially valuable activity such as sports. Held: An accused cannot rely on a defence of consent for causing serious hurt or nontrivial bodily harm.

R v Malmo-Levine; R v Caine
Facts: -The decision involves two cases. -The first was where David Malmo-Levine, a "marijuana/freedom activist", ran an organization in East Vancouver called the "Harm Reduction Club", which attempts to reduce the harm associated with marijuana use by educating users and the public about the drug and provide the drug at cost. In December of 1996 the police raided the Harm Reduction Club and seized 316 grams of marijuana charging Malmo-Levine with possession for the purpose of trafficking. -The second case involved the 1993 arrest of Victor Caine for possession of marijuana. Caine was in his van by the ocean when two RCMP officers approached him. He was stopped and a roach (0.5 gram) was found on him. -Both Caine and Malmo-Levine challenged the constitutionality of the criminalization of marijuana under the Narcotics Control Act.

Area of Law: The power to create criminal Offences and Rules of Criminal Procedure Principle of Law: the use of marihuanna is a proper subject-matter for the exercise of the criminal law power . The federal criminal law power is plenary in nature and has been broadly construed. For a law to be classified as a criminal law, it must have a valid criminal law purpose backed by a prohibition and a penalty. The criminal law power extends to those laws that are designed to promote public peace, safety,order,health, or some other legitimate purpose. The purpose of the former NCA fits within the criminal law power, which includes the protection of vulnerable sgroups. He argued that the constitutional power to enact criminal law under section 91(27) of the Constitution Act, 1867 is limited to conduct that causes harm. He further argued that the "harm principle" should be a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. Held: The offence of possession of marijuana does not offend Charter, S.7;

R v Heywood
Facts: - In 1987, Heywood was convicted under section s. 271(1)) of the Criminal Code for sexual assault of children. The conviction made him subject to section 179(1)(b) which prevented certain convicted individuals from loitering. -In July 1989, Heywood was arrested in Beacon Hill Park in Victoria for loitering "at or near a playground" under section 179(1). He had been spotted several times previously near the playground carrying a camera with a telephoto lens. Upon arrest the police got a search warrant and found collections of pictures of children at play. -At trial, Heywood argued that the law violated section 7, 11(d), 12, and 15 of the Charter. The court found a violation of 7 and 11(d) which was justified under section 1. Heywood was convicted.

Area of Law: Principle of Law: -illustration of a criminal offence being shut down; -The case turned on the interpretation of the word "loiter" in section 179(1)(b) which states: 179. (1) Every one commits vagrancy who ... (b) having at any time been convicted of an offence under section ... section 271..., is found loitering in or near a school ground, playground, public park or bathing area. Held: Section 179 (1) (b) violates Charter S.7 and is not saved by S. 1 (reasonable limitations); -On appeal, the court affirmed the violations of section 7 and 11(d) but also found that they could not be saved under section 1, and so the conviction was overturned. -CROWNS APPEAL DISMISSED - Loitering means to stand idly around, hang around, linger tarry, saunter, delay or dawdle. It does not require proof of any malevolent intent .

ISSUE

Is this restriction on liberty in accordance with principles of fundamental justice? Is the impugned section of the law constitutional?

RATIO

The law violates the principles of fundamental justice because it applies without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review. It restricts liberty far more than is necessary to accomplish its goal.

R v Oakes
Facts: -David Edwin Oakes was caught with 10 vials of hashish oil which he claimed he had purchased for $150 for his own use as well as $619.45 -Accordingly, he was charged with intended trafficking, under s. 4(2) of the Narcotic Control Act (NCA), despite Oakes' protests that the vials were meant for pain relief and that the money he had was from a workers' compensation cheque. -Section 8 of the Narcotic Control Act provided for a shift in onus onto the accused to prove that he was not in possession for the purpose of trafficking. Oakes made a constitutional challenge, claiming that the reverse onus created by the presumption of possession for purposes of trafficking violated the presumption of innocence guarantee under section 11(d) of the Charter. -The sole issue before the Court was whether s. 8 of the NCA was constitutional based on a balance of probabilities between the rights of the accused and the interests of society. Area of Law: Canadian Charter of Rights and Freedoms Principle of Law: -an illustration of a rule of criminal procedure being struck down; -established the famous Oakes test, an analysis of the limitations clause (Section 1) of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society. -The onus of proving that a limitation on any charter right is reasonable and demonstratably justified in a free and democratic society society rests upon the party seeking to uphold the limitation. The standard of proof is a preponderance of probabilities based on: (1) OBJECTIVE-to be served by limiting a charter right must be sufficiently important, at least relating to societal concerns that are pressing and substantial in a free and democratic society, to warrant overriding a constitutionally-protected right or freedom; (2) The means must be reasonable and demonstratably justified, in proportion to the importance of the objective. The proportionality test involves three components: i.) the measures must be fair and not arbitrary, carefully designed to achieve the objective in question, and rationally connected to that objective; ii.) the means should impair the Charter right as little as possible; and iii.) there must be proportionality between the effects of the limiting measure and the objective. R v M Drug Mart Ltd. Not every interest or policy objective is entitle to S. 1 consideration. Parliament cannot rely upon an ultra vires purpose under s.1. Held: The Court was unanimous in holding that the shift in onus violated both Oakes's section 11(d) rights and indirectly his section 7 rights, and could not be justified under section 1 of the charter

R v Labaye
Facts:Jean-Paul Labaye of Montreal was charged with operating a "common bawdy-house," a violation under section 210(1) of the Criminal Code of Canada, for owning the club l'Orage, in which persons who paid membership fees and their guests could assemble and engage in group sex and oral sex and masturbate. All of these activities were consensual and, while members paid the club membership fees, the members did not pay each other in exchange for sex. Having been found guilty, Mr. Labaye was fined $2,500 -court how to decide if activities were indecent for S.210(1); Area of Law: Charter of Rights and Freedoms Principle of Law: -how the charter changed the criminal concept of indecency (through a progression of cases); -there are two requirements that must be met to establish indecent criminal conduct in a prosecution under s.210(1) where the allegation relates to acts of indecency. 1. The first requirement is that, by its nature, D s conduct caused harm or presented a significant risk of harm to individuals or society in a way that undermined or threatened to undermine a value reflected in and formally endorsed through the Constition or similar fundamental laws by i. confronting members of the public with conduct that significantly interferes with their autonomy and l liberty; ii. Predisposing others to anti-social behaviour iii. Physically or psychologically harming persons involved in the conduct. The categories of harm are not closed. The second requirement is that the harm or risk of harm be of a degree that is incompatible with the proper functioning of society. These requirements are to be applied objectively and on the basis of evidence. Held: The majority of the Supreme Court, under Chief Justice Beverley McLachlin, held that Mr. Labaye should not have been convicted, thereby overturning the Quebec Court of Appeal.

R v Gundy
Facts: -The appellant was convicted of an Over 80 contrary to S.253(b) of the criminal code. -The appellant did not serve any notice prior to trial indicating that she intended to ask for relief under the Charter of Rights and Freedoms and did not give notice at the opening of trial of any such application. -Raised a number of issue relating to rules of practice: (Section 482 of the Criminal Code) (1) Objections to the Admissibility of Evidence (2) The Reasonable and Probable Grounds Issue (a) The Statutory Scheme

3) Reasonable and Probable Grounds and the Approved Screening Device (4) Identification of the Approved Screening Device

Area of Law: Rules of Practice Principle of Law: Canadian Criminal Counsel must be intimately familiar with the rules that apply in their jurisdiction. Held: -Appeal dismissed -In light of the above, it will be apparent that I agree with the trial judge and the appeal judge that the Crown established that the officer used an approved screening device. The officer s reference to an Alcotest did not undermine her direct evidence that she used an approved screening device. She therefore had reasonable and probable grounds to make the Intoxilizer demand and there was no violation of s. 8 of the Charter.

R v Pare
Facts: - The accused murdered a young boy two minutes after indecently assaulting him. The killing was motivated by fear that the child would tell his mother about the incident. At trial, the jury found the accused guilty of first degree murder. At the time of the offence, the criminal code provided that "murder is first degree murder in respect of a person when the death is caused by that person while committing an offence indecent assault on a male". The Court of Appeal dismissed the accused's appeal but substituted a verdict of second degree murder for the jury's verdict of first degree murder.

This appeal (from the Crown) is to determine whether the accused murdered the child "while committing" the indecent assault.

Area of Law: Interpreting Criminal Provisions Principle of Law: Issue was did murder occur while committing an offence . Accused says no because murder happened after assault. -historically criminal statutes were interpreted strictly in favor of the liberty of the accused;(R. v. Gourgon and Knowles (No. 1) (1979), ) R. v. Kjeldsen (1980), 53 C.C.C. (2d) 55 (Alta. C.A.), and R. v. Sargent -Canadian law makes liberal use of purposive interpretations. ( here the case of Steven Supra , and the Law Reform Commission of Canada Paper on Homocide 1984) were cited. Held: The appeal should be allowed and a conviction for first degree murder restored.

R v J (D)
Facts: Area of Law: Interpreting Criminal Provisions Principle of Law: Federal laws like the Criminal Code are passed in both of Canada s official languages. Each version is equally authoritative and ambiguities in one language can be clarified by the other. -The receipt of jury questions and the judicial response to them form part of the trial and must take place in the presence of all parties in open court. When jurors request that a videotape of a part of trial proceedings be replayed, the replay must be in open court in the presence of all parties. Held:

Canadian Foundation for Children, Youth & the Law v Canada (A.G.)(2004)
Facts: The Canadian Foundation for Children, Youth and the Law ("Foundation") applied for a declaration to strike-down section 43 of the Criminal Code which states, under the section entitled "Protection of Persons in Authority", 43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. The basis of which is because the provision violates: section 7 of the Canadian Charter because it fails to give procedural protections to children, does not further the best interests of the child, and is both overbroad and vague; section 12 of the Charter because it constitutes cruel and unusual punishment or treatment; section 15(1) of the Charter because it denies children the legal protection against assaults that is accorded to adults. Area of Law: Interpreting Criminal Provisions Principle of Law: -court read significant content into the concept of reasonable corrective force -the requirement that force be by way of correction means that s.43 only protects force that has an educative or corrective purpose, and is designed to restrain and control, or to express symbolic disapproval. The provision also limits the use of force to children who are capable of benefiting from correction, hence excludes force against children under two and those incapable of learning because of a disability. -court reads content into reasonable corrective force . Held: S.43 of the Criminal Code upheld

R v D Angelo
Facts: Accused was a convicted sex offender with the following condition for his probation: Prohibited from: (a) attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground, or community centre; or D Angelo had been a resident of the Crescent Town Community. There is a 25 meter swimming pool in one of the Community s buildings. It is operated by the Crescent Town Club, a non-profit corporation whose purpose is to provide recreational facilities to the Community. The club is owned by York Condominium Corporation #76 and Pine Dale Properties Ltd., the owners of, respectively, the condominium corporation and the rental units in the Community. D Angelo is a member of the club. Membership is automatic, if requested, for persons who either own a condominium or lease a rental property. D Angelo rents an apartment. He has a valid membership card. The cost of his membership is included in the rent he pays for his apartment. D Angello was caught at the pool and arrest for breaching his probation. At issue was whether the pool constituted a public swimming area. If it was not, there was no actus reus. Trial judge agreed that it was not a public place, Crown appealed.

Area of Law: Elements of a Criminal or Regulatory Offence-Actus Reus Principle of Law: -the act must be the act of the accused and must be the kind of act described in the relevant provision. Held: OCA held that: Adopting a narrow definition of public swimming pool - for example, one which excluded such large facilities as Wet and Wild Kingdom or Canada s Wonderland - would be a disservice to a particularly vulnerable group in Canadian society .. I am of the view that the trial judge erred in concluding that the swimming pool in the Crescent Town Community condominium and apartment complex was not a public swimming area . Accordingly, I would allow the appeal, set aside the acquittals and order a new trial.

R v York (2005)
Facts: Area of Law: Elements of a Criminal or Regulatory Offence-the Act of Possession Principle of Law: -P may establish personal possession of an object by proving that D exercised physical control over the object with full knowledge of its character, however brief the contact might be, along with evidence to show that D took custody of the object willing and with intent to deal with it in some prohibited way. (Treemers S. 4(3)) pg.19 Held:

R v Marshall
Facts: Marshall appealed against a conviction and sentence of marijuana possession. He was riding in a car with people who had stashed marijuana under a seat and partially covered it with a sweater. Marshall only became aware of the marijuana late into the road trip. He chose not to leave when he found out because he had no money to get back home.
ISSUE Is Appellant liable for the offence of constructive (as opposed to active) possession of marijuana by aiding and abetting the others?

Area of Law: The elements of a Criminal Offence: The Actus Reus the Act of Possession Principle of Law:
RATIO Marshall had no power to control the persons possessing the marijuana. He was not the owner of the car. Passing the pipe was almost a reflex action.

-for the concept of joint possession (S.4(3) CC) Marshall maybe have had knowledge but he did not have control. Held: Not liabe. Appeal allowed; conviction quashed

R v Terranace
Facts: The accused was deemed in possession of a stolen vehicle when he accepted a ride from the person who had stolen it.
ISSUE What is the true meaning of possession? Is control an essential element of possession in s. 3(4)(b) of the Criminal Code?

Area of Law: Actus Reus-The Act of Possession Principle of Law:

RATIO A constituent and essential element of possession under s. 3(4)(b) is a measure of control by the person deemed to be in possession by that provision.

Held: Crown s appeal dismissed. ?????? Check this

R v Pham
Facts: Pham was living in an apartment beginning in October. Her neighbor observed what appeared to be drug deals going on from a peephole in her door. In Decemeber N moved in, and drugs continued to be sold. In January police set up a surveillance team. On March 3 the Phan was seen leaving the apartment and did not return prior to the search. On March 4 the police arrested a person coming from the apartment for possession of Cocaine. On March 5th in the early morning the police search the apartment via warrant. In the bathroom they found a bunch of cocaine. Pham was not home. Pham was convicted at trial for possession and trafficking. She appealed, saying she did not have possession of the drugs. Pham appealed on 2 grounds: 1. The verdict was unreasonable and not supported by the evidence; and 2. The trial judge misapprehended the evidence. Pham argued the Nguyen was the one trafficking drugs during her absence. The premises were primarily occupied by the appellant and Nguyen. People were coming and going to the apartment. Witnesses said she saw appellant talking through the door and letting people with cash in. Surveillance officers saw and knew drug addicts going into the apartment. Police get a search warrant and find crack/money in room shared by both. Legal issue is : whether the appellant had knowledge and control of the cocaine found in the bathroom and therefore in her possession.

Area of Law: Actus reus-the Act of Possession Principle of Law: -to constitute constructive possession, P must prove that D had knowledge that extended beyond mere quiescent knowledge and disclosed some measure of control over the subject-matter. (Treemers-S.4, pg. 20) -to constitute joint possession, P must prove that D had knowledge, consent and some measure of control over the subject-matter. appellant had sufficient knowledge and control to constitute constructive possession of the cocaine either personally or jointly with Nguyen

In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession . a.) Accused elected to use home for trafficking and was an occupant and in control of home while away; b.) black cloth purse containing drugs was in full view of bathroom a common area in apt c.) the cloth purse is consistent with other belongs of the appellant d.) no evidence of mens toiletries in the bathroom e.) drgu related dime bags found in main bedroom. f.) circumstantial evidence demonstrated Pham knew what was going on g.) Mr. N either filler Pham s shoes was she was away or he jointly operated the scheme with her.

Held: Conviction upheld.

R v Ewanchuk (1999)
Facts: The accused made sexual advances on a girl, and she was saying no the whole time. When she said no, the guy would stop, and would start again later. Afraid, her subsequent refusals were not as vehement. The trial judge held that the complainant s failure to communicate her fear rendered her subjective feelings irrelevant, and acquitted the accused. He characterized the accused s defence as implied consent .

ISSUE

Is implied consent an available defence in Canadian sexual assault cases?

Area of Law: Actus Reus-Consent as an element of the Actus Reus Principle of Law:

RATIO
Held:

The doctrine of implied consent has been recognized in our common law in a variety of contexts, but sexual assault is not one of them. The complainant either consented or not. There is no third option.

-Meaning of consent in the context of an honest but mistaken belief in consent The question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said yes through her words and/or actions. Different from consent in actus reus. Limits on honest but mistaken belief in consent 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 L Heureux-Dub J.: Unless and until an accused first takes reasonable steps to assure that there is consent, the defence of honest but mistaken belief does not arise.

Implied consent not an available defence. Crown s appeal allowed; conviction substituted

R v Cuerrier
Facts: HIV-positive accused rejected a nurse s advice to wear a condom and inform prospective sexual partners of his HIV status. He had consensual unprotected sex with two people and was charged with aggravated assault. His partners said they would not have consented had they known the accused was HIV-positive.
ISSUE Is the accused guilty of aggravated assault?

Area of Law: Actus Reus-Consent as an Element of the Actus Reus Principle of Law:-fraud (S.268?) does not vitiate consent.
There are common law limitations on fraud for assault. Fraud as to collateral aspects of a consensual encounter, like the possibility of contracting a serious venereal disease, does not vitiate consent. Parliament is better suited to change this in order to prevent convictions on assault charges where the fraud consisted of a promise to marry or to buy someone a fur coat.

RATIO

Held: -Currier committed fraud. Crown Appeal allowed; new trial ordered.

R v Williams
Facts: -Man charged with aggravated assault on the basis that he had sexual relations with a woman while knowing he was HIV positive. The man learned he was HIV positive in November, but began having intercourse with the woman in June. He failed to inform the woman he was HIC positive after November. The woman became HIV positive, but there was no telling at what point she became HIV positive. Issue: is whether an accused who fails to disclose that he is HIV-positive can be convicted of an aggravated assault endangering life by engaging in unprotected sex with a complainant who, at the time of the alleged assault, could herself have been infected with HIV. Area of Law: Actus reus-Causation Principle of Law: -if causation is not proved, the accused cannot be convicted of an offence that requires his act to produce a prohibited consequence. The aggrevation in aggravated assault comes from the consequences which include endangerment of life. Exposure to HIV may endanger life, but not where there is reasonable doubt that V s life was capable of being endangered by reexposure to a virus V may have already acquired. The focus in the external circumstancesa is on the nature of the consequences, not the nature of the assault. Held: In the absence of evidence of endangerment of life [ No ACTUS REUS-Causation lacking], D should be found NOT GUILTY of aggravated assault, but guilty of attempted aggravated assault. (Nfld, C.A.) there is an attempt when the mens rea of the completed offence is present entirely and the actus reus is present in an incomplete but more than preparatory way.

R v Menezes
Facts: Two young men driving in street race. One man is killed by driving into a pole after accused has shown by slowing down that he is out of the race. Accused charged with criminal negligence causing death while operating a motor vehicle. Criminal negligence is the reckless regard for others. Death would not have occurred if it wasn t for the participation in criminal negligence. Area of Law: Actus Reus-Causation Principle of Law: -shows that causation is a two-stage analysis, requiring factual causation and [legal or imputable causation](able to be assigned blame). Ratio- Accused stopped chain of causation by withdrawing from the race. Held: Acquitted from charge but charged with dangerous driving offence.

R v Nette
Facts: A 95 year-old widow was robbed and left hog tied in her room. Over a period of 48 hours she suffocated to death. During an undercover investigation, a suspect, Daniel Nette, had admitted to an undercover officer that he had robbed and killed the widow. Nette was arrested and charged with first-degree murder under section 231(5) of the Criminal Code. The leading case on causation was R. v. Smithers (1978) which required proof of "a contributing cause of death, outside the de minimis range". In his appeal to the Supreme Court, Nette argued that trial judge misdirected the jury on the standard of causation applicable to second degree murder. The issue before the Supreme Court was whether the standard for causation should be the de minimis test from Smithers or the "significant contributing cause" test from R. v. Harbottle. Area of Law: Actus Reus-Causation Principle of Law: The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him That principle applies equally in the criminal context and is reflected, in part, in ss. 222(5)(d) and 226 of the Criminal Code. As expressed by McLachlin J., as she then was, in Creighton, supra, at p. 52: The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take respoconsequences that ensue, even to death. The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite mens rea for the offence charged, which consists of objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act -the causation standard is that of R v Smithers (1977) [black hockey plaeyer died from kicks] The fact that death would not ordinarily result from the unlawful act is no defence to a manslaughter charge. One who assaults another must take the victim as he finds him. Causation is a question of fact for the jury, not experts, to determine on all the evidence before them, both lay and expert. In order to establish causation, P need only establish that the cause was at least a contributing cause of death, outside the de minimus range. (the law does not concern itself with triffles-wiki def.) -Do not apply substantial cause s test in R v Harbottle. Held: Nette appeal dismissed.

R v Moore
Facts: Moore had run a red light on his ten-speed bike and then obscenely rebuffed a police officer when the latter told him to stop in order to write him a ticket. Moore was charged with unlawfully and wilfully obstructing a Peace Officer in the execution of his duty by failing to give his name as required by the Motor-vehicle Act.
ISSUE Does Moore have a duty to identify himself and did he obstruct the constable by refusing to identify himself in the exercise of his duties?

Area of Law: Actus Reus-Omissions Principle of Law: RATIO

The constable witnessed Moore committing an infraction and could only have arrested him for it after identifying him so that Moore might be the subject of summary conviction proceedings.

Held: -Yes Moore has a duty. Appeal dismissed. There is a strong dissent in this case by Dickson J. (Estey J. concurring) who held that there is neither a commonlaw nor statute-based duty for a person to identify oneself. Furthermore, Dickson J. argues, the power of arrest is such that the constable could have arrested Moore in order to establish his identity and therefore it cannot be said that Moore is guilty of the serious offence of obstructing the constable.

R v Peterson (2005)
Facts: -(S.251(1))Arnold was an elderly man who had deteriorated over time. He was very dirty, hungry and unable to look after himself. The children were living at the house at different times. The sister stated that the son Dennis was very good to the father and the father was very independent. A doctor had determined that Arnold was in the early stages of dementia. Denis made decisions that had Arnold not able to receive the necessities of life. Dennis locked all the doors to the a working kitchen and bathroom. He did not take advice and call a meals on wheels program or group which could help Arnold. Arnold was incapable of removing himself from Dennis s care because he was demented. Area of Law: Actus Reus-Omissions Principle of Law: -S.215(1)-The phrase necessities of life includes not only food, shelter,and medical attention necessary to sustain life, but also protection from harm. -duty to provide necessaries of life to person under charge.
Exception: where there is financial inability to act (R. v. Naglik)

Held: Leave to appeal refused.

R v Browne (1997)
Facts: Browne and his deceased girlfriend dealt drugs together. To avoid detection during a strip search, the girlfriend swallowed a plastic bag of crack cocaine. She failed to vomit it up and later that night Browne found her shaking and sweating so he said he would take her to the hospital and called a cab to do so. The cab took too long to arrive and take her to the hospital, and she later died.
ISSUE Had Browne undertaken a legal duty to bring the victim to the hospital making him criminally negligent when he called a cab instead of 911, and thereby causing the death of his girlfriend?

Area of Law: Actus Reus-Omissions Principal of Law: undertaking occurred when the accused had agreed to take her to the hospital. He used a taxi instead of calling 911 and could be considered a wanton and wreckless disregard . To find a legal duty there first has to be an undertaking s 217 which everyone 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 . It differs from s 215 in the sense that 215 flows from relationships like parent-child etc. Then ask: was there a breach of the undertaking or a wanton and reckless disregard s219(1) There is really no evidence that the appellant knew that the deceased was in a life threatening condition. He just said he would take her to the hospital. Held: Brown had not undertaken a legal duty. allow the appeal, set aside the conviction, and enter an acquittal.

R Vandergaff
Facts: Fan throws peanut butter intending to hit ice surface and injures another spectator in arena. Area of Law: Mens Rea-Intention and Ulterior Mens Rea Principle of Law: -The accused must have the very intention required by the relevant provision. -Vandergraff (S.267 Assault with a weapon causing bodily harm). -Assault with a weapon requires proof that D intended to apply force, directly or indirectly, to another person. Where D throws an object, intending it to strike the ice surface of an arena, but the object accidentally strikes and injures a fellow spectator -he could have been charged with criminal negligence causing injury, but the wrong charge was made. Held: Not Guilty

R v Murray
Facts: On May 6, 1993, on written instructions of Bernardo, Murray attended at the Bernardo home and removed from it videotapes which depicted gross sexual abuse of Kristen French, Leslie Mahaffy, Jane Doe and Tammy Homolka. Without disclosing their existence to the Crown, he retained the tapes for 17 months. Trial motions were to begin on September 12, 1994. On September 2, 1994, Murray, through his counsel, applied to the Law Society of Upper Canada for advice. Accepting that advice Murray appeared before the trial judge, Associate Chief Justice LeSage (now Chief Justice S.C.O.), who directed that the tapes, their integrity protected by suitable undertakings, go to John Rosen, new counsel for Bernardo, at which time Murray was given leave to withdraw as counsel. Rosen, on September 22, 1994, turned the tapes over to the police and they were used by Crown counsel at the trial. A jury found Bernardo guilty on all charges. Murray now faces this charge of attempt to obstruct justice by concealment of the videotapes Area of Law: Mens Rea-Intention and Ulterior Mens Rea Principle of Law: The onus is on the Crown to prove beyond a reasonable doubt that it was Murray s intention to obstruct the course of justice. The factual questions of intent then are: 1. Did Murray intend to conceal the tapes permanently or only up to the point of resolution discussions or trial? 2. If the latter, was it his honest belief he was entitled to do so? Answer to 1) Murray was going to use them at trial on cross against Holmaka. Further, he was going to use them to negotiate a settlement. The judge felt this to be feasible and therefore Murray did not intend to withhold the tapes permanently. Answer to 2) If I make the assumption Murray intended to use the tapes in the defence, I have no difficulty with the proposition that he may well have believed under the circumstances he had no legal duty to disclose the tapes until resolution discussions or trial.

Held: Murray attempted to hold the Bernardo tapes, but not for the purpose of obstructing justice.

R v J.S.R.
Facts: Gunfight on boxing day in Toronto. R(JS) is on the side of the street where the victim is. The fellow he is exchanging gunfire with is on the otherside of the street. In a exchange of bullets, several people are shot. The victim on R(JS) side of the street is a 15 year old girl and she is shot dead. R(JS) is not the shooter of the 15 year older girl, but was exchanging fire with the other shooter. R(JS) is charged with second degree murder in connection with the death of the 15 year old girl. At issue, et el, is whether R(JS) had the men rea to commit murder in the second degree. s. 229. Culpable homicide is murder ... (c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. Area of Law: Mens Rea-Intention and Ulterior Mens Rea Principle of Law: Section 229(c) maybe invoked where an innocent bystander is killed in a shootout on a busy urban street. Murder is proven if P proves beyond a reasonable doubt that in carrying out the unlawful object of trying to kill his or her adversary, D engaged in a public shootout that D knew was likely to kill someone other that D s target and such conduct substantially contributed to V s death. (Treemears) [-there are two mens rea requirements in s. 229( c). The section contemplates some act or conduct by D to bring about some further unlawful object, other that the injury that causes death. This unlawful object must be one that, if prosecuted fully, would amount to an indictable offence that requires mens rea. -the second mens rea requirement involves subjective foresight of death. It requires that P prove that D knows that the act (s) done for the unlawful object are likely to cause death or bodily harm to anybody. It is enough that D has the subjective foresight that the acts done for the unlawful object are likely to cause death, and that the acts are sufficiently linked to the death to have caused it within s. 229 (c).] R v Meiler 1999 Held: Order to stand trial for second degree murder

R v Theroux (1993)
Facts: Throux was the directing mind of a residential construction company that took deposits from co-contractants on the basis that the deposits were insured. They weren t. The company went bust and the deposit money was lost. Throux was charged with fraud. Issue: What constitutes the mens rea for the offence of fraud? Did Throux s belief that the houses would be built negate the mens rea for fraud? Area of Law: Mens Rea-subjective mens rea with objective features Principle of Law: -The mental element of fraud is established by proof of subjective knowledge: i. Of the prohibited act; and ii. That performance of the prohibited act could have, as a consequence, the deprivation of another, including putting the pecuniary interests of another at risk. In some cases, item ii, above, may be inferred from the prohibited act itself, absent some explanation that casts dout upon the inference. Where the external circumstances and mental element are established, D s guilt is made out, whether D actually intended the deprivation or was reckless as to its occurance. D s belief that the conduct is not wrong, or that no one will be hurt in the end, affords no defence.
RATIO Throux had subjective knowledge that others would act on his lie and he thereby put their property at risk.

-Theroux may be said to have been reckless in that recklessness is a subjective mens rea with objective features because it exists where it is objectively unjustifiable to take that risk the accused understood was taking. The fact that the accused may have felt the risk to be justifiable would be no answer. Held: Appeal dismissed, T s belief did not negate mens rea.

R v Chase
Facts: Respondent was convicted of sexual assault contrary to the Criminal Code. He entered the home of the complainant, a fifteen year old girl, without invitation, seized her around the shoulders and arms and grabbed her breasts. When she fought back, he said: "Come on dear, don't hit me, I know you want it." She testified at trial that he tried to grab her "private" but did not succeed. On appeal, the Court of Appeal expressed the view that the modifier "sexual" in the new offence of sexual assault should be taken to refer to parts of the body, particularly the genitalia. Because there was no contact with the complainant's genitals, the conviction at trial was set aside and a conviction for common assault substituted. Crown Appealed. The only question arising in this appeal is that of the definition of the offence of sexual assault. Area of Law: Men Rea-subjective mens rea with objective features Principle of Law: Sexual assault is an assault committed in circumstances of a sexual nature, such that the sexual integrity of V is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is objective. The intent or purpose of the assault, as well as motive if such a motive of sexual gratification, may also be factors in considering whether the conduct is sexual. Held: Viewed objectively in the light of all the circumstances, it is clear that the conduct of the respondent in grabbing the complainant's breasts constituted an assault of a sexual nature.

R v Buzzanga and Durocher (1979)

Facts: The defendants put out a satirical document that appeared to be promoting hatred of French Canadians. They actually intended the document to sway public opinion in favour of building a Frenchlanguage high school in the area. They were charged and convicted with wilfully promoting hatred. The trial judge treated the defendants testimony that they wished to create a controversy, furor, and uproar as a virtual admission that they had the state of mind requisite for guilt. Issue: Did the trial judge err in his decision? Area of Law: Mens Rea-Recklessness Principle of Law: -An intention to create controversy, furor and uproar is not the same thing as an intention to promote hatred and it was an error to equate them. - The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crimes, is either the intentional or reckless bringing about of the result which the law, in creating the offense, seeks to prevent . -D willfully promoted hatred only if (a) their conscious purpose in distributing the document was to promote hatred, or (b) they foresaw that the promotion of hatred was certain or almost certain to result, but distributed the document as a means of achieving their purpose of obtaining a school. (Treemears) Held: Trial judge erred. Appeal allowed; new trial ordered.

R v Currie
Facts: Currie charged with unlawfully and knowingly uttering a forged document (trying to cash a stolen cheque at a CIBC branch). He claims he didn t know it was a stolen cheque with a forged signature on the back and was only trying to help out the guy who gave it to him to cash, who seemed like an honest guy. The trial judge convicted on the ground that Currie was wilfully blind. (He deliberately or knowingly neglected to make the inquiries which he ought to have made. The accused must take on some responsibility, make some inquiries as to the validity of the cheque from whom he was obtaining it, before he voluntarily proceeded to cash that cheque through his bank.) Currie appealed. Issue: Should the doctrine of wilful blindness apply here? Area of Law: Mens Rea-Willful Blindness Principle of Law: T-he doctrine of constructive knowledge has no application in criminal law. - Wilful blindness is only applicable when a suspicion arises and a person omits to make further inquiries. That is not the case here. Currie was never suspicious. Perhaps Currie ought to have known but this does not constitute knowledge for the purpose of criminal liability. Held: Appeal allowed; Currie acquitted. Wilful blindness does not apply.

R v Duong
Facts: The accused let a friend, whom he knew was wanted on two counts of murder, hide out in his apartment. The cops raided the apartment and found the wanted man. They asked Duong what the wanted man had told him and Duong answered that he knew his friend was in trouble but didn t want to know more because he knew he d be in trouble for helping his friend hide. Duong was charged and convicted of being an accessory to a murder after the fact. Duong appealed. Issue: Does the accused need to have the means to make an inquiry in order for the doctrine of wilful blindness to apply? Area of Law: Mens Rea-Wilful Blindness Principle of Law: The trial judge was reasonable in inferring from the appellant s statements a state of mind encompassing the suspicion that his friend was in trouble for being a party to murder. The fact that Duong may have contemplated other possible connections between his friend and the murders afforded no bar to finding that he was wilfully blind to his friend s being a party to a murder. Held: (No in response to Issue), Appeal dismissed.

R v Vinikurov
Facts: -The accused, who was the manager of a pawn shop, was convicted of 7 counts of possession of stolen property in receiving property from a customer who stole the items from a series of break and enters. -The accused completed all the required paperwork respecting the property (pawnshop sheets forwarded to police), made inquiries with his mother (the owner of the pawnshop) to determine whether he should purchase the merchandise. and denied knowing the items were stolen. -The customer had produced his birth certificate and Corrections Canada release card as identification to the accused. -Crown has to prove accused knew the property was stolen. Area of Law: Mens Rea-Wilful Blindness Principle of Law: In citing R. v. Jorgensen, [1995] 4 S.C.R. 55), the test for willful blindness was expressed as follows: A finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? Recklessness presupposes knowledge and arises when a person persists in their conduct knowing that there is a risk of danger; they see the risk but take the chance. In imputing knowledge on the basis of recklessness and not willful blindness, the trial judge erred. Held: The Alberta Court of Appeal (2:1) quashed the accused s convictions and ordered a new trial.

R v Briscoe
Facts: -C, a 13-year-old girl, and a young friend were lured into a car on the false promise of being taken to a party. -B drove the group, which included L and three youths, to a secluded golf course. -Unbeknownst to C or her friend, L had said earlier in the day that he would like to find someone to kill. -It would appear that the idea had been generally well received and C was chosen by L and some of the others as the victim. -On their arrival, B opened the trunk and, at L s request, handed him some pliers. -B stayed behind at the car as the others went onto the golf course under the guise of seeking the party. -B rejoined the group around the time that one of the youths hit C from behind with a wrench. -For a moment, B held on to C and angrily told her to be quiet or shut up. -B then stood by and watched as C was brutally raped and murdered. -All five persons involved were charged with kidnapping, aggravated assault and first degree murder and the two adults, B and L, were jointly tried by a judge alone. -B was acquitted. The trial judge found that the actus reus for being a party to the offences was proven, but not the mens rea because B did not have the requisite knowledge that L 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. -B appealed. Area of Law: Mens Rea-Wilful Blindness Principle of Law: -The doctine of wilful blindness attributes subjective knowledge to D where D s strong suspicions are aroused, but D refrains from making inquiries to confrim those suspicions. Actual knowledge or knowledge attributed to D through the application of the doctrine of wilful blindness provide the same foundation for determining whether mens rea has been established. -Wilful blindness may be relied upon to establish the mens rea of murder since it does not leave open the possibility of reasonable doubt as to the subjective forseeability of death and is not based on objective considerations. (Treemears S.8). (hence he aided and abetted);

Held: The appeal should dismissed. Even 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 (para. 30) 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.

R v Martineau
Facts: -The accused and a companion robbed a trailer. --After the robbery, the companion killed the occupants of the trailer contrary to what the accused had intended. Issue: Does felony murder and the objective foresight standard violate the Charter? Area of Law: Mens Rea- Objective Mens rea and true crimes Principle of Law: -Since subjective foresight of death must be proven beyond a reasonable doubt to sustain a conviction for murder, the phrase ought to know is likely to cause death in s. 229 (c ) probably infringes Charter ss. 7 and 11 (d) and would not likely be saved under S.1 . -Subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained Held: Crowns appeal dismissed; new trial ordered. Dissenting voices: L Heureux-Dub J.: objective foreseeability is an ok standard and we should be mindful of policy considerations. Sopinka J. (concurred in the result): Mr. Chief Justice Lamer went too far in his sweeping statements about broad principles and should have restricted his comments to the facts of the instant case.

R v Creighton
Facts: -The accused injected cocaine into the body of the deceased. -The Crown argued that the accused was guilty of manslaughter as the death was the direct result of that unlawful act. -The accused was convicted at trial and the C.A. upheld this. The common law s definition of unlawful act manslaughter required the objective foreseeability of the risk of bodily harm which is neither trivial nor transitory. The foreseeability of death is not required. Issue: What is the meaning of negligence in the criminal law? Area of Law: Mens Rea-Objective Mens rea and true crimes Principle of Law: For negligence to qualify in criminal matters, it must constitute a marked departure from the standard of the reasonable person. Personalizing the objective test to the point where it devolves to a subjective test would erode the minimum standard of care which Parliament has laid down by enactment of offences of manslaughter and penal negligence. - Incapacity to appreciate the risk which an activity entails is the only exception. - Mens Rea for Mansalughter (S.234)(Unlawful Act-Involuntary): 1.The mens rea of the underlying offence; and 2. Objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, in the context of the dangerous act. Held: The S.C.C. confirmed that the common-law rule does not violate s. 7 of the Charter.

R v Beatty (2008)
Facts: -The accused was charged with dangerous operation of a motor vehicle causing death under s. 249(4) of the Criminal Code. -The accident that gave rise to these charges occurred when the accused s pick-up truck, for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming vehicle, killing all three occupants. Witnesses driving behind the victims car observed the accused s vehicle being driven in a proper manner prior to the accident. -An expert inspection concluded that the accused s vehicle had not suffered from mechanical failure. Intoxicants were not a factor. The accused stated that he was not sure what happened but that he must have lost consciousness or fallen asleep and collided with the other vehicle. -The question that divided the courts below was whether this momentary act of negligence was sufficient to constitute dangerous operation of a motor vehicle causing death within the meaning of s. 249(4). -The trial judge concluded that these few seconds of negligent driving could not, without more, support a finding of a marked departure from the standard of care of a reasonably prudent driver. -The Court of Appeal set aside the acquittals and ordered a new trial, finding that the accused s conduct of crossing the centre line into the path of oncoming traffic could only be viewed as objectively dangerous and a marked departure from the requisite standard of care. -The determining question then became whether there was an explanation for the accused s conduct that would raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused s conduct. Area of Law: Mens Rea-Objective Mens Rea and True Crimes Principle of Law: The external circumstances of dangerous operation are defined by the terms of s.249. P must prove that, viewed objectively, D was driving in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. It is the manner in which the motor vehicle was operated at the time that is at issue, not the consequences of D s driving. The consequences of D s driving have no bearing on the question whether the offence of dangerous operation has been made out. The mental element in dangerous operation does not require proof that D had a positive state of mind, such as intent or recklessness. P must establish, on the basis of all the evidence, including any evidence about D s actual state of mind, that D s conduct amounted to a marked departure from the standard of care that a reasonable person would observe in D s circumstances. Where D offers an explanation for the manner of his or her operation, the trier of fact must be satisfied beyond a reasonable doubt that a reasonable person in similar circumstances must have been aware of the risk and danger involved in D s conduct. Short of incapacity to appreciate the risk or to avoid creating it, personal attributes, like age, experience, and education are not relevant. (Treemears S. 249) Note: R v Hundal Held: The appeal should be allowed and the acquittals restored.

R v DeSousa
Facts: -The accused was involved in a fight and he allegedly threw the bottle which broke against a wall and injured a bystander on the arm. -He was charged with unlawfully causing bodily harm. The judge quashed the indictment because the section included offences of absolute liability and allowed the possibility of imprisonment, and therefore contravened s. 7 of the Charter. -C.A. overturned acquittal and accused appealed. Issue: Does the impugned section violate s. 7 of the Charter? Area of Law: Mens Rea-Objective Mens Rea and True Crime Principle of Law: Justice Sopinka, writing for the Court, held that s.269 did not violate s.7. 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 (R. v. Martineau). Ratio: The S.C.C. proposes that we read down the impugned section so that it excludes all offences based on absolute liability and which have constitutionally insufficient mental elements of their own. They also read into the term unlawfully the requirement that an act be at least objectively dangerous. Interpreted this way, the impugned section complies with the Charter. Held: Not a violation. 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 violation. Appeal Dismissed.

R v Sault Ste. Marie

Facts: The city of Sault Ste. Marie, Ontario hired Cherokee Disposal to dispose of the city's waste. The city built a disposal site 20 feet from a stream which, when filled by the disposal company, resulted in waste seeping into the stream. The city was charged with discharging, or permitting to be discharged, refuse into the public waterways causing pollution pursuant to section 32(1) of the Ontario Water Resources Act. The issue before the court was whether the city's offence should be classified as strict liability or absolute liability. The Court of Appeal for Ontario held that the charge required proof of mens rea which on the facts would acquit the defendant. -Crown appealed; Area of Law: Regulatory Offences Principle of Law: - charge is not duplicous In the judgement written by Chief Justice Dickson, the Court recognized three categories of offences: True Crimes: Offences that require some positive state of mind (mens rea) as an element of the crime. These offences are usually implied by the use of language within the charge such as "knowingly", "willfully", or "intentionally". Strict Liability: Offences that do not require the proof of mens rea. The act alone is punishable. The duty is on the accused to have acted as a reasonable person and has a defence of reasonable mistake of fact (a due diligence defence). The Court stated that the due diligence defence "will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability." The reason for this is that the Court described a need for a class of offence that had a lower standard to convict than True Crimes but was not as harsh as Absolute Liability offences. Absolute Liability: Similar to Strict Liability, these offences do not require proof of mens rea either. However, the accused has no defences available. The Court then noted that the dumping offences were of a public welfare nature and were from a provincial statute, thus, were Strict Liability offences and do not require mens rea.

Held: The appeal and cross-appeal should be dismissed and new trial ordered;

R v Chapin
Facts: -Mrs. Chapin went duck-hunting; -Some time, and two ducks, later, Mrs. Chapin was arrested by a conservation officer; -She was charged under Section 14(1) of the Migratory Birds Regulations makes it unlawful to hunt for migratory birds within one-quarter mile of a place where bait has been laid. -The charge was dismissed by the justice of the peace, who concluded that the offence was one which permitted a defence of reasonable mistake of fact. He found that Mrs. Chapin believed, on reasonable grounds, in a state of facts (that no bait was there), which if true made her act (hunting), an innocent one -The county court judge allowed the crown appeal on the basis that the offence was one of absolute liability; -The Court of Appeal for Ontario reversed, on the ground that mens rea is an ingredient of the offence charged. -Crown appealed; Area of Law: Regulatory Offences Principle of Law: In my view the offence created by s. 14(1) is one of strict liability. It is a classic example of an offence in the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.

Held: The appeal should be dismissed.

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

Facts: -Section 94(2) of the Motor Vehicle Act of British Columbia created an absolute liability offence of driving while with a suspended licence. -To obtain a conviction, the Crown needed only to establish proof of driving regardless of whether the driver was aware of the suspension or not. -A successful conviction carried a prison term of a minimum of seven days. -The British Columbia Court of Appeal held that the Act violated a principle of fundamental justice under section 7 of the Charter. -AG for BC appealed; Area of Law: Regulatory Offences Principle of Law: -held that an absolute liability, which makes a person liable for an offence whether or not they took steps not to be at fault, violates the principles of fundamental justice; -any possibility of a deprivation of life, liberty, or security of person from an absolute liability offence offends the Charter. -A law which violates the principles of fundamental justice cannot be saved through section 1 of the Charter, except for extreme circumstances (ex. natural disasters, outbreaks of war, epidemics). -The principles of fundamental justice impose a stricter test than section 1. Thus, any law which violates the principles of fundamental justice will most likely not be justifiable in section 1. Held: Appeal dismissed;

R v Cancoil
Facts: -an employee while engaged in the operation of the metal shearing machine, accidentally cut off the tips of six of his fingers (three fingers of each hand) down to approximately the first joint; -Cancoil was charged for breach of S.14 (1) (A) and (c ) of the Occupational Health and Safety Act, R.S.O. 1980, c. 321 for Ontario; -It was alleged that the respondent was in breach of s. 28 of the regulations, R.R.O. 1980, Reg. 692, which provides: 28. Where a machine or prime mover or transmission equipment has an exposed moving part that may endanger the safety of any worker, the machine or prime mover or transmission equipment shall be equipped with and guarded by a guard or other device that prevents access to the moving part Supervisor Mr. Parkinson was also charged under S.16 (1) (a) which provides workers must work under the act and regulations; -both respondents were acquitted; The Crown appeals by leave, on a pure question of law Area of Law: Regulation Principle of Law: -absolute liability punishable by imprisonment violates Charter S.7 even if there is statutory intention that the offence be treated as one of absolute liability; -to avoid violation of S.7 such an offence must be treated as one of strict liability to which the defence of due diligence applies; -officially induced error of law is available as a defence to an alleged violation of regulatory statute where D has reasonably relied upon the errorneous legal opinion or advice of an official who is reponsible to the administration or enforcement of a particular law; Held: The evidence in the present case is too sparse and inconsistent to allow an appellate court to determine the availability of the defence;

R v Raham
Facts: -The respondent was clocked at 131 km per hour in an 80 km per hour zone. The police officer charged her with an offence under s. 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. That offence, commonly referred to as stunt driving or racing is punishable by a fine, a term of imprisonment or both; - The respondent argued at trial that the offence with which she was charged was an absolute liability offence and that, as imprisonment was a possible punishment, the section violated her constitutional rights under s. 7 of the Charter. At trial, the Justice of the Peace interpreted the offence as one of strict liability, rejected the constitutional argument and convicted the respondent. On appeal, Justice G.J. Griffin of the Ontario Court of Justice held that the offence charged was an absolute liability offence. He went on to hold that, as the offence was punishable by imprisonment, it was contrary to s. 7 of the Charter and unconstitutional. He acquitted the respondent. [3] This court granted leave to appeal to determine the constitutionality of the charge as laid in this case.[1] The respondent did not take part in the appeal. However, her position was fully and effectively advanced by Mr. Burstein, who appeared as amicus. The court is indebted to Mr. Burstein for his submissions.

Area of Law: Regulatory Offences Principle of Law: In summary, I would interpret the offence of stunt driving by speeding as defined in s. 3(7) of the Regulation as creating a strict liability offence. It is true that the prohibited conduct is identical to the conduct prohibited by the offence of speeding created by s. 128. I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence. The stunt driving provision provides for the potential of incarceration, the speeding provision does not. This distinction is constitutionally significant. The Legislature cannot, absent reliance on s. 1 of the Charter, imprison without fault. Strict liability sets the lowest standard of fault available. The Legislature has chosen, through s. 172, to up the penal stakes for speeding at 50 km per hour or more over the speed limit by including the risk of incarceration. In doing so, the Legislature must be taken, in the absence of clear language excluding the defence, to have accepted the availability of the due diligence defence; Held: appeal judge erred in holding that stunting driving as defined in s. 3(7) was an absolute liability offence; -I would allow the appeal, set aside the acquittal and order a new trial.

Levis (City) v Tetreault [2006]

Facts: -In these two cases, the city of Lvis ( city ) is appealing acquittals entered by the Municipal Court of Lvis on charges brought against the respondents under the Highway Safety Code in accordance with the Code of Penal Procedure; (one was a case about operating a motor vehicle without a valid driver s licence and the other a charge of operating a motor vehicle for which the fees relating to its registration had not been paid ) -The city submits that the relevant provisions of the Safety Code create absolute liability offences. In the alternative, it submits that even if these offences can be considered strict liability offences, the respondents have failed to demonstrate that they exercised due diligence. Consequently, this Court should allow the appeals and enter convictions. Area of Law: Regulatory Offences Principle of Law: -due diligence in strict liability not made; Officially Induced Error-there are six elements in the defence of officially induced error; i. That the error is one of law or mixed law and fact; ii. That D considered the legal consequences of his or her actions; iii. That the advice came from an appropriate official; iv. That the advice was reaonable; v. That the advice was erroneous; vi. D relied on the advice in committing the act; There is no requirement that the reception of the advice and the act said to constitute the act are contemporaneous; -It is essential that both the advice and reliance on it be objectively reasonable. Relevant factors in the assessment of objective reasonableness of the advice and reliance include: i. D s efforts to obtain information; ii. Clarity or obscurity of the law; iii. The position and role of the advising official; and iv. The clarity, definitiveness and reasonableness of the information or opinion; Held: I would allow the appeals in both cases. I would set aside the respondents acquittals. I would enter convictions on the charges and would sentence each of the respondents to pay the minimum fine of $300 prescribed by law.

R v Dunlop and Sylvester

Facts: -Two teenagers, Dunlop and Sylvester, were members of a motorcycle club. One evening they went to a party held by the club where other members were involved in a gang rape of a teenage girl; -The girl testified at trial that the two teens had participated in the rape. The trial judge directed the jury to find whether the teens had participated enough to have aided or abetted the rape under section 21(1) of the Criminal Code or had a common intention to rape the victim under section 21(2) of the Criminal Code.

Area of Law: Extensions of Criminal Liability- Aiding and Abetting Principle of Law: -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 that facilitates the commission of the offence, such as keeping watch or enticing V 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 culprit; -a person is not guilty merely because she is present at the scene of a crime and does nothing to prevent it; -if there is no evidence of encouragement by D, his/her presence at the scene will not suffice to render him/her liable as an aider or abettor; -however, presence at the commission of an offence can be evidence of aiding or abetting if accompanied by other factors such as prior knowledge of the principal offender s intention to commit the offence, or attendance for the purpose of encouragement; Held: The two teens were acquitted.

R v Logan (1990)
Facts: Respondents were convicted of attempted murder. During a robbery -- one of a series -- a person was shot and severely injured. Neither respondent did the shooting. Respondent Johnson, however, admitted to being one of the robbers but stated that he had no intention to shoot and that there had been no discussion concerning the use of guns. Respondent Logan had boasted of being involved in planning the robberies. The trial judge instructed the jury that the Crown had to establish beyond a reasonable doubt that the accused knew or ought to have known that someone would probably shoot with the intention of killing. The Court of Appeal allowed appeals with respect to the convictions for attempted murder and substituted convictions for robbery. At issue here was (1) whether s. 21(2) of the Criminal Code infringed ss. 7 and/or 11(d) of the Charter, and (2), if so, whether it was justified under s. 1.

Area of Law: Extensions of Criminal Liability-Aiding and Abetting Principle of Law: -It is not a principle of fundamental justice that, in all cases the level of mens rea required to prove the guilt of a principal is also required in respect of a party; -for certain offences, however, the objective ( ..ought to have known ) component of s.21 (2) will operate to restrict D s rights under Charter s.7; -Where the offence is one of the few for which requires a minimum degree of mens rea, a party may not be convicted on the basis of a degree of mens rea below the constitutionally required minimum; In each case, it must first be determined whether fundamental justice requires a minimum degree of mens rea before D may be convicted as a principal in the offence; -where a minimum degree of mens rea is required to convict a principal an equivalent minimum degree is required to convict a party; -The words ought to have known are inoperative when considering, under s. 21 (2), whether D is party to any offene which constitutionally requires the foresight of the consequences to be subjective; Held: Court affirmed the Court of Appeal;

R v Hamilton
Facts: The accused sent teaser e-mails on the Internet to more than 300 people, marketing the sale of Top Secret files he himself had purchased off a website. The teaser advertised software that would enable the purchaser to generate valid credit card numbers. The accused made at least 20 sales and the files that were sold, although not the teaser, also included instructions on how to make bombs and how to break into a house. A document describing a credit card number generator that was not part of the files was discovered on the accused s computer. As well, a handwritten list of Visa numbers was seized in his possession. No complaints were received by the bank regarding their improper use. The accused was charged under s. 464 of the Criminal Code with counselling four indictable offences that were not committed, including fraud. The accused testified that he had seen a computer-generated list of the contents of the files but that he had not read the files. The trial judge accepted the accused s evidence in this regard and also accepted his evidence that he had not used the credit card numbers he had generated. She acquitted the accused, concluding that the actus reus of the offence had been proven in respect of each of the counts but not the mens rea. The Court of Appeal upheld the acquittal. The Crown appealed to this Court on the issue of mens rea. Area of Law: Counselling Principle of Law: The external circumstances of counselling consist of the deliberate encouragement or active inducement of the commission of a criminal offence; (S.22 CC and S.464) -The mental element of counselling consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in counselling. P must prove D either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of D s conduct; In ordinary parlance, the words intent and motive are frequently used interchangeably, but in the criminal law they are distinct. In most criminal trials, the mental element, the mens rea with which the court is concerned, relates to intent , i.e. the exercise of a free will to use particular means to produce a particular result, rather than with motive , i.e. that which precedes and induces the exercise of the will. The mental element of a crime ordinarily involves no reference to motive . . . . The trial judge s conclusion that Mr. Hamilton did not intend to induce the recipients to use those numbers is incompatible with the plain meaning of the teaser e-mail and with her other findings of fact, including her finding that Mr. Hamilton well understood that use of the generated numbers was illegal. Her assertion that [h]is motivation was monetary immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial. Held: Appeal Allowed

R v Ancio
Facts: -Ancio's wife had left him and was living with one Kurely. -Ancio called his wife on false pretences wanting to meet with her but she refused. -Ancio then broke into a friend's house and stole three shotguns, sawing off the barrel of one, loading it, and taking it along with some extra ammo to Kurely apartment building. -Ancio broke the glass of the front door to enter the building. -Kurely, upstairs, saw Ancio coming and threw a chair at him. The gun went off missing Kurely then they wrestled around until the cops arrived. Issue: What is the mental element required for proof of the crime of attempted murder? Area of Law: Attempts Principle of Law: Mens rea for attempted murder (S.239 Criminal Code) cannot be anything less than the specific intent to kill Held: Crown's appeal dismissed; Court of appeal order for a new trial confirmed.

R v Deustch
Facts: -The appellant put out an ad looking for a secretary/sales assistant. The position entailed possibly having sex with clients to close deals. One interview was with a cop posing as an applicant. -When the cop said she was interested, the appellant told her to think it over and let him know. He was charged with attempting to procure (S.212) a person to have illicit sexual intercourse with another person. At trial, appellant was acquitted of counts of (1) attempting to procure female persons to become common prostitutes and (2) attempting to procure female persons to have illicit intercourse with another person. The Court of Appeal dismissed the appeal from acquittal on the first count, but allowed the appeal with respect to the second and ordered a new trial. Appellant appealed Issue: How do we distinguish between attempt and mere preparation? Area of Law: Attempts (S.24) Principle of Law: -no satisfactory general criterion has been, or can be formulated for drawing the line between preparation and attempt; -the distinction as it applies to the facts of a particular case must be left to common sense judgement; -it is a qualitative one, involving the relationship between the nature and quality of the act and the nature of the completed offence; -consideration should be given to the relative proximity of the act to what would have been the completed offence in terms of time, location and acts under the control of D remaining to be accomplished; -relative proximity may give an act, which might otherwise appear to be mere preparation, the quality of an attempt, but an act does not lose its quality as the actus reus of attempt simply because further acts are required to complete the offence or a significant period of time may elapse before the offense would be completed; Held: Appeal dismissed.

R v Dery
Facts: -D and S were charged with conspiring to commit theft and conspiring (S.465) to possess stolen liquor. -The trial judge found that no agreement had been established between the two men to steal or possess liquor and acquitted them of conspiracy, but found their actions more than merely preparatory to conspiracy and convicted them of attempting to conspire. A majority of the Court of Appeal affirmed their convictions. D alone appealed to the Supreme Court. Area of Law: Attempts Principle of Law: -An attempt to conspire to commit a substantive offence is not an offence under Canadian law; -Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed, or even attempted, by any party to the discussions; *must be agreement to perform an illegal act (R v Douglas) Held: I would allow the appeal, set aside Mr. Dry s convictions and order that acquittals be entered instead.

R v Cooper
Facts: - The appellant, an out-patient at the Hamilton Psychiatric Hospital, was charged with the murder of Denise Hobbs, an in-patient at the same institution. -After a party at the hospital, the appellant unsuccessfully attempted to have sexual intercourse with the victim then choked her. -Appellant had a lengthy psychiatric history. The defence of insanity was not raised at the trial. -A psychiatrist was called by the defence to seek to establish that the accused did not have the capacity to form an intention to kill. -In answer to a question put by the trial judge the psychiatrist testified that he did not think that the accused was suffering with a disease of the mind. None the less, the trial judge dealt with this issue of insanity in her charge to the jury. -The jury found the appellant guilty of non-capital murder and he was sentenced to life imprisonment. --An appeal was dismissed without written reasons, Dubin J.A. dissenting on the grounds that there was misdirection and non-direction amounting to misdirection in the trial judge s charge to the jury on the defence of insanity. -The appellant then appealed to this Court pursuant to s. 618(1)(a) [repealed[ of the Criminal Code on the basis of a dissent in the Court of Appeal on a question of law. Area of Law: Mental Disorder (S.16 CC) Principle of Law: Mental disorder: disease of mind -disease of mind is a legal term embracing any illness disorder or abnormal condition that impairs the human mind and its functioning; -excluded are self induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion; -A personality disorder may be a disease of the mind if it meets either test of S.16(1); - Appreciates (S.16(1))-the Canadian test is: was D, by reason of disease of the mind, depreived of the mental capacity to foresee and measure the physical consequences of the act;

Held: Appeal allowed;

R v Kjeldson
Facts: -Appellant, whose only defence was insanity, was convicted of first degree murder at trial. -Medical evidence revealed that he was a psychopath and understood the physical nature and consequences of his act, though indifferent to such consequences. -The trial judge instructed the jury (1) that psychopathy could be a disease of the mind and (2) on the meaning of the word appreciate in s. 16 of the Criminal Code. -On appeal, the Court dismissed the appeal but substituted a verdict of second degree murder because the trial judge failed to instruct the jury adequately on the difference between first and second degree murder. -The principal issue to be determined was the definition of the word appreciating and the adequacy of the trial judge s charge to the jury in that respect. Area of Law: Mental Disorder Principle of Law: Appreciates (S.16(1) )- The absence of appropriate feelings about conduct is not a lack of appreciation; (for sociopathic or psychopathic offenders); Held: The Appeal should be dismissed

R v Oommen [1994]
Facts: The accused killed, without apparent motive, a friend who was sleeping in his apartment. For a number of years the accused had been suffering from a mental disorder described as a psychosis of a paranoid delusional type and, at the time of the killing, his paranoia was fixed on a belief that the members of a local union were conspiring to "destroy" him. On the night of the murder, he became convinced that they had surrounded his apartment building with the intention of killing him. This delusion, combined with his belief that the victim was one of the conspirators, persuaded him that he was obliged to kill the victim to prevent her from killing him. At his trial on a charge of second degree murder, the accused raised the defence of insanity. Psychiatrists testified that the accused possessed the general capacity to distinguish right from wrong and would know that to kill a person is wrong but that, on the night of the murder, his delusion deprived him of that capacity and led him to believe that killing was necessary and justified under the circumstances as he perceived them. The trial judge rejected the defence of insanity, concluding that in view of the accused's general capacity to know right from wrong, he was not relieved from criminal responsibility under s. 16(1) of the Criminal Code, notwithstanding his subjective belief, at the time of the killing, that what he did was right and his inability to apply his general knowledge of right and wrong. The Court of Appeal allowed the accused's appeal and ordered a new trial on the ground that the trial judge had erred in his interpretation of s. 16(1). The Crown appeals to this Court against that order, seeking reinstatement of the conviction for murder.

Area of Law: Mental Disorder Principle of Law: S.16 (1) knowing that it was wrong -embraces not only the intellectual ability to know right from wrong in an abstract sense, but also the ability to apply that knowledge in a rational way to the alleged criminal act. The provision focuses upon the particular capacitiy of D to understand that the act was wrong at the time it was committed; -D is exempt from criminal responsibility where, at the time of the act, a mental disorder deprived D of the capacity for rational perception, hence rational choice about the rightness or wrongess of the act; Delusions -D need not establish that the delusions permits D to raise a specific defence, as for example self-defence, to be exempt from criminal responsibility; -the inability to make a rational choice may result from a variety of mental disorders, including delusions which cause D to perceive an act which is wrong as right or justifiable; Held: Appeal dismissed;

R v Swaby
Facts: -Mr. Swaby had been convicted under section section 94 of the Criminal Code which encoded the offence of being an occupant of a motor vehicle while having knowledge that another occupant is in possession of an illegal firearm; -The car stopped and Johnson ran into a nearby backyard while the appellant drove off. Both men were arrested shortly thereafter and the police found a loaded, unregistered, restricted handgun in the backyard. -Swaby appealed; Upon appeal two issues were considered by the Court; (1) Did the trial judge err in his answer to jury questions relating to the occupant of motor vehicle charge? (2) Did the trial judge err in failing to instruct the jury that Johnson s criminal record could be used to impugn his credibility? (i.e. should a Vetrovec warning have been issued to the jury?) N/A here; Area of Law: Voluntary Act-Negativing Actus Reus Principle of Law: If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. If a passenger tells the driver that the passenger has a gun, it cannot be the case that the driver is immediately guilty. Should the driver immediately stop the vehicle and tell the passenger to leave, the driver would have known of the gun while he was an occupant of the vehicle, but he would have done all the law could expect. The driver s occupancy of the vehicle would have coincided with his knowledge of the gun, but it could not be said that the coincidence of knowledge and occupancy amounted to voluntary conduct on the part of the driver. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle, there is no voluntary act for the criminal law to punish. (para 19) Ratio: without voluntariness there was no actus reus to be punished. If the appellant only acquired knowledge at the point when Johnson was exiting the vehicle, then an acquittal should be entered. Held: Acquittal entered

R v Parks [1992]
Facts: -In an early morning in May 1987, Ken Parks drove to the house of his wife's parents. He attacked both of them with a kitchen knife, killing the mother and leaving the father seriously injured. Following the attack Parks went to the police station and turned himself in. -At trial, Parks argued that he was automatistic and not criminally liable. In his defence a doctor testified as to his mental state at the time of the murder. From the doctor's evidence it was deterimined that the accused was sleepwalking at the time of the incident, and that he was suffering from a psychiatric rather than neurological illness. The jury acquitted Parks. The issue before the Supreme Court was whether the condition of sleepwalking can be classified as non-insane automatism or should it be classified as "disease of the mind" (ie. mental disorder automatism) and warrant a verdict of "not guilty for reason of insanity". This distinction is a matter of law and decided by the judge. Area of Law: Voluntary Acts Principle of Law: -Somnambulism is a condition not only well-suited to analysis under the continuing danger or internal cause theories; -A trial judge may have to look to additional policy considerations, as for example, whether the condition is easily feigned, as well whether recognition of the condition as non-insane automatism would open the floodgates to such a defence; -No compelling policy factors precluded the finding on the evidence adduced that the condition was non-insane automatism; -Different evidence might dictate a finding that sleep walking is a disease of the mind;

Held: The court upheld the acquittal as the evidence presented a reasonable doubt that Parks acted voluntarily.

R v Stone
Facts: -Stone kills Mrs. Stone: she just continued on and she just said that she couldn't stand to listen to me whistle, that every time I touched her, she felt sick, that I was a lousy fuck and that I had a little penis and that she's never going to fuck me again, and I'm just sitting there with my head down; and by this time, she's kneeling on the seat and she's yelling this in my face. -"whooshing" sensation came over him. The next thing he remembers is looking down at her body slumped over the seat and a knife in his hand. He had stabbed her 47 times. He hid her body in his truck's tool chest, left a note for his daughter, and took off to Mexico. After a few weeks in Mexico he decided to return to Canada and turn himself in. He was charged with murder. The judge allowed for a defence of insane automatism. The jury convicted him of manslaughter and sentenced him to seven years; -Court of Appeal Upheld this; The issue on appeal to the Supreme Court of Canada was whether the "defence" of sane automatism should have been left to the jury; whether the defence psychiatric report was properly ordered disclosed to the Crown; and whether the sentencing judge could consider provocation as a mitigating factor for manslaughter where the same provocation had already been considered in reducing the charge to manslaughter; and whether the sentence was fit and properly reflected the gravity of the offence and the moral culpability of the offender.

Area of Law: Voluntary Act Negativing the Actus Reus and Automatism Principle of Law: For a person to be exempt from criminal liability under the "disease of the mind" defence (1) they must be a "continuing danger" to the public and (2) the condition must be an "internal cause" that stems from the accused's emotional or psychological state. The law presumes that people act voluntarily. The legal burden then in cases involving claims of automatism must be on the defence to prove involuntariness on the balance of probabilities to the trier of fact. This burden is justified under s. 1 of the Charter. The defence must call expert psychiatric or psychological evidence confirming the assertion but they re not done yet. The trial judge can examine all other evidence from the severity of the triggering stimulus to whether there is a motive for the crime.

Held: Court upheld conviction

R v Fontaine
Facts: -The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, We re coming to get you, pigs. -The accused later heard from a co-worker that the victim had been offered a contract to kill both of them. -Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. -The co-worker came by to check, but noticed nothing unusual. During the night, after smoking marijuana, the accused thought he heard someone breaking into his home. -He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. -Seeing the victim at the garage the next day, the accused shot and killed him. Before a judge and jury, the accused pleaded mental disorder automatism. -Several psychiatrists gave evidence. -The judge refused to put this defence to the jury on the ground that the required evidential foundation had not been laid. The accused was convicted of first degree murder. The Court of Appeal quashed the conviction and ordered a new trial. -Crown appealed; Area of Law: voluntary act- negativing the actus reus and automatism Principle of Law: -D bears both an evidential and persuasive burden on the defence of mental disorder automatism. To determine whether the evidential burden has been discharged (as with any defence), the trial judge should ask: Is there any evidence in the record on which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds? In deciding whether any defence is in play, a trial judge must: -assume the truth of the evidence that supports it; -leave the reliability, credibility and weight of the evidence for the trier of fact; The relevant evidence does not have to be believed for the defence to succeed. D is entitled to an acquittal on exculpator evidence that the jury does not reject but either accepts or is undecided about it; Held: The appeal should be dismissed. The accused s defence of mental disorder automatism should have been put to the jury.

R v Bernard (1998)
Facts: -Appellant was charged with sexual assault causing bodily harm contrary to s. 272 (1)(c) of the Criminal Code, tried by judge and jury, and found guilty. -He admitted forcing the complainant to have sexual intercourse with him and stated that his drunkenness caused the attack on her. The Ontario Court of Appeal dismissed an appeal from conviction. -At issue here is whether evidence of self-induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the offence. Area of Law: Simple Intoxication Principle of Law: The offence of sexual assault with causing bodily harm is one of general intent. In establishing the mental element, P must only prove the intention of D to apply force; (S.272 (1) (c ). Held: Appeal dismissed;

R v Robinson (1996)
Facts: -The accused killed a man but claimed to have acted without intent because he was intoxicated. (S.229 (a) ) -The evidence revealed that he had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. -After being instructed on provocation, self-defence and intoxication, the jury found the accused guilty of second-degree murder. The Court of Appeal, however, allowed his appeal. At issue here are: (1) how juries should be instructed regarding evidence of intoxication; (2) whether the charge to the jury, read as a whole, constituted misdirection and reversible error on the issues of intoxication, the common-sense inference that a person intends the natural and probable consequences of his or her acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt; and (3) whether the curative provisions of s. 686(1)(b)(iii) of the Criminal Code should be applied. Area of Law: Simple Intoxication Principle of Law: -To be required to instruct a jury on intoxication, a trial judge must first be satisfied that the effect of intoxication was such that it might have impaired D s foresight of consequences sufficient to raise a reasonable doubt; -where intoxication is left to the jury, it must be made clear that the issue for the jury is whether P has satisfied them beyond a reasonable doubt that D had the requisite intent; -a single-step charge on intoxication, which omits any reference to capacitiy or capability and focuses on the jury s attention on the question of intent in fact is useful; In some circumstances, however, for example where experts testify in terms of capacity , a two-step charge may be appropriate; Held: Crown Appeal dismissed;

R v Daviault (1994)
Facts: -On May 30, 1989, Henri Daviault, a chronic alcoholic, was asked to get some alcohol for a friend of his wife. -The woman was a semi-paralyzed 65 year old and required a wheelchair. -Daviault brought a 40oz of brandy to the woman's house around 6pm. She drank half a glass and then passed out. -Daviault drank the rest of the bottle while she slept. Some time in the evening she went to the washroom and was accosted by Daviault who took her into her the bedroom and sexually assaulted her. -Daviault was arrested and charged for sexual assault. -Daviault testified that prior to the event he had drunk over seven beers at a bar, and after drinking some brandy at the woman's house he has no recollection of what had happened until he woke up naked in the woman's bed. -At trial, he argued that during his blackout he was in automatism-like state brought about by intoxication. An expert witness in pharmacology testified to the likelihood of the defence, and that having drank as much as he did there was little chance he could have functioned normally or been aware of his actions. -Based on the testimony of the pharmacologist, the trial judge found that Daviault was unable to form a general intent to commit the crime and therefore could be acquitted. -The Quebec Court of Appeal overturned the acquittal ruling that intoxication to the point of automatism cannot negate the mens rea requirement for a general intent offence (i.e. offences where mens rea can be implied from the commission of the act). Issue:-The issue before the Supreme Court was whether "a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code constitute a basis for defending a crime which requires not a specific but only a general intent?" Area of Law: Extreme Intoxication Principle of Law: S.272 (1) (c) D may give evidence of the amount of alcohol consume and its effect; -Court proposed that normal levels of intoxication should not be treated any different from sober individuals; however, those who were so intoxicated that it would be akin to automatism or insanity could rely on a defence of intoxication on the balance of probabilities. Cory speculated that this burden would likely violate section 11(d) however it would also likely be saved under section 1. Held: The Court held, 6 to 3, that the absence of a defence for a general intent offence on the basis of intoxication akin to insanity or automatism violated section 7 and 11(d) of the Charter, and could not be saved under section 1. They overturned the verdict and ordered a new trial.

R v Pintar
Facts: -In the early morning hours of August 15, 1993, Joseph Pintar shot and killed Alan Ross and Jason Gill. Pintar was charged with two counts of second degree murder and he was tried by a court composed of judge and jury. On April 1, 1994, after more than three days of deliberation, the jury found Pintar guilty of manslaughter on each count. -On May 18, 1994, Pintar was sentenced to six years on each count, to be served concurrently; -Pintar appeals against both conviction and sentence. Area of Law: Defence of the person Principle of Law: S.34 S.34 (1) and (2) apply where D has been unlawfully assaulted; -S. 34 (2) applies, however, unlike S. 34 (1) even if D has provoked the assault; -Where death or grievous bodily harm results, unlike S.34 (1), S.34 (2) applies, notwithstanding that D intended to cause death or grievous bodily harm; -Under S. 34 (2), unlike s.34 (1), the issue is not whether the responsive force used was no more than necessary to enable D to self-defend, rather the whether D believed, on reasonable grounds, that she could not otherwise preserve him/herself from death or grievous bodily harm; Held: I would allow the appeal, set aside the convictions and direct a new trial on two counts of manslaughter (Ont. CA)

R v Cinous (2002)
Facts: -Cinous was involved in theft and resale of computers since 1993; -Jacques Cinous, was charged with the first degree murder of a criminal accomplice, Michaelson Vancol ( Mike ), at a gas station in Montral on the evening of February 3, 1994. -Despite his claim to having acted in self-defence, the accused was found guilty of second degree murder on October 21, 1995. - At trial, the judge allowed the defence of self-defence to be put to the jury. The accused was nonetheless found guilty of second degree murder. -The Court of Appeal held that the defence was not properly explained to the jury. It overturned the conviction and ordered a new trial. -Crown appealed; Area of Law: Defence of the Person Principle of Law: (S.34 (2))-there are three elements to a self defence under S. 34 (2): i. An unlawful assault; ii. A reasonable apprehension of risk of death or grievous bodily harm; iii. A reasonable belief in the impossibility of self-preservation, except by killing; Each element has both an objective and subjective component; -The air or reality test applies to each element of the defence. Since reasonableness is inherently incapable of proof, the critical question is whether there is (any) evidence on the basis of which a jury could reasonably infer reasonableness in relation to each essential element; Held: Appeal dismissed;

R v Lavallee
Facts: -Angelique Lavallee was in an abusive common law relationship with Kevin Rust. During a particularly serious fight Rust threatened to harm her, saying "either you kill me or I'll get you". -During the altercation Rust slapped her, pushed her and hit her twice on the head. At some point during the altercation he handed Lavallee a gun, which she first fired through a screen. -Lavallee first contemplated shooting herself, however when Rust turned around to leave the room she shot him in the back of the head. -At trial, Lavallee argued self-defence, and had a psychiatrist testify in her support. He explained the effects of her circumstances on her mental state and that in the state she was in she felt she was going to be killed and had no alternative but to shoot him. Lavallee did not testify. -The jury acquitted Lavallee, but the verdict was overturned on appeal. -At issue before the Supreme Court was whether the expert evidence on battered wife syndrome was admissible. Area of Law: Defence of the Person Principle of Law: S.34-Expert testimony concerning the ability of a battered wife to perceive danger from her battering partner may be relevant to whether, under S.34 (2) (a) , she reasonably apprehended death or grievous bodily harm on a particular occasion; -The testimony may also explain why D did not flee when she perceived her life to be in danger, hence assist a jury, under S. 34 (2) (b) in assessing reasonableness of D s belief that killing her batterer , V, was the only way to save her own life; -The evidence is relevant, though not determinative, of the issue whether D s perceptions and actions were reasonable; Ratio-Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a reasonable apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner s acts. Held: Appeal allowed; aquittal restored;

R v Latimer
Facts: Heartwrenching case of man who killed his 12 year old daughter. The daughter was stricken with a debilitating, though not terminal, case of cerebral palsy. The trial judge removed the defence of necessity. The jury convicted Latimer of second degree murder. Sask. C.A. dismissed the appeal. Latimer appealed to the S.C.C. Area of Law: Necessity Principle of Law: (S.8 CC) The defence of necessity has three elements: i. Imment peril or danger; ii. No reasonable legal alternative to the course of action D undertook; and iii. Proportionality between the harm inflicted and the harm avoided; Held: Appeal dismissed.

R v Hibbert
Facts: -Hibbert was with a man [B] who shot V (who survived) in the lobby of an apartment building; -At trial he argued he believed that he had had no opportunity to run away or warn C without being shot. -The accused was acquitted of the charge of attempted murder, but was convicted of the included offence of aggravated assault. The Court of Appeal upheld the conviction; -Hibbert appealed on grounds that trial judged erred in relation to law of duress; Area of Law: Duress Principle of Law: S.17 codifies the defence of duress only in relation to principals under S.21 (a); -persons who commit an offence as parties may invoke common law defence of duress preserved by Cose s. 8 (3); -Duress is unavailable if a safe avenue of escape is open to D; -Whether a safe avenue of escape existed must be decided on an objective basis, but taking account D s personal circumstances; -the fact that D committed an offence as a result of threats of death or bodily harm in certain circumstances, may be relevant to whether D had the mens rea necessary to be guilty of the offence; -where the offence is one where the presence of duress is potentially relevant to proof of mens rea, D is entitled to rely upon evidence of threats as a basis for a submission that P has not proven beyond reasonable doubt the requisite mens rea. 21.(a)-duress will not negate the mental element required under S.21 (2); -21 (2) does not require proof that D desired the commission of the unlawful purpose, only that the party and principal have in mind the same unlawf purpose; Held:-trial judge erred in his instructions to the jury on the law of duress; -appeal is allowed, the appellant s conviction is set aside, and a new trial is ordered.

R v Ruzic (2001)
Facts: -Marijana Ruzic was 21 year-old Yugoslavian who lived in Belgrade with her mother. A man had threatened to harm her unless she assisted him by smuggling heroin into Canada. -The man stalked her for some time and began threatening her, eventually escalating to violent assaults. -Ruzic eventually complied and flew to Canada. She was arrested at Toronto Pearson International Airport for importing heroin. -At trial she pleaded that she only committed the crime under duress. A defence of duress, under section 17 of the Criminal Code, is available only when a person "commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed". -Ruzic claimed that she had no other option and that both her and her mother's life were at risk. She also claimed that she could not go to the police because she believed them to be corrupt and would be of no help. Expert testimony validated this belief that Yugoslav citizens were generally untrusting of the police and their ability to protect them from rampant militias. -Nonetheless, her claim failed on the grounds that she was not under a threat of "immediate death or bodily harm" and that the man was not "present when the offence was committed". -Ruzic challenged section 17 of the Criminal Code as unconstitutional as it violated her right to security of person under section 7 of the Charter. -The trial judge agreed with Ruzic and held that the defence duress was available to her and consequently she was acquitted. The appeal was dismissed on appeal to the Court of Appeal for Ontario. -Crown appealed; Area of Law: Duress Principle of Law: -the common law defence of duress was never completely superseded by Code S.17 and remains available to parties to an offence; -D must raise the common law defence of duress and introduce some evidence about it; -Once D has introduced some evidence, it is for P to prove, beyond a reasonable doubt, that D was not acting under duress; -when the common law defence of duress is raised, a trial judge should instruct the jury clearly on the components of the defence including the need for; a close temporal connection between the threat and harm threatened; and the application of an objective-subjective assement of the safe avenue of escape test; Held: Appeal for crown dismissed; -Court, held that section 17 of the Criminal Code violated section 7 of the Charter on the basis that its requirements were too restrictive by requiring presence and immediacy. The requirements meant that the defence was unavailable in situations where the threat is to a third party or involves harm in the future.

R v G.R.
Facts: -R was charged with committing incest with his daughter. At trial, when asked by the trial judge whether R had put his penis into her vulva, the girl answered in the negative. -Moreover, she could not say if R had tried to introduce his penis into her vulva because she could not see what he was doing. -At the time of the alleged incest, the daughter was in fact between the ages of five and nine. The physical examination of the child as well as a sexual abuse profile revealed that there had been penetration although it could not be determined whether she had been penetrated by a finger, by a penis or by another object. -R testified in his own defence and categorically denied having touched his daughter in a sexual manner. R was convicted of attempted incest. -In the Court of Appeal, the Crown conceded that there was insufficient proof with respect to attempted incest, but argued that R should be convicted of sexual interference and sexual assault. -The court acquitted R of attempted incest and held that sexual interference and sexual assault are not included offences of incest. -Crown appealed Area of Law: The significance of the charge Principle of Law: it is fundamental to a fair trial that an accused know the charge or charges he or she must meet 62 The current state of the law with respect to the sufficiency of an indictment or information was articulated by Cory J. in R. v. Douglas, [1991] 1 S.C.R. 301. It confirms that the sufficiency of notice is examined based on the particular accused and circumstances: From these cases it can be seen that an indictment is adequate if it contains sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence. Whether an indictment is sufficient will depend on the offence charged and the facts of the case. [Emphasis added; p. 314.] Held: Appeal dismissed;

R v Lifchus
Facts:Lifchus was a stockbroker who misrepresented the value of a bond in his personal margin account to his employer, defrauding them of a substantial amount of money. He was charged with fraud and theft of over $1000. -Lifchus was convicted of fraud before a jury. He appealed on the ground that the jury was misinstructed about the standard of "proof beyond a reasonable doubt". -CA allowed appeal; Crown appealed; -There were four issues before the Court: 1) Must a trial judge provide the jury with an explanation of the expression reasonable doubt ? 2) If so, how should this concept be explained to the jury? 3) Did the charge in this case amount to a misdirection on the meaning of reasonable doubt ? 4) If the charge in this case was insufficient, ought this Court give effect to the curative provison set out at s. 686(1)(b)(iii) of the Criminal Code? Area of Law: Presumption of Innocence and the Ultimate Standard of Proof

Principle of Law: It should be explained that: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit. On the other hand, certain references to the required standard of proof should be avoided. For example: describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context; inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives; equating proof "beyond a reasonable doubt" to proof "to a moral certainty"; qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt".
Held: Appeal should be dismissed:

R. v. S. (J.H.)
Facts: -The accused was charged with sexual assault after the complainant alleged that the accused had sexually abused her over a number of years. -The accused, who denied all allegations of impropriety, was tried before a judge and jury. -The issue at trial was whether the alleged events had ever happened. -The complainant and the accused were the principal witnesses. -The trial judge charged the jury on the credibility of the witnesses and specifically instructed the jury that the trial was not a choice between two competing versions of events. -The jury returned a verdict of guilty. -A majority of the Court of Appeal set aside the conviction and ordered a new trial on the basis that the trial judge insufficiently explained the principles of reasonable doubt as they applied to credibility, concluding that the jury was not clearly instructed that lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. -The dissenting judge would have upheld the conviction finding that the charge to the jury was sufficient. -Crown Appeals Area of Law: Presumption of Innocence and the Ultimate Standard of Proof Principle of Law: [16] In my view, the trial judge got across the point of the second W. (D.) question without leaving any realistic possibility of misunderstanding. As stated, she told the jury: It is for the Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred. It is not for [the accused] to prove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place, you must find him not guilty. [Emphasis added; A.R., at p. 54.]

Held: The appeal should be allowed and the conviction restored.

R v Dinardo (2008)
Facts: -The accused was convicted of sexual assault (S.271(a) and sexual exploitation of a person with a disability 153.1(1) after the complainant alleged that she was assaulted by the accused while she was a passenger in his taxi.; - The accused was convicted of both offences. -A majority of the Court of Appeal upheld the convictions on the basis that the trial judge s reasons, although succinct, made it clear why the trial judge disbelieved the accused. -Although the inconsistencies in the complainant s testimony were not specifically addressed by the trial judge, they related primarily to peripheral matters and the evidence allowed for appellate review of the correctness of the decision. -While the trial judge erred in using the complainant s prior consistent statements (out of court) to corroborate her evidence, the majority concluded that the improper use of the statements did not justify a new trial because the accused suffered no prejudice. The dissenting judge would have allowed the appeal and ordered a new trial. He held that the trial judge did not sufficiently explain why he rejected the accused s denial of guilt or how he resolved the significant difficulties in the complainant s testimony to reach a verdict beyond a reasonable doubt. -Dinardo Appeals Area of Law: Presumption of Innocence and the Ultimate standard of Proof Principle of Law: -[35]The] accused is entitled to know why the trial judge is left with no reasonable doubt. -[35] The only indication of the trial judge s reasoning process is his reliance on the corroborative value of the complainant s prior consistent statements. This, as the majority of the Court of Appeal correctly found, constituted an error of law. As I will now explain, having regard to the reasons as a whole and the context of the trial, I cannot agree with the majority s conclusion that no harm was occasioned by the use of these statements; [40] The Court of Appeal correctly concluded that the trial judge erred when he considered the contents of the complainant s prior consistent statements to corroborate her testimony at trial, noting in his judgment that [TRANSLATION] there is a form of corroboration in the facts and statements of the victim, who never contradicted herself (para. 68). I am unable to agree with the majority, however, that the accused suffered no prejudice from the trial judge s improper use of the statements. The trial judge relied heavily on the corroborative value of the complainant s prior statements in convicting Mr. Dinardo. He was clearly of the view that the complainant s consistency in recounting the allegations made her story more credible. Accordingly, I would also allow the appeal on this basis. Held: The appeal should be allowed and a new trial ordered.

R v Arcuri (2001)
Facts: -The accused was charged with first degree murder. -At the preliminary inquiry, the Crown s case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. -The preliminary inquiry judge rejected the accused s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused should be committed to trial for second degree murder. -The accused s certiorari application was dismissed and that decision was affirmed by the Court of Appeal. -The issue before this Court was whether the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, erred in refusing to weigh the Crown s evidence against the allegedly exculpatory direct evidence adduced by the accused. Area of Law: Other Burdens Principle of Law: (S.548 (1) ) The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. -The judge s task is to decide whether, if P s evidence were believed, it would be reasonable for a properly instructed jury to infer guilt. Limited weighting involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence; Held: The appeal should be dismissed.

R v Cinous (2002)
Facts: -Cinous was involved in theft and resale of computers since 1993; -Jacques Cinous, was charged with the first degree murder of a criminal accomplice, Michaelson Vancol ( Mike ), at a gas station in Montral on the evening of February 3, 1994. (shot him in back of head believing he would have been killed) -Despite his claim to having acted in self-defence, the accused was found guilty of second degree murder on October 21, 1995. - At trial, the judge allowed the defence of self-defence to be put to the jury. The accused was nonetheless found guilty of second degree murder. -The Court of Appeal held that the defence was not properly explained to the jury. It overturned the conviction and ordered a new trial. -Crown appealed; Area of Law: Presumptions Principle of Law: (S.34 (2))-there are three elements to a self defence under S. 34 (2): i. An unlawful assault; ii. A reasonable apprehension of risk of death or grievous bodily harm; iii. A reasonable belief in the impossibility of self-preservation, except by killing; Each element has both an objective and subjective component; -The air or reality test applies to each element of the defence. Since reasonableness is inherently incapable of proof, the critical question is whether there is (any) evidence on the basis of which a jury could reasonably infer reasonableness in relation to each essential element; Held: Appeal dismissed;

R v Oakes
Facts: Respondent was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, but was convicted only of unlawful possession. After the trial judge made a finding that it was beyond a reasonable doubt that respondent was in possession of a narcotic, respondent brought a motion challenging the constitutional validity of s. 8 of the Narcotic Control Act. That section provides that if the Court finds the accused in possession of a narcotic, the accused is presumed to be in possession for the purpose of trafficking and that, absent the accused's establishing the contrary, he must be convicted of trafficking. The Ontario Court of Appeal, on an appeal brought by the Crown, found that this provision constituted a "reverse onus" clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. Crown appealed and a constitutional question was stated as to whether s. 8 of the Narcotic Control Act violated s. 11(d) of the Charter and was therefore of no force and effect. Inherent in this question, given a finding that s. 11(d) of the Charter had been violated, was the issue of whether or not s. 8 of the Narcotic Control Act was a reasonable limit prescribed by law and demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter. Area of Law: Presumptions Principle of Law: 61. To return to s. 8 of the Narcotic Control Act, I am in no doubt whatsoever that it violates s. 11(d) of the Charter by requiring the accused to prove on a balance of probabilities that he was not in possession of the narcotic for the purpose of trafficking. Mr. Oakes is compelled by s. 8 to prove he is not guilty of the offence of trafficking. He is thus denied his right to be presumed innocent and subjected to the potential penalty of life imprisonment unless he can rebut the presumption. This is radically and fundamentally inconsistent with the societal values of human dignity and liberty which we espouse, and is directly contrary to the presumption of innocence enshrined in s. 11(d). -Section 8 imposes a limit on the right guaranteed by s. 11(d) of the Charter which is not reasonable and is not demonstrably justified in a free and democratic society for the purpose of s. 1 Held: The appeal should be dismissed and the constitutional question answered in the affirmative.

R v Boucher (2005)
Facts: -The accused was charged in Municipal Court with operating a vehicle while his blood alcohol level exceeded the legal limit. -His blood analysis certificates indicated 93 and 92 mg. He testified that he had drunk two large beers during the few hours prior to his arrest. -The defence expert asserted that, where a person with the accused s physical characteristics consumed this amount, the normal result would be much less than the level recorded on the certificates. -The trial judge found the accused guilty. -In her opinion, the accused s testimony was not credible, and she rejected the related expert opinion. She concluded that the statutory presumption in S.258(g) of the Criminal Code that the test results were accurate had not been rebutted. On appeal, the Superior Court set aside the guilty verdict on the basis that the evidence as a whole, including the expert s testimony, raised a reasonable doubt in favour of the accused. The majority of the Court of Appeal affirmed the acquittal. -Crown appealed;

Area of Law: Presumptions Principle of Law: The standard of proof required to rebut the presumption of accuracy in s.258(1)(g) is reasonable doubt. D has no burden of proof. -Evidence to the contrary that raises a reasonable doubt that the certificate correctly reflects D s blood alcohol level at the time of the alleged offence is sufficient to rebut the presumption under S.258 (1) (g); -where a trial judge rejects D s evidence on the basis that it is not credible, expert opinion based on D s rejected testimony cannot constitute evidence to the contrary; Held: The appeal should be allowed and the guilty verdict restored.

R v Gunning
Facts: -The accused fatally shot V (Charlie), a person unknown to the accused who had entered his home uninvited during a party. -The accused denied that he intended to kill C. Although his memory was sketchy due to his consumption of alcohol, he testified that C had assaulted him and refused to leave his house after they had argued. -He claimed that he was scared, so he took out and loaded the shotgun to intimidate C into leaving. He testified that the gun discharged accidentally. -The focus of the trial was on whether the shooting was intentional or accidental. The trial judge, however, instructed the jury that the offence of careless use of a firearm had been made out and he refused to instruct the jury on defence of property. -Later in his charge, he purported to correct the impugned instruction on careless use of a firearm. The accused was convicted of second degree murder. The Court of Appeal upheld the conviction. -Gunning appealed; Area of Law: The Neutral Impartial Trier Principle of Law: -It is a basic principle of law that the jury is to decide whether an offence has been proven on the facts. The judge is entitled to give an opinion on a question of fact but not a direction; -In this case, if the jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would be the shooting itself and the accused would be guilty of murder; -If the Crown failed to prove an intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful act of careless use of a firearm; -If the jury had a reasonable doubt on this question, he was entitled to an acquittal; -In finding that the accused s use of the firearm was careless within the meaning of s. 86 of the Criminal Code, and an unlawful act that caused the death of C, the trial judge encroached on the exclusive domain of the jury; -The trial judge also erred in failing to instruct the jury on the defence of house or property under s. 41 of the Criminal Code; Held: The appeal should be allowed. The conviction should be set aside and a new trial ordered.

R. V Hamilton
Facts: -The respondents were caught trying to smuggle cocaine they had swallowed into Canada from Jamaica. Each pleaded guilty to one count of importing cocaine. -the trial judge, in thoughtful and detailed reasons, concluded that the respondents should receive conditional sentences; -He rested his conclusion that conditional sentences were appropriate primarily on his finding that the respondents, because of their race, gender, and poverty, were particularly vulnerable targets to those who sought out individuals to act as cocaine couriers. He made these findings based on material he had produced during the hearing and his own experiences as a judge; -The Crown appealed; Area of Law: The Neutral Impartial Trier Principle of Law: -In considering both the limits of the power and the limits of the exercise of the power, it is wise to bear in mind that the criminal process, including the sentencing phase, is basically adversarial. Usually, the parties are the active participants in the process and the judge serves as a neutral, passive arbiter. Generally speaking, it is left to the parties to choose the issues, stake out their positions, and decide what evidence to present in support of those positions. The trial judge s role is to listen, clarify where necessary, and ultimately evaluate the merits of the competing cases presented by the parties; -Proportionality is the fundamental principle of sentencing. It takes into account the gravity of the offence and the degree of responsibility of the offender; Parity, totality and restraint are also important principles that must be engaged. (S.718 (1) -where an offence is sufficiently serious, imprisonment will be the only reasonable response, despite D s ethnic or cultural background. With serious offences that threaten to cause a significant harm to an individual or segment of the community, the objectives of denunciation and general deterrence will dominate the other section 718 objectives; (S.718(2) Held: I would grant leave to appeal . (but not additional sentence imposed);

R v Cook
Facts: -The accused was charged with assault causing bodily harm of a male victim and two counts of sexual assault of a female victim after an incident in the woman s apartment. -The jury found him guilty of the first charge but was unable to reach a verdict with respect to the other two counts. The male victim did not testify. -The Crown s main witness was the woman whose evidence of the assault causing bodily harm was supported by other evidence which included: (1) DNA evidence establishing blood at the scene of the crime to be the victim s; (2) the machete used in the assault; (3) evidence confirming a telephone call s being received where help was sought; (4) evidence of the doctor attending the victim as to the wound s being consistent with a machete attack; and (5) evidence of the woman s mother, who had arrived at the apartment the morning after the incident took place, as to the accused s presence in the apartment. No objection was raised at trial as to the victim s not testifying and the accused declined to call any evidence. -The conviction was overturned on appeal. -At issue here is whether the Crown has a mandatory duty to call certain witnesses as part of its case in chief. Area of Law: Principle of Law: - With respect, I fail to see why the defence should not have to call witnesses which are beneficial to its own case. -The adversarial process functions on the premise that it is the obligation of the Crown to establish a case beyond a reasonable doubt against the accused. -Once this threshold has been surpassed, however, it is up to the accused to call evidence or face conviction: R. v. Noble, 1997 CanLII 388 (S.C.C.), [1997] 1 S.C.R. 874. -The adversarial nature of the trial process has been recognized as a principle of fundamental justice (R. v. Swain, 1991 CanLII 104 (S.C.C.), [1991] 1 S.C.R. 933). -As such it should be construed in a way that strikes a fair balance between the interests of the accused and those of society: R. v. Levogiannis, 1993 CanLII 47 (S.C.C.), [1993] 4 S.C.R. 475; Cunningham v. Canada, 1993 CanLII 139 (S.C.C.), [1993] 2 S.C.R. 143, at p. 148; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (S.C.C.), [1985] 2 S.C.R. 486. -In my view, placing an obligation upon the Crown to call all witnesses with information bearing on the case would disrupt the inherent balance of our adversary system. I note, however, that the accused is also not obliged to call the witness. As I propose to expand upon, there are other options which are available to the accused in an appropriate case including, but not limited to, asking the trial judge to call the witness, commenting in closing on the witness absence, or asking the trial judge to comment. On more than one occasion, this Court has clearly stated that the contemporaneous cross-examination of a witness is not necessary to guarantee a fair trial: R. v. B. (K.G.), 1993 CanLII 116 (S.C.C.), [1993] 1 S.C.R. 740; Levogiannis, supra Held: In summary, I am of the view that existing procedures adequately protect against unfairness suffered by the accused in this regard. It cannot therefore be said, subject to the exception noted above, that the failure of the Crown to produce a witness unfairly deprives the accused of the ability to cross-examine. -I would accordingly allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction.

R v Proulx (WRONG CASE)

Facts: -After a night of partying involving consumption of some alcohol, the accused decided to drive his friends home even though he knew that his vehicle was not mechanically sound. -For a period of 10 to 20 minutes, the accused, who had only seven weeks of experience as a licensed driver, drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling, despite steady oncoming traffic and slippery roads. -As the accused was trying to pass another vehicle, he drove his car into an oncoming lane of traffic, side-swiped a first car and crashed into a second one. The driver of that second vehicle was seriously injured. The accident also claimed the life of a passenger in the accused s car. The accused was in a near-death coma for some time, but ultimately recovered from his injuries. -The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. -He was sentenced to 18 months of incarceration, to be served concurrently on both charges. -The sentencing judge concluded that a conditional sentence pursuant to s. 742.1 of the Criminal Code, which would allow the accused to serve his sentence in the community, would not be appropriate because it would be inconsistent with the objectives of denunciation and general deterrence. - The Court of Appeal allowed the appeal and substituted a conditional custodial sentence for the jail term. -Crown appeals; Area of Law: The Role of the Prosecutor Principle of Law: -Proulx sets out four criteria that a court must consider when assessing the appropriateness of a conditional sentence (para. 46): This provision lists four criteria that a court must consider before deciding to impose a conditional sentence: 1] the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

Held: The appeal should be allowed. I am not convinced that an 18-month sentence of incarceration was demonstrably unfit for these offences and this offender. I point out that the offences here were very serious, and that they had resulted in a death and in severe bodily harm. Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties

R v Proulx
Facts: -In 1986, the prosecutor determined that there were insufficient grounds to charge the appellant with the murder of his former girlfriend as there was no reliable identification evidence. The prosecution file was closed. -Some five years later, in the midst of a sensational defamation claim launched by the appellant against a radio station and a retired police investigator who had worked on the file, the prosecutor was advised by the defamation case defendants of a potential new identification witness. -The prosecutor added the defendant police investigator to the prosecution team, re-opened the file, and decided to prosecute the appellant on a first degree murder charge. -At trial, the jury found the appellant guilty. -On appeal, the Court of Appeal overturned the conviction with strong criticism of the lack of credible evidence. -Following his acquittal, the appellant brought an action for damages for malicious prosecution against the Attorney General of Quebec. The Superior Court found the Attorney General liable and entered judgment against the Attorney General for over a million dollars in damages. -A majority of the Court of Appeal allowed the Attorney General s appeal and dismissed the action. The question in front of this Court is whether this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted. Area of Law: The Role of the Prosecutor Principle of Law: Nelles sets out four requirements that must be established on a balance of probabilities in an action in damages based on prosecutorial misconduct and those requirements are satisfied here. The record reveals that: (1) the respondent initiated the prosecution; (2) the prosecution resulted in the appellant s acquittal; (3) the Crown prosecutor did not have reasonable and probable cause upon which to found the charges brought against the appellant; and (4) the prosecution was motivated by an improper purpose. The prosecutor s decision to recruit the retired police investigator to assist in the resurrected prosecution file, notwithstanding his status as a defendant in the appellant s well-publicized million dollar defamation suit, is further evidence of malice in the sense of the prosecutor s apparent indifference to the improper mixing of public and private business. The prosecutor lent his office to support a defence strategy in the defamation suit and, in so doing, was compromised by the retired police investigator s apparent manipulation of the evidence and the irregularities that took place during the re-opened investigation. There was a flagrant disregard for the rights of the appellant, fuelled by motives that were clearly improper. While Nelles established a generous boundary within which prosecutors acting in good faith have immunity despite bad decisions, the mixed motives of the prosecutor in this case carried him across that boundary and amounted to malice. (Nelles v. Ontario, [1989] 2 S.C.R)

Held: The appeal should be allowed. The Department of the Attorney General and its prosecutors are not above the law and this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted.

Krieger v Law Society of Alberta

Facts: -K was assigned to prosecute an accused charged with murder. Prior to the commencement of the preliminary inquiry, he received the results of DNA and biological tests conducted on blood found at the scene of the crime which implicated a different person than the accused. Ten days later, he advised the accused s counsel that the results of the testing would not be available in time for the preliminary inquiry. The defence counsel only learned of the testing results at the preliminary hearing, and complained to the Deputy Attorney General that there had been a lack of timely and adequate disclosure. -K was reprimanded and removed from the case after a finding that the delay was unjustified. -Six months later, the accused complained to the appellant Law Society about K s conduct. -K sought an order that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor and an order that the Rule of the Code of Professional Conduct requiring a prosecutor to make timely disclosure to the accused or defence counsel was of no force and effect. -K s application was dismissed by the Court of Queen s Bench, but that decision was overturned by the Court of Appeal. -Law Society of Alberta Appealed; Area of Law: The Role of the Prosecutor Principle of Law: (S.603) -An exercise of prosecutorial discretion must be treated with deference by courts and other members of the executive, as well as statutory bodies like provincial law societies. Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. -Decisions that do not go to the nature and extent of the prosecution, like decisions that govern a prosecutor s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. These decisions are governed by the inherent jurisdiction of the court to control its own process once the Att-Gen has chosen to enter the forum. -As members of their provincial law society, prosecutors are subject to the Law Society s code for professional conduct. Any prosecutorial conduct not protected by the doctrine of prosecutorial discretion is subject to the conduct review process of the Law Society. Disclosure is a legal duty, not a matter of prosecutorial discretion. It is only professional conduct the law society may regulate. Held: The appeal should be allowed and the trial judgment restored.

R v Grant
Facts: -Three Toronto police officers were patrolling a school area known for a high crime rate, for the purposes of monitoring the area and maintaining a safe student environment. -Police observed Donnohue Grant in the area, acting suspiciously. A uniformed police officer went to speak to Mr. Grant, asked him what was going on, and asked him for his name and address. Mr. Grant handed over his identification, and continued acting nervously. He went to adjust his jacket, prompting the officer to ask Mr. Grant to keep his hands in front of him. Worried about the safety of the first officer, the other two officers arrived, identified themselves, and obstructed Mr. Grant's ability to continue walking forward. A conversation took place with Mr. Grant, at which point he advised police he had marijuana and a firearm on him. -Mr. Grant was arrested, and the marijuana and a loaded revolver were seized. Mr. Grant was never informed of his right to speak to a lawyer prior to being arrested. -The trial judge found that Mr. Grant was not detained before his arrest, and that section 9 and section 10 of Charter were not infringed. The gun was admitted into evidence, and Mr. Grant was convicted of a number of firearm offences, including transferring a firearm without lawful authority (section 100(1) of the Criminal Code of Canada). -On appeal, the Court of Appeal for Ontario found that a detention occurred when Mr. Grant began making incriminating statements, and since there were no reasonable grounds to detain Mr. Grant, section 9 of the Charter was infringed. Applying the Collins test, the related Stillman test, and other subsequent jurisprudence, the Court of Appeal found that admission of the firearm would not unduly undermine the trial fairness. As a result, they would not have excluded the firearm, and the convictions were not overturned. The Court of Appeal also noted that moving a firearm from one place to another met the definition of 'transfer'. -Grant appeals;

Area of Law: Principle of Law: S.9 of Charter violation-The majority went on to find that Mr. Grant was psychologically detained when he was told to keep his hands in front of him and when the other officers moved into position to prevent him from walking forward. Therefore, he was arbitrarily detained, and denied his right to counsel; (10B) -To determine whether the reasonable person in the individual s circumstances would conclude the state had deprived them of the liberty of choice, the court may consider, inter alia, the following factors: The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

-Once a violation was found, the case turned on the application of section 24(2), which states that once a violation of an individual's Charter rights have been found, the evidence obtained through the violation must be excluded if its inclusion would bring the administration of justice into disrepute. The majority found that the analytical framework found in the prior leading cases of R. v. Collins and R. v. Stillman had created justifiable criticisms, and the majority set out a revised test, consisting of three parts: Seriousness of the Charter-Infringing State Conduct, which requires an assessment of whether the admission of the evidence would bring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach (which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith), Impact on the Charter-Protected Interests of the Accused, which focuses on how the accused person was affected by the state conduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity), and Society's Interest in an Adjudication on the Merits, which focuses on how reliable the evidence is in light of the nature of the Charter breach. After applying all three inquiries into the evidence obtained from Mr. Grant, the majority found that the gun should not be excluded as evidence against Mr. Grant (However conviction for transferring to traffic was quashed)

Held: The appeal should be allowed on the trafficking charge and an acquittal entered. The appeal should be dismissed on all other counts. For the purpose of transferring a firearm without lawful authorization under section 100(1) of the Criminal Code of Canada, "transfer" requires some type of transaction. (

R v Suberu
Facts: 2 accomplices were ripping off Walmarts and Liqour CBO with stolen credit card. Suberu s accomplice was caught but Suberu walked out of the Couglan store after saying to the policeman It was him! . Issue: The issue was whether he had been detained for the purposes of S.8,9, and whether he had been denied right to counsel under 10b; Area of Law: Police Powers Principle of Law: -The Court applied the new test for detention created in the companion case of R. v. Grant and ruled on the timing of when an individual is required to be informed of his or her rights to counsel after being arrested or detained. (1) "Without delay" in s. 10(b) of the Canadian Charter of Rights and Freedoms regarding being informed of rights to counsel after arrest or detention means "immediately", subject to officer safety and limitations prescribed by law and justified under s. 1 of the Charter. (2) Not every interaction with the police is a detention, and police are allowed to interact with members of the public without having to have specific grounds connecting the individual to the commission of a crime.

Held: There was no detention prior to Suberu's arrest, and therefore there was no violation of Suberu's rights under section 10(b) of the Charter.

R v Hall
Facts: David Scott Hall was charged with the murder of a woman in a high profile case. He applied for bail pending trial. The judge denied the application--not for reasons of ensuring appearance in court or protecting the public--but in order "to maintain confidence in the administration of justice". Paragraph 515(10)(c) of the Criminal Code allows the denial of bail for this reason. Hall appealed the decision on the basis that section 515(10)(c) violated the right "not to be denied reasonable bail without just cause" under section section 11(e).

Area of Law: Securing Jurisdiction over the accused an interim release Principle of Law: -The phrase any other just cause being shown in s.515 (10) ( c ) is unconstitional because it confers an open-ended discretion to refuse release, which is inconsistent with both S. 11 ( c ) and the presumption of innocence; -The Court however upheld the portion of section 515(10)(c), which allows the denial of bail "to maintain confidence in the administration of justice" as it was a valid and just reason to deny bail. The standard is based on the view that the reasonable member of the community would be satisfied that the denial of bail would be necessary to maintain confidence in the system. Held: Appeal was dismissed;

R v Stinchcombe
Facts: -William Stinchcombe was a lawyer who was charged with theft and fraud. -One of the Crown's witnesses was a former secretary of Stinchcombe's who had given evidence at the preliminary inquiry that supported the defence's position. -Later a statement was taken from her by an RCMP officer; - however, at trial the defence was denied access to the contents of the statement. - -When the Crown decided not to use the statement the defence made a request for it to the judge who refused to provide it. The accused was eventually convicted Area of Law: Disclosure Principle of Law: -"The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. -The duty, wrote Sopkina, is derived from the right of an accused to make full answer and defence which has been entrenched under section 7 of the Charter. This duty, however, is still subject to rules of privilege. Held: The appeal should be allowed and a new trial ordered

R v McNeil
Facts: -The accused was convicted on multiple drug charges. The arresting officer was the Crown s main witness. After his conviction but before sentencing, the accused learned that the arresting officer was engaged in drug-related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services Act and to criminal charges. In a preliminary motion before the Court of Appeal, the accused sought production of all documents related to the arresting officer s misconduct, claiming that he required this material to assist him in preparing an application to introduce fresh evidence on his appeal from conviction. The Court of Appeal held that an O Connor-type procedure is only required in cases where third party records attract a reasonable expectation of privacy, and concluded that no expectation of privacy existed in respect of the criminal investigation files. Subject to appropriate redactions and the resolution of any privilege claims, the Court of Appeal ordered the third parties to produce the criminal investigation files in their possession related to the charges against the arresting officer to the federal Crown prosecuting the accused s case. Subsequently, the arresting officer pleaded guilty to one of the criminal charges brought against him. Evidence of the officer s conviction was admitted on the accused s appeal, and the accused s convictions were set aside, following which the Crown undertook not to re-prosecute him. The production issue in this case was rendered moot and the accused withdrew his participation in this appeal. The Court appointed an amicus curiae and heard this appeal despite its mootness. Issue: A question then arises as to whether the Crown for disclosure purposes encompasses other state authorities? Area of Law: Disclosure Principle of Law: (S.603) 1. The first step in any contested application for production of non-privileged documents in the possession of a third party is for D to satisfy the judge of the likely relevence , although insignificant, is not an onerous burden and differs significantly from the statutory likely relevance, although significant, is not an onerous burden and differs significantly from the statutory likely relevance threshold under Mills. Under O Connor, likely relevence means that there is a reasonable possibility that the material sought is logically probative of a trial issue or the competence of a witness to testify; 2. At the second the record holder may be required to produce the record for inspection by the judge to determine whether the document should be produced to D; (see 603 for more detail)

Held: The appeal is allowed and the order in the court below is set aside. The application having become moot, the Court makes no further order.

R v Arcuri (2001)
Facts: -The accused was charged with first degree murder. -At the preliminary inquiry, the Crown s case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. -The preliminary inquiry judge rejected the accused s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused should be committed to trial for second degree murder. -The accused s certiorari application was dismissed and that decision was affirmed by the Court of Appeal. -The issue before this Court was whether the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, erred in refusing to weigh the Crown s evidence against the allegedly exculpatory direct evidence adduced by the accused. Area of Law: Other Burdens Principle of Law: (S.548 (1) ) The question for the preliminary inquiry judge is whether there is any evidence on which a reasonable jury, properly instructed could convict. The test is essentially the same in cases where D calls exculpatory evidence as it is in cases where the only evidence adduced is that of P. Where P adduced direct evidence of each element of the offence, D must be ordered to stand trial even where the defence calls exculpatory evidence; -Where P s case consists of or includes circumstantial evidence, the preliminary inquiry judge must engage in a limited weighting of the whole of the evidence, including the defence evidence, to determine whether a reasonable jury, properly instructed, could return a verdict of guilty; -The limited weighting of evidence in which a preliminary inquiry judge engages, where P s case consists of or includes circumstantial evidence, does not involve: - drawing inferences; -assessing credibility -considering inherent reliability. -The judge s task is to decide whether, if P s evidence were believed, it would be reasonable for a properly instructed jury to infer guilt. Limited weighting involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence; Held: The appeal should be dismissed.

R v Mahlingan
Facts: -The accused was acquitted on the charge of attempted murder arising out of a vicious gang attack, but convicted of the included offence of aggravated assault. The eyewitness who identified the accused as the first attacker also testified that, shortly before the trial commenced, the accused had telephoned him from jail asking that he not testify against him. The accused was subsequently charged with attempting to obstruct justice in relation to the alleged phone call. His trial on that charge occurred following the conclusion of the trial for attempted murder. The Crown adduced evidence of the telephone call mirroring that put forward at the attempted murder trial. The accused was acquitted. He appealed his aggravated assault conviction, arguing that the trial judge s instructions to the jury on the theory of the defence were inadequate. The accused also argued that his acquittal for obstructing justice should be accepted as fresh evidence in his appeal of the aggravated assault conviction. Based on the doctrine of issue estoppel, he submitted that the acquittal had the retrospective effect of rendering the testimony about the phone call inadmissible at his trial for attempted murder. He further argued that, if the trial record were examined as if the phone call evidence had never been presented in the attempted murder trial, it could not be said that the jury s verdict would necessarily have been the same. The Court of Appeal unanimously allowed the accused s appeal against conviction and ordered a new trial on the ground that the trial judge had failed to outline the position of the defence in his instructions to the jury. The court was divided, however, on the fresh evidence application. A majority of the court granted the application and ordered a new trial on this basis as well. The dissenting judge found that the subsequent acquittal on the charge of obstructing justice did not retrospectively render inadmissible the evidence of the accused s telephone call to the eyewitness and would have dismissed the application.

Area of Law: Double Jeopardy and Issue Estoppel Principle of Law: (S.8)-Where D raises issue estoppel, it is for D to establish that the issue had been conclusively decided in his or her favour; -Issue estoppel does not bar P from leading evidence on any issue raised on a previous trial resulting in an acquittal, rather excludes only evidence inconsistent with determinations of issues resolved in D s favour at a previous trial, on the basis of either a positive factual finding or a reasonable doubt;

-Only issues either necessarily resolved in favour of the accused as part of the acquittal or on which findings were made, even if on the basis of reasonable --doubt, are estopped. -The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding;

Held: The appeal should be dismissed. When issue estoppel is understood simply as a rule preventing relitigation of decided issues, it works well within the criminal law context and the problems associated with applying issue estoppel in that context largely disappear

R v C.A.M.
Facts: -The accused pleaded guilty to numerous counts of sexual assault, incest and assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment. -The trial judge, remarking that the offences were as egregious as any he had ever had occasion to deal with, sentenced the accused to a cumulative sentence of 25 years' imprisonment, with individual sentences running both consecutively and concurrently. -The Court of Appeal reduced the sentence to 18 years and 8 months. -Following a line of jurisprudence it had developed in recent years, the court concluded that where life imprisonment is not available as a penalty, the totality principle requires trial judges to limit fixed term cumulative sentences under the Criminal Code to a term of imprisonment of 20 years, absent special circumstances. -Crown appealed; Area of Law: General Principles of sentencing Principle of Law: S.687.1-In the absence of i. Error in principle ii. Failure to consider a relevant factor; or iii. Overemphasis of the appropriate factors -a court of appeal should only intervene to vary a sentence at trial if it is demonstratably unfit. A court of appeal should only interve to minimize the disparity of sentences where the sentence is in substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes;

Held: The appeal should be allowed and the sentence of 25 years' imprisonment restored.

R v Priest
Facts: -The appellant pled guilty to one count of break, enter and theft. -The entire proceedings before Judge Cloutier took approximately five minutes. -At their conclusion the appellant found himself sentenced to one year in custody notwithstanding that he had no prior record and that Crown counsel recommended that the sentence be 30 to 60 days. - Thus the trial judge imposed a sentence of imprisonment six times the maximum sentence recommended by Crown counsel; -At the hearing of the appeal, the court allowed the appeal and reduced the sentence to time served plus probation for one year. However, we were sufficiently concerned about the sentence and the procedure followed in this case that we indicated that written reasons would be delivered on a later date. Area of Law: General Principles of Sentencing Principle of Law: -The trial judge was entirely wrong to state that due to the apparent prevalence of the crime of break and enter in Hearst, general deterrence was the paramount objective in sentencing this accused; -section 718.1, Parliament sets out the fundamental principle of sentencing: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. -The sentence imposed by the trial judge in this case was wholly disproportionate to what occurred;

Held: Appeal allowed, reduced the sentence to time served (approximately five weeks)

R v Boucher
Facts: Following a three-day trial, Kerr J. convicted the respondent of attempting to murder his estranged wife and of two counts of uttering threats to kill her. On the attempted murder charge, in addition to twenty-eight months credit for time served, the trial judge sentenced the respondent to two years less a day imprisonment plus two years of probation, recommended that the respondent receive counselling while incarcerated and ordered that the respondent accept and continue counselling while on probation

On the uttering death threats charges, the trial judge sentenced the respondent to 30 days imprisonment on each count, to be served concurrently. The Crown appeals against the sentence imposed for attempted murder. The main issue on appeal is whether the sentence imposed is unfit because it is below the range of sentences established by this court for a planned and deliberate attempted murder committed in a domestic context.

Area of Law: General Principles of Sentencing Principle of Law: (s.718.2)-principles of denunciation and deterrence are of paramount significance in cases involving domestic violence. Sentences imposed in domestic violence cases must foster an environment in which individuals can feel free to leave romantic relationships without fear of harrassment, harm or violence directed at forcing a return to the relationship. Held: I would grant leave to appeal sentence, allow the appeal, and vary the sentence imposed on the conviction for attempted murder by increasing the period of probation from two years to three years, with all other terms of the sentence imposed by the trial judge to remain the same.

R v Bremner
Facts: -On 4 August 1999, after a four-day trial by judge alone, at which the appellant pleaded not guilty to charges related to events that occurred over a brief period sometime in the late 1960s or early 1970s, he was convicted of four counts of indecent assault of sea cadet boys; -Brenner appeals: -the appellant made two major arguments in support of a conditional sentence. The first was that the trial judge erred in law when he overemphasized the principles of general deterrence and of denunciation by stating that a conditional sentence would not achieve the purposes of those sentencing principles. The second was that he overemphasized the absence of remorse as a factor when he decided not to impose a conditional sentence. [15]- In addition, the appellant made a third argument, which was emphasized less than the other two. This argument concerns the Victim Impact Statements read into the record at the sentencing hearing. Area of Law: Sentencing-Procedure Principle of Law: (S.722)-Victim Impact Statements-victim impact statements should not contain any recommendations for sentence, or use any psychiatric diagnostic terms. Victims are not permitted to have a role in suggesting the length or kind of sentence, nor is it intended that these statements erode the usual roles about expert evidence. -Clearly, conditional sentences are capable of meeting the principles of denunciation and of general deterrence. The issue before the trial judge is whether a conditional sentence is appropriate in a particular case applied Proulx A conditional sentence in this case would be a fit sentence.

Held: Appeal allowed;

R v Cromwell
Facts: -Ms.Cromwell was charged in an information with the commission of five offences; -4 contrary to S.255(2)(her ability to operate a motor vehicle was impaired by alcohol causing bodily harm to 4 people); and S.255(3) refusing to accompany the peace officer for enabling a breath sample; -Cromwell breached her hearing in 2002 and was later arrested and then let out on recognizance (which she breached in July 2004); -her counsel advised the Court that Ms. Cromwell would be pleading guilty to one charge of impaired driving causing bodily harm, incorporating all complainants. He further requested that an outstanding charge of breach of recognizance be brought before the Court, so that she could enter a guilty plea to that charge as well; -After presenting the facts of each of the two offences, counsel made a joint recommendation for a conditional sentence of 18 months' duration for the impaired driving causing bodily harm charge and an additional one month for the breach of recognizance. The recommendation was, therefore, a 19 month conditional sentence to be followed by one year of probation and a two year driving prohibition pursuant to the Criminal Code.; -Judge MacDonald declined to accept the joint recommendation, sentencing Ms. Cromwell to four months imprisonment on the charge of impaired driving causing bodily harm and an additional month on the breach of Recognizance, for a total of five months imprisonment. That was to be followed by a one year period of probation as well as a two year driving prohibition under s.259 of the Criminal Code and a DNA Order; -Cromwell appealed; Area of Law: General Principles of Sentencing-Procedure Principle of Law: -S.687,718 CC-the interests of justice are generally well served by the acceptance of a joint submission on sentence, accompanied by a negotiated plea of guilty, provided the proposed sentence falls within an acceptable range. -A trial judge has a discretion to reject a joint submission where the proposed sentence: i. Is contrary to the public interest; ii. would bring the administration of justice into disrepute; iii. Is otherwise unreasonable;

Note: Section 742.3(1) of the Code requires five conditions for all conditional sentences - the offender must keep the peace; appear before the court as required; report to a supervisor as directed; remain within the jurisdiction and notify the supervisor in advance of any change in name or address. The court may prescribe additional conditions (s.742.3(2)) which are to be guided by four general principles (Proulx, supra at para. 117

Held: Appeal dismissed.

R v Ziatas
Facts: Appeal by the accused from the sentence imposed upon conviction after his plea of guilty to a charge of assault with intent to resist arrest ; The trial judge imposed a fine of $150 and placed the appellant on probation for a term of one year One of the conditions of the probation order was that the appellant should not operate a motor vehicle for the period of one year Issue: Was the driving prohibition a valid probation condition for assault with intent to resist arrest? Area of Law: Probation and Community Service Principle of Law: S.732.1(2) What kinds of conditions can be attached to a probation order? -The terms of the probation order are not to be imposed as additional punishment, but rather with a desire to secure the good conduct of D, and to prevent the repetition by D of the same offence or the commission of other offences; Martin JA The trial judge proceeded upon a wrong principle, inasmuch as he imposed this term of the probation order as an additional punishment, whereas his only power, was to impose such reasonable conditions as he considered desirable for securing the good conduct of the accused and for preventing the repetition by him of the same offence or the commission of other offences Held: No; appeal allowed

R v Fallofield
Facts: The accused pleaded guilty to a charge of being in unlawful possession of some pieces of carpet of a total value of less than $200, knowing the same (that some?) to have been obtained by theft He is a corporal in the Canadian Armed Forces, aged 26, married, and with no previous record The trial judge declined to grant the discharge, convicted the appellant, and sentenced him to a fine of $100, or in default, 30 days in prison Issues: 1. Did the trial judge err in refusing to grant an absolute or a conditional discharge? 2. If so, can the CA make such an order? Area of Law: Discharges Principle of Law: S.730-see CC; -By reviewing the authorities the court concluded that The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death There is nothing in the language that limits it to a technical or trivial offence Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition; if it is not, then that is the end of the matter If it is decided that it is in the best interests of the accused, then the court must consider that a grant of discharge is not contrary to the public interest Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions Discharges should not be exercised as an alternative to probation or suspended sentence Discharges should not be applied routinely to any particular offence Held: 1. Yes; 2. Yes; appeal allowed

R v Budreo
Facts: -The appellant Wray Budreo is a paedophile. -He has a long record of sexual offences against young boys. -In November 1994, he was released from prison after serving a sentence for three convictions for sexual assault. -The Crown immediately sought a recognizance under s.810.1. -The appellant brought an application to prohibit the provincial court judge, from holding the s.810.1 hearing and for a declaration that s.810.1 was unconstitutional because it violated ss.7, 9, 11 and 15 of the Canadian Charter of Rights and Freedoms. -J. concluded that s.810.1 was constitutional except in two respects. First, he declared community centre, one of the places a person could be prohibited from attending under s.810.1(3), to be inoperative because it was overly broad contrary to s.7 of the Charter and could not be justified under s.1. Second, he found that s.810.1(2), which required the provincial court judge to cause the parties to appear before the court, infringed ss.7 and 9 of the Charter and could not be justified under s.1. To remedy this violation, however, Then J. read down the word shall in s.810.1(2) to read may. -The appellant Budreo appealed and was supported in his appeal by the intervener, The Canadian Civil Liberties Association. -In oral argument the appellant narrowed the focus of his appeal to three main issues. 1. First, he submitted that s.810.1 violated s.7 of the Charter. In his submission, s.810.1 deprived him of his liberty contrary to the principles of fundamental justice in three ways: s.810.1 creates a status offence; it is impermissibly broad; and it is impermissibly vague. 2. Second, he submitted that Then J. erred in reading down shall to may in s.810.1(2) and that he should instead have declared the subsection inoperative. 3. Third, he submitted that Then J. erred in holding that a person subject to a s.810.1 proceeding can be compelled to court by an arrest warrant under s.507(4) of the Code and can be detained pending the hearing under s.515. Area of Law: Recognizance Orders Principle of Law: 3.) -S.507(4) which permits the issuance of a warrant for D s arrest , and s.515 which authorizes judicial interim release pending trial, apply to proceedings under S.810.1. Their application does not offend Charter S.7; 2.)-the mandatory shall in s.810(1(2) should be read as the permissive may ; 1.)-Section 810.1 does not infringe Charter S.7 on the basis that it creates a status-based offence, is overly broad, or is impermissibly vague;

Held: Appeal dismissed;

R v Gladue

Facts: The offender had pleaded guilty to manslaughter in the stabbing death of her husband The trial judge sentenced her to three years imprisonment and remarked that although she was an Aboriginal person, s. 718.2(e) could not apply because she did not reside in an Aboriginal community On appeal, the BC Court of Appeal disagreed with this narrow application of s. 718.2(e), but the majority did not vary the sentence -Issue: How should s. 718.2(e) relating to aboriginal offenders be interpreted? Area of Law: Sentencing Aboriginal Offenders Principle of Law: S. 718.2(e) is not simply a codification of existing jurisprudence but remedial in nature and is designed to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing There is a judicial duty to give the provision's remedial purpose real force Section 718.2(e) must be read in the context of the rest of the factors referred to in that section and in light of all of Part XXIII Sentencing is an individual process The effect of s. 718.2(e), however, is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders In sentencing an aboriginal offender, the judge must consider the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage In order to undertake these considerations the sentencing judge will require information pertaining to the accused Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing If there is no alternative to incarceration the length of the term must be carefully considered The jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence However, s. 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders The more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community" must be defined

Held: In this case, the sentencing judge may have erred in limiting the application of s. 718.2(e) to the circumstances of aboriginal offenders living in rural areas or on-reserve Although in most cases such errors would be sufficient to justify sending the matter back for a new sentencing hearing, the offence was a particularly serious one and three years' imprisonment was not unreasonable Appeal dismissed.

R v Zink
Facts: -Having shot and killed his neighbour, the accused pleaded guilty to manslaughter. The trial judge sentenced him to a 12-year term of imprisonment and ordered that his parole eligibility be delayed for six years under s. 743.6 of the Criminal Code. The Court of Appeal upheld the sentence. The accused appealed to this Court on the issue of delayed parole. Area of Law: Parole Principle of Law: -Delayed parole is out of the ordinary, and must be imposed in a manner that is fair to D. The sentencing judge must first decide the appropriate punishment for the crime, after a consideration of all relevant factors, but without any consideration of parole eligibility. The judge must next consider parole eligibility, again applying the sentencing factors, but assigning priority to general and specific deterrence and denunciation. -S.743.6 does not require a special and distinct parole eligibility hearing, or written notice to D that P will seek delayed parole. P must raise the issue of delayed parole in a fair and timely manner, and demonstrate that this additional punishment is required. The sentencing judge must be satisfied that the order is required to reflect the objectives of sentencing, in particular the special weight assigned to denunciation and deterrence. The judge s reasons should state, with sufficient precision and clarity, why the parole delay order is being made; Held: The appeal should be dismissed.