Criminal Law Term 2 Notes
Table of Contents
MR REVIEW .......................................................................................................................................................................................... 5
IGNORANCE OF LAW ......................................................................................................................................................................... 6
MISTAKE OF FACT .................................................................................................................................................................................................. 6
R v Phillips 1978 (Supplementary) [Mistake of Fact: Philips may not have known the qualities of the weapon that made it
prohibited]........................................................................................................................................................................................................................................................... 6
MISTAKE OF LAW ................................................................................................................................................................................................... 7
Difference btw Mistake of Fact and Mistake of Law ................................................................................................................................ 7
Should reasonable interpretations of the law be treated differently? ............................................................................................ 7
Is s 19 too harsh on ordinary Canadians? .................................................................................................................................................... 7
Jones and Pamajewon v The Queen 1991 SCC p 504 [Mistake of Law] ................................................................................................................................. 8
R v Custance 2005 (Supplemental) [Mistake of law: under belief that his actions constituted lawful compliance; sentencing is the
method to “fix” mistake of law; people may have trouble complying] ................................................................................................................................... 8
R v Lambrecht 2008 Supplementary [Mistake of Law: Aware of qualities of weapon, unaware it was prohibited] ...................................... 8
R v Klundert 2004 (Supp.) [Mistake of law: When one knowingly violates law and mistakenly believes the law is invalid] .................... 9
When is s 19 overruled by the Code and mistake of law IS relevant? .............................................................................................. 9
R v Howson 1966 p 502 [s 19 does not affect offence if accused acted under colour of right] ............................................................................... 10
R v Docherty 1989 p 503 [An offence requiring “willful” is exception to general rule expressed by s 19] ...................................................... 10
R v Prue and Baril 1979 p 505 [Accused lack of knowledge of licence suspension is mistake of fact] ............................................................... 10
R v MacDougall 1982 SCC p 505 [Makes arbitrary distinction btw Prue and Baril – example where court had different feelings as to
what was correct/what was equitable] .............................................................................................................................................................................................. 11
MacFee [Mistake as to legality of consent is a mistake of law] ............................................................................................................................................... 11
Mistake of Law: Conflicting Principles ........................................................................................................................................................ 11
R v Tavares 1996 (Supp) [CA was wrong saying it was Mistake of Fact, Actually Mistake of Law] ..................................................................... 11
THE DEFENCE OF OFFICIALLY INDUCED ERROR ............................................................................................................................................ 12
R v Cancoil Thermal Corporation and Parkinson 1986 p 507 [Accused must show reliance on erroneous legal opinion and that his
reliance was reasonable] ........................................................................................................................................................................................................................... 12
R v Jorgensen 1995 SCC p 508 [6 step test for OIE] ..................................................................................................................................................................... 13
Levis (Ville) v Tetrault (2006) [Passive ignorance does not satisfy DD] ........................................................................................................................... 14
DEFENCE OF DUE DILIGENCE ............................................................................................................................................................................ 14
Molis v The Queen 1980 p 506 [Defence of Due Diligence does not work for researching to see if the act is illegal] ................................. 14
Forster v The Queen 1992 p 507 [Reaffirm Molis] ....................................................................................................................................................................... 14
Mistake of Law and Constitutional Considerations .............................................................................................................................. 14
R v Pontes 1995 SSC p 516 [Due Diligence is Constitutionally required for Strict Liability Offences] ................................................................ 14
Statutory Reform Proposal 1987 p 521.............................................................................................................................................................................................. 15
SEXUAL ASSAULT ............................................................................................................................................................................ 16
GENERAL BASICS ................................................................................................................................................................................................. 16
R v Chase SCC 1987 p 632 [Sexual assault test objective, based on circumstances] .................................................................................................... 16
R v V (KB) p 633 [SSC argue whether lack of intention for sexual gratification was a decisive factor weighing against finding a
sexual assault] ................................................................................................................................................................................................................................................. 16
STATUTORY ALTERATIONS ................................................................................................................................................................................ 16
THE MEANING OF CONSENT .............................................................................................................................................................................. 16
THE IMPORTANCE OF CONSENT ........................................................................................................................................................................ 17
R v Ewanchuk SCC 1999 p 659[no defence of implied consent for sexual assault, For AR: subjective consent is determinative – if
they are credible;] ......................................................................................................................................................................................................................................... 17
Where is consent legally impossible? ........................................................................................................................................................... 18
R v JA 2011 SCC (Supp) [Consent cannot be given in advance for unconscious sexual activities] ........................................................................ 18
R v Welch 1995 ONCA (Supp) [Consent to sexual contact vitiated if bodily harm occurs (sadomasochism)] ................................................ 20
Zhao 2013 ONCA 293 [Court unsettled over application of Jobidon, but still held Welch] ...................................................................................... 20
When Fraud Vitiates Consent .......................................................................................................................................................................... 20
R v Maboir 2012 SCC (supp)[One guilty of aggravated sexual assault if he fails to disclose HIV status b4 intercourse and there is a
realistic possibility of transmission] .................................................................................................................................................................................................... 20
R v DC 2012 SCC (Supp) [Even if low viral load, must still use condom to avoid conviction] ................................................................................. 22
Vitiating Consent Continued ............................................................................................................................................................................ 23
1
R v Hutchinson 2010 SCC (Supp) .......................................................................................................................................................................................................... 23
R v Hutchison 2013 NSCA ......................................................................................................................................................................................................................... 24
SCC Decision on Hutchinson .................................................................................................................................................................................................................... 25
Annotation, Janine Benedet, UBC........................................................................................................................................................................................................... 26
Sexual Assault Basic Key Points ..................................................................................................................................................................... 26
Consent and Mens Rea ........................................................................................................................................................................................ 26
Pappajohn v The Queen 1980 SCC p 633 [A subjective mistake as to the facts of consent warrants an acquittal; Accused perception
of consent is relevant, mistake of fact open defence to rape; mistake of fact does not have to be reasonable, reasonableness is only
evidence for/against view that belief was actually held/intent was lacking; No room in facts for Ambiguity which would allow for
Mistake of Fact] .............................................................................................................................................................................................................................................. 27
Why can’t Pappajohn raise mistake of fact? ............................................................................................................................................ 28
The Evidentiary Burden ..................................................................................................................................................................................... 28
Osolin v The Queen 1993 SCC p 640 [s 265(4) does not infringe presumption of innocence or right to trial by jury; SCC split on
whether diametrically opposed facts preclude HMB. Cory = precludes. McLachlin says Not logically impossible, must meet “air of
reality”]............................................................................................................................................................................................................................................................... 28
Sansregret v The Queen 1985 SCC p 642 [Willful blindness regarding consent is culpable; if in the circumstances (ie. Happened
before) accused should have known] .................................................................................................................................................................................................. 29
R v Seaboyer 1991 SCC p 645 .................................................................................................................................................................................................................. 29
Honest Mistaken Belief ....................................................................................................................................................................................... 29
Ewanchuk Key Points .................................................................................................................................................................................................................................. 30
New Statute ............................................................................................................................................................................................................. 30
Christine Boyle “The Constitutionality of Bill C-49: Analyzing Sexual Assault as if Equality really mattered” 1999 p 652 ..................... 31
R v Malcom 2000 [Recklessness vs. Willful blindness; quasi- objective test for “Reasonable steps”] ................................................................ 31
R v Cornejo 2003 ONCA p 655 [Reasonable steps may require positive action, depends on circumstances known to A at time] ....... 31
Ewanchuk: Asserting "No Means No" at the Expense of Fault and Proportionality Principles. 1998 (Supp) [Current Sexual Assault
Law is Repressive] by Don Stuart .......................................................................................................................................................................................................... 32
Dippel 2011 ABCA [What is reasonable is gathered from the circumstances known from the accused and the context] ........................ 33
R v Esau [1997] SCC (Supp) [Plausible evidence without contradiction (due to lack of C’s memory) warrants air of reality and TJ
presenting jury with defence of honest but mistaken belief.] ................................................................................................................................................. 33
Variation of Plummer (raised in Esau) [What is reasonable will depend on: The circumstances known to the accused AND the
surrounding context]................................................................................................................................................................................................................................... 34
THE DEVELOPMENT OF STRICT LIABILITY ........................................................................................................................... 34
PUBLIC WELFARE OR TRUE CRIMINAL OFFENCES ........................................................................................................................................ 35
Beaver v The Queen SCC 1957 [Possession (because it has a minimum sentence) requires MR/ knowledge that substance is a drug]
................................................................................................................................................................................................................................................................................ 35
R v Peirce Fisheries 1971 SCC p 384 [No MR because low stigma offence] ..................................................................................................................... 35
R v Wholesale Travel Group Inc 1991 SCC [Strict Liability: Court upheld that BoP does infringe s 11(d) of Charter but justified
under s 1 because make sense to impose BoP on accused in public welfare offences] .............................................................................................. 35
THE EMERGENCE OF STRICT LIABILITY .......................................................................................................................................................... 36
**R v City of Sault Ste. Marie (SSM)[Creates strict liability offences, Accused has onus of proving defence of due diligence] ............... 36
R v Ellis-Don Ltd 1992 SCC p 415 [Regulatory offences/defences must be proven BYD to be consistent with s 11 D] ............................. 36
ABSOLUTE LIABILITY AND BURDENS OF PROOF ................................................................................................................ 37
CONSTITUTIONAL CONSIDERATIONS ............................................................................................................................................................... 37
Reference re Section 94(2) of the BC Motor Vehicle Act [Absolute Liability and Imprisonment is an s 7 violation]................................... 37
R v Pontes 1995 [Offence that precludes defences of mistake of fact/due diligence, mistake of law = Absolute Liability] ..................... 38
R v Ontario Inc; R v Transport Robert ONCA 2003 p 401 [AL offence that imposes minimal fine with low stigma does not trigger
“state imposed psychological stress” contrary to s 7 security of the person] ................................................................................................................. 38
R v Wholesale Travel Group Inc SCC 1991 p 406 .......................................................................................................................................................................... 39
REVIEW .............................................................................................................................................................................................. 39
CRIMINAL NEGLIGENCE: OBJECTIVE STANDARDS .............................................................................................................. 39
R v Tutton and Tutton 1989 p 450 [Must impose objective test where criminal negligence is considered, bc it is conduct of accused
under question, not intention or mental state***Majority is not current Law] .............................................................................................................. 40
R v Waite 1989 [Highspeed drunk driver killed 4 ppl, subject to objective test of criminal negligence. Mental element in criminal
negligence is the minimal intent of awareness of the prohibited risk or willful blindness to the risk] .............................................................. 41
R v Gingrich and McLean 1991 [Most Courts Followed!: Pro Objective! Mclean: company president; Gingrich: driver; Truck brakes
failed after experiencing problems over several days, result is fatal MVA, use Objective form of fault to decide criminal negligence]
................................................................................................................................................................................................................................................................................ 41
R v Hundal 1993 [Pro Objective! Unanimous decision! Dangerous driving charge: accused drove overloaded truck through red
light, MR for offence assessed objectively – BUT in context of all events surrounding incident] .......................................................................... 41
Movement to Cornerstone of Objective Liability: DUTY and RISK ................................................................................................. 41
Constitutionality of Offence of Unlawful Act of Manslaughter + Objective Test for Crim Neg. ........................................ 41
2
Exception .............................................................................................................................................................................................................................................. 42
R v Creighton SCC p 457 [For Manslaughter, Mental element in relation to foreseeability of the consequence (Death) must be
established] ...................................................................................................................................................................................................................................................... 42
Creighton and Beatty’s “Bottom Line” for Criminal Liability ........................................................................................................... 45
Unlawful Act Manslaughter ............................................................................................................................................................................. 45
Creighton and Symmetry **not that important, worth knowing, 99% of time MR will match AR................................. 45
The MR of Negligence: Review ........................................................................................................................................................................ 45
Why was the court focusing on MR? ............................................................................................................................................................ 45
Key Points in Beatty ............................................................................................................................................................................................. 45
R v Beatty SCC 2008 [Momentary Lapse of attention, without more, cannot establish AR of Dangerous Driving] ...................................... 45
R v Roy 2012 SCC [Cannot infer MR of marked departure, on AR of objectively viewed dangerous driving alone]................................... 47
Key Points in Roy ................................................................................................................................................................................................... 47
MENTAL DISORDER AND AUTOMATISM ................................................................................................................................ 47
PROCEDURAL ELEMENTS OF THE MENTAL DISORDER DEFENCE ............................................................................................................... 47
Choices involving Crimes and Mental Disorder....................................................................................................................................... 47
Unfitness to Stand Trial ..................................................................................................................................................................................... 47
R v Whittle 1994 SCC p 778 [Sopinka notes on Unfit to Stand Trial: Limited cognitive capacity to understand process and to
communicate w/ council].......................................................................................................................................................................................................................... 48
Who can Raise the Mental Disorder Issue? ............................................................................................................................................... 48
R v Swain SCC 1991 p 780 [CANNOT BE FORCED INTO NCRMD VERDICT. Crown can raise defence of insanity after trier of fact has
found accused guilty and b4 offence is charged. Can also raise defence if accused, through testimony, puts his capacity for criminal
intent at issue] ................................................................................................................................................................................................................................................ 48
Burden of Proof ...................................................................................................................................................................................................... 49
R v Chaulk and Morrissette SCC 1990 [presumption of sanity violates presumption of innocence, but its justified] ................................. 49
Consequences of Mental Disorder as a Defence ...................................................................................................................................... 50
Winko v BC (Forensic Psychiatric Institute) 1999 SCC p 785 [Part XX.1 of Code achieves goals of fair treatment of mentally ill and
public safety, not unconstitutional] ...................................................................................................................................................................................................... 50
Mental Disorder as a Defence.......................................................................................................................................................................... 50
R v Simpson 1977 ONCA p 788 [Disease of the Mind includes personality disorders; DoM is a question of law] ........................................ 51
Cooper v The Queen 1980 SCC p 789 [To support defence of insanity, disease must be of such intensity to render accused incapable
of appreciating the nature and quality of the violent act or of knowing that it was wrong.] ................................................................................... 51
Appreciating the Nature and Quality of the Act ..................................................................................................................................... 51
Cooper v The Queen 1980 SCC p 792 [was the accused at the very time of the offence by reasons of DoM, unable to appreciate not
only the nature of the act, but the natural consequences that would flow from it] ...................................................................................................... 51
Simpson 1977 p 794 [Appreciation does not import requirement that act be accompanied by appropriate feeling about effect of act
on other people]............................................................................................................................................................................................................................................. 52
R v Abbey SCC 1982 p 794 [A person who by reason of disease of mind does not “appreciate” the penal consequences of his actions
is NOT insane within the meaning of s 16(2), must go to MR of offence] .......................................................................................................................... 52
Knowing that the Act is Wrong ...................................................................................................................................................................... 52
R v Chaulk and Morrissette SCC 1990 [Accused incapable of knowing that act is Legally AND Morally wrong] ........................................... 52
Supplementary reading on Andrew Goldstein [Compulsive Acts that you know are wrong and know what you are doing are
criminally liable!] .......................................................................................................................................................................................................................................... 53
R v Oommen SCC 1994 [If mental disorder creates a delusion that makes action not wrong at time of offence, even though you
generally understand Canadian law, you can claim NCR] ......................................................................................................................................................... 53
TEST FOR NCRMD: Are they responsible? ................................................................................................................................................. 53
R v Landry 1988 p 810 [Example of Oomen] ................................................................................................................................................................................... 54
AUTOMATISM .................................................................................................................................................................................. 54
Rabey v The Queen 1980 p 812 [NO Longer the Law!: Internal trigger = s 16, external trigger = automatism; Anything external that
would not cause an average person to go into a dissociative state must be dealt with under s 16.] ................................................................... 54
R v Parks 1992 SCC [Sleep walking is valid for defence of automatism] ........................................................................................................................... 55
R v Stone 1999 SCC p 818 [Disease of Mind Inquiry Holistic Approach; how to determine non-mental automatism = focus on causes
of automatism, continuing danger, other policy concerns; Judge choses what defences left with jury] ............................................................ 55
R v Luedeck 2008 ONCA p 835 [Decision of Stone maybe influenced by Winko, Looking at Automatism post Stone – 2 big changes]
................................................................................................................................................................................................................................................................................ 57
INTOXICATION ................................................................................................................................................................................. 57
ALCOHOL AND DRUGS ......................................................................................................................................................................................... 57
Drinking and MR ................................................................................................................................................................................................... 57
Voluntary intoxication........................................................................................................................................................................................ 57
Intoxication and the General Principles of Liability: The Beard Test ........................................................................................... 58
3
The Legacy of Beard ............................................................................................................................................................................................ 58
Specific vs. General Intent ................................................................................................................................................................................. 59
COMMON LAW DEFENCE OF INTOXICATION ................................................................................................................................................... 59
DPP v Beard HoL 1920 p 839 [if specific intent essential element of crime, voluntary drunkenness rendering A incapable, should be
considered to determine if he had necessary intent of crime] ................................................................................................................................................ 59
INTOXICATION AND SPECIFIC INTENT.............................................................................................................................................................. 59
Bernard v The Queen SCC 1988 p 853 [Has imported objective Reasonable Person Test when you use defence of intoxication] ...... 60
Summary on Bernard .......................................................................................................................................................................................... 61
EXTREME INTOXICATION/INTOXICATION OR MENTAL DISORDER? .......................................................................................................... 61
R v Daviault 1994 SCC p 862.................................................................................................................................................................................................................... 61
R v Penno 1990 SCC p 868 [Intoxication could not be defence to offence in which it is an element] .................................................................. 63
Parliament responds to Daviault................................................................................................................................................................... 63
Bill C72 (1994-1995) ................................................................................................................................................................................................................................... 63
Current Law on defence of intoxication ..................................................................................................................................................... 63
Self Induced Intoxication ................................................................................................................................................................................... 64
R v Chaulk 2007 p 871 [Test for whether intoxicated state was self-induced] .............................................................................................................. 64
R v Bouchard-Lebrun 2011 SCC [Malfunction of mind resulting exclusively from self-induced intoxication NEVER considered
“disease of the mind”; but if underlying mental condition – then depends on source] .............................................................................................. 65
DEFENCES .......................................................................................................................................................................................... 67
INTRODUCTION TO DEFENCES: ......................................................................................................................................................................... 67
WHERE DO DEFENCES COME FROM?............................................................................................................................................................... 67
NECESSITY: INTRODUCTION .............................................................................................................................................................................. 67
NECESSITY: CONTROVERSIAL JUDGE-MADE DEFENCE ................................................................................................................................. 67
Necessity: Application of Objective Modified Test ................................................................................................................................. 67
CONCEPTUALIZATION OF NECESSITY AS AN EXCUSE OR JUSTIFICATION ................................................................................................... 68
Perka v The Queen SCC 1984 [Defence of Necessity as Justification vs. Excuse; Excuse = morally involuntary, had no legal
reasonable alternative] .............................................................................................................................................................................................................................. 68
NECESSITY AND THE LATIMER CASE ................................................................................................................................................................ 70
Latimer v The Queen SCC 2001 p 890 ................................................................................................................................................................................................. 70
DURESS .................................................................................................................................................................................................................. 70
DURESS: ELEMENTS ............................................................................................................................................................................................ 70
Duress: Application of Objective Modified Test....................................................................................................................................... 70
R v Ryan 2013 SCC (Supp) ........................................................................................................................................................................................................................ 71
DEFENCES: CLARIFICATION OF SUBJECTIVE AND OBJECTIVE ...................................................................................................................... 71
MODIFIED OBJECTIVE TEST ............................................................................................................................................................................... 71
Comparison of Modified Objective Test to Objective Test of MR ..................................................................................................... 71
SELF-DEFENCE AND DEFENCE OF OTHERS ............................................................................................................................ 72
EVIDENTIARY BURDEN AND SELF-DEFENCE .................................................................................................................................................. 72
THE NEW SELF-DEFENCE: THREE COMPONENTS ......................................................................................................................................... 72
FACTORS IN SELF- DEFENCE (S 34 (2)) ......................................................................................................................................................... 73
R v Docherty [Castle Doctrine: If you are in your own home, you are not obliged to retreat and it will not be considered a factor
under s 34, because your home is your last line of defence].................................................................................................................................................... 73
R v Bogue [A person defending himself against a reasonably apprehended attack CANNOT be expected to weigh to a nicety the
exact measure of necessary defensive action] ................................................................................................................................................................................ 74
SELF DEFENCE AND DOMESTIC VIOLENCE...................................................................................................................................................... 74
R v Lavallee SCC 1990 p 955 [Expert evidence on battered women mental state should be heard by Jury for Self-Defence]................ 74
Isabel Grant, “The Syndromization of Women’s Experience” 1991 p 967 ........................................................................................................................ 75
PROVOCATION ................................................................................................................................................................................. 75
ELEMENTS OF PROVOCATION ............................................................................................................................................................................ 76
PROBLEMS WITH THE CONTROL ELEMENT (#3) .......................................................................................................................................... 76
S 232 OF THE CODE ............................................................................................................................................................................................ 76
CRITICISMS OF PROVOCATION DEFENCE ......................................................................................................................................................... 77
R v Parent SCC 2001 p 763 [intense anger alone cannot reduce murder to manslaughter] .................................................................................... 78
PARTY LIABILITY............................................................................................................................................................................ 79
CONCERNS WITH PARTY LIABILITY .................................................................................................................................................................. 79
CDN POSITION ON PARTY LIABILITY .............................................................................................................................................................. 79
4
MODES OF PARTY LIABILITY (SECTION 21) EXAMINABLE .......................................................................................................................... 79
SECTION 21(1)(B): AIDING .............................................................................................................................................................................. 79
R v Greyeyes 1997 p 531 [If your assistance is directed to purchaser, person charged is aiding possession, not aiding trafficking] 80
Dunlop and Sylvester v The Queen SCC 1979 p 537 [Mere presence is not enough to ground liability, must HELP and have
knowledge about what is going to happen]...................................................................................................................................................................................... 80
R v Jackson SCC 2007 p 542 [Mere presence is enough to ground acquittal, but if evidence can show more than mere presence,
court can conclude guilty.] ........................................................................................................................................................................................................................ 81
R v Salajko 1970 p 539 [Mere presence not enough to convict] ............................................................................................................................................ 81
PARTY LIABILITY - INTENT ................................................................................................................................................................................ 81
R v Nixon 1990 p 543 [MR requirements are different btw principal and assister] .................................................................................................... 81
R v Helsdon ONTCa p 545 [21(1)(b) imposes HIGH MR, A must know or be willfully blind ................................................................................... 81
R v Popen 1981 p 549 [Must know what is going to happen, must know that you are helping] ........................................................................... 82
R v Palombi 2007 p 550 [Must know what you are doing is going to help, and also intend to help. By omitting to help does not
automatically= encourage/intending to help] ................................................................................................................................................................................ 82
COMMON INTENTION (21)(2): ONLY WAY TO CONVICT PARTY FOR UNFORESEEN EVENTS ..................................................... 83
R v Kirkness SCC 1990 p 553 [Minority: Show that he knew death was probable consequence after sexual assault] ............................... 83
R v Logan SCC 1990 p 561 [Someone can be charged under s21(2) for murder, but strike out words “ought to have known”, must
have subjective intention]......................................................................................................................................................................................................................... 83
COUNSELLING AS A FORM OF PARTICIPATION (S 22) .................................................................................................................................. 84
R v O’Brien 2007 p 564 [If you push someone to do this, you can be guilty. Requires heavy level of encouragement] ............................. 84
ATTEMPTS......................................................................................................................................................................................... 84
INTRODUCTION .................................................................................................................................................................................................... 84
THE OFFENCE....................................................................................................................................................................................................... 84
FUNDAMENTAL POINTS ...................................................................................................................................................................................... 84
ACTUS REUS ......................................................................................................................................................................................................... 85
R v Cline ONTCA 1956 p 572 [Preparation vs. Attempt] ............................................................................................................................................................ 85
AR EXAMPLES:..................................................................................................................................................................................................... 85
SIX PRINCIPLES OF ATTEMPTS FROM CLINE ................................................................................................................................................... 85
Deutsch v The Queen SCC 1986 p 573 [Preparation vs. attempt left to common sense judgement; Look at the relationship btw the
nature and quality of the act & nature of complete offence] .................................................................................................................................................... 85
MENS REA............................................................................................................................................................................................................. 86
R v Ancio SCC 1984 p 574 [MR for attempted murder is not less than specific intent to kill] ................................................................................ 86
Ancio: Why is Intent to cause result important? .................................................................................................................................... 86
R v Logan SCC 1990 p 576 [Change Ancio: MR for Attempted murder is Subjective foresight of death] .......................................................... 86
R v Sorrell and Bondett 1978 [If only AR evidence available, MR must be proved w/ extrinsic evidence. Without this, even though
AR looks like crime, it may be insufficient to show acts done with intent] ...................................................................................................................... 87
MR EXAMPLES ..................................................................................................................................................................................................... 87
IMPOSSIBILITY ...................................................................................................................................................................................................... 87
US v Dynar SCC 1997 p 579 [Factually impossible attempts, as opposed to imaginary impossibility, should be convicted of attempt]
................................................................................................................................................................................................................................................................................ 88
ABANDONMENT ................................................................................................................................................................................................... 88
MR Review
1. The presumption of MR is that every element of the AR has a corresponding MR
2. The default MR elements are intention
3. The accused must have knowledge or willful blindness of the circumstance elements – not recklessness
(beaver) [this is unsettled law, some cases say recklessness will suffice]
4. Intention and knowledge requires high levels of subjective awareness. Recklessness is a lower level of
awareness. Both of these are subjective states. These are both higher than objective foreseeability.
5. Parliament can restrict MR to higher mental state, which trumps CL
6. MR is inclusive of objective foreseeability and objective states. Parliament can restrict MR to Objective
states.
7. The presumption that intention or recklessness suffices does not apply to predicate offences (those that
are based on unlawful acts)
8. The charter occasionally requires certain crimes to have high level of subjective MR (ie. Murder cannot be
objective, even though it is a predicate offence)
5
IGNORANCE OF LAW
Mistake of Fact



Not relevant unless the mistake negates a crucial MR element of the offence
Mistakes are not relevant:
o Example: Brian assaults “John”. Turns out not to be John. Brian is still guilty of assault because
knowledge of the identity of the person is not a required element of the offence.
o Example: Brian swings arms wildly and hits someone. Brian is not guilty of assault because assault
requires intentional application of harm. Recklessness does not suffice.
o Example: Brian punches John causing bodily harm. Says he did not mean to cause bodily harm. His
mistake is irrelevant, he may be charged for assault causing bodily harm, but we must first know
whether it was objectively foreseeable that his punch would cause bodily harm.
The Rule: if A points to evidence that could reasonably lead to the conclusion that he was mistaken
as to a relevant factual element, then an acquittal must result unless the Crown proves BYD that A
was not so mistaken
R v Phillips 1978 (Supplementary) [Mistake of Fact: Philips may not have known the qualities of the weapon that
made it prohibited]
F: It is against the law to carry a switchblade. Defence: I did not know it was a prohibited weapon (Mistake of Law).
At trial: convicted due to mistake of law. Appeal court says he had to know the facts that make this weapon
prohibited (Mistake of Fact). Philips argues that I did not know it opened in that way.
I: Does the accused KNOW that the knife opens by centrifugal force?
D: Allow the appeal, quash the conviction, acquittal
R
 Ignorance of the fact that the knife opens by centrifugal force is a defence to a charge of bring in possession
of a prohibited weapon
 Accused did not know. Police did not know. Took much practice to open it that way
R: Philips may not have known the qualities of the weapon that made it prohibited (Mistake of fact).
TH 3.3:
Assume a bail order said that a person must be in their house by 8 pm each night. John is caught at 8:45 pm outside
his house, and testifies that his watch was broken and that he honestly believed it was 7:45 pm.
Decision: John can raise a mistake of fact. This is a crime of subjective MR.
 The extent of reasonableness of the mistake has no impact on the ability to rely on a mistake of fact
(except as a matter of evidence).
TH 3.35:
John is on bail. He has to return to court on April 7th and is told so by the Court Registrar. John does not show up
for court. When arrested, he says he thought he was supposed to return on April 11th. He is charged with failing to
comply with a bail order.
Issue: Did he know of the order to be back on court April 7th?
Facts: I thought she said 11th.
Decision: This is mistake of fact. He has a chance of avoiding conviction if he thought that the Registrar said April
11th.
TH 4.1: Gus is charged with knowingly importing narcotics into Canada. He knows that he's carrying 1 kg of heroin
in his backpack when he is apprehended in Canada. In which of these situations might he have a valid MISTAKE OF
FACT defence:
He is sailing, thinks hes on Island A, but actually on Island B which is in Canada. = Mistake of Fact
Close answer: He is hiking on the border, accidentally crosses. He did not know he entered Canada and made no
desire to = Could be argued to be mistake of fact, but not the best answer
6
Mistake of Law






S 19: Ignorance of the law is no excuse, “I didn’t know it was illegal” = not a defence
“Knowledge that one’s act is contrary to the law is not normally one of the constituent elements of the an
offence, and therefore a mistake as to what the law is does not affect…culpability”
Example: Brian hits John. No defence if he thought hitting ppl was legal.
Purpose of S 19
o Encourages people to be knowledgeable of the law
o Problems: the law is vague, connection btw notice and fault
Mistake of law can be relevant in sentencing: if one has a good mistake of law, then sentencing will be more
lenient (Custance)
Wrongful subjective interpretations of elements of the AR normally do not amount to defences
(Lambrecht)
Difference btw Mistake of Fact and Mistake of Law
Fisherman governed by certain regulations preventing him from keeping fish under certain weight.
Mistake of Fact:
 A’s scale breaks, causing him to illegally retain undersized fish. A mistakenly believes fish are of correct
weight
Mistake of Law:
 B believes regulation sets minimum weight at 3 kg, when its actually 5 kg
Both operating under mistake  Only A will have a potential defence
Should reasonable interpretations of the law be treated differently?
 Mistake of Law has conflicting principles:
o Important to enforce compliance
o People don’t get to decide the law for themselves BUT law is complex
 Provides certainty for the application of the law
 Everybody lives under the same system of rules (fairness)
Is s 19 too harsh on ordinary Canadians?
 Sankoff thinks the law is slightly too harsh
 Law is immensely complex, and there are many regulations/laws
 Law is unclear to everyone
 Law has mandatory minimums = unfair, cant “deal w/ it in sentencing”
 Reasonable attempts to comply are irrelevant - Generally speaking, reasonableness of the mistake makes no
difference. Nor do attempts to comply (This an be altered by parliament ie. Colour of right, willful evasion of
tax)
 BUT courts become concerned in some cases where people did not really do anything wrong (Tavares). We
don’t want courts not to make up reasons to get around rules
TH 3.1:
Joe is charged with "luring", (contrary to s 172.1 of the Code) which involves seducing young children over the
internet. One of his bail conditions is not to possess a computer. Joe is stopped and arrested with breaching his bail
contrary to s 145(3), after he is in possession of an Ipad. He argues he honestly didn't believe an Ipad is a
computer. What is the ONLY argument he can possibly make to escape conviction at trial?
Issue: Is an Ipad a Computer?
Decision: If an Ipad is not a computer then he did not commit any contravention of the actus reus.
TH 3.2
John wants to discipline his children. Section 43 of the Code provides that a person may use force if the force is
"reasonable in the circumstances". John consults with friends and fellow parents, and decides to discipline his 12
year old son, by hitting him with a leather belt, causing significant bruising. He is charged with assault. To avoid
conviction, John must:
Issue: Is hitting with a leather belt “force that is reasonable in the circumstances”
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Decision: Argue that his conduct was reasonable (AR). Note: Does not matter what he believed was reasonable.
Jones and Pamajewon v The Queen 1991 SCC p 504 [Mistake of Law]
Facts: Operated unlawful bingo contrary to s 206. Argued that they thought the government had no jurisdiction on
the reserve.
Reason:
 Mistaken in their belief that the code did not apply to their activities on the reserve, not mistaken in the
components of the offence
 Not a mistake in fact
 No defence to s 19 of the Code
Note: If the government had no jurisdiction on the reserve, the band would not have been committing the illegal
act of gambling
R v Custance 2005 (Supplemental) [Mistake of law: under belief that his actions constituted lawful compliance;
sentencing is the method to “fix” mistake of law; people may have trouble complying]
F: Custance can’t get into the house he was meant to stay in, and he sleeps in the parking lot.
S 145(3)
1. Must prove that order existed (AR)
2. Must prove that accused did not comply with order (AR)
3. Must prove accused: a) knew that order existed AND that b) accused knowingly or recklessly did not
comply with order
His defence was that he did not go against 3b, because he thought that staying in the parking lot was the same as
staying in the building.
I: Did the accused knowingly or recklessly infringe the conditions of the undertaking?
D: He should have surrendered himself to authorities, not staying in parking lot.
R:
 Crown must prove that accused Intended to commit the actus reus (of being in parking lot)
 Is his mistaken belief considered mistake of fact or mistake of law?
 The fact that his friend had not secured an apt. for him was a mistake of fact
 Stayed in parking lot, under mistaken belief that it would constitute compliance. He was mistaken about
the legal consequences of his actions and was therefore under mistake of law
 (had not done his due diligence to satisfy his obligation)
 Cannot allow individuals to decide legal parameters of compliance, against interests of justice system
R: Mistake of Law because under mistaken belief that his actions would constitute compliance
Class notes: Belief that the parking lot is NOT the same as the building is a legal issue to be determined by court.
The offence does not require Custance to know the legal definition of the order
Class Analysis:
1. Why was Custance unable to argue mistake of fact?
a. He was arguing an interpretation. Therefore that is a mistake of law.
b. Belief that the parking lot was the same as the building is a Legal Issue to be determined by Court
c. The offence does not require Custance to KNOW the legal definition of the order.
d. S 19 suggests that people KNOW the law
e. Wrongful subjective interpretations of the Elements of the AR normally do not amount to defences
2. Why could Custance not argue that he acted reasonably in the circumstances?
a. Reasonableness is not part of the offence
b. The extent of the reasonableness of the mistake has no impact on the ability to rely on a
mistake of law
R v Lambrecht 2008 Supplementary [Mistake of Law: Aware of qualities of weapon, unaware it was prohibited]
F: Accused charged with possession of an illegal weapon – a cross bow. The law prohibits handheld crossbows
which aren’t antiques. He thought he was exempt.
I: Is this ignorance of the law?
D: Mistake of Law.
R:
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Accused knew item was hand held cross bow and knowledge of this constitutes MR of the offence.
Acknowledges being in possession of the bow. He had no licence to hold it.
 Not knowing what the law was does not constitute defence
Ratio: Lambrecht knew the qualities, he just didn’t know that the weapon was, in fact, prohibited (Mistake of Law)
R v Klundert 2004 (Supp.) [Mistake of law: When one knowingly violates law and mistakenly believes the law is
invalid]
F: Optometrist stops paying income tax bc he believes fed. Gov does not have legislative power to impose or collect
income tax. Defence: it was an honest protest against unlawful governmental action. Jury acquits him on tax
evasion.
I: Is an honest belief that the Act is unconstitutional relevant in determining whether an accused has the requisite
culpable mental state?
D: All crowns appeal, order new trial
R:
 Fault component is “willfully”
 A person who does not know that there is a tax imposed by the Act cannot do something for the purpose of
evading payment of that tax
 Or one may do something that has the effect of evading taxes, without purposefully evading them
 The requisite knowledge or purpose may be negated by a mistaken belief
o Ie. Makes math error = mistake of fact
o Ie. Is unaware of definition of “income” = mistake of law
o Ie. Is mistaken about the application of “income” to her affairs = mixture of both
 Factual errors can negate the fault requirements of an offence requiring knowledge and purpose
 A mistake as to one’s liability to pay tax under the Act may negate the fault requirement, and raise
reasonable doubt as to whether an individual willfully evaded tax
 Can accused’s belief that income tax is unconstitutional constitute a mistake of law negating the fault
component of crime of tax evasion? No. He knew he owed taxes. His mistake was legal. He refused to pay
due to belief that law requiring him to do so was invalid.
 Difference btw one who mistakenly believes they are complying vs. one who knowingly violates but
mistakenly believes it does not apply. The latter is not trying to obey the law, but deciding which laws
should be obeyed
o An acquittal based on mistaken belief as to the validity of the law would undermine rule of law
R: Mistake of law: When one knowingly violates law and mistakenly believes the law is invalid
 Crime is committed if you willfully evade compliance with taxes
 Thus, if you fail to pay tax intentionally, it could be said that you have breached this
 But court recognizes that EVADE adds something extra. Must know that ITA imposes taxes, which requires
knowledge of the law
TH 3.6: In Klundert, the Ontario Court of Appeal finds that the trial judge made an error, and orders a new trial as a
result. The trial judge's error was in deciding that: The type of mistake made by the accused can ever be a defence
to s 239(1)(d). That type of mistake cannot be a defence because his mistake was that he did not have to pay, not
the amount he had to pay.
When is s 19 overruled by the Code and mistake of law IS relevant?
Colour of Right
 Accused traded trailer for other item. When item broke, he went and took his trailer back – believed he
could. NOT guilty bc he had an honest belief that he could take his trailer back
 Accused kept rental car, planning to pay later. NOT guilty, he thought he could keep it as long as he wanted
because he had an honest belief he was allowed to do what he did.
 Therefore – for crimes like theft, mischief or any crime including colour of right, mistakes of law are
permitted.
 Its about legally believing you had the right to do it
Colour of Right: Why we have this exception?
 Property laws are complex – disputes common violations (Eg howson) not deserving of criminal sanction.
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Basic principle of s 19 – KNOW law before you act
Property crimes have a lower risk of harm (only deprivation of property that can be replaced with $$$)
Would never endorse “colour of right” with Violence offences
R v Howson 1966 p 502 [s 19 does not affect offence if accused acted under colour of right]
Facts: Employee of towing service charged with theft of car when he refused to give towed car back to owner until
owner paid certain expenses. Convicted at trial and appealed.
Issue: Whether the accused had, under the circumstances, a colour of right sufficient to justify his refusal to release
the vehicle – if not he would be guilty of theft
Decision: Acquit the accused
Reason:
 S 19 does not affect s 269 because s 19 only applies when there is an offence. No offence if there is colour of
right
 Accused acted under genuine misconception of fact or law, so no offence committed
 The accused was not trying to steal the car or intending to steal one
 Acquit the accused
Ratio: s 29 does not affect offence bc there is no offence if there is colour of right.
TH 3.5: Because he believed he could hold the car, the accused in Howson did not act “with intent to deprive,
temporarily or absolutely, the owner of [the car] of the thing”.
FALSE. He thought he could keep the car, which is a mistake of law. He gets treated differently bc he believed he
had a colour of right. Colour of right (the belief that you had the right to do what you did) includes mistake of law,
ie. S 19.
 The mistake of fact or mistake of law is ONLY relevant if it deprives a person of the MR required for an
element of the offence. Therefore – mistake of law matters in this offence.
R v Docherty 1989 p 503 [An offence requiring “willful” is exception to general rule expressed by s 19]
Facts: Accused charged with willfully failing to comply with a probation order. Charged with DUI. Was not aware
that this breached probation order to “keep peace and good behavior”. Did not think he was breaking the law bc
car could not be started. Trial judge acquitted. Appeal to SCC.
Issue:
Decision: Dismiss Appeal.
Reason: The offence of willful breach of probation order constitutes exception to general rule expressed in s 19.
Accused cannot have willfully breached his order through commission of offence, unless he knew what he did
constituted an offence. Since knowledge is requsite of MR of offence, absence of knowledge provides a good
defence.
Ratio: An offence requiring “willful” is exception to general rule expressed by s 19.
Note: Subsequently parliament deleted the requirement that the breach be willful. Parliament can make a mistake
of law relevant through statutory language
R v Prue and Baril 1979 p 505 [Accused lack of knowledge of licence suspension is mistake of fact]
Decision: Accused’s lack of knowledge that his license had been automatically suspended under provincial law
after a driving offence was a “question of fact” and not of law
Reason:
 Charged with s 238 (3): existence of a suspension from driving is a question of fact
 Whether there has been an effective suspension is simply a question of fact
Dissent: (Ritchie J)
 Failure to give notice or take admin step as is required is a question of fact and accused’s failure to know of
the suspension is not a mistake of law
 BUT R’s lack of knowledge was not occasioned by mistake of fact, rather ignorance of the law
 Mistake as to the legal consequences of the conviction under s 236, which involve automatic suspension of
licence
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R v MacDougall 1982 SCC p 505 [Makes arbitrary distinction btw Prue and Baril – example where court had different
feelings as to what was correct/what was equitable]
Facts: Accused charged with driving car while licence cancelled contrary to s 258(2) of Motor Vehicle Act.
Following his conviction of the offence, accused sent “Order of Revocation of Licence”. When he appealed, he was
sent a “Notice of Reinstatement”. Accused appeal dismissed. Later registrar sent “Order of Revocation of Licence”,
which accused had not yet received when he was caught driving. Defence: Thought he could drive until he was
notified by the registrar that his licence had been revoked. Acquitted. Appealed by crown to SCC.
Decision: Allow the appeal and order a new trial.
Reasons:
 Trial Judge and CA affirm findings and held that they disclosed defence to charge as mistake of fact of
accused.
 It is actually mistake of law, to drive after his appeal had been dismissed. Therefore no defence to s 19 of
Code
 In Prue and Baril: case about enforcement of provincial enactment under which suspension is made – not
to the enforcement of s 238 which is enforcement of driving suspense.
Did not know revocation had come through and was driving – therefore he is guilty. (Contradicts above case)
Prue and MacDougall: The Conflict Explained
 Driving while under suspension is a crime
 Majority of SCC in Pontes (1995) disapprove of MacDougall which was decided before the Charter.
MacFee [Mistake as to legality of consent is a mistake of law]
Kidnapped ex-wife, sexually assaulted her. Thought she consented. Cannot argue honest mistaken belief if it’s a
mistake of law.
 He thought she could consent in fear
Mistake of Law: Conflicting Principles
 Important to enforce compliance with the law
 People can’t decide for themselves which law they will respect
 Law is complex
 Is our law clear enough to punish people for every mistake
 There is a degree of unfairness in punishing someone who didn’t know – especially when they tried to find
out
R v Tavares 1996 (Supp) [CA was wrong saying it was Mistake of Fact, Actually Mistake of Law]
Fact: Captain of fishing vessel charged with unlawfully fishing for cod and redfish without Canadian vessel
registration card contrary to Atlantic Fishing Regulations. Vessel did not have registration card, licence or fishing
authorization. Exception for foreign vessels. Captain reasonably and honestly believed that ship was not a
Canadian vessel. Trial judge found it was a Canadian vessel. Despite being registered in Panama, the owner is
Canadian.
Issue: Whether the trial judge applied the correct test in interpretation of s 78.6 and whether accused established
he was able to take advantage of the provisions of that section?
Decision: Judgment for Tavares. Allow the appeal, quash the conviction.
Reason:
 S 78.6: No person shall be convicted of an offence if they establish that they exercised all due diligence to
prevent the commission of the offence; or reasonably and honestly believed in the existence of facts that, if
true, would render the person’s conduct innocent.
 Trial judge found that the accused was not a party to the “Deliberate efforts” to avoid “Canadian creditors”
and considered his testimony which constituted a basis for finding a reasonable honest belief, the trial
judge concluded no such belief had been established
 Cannot be said trial judge applied proper legal test for determination of reasonable and honest belief.
Demanding that the accused demand of his employer proof that the vessel was panamian is beyond what
legislation requires.
Ratio: Mistake of Law: Reasonably and honestly believed in facts
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Note: If he did NOT know it was purchased in Canada it would be mistake of fact, but he knew it was purchased in
Canada – therefore under Canada shipping act, which says boats purchased in Canada remain Canadian = mistake
of law
 Broke regulations if vessel was Canadian. Ship was bought in Canada. Registered in Panama. Captain knew
it was bought in Canada. Believed it was Panamanian. Court concludes AR breached – it was Canadian.
 CA is wrong! It is mistake of law. But CA feels that equity demands that Tavares goes free. He knew every
fact that was material to his conviction. He knew it was bought in Canada so it’s a Canadian ship. If he
argued that he thought it was bought elsewhere, this would have been mistake of fact
The Defence of Officially Induced Error
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Developed as limited exception to general principle that ignorance of the law is not an excuse
If Accused rely on an interpretation of the law made by a public official whose duty it is to provide
citizens with advice, then they should be absolved from criminal responsibility if official’s advice
proves to be incorrect
OIE vs. Entrapment
o Should an accused only get “an excuse” rather than an acquittal? The accused has operated in a
morally appropriate fashion and deserves to have error treated as full excuse + acquittal
Should burden of establishing defence of OIE be on accused?
o In strict liability offences: appropriate to require accused to est. defence bc error can be part of due
diligence inquiry
o BUT criminal offence: it should not be automatically assumed that BOF is on accused on a balance
of probabilities. Why don’t normal criminal standard of reasonable doubt apply?
Scholars suggest broader defences:
o The reasonable person could not have been expected to act in accordance with the law in the
circumstances
o Why punish them when they make a reasonable mistake in deciphering complex rules
OIE TEST:
1. Errors of law made (or mixed law and fact)
2. Person considered legal consequences (Good faith)
3. Advice came from appropriate official
4. Advice was Reasonable
5. Advice was wrong
6. Person relied on the advice in committing the Act
Is a broader defence required
R v Cancoil Thermal Corporation and Parkinson 1986 p 507 [Accused must show reliance on erroneous legal opinion
and that his reliance was reasonable]
Facts: Safety inspector examined, with approval, new + unsafe machinery in plant. ONTCA permits defence of
officially induced error
Reasons:
 Increased reliance by people on officials of Government = need for defence of officially induced error, at
least so long as a mistake of law cannot be raised as a defence to a criminal charge
 Further Appeal to SCC:
o If there was evidence to support such a situation existing, it might be an appropriate defence.
However, in present case, no evidence that accused was misled by an error on part of registrar
o Available as defence to alleged violation of regulatory statute where accused has reasonable relied
upon erroneous legal opinion or advice of an official who is responsible for administration or
enforcement of particular law
o Accused must show he relied on erroneous legal opinion of an official and that his reliance was
reasonable.
 Reasonableness depends on: efforts made to ascertain proper law, complexity or obscurity
of the law, position of official who gave advice, clarity/definitiveness/reasonableness of
advice given
Class Explanation
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Until 1986, you can make any mistake of law and you would be guilty.
S 8(3) of code gives judges power to create new common law defences. Create officially induced error.
Unfair to convict someone in certain circumstances
R v Jorgensen 1995 SCC p 508 [6 step test for OIE]
Facts: Accused convicted at trial for knowingly selling obscene material. Ar satisfied – material was obsene.
Conviction requires Knowledge of the facts that make it obscene. But does not need to know that it is LEGALLY
obscene. (obscene is a legal definition.) Legal knowledge is not required. But crown never knew he knew of the key
facts.
Issues: 1) Did the accused “knowingly” sell obscene material? 2) Did he do so without lawful justification or
excuse?
Decision: OIE defence was not raised, so not considered. (Majority of SCC acquits on failure for crown to prove
that he knew it was obscene)
Reason:
1. Law requires the crown to prove that an accused retailer knew of the specific acts or set of facts which led
court to conclusion that material in question is obscene.
a. Crown not required to prove that the accused KNEW the material was obscene in law (mistake in
law) nor prove that accused viewed the obscene material.
b. Approval of film by Ontario film board does not negative the MR of this offence
c. TH 4.6: Because the definition of obscenity is determined by the Court not the OFRB
2. Circumstances permit the accused to be excused from conviction on basis of officially induced error of law
by virtue of Ontario film boards approval of films in question
a. Reasonable reliance on this type of official advice is sufficient basis for judicial stay of proceedings
to be entered
b. This defence ensures that morally blameless are not made criminally responsible for their actions
 Certain types of officially induced errors of law should be permitted to excuse an individual from criminal
sanction for his actions. These do not conflict with four rationales for why we have the ignorance of law
rule set out above
o Already have evidence of this in our legal system: ie. Accused excused when new law not published
 Officially induced error excuses an accused, but does not negative culpability
o Due diligence is a full defence. If successfully raised, elements of the offence are not completed vs.
Officially induced error functions as entrapment. (Stay of procedure: Accused has done nothing to
entitle him acquittal, but state has done something which disentitles him to conviction)
o DD: may be necessary to obtain advice which grounds officially induced error ie. An accused who
seeks to rely on this excuse must have weighed the potential illegality of her actions and made
reasonable inquires. BUT this does not convert OIE into DD
 When Can OIE be applied?
o For regulatory or “true crimes”
o Can be used where crimes say “without lawful justification or excuse”
o 1) First determine that error was one of Law
o 2) Demonstrated that accused considered legal consequences of her actions (ensures that
responsible/informed citizenry is not undermined). Not sufficient if accused simply have assumed
that her conduct was permissible.
o 3) Advice obtained came from appropriate official (The State is wrongfully inducing you to break
the law)
 Government officials involved in admin of law
 One whom a reasonable individual in position of accused would normally consider
responsible for advice about particular law in question (independent legal advice does not
count)
o 4) Advice was reasonable. If appropriate official consulted, the advice obtained will be presumed to
be reasonable unless it appears on its face to be UTTERLY Unreasonable
 Look to position/ role of the official
 Clarity, definitiveness and reasonableness of information or opinion
o 5) Advice was erroneous
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o 6) Demonstrate reliance on advice (ie. Advice obtained prior to acting)
Class Explanation:
Key Points:
 Defence: Its not obscene because OFRB said so. But OFRB cannot bind the courts definition of obscene.
Thus accused made mistake of law. Made a mistake of fact when he said he did not know what was in the
video, and that’s why he gets acquitted.
 If he had looked at the video, Justice Lamer says he should still get a stay to defence of OIE. Stay =
procedural argument stating that crown is not entitled to a conviction. = harder to prove and procedural
defences are not part of crown’s burden
TH 4.8: What weaknesses or what is harsh about steps of OIE?
Step #3: The “state official” is too difficult to contact/ too strict
Step #4: If the advice from the official has to be reasonable, how is one who does not know the answer going to
know what is reasonable advice
The fact that it’s a procedural defence: Putting burden of proof on D is unfair, difficult, should not be equated to
entrapment. Should be no different than self-defence or necessity.
Levis (Ville) v Tetrault (2006) [Passive ignorance does not satisfy DD]
A driving w/o valid driver’s license. Company argue that they were advised that notice would be mailed before
they would need to re-register. Court adopted 6 point test from jorgenson.
Decision: Could not use defence, does not apply.
Reasons: Could not have considered legal consequences, could not have acted in reliance. Lack of notice should
have prompted action.
Defence of Due Diligence
Molis v The Queen 1980 p 506 [Defence of Due Diligence does not work for researching to see if the act is illegal]
 Molis manufactures MDMA – recently added to list of prohibited drugs. Charged with trafficking. Defence:
Did not know it was illegal to manufacture MDMA and had exercised due diligence in ascertaining state of
law
o SCC: the defence of due diligence works in relations to the fulfillment of a duty imposed by law, not
in relation of the ascertainment of the existence of a prohibition or its interpretation
Class Explanation:
 Regulatory offences usually do not require MR
 Eg. Failure to maintain equipment safely under provincial law does not require that you KNOW equipment
was unsafe
 Defence of Due Diligence (in trying to keep the machine safe)
 Molis says that Due diligence does not apply to mistake of laws, only to mistake of fact. Does not extend to
“I tried to learn the law”.
Forster v The Queen 1992 p 507 [Reaffirm Molis]
 Honest and mistaken belief in respect of legal consequences of one’s deliberate actions is not a defence to
criminal charge, even when mistake cannot be attributed to negligence of accused
o Knowledge of one’s actions are contrary to the law is not a component of MR for an offence, and
consequently does not operate as a defence
Mistake of Law and Constitutional Considerations
R v Pontes 1995 SSC p 516 [Due Diligence is Constitutionally required for Strict Liability Offences]
Facts:
 A driver will automatically and without notice be prohibited from driving for 1 year. Since the prohibition
is automatic and without notice, s 94 prevents an accused who is unaware from raising defence of due
diligence
Issue: Whether defence of due diligence is available?
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Decision: Acquitted.
Reason: Cory J
 A Mistake as to what the law is does not operate as a defence
o The accused cannot defence through due diligence as to the legality of his actions or status – as
rejected in Molis
 Macdougall decision: 1) irreconcilable with R v Prue and Basil; 2) rendered prior to charter, and
jurisprudence on minimal fault requirement has since evolved
 In Prue: accused convicted of offence. Licences suspended. Drove and were charged not with violation of
suspension but with s 238. But this required MR. Ignorance of the suspension of a lisence was mistake of
fact.
 Defence of due diligence must be available to defence strict liability offence
 S 92 and s 94 remove the possibility of defence of due diligence since prohibition is automatic and no
notice is required
 Significance of Notice
o Fundamentally fair to give notice to the accused
Dissent: Gonthier J
 S 7 does not require accused to be entitled to claim due diligence in relation to existence of statutory
prohibition or its interpretation
 To expand due diligence would eviscerate the ignorance of the law rule
 The result of this action would overturn Molis
o Due diligence in relation to the fulfillment of a duty imposed by law, not in relation to the
ascertainment of the existence of a prohibition or its interpretation
 Disagree with Cory J, a defence of due diligence IS available for the impugned offence
o Just because an accused believes his prohibition ended/was shorter is not unfair, that is ignorance
of the law (so what if its automatically applied and without notice)
 BUT ignorance of the law can be successfully pleased as a factor in mitigation of sentence ie. Gets minimum
fine
 Defence of officially induced error – if the accused were misled by official – would not demonstrate
absence of negligence in relation to AR of driving, but would rather be an additional defence thereto
Statutory Reform Proposal 1987 p 521
 Ignorance of the law owing to non-publication of regulation is a defence
 Mistake of law resulting from officially induced error may also be a defence
We should codify these!
Class Example (Supplementary Problem 4) [Mistake of Law vs. Mistake of Fact]
A kidnaps B, sexually assaults B. B consented out of fear, so A defence: I thought she consented. But, one cannot
consent out of fear, so where threats and fear are part of her defence and he knew she was afraid – that is mistake
of law. He thought that being afraid still meant she was consenting = wrong.
 Its true that a person who honestly believes another has communicated consent lacks MR
 BUT! S 265(3) says consent given while under fear or threats is NOT legal consent
 A thought B consented, but knew it was driven by fear.
 His thinking was legit consent is a mistake of law!
 If you know of facts that make something illegal – any mistake is a mistake of law.
 R v MacFie, 2001 ABCA 34
 Note: Can’t bring up defence that she was afraid from something else
Class Example 2 (Anna, the Mother) [OIE]
Mother and father divorce, 14 yr old daughter. Custody gives father sole custody. Parents reconcile, but breaks
down. Mother gets legal advice that wrongfully tells her reconciliation terminated order. Takes child against will of
father and charged with offence under s 280.
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Sexual Assault
General Basics
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You can’t have sexual assault without an assault (must look at assault in 265) [because sexual assault is a
crime of violence]
All elements of assault are in play, BUT modified by the Code
Three types of sexual assault: (no labeling differentiation btw rape/groping/forced kiss etc for purposes of
conviction, evened out in sentencing)
1. Simpliciter (271)
2. With weapon/cause bodily harm (272)
3. Aggravated (273)
Children treated differently mainly because of consent issues 150-153.1
Offences involving children can be prosecute Either under ss 150-153.1 OR using the usual provisions (for
children not consenting)
Crime of General Intent (Ewanhuk)
R v Chase SCC 1987 p 632 [Sexual assault test objective, based on circumstances]
Facts: R neighbor of 15 yr old girl enters house grabs her breasts, she manages to make a phone call, he threatens
that he will tell that she raped him. R charged with offence of sexual assault + guilty. Appeal to CA dismissed, a
verdict of guilty of included offence of common assault under s 245.1, sentence of 6 month imprisonment.
Issue: What should he get charged with?
Decision: Sexual Assault
Reason:
 Sexual assault is an assault, committed in circumstances of sexual nature, that violated sexual integrity of
victim.
 Objective test: Viewed in the light of all circumstances, is sexual context of the assault visible to the
reasonable observer?
o Body touched, nature of conduct, situation, words, gestures, threats
 Conduct of grabbing breasts = sexual, therefore sexual assault. Same sentence.
Note: If you don’t touch a sexual organ, it can still be a sexual assault if that was ur purpose ie. Touching
shoulder/rubbing feet
TH: The analysis in Chase most resembles the reasoning in Goudin. Goudin: Objective MR acceptable for predicate
offences.
 Also if its sexual nature, much more vitiates consent
 In regular assault there is implied consent
R v V (KB) p 633 [SSC argue whether lack of intention for sexual gratification was a decisive factor weighing against
finding a sexual assault]
Statutory Alterations
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Section 265(3) – vitiating consent still applies
Supplemented by 273.1 – alters meaning of consent only in sexual assault
Section 273.2 affects MR of consent for sexual assault
The Meaning of Consent
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Parliament attempts to clarify law relating to consent and mistaken belief in consent (ss 273.1 + 273.2)
Attempts to control admissibility of evidence concerning complainants previous sexual conduct s 276
Enacted measures to regulate extend to which complainant’s confidential records (medical, psychiatric)
can be disclosed (ss 278.1 + 278.9)
As a matter of law: defined solely by the complainants state of mind. Did not agree – no consent
As a matter of fact: whether C agreed is a question of fact to be determined BYD
Even if victim says yes, there are other pieces that vitiate consent ie. Fear/physical harm
16
If the reason why consent is a factual error, accused can raise mistake of fact
If the reason why consent valid was bc he threatened her, accused = mistake of law (Ie. Sex with a
minor. She says yes, but minor consent is vitiated. Only mistake of fact defence is “I didn’t know she
was a minor”)
If it didn’t look like “no consent”, may have an MR defence (Ewanchuck) – unless law vitiates consent
How do we find balance of consent?
o Protect victims, ensure criminal sanction is not used where moral responsibility is lacking
o Ensuring proof of a guilty mind, but not allowing stupid to prey on vulnerable
o Should the law LEAD (set new reqs) or should the law FOLLOW (rec. existing social norms)
o
o


The Importance of Consent



Best way to protect ppls sexual autonomy. High threshold = onus on accused to know
Sets boundaries and creates the importance of seeking agreement b4 proceeding (but reality of sexual
situation does not often involve “yes statement”)
Where consent is legally impossible- mistake makes no difference (sex with a minor)
R v Ewanchuk SCC 1999 p 659[no defence of implied consent for sexual assault, For AR: subjective consent is
determinative – if they are credible;]
History: Accused acquitted with sexual assault. Trial judge rely on defence of implied consent = mistake of law as
no such defence is available in assault cases in Canada.
Facts: 17 yr old woman walking in parking lot, approach by vehicle, offered job. Interviewed her in his van. She
massaged him as requested. He massaged her, began inappropriately touching, she never resisted bc she was
scared he would become violate. He did things, she said no, he would stop, then continue another action. He lied on
top of her, took out his penis, she asked him to stop and he did. She said she had to go, walked home and called
police. She was extremely afraid but projected a confident demeanor, in hopes she would not come off as
vulnerable. She wanted to make sure he did not sense any fear.
Issue: Should accused be convicted of sexual assault?
Decision: Convicted
Reasons:
Trial Judge: There is implied consent
 Failure for her to communicate fear = subjective feelings irrelevant
 Conduct = implied consent. Objectively construed as constituting consent to sexual touching of the type
performed by the accused
ABCA
 2 judges dismiss. Said crown failed to prove byd that accused intended to commit an assault upon
complainant
 1 judge allowed. Trial judge erred in his interpretation of consent. Said there is no defence of “implied
consent”. Error to employ objective test. Said mistake of fact had no application to issue of consent. Failed
to consider whether respondent had been willfully blind or reckless as to consent. Held that only defence
available was honest but mistaken belief in consent, and this could not be sustained on facts
SCC
 Components of Sexual assault
o AR = unwanted sexual touching
 Touching: objective
 Sexual nature of contact: objective
 Absence of consent: subjective: the state of mind of complainant is determinative
 SHE must be credible
o MR = intention to touch, knowing of, or recklessly/willfully blind to lack of consent
 No such thing as implied consent. Either he knows she consented or not
 Prove accused intended to touch the complainant in order to satisfy basic MR
 Trial judge accepted evidence that she did not consent, so cannot ask if there is a reasonable doubt about
consent
 Fear: to be legally effective, consent must be freely given
17
o Examine choise of complainant she believed she had to comply or be harmed
o Fear need not be reasonable ,nor mus tit be communicated to accused
 Defence of mistake of fact which removes culpability for those who honestly but mistakenly believed they
had consent to touching
o Intention to touch
o Knowing of or being reckless to lack of consent
o Mistake of Fact: Avails and accused who acted innocently, pursuant to flawed perception of facts.
Does not impose burden of proof on accused.
 Consent: satisfied when accused knew she was not saying yes
 Accused must show he believed that she communicated consent to engage in sexual activity
 Belief that silence counts as consent = mistake of law.
o Was there anything between the sexual touching and her saying no that he could honestly believe
she consented?
 She did nothing to encourage him
 He stopped when she said no
 Nothing supports that he should have continued
 His persistent and increasingly serious advances = sexual assault
 Convicted.
 Summary: (How trial judges should approach issue)
o Did complainant in her mind want sexual touching?
o Once she says she did not consent, is that credible? If byd it is credible and AR is established,
inquiry shifts to accused state of mind
o If complainant seems to have consented, was it out of fear? = vitiate consent
o If he honestly believed she was consenting, is that credible? Cannot be reckless, willfully blind
 Justice L’heurdubeux: Concurring
o Wrong to say that unless a woman protests or resists, she should be deemed to consent.
o Not correct to say that if a women is not modestly dressed, she is deemed to consent. = no longer
has a place in Canadian law
o Sexual assault is a gender based crime
o Crime of violence
o Involves abusive power
o Exploitation of authority, force, situation
o Difficult to prove
Ratio: Absence of consent is subjective and determined by reference to complainant’s subjective internal state of
mind.
TH 5.2: SCC approach to deciding whether a person consented as a question of FACT. To determine if woman
saying “I didn’t consent”, court looks at reasonable circumstances for credibility.
TH 5.4: If wasn’t sure at the time, went through with it, then decided you shouldn’t have consented, = cannot prove
byd that she didn’t agree.
Where is consent legally impossible?
R v JA 2011 SCC (Supp) [Consent cannot be given in advance for unconscious sexual activities]
Facts: KD consented to being chocked to unconsciousness. Awoke on edge of bed with dildo up butt. Then they had
vaginal intercourse. KD filed complaint to police that she had not consented. She later recanted allegation, as she
had other motives for filing. JA charged with sexual assault, convicted at trial, overturned at appeal.
Issue: Whether a person can perform sexual acts on an unconscious person if the person consented to those acts in
advance of being unconscious?
Decision: Yes. Individual must be conscious throughout sexual activity in order to provide consent.
Reason: McLachlin CJ
 Fundamental principle: person entitled to refuse sexual contact
18

Sexual acts performed without consent and without honest belief in consent constitute crime of sexual
assault
 Crown: even though advance consent, while unconscious = no operating mind and incapable of present
consent
 Does consent require conscious operating mind?
 Yes. Individual must be conscious throughout sexual activity in order to provide consent.
 Sexual Assault definition of consent
o 273.1 (b) the complainant is incapable of consenting to the activity
o The voluntary agreement of complainant to engage in sexual activity in question ie. Every
individual sexual act, at the time it occurs.
o FOR AR: whether the complainant subjectively consenting in her mind? If lacking, AR still met.
o For MR: whether she communicated consent.
 Parliament wanted ppl to be capable of revoking consent at any time, so must be product of
conscious mind
 Does not agree that it can be given in advance, and remains operative until revoked
 One must take reasonable steps to find if they were consenting – cannot do that if they are
unconscious
 Must be capable of revoking
 Error of law to believe consent if expresses lack of agreement = Need to be able to express
lack of consent as activity is happening
 Issue in this case relates to AR: whether advance consent to sexual activity committed by person who was
rendered unconscious
o Medical argument – where advance consent necessary – fails to apply, cannot have
advance/implied consent
 No control of other person’s actions
 Complainant cannot give evidence, does not know whats happening
 Law cannot recognize exceptions to conscious consent = problematic
 Policy
o Bad idea to allow prior consent
o Evidence is a mess. Already tough to prosecute sexual assault
o Should the courts reach interpretations that make ordinary acts a crime? (ie. Sexual contact will
asleep or unconscious)
o Why create definitions of consent that go against common use of the term? (We agree to advance
consent all the time)
o What about people’s rights to choose? (No matter precautions they take, what they do is a crime)
 Conclusion: consent must be given throughout activity. Not possible for unconscious person to satisfy
requirement, even in advance. Effect: Any sexual activity where person is unconscious is illegal.
Reasons: Dissent: Fish J:
 Aim: safeguard and enhance sexual autonomy of women, not make choices for them
 Absurd result of majority: illegal for husband to kiss wife while asleep.
 Consent stays until it is revoked. Advance consent is good (absent bodily harm, absent going further than
agreed) (if ur unconscious mind is not one of non-consent)
Class Notes:
 Not about whether the complainant agreed to what happened while she was unconscious
 Both majority and dissent agree that if JA performs acts that were not consented to, he is guilty of a crime
 Only question is whether jury was entitled to consider whether complainant consented to ANY sexual acts
before going unconscious.
 Tension btw freedom vs. crime of violence
 Should the law require conscious and operating consent at all times?
o Mclachlins statutory interpretation requiring consent “as its happening” is questionable.
o If consent is absolute/unequivocal and clear, then maybe should be legal
19
R v Welch 1995 ONCA (Supp) [Consent to sexual contact vitiated if bodily harm occurs (sadomasochism)]
Facts: Tied up women, beat her with belt, penetrated her, fingered her. She said she had not consented. He said she
had asked him to do these things, or encouraged him to.
Issue: whether consent of complainant may be valid defence to sexual assault causing bodily harm?
Decision: Consent to sexual contact vitiated if bodily harm occurs. Mistake of law, she could not have legally
consented.
Reasons:
 Trial Judge: When there is bodily harm, lack of consent does not need to be proven in order to convict.
Consent vitiated if bodily harm involved (even in sadomasochism), unless there is a generally approved
social purpose (Jobidon).
 If the injury was a foreseeable result  objective foresight good enough.
 Sadomasochism is degrading and dehumanizing. Person interested in this must yield to more compelling
societal interests.
Ratio: Consent to sexual contact vitiated if bodily harm occurs.
Class analysis: There is no legal way to perform this activity. (whereas in jobidon, they still have many outlets for
legal fighting). However, likelihood that court is stopping this is low. These cases only come to trial through video,
unhappy couples revenge
TH 5.5: Accused’s guilt cannot be determined entirely on basis of whether C legally consented, because
complainant consent is vitiated bc involved bodily harm. Belief in her consent is irrelevant bc legally she cannot
consent. Welsh made a mistake of law.
TH 6.05: Using the law as it is set out in Welch, can the accused raise a mistake of fact defence by saying "I honestly
did not think what I was doing would cause bodily harm"?
 No is the correct answer as per Welch. But Paice overruled in 2005 and said bodily harm must be
subjectively foreseeable.
 Ontario CA: accused must intend and cause bodily harm to vitiate consent
 Man QB said no intent necessary: R v Vandermeulen 2013.
 Law is unsettled, needs to be fixed in this case
Zhao 2013 ONCA 293 [Court unsettled over application of Jobidon, but still held Welch]
 Social utility of intimate sexual relationships is significantly different from that of consensual bar fights
 As such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sexual
context as suggested by the ruling in Welch
 But – still based it on Jobidon and held Welch
 Accused must intend and cause bodily harm to vitiate consent
When Fraud Vitiates Consent
o Consent, otherwise obtained, can be vitiated
o Threats and Fear (MacFie)
o Abuse of authority, application of force and Fraud
R v Maboir 2012 SCC (supp)[One guilty of aggravated sexual assault if he fails to disclose HIV status b4 intercourse
and there is a realistic possibility of transmission]
Facts: Had sex with 9 complainants and did not tell them he was HIV positive. Wore a condom sometimes. No
complainants contracted HIV.
Issue: Whether an HIV positive person who engages in sexual relations without disclosing his condition commits
aggravated sexual assault?
Decision: Person guilty of aggravated sexual assault if he fails to disclose HIV positive status b4 intercourse and
there is realistic possibility of transmission. If HIV person has low viral count and condom, the threshold of
transmission has not been met
Reasons:
 Failure to advise a partner of one’s HIV status may constitute fraud vitiating consent. HIV poses a risk of
serious bodily harm, the operative offence is aggravated sexual assault
20



8/9 complainants testified that they would not have consented had they knew he had HIV
What is the correct interpretation of “Fraud” vitiating consent to sexual activity in section 265(3)(c)?
o Test: 1) dishonest act (falsehood or failure to disclose HIV); and 2) deprivation (denying
complainant knowledge which would have caused her to refuse sexual relations that exposed her
to significant risk of serious bodily harm
o Criticism of test: uncertain and overbreadth
 Significant Risk: any risk? Or higher?
 Serious Bodily Harm: The more serious the harm, the lower the risk needed? Interrelated
with risk.
o Interpretation of Fraud vitiating consent to sexual relations informed by 4 considerations:
 Purposes of the criminal law
 Punish wrongful act and guilty mind
 Relevant to sentence of life imprisonment
 Common law and stator history of the concept
 Evolution from law preferring to allow fraud to vitiate consent until Clarence
whereby infected husband had sex with unknowing wife and was acquitted.
 New Rule: fraud could not vitiate consent unless it went to the “sexual nature of the
act” or to the identity of the sexual partner (Clarence)
o Infliction of bodily harm required to have physical result
 Criminal code altered to respect more generous approach
 To hold that complainant consented to disease because she knew act was sexual
affronts contemporary constitutional values
 Charter values, equality, autonomy, liberty, privacy, human dignity
 Sexual assault denies victim’s dignity as human being
 Court judges cannot now infer consent from the way the complainant was dressed
or if she flirted
 The experience of other common law jurisdictions
 Other jurisdictions criminalize ACTUAL sexual transmission, when non-disclosure
occurs.
 Or non-disclosure is categorized as bodily harm, rather than sexual offence
Solution:
o When should non-disclosure of HIC status amount to fraud vitiating consent under s 265(3)(c )?
 Cuerrier Test is valid
o TO fix its problems of uncertainty
 Active Misrepresentation Approach
 Unless one made a positive misrepresentation or lied – they would be criminally
liable.
o Blurs lines of clarity, ie. Do gestures count?
o No principled distinction btw active/passive deception
o Eliminates deprivation element
 Case-by-Case fact based approach
 Does not remedy uncertainty
 Risks of conflicting judgements
 Judicial notice of Effect of Condom Use
 Condom use always negatives significant risk of serious bodily harm
 Rapidly changing state of science…
 Confine fraud to special relationships ie. One party is vulnerable = narrows too much
 Reasonable partner approach: what a reasonable and informed person in positive of HIV
partner would expect? Objective, based on circumstances.
 Avoids problems of changing science, but still does not lay down a clear test. Also,
reasonableness in heat of sexual moment may be mistaken
 Evolving common law approach:
21

Building greater certainty to Cuerrier test by indicating when significant risk
test is met
 Whether facts established “significant risk of serious bodily harm” = question of law
 Serious bodily harm: any hurt or injury, where physical or psychological, that
interferes in a substantial way with integrity, health or well-being of victim
o No risk vs. high risk = realistic possibility of transmission, then significant
risk est. and deprivation met
o The more serious the nature of harm, the lower probability of transmission
needed.
 Realistic possibility of transmission of HIV = depends on accused viral load and condom protection. If low
and used, then realistic possibility of transmission negated
o Even if undergoing antiretroviral therapy, should use a condom
o Condom use + low viral load = precludes realistic possibility of transmission
 Case at hand, viral load + condom = acquitted
Class Notes:
 POLICY: Strong disincentive to not get tested. Because once find positive result, forced to tell partner and
unlikely to have sex
 Pre Mabior:
o Cuerrier: Fraud exceptionally limited. Only vitiates consent when fraud relates to the nature and
quality of the act
 Ie. If a doctor obtains consent to conduct breast examination, and conduct breast
examination for sexual purpose = fraud
 Ie. Man says he an actor, she has sex with him. She testifies she would not have had sex if
hadn’t known. = Not Fraud
o Majority: Dishonest act had effect of exposing person consenting to a significant risk of serious
bodily harm
 Dissent: Dishonest act induced another to consent. (= low test)
 Dissent 2: Dishonest act must relate to the physical act (= most strict test)
o What is significant risk? What is serious bodily harm?
o How do we balance the need for information with risks of criminalization?
 Difficulties with adopting “pure” approach to informed consent
o 1. Radical expansion of common law (Frey/Jobidon debate)
o 2. Contrary to the way people act – would criminalize a lot of conduct;
o 3. Would increase stigmatization of those with STDs and marginalize them;
o 4. Would deter people from finding out
 Critiques of Mabior
o Is criminalization the right way to deal with public health problem?
o Punitive approaches simply drive people away from critical health and social support services
o Not clear for other types of STDs
o Not consistent with science – person who takes highly effective precautions to protect, with no
intent to cause harm, can still be charged
o Whether SCC wants to admit it, people have sex without full information all the time. Why should
law step in?
o Do people have duty to disclose before oral sex? Anal sex?
R v DC 2012 SCC (Supp) [Even if low viral load, must still use condom to avoid conviction]
Facts: DC load was undetectable, no condom use stated by victim. Accused said there was.
Issue: Should he be acquitted?
Decision: Acquitted. must follow test in Mabior, condom is required to preclude realistic possibility of HIV
transmission.
Reasons: BUT BYD cannot prove if condom was used, because neither witness was credible. So AR not met bc
crown couldn’t prove that there was no condom.
TH Review:
22
The fact that Sheena did not contract HIV: has no impact on whether the male is liable.
Assume Joe has a low viral load and uses a condom. Through no fault of Joe's, the condom breaks. Sheena contracts
HIV. On these facts...
 Joe is probably not guilty of sexual assault. Because Mabior makes clear that fraud goes to the risk.
 However, Hutchison discusses “actual” bodily harm. Actual bodily harm is enough to convict. Bodily harm
vitiate consent. Mabiour makes clear that if there is a high risk, you are guilty. However, Hutchison raises
difficult question about when someone should be found guilty if there was a low risk, but still caused
bodily harm.
 Can fraud be vitiated when actual bodily harm occurs?
Vitiating Consent Continued
R v Hutchinson 2010 SCC (Supp)
Facts: Women has relationship with man, uses condom. Man pokes holes in condom bc wanted baby. Woman has
an abortion. Woman suffered medical problems during procedure ie. Bleeding, severe pain.
Issue: #1: Was there consent? #2, If there was consent, was it vitiated by fraud?
Decision:
History:
First Trial
 Man charged with sexual assault bc endangered life of Ms. C, so Aggravated sexual assault.
 Found Acquitted, because consent to sexual intercourse
First Appeal
 Allow appeal, return for new trial
Second Trial
 Accused convicted. Sentenced to 18 months imprisonment
Second Appeal
 Appeal rejected.
Appeal to SCC
 SCC heard arguments on both sides, decision not yet rendered.
Reasons:
 Roscoe JA:
o Voluntary agreement to engage in sexual activity in question must mean something more than
consent to the application of force
o Consent entailed reasonably informed choice to participate in the activity. In the absence of
consent, an act of sex is an act of assault. As a matter of both language and law, consent implies a
reasonably informed choice, freely exercised
 She was entitled to control over her own sexual integrity and choose whether her sexual
activity would include the risk of becoming pregnant through unprotected sex
 Evidence: She only consented to protected sex
 A choice to assume risks of protected sex are different than unprotected sex
o Application of Cuerrier test: TJ said Ms. C was exposed to pregnancy and in itself, pregnancy is not a
serious bodily harm. BUT, she was actually pregnant.
 Did she suffer actual harm as a result of the deceit of Mr. H?
 Ms. Suffered morning sickness, emotional/psychological distress, had to get
abortion, suffered bleeding, blood clots, severe pain, serious infection
o Pain and suffering was direct and foreseeable consequence of use of
sabotaged condoms
o Appeal allowed. New trial
 DR. BEVERIDGE JA (dissent)
o S 273.1 does not have elaboration of “Sexual activity in question”. Above qualifies sexual
intercourse w/ or w/o condom.
o Plain and ordinary meaning do not reveal that Parliament intended the definition of consent
23
Can’t say voluntary agreement includes reasonably informed choice, it goes too far. Confuse
the legal test, and eliminates fraud altogether.
 Agree with analysis in Ewanchuck: Consent = voluntary agreement to sexual activity in
question
 “consent implies reasonably informed choice, freely exercised” cannot be extract with
respect to consent in cases of sexual assault
Consequence: lead to complaints and prosecution who didn’t use effective contraceptives
Vitiation of Consent by Fraud
 Distinguished from Cuerrier: life is simply not a sexually transmitted disease. Pregnancy is
always a risk of intercourse. Fundamentally different than deceptive acts about the
transmission or risk of transmission of HIV
 Complainant already exposed to risk of pregnancy
 Pregnancy can be life-altering, but does not vitiate consent
 A lie about contraception or vasectomy is not a matter of criminal law
 Unable to agree that there was some evidence for a trier of fact to find actual serious bodily
harm
Conduct = gross violation of trust. Morally reprehensible, but not offence of sexual assault.
May give rise to civil liability
There must be some evidence that reasonable jury could find that complainant did not consent or
if she did, it was vitiated
Pregnancy is a natural and predictable risk of sex
Should be left to parliament

o
o
o
o
o
o
o
R v Hutchison 2013 NSCA
Reasons: Macdonald CJNS
 Were his actions criminal?
o Sexual assault: motivated touching of another person without their consent
o Does “Activity in Question” = sex or more narrowly “unprotected sex”? , if latter, then she didn’t
consent
o If provision prevents an accused from unintentionally violating his unconscious parten’ts
requirement for him to wear a condom, then must be seen to prevent an accused from intentionally
duping partner where pre req to consent = intact condom
o Proposed nature of sexual activity = protected sex
o Effort to prevent sexual exploitation by limited circumstances where victim said to have consented
o Maboir: Acknowledges charter implication, sexual assault not only an emotional/physical crime,
also about the wrongful exploitation of another human being
 Court recognized that a person should not be labeled a criminal for every deception
surrounding sex (ie. Lying about income, job, etc)
 Principles:
o Consent under s. 273.1 "must be specifically directed to each and every sexual act" (J.A.)
o s. 273.1 is restricted to "active actual consent throughout every phase of the sexual activity" (J.A.)
o Deception that involves an "inseparable component" of a complainant's consent to sexual
intercourse represents no consent under s. 273.1
o Sexual assault involves more than "a crime associated with emotional and physical harm to the
victim, but as the wrongful exploitation of another human being" (Mabior)
o "Irresponsible, reprehensible conduct" must not be condoned but at the same time, to be criminal,
the deception must minimally be serious with serious consequences (Mabior)
 Applied to case at hand: protected sex = essential feature of proposed sexual act, inseperable from
component of consent
 Hutchison claims that if it was the other way around, and the woman was charged = serious consequences.
Court says, unlikely woman would get charged bc consequences of unintended pregnancy much more
profound for mother than for father
24

Hutchsion claims that this interpretation renders consent induced by fraud redundant if complete
awarenss of sexual activity for consent required? 1. S 265 applies to all assault, while s 273 is limited to
sexual assault. 2. No problem with crown having 2 potential avenues to prove lack of consent
 To settle decision with Maboir, who was acquitted: Mabior never presented as consent case, impossible to
know how significant trier of fact weighed his deception. Criminal law targets only serious deceptions, and
if risk of transmission is low, deception not worthy of criminal sanction.
 Addresses Dissent: His approach does not lead to slippery slope. Deceptions only vitiate consent if there is
fraud, which involves a significant risk of serious bodily harm according to cuerrier and Mabior.
Farrar J: Dissent:
 Pull btw criminalizing morally bad behavior and concerns about complainants sexual autonomy
 S 265(3)© protects accused person against over-criminalization and also protects the sexual autonomy of
complainants
 Disagree with crown for 4 reasons
o 1. Sexual activity refers to physical sex act, not conditions or quality of the act
o 2. Case is not like JA
 Crown stated she was “effectively” unconscious to act. = putting JA too far
o 3. S 273.1 can be relied on where the complainants participation was involuntary only
o 4. Confining cases like this to fraud analysis of 265.3.c = slippery slope concerns over
criminalization that exists in sexual assault
 Complainant agreed to “sex”. Error in law to say it included a condom or not.
o If the female was charged with lying about birth control, bodily harm component not met. Door
swings both ways, unfair that only men criminalized
 Consent vitiated by fraud? Currier test:
o 1. Appellants conduct was dishonest. A reasonable person would find this action dishonest because
contraception is an integral part of sexual relations
o 2. Significant risk? Risk of pregnancy? Significant risk part passes – since risk of pregnancy from
damaged condoms is higher than risk of pregnancy from intact condom.
 Serious Bodily Harm? Whether unwanted pregnancy on its won constitutes serious bodily
harm on the evidence in this case?
 Could meet definition fo serious bodily harm
 He overrode complainants capacity to prevent it.
 His conduct was blameworthy enough to constitute fraud
 Allow appeal on narrow ground. The required factual findings on fraud not made out. He would have
ordered new trial
SCC Decision on Hutchinson
Unanimous in result – Hutchinson is guilty
4-3 Split on the route to guilt
Abella/Moldaver minority: Consent to sexual
activity in question includes “manner in which
touching carried out”. Must know whether or not
there is protection
“Everyone has the right to insist upon a condom as
part of sexual activity” (problem: open flood gates to
criminal culpability)
Note: If you want a condom, and that’s a part of the
sexual act – you should have one. And you both deal
with consequences equally.
- Did not agree to sex w/o condom, vitiated
Criticism: Although it is certain, it may extend
criminal law too far.
Majority: Minority approach contrary to mabior/cuerrier
Consent: is to sexual activity, not whether or not there was
protection
Restraint and certainty demand we don’t go that way.
Would open doors to criminal liability too broadly.
Sexual activity is the ACT – not the contraception
Deals with improper conduct as fraud
 Deprivation is making a woman pregnant or
exposing to the risk of pregnancy
Consent is vitiated when there is dishonesty + deprivation.
Deprivation is making women pregnant. Exposure to
pregnancy is harm in all cases. “Must be equally serious as
deprivation recognized here”
Note: Men cannot make the claim where woman get
pregnant after lying to man.
25
Impact of Minority view on HIV (Mabior):
IF you said you were going to wear a condom and
you didn’t, your guilty – whether you have HIV or
not. Not continuing with the sex act as the person
wanted.
S Argues that this gives it better protection – must do
what the person asks you to do.
If two men had sex w/o a condom = liable, but in
majority, no risk of pregnancy = so no fraud vitiating
consent.
Probably wouldn’t be prosecuted if no harm was
done ie not pregnant, ie no HIV

Financial claims, sadness or stress of being lied to
is not enough. (means that Men cannot argue these
things)
 Maybe if the man proves psychological harm..
Criticisms: Shouldn’t we leave this to parliament??
Maybe we should do something – we should do it properly.
Annotation, Janine Benedet, UBC
 Was the lie material to the complainant’s decision to agree to sex?
 Was the result an exposure to significant risk of serious bodily harm
 Justice Farrar is right that at some point court must draw a line
Review:
Hutchison #1:
 Does the need for voluntary agreement include reasonably informed choice?
o Would confuse legal test and apply 265.3 broader than should be
 If victim gets pregnant, harm is likely to be caused?
o No pregnancy, issue more complicated
Hutchison #2:
 NSCA focuses not on informed consent, but agreement to sexual activity in question
 Concludes that Protected sex is different than Unprotected sex, and thus no consent given
 This would not cover all fraudulent acts
 Policy: what does this mean for males and females? Majority: Doesn’t include females okay.
Questions #1: Does Hutchison apply to women and men equally?
Question #2: Does Hutchinson apply to poor choices in protection (where lie made)?
 Yea... I think I took my pill today…
 Yea... This condom is good…
Question #3: Does it apply to same sex conduct?
 I’m wearing a condom, but actually not (ignore HIV)
SCC:


Moldaver pushes accused to define the “activity” ie. “safe sex”
Mclachlin addresses analogy btw HIV and Pregnancy. Complainant attempts to draw line btw essential
feature vs. non-essential feature
Sexual Assault Basic Key Points
1. Must apply force intentionally
2. Sexual nature determined OBJECTIVELY – no subjective knowledge required
3. Must be an absence of consent – AR proven if complainant DID NOT consent (Ewanchuk)
4. Consent can be vitiated in certain circumstances (Hutchison, Mabior)
Consent and Mens Rea
 Consent can be ABSENT as a matter of fact or law eg. Law: Fraud vitiates consent where dishonesty and
deprivation are present
 Can accused raise MR argument, suggesting that he did not know fraud vitiated consent? No.
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Accused can raise MR argument suggesting that he did not know she was NOT actually consenting even
though it seemed she was.
You can raise MR defences only to Material Facts, when that element is material to the case.
1. Must be factual basis to argue mistake of fact re consent (Pappajohn/Osolin)
2. Mistake must be based on something that is LEGALLY allowed
3. Where consent is vitiated as a matter of law – accused is guilty IF he was aware of facts that negate
defence. (not : statutory list, fraud, unconsciousness, bodily harm)
4. Wilful blindness about key fact (“I didn’t think she was threatened”) will not save you (Sansregret)
5. Valid type of mistake? Only 1: “I thought she COMMUNICATED yes” even though there was no consent.
o Ie. Or valid mistakes of fact on law ie. “I didn’t know I had a high viral load” etc.
Put the onus on people who are engaging in sex to KNOW if shes consenting.
Pappajohn v The Queen 1980 SCC p 633 [A subjective mistake as to the facts of consent warrants an acquittal;
Accused perception of consent is relevant, mistake of fact open defence to rape; mistake of fact does not have to be
reasonable, reasonableness is only evidence for/against view that belief was actually held/intent was lacking; No
room in facts for Ambiguity which would allow for Mistake of Fact]
Facts: Accused (business man) met Complainant (Real Estate agent) for drunken lunch. Went to his house. She ran out
naked, with hands tied behind back. He said she consent to foreplay and intercourse, gagging and binding was for
stimulation, but she became hysterical and did not consent to this. Appeal to BCCA dismissed.
Issue: Is the accused’s perception of consent relevant to a charge under s 143 of code?
Decision: Accused perception of consent is relevant.
Reason: Dickson J
 Crown: subjective belief of an accused is no party of case to be proved by Crown. Since reference to intention to
proceed in absence of consent is lacking, statutory wording prevails over CL mental element
 One cannot assume that there is not MR related to crimes of rape
 Intention or recklessness must be proved in relation to all elements of the offence, including absence of consent
 Mistake is a defence where it prevents accused from having MR which law requires. Mistake of fact avails
accused who acts innocently, pursuant to flawed perception of facts but commits AR.
 Defence should avail when there is honest belief in consent, or absence of knowledge that consent has been
withheld
o Whether it is subjective perception or based on objective incorrect facts should be of no consequence
 Must a defence of honest mistaken belief be based on reasonable grounds? No
 Not clear how one can properly relate reasonableness to rape (true crime, not crime of negligence)
 If jury finds mistake, whether reasonable or unreasonable, there should be no conviction
 Policy reasons (cant be bull shit mistake)
o 1. Cases in which mistake advanced in answer to rape = must be few
o 2. If woman in her own mind withholds consent, but conduct shows consent, it may be unjust to convict.
o 3. Unfair to jury and accused to ask the jury to ignore actual subjective belief in favour of objective
“Reasonable man” belief
 The reasonableness of the accused’s belief is only evidence for/against view that belief was actually held and
intent was lacking
 Issue of MR is always before the jury. Mistake of honest belief challenges factual aspect of offence, did/not she
consent?
 Circumstantial evidence to support a plea of belief in consent: (Not mistake of fact)
o 1. Necklace and car keys found in living room
o 2. Blouse neatly hung in clothes closet
o 3. Other clothes folded
o 4. None of clothes damages in slightest
o 5. In house for number of hours
o 6. Made no attempt to leave
o 7. Did not leave when he undressed
o 8. No evidence of struggle
o 9. Did not suffer physical injuries
 Conclusion: New Trial
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Concurring: McIntyre J:
 Where is this evidence to be found? Not with complainant who denies consent.
 Two evidence stories opposed
 TJ right in concluding that there was not sufficient evidence to justify putting mistake of fact to jury. Left issue of
consent to them.
Ratio: No ambiguity in the facts. Mistake of Fact not open this defence to rape.
TH: The SCC unanimously agreed that it is not necessary for an accused's belief in consent to be reasonable.
Why can’t Pappajohn raise mistake of fact?
1. In a trial, jury guided by available evidence
2. Live issues are those for which there is a possibility of the jury finding in the accused’s favour. No matter of
defence can be considered unless it meets the standard of a live issue.
3. Eg. Who shot the victim = live issue. Unless accused testifies he shot victim in self-defence. So, it is not a live
issue, not necessary to instruct jury to consider “Did accused shoot V?”
4. Judge chooses whether there is SOME evidence that would support defence/live issue
5. CASE AT HAND: C says I resisted in every sense, A says she consented. Mistake REQUIRES accused to be
CONFUSED about some fact. There is no version of events that says “I got it wrong”. Its either CONSENT or no
CONSENT. No evidence to support that anyone made a mistake/was ambiguous.
6. We leave this to the judge because:
a. Appeals: judge makes error about defence that was not available – no new trial
b. If both consent and HMB are left to jury, acquittal more likely
c. Focus: deal with it as consent case
The Evidentiary Burden
 The crown bears the burden of proving guilty BRD
 To simplify trials, juries not instructed on defences if there is no evidence to support them
 Thus, accused has an “Evidentiary burden” to show some evidence capable of supporting a defence
Section 265(4) of Code came into force in 1983:
 Reasonableness of mistake needs to be considered in assessing subjective knwoledge
 If accused challenges that he believed complainant consented to conduct, a judge if satisfied that there is
sufficient evidence and that, if believed by jury, evidence would constitute a defence, shall instruct jury to
determination of the honest of accused’s belief, to consider presence of absence of reasonable grounds for that
belief.
 Does this change Pappajohn? No. Consistent. Reasonableness goes to the evidence. Simply makes this
instruction to the jury mandatory, based on Sufficient Evidence.
Osolin v The Queen 1993 SCC p 640 [s 265(4) does not infringe presumption of innocence or right to trial by jury; SCC
split on whether diametrically opposed facts preclude HMB. Cory = precludes. McLachlin says Not logically impossible,
must meet “air of reality”]
 Cory J (Dissent): Applicable to all assault – not just sexual
 A defence for which there is no evidentiary foundation should not be put to jury
 Pappajohn held that defence of mistaken belief in consent should only be put to jury if adequate evidentiary
foundation
o Does not mean that evidence must be emanating from source other than accused
o Must be supported by evidence beyond the mere assertion of “I thought she consented”
 Leaves burden on crown for all essential elements (MR and AR BRD)
 Air of Reality:
o Cory J (Dissent on this point): In diametrically opposed version of facts there cannot be “air of
reality”. Can only arise when A and C tell essentially same story.
 Conflicting stories Preclude Defence of honest but mistaken belief
 Mistake only arises when fact generally correspond
o McLachlin J (Majority on this point): It is not logically impossible to have this defence. It might occur
rarely, but jury could accept parts of both testimonies
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 No matter of defence can be considered by trier of fact unless it meets “air of reality” standard
 Suggests more liberal version
Now – statute makes it harder and harder to rely on HMB at all.
Sansregret v The Queen 1985 SCC p 642 [Willful blindness regarding consent is culpable; if in the circumstances (ie.
Happened before) accused should have known]
Facts: Ex boyfriend breaks in, uses knife, she has sex with him on 2 occasions to calm him down and save her own life.
She did not consent. TJ: Accused argues honest mistake of fact. He saw what he wanted to see, heard what he wanted to
hear and his conduct shows he believed she consented. He was willfully blind. According to Pappajohn – must acquit.
Issue: Did the TJ err in acquitting Accused?
Decision: yes – willful blindness applies. Dismiss appeal.
Reasons:
 Application of willful blindness: there was need for inquiry and he ignored it
 One time alone – difficult to construct that accused knew she was consenting out of fear
 But since it happened before, he should have that knowledge. He was aware of the likelihood of complainant’s
reaction to his threats. To proceed w/ sex in such circumstances is self-deception to point of willful blindness.
 No constructive knowledge required
Ratio: Willfull blindness is sufficient MR for sexual assault if in the circumstances (ie. Happened before), the accused
should have known.
Question: WHAT IF he asked her – Are you consenting out of fear? And she said no? Would he likely be acquitted?
R v Seaboyer 1991 SCC p 645
Facts:
 SCC held that “rape shield” provision of s 276 violated charter. S 276 = evidence concerning sexual activity
of C with any other person but accused could only be admitted if it 1) rebutted evidence of C’s sexual
activity 2) established identity of person who had sex w/ C on occasion in charge; and 3) relates to consent
that accused alleges he believed was given by C.
 SCC held that s 277 was constitutional: prohibits evidence of sexual reputation to challenge credibility of C
 How do the impugned evidentiary provisions relate to the defence of honest but not necessarily reasonable
belief in C’s consent?
Issue: Is s 276 unconstitutional?
Decision: Yes – makes evidence inadmissible that is necessary for defence
Reason: (McLachlin J)
 Defence of honest belief requires evidence precluded by s 276
 Overshoots the mark and renders inadmissible evidence which may be essential to defences and a fair trial
 In exchange for elimination of possibility that judge will draw illegitimate inferences from evidence, it
exacts the real risk that an innocent person may be convicted.
Dissent: L’Heureux-Dube J:
 The relevant evidence prohibited is irrelevant
 No relevant evidence regarding defence of honest but mistaken belief is excluded
 It is a defence of honest, not reasonable belief.
 Before defence can be put to jury, TJ must decide there is an air of reality. If they are operating in an
environment that is free of rape myth and stereotype about women, an evidence excluded would not
satisfy the “Air of reality” that must accompany defence, nor would it provide reasonable grounds for jury
to consider in assessing whether belief was honestly held.
Ratio: s 276 is unconstitutional.
Note: Parliament amended this section with Bill C-49. It was still not wholly accepted by the courts.
Honest Mistaken Belief
 Two Types:
o Mistake of Fact that he believed she was consenting
o Mistake where consent is taken away by law of a relevant fact
 Ie. HIV: I didn’t know I had HIV; I didn’t know I had a high viral load
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Ie. Bodily Harm: I didn’t intend to cause bodily harm
Ie. Drunkenness: I didn’t know she lacked the capacity (Esau)
Ewanchuk Key Points
 There is no such thing as implied consent - You cannot believe that there was implied consent
 Consent must be somehow communicated
 You can argue “I thought that she said yes”
 TH 9.2: In Ewanchuk, the SCC says that for HMB must show belief that "complainant communicated
consent". This means, as a matter of law, that: Ambiguous words can establish the possibility of believing
that consent was communicated.
 Conduct can ground consent. It is part of the way in which communication takes place.
o Sexual assault = “any intentional force” of a sexual nature
o Should communication of consent include conduct? Yes – otherwise there will be too many sexual
assault cases.
 “Silence passivity and ambiguous conduct cannot ground a mistake”
o Sankoff: NOT entirely true. No need to go this far. We have “reasonable steps”
o Greater steps required where there is silence, passivity or ambiguous conduct.
Notes: Aim of Law: shift societal consciousness about these important limits. People take advantage without
knowing its illegal.
New Statute
S 273.1(2):
 No consent is obtained in the following 5 situations:
o (a) Agreement expressed by words of conduct of other person (b) Complainant lacks capacity [ie.
Is incapable due to intoxication (c) Consent induced by abuse of trust, position or authority (d)
Expresses lack of agreement (e) Expresses lack of agreement to continue.
 Note: According to Ewanchuk most of these are already vitiated by CL: Must look to C’s state of mind. So,
only C) when consent is induced by abuse of trust, position or authority is new.
 Note: Kills availability for defence for MR.
 Example:
o X and Y engage in kissing and some sexual contact
o Y becomes uncomfortable, and indicates desire to stop
o X continues, argues afterward that he had been with Y before and she always starts by saying no,
and ends up saying yes.
o Consent has been vitiated. Because she has expressed lack of agreement to continue, so can’t argue
defence of mistaken belief.
o Any mistake that flows out of these 5 situations is a MISTAKE OF LAW.
 Ewanchuck says consent depends on C’s state of mind
 Most of section deals with situations where C would not be consenting under Ewanchuk
 BUT! Ewanchuk is Factual Absence of Consent. Section 273.1 creates LEGAL absence of Consent.
S 273.2(A)
 1. Accused cannot say I was drunk, and that’s why I didn’t know she was consenting (consistent with 100
years of common law
 2. Accused cannot say I was reckless or willfully blind (consistent with common law)
S 273.2(b)
 The accused did not take reasonable steps, in the circumstances known to the accused at the time, to
ascertain that the C was consenting
 EFFECT: criminalizes an omission to ascertain consent, by imposing a duty to take reasonable steps
 Focus is NOT fully objective
 Accused must act reasonably but only on the basis of what he or she perceives.
 Eg. A is engaging in sexual activity with B. A asks B if he can do a particular act. A thinks he hears “yes” but
B has said nothing
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Christine Boyle “The Constitutionality of Bill C-49: Analyzing Sexual Assault as if Equality really mattered” 1999 p 652
 273.2(b): the accused did not take reasonable steps, in the circumstances known to the accused at the time,
to ascertain that the C was consenting
 What is reasonable steps? – Seems to link to MR, but is behavioral
 Darrach assessed constitutionality of reasonable steps:
o 1. Far from satisfied that sexual assault is a stigma offence
o 2. But if it is, enough subjective fault is still required to satisfy const. standards
o Accused not need take “all” reasonable steps
o WHAT? Should be: steps person would take to avoid making an unreasonable mistake
R v Malcom 2000 [Recklessness vs. Willful blindness; quasi- objective test for “Reasonable steps”]
 Recklessness: accused subjectively perceives a danger or risk that consent is not present, but proceeds in
any event
 Willful blindness: it is obvious in the circumstances that there is no true consent, but accused does not
confirm that lack of consent bc he wants to be able to say that he did not “know” there was no consent
 S 273.2(b) injects objective standard for unreasonable sexual behavior. Accused will not have mistaken
belief defence where he did not take reasonable steps in the circumstances known to him to ascertain
whether C was consenting.
 Capture those who are aware of precence of certain circumstance which would led reasonable person to
take further steps
 Limits application of honest belief
 Imposes positive duty on those who undertake sexual relations to ensure partner is consenting
 Must be considered where there is an air of reality to accuseds assertion of honest belief, and the accused
is not willfully blind or reckless, but circumstances call into question the reasonableness of his actions
 Quasi objective test:
o 1. Circumstances known to the accused must be ascertained
o 2. If reasonable man was aware, would he take further steps b4 proceeding with sex?
o If yes, and A did not do so, then he is not entitled to defence of HB in consent. If no, or maybe, then
accused not required to take further steps and defence will apply
R v Cornejo 2003 ONCA p 655 [Reasonable steps may require positive action, depends on circumstances known to A at
time]
Facts:
 A charged with sexual assault and breaking and entering. Acquitted on both counts. Appeal by crown on
basis that TJ left defence of honest but mistaken belief in consent for jury’s consideration when there was
no air of reality to that defence.
 He went to her house, Door was unlocked. She closed her eyes, she let him take her pants off. When he
tried to have sex, she said no. She told him to get out. Then he left.
 She alleged that she awoke drunk to being half naked and him trying to have sex with her. She has no
memory of the above. She was wearing a tampon when he attempted to penetrate her.
 Tj relied on pelvic movements as evidence satisfying air of reality.
Issue: Was there consent?
Decision: There was no consent. Reasonable steps were not taken. The air of reality of consent was not satisfied.
Reason:
 Evidence points to absence of consent
 Lifting of pelvis by woman who is asleep and he knew she was not interested in sex w/ him, cannot give
rise to assumption of consent
 No air of reality that he honestly believed she was consenting
 Purpose of “Reasonable steps” is to ensure there is clarity on part of both partners
 Replaces assumptions associated with silence and passivity
 Reasonable steps – sometimes positive action in all circumstances or maybe in situations of resistance.
o Reasonable based on circumstances known to A at time
 He knew she was not interested in sexual relationship
 She said “what the hell are you doing here”
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 She had been drinking
o He ought to have taken steps BEFORE he engaged in sexual activity to ascertain whether she was
consenting
o She said no and physically stopped him from kissing her mouth
o Any reasonable person would have stopped to take more steps
o No person would assume she wanted her clothes removed
Ratio: Reasonable steps may require positive action, depends on circumstances KNOWN to A at time.
Ewanchuk: Asserting "No Means No" at the Expense of Fault and Proportionality Principles. 1998 (Supp) [Current
Sexual Assault Law is Repressive] by Don Stuart
 E is Triumph for those who believe that sexual assault laws should rigorously enforce “no means no”
 E Determines that little or no weight paid to crim principles of no punishment without fault and
proportionality
 SCC has placed severe limits on mistaken belief defence = makes sexual assault laws unjust to the accused
 Are ambiguous situations rare in sexual assault?
o SCC says yes. True misunderstandings arise infrequently
o But complex diverse nature of consent
o TJs deciding whether to criminalize conduct where parties had miscommunicated
o Did SCC get Ewanchuk test right?
 Hypothetical #1:
 Two teenagers say they are open, friendly and affectionate. Jack kisses jill, she says
nothing. Jill opens two buttons on her blouse bc she is claustrophobic. Jack thinks its
positive motion. He touches her breast. Jill slaps him.
 Hypothetical #2: Same situation, but it was Jill who kissed Jack.
 Consent
o Whether C consented is tested subjectively. What was in HER mind?
o In H1: if trier of fact believes that C did not want to be kissed or touched, Crown has performed its
burden of proving absence of consent
o In H2: even if she says she did not consent to kiss, her kissing first should produce reasonable
doubt. Her slap right after touching, should lead trier of fact to find no consent to touching: what is
in her mind is material
 Mistaken Belief in Consent
o MR for sexual assault = 2 elements
 1: intention to touch AND 2, knowing of, reckless or willfully blind to, lack of consent on
part of person touched
 An accused whose defence the C has consented is entitled to have HB defence considered
where trier of fact finds lack of consent.
o Changes:
 1. For the purposes of the honest but mistaken belief in consent defence, consent is
different from consent in AR and means that C affirmatively communicated by words or
conduct agreement to sexual activity.
 H1: since Jill did not communicate consent to kiss or touch, A has no defence no
matter what he thought
 H2: he could argue he believed her opening blouse was communication of consent
to further touching
 2. Consent is limited by s. 273.1(2) of Code
 3. A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of
law and provides no consent
 H2: No defence of mistaken belief even in second hypothetical since opening blouse
was ambiguous. We have criminalized seduction and definition of sexual assault is
dangerously broad..
 4. Accused cannot rely upon purported belief that the C’s expressed lack of agreement to
sexual conduct in fact constitution an invitation to more persistent of aggressive conduct.
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5. Continuing sexual conduct after someone has said NO is at minimum reckless conduct
which is not excusable.
Conclusion:
o The law is repressive
Dippel 2011 ABCA [What is reasonable is gathered from the circumstances known from the accused and the context]
 Facts: Complainant went to party, went to sleep in bedroom, woke up to D touching her. Barely knew him.
D argued that C’s conduct was ambiguous.
 TJ Acquits, (failed to determine whether he took reasonable steps to ascertain consent)
Decision: CA over rules
Reasons:
 Because D knew C was asleep when he laid down next to her. Took no reasonable steps.
 “Fact that individuals were complete strangers and she was asleep requires reasonable person to clearly
ascertain consent”
 No air of reality for defence of mistaken belief because reasonable steps not taken.
 Unnecessary to cut off ambiguous conduct, let reasonable steps assessment do the work
R v Esau [1997] SCC (Supp) [Plausible evidence without contradiction (due to lack of C’s memory) warrants air of
reality and TJ presenting jury with defence of honest but mistaken belief.]
Facts: Second cousin at C’s home for party. C was drunk and high. R though C was able to control what she was
doing. R says they kissed and C invited him to bedroom where they had consensual sex. C denied kissing and
denied invitation. She said she had no memory, and said she would not have consented since they were related. R
charged with sexual assault. R convicted by TJ. CA quash conviction order new trial. CA find air of reality to defence
of honest but mistaken belief. TJ must charge jury on every defence that has an air of reality, whether or not it is
raised.
Issue: Is honest but mistaken belief applicable?
Decision: The defence is applicable - Dismiss Appeal and put new trial.
Reason: Major J
 Plausible evidence comes from testimony of C and R and surrounding circumstances. R’s evidence amounts
to more than bare asserting of belief in consent. C’s evidence did not contradict R, she had no memory. No
evidence of violence or struggle.
 Evidence no diametrically opposed
 Crown argued that since she was intoxicated she was incapable of consenting.
 But A’s evidence may lead he honestly believes she was.
 Totality of evidence that gives rise to air of reality. Absence of violence alone could not give rise to defence.
 Court cannot make a determination that defence is impossible when C is intoxicated.
 Dismiss Appeal
 The basis for the crowns case of no consent? Consent is vitiated as a matter of law by lack of capacity
 So his defence: I didn’t thinks he was drunk = is possible (para 15)
Dissent: (McLachlin J)
 Evidence did not give air of reality
 Only issue is whether she consented.
 S 273.2 precludes accused from defence of mistaken belief in consent if he did not take reasonable steps, in
this case it would seem reasonable to ascertain whether her participation represented actual consent. No
steps taken
 Appeal should be allowed
 Judges are not allowed to put defences to juries unless there is a foundation for them. Threshold is not ANY
evidence, but evidence that makes defence plausible, or realistic
 Mere assertion of belief is not enough – bare statement etc. Only when sufficient evidence presented by
accused, his testimony or circumstances
 When does the defence arise??
o 1. Consider the purpose of the defense
 designed to meet the situation where honest miscommunication of non-consent
 Based on co-existence that 1) C did not consent and 2) A believed she consented
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Must be additional evidence on how the accused honestly made that mistake. Evidence of a
situation of ambiguity.
o 2. What we mean by consent
 Connotes voluntary agreement
 Thought pattern in mind of C is not focus
 C’s verbal and non-verbal behavior, what inference can be drawn
 In situations of ambiguity = mistaken belief in consent defence available
 Explicit consent precludes sexual assault
 Explicit refusal precludes honest mistake defence
 C is unconscious or incoherent = defence cannot be raised
 Lack of capacity as child = defence not be raised
 Force/Duress = defence cannot be raised
 Conscious but passive C = strong case that passivity without more does nto
constitute consent so defence cannot be raised. Cannot equate submission w/
consent. Insufficient basis for defence!
 Ambiguous conduct which can be read in different ways = Defence okay
 Ambiguity arising from external circumstances = defence okay
 Requirements of the Defence:
o 1) evidence that accused believed C was consenting
o 2) evidence that C in fact refused/was incapable of consenting
o 3) evidence of state of ambiguity
o Lack of memory coupled with drunkenness do not constitute such evidence. To say she appears to
consent because she does not remember is speculation.
 Allow appeal – affirm conviction.
Ratio: Plausible evidence without contradiction warrants air of reality and TJ presenting jury with defence of
honest but mistaken belief.
Key Point: There was borderline cases where facts are difficult. Hard to define what reasonable steps he should
have taken to ascertain if she was too drunk ie. Make her do a sobriety test etc

Variation of Plummer (raised in Esau) [What is reasonable will depend on: The circumstances known to the accused
AND the surrounding context]
 X threatens A to have sex with B “or else”. B is told that “A wants to have a good time w/ a real player”. B
arrives and A agrees to everything throughout.
 A did not legally consent s 265(3)  Threats
 What steps should B have taken?
o B cannot take consent from X. X is guilty of sexual assault (party liability). B would not be guilty of
sexual assault because A appears to be consenting.
 Lesson: What is reasonable will depend on: The circumstances known to the accused AND the surrounding
context.
 The more ambiguity = more required to ensure consent is present.
The Development of Strict Liability
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Difference between offences found in code and enacted by other levels of gov
Issue: whether criminal law should require proof of something more than voluntary act/omission, or that
alone should establish liability?
Criminal law requires proof of guilty state of mind for “true criminal offences”
For regulatory offences may be satisfied by proof of act
o Accompanied by no further fault requirement = absolute liability
o Accompanied by reduced fault requirement = strict liability
R v Sault Ste Marie: held presumption that all regulatory offences would require prosecution to prove the
prohibited act, but allow the accused to prove defence of due diligence or reasonable mistake of fact on a
balance of probabilities
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Public Welfare or True Criminal Offences
Beaver v The Queen SCC 1957 [Possession (because it has a minimum sentence) requires MR/ knowledge that
substance is a drug]
Facts: Max sold to police officer undercover, he was a party to the sale of the package, did not have it on his person
but was acting jointly with his brother, the appellant had no knowledge that the substance was a drug and believed
it to be sugar of milk. TJ charged jury with having a package in possession and selling it. Said it was irrelevant
whether he had knowledge of what it was, or whether he entertained an honest but mistaken belief of what it was.
CA agree.
Issue: Is this correct?
Decision:
Reason: (Cartwright J)
 4(1)(d): any person who has in his possession any drug, except with license
 4(1)(f): any person who manufactures, sells…a drug or any substance represented to be a drug
 So – would accused be guilty of crime of having drug in his possession if he didn’t know it was a drug?
o Quash conviction on charge of having possession
 No other crimes in code have minimum sentence of imprisonment and don’t require MR
o He is still liable for selling
 Fauteaux J: (Dissinting in Part)
o Provisions indicative of parliament giving the most efficient protection to public health against
danger attending the uncontrolled use of drugs as well as incidental social evils
o Plain and literal meaning = absolute prohibition in possession of drugs
o If knowledge is necessary for this and s 17, then why did parliament provide for defence of lack of
knowledge in s 17 and not this?
Ratio: Possession requires MR/ knowledge that substance is a drug
R v Peirce Fisheries 1971 SCC p 384 [No MR because low stigma offence]
Facts: Accused charged with possession of undersized lobsters. Boat company on that day caught 50ks of lobster
and fishery officer found 26 undersized lobsters. SCC allowed an appeal from an acquittal.
Issue: Does he have to have knowledge that there were 26 lil’ lobbies?
Decision: No MR because low stigma
Reasons: Ritchie J:
 Act’s purpose is to protect lobster beds from depletion
 No stigma attached to offence
 In Beaver, found truly criminal offence through provisions of fed. Statute
 But little similarity btw statute of lobster and statute of possession
 Should be construed free from presumption of requirement of MR
 Cartwright CJC: Dissent:
o Principle of construction of statute which makes possession of forbidden substance = offence laid
down by this Court (Beaver). Applying this to case at hand, R has no knowledge of forbidden
lobsters
R v Wholesale Travel Group Inc 1991 SCC [Strict Liability: Court upheld that BoP does infringe s 11(d) of Charter but
justified under s 1 because make sense to impose BoP on accused in public welfare offences]
Facts: Accused argued that imposing BoF on him violates s 11(d) of Charter.
 Court grappled w/ distinction btw true criminal offence and regulatory offence
 Sherras v De Rutzen 1895: held that MR presumption applied to true crimes, but did not apply to acts which
are not criminal, merely for public interest.
 Regina v Sault Ste. Marie 1978: public welfare offences, although enforced as penal laws, are a substance of
civil nature and are branch of admin law.
 Distinct because:
o The act is not inherently wrong, but unregulation would result dangerous conditions imposed on
member of society. Deterrence and punishment of acts involving moral fault to the protection of
public and societal interests.
35
o Regulatory offences directed to consequences of conduct, rather than conduct itself
 Importance
o Primary mechanism to implement public policy objectives
o Approximately 2000 regulatory offences/province, + 20k at fed level
Ratio: Court upheld that BoF does infringe s 11(d) of Charter but justified under s 1 because make sense to impose
BoF on accused in public welfare offences
The Emergence of Strict Liability



For true crimes the BoF is Always on the Crown – even if it’s a defence, BoF lies on crown to disprove
offence.
SSM shifts the burden to the accused that they prove on a balance of probabilities that they were diligent,
or operated under a reasonable mistake of fact.
Types of defences available to strict liability offences:
o 1) Mistake of fact: it must be reasonable in the circumstances
o 2) Due diligence: did the accused do everything possible to prevent the offence/incident
**R v City of Sault Ste. Marie (SSM)[Creates strict liability offences, Accused has onus of proving defence of due
diligence]
Facts: City charged that is permitted to allow depositing materials into Creek which would impair water quality
Issue: Appeal concerned with regulatory offence of pollution
Decision: New Trial , bc strict liability now exists
Reasons:
 Necessary to have high standard of public health and safety, contrasted with revulsion against punishing
morally innocent
 Two predominate arguments to justify absolute liability
o 1) Protection of social interests require high standard of care/attention on part of those who follow
certain pursuits, must take precautionary measures to avoid mistakes
o 2) Administrative efficiency = would clutter the docket
 Against Absolute liability
o 1) violates fundamental principles of penal liability
o 2) rests upon assumption that higher standard of care results – not proven
o 3) in sentencing evidence of due diligence considered, why not consider it in determining guilt
 Introduces STRICT LIABILITY: In past, two alternatives = 1) full MR or 2) absolute liability.
o But – increasing authority that offence does not require full MR, but MR is still defence = sensible
“halfway house”
o In line with Ontario and Law Reform Commission
o Relieve crown of onus of proving MR and simply accused alone comes forward with evidence of
due diligence
o Effect: to protect morally innocent from absolute liability punishment
 In future, to determine if offence falls in 3rd category (absolute), see if leg has made it clear that guilt
follows merely of the proscribed act, look to precision of language.
 To determine if it falls into full MR = look to words of “knowingly, willfully,” to expressly import MR
 S 32(1) creates MR offence. Words “cause” and “permit” fit better into an offence of strict liability.
R v Ellis-Don Ltd 1992 SCC p 415 [Regulatory offences/defences must be proven BYD to be consistent with s 11 D]
 SCC followed Wholesale travel and allowed appeal that held that s 37.2 of Occupational Health and Safety act,
and the reverse onus under Sault ste Marie, violated s 11(d) of the Charter.
 CA held that reversal could not be justified under s 1 of the Charter
 S 11(D) implied proof of guilty BYD
 Unacceptable for someone o be convicted of offence when there is reasonable doubt- burden of proof cannot be
“balance of probabilities”
 Defence of due diligence must be based byd
Note: True Crimes -------- strict liability ------absolute liability
36




SL has presumption of no MR
If SL crime has MR wording, then you will have to prove MR
If not overruled by Statute, then accused can avoid liability by proving mistake of fact/due diligence
o Burden of Proof always on Defendant (Common sense because D in better position than crown to
prove)
In AL = no MR, only need to prove AR
Strict Liability Recap
 Crimes are FULL MR presumption (Crimes found in Criminal Code and drugs)
 Provincial Law CANNOT be Crimes
 Unless statute says otherwise, Crown must prove AR BYD
 Federal law CAN BE, but is not always a crime.
 Offences have a NO MR presumption
 With offences, presumption can be overcome with clear statutory wording
 With Crimes, we know that predicate offences (consequences) rebut the MR presumption
Absolute Liability and Burdens of Proof
Absolute liability: you are absolutely liability for any act you commit.
 Crown must prove AR BYD
 Lack of voluntariness is still a “Defence”
 Due diligence and RMF are NOT defences
 Courts have never liked them – that’s why SSM created strict liability category
 Offends general notions of justice
 TO be an absolute liability offence, must say “THIS IS AN ABSOLUTE LIABILITY OFFENCE” or take away
defences; otherwise it is SL.
 AL = designed to ensure the highest measure of security.
Constitutional Considerations
Reference re Section 94(2) of the BC Motor Vehicle Act [Absolute Liability and Imprisonment is an s 7 violation]
Note: Presumption of strict liability is common law.
Facts: Offence of 94(1) creates absolute liability of driving whether or not defendant knew of prohibition or suspension.
Minimum imprisonment 7 days.
Issue: Is this offence consistent with the Charter? Does the Court have the power to strike down a statute that creates AL
offences?
Decision: BCCA: Not consistent with the Charter.
Reasons: Lamer J:
 Law that has the potential to convict person who has really done anything wrong, who is morally innocent,
offends principles of fundamental justice
 Absolute liability and imprisonment cannot be combined = against s 7
 S 7 serves to establish parameters
 The term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived or life,
liberty and security, function is to set the parameters of that right
 Section 8-14 = specific deprivations of the right to life, liberty and security. Illustrative of the meaning, in
criminal or penal law, represent principles which have been recognized by common law
 Absolute Liability and Fundamental Justice in Penal Law
o Innocent should not be punished
o What is morally innocent will VARY!
o A law enacting an absolute liability offence will violate s 7, only if and to the extent that it has the
potential of depriving of life, liberty, security
o Imprisonment deprives person of liberty
 S 94(2) offends s 7 “liberty” of the charter. It is not salvaged by s 1.
37
Note: BC leg repealed s 94(2)
KEY POINTS:
1. Explained what the principles of fundamental justice were.
a. Government argued that s 7 did not give the courts power of “substantive review”
b. Principle of fundamental justice were intended for procedural review only
c. Court rejected this interpretation
d. BC Motor Vehicle allows courts to measure whether laws meet with general tenets of justice overbreadth,
vagueness, etc)
e. Criticized and praised
2. AL + Imprisonment = s 7 violation
3. Set groundwork for future charter challenges on MR (stigma analysis)
R v Pontes 1995 [Offence that precludes defences of mistake of fact/due diligence, mistake of law = Absolute Liability]
 BC enacted statute without 94(2)
 Statute said that person who was convicted of federal driving offence “automatically and without notice
prohibited from driving”
 SCC said this was still AL
 Since mistake of law was NO EXCUSE, there was no way to avoid the section
 BUT its not unconstitutional because there is no possibility of imprisonment.
R v Ontario Inc; R v Transport Robert ONCA 2003 p 401 [AL offence that imposes minimal fine with low stigma does
not trigger “state imposed psychological stress” contrary to s 7 security of the person]
Facts: D argues that offence violates s 7, 11(d). Commercial motor vehicles that lose wheel on highway are liable no
matter what.
Issue: Is it open to legislature to create absolute liability offence where there is no possibility of imprisonment/probation
if the D is convicted? (Just a fine of 2-50k)
Decision: No violation of s 7 or 11(d).
Reasons:
 11(d):
o No violation because lg. has defined an offence so as to eliminate a possible common law defence
 S 7:
o S7 can only be enjoyed by human beings, but corporation has standing challenge to constitutionality of
penal provision on that basis
o P must establish violation of the right and deprivation that right does not accord with principles of
fundamental justice
o A argues: Provision infringes on security of person because it allows for conviction of person who is
without fault; infringment based on effect of stigma and possible monetary penalty
o Note: Legislature must state that accused will not go to jail for failure to pay fine, or gets caught by s 7
 R v Pontes: Crown says SSC already dealt with this and it did not violate s 7
 Security of the person and Absolute Liability
o Crown States: Due diligence not available…other AR defenses available where wheel became detached
in collision with third party
 Ie. Voluntariness is component of AR. If the wheel detaches because of a collision, ie someone
else hits you, you have no voluntary action of driving. Note – if you hit a pothole = still liable.
o Contextual factors: owners/operates of commercial vehicles, in highly regulated industry for-profit
industry, driving is a privilege – not a right
o In exceptional circumstances, court may impose fine less than minimum
o Security is restricted to ‘serious state-imposed psychological stress”. Also – no generalized right to
dignity or freedom from stigma
o Offence does not create a true crime (as explained in Wholesale Travel)
o Diminished stigma of the offence, even when couple with fine, does not trigger s 7
NOTE: there will be situations where security of the person can be engaged. IE. If the fine was 5 million dollars,/lose job,
its clear this would psychologically stress someone.
38
R v Wholesale Travel Group Inc SCC 1991 p 406
Facts: Corporation charged with several counts of misleading advertising. Offences punished up to one year
imprisonment. At trial court held that Competition Act and s 37.3, which created statutory due diligence defence, was
inconsistent with ss7 and 11(d). TJ found that statutory due diligence defence in ss 37.3(2)(a),(b) unjustified violation of s
11(d) and requirement for timely retraction in ss37.3(2)(c),(d) imposed absolute liability in violation of s 7.
Issue:
Decision: SCC strikes down (c ) and (d) on grounds they conflict with BC Motor Vehicle.
Reason: Lamer CJ
 AR Requires proof that advertising was false or misleading
o Penalty up to 1 year in jail triggers s 7
o S 37.3(2) takes away possibility of MR
o (A) and (b) allow for morally innocent to avoid liability (Strict liability)
o BUT (c ) and (d) punish even where person doesn’t know it was false and measures must be taken
forthwith = against s 7
o BECAUSE All four criteria MUST be met = makes this an absolute liability offence.
 Wholesale Travel does not have standing to challenge constitutionality. Problem with the provisions is that they
are enacted to apply to both individuals and corporations. If it applied exclusively to corporations, corporations
would be entitled to raise charter argument
 So, once they are held to be of no force or effect, they cannot apply to ANY accused, corporate or individual
 Timely reaction requirement was a form of absolute liability that violated s 7, and could not be justified under s1
o Is there a chance that someone morally innocent could still go to jail? YES.
 Company made error in advertising, despite having good intentions. If company did not know of
error, could not comply with (C ) or (d). Would lead to effective AL.
 Not an infringement of the charter to create an offence for which the mental element is negligence
o Negligence is the minimum fault requirement where an accused faces possible imprisonment
 The reverse onus of having the D establish due diligence was constitutional (SCC split 5-4)
o Because it assumes conviction before presumption of innocence
o Accused may be convicted while reasonable doubt still exists
Review
TH 12.1: Before today’s readings, for what types of offences would guilt be imposed so long as proof of at least one
mental element could be established (by the Crown byd) on a reasonable person standard?
 Offences with a core unlawful act that had aggravating consequences or circumstances
MR Elements
 Subjective is the standard for crimes;
 Objective liability only permissible where element is aggravating feature of unlawful act;
 Consequences (Eg. Was bodily harm foreseeable?)
 Circumstances (eg. Was the assault of a “sexual” nature?)
 Strict liability offences do not require proof of mental fault AT ALL. Only allow accused to raise defences.
Criminal Negligence: Objective Standards


Objective standards focus what the accused ought to have thought or contemplated about his or her
actions, as opposed to what he or she did actually think about
Whether the accused’s actions constituted marked departure from standard of care that should have been
taken by a reasonable person
Background for Tutton:
 Problem because it’s a philosophical struggle for the courts
 1. The Common Law has preference for subjective MR;
 2. BC Motor Vehicle recently held that courts will not punish Morally Innocent
39


3. Fear of imprisoning the stupid, ignorant or “different”
4. The difference btw crimes and torts
R v Tutton and Tutton 1989 p 450 [Must impose objective test where criminal negligence is considered, bc it is conduct
of accused under question, not intention or mental state***Majority is not current Law]
Facts: Child needed insulin. Believed if they prayed enough their child would live. Lack of subjective MR.
Issue: Whether the test for criminal negligence was subjective or objective? Can you have an offence that is fully
objective?
Decision: Split decision. All agree on new trial.
Reasons:
McIntyre: Lucid description of criminal negligence
 No difference between omissions and commissions that require subjective test. Always objective test.
o S 202: one is criminally negligent who, in doing anything or in omitting to do anything that it is his
duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
o The objective test must, therefore, be employed where criminal negligence is considered for it is
the conduct of the accused, as opposed to his intention or mental state, which is examined in this
inquiry.
o What is made criminal IS negligence.
 Negligence connotes the opposite of thought-directed action.
 Its existence precludes the element of positive intent to achieve a given result
 SO  what is sought to be restrained is CONDUCT, and its results.
 What is punished is not the state of mind, but the consequence of mindless action
 Conduct: which shows wanton or reckless disregard
o An objective standard must be applied in determining this question bc of the above difference btw
ordinary criminal offence (which requires proof of subjective state of mind), and that of criminal
negligence.
o Ie. Difference btw murder and manslaughter = intent.
 S 202 targets mindless but socially dangerous conduct
 Test is that of reasonableness (must be really unreasonable), and proof of conduct which reveals a
marked and significant departure from the standard which could be expected of a reasonably prudent
person in the circumstances, will justify a conviction of criminal negligence.
 Objective test may not be made in a vacuum. The nature of the questioned conduct, surrounding
circumstances must be considered.
o Consider fact existing at the time and in relation to the accused’s perception of those facts.
o NOTE: the accused’s perception of the facts is not to be considered for the purpose of assessing
malice/intention. ONLY to form basis for a conclusion as to whether or not accused’s conduct, in
view of his perception of the facts, was reasonable.
Lamer J:
 When applying the objective norm set out by Parliament in s 202 of Code must be made “a generous
allowance” for factors which are particular to the accused, such as youth, mental development, education
Wilson J:
 Criminal negligence requires crown to prove that the accused had a degree of guilty knowledge
 Must relieve against the harshness of the objective standard of liability, to ensure that the morally innocent
are not punished for the commission of serious criminal offences committed through criminal negligence.
 S 202 is ambiguous – should give provision interpretation consistent with broader concepts and principles
of law.
 “Reckless disregard for the lives and safety of other persons” = requires crown to prove advertence or
awareness of the risk that the prohibited consequences will come to pass.
 Holding that s 202 requires proof of the mental element of advertence to the risk or willful blindness to the
risk will not undermine the policy objectives of the provision
 Does not agree that offence of manslaughter by criminal negligence consists of conduct in breach of an
objective standard.
Pros and Cons
40
McIntyre
Simple, objective, only thing that
matters is the fact that you
perceived
Lamer
Craft reasonable person test that
uses a stupid/ignorant person
instead of regular reasonable person
(ie. Uses reasonable religious
parents)
Wilson
Simple, must perceive the risk and if
you do you are guilty, protects the
stupid, ignorant and different beliefs
R v Waite 1989 [Highspeed drunk driver killed 4 ppl, subject to objective test of criminal negligence. Mental element
in criminal negligence is the minimal intent of awareness of the prohibited risk or willful blindness to the risk]
R v Gingrich and McLean 1991 [Most Courts Followed!: Pro Objective! Mclean: company president; Gingrich: driver;
Truck brakes failed after experiencing problems over several days, result is fatal MVA, use Objective form of fault to
decide criminal negligence]
R v Hundal 1993 [Pro Objective! Unanimous decision! Dangerous driving charge: accused drove overloaded truck
through red light, MR for offence assessed objectively – BUT in context of all events surrounding incident]
Facts: Dangerous driving, ran red + killed driver.
Reasons: To insist on subjective element in connection with driving offences = denies reality. Driving made
automatically, with little thought.
 Objective test applied: accused can raise a reasonable doubt that a reasonable person would have been
aware of the risks in the accused’s conduct. Objective test applied with flexibility, not in vacuum.
 “If a trier of fact may convict if satisfied byd that viewed objectively, accused was, driving in a manner that
was dangerous to the public, having regard to all circumstances, including the nature, condition and use of
such place and the amount of traffic that at the time is or might reasonably be expected to be on such a
place.
 In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked
departure from the standard of care that a reasonable person would observe in the accused’s situation
 Next, let Accused explain reasons for departure ie. Sudden and unexpected onset of illness
 If not explanation, as in case at hand, not excuse for conduct
Note: La Forest J distinguishes from Tutton, where he advocated for subjective MR, by saying this is quasiregulatory offence (due to licensing) not a general offence of criminal negligence.
Movement to Cornerstone of Objective Liability: DUTY and RISK
Tutton: Well meaning parents who killed their child
Hundal: Driver who is no “ordinary criminal” but kills others
Westray Mining: Mining disaster the cause of poor business practice – not intentional harm
Features of Objective Liability = DUTY and RISK  Objective liability likely to be imposed
 Downsides philosophically
Constitutionality of Offence of Unlawful Act of Manslaughter + Objective Test for Crim Neg.
Homicide in Canada
222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
Kinds of homicide
(2) Homicide is culpable or not culpable.
Non culpable homicide
(3) Homicide that is not culpable is not an offence.
Culpable homicide
(4) Culpable homicide is murder or manslaughter or infanticide.
(Note: murder requires subjective foresight of death. + infanticide = mother who kills baby)
(5) A person commits culpable homicide when he causes the death of a human being,
41
(a) by means of an unlawful act; *** crime in Creighton
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his
death; or
(d) By wilfully frightening that human being, in the case of a child or sick person.
Exception
(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by
reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of
that human being by sentence of the law.
R v Creighton SCC p 457 [For Manslaughter, Mental element in relation to foreseeability of the consequence (Death)
must be established]
Facts: Accused injected cocaine into the victim’s body with her consent and she died. Charged with Manslaughter.
Did not intend for death when he injected them with drugs.
1. Issue: What needs to be foreseen in order to convict for manslaughter?
2. What is the proper standard of measurement for objective liability?
Decision: TJ erred in applying objective test, but result the same, appeal dismissed. Appellants conviction
confirmed.
Reasons:
DISSENT! Lamer CJ: Constitutionality of S 225(5)(a)
 Must be some special mental element with respect to death which gives rise to moral blameworthiness
which justifies stigma + sentence of murder conviction
 Does the special stigma attached to conviction make principles of fundamental justice require MR?
o Stigma is significant BUT does not approach that of those who “knowingly” or “intentionally take
life of another”
 Constitutionally required fault element of MR?
o DeSousa: constitutional sufficiency of offence of unlawfully causing bodily harm = fault requirement
based on objective foreseeability of bodily harm, coupled with fault requirement of predicate
unlawful act = satisfies charter
 General requirement that MR must relate to AR, MR formed in two ways
1. “Pith and Substance” of an offence is the consequence of the act (death) and fault must be
established beyond a reasonable doubt in regards to the consequence (death)
2. When consequence forms part of AR, but where essence of offence is conduct which is inherently
risky to life/limb, such offences are presumed to involve objective foresight of risk
 Ie. Proof of the accused having engaged in prohibited conduct where reasonable person
would have foreseen risk involved will serve as substitute evidence to prove existence of
such foresight.
 For manslaughter: must require, at minimum, objective foresight of the risk of death in order to comply
with s 7 of charter.
Lamer: The Objective Test:
 Accused can only be held to standards of reasonable person if accused capable of attaining that standard
 If the accused had enhanced foresight, the reasonable person will be invested with enhanced foresight
o Ie. Gosset: police officer’s experience with gun handling relevant to standard of care concerning
careless use of firearms.
o In case at hand: Reasonable person should be deemed to possess accused’s considerable
experience in drug use
o Note: Not a subjective test! If a reasonable person with the frailties of the accused would
nevertheless have appreciated the risk, and the accused did not in fact appreciate the risk, the
accused must be convicted
42

Rationale of incorporating capacity into objective determination = analogous to rationale underlying
defence of mistake of fact in crim law.
o Human Frailties: not intoxication, or voluntary drug use, emergency that divert’s one’s attention is
not
 Personal characteristics habitually affecting an accused’s awareness of the circumstances
which create risk ie. Illiteracy may be relevant to crime that required reading, not to
firearm etc. Reasonable person excepted to compensate for frailties as best they can
Lamer: Application of Objective Test:
 Whether reasonable individual in the circumstances of the offence and with Mr. C’s experience in drug use
would have been aware of the risk of death arising from the injection of the deceased with cocaine.
 He measured his own cocaine and measured hers. He knew that he was giving her a very dangerous,
lawfully prohibited narcotic, capable of causing death or serious bodily harm
 = Guilty verdict.
MAJORITY: McLachlin J + 3:
 Disagrees with CJ that common law offence of manslaughter is unconstitutional bc it does not require
foreseeability of death.
 Disagrees with CJ that standard of care on objective test varies with degrees of experience, education and
other personal characteristics of the accused. Should not hold accused to higher standard bc of his
experience.
Mclachlin: MR for Manslaughter
 Requires conduct causing the death of another person; and Fault short of intention to kill (fault = unlawful
act that results in death, or criminal negligence)
 Test is Objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the
context of a dangerous act. Foreseeability of risk of death not required.
o Is this constitutional?
 Stigma is unconvincing reason to require foreseeability of risk of death in Manslaughter
 Stigma attached to manslaughter is appropriate stigma (WTF!)
 Crim law traditionally aimed at symmetry
 Distinction btw appreciation of risk of bodily harm and risk of death in context of
manslaughter
 Risk of bodily harm is combined with established rule that wrongdoer must take his
victim as he finds him, and fact that death did occur = distinction disappears.
 To convict accused of assault causing bodily harm – when it causes death – deletes
thing skull rule (as outlined in Smithers: requires aggressors to take responsibility
for actions – even to death
 Exception to symmetry is necessary. The constitution does not always guarantee the “ideal”
ie. Symmetry nice in theory, but not possible.
 MR of manslaughter requires foreseeable risk of harm, not of death.
 Nature of Objective test establishing foresight of bodily harm:
o Should not personalize test like CJ did
o Objective MR not concerned with what accused intended or knew. Mental fault lies in failure to
direct mind to a risk which reasonable person would have appreciated.
o Negligence must constitute marked departure from standard of reasonable person (Hundal)
o Should be assessed objectively in context of all events surrounding incident – does not include
personal mental or psychological frailties of accused.
 Debate whether personal characteristics should be involved in objective test:
o 1. Criminal law may properly hold people who engage in risky activities to a minimum standard of
care, judged by what a reasonable person in all circumstances would have done  uniform
standard regardless of background, education or disposition
o 2. Morally innocent should not be punished  Accused must have a guilty mind
 Agrees that person should not be punished if he/she is not capable of appreciated the risk =
Should be only exception
o In negligence – since actual knowledge is not a factor, neither is personal characteristics  only
relevant to establish incapacity
43

MR question arises where it has been shown the accused’s conduct (AR) constitutes dangerous and
unlawful act (as in manslaughter), OR a marked departure from the standard of care of a reasonably
prudent person (manslaughter by criminal negligence).
 Guilt not determined in factual vacuum. Legal duty of accused particularized by nature of the activity and
the circumstances surrounding accused’s failure to take requisite care
 Analysis
o 1) Whether AR established? (negligence constitutes marked departure from standards of
reasonable persons in circumstances) ie. Carrying out activity in dangerous fashion, or when
circumstances make it dangerous
o 2) Whether MR is established? Objective foresight of risking harm is inferred from facts. Would a
reasonable person in the circumstances have foreseen risk of harm?
 Negated by reasonable doubt as to lack of capacity to appreciate risk
La Forest J: Agrees that Objective standard is constitutional. Favours position of Mclachlin.
Note: Murder and infanticide are precisely drafted. Manslaughter drafted by omission.
S 222 5(a) = important crime to consider
TH: For all the positives of proceeding this way, what is the biggest risk in creating objective liability standards?
 They heighten the chance than an ordinary, law-abiding Canadian will one day be prosecuted for
committing a crime.
 RISK: with objective liability some people are going to go to jail. McLaughlin would say, sort it out in
sentencing. Not a single objective liability crime with a mandatory minimum penalty.
TH: In Creighton, the majority of the Court rejects Lamer CJ's suggestion that "human frailties" of
offender be considered in measuring what reasonable person would do. One reason, implied but NOT
expressly stated in Creighton, might be that:

The more the reasonable person looks like the accused, the more the jury is likely to apply a subjective
standard
Note: Another example of asymmetrical crime = aggravated assault:
AR =proof of maiming, wounding, endangering life.
MR = Bodily harm
TH: Joe is charged with criminal negligence causing death. He was handling some construction equipment in an
extremely unsafe way (very unreasonably), and ended up killing another worker. Joe was taking prescription
medication at the time of the events which effected his perceptions. Because of the medication, he could not have
known that he was acting in a risky way
 Joe is most likely guilty of criminal negligence.
TH: The same facts as the previous question. Joe is not taking any medication, but he claims that he acted unsafely
because he was a brand new employee, who was very young, and had never received training.
 Joe is going to be guilty on McLachlin J’s Test, not Lamar J’s test (who included age, experience and
education)
NOTE: Lamar’s J test no longer standard today. McLachlin J’s test used today because holds everyone to common
minimum standard. This is a policy discussion, of how much we are willing to forgive human frailties.
TH: The crime of unlawful act manslaughter requires that the defendant commit an unlawful act that is objectively
dangerous. The MINIMUM act that may qualify for this is:
 A strict liability offence where person acts in a way that is a marked departure from the norm
 McLaughlin Says: Contravention of provincial acts that is a marked departure.
 In an offence based on unlawful conduct, a predicate offence involving carelessness or negligence must
also be read as requiring a “marked departure” from the standard of the reasonable person. As pointed out
in DeSousa, the underlying offence must be constitutionally sound.
44
Creighton and Beatty’s “Bottom Line” for Criminal Liability
 Absolute liability can never ground criminal liability
 “The law does not lightly brand a person as a criminal”
 Negligent or careless acts must constitute a marked departure from the norm
 Regulatory offences can ground criminal liability, but only where they are “Read up” to include a marked
departure standard
 The Charter sets the bare minimum  requires a marked departure standard.
Unlawful Act Manslaughter
 1) an unlawful act with all AR + MR of that crime of offence satisfied;
 2) act must have MINIMUM standard of marked departure from norm applied (note: if offence requires
subjective MR, does not use marked departure standard. Only imported where no subjective MR required)
 3) Act must be OBJECTIVELY DANGEROUS! (ie. Act of parking car with a marked departure, is not
objectively dangerous.)
 4) In the circumstances, bodily harm to another person must be reasonably foreseeable
Creighton and Symmetry **not that important, worth knowing, 99% of time MR will match AR
 Generally MR should match AR (McLaughlin agrees with Lamer)
 But not always where consequences are concerned (ie. Manslaughter, aggravated assault)
 Policy advantages (ppl should take care where they undertake unlawful act) refute presumption of
symmetry
 Foresight of death is not constitutionally required.
The MR of Negligence: Review
 McIntyre in Tutton: It is the conduct of the accused, as opposed to intention, which is examined”
 McLaughlin in Creighton: There is an MR element.
 “The failure to direct the mind to a risk…What should have been there!”
Why was the court focusing on MR?
 Discussion of negligence crimes occurred at same time Court was deciding upon constitutionality of MR
 BC Motor Vehicle – “there can be no criminal liability without fault”
 Martineau: the Stigma of crime requires mental fault
 Sankoff: Courts became pressured in language of fault, and requirement of MR for every crime
Key Points in Beatty
Issue: Is he guilty? No.
Primary Reason: A momentary lapse of attention is not a marked departure.
Dangerous driving is a crime of objective MR.
 As such, The accused’s subjective state of mind can ground liability.
 If he/she was aware of risks, criminal negligence is present.
 Actual state of mind of the accused is not irrelevant.
 The subjective MR of intentionally creating a danger for other users of the highway within the meaning of s
249 constitutes a “marked departure from the standard expected of a reasonably prudent driver…”
Court worried that jury will focus on consequence:
 It is the manner in which the motor vehicle was operated that is an issue, not the consequence of driving.
R v Beatty SCC 2008 [Momentary Lapse of attention, without more, cannot establish AR of Dangerous Driving]
Facts: Pickup truck cross median line of highway, killed 3 ppl. Not intoxicated. A says he must of fell asleep/ lost
consciousness for a moment.
Issue: Whether this momentary act of negligence was sufficient to constitute dangerous operation of motor vehicle
causing death s 294(4)?
Decision: Allow appeal, restore acquittals
Reason: (Charon J)
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
Conduct which departs from norm = basis for both civil and penal negligence. Important not to conflate
civil standard of negligence with penal negligence
o Civil = concerned with apportionment of loss
o Penal negligence = aimed at punishing blameworthy conduct, onus lies on crown to prove both AR
and MR. Penal negligence acquires constitutional dimension w/ prison involvement.
 Penal negligence: Modified objective test:
 1) Must be marked departure from civil norm – not a mere departure = question of
degree.
 2) Does not ignore actual mental state of the accused. Based on premise that
“reasonable person in accused’s position would have been aware of the risks arising
from the conduct”
o allowing for defences of incapacity and mistake of fact = avoid punishing
innocent
o Personal attributes ie. Age, experience, education = not relevant (Creighton)
o Reasonable person put in circumstances of accused
 AR: Trier of fact must be satisfied byd that accused, objectively, was driving in manner that was “dangerous
to public, having regard to 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.”
 MR: ToF must be satisfied byd that accused’s objectively dangerous conduct was accompanied by required
MR. In objective assessment, ToF should be satisfied on the basis of all the evidence, including eveidence
about accused’s actual state of mind, if any, that the conduct accounted to a marked departure from
standard of care reasonable person would observe. Must take explanation of accused into account.
 Application:
o AR: Driver’s failure to confine his vehicle to his own lane was in “all circumstances” highly
dangerous to others lawfully using highway.
o MR: Whether A’s manner of driving, viewed on an objective basis, constitutes marked departure
from norm
 A few seconds of clearly negligent driving
 TJ found that momentary lapse of attention insufficient to find criminal culpability. There
was insufficient evidence to prove marked departure from standard of care of prudent
driver.
McLachlin CJ (Binnie J and LeBell J Concurring)
 Hundal and Creighteon identify that: “marked departure” applies to AR of offence and that MR of offence
flows by inference of that finding, absent an excuse of incapacity
 AR: requires marked departure from normal manner of driving
 MR: generally inferred from marked departure in nature of driving. Based on finding of marked departure,
it is inferred that accused lacked the requisite mental state of care of reasonable person.
o Note: evidence in an case may negate or cast doubt on this inference
 Momentary Lapse of Attention:
o When he went past line. Is this capable of establishing AR and MR of offence?
o No – without more, cannot establish offence of dangerous driving.
o Heavy sanctions and stigma that follow from criminal offence should not be visited upon a person
for a momentary lapse of attention.
 Does not equal marked departure required for AR
 Even good drivers are subject to momentary lapses of attention
Fish J: Anyone who commits AR with requisite MR is guilty of dangerous driving.
 Fault element is not a marked departure, but the fact that a reasonably prudent driver in accused
circumstances would have been aware of the risk of that conduct, and if he could, he would have averted.
 MR can only be inferred from marked departure, not from mere fact that they operated car in dangerous
manner. Allow Acquittal.
Ratio: Momentary Lapse of Attention, without more, cannot establish AR and MR of offence of dangerous driving.
Essential to split up AR and MR and deal with them separately.
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R v Roy 2012 SCC [Cannot infer MR of marked departure, on AR of objectively viewed dangerous driving alone]
History: Dangerous driving causing death: up to 14 yrs in prison. AR: Prohibited conduct  operating car in
dangerous manner resulting in death and MR: marked departure from standard of care that a reasonable person
would observe in all the circumstances. TJ: inferred from fact that A had committed a dangerous act while driving
that his conduct displayed a marked departure from standard of care expected of reasonable person = error.
Facts: A pulled motor home from stop sign onto highway into path of oncoming tractor-trailer. Death of A’s
passenger. Collision left A with no memory of circumstances or surrounding events.
Decision: allow appeal enter acquittal
Issue:
Reasons:
 TJ made decision based on Hundal and BCCA Beatty, bc SCC Beatty not yet released
 TJ concluded that A conduct, from stop sign onto highway, with visibility limited by fog, into path of
oncoming traffic, specifically the tractor trailer = was objectively dangerous immediate conclusion that
A’s driving constituted marked departure.
o Due to memory loss of A = no explanation
 TJ did what Beatty was against. He inferred simply from fact of driving, objectively viewed, dangerous that
A’s level of care was a marked departure
 Beatty said:
o AR: ToF should not leap from consequence of driving to conclusion about dangerousness. Must be
meaningful inquiry into manner of driving.
o MR: Whether the dangerous manner of driving was the result of a marked departure from the
standard which a reasonable person would have exercised in the same circumstances.
 Note: Driving which is simply dangerous will not on its own support the inference that accused departed
markedly from standard of care of reasonable person in circumstances
 TJ did not correctly apply the law. Cannot infer marked departure from AR of dangerous driving.
Key Points in Roy
 SCC was right to correct the TJ. TJ did not separate AR and MR as dictated by Beatty.
 Courts began to use “objective” mental fault to respond to needs of MR
 The problem: objective MR is almost a contradiction in terms
 Criminal negligence is aimed at socially blameworthy activity with high risk (AR). Roy + Beatty
Mental Disorder and Automatism
Procedural Elements of the Mental Disorder Defence
NCRMD: Not Criminally Responsible by virtue of Mental Disorder
 What do we do with mentally ill criminals?
Choices involving Crimes and Mental Disorder
 MR demands knowledge and understanding  But! Need to preserve public safety
 What about accountability? (Fake defences)
 Public demands for justice
 Continuing evolution of psychiatric knowledge
Unfitness to Stand Trial
 Directed towards the accused’s condition at the time the offence was committed, but mental disorder may
persist/arise afterwards
 S 2 of the Code:
o “unfit to stand trial”: unable on account of mental disorder to conduct a defence at any stage of the
proceedings before a verdict is rendered or to instruct counsel to do so, and in particular, unable on
account of mental disorder to
 understand the nature or object of the proceedings
 understand the possible consequences of the proceedings, or
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


 communicate with counsel
s 672.22: accused presumed fit unless court is satisfied on balance of probabilities that accused is unfit
s 672.23(1): where court has reasonable grounds at any stage of proceedings before verdict is rendered, to believe
the accused is unfit to stand trial, court may direct, of its own motion/application of the accused/prosecutor, that
the issue of fitness of the accused be tried
o (2): An accused/prosecutor who makes application has burden of proof
s 672.32(1): A verdict of unfit to stand trial shall not prevent the accused from being tried subsequently where the
accused becomes fit to stand trial
o (2): the BoF that accused has become fit is on party who asserts it, on balance of probabilities
Bob killed Gina in 2011. After being arrested in 2012, Bob was struck on the head, and eventually developed a
brain injury that left him mentally diminished. He can eat and walk, but he has roughly the intellectual capacity of a
3 year old. How are the murder charges likely to be resolved?
 Unlikely to ever find out  Because he is not unfit to stand trial.
Fit to stand trial vs. NCRMD
 Passing the Fit to stand trial is an easier test to meet than NCRMD.
 Why? Objective of Fit to Stand trial is to ensure it is “fair” to try them
 Must be fit to stand trial before being found NCRMD
R v Whittle 1994 SCC p 778 [Sopinka notes on Unfit to Stand Trial: Limited cognitive capacity to understand process
and to communicate w/ council]
Reason: (Sopinka J)
 s 16 of code adopts that such person are sick as opposed to blameworthy and should be treated, rather than
punished  but not exempt from being tried
 Test of unfit to stand trial now codified in s 2 of code
 Note: SCC Decision in R v Demers hold possibility that proceedings against accused found unfit for trial could be
permanently stayed if that person is likely to never be fit, and does not pose significant threat to safety of public
o If they are dangerous – they will continue to be held
Who can Raise the Mental Disorder Issue?
R v Swain SCC 1991 p 780 [CANNOT BE FORCED INTO NCRMD VERDICT. Crown can raise defence of insanity after trier
of fact has found accused guilty and b4 offence is charged. Can also raise defence if accused, through testimony, puts
his capacity for criminal intent at issue]
Facts:
Issue:
Decision:
Reason: Lamer CJ
 Wrong if evidence of insanity influenced jury’s decision on issue of whether accused committed the alleged
act, but discretion of TJ to refuse to allow Crown to raise insanity unless there is convincing evidence will
not prevent this from happening
 Ability of Crown to raise evidence of insanity over accused’s wishes, does not interfere with accused’s
control over conduct of his defence
 Objective of CL to allow crown to do this:
o 1) To avoid the conviction of an accused who may not be responsible on account of insanity, but
who refuses to adduce cogent evidence that he was insane
o 2) The protection of public from presently dangerous persons requiring hospitalization
 1st Instance: Suggests that, to be constitutional, should be tried after accused found guilty and before
offence charged. Then, the verdict of not guilty by reason of insanity would be entered. This would
safeguard accused’s right to control his defence and meet above objectives
 Note: but the accused can raise it any time!
 2nd instance: Crown can also raise insanity if the accused’s own defence puts his capacity for criminal intent
in issue.
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La Forest J: Disagreed that Crown can raise insanity in second instance. Does not survive charter scrutiny. Does not
satisfy minimal impairment branch of Oakes test, bc not the least intrusive means
Ratio:
Note: If the crown could raise NCRMD on their own volition, it would influence the jury because they don’t want
him on the streets. If the accused raises an Alibi, Crown must still prove that they did committed the Act. Cannot
force the accused to claim NCR. IF you have evidence that person is mentally ill, does not mean that section 16
defence is being run.
TH: If the accused raises evidence of a mental disorder which he/she says was the reason he committed the act
which of the following is true:
 False: The accused must argue NCRMD: Evidence of mental illness does not automatically mean NCRMD is
the only defence in play. He can still argue no MR.
 False: The Crown must convince jury the accused is NCRMD:
 False: The crown no longer has to prove guilt of the act beyond a reasonable doubt; it can concentrate on
NCRMD only: CROWN MUST PROVE HE COMMITTED THE AR.
 TRUE: The accused can argue that he is not guilty because he lacked MR. The Accused can always argue
this.
Burden of Proof
R v Chaulk and Morrissette SCC 1990 [presumption of sanity violates presumption of innocence, but its justified]
Facts: Majority of court held that s 16(4) of code which said: everyone shall, until the contrary is proven, be
presumed to be and have to have been sane, violated s 11(d) of the Charter, but was a reasonable limit under s 1
Issue:
Decision:
Reason: (Lamer CJ) (Majority) [violates s 11(d), saved by s (1)
 Presumption of sanity violates presumption of innocence
 If accused found insane, not found guilty. So “fact” of insanity precludes guilty verdict
 S 16(4) allows a factor which is essential for guilt to be presumed, rather than proven by the Crown BYD
 Moreover, requires accused to disprove sanity on balance of probabilities, violates presumption of
innocence bc permits conviction in spite of reasonable doubt in the mind of ToF
 Objective of s 16(4) is to avoid placing an impossible BoF on crown and to thereby secure the conviction of
guilty = sufficiently important to warrant limiting const. rights
 There is proportionality btw the effects of the measure and the objective
 Justified by s 1 because it is nearly impossible to prove sanity, let accused prove it.
McLachlin J (Does not violate s 11(d))
 16(3) did not violate s 11(D) of charter
 To conceive insanity narrowly violates language in s 16 of code which refers to capacity, rather than states
of mind
 Views s 16 as: the notion that attribution of criminal responsibility and punishment is morally and legally
justifiable only for those who have the capacity to reason and thus choose right from wrong
 Whether presumption of sanity offends presumption of innocence? No. S 11(d) simply another way of
saying crown must prove accused’s guilt byd. Issue of sanity does not affect the prosecutions burden to
prove byd guilt. Merely relieves crown from establishing that accused has capacity
Wilson J: Dissent: Provision violated s 11(d) and is not justified
 Presumption of sanity and reverse onus on accused to prove insanity conflicts with s 11(d)
 So, government would have to prove that it was a social problem that sane people were escaping crimes do
due to tenuous insanity pleas (first requirement of oakes)  R has not shown that this has been witnessed.
 Because: Wilson was a strong proponent of Charter, believe gov should fight to justify.
Ratio: presumption of sanity violates presumption of innocence, but its justified
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Consequences of Mental Disorder as a Defence
Winko v BC (Forensic Psychiatric Institute) 1999 SCC p 785 [Part XX.1 of Code achieves goals of fair treatment of
mentally ill and public safety, not unconstitutional]
Facts:
Issue: Is Part XX.1 of code unconstitutional?
Decision: New regime does not violate s 7 or s 15
Reason: Mclachlin J (+ 6)
 Part XX.1 of code addresses mental illness
 Winko submits that it violates his right to liberty, security of person and equality
 J says: this protects the liberty, security of persona and equality interests of those accused who are not
criminally responsible on account of mental disorder by requiring that an absolute discharge be granted
unless court/review board is able to conclude that they pose significant risk to safety of public
 Part XX.1 was a response to Swain (where court struck down provision for automatic, indefinite detention
of NCR accused on basis that it violated s 7)
o New approach achieves twin goals of fair treatment and public safety
o Recognizes that mentally ill are not inherently dangerous
o Treatment, not incarceration, is necessary to stabilize mental condition and reduce threat to public
o Protect society on long term
o Protect offender: provides opportunity for treatment, not imposing punishment
Mental Disorder as a Defence
 If “defence” established, finding is NCRMD.
 No prison – treatment facility where status reviewed
 Once the risk of safety to the public is removed, patients free to go (sometimes with conditions).
 Must have Disease of the Mind
 In a Trial by Jury:
o The trial judge decides if his symptoms constitute DoM
o The jury decides if he actually suffers from DoM
 You can get an NCRMD designation, in a situation where you didn’t know it was “legally wrong”, so mistake
of law is permissible where NCRMD applies.
TH: Assume the NCRMD "defence" does not exist. Joe suffers from a mental disorder and kills two people. Joe
explains that he did this because: (a) he thought killing people was legal; and (b) he believed the victims were
demons coming to kill him and he had to defend himself. Assume this is TRUE and Joe is believed. Using
conventional criminal law principles:
 Under A) he would be convicted because it is mistake of law, and under b) he would be acquitted because it
is self defence.
Defence of mental disorder
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a
mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission
or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility
by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal
responsibility is on the party that raises the issue.
Note: Mental disorder: defined in s 2 as disease of the mind
 Filters out drug use, transitory states
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R v Simpson 1977 ONCA p 788 [Disease of the Mind includes personality disorders; DoM is a question of law]
Issue: Whether the personality disorder which A suffers constitutes “disease of the mind” as legally defined?
Decision: Personality disorders are capable of constituting disease of the mind.
Reasons: Whether one has disease of mind is a question of Law  up to judge to decide. Disease of the mind is an
evolving concept, with addition of medical knowledge.
Cooper v The Queen 1980 SCC p 789 [To support defence of insanity, disease must be of such intensity to render
accused incapable of appreciating the nature and quality of the violent act or of knowing that it was wrong.]
Issue: What is legal definition of disease of the mind
Decision:
Reasons: (Dickson J)
 If incapacity is caused by drugs/alcoholism or with transitory states (concussion), does not suffice for
NCRMD
 Should be properly resolved by the judge
 Simply asking psychiatrist will lead to different results
 Support for liberal legal construction  could include every physical or mental recognizable disorder
 R v Rabey: if there is any evidence that A suffered disease, question of fact must be left with jury.
 To support defence of insanity, disease must be of such intensity to render accused incapable of
appreciating the nature and quality of the violent act or of knowing that it was wrong.
TH: Hypothermia, caused by extreme cold, is known to cause delusions and improper thinking. According to
Dickson CJ, this is NOT sufficient to provide the basis that the accused suffered from a "disease of the mind".
 BECAUSE: it is a transitory state, not a disease of the mind.
TH: Transitory states are excluded from s 16:
 Because it make no sense to declare someone who committed a criminal act under these states NCRMD –
they have no disorder to be treated. This means they would have an NCRMD on their record, AND would
get out right away.
TH: Even though s 16 is broad: Tons of defendents cannot pleased NCRMD because it is hard to show that the
accused was incapable of appreciating the nature and the quality of the act or knowing it was wrong.
Appreciating the Nature and Quality of the Act
 Hypothetical showing Keys to s 16
o Shooting a gun
 Unaware of WHAT you are doing: thought you were changing channels on a tv
 Have NO Understanding of the Result: did not know that shooting would result in injury,
would cause them to bleed etc.
 Did not know that act was legally and morally wrong: (explained later)
Cooper v The Queen 1980 SCC p 792 [was the accused at the very time of the offence by reasons of DoM, unable to
appreciate not only the nature of the act, but the natural consequences that would flow from it]
Facts: A chokes someone to death with hands.
Reasons (Dickson J)
 “Appreciating the nature and quality of an act or omission” make it clear that cognition is not the sole
criterion. Emotional, as well as intellectual, awareness of the significance of the conduct is an issue.
 Appreciate: estimation + understanding of the consequences
 A may have known the nature/quality of act of choking, but difference to suggest that he was able to
appreciate its nature/quality in being aware it could result in her death. A could have been capable of
intending bodily harm and choking girl, but not having intended her death
 Code: must appreciate factors involved in act and have mental capacity to measure and foresee
consequences of violent conduct
 Test:
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1) Was the accused person at the very time of the offence by reason of disease of the mind, unable
to appreciate not only the nature of the act but the natural consequences that would flow from it?
Note: This has been followed in subsequent SCC judgement
o
Simpson 1977 p 794 [Appreciation does not import requirement that act be accompanied by appropriate feeling
about effect of act on other people]
R v Abbey SCC 1982 p 794 [A person who by reason of disease of mind does not “appreciate” the penal consequences
of his actions is NOT insane within the meaning of s 16(2), must go to MR of offence]
Facts: A charged with importing cocaine and possession for purpose of trafficking, relied on defence of insanity. A
agreed to buy cocaine for himself and friends in Peru, and upon cursory check by officials was caught. Psychiatrists
concluded that A suffered from disease of mind known as hypomania (believes they are invincible/safe from the
law), but differed as to whether he was capable of appreciating nature and quality of acts . Knew what he was
doing and knew it was wrong. TJ found he was insane, and his delusions prevent him being in capacity. Appeal
dismissed by BCCA.
Issue: Does it make A insane if he was incapable of appreciating penal sanction?
Decision: No, but A is insane for 2 delusions.
Reason:
 TJ ERRED: in finding that A met defence of insanity when he could not appreciate PENAL SANCTION of
action.
 A appreciated that he was bringing cocaine, knew it was wrong, but believed he would not be punished if
caught. He felt he was powerful or safe  impaired his judgement
 He believed he had “astro-travelled” to Vancouver already, and his body was simply on plane
 TJ said he was incapacitated to the degree required by tests of s 16(2)
 Delusion negatives the element of crime, MR
 A delusion which renders accused incapable of appreciated penal consequences, that does not go to MR
 Secondly: TJ erred in giving effect to defence of “irresistible impulse”. TJ DID NOT ERR
o A thought he was irrevocably committed to task
o This rendered Abbey legally insane
o Irresistible impulse defence may be symptom of disease of the mind which may give rise to defence
of insanity. (Irresistible impulse on its own is not a defence!)
 Abbey suffered from 2 delusions 1) mysterious force would protect him 2) believed himself irrevocably
committed to importing cocaine = together these are enough to render him incapable of appreciating the
nature and quality of his acts
Ratio: A person who by reason of disease of mind does not “appreciate” the penal consequences of his actions is
NOT insane within the meaning of s 16(2), must go to MR of offence
Knowing that the Act is Wrong
R v Chaulk and Morrissette SCC 1990 [Accused incapable of knowing that act is Legally AND Morally wrong]
Facts: Accused get convictions of first-degree murder. A’s entered home, took valuables, stabbed/hit occupant to
death. Week later, turned themselves in. Defence of insanity: expert evidence said victims suffered from psychosis,
that they had the power to rule the world and killing was necessary means to that end, they knew laws existed but
thought they were above ordinary law
Issue: What is the meaning of the word “wrong”
Decision: Order new trial because Schwartz is not correct
Reason: Lamer CJ (+ 5): Extends compassion to those suffering from Mental Illness!
 TJ said wrong: is “it was a criminal act or legally wrong”
 A’s submit that wrong should have been “morally” wrong. R said in serious crimes, difference btw morally
and legally is so narrow – not worth defining.
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
Schwartz: Majority: wrong means no more than capacity to know that what one is doing is against the law
of the land. (ie. Only legally wrong)
 Dickson J: Dissent in Schwartz: Wrong must mean contrary to the moral standards of reasonable men and
women
o Would not open the floodgates, what is illegal and immoral does not often differ
o Secondly, morally wrong is not from his viewpoint, but from society’s
 Lamer thinks Schwartz was wrongly decided, and does not meet objectives. Had effect of expanding scope
of Criminal responsibility unacceptably to include persons who, by reason of disease of mind, were
incapable of knowing that an act was wrong according to normal standards of society, even though they
knew it was a crime
 Court must determine whether an accused was rendered incapable, by fact of his disorder, of knowing that
the act committed was one he ought not to have done
o SO wrong = must mean more than legally wrong, knowing it was contrary to the law
o Must also know that act is morally wrong according to moral standards of society
 Fact that they don’t know that it is morally wrong, even if they know it is legally wrong, will get them off.
McLachlin J: Dissent: NARROW!
 Accused must just be capable of knowing that the act was in some sense “Wrong”. If the accused has this
capacity, it is neither unfair nor unjust to submit the accused to CR or penal sanction
 There are too many practical difficulties in determining what is morally wrong
 An individual knows or is presumed to know the law, and the fact that their moral standards are at
variance is not an excuse
 Deficiency of moral appreciation should not render them not subject to the law
Supplementary reading on Andrew Goldstein [Compulsive Acts that you know are wrong and know what you are
doing are criminally liable!]
 Suffered from schizophrenia
 Convicted of murder because defence of insanity in US focused on mental awareness, and did not protect
against those who had mental awareness but lacked physical control; also because the jury was worried he
would walk and they feared for their own safety
 Scholars say: A bar against a defence involving physical control is unjust
 Goldstein would have been found guilty of murder in Canada! Impossibility to resist an impulse is not a
defence.
 Involuntariness doesn’t apply, his action is not involuntary – he had physical control.
TH: People who suffer from illnesses that "compel" them to commit crimes (like Mr. Goldstein) do not fall within s.
16 because these compulsions do not affect what they are aware of when the crime is committed. What do you
think is the most likely reason for this?
 The fear that Paul Bernardo and other serial offenders might be able to show they had no choice but to
commit the acts they did
In which of the following circumstances would the accused have the greatest difficulty in establishing an NCRMD
verdict? Assume the accused is charged with murder by shooting the victim, and that in each case the wrongful
belief is the product of a disease of the mind.
 The Accused believed that the victim was his father (it wasn’t), who the accused hated
o He has no right to kill his father, and he can appreciate that killing the father is morally wrong.
R v Oommen SCC 1994 [If mental disorder creates a delusion that makes action not wrong at time of offence, even
though you generally understand Canadian law, you can claim NCR]
TJ thought that A was not entitled to NCR defence, because he knew that killing was wrong.
SCC focused not on general capacity was right from wrong, but on a particular act within the circumstances to
know right from wrong.
SO: if your mental disorder, creates a situation that makes your action not WRONG
TEST FOR NCRMD: Are they responsible?
1. Does the Offender have general sense of law in Canada?
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2. Do they know that it is morally wrong? (Chaulk)
3. Are they factually situated within these spaces/world at the time of the offence, working within his
delusion (Oommen)?
TH: In 2010, Bob killed Gina in circumstances that would normally equate with murder. In which of the following
scenarios, is Bob most likely to raise NCRMD as a verdict successfully:
 Bob suffered from schizo that caused him to have severe delusions. Before trial in 2012, he got proper
medication and no longer suffers.
R v Landry 1988 p 810 [Example of Oomen]
Facts: A charged with first degree murder after killing friend. A had serious mental illness from schizo, believed it
was necessary to kill the deceased and save world.
Decision: Quebec Court of Appeal allow appeal and substitute verdict of not guilty by reason of insanity
Reason: Landry, who knew he was killing and that it was unlawful, he was incapable of appreciating the nature and
quality of his act, bc at the moment, he thought he was god and friend was Satan.
SCC: Accused suffered from disease of the mind and was rendered incapable of knowing that the act was morally
wrong in the circumstances.
Automatism

It is a principle of fundamental justice that every criminal act be voluntary
Rabey v The Queen 1980 p 812 [NO Longer the Law!: Internal trigger = s 16, external trigger = automatism; Anything
external that would not cause an average person to go into a dissociative state must be dealt with under s 16.]
Facts: A charged with Assault causing bodily harm when he assault female student with rock after she told him he
was “just a friend”. A argued he was in a state of automatism, a temporary dissociative state. Crown argued, if A
was in a state of automatism, should be classified as a mental disorder. He argues, s 16 covers disease of mind so
if now disease of mind, he argued he lacked AR/MR. A acquitted at trial with tj finding insanity defence should not
apply. Crown successfully appealed at ONTCA, stating that physical blow could not ground defence in non-mental
disorder automatism.
Issue: How do we decide if Rabey’s state was internal or externally triggered?
Decision: Conviction.
Reason: Ritchie J + 3
 Automatism: When one was in a state where, though capable of action, is not conscious of what he was
doing. A argues this defence, but not NCRMD
 The central question in deciding any case involving automatism is whether or not the accused was
suffering from a disease of the mind
 Whether or not such a state amounts to disease of the mind is a question of law for the judge to determine
 Judge must draw the line between: a malfunctioning mind arising from internal cause, as opposed to
malfunctioning of the mind, which is transient, produced by external factors ie. Concussion
o TH: Internal causes must be addressed under s 16, while external causes can be treated as
automatism
 Ordinary stresses and disappointments of life do not constitute external cause constituting
explanation for malfunction of mind
o Ask: Would a normal person have reacted that way?
 Dismiss the appeal, verdict of convicted
Dissent: Dickson J
 Automatism is easily feigned
 Credibility of justice system at stake if person who commits violent act be given acquittal on a plea of
automatism
 Flood gates if psychological blow automatism is recognized by law
 Appellant suffered dissociative state
54





Cannot accept notion that extraordinary external event (ie. Emotional shock) can cause state of
automatism
The fact that other people would not have reacted this way should not obscure reality
Defence of automatism should be available whenever there is evidence of unconsciousness throughout the
commission of the crime
Trial judge negated act of passion, lack of self control or impulsiveness.
Allow appeal, restore the verdict of acquittal.
Note: Rabey didn’t argue NCRMD because it “doesn’t fit” disease of mind, argues non-insane automatism so that he
can be acquitted
TH: Someone who suffers from epilepsy and suffers a seizure that leads to a criminal act. Epilepsy is an internal
cause, but is a physical disease and it illustrates what’s wrong with Rabey.
TH: Which of these most closely characterizes reasoning of Ritchie J: Anything external that would not cause an
average person to go into a dissociative state must be dealt with under s 16.
R v Parks 1992 SCC [Sleep walking is valid for defence of automatism]
Facts: Man kills mother in law, stabs father in law in their beds. Drove 23 km to get there. Drove to police station
after and confessed. At trial, A presented defence of automatism, stating he was sleepwalking (has always slept
deeply, history in family, stressed). Charged with first degree murder of mother, and attempted murder of father.
TJ put defence of automatism to jury  Acquitted of first degree, second degree and attempted murder. CA
unanimously upheld acquittal.
Issue: Is sleep walking automatism?
Decision: yes, decision dismissed. Victim acquitted.
Reasons: Lamer
 The respondent was sleepwalking at the time of the incident, sleep walking is not a neurological,
psychiatric or other illness: It is a sleep disorder, there is no medical treatment apart from good health
La Forest Concurring
 Only those who act voluntarily with the requisite intent to commit and offence should be punished by
criminal sanction. The concerns of those who reject these underlying values of our system must be
discounted.
Result: Rise of automatism cases  led to Stone.
R v Stone 1999 SCC p 818 [Disease of Mind Inquiry Holistic Approach; how to determine non-mental automatism =
focus on causes of automatism, continuing danger, other policy concerns; Judge choses what defences left with jury]
Facts: A charged with murder after stabbing wife 47x, after she insulted him. A raised defences of both non-mental
disorder automatism and mental disorder automatism, but judge only left defence of mental disorder automatism
to the jury. Stone argues automatism, mental disorder and provocation.  ie (involuntary, voluntary but caused by
mental illness, intentional but lost control). Note: Arguing in the alternative is always possible – as long as there is
air of reality. Accused appealed on this issue.
Issue: How can accused demonstrate that mere words caused him to enter an automatistic state such that his
actions were involuntary and not subject to criminal sanction?
Decision:
Reason:
 Automatism (Rabey): term used to describe unconscious, involuntary behaviuor, the state of a person who,
though capable of action is not conscious of what he is doing. It means an unconscious involuntary act
where the mind does not go with what is being done.
 Instead of “unconscious” use “state of impaired consciousness, in which an individual, though capable of
action, has no voluntary control over that action.
 A claim of non-insane automatism entitles accused to an acquittal.
 A claim of insane automatism: subsumed under the defence of insanity leading to the special verdict of
not guilty on account of insanity, whereas automatism not resulting from disease of the mind leads to an
absolute acquittal
o Successful claims of insane automatism trigger s 16 and result in verdict of NCRMD
55

Burden of Proof: Must be on the defence to prove involuntariness on a balance of probabilities to
the trier of fact (Reverse onus is justified)
 It is for the TJ to determine the mental conditions which are included in “disease of the mind” and whether
there is any evidence that the A suffered from abnormal mental conditions comprehended by that term
 New approach to disease of the mind inquiry
o Informed by internal cause theory, continuing danger theory and policy concerns raised in this
Court’s decisions in Rabey and Parks
o Internal Cause Theory:
 Undertaking comparison to determine whether normal person might have reacted to
trigger by entering automatistic state. Evidence of an extremely shocking trigger necessary.
 Not subjective – contextual objective test
 Impact of objective comparison is limited, only as analytical tool, not definitive answer
o Continuing Danger Theory
 Need to ensure public safety
 Any condition which is likely to present a recurring danger to the public should be treated
as disease of the mind
 Internal Cause and Continuing Danger are factors to determine “disease of the mind”
o Other Policy Factors
 Some cases where both above factors are inconclusive
 If so, holistic approach to disease of mind must permit judges to consider policy concerns
which underlie the inquiry
 Policy concerns assist TJ in answering the fundamental question of mixed law and fact
which is at the centre of the disease of the mind inquiry: whether society requires
protection from the accused, and whether the accused should be subject to
evaluation under the regime contained in part XX.1 of the Code
 Application to present Case:
o Approach taken by TJ did not impair A’s position
o First stage: Whether A had established proper foundation for defence of automatism, TJ stated
there must be unconsciousness throughout commission of crime (
o Second: Disease of mind stage: evidence raised only Words of victim as cause of automatism. Based
on this evidence and precedent of similar case, TJ found that only mental disorder automatism
should be left with jury.
 Should have used holistic approach
 However holistic approach supports Tjs finding
Dissent: Binnie J (+ 3)
 Should not reverse burden of proof, should be left to parliament
 A argues that he was entitled to have issue of voluntariness put to jury.
 He was found to be sane, and convicted of manslaughter
 A argues that the act of killing, while not the product of a mentally disordered mind, was nevertheless
involuntary
 He was entitled to jury’s verdict on whether or not his conduct, though sane, was involuntary
 Introduction of objective person test inputs objective fault standard into the BoF
NOTE: What is left under Epilepsy, hyperglycemia. Sleep-walking is now disease of the mind (bc it will happen
again)
 If parks was decided after stone, he would be NCRM of murder
TH: In dissent, Binnie J disagrees that a dissociative state should be measured from perspective of whether
average person would react that way, claiming this would inject an objective fault standard in the Crown's burden
of proof. How would Bastarache J. likely respond to this?
 Does not create objective fault standard. Simply asks are you automatic or are you NCRMD. Nothing wrong
with looking to reasonable person standard  then must go to NCRMD
56
R v Luedeck 2008 ONCA p 835 [Decision of Stone maybe influenced by Winko, Looking at Automatism post Stone – 2
big changes]
Facts: Sexual assaults someone and he’s asleep when he’s doing it.
Reasons: (Doherty JA)
 Stone alters approach to automatism in two ways
o 1) TJ must begin from premise that the automatism is caused by a disease of the mind and look to
evidence to determine whether it convinces him that conditions is not a disease of the mind
(contrasts with Parks, where opposite occurred)
o 2) Stone accepts multi-factored approach to policy component of characterization set out in parks,
it refocuses the continuing danger aspect
 TJ must not limit their inquiry only to the risk of further violence while in automatistic state
 Scholar says: had parks been tried on stone test, only defence left to jury would be mental
disorder automatism because his triggers for sleepwalking are likely to reoccur and he may
sleepwalk again = danger to public.
o Was stone influenced by WInko (released a week later), which required absolute discharge of
anyone found NCRMD unless the court determines that the individual poses a significant threat to
public.
Note: Effect is that automatism is rarely open – it has been killed off.
Intoxication




Note: Much more prominent than NCRMD or Automatism
To what extent should voluntary, self-induced intoxication by alcohol/drug afford defence to prosecution’s
case in negating proof of voluntary AR or MR of the offence?
Seems to compel acquittal – but if person can become irresponsible through self-induced intoxication,
policy reasons deny him defence
Furthermore: empirical question; what is the effect of drug/alcohol, time of consumption, condition of
consumer?
Alcohol and Drugs




Analytically, no such thing as defence of intoxication
Strong correlation btw abuse of alcohol/drugs and subsequent criminal behavior
When can an offender claim that his conduct failed to meet the requirements for responsibility bc their
intoxicated state prevented them from satisfying the MR of the offence, or even the AR?
Policy concerns of letting drunk get off
Drinking and MR
TH: "if an intoxicant can negate the mental element required for an offence... the logic of the law seems to compel
an acquittal". The logic described here is primarily the fact that:
 Alcohol and drugs affect people’s perceptions, causing relevant mistake of fact
 If you don’t know the relevant facts, You are guilty. You must have intended the consequences of that
criminal act.



Angry drunk = still guilty for MR  Still have intention
Being more susceptible to commit crime ie. Lack of inhibition.  Still have intention
Where drinking is the AR (Driving while impaired), no problem either
TH: Most people who drink alcohol and commit crimes are punishable bc their drinking amounted to recklessness
which should suffice to convict for most MR crimes. TRUE
 Recklessness: awareness of consequences and proceeding anyways (buzzanga)
Voluntary intoxication
 Involuntary intoxication
57
Is when one consumes alcohol/drug and is unaware. If offence is subsequently committed,
policy/logic agrees accused should have available defence of lack of MR or AR.
o Takes drug as per doctors orders: drug not taken in pursuit of side effects. Characterized as
involuntary not because taking of drugs was unconscious act, but consequences were not
desired/foreseen Has a defence
o When involuntary intoxication negates the knowledge or intent required  not liable. But for
crimes that are strict liability offences that only require AR you can still be liable?
Voluntary:
o Difficult to conclude that when voluntarily consumed, that resulting drunkenness is not voluntary
(Even if new user)
o One who takes drugs for kick/a trip may have a limited defence
o

Intoxication and the General Principles of Liability: The Beard Test
 HISTORY: Drinking itself was wrong Alcohol seen as aggravating factor  shift to alcohol being
irrelevant shift to difficulty in concluding that alcohol was irrelevant to culpability
 Conclusions of Beard
1. That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged… The
law takes no note of the cause of the insanity. If actual insanity in fact supervenes, as the result of alcoholic
excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

#1: is uncontroversial, merely recognizes that alcohol giving rise to insanity can result in finding of
NCRMD. Not likely relevant to criminal cases as disease of the mind is characterized usually as not
temporary
2. That evidence of drunkenness which renders the accused incapable of forming the specific intent
essential to constitute the crime should be taken into consideration with the other facts proved in order to
determine whether or not he had this intent.
 #2: Most controversial. Treatment of more severe forms of intoxication COULD impact ones intention.
The evidence of drunkenness should be taken into consideration in assessing the accused’s mental
state where it “renders the accused incapable of forming the specific intent essential to constitute the
crime”
a. Interpreted as creating two specific categories: general intent crimes and specific intent crimes
b. General Intent: intoxication irrelevant to liability
c. Primary flaw: the fact that those charged with crimes of general intent cannot raise intoxication,
even when such intoxication may have deprived them of the necessary MR to commit the offence.
3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent
necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he
more readily gave way to some violent passion, does not rebut the presumption that a man intends the
natural consequences of his acts.

#3: Unproblematic. Alcohol loosens inhibitions/makes you angry and people participate in behavior
they would not normally. Do not confuse intention w/ motivation. Mild intoxication does not negate
one’s intention or recklessness. Person cannot avoid crim liability by claiming that being intoxicated
prevent them from distinguishing btw right and wrong
TH: s. 253(a) of the Criminal Code with impaired driving. Must infer MR element which is “impaired”.
He says he is not impaired. The judge believed him when he said he didn’t know he was not impairedIrrelevant
 Mistake of Law. Once its established he was voluntarily drinking, does not matter if he didn’t know he was
impaired.
The Legacy of Beard
 Law recognizes compromise with respect to how alcohol/drugs affect MR
 Drunkenness and insanity
 Drunkenness does not ordinarily provide lack of knowledge
 It CAN show that “accused incapable of forming specific intent essential to constitute crime”
58

A classic illustration of what happens when strict law (need for MR) meets important policy (drunks
should be held accountable)
Specific vs. General Intent
Specific
 Crimes with Ulterior intent or purpose
 Ie. Murder, Theft
 Intoxication can NEGATE the “specific”
intent
 NOTE: YOU may still get charged, but
with the lesser offence. (unless there is
no lesser offence)
 Ex: s 88(1): Every person commits an
offence who carries a weapon, an
imitation of a weapon or any ammunition
for purpose dangerous to the public
peace or for the purpose of committing
an offence.
General
 Distinction based on policy, not logic.
 Certain crimes deemed to have a basic or general intent ie.
Specific crimes have intention
o Ie. Punch someone is general, to punch someone
with intention to kill = specific
 For these crimes Intoxication is irrelevant (Also for
OBJECTIVE MR crimes ie. Manslaughter or other included
offences)
 Most common: assault (intent to apply for); Assault
causing bodily harm; sexual assault; pointing a firearm;
 Ex: S 87(1): Every person commits and offence who,
without lawful excuse, points a firearm at another person,
whether the firearm is loaded or unloaded,
 Possession
Using the Beard test, which of the following people would have the strongest likelihood of being able to raise a
potential "intoxication defence"?
 Jennifer smokes too much pot and becomes paranoid. Before going to a friends house she puts a hunting
knife in her purse. She is stopped by the police and charged with s 88.
 Her defence is that she is carrying it to DEFEND herself from a raging threat that doesn’t exist.
 She can raise the defence, and has a chance for acquittal
Common Law Defence of Intoxication
DPP v Beard HoL 1920 p 839 [if specific intent essential element of crime, voluntary drunkenness rendering A
incapable, should be considered to determine if he had necessary intent of crime]
Note: Beer is no longer good law
Reason: Lord Birkenhead LC
 Classic authorities: voluntary drunkenness more of an aggravation than a defence
 Except in cases where insanity is pleaded, principle is: where a specific intent is an essential element in the
offence, evidence of the state of drunkenness rendering the accused incapable of forming such an intent
should be taken into consideration in order to determine whether he had in fact formed the necessary
intent of the crime
o If he was so drunk, he could not have formed intent = not convicted
o State of drunkenness may be incompatible with actual crime charged
 Condition of drunkenness reduces murder to manslaughter
 Conclusions:
o 1. Law takes no note of cause of insanity, SO: Insanity, whether produced by drunkenness or
otherwise, is a defence to crime charged. If insanity supervenes, as result of alcoholic excess,
furnishes complete answer to criminal defence of insanity.
o 2. The evidence of drunkenness which renders the accused incapable of forming specific intent
should be taken into consideration with other facts to determine if he had intent
 Note: No longer the law. Capacity refers to whether drink rendered person CAPABLE
of committing the Act. MR traditionally focuses on whether the A KNEW.
o 3. Evidence of drunkenness failing short of proved incapacity, and his mind was affected by drink
so he more readily gave way to violent passion does not rebut intention
Intoxication and Specific Intent

Specific intent: should have ulterior element, some other
59
Bernard v The Queen SCC 1988 p 853 [Has imported objective Reasonable Person Test when you use defence of
intoxication]
 2-2-3 split. Law is unsettled until the next case comes along.
 This is a crime of general intent, should be acquitted, but now SCC Is deciding Bernard.
 In Intoxication you will be judged by standard of ordinary non-drunk person.
Facts: A charged with sexual assault causing bodily harm. Issue left to TJ was question of consent. A said he forced
C to have sex because he was drunk and when he realized what he was doing he got off. SCC asked to reconsider
decision in Leary v The Queen holding that offence of rape was an offence of general intent for which voluntary
intoxication was no defence.
Issue:
Decision:
Reason: (McIntyre J + Beetz)
 Distinction is not artificial
o General Intent: intent relates solely to the performance of the act in question with no further
ulterior intent or purpose
o Specific Intent: involves performance of AR, coupled with intent going beyond mere performance
ie. Striking with intent to kill
 Drunkenness is not a true defence. But where the accused is so affected he lacks the capacity to form
specific intent, it may apply
 No application to crimes of general intent
 Criticisms of defence of drunkenness: 1) distinction btw general/specific is artificial 2) illogical to apply to
some & not all crimes/depends on policy decision made by judge
o 1) Reject first ground of criticisms
o 2) No apologies for policy  society condemns those who, by voluntary consumption of alcohol,
render themselves incapable of self-control so that they commit act so violence causing injury to
their neighbours
 Defence of drunkenness accords with crim law theory
 Not sustainable that defence of drunkenness be extended to all criminal charges
 CJ has expressed view that evidence of self-induced intoxicant should be relevant consideration in
determining MR of ANY offence
o Effect: more drunk person is, more extended his opportunity for successful defence against
conviction for those offences caused by such drinking, regardless of the intent required for those
offences
o Court in Leary approved majewski approach  Leary should not be overruled
 Crown still must prove MR. State of mind may be proved in two ways in general intent
crimes
 1) ToF can infer MR from AR: a person is presumed to have intended the natural and
probable consequences of his actions
 2) where accused was so intoxicated as to raise doubt to voluntary nature of conduct,
Crown can meet evidentiary obligation by proving the fact of self-induced intoxication by
drugs or alcohol
 Metaphysically impossible for person to be so drunk as to be incapable of forming minimal
intent to apply force
 HENCE, second method only used in EXTREME SELF-INTOXICATION,
Reasons: Wilson J (+ LHD)
 Sexual assault causing bodily harm is offence of general intent requiring only minimal intent to apply force
 Not necessary to resort to self-induced intoxication as substituted form of MR
 Concerns as to whether imposition on that basis would survive charter challenge
 Rule in Leary be preserved and applied
 Sexual Assault = crime of violence. First an assault, then nature of sex objectively viewed
 Evidence shows: There was intentional and voluntary application of force
 He had the wits to hide bloodied towel/pillowcase from police = NOT Extreme intoxication, verging on
insanity or automatism capable of negating inference that minimal intent apply
60

Less confident about proposition that : self-induced intoxication may substitute for mental element
required to be present at time of offence  although this court has clearly adopted that proposition
(majewski)
TH: If Wilson J's approach represents the law, which of the following statements is (MOST) true: An intoxicated
person charged with murder can raise intoxication to reduce culpability to manslaughter OR to get a full acquittal.
 THERE will be some cases where we override policy concerns, and if they are so intoxicated to the
extreme, that renders them involuntary, they can get off
Reasons: Dickson CJC
 Only issue: should evidence of self-induced intoxication be considered by the ToF, in determining whether
the prosecution has proved BYD the MR required to constitute the offence?
 Yes. It should be considered.
 Does not make sense to allow this offence for certain offences and not for others. It is legal fiction
 If the law is to be altered in the name of policy, that is surely a task for parliament rather than courts
 It abandons basic MR principles that it is a required precondition for every crime
 Furthermore even if policy is valid, there is no evidence that the artificiality of the specific intent req. is
actually required for social protection
TH: In Bernard, Justice Dickson rejects the notion that the specific/general distinction is required as a policy
matter. The main reason for this is
 He is not convinced that in most cases of drunkenness will actually deprive an accused of the required MR
 “An unrestrained application of MR would not open a gaping hole in the criminal law contrary to social
protection”
TH: Where a person is charged with a specific intent offence, evidence that the accused was intoxicated, accepted
by the trier of fact: Can be used to show a lack of MR, leading to an acquittal or guilt on a reduced charge,
depending on what the accused is charged with.
Summary on Bernard
 Two judges say: the Beard rule should be preserved: intoxication only relevant to specific intent offences
 Three judges say intoxication relevant to all crimes
 Two judges say intoxication normally only relevant to specific intent; but in “extreme cases of intoxication,
relevant to all
Extreme Intoxication/Intoxication or Mental Disorder?


Distinction btw specific/general exists solely for purpose of determining whether there is or is not a
defence of intoxication at common law.
Intuitively, specific intent might connote a more focus or concentrated MR..
R v Daviault 1994 SCC p 862
A charged with sexual assault of elderly woman who was an acquaintance of his wife. A was a chronic alcoholic.
Had 7-8 beers that day, and likely a bottle of brandy. Blood level would induce death or coma of regular person.
(5x as high as legal limit for driving) Expert evidence: individual with this level of alcohol might suffer a blackout
and lose contact with reality, brain would temporarily dissociate from normal functioning. Appeal by Crown
allowed to QBCA bc TJ erred in holding that intoxication is a defence to a general intent offence, such as sexual
assault. Court of Appeal Convicted.
Issue: Can 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 Code, constitute a basis for defending a crime which
requires not a specific but only a general intent?
Decision: Daviault is Acquitted
Reasons: Cory J + 5
 Not consistent with principles of fundamental justice and presumption of innocence for courts to eliminate
(But he did – said for general intoxication, no defence for general intent crime)
 Agrees that there is some logic for difference btw general/specific
61

Self-induced intoxication is not a sufficiently blameworthy state of mind to justify culpability or to
substitute it for the mental element that is essential req of those crimes.
 The Charter (s 7, s 11d) mandate limited exception to, or some flexibility in, the application of the Leary
rule. This would permit evidence of extreme intoxication akin to automatism or insanity to be considered
in determining whether the accused possessed the minimal mental element required for crimes of general
intent
 Options
o #1: Follow: Leary rule violates the Charter and cannot be justified = NO
 mental element = integral part of crime, may be minimal for general intent, but exists
 Substituted MR of an intention to become drunk cannot establish the MR to commit the
assault (A person intending to drink cannot be said to be intending to commit sexual
assault)
 R argued that “blameworthy nature of voluntary intoxication” justifies no violation of
charter BUT voluntary intoxication is not yet a crime
 Self-induced intoxication cannot supply the necessary link btw the minimal mental element
or MR reqd for the offence and the AR (DeSousa, Theroux)
 Minimum MR for an offence should reflect the nature of the crime (Creighton). I
doubt self-induced intoxication can, in all circumstances, meet this req for all crimes
of general intent
 Leary not meet proportionality or minimum impairment req of Oakes. Not justified.
o #2: Follow: O Connor: evidence relating to drunkenness would go to jury along with other evidence
in determining whether mental element requirement had been met  cannot be followed bc of
specific/general intent categories well established SO all evidence of any intoxication would have
to be put to jury in general intent offences = unnecessary (+ rejected in Bernard) = NO
o #3:M Proposed by Wilson J in Bernard = YES
 Scholar Criticism: favours extremely drunk while ignoring less inebriated
 Counter: A “little drunk” can readily form the requisite mental element to commit
the offence
 Only those who were in such an extreme degree of intoxication that they were in a state
akin to automatism or insanity = raise reasonable doubt as to their ability to form minimal
mental element req for general intent offence
 Ie. Can move legs and arms, but incapable of forming basic or simple intent
 Wilson J’s modification of Leary rule is a judge-fashioned remedy that can be adopted to
remedy a judge-made law which, by eliminating mental element of a crime, offends the
charter
 Only used in rare occasions, simply have on hand to avoid charter infringement
 Defence must prove it on a balance of probabilities (justified by s 1 bc only accused can give
evidence as to amount of alchohol consumed and effect on him + expert evidence to confirm
state of automatism/insanity
 He chooses this as a policy compromise, to abide by charter and still convict most drunks
 It is always open to parliament to fashion a remedy which would make it a crime to commit a prohibited
act while drunk
Dissent (Sopinka J):
 Leary: drunkenness is not a defence to a crime of general intent
o Policy considerations:
 Criminal law purpose is to protect the public: which would be frustrated if the more drunk
a man became, better chance of acquittal
o Does not violate s 7 or 11d of the charter
o Principle of fundamental justice do not require the intent to perform AR of an offence of general
intent to be an element of the offence
 Alleged breach is based on 2 breaches of fundamental justice:
o Symmetry btw AR and MR is not constitutionally required
o We don’t care if your drunk.
o Punishment must be proportionate to moral blameworthiness of offender (Martineau, Creighton)
62
Few crimes which special level of MR is constitutionally required by reason of stigma
attaching to conviction and by reason of severity of penalty
 Deal with it in sentencing!
 Sexual assault does not fall into category that demands subjective MR to commit AR
 They deserve stigma, and sentence is not fixed so it can be amended
 I cannot see how stigma and punishment associate with offence of sexual assault
are disproportionate to moral blameworthiness of a person like A who commits
offence after voluntarily so intoxicated to be incapable of knowing what he is doing
Keep Leary. If different approach required, parliament can intervene


R v Penno 1990 SCC p 868 [Intoxication could not be defence to offence in which it is an element]
 Even if accused is too drunk = irrelevant, since mental element of offence lies in voluntarily becoming
intoxicated.
Parliament responds to Daviault
Bill C72 (1994-1995)
 Parliament did not respond with intoxication-based offence, but with legislation that effectively deprives
accused of Daviault defence of extreme intoxication for SOME offences
 Preamble
o P recognizes association btw violent and intoxication  concerned of self-induced intoxication as
social and legal excuse to violence
o P considers it necessary and desirable to legislate a standard of care, in order to make it clear that a
person who, while in a state of incapacity by reason of self-induced intoxication, commits an
offence involving violence against another person, departs markedly from the standard of
reasonable care that CDNs owe to each other and is thereby criminally at fault
 Amending Code by adding following after section 33
 Self-induced intoxication:
o 33.1(1) Defence not available: not a defence to an offence in subsection (3), that accused, by reason
of self-induced intoxication, lacked basic intent/voluntariness req to commit offence, when accused
departed markedly from standard of care in (2)
o (2)Criminal fault by reason of intoxication:
 Marked departure from standard of care recognized in CDN society = criminally liable
when person in a state of self-induced intoxication that renders them unaware of, or
incapable of consciously controlling their behavior, voluntarily or involuntarily interferes
or threatens to interfere with bodily integrity of another person
o (3): Section applies to offence under Code that includes as an element an assault or any other
interference or threat of interference by a person with the bodily integrity of another person
 Essentially deny the defence even if the effect of intoxication was to make the conduct of
the accused involuntary
Current Law on defence of intoxication
STEPS TO INTOXICATION
1. Is the crime one of specific or general intent?
2. If specific = intoxicant can negate MR for SPECIFIC intent (leading to acquittal or guilt on lesser
offence)
3. If general intent offence, is the crime involves harm to other person’s bodily integrity
4. If it does not harm person’s bodily integrity  Daviault extreme intoxication defence available
(applies if self-induced or not self induced)
5. If it does harm bodily integrity, then it is self-induced?
 If yes, No extreme Intoxication defence
 If no, Extreme intoxication is available under the statute (reverse onus)
6. All of this is subject to SCC approval on Constitutionality of s 33.1
63

There are three variations on defence of intoxication
1. Common law rule (Bernard) that restricts defence of intoxication to specific intent still applies (so
still must classify offence as general/specific)
2. Expanded defence of extreme intoxication (Daviault), applies even to offences of general intent
 Requires expert evidence concerning nature/effect of intoxicant
 Cannot succeed unless proven on balance of probabilities
 Reverse onus
 Note: strong evidentiary foundation on nature, quantity and effect of drug
3. S 33.1: denies the defence of extreme intoxication to any offence of general intent that involves
interference or threatened interference with bodily integrity of another person, provided that the
act was performed in state of intoxication that shows marked departure from standard of
reasonable care
 Vailliantcourt: SCC requires that substitution of one standard of fault for another that is
constitutionally required for the offence is only valid if substituted element was
functionally equivalent to req element (otherwise it may violate the presumption of
innocence if proof of substituted element does not lead inexorably or byd to proof of
essential element of offence)
TH: Jack is charged with illegally possessing two vials of heroin contrary to s. 4 of the CDSA, which makes it a crime
"to possess" a prohibited substance. Jack argues that he was extremely intoxicated when his buddy gave him the
vials to hold, and that he never really "processed" what they were - just thinking they were energy shots. He
concedes that he has a vague idea of what heroin vials look like, but did not know he was holding heroin on that
occasion. Assuming the Judge believes Jack, how should the Judge proceed:
 Consider whether a reasonable, non-drunk person in Jack’s circumstances would have known the vials
contained heroin
 Puts it on an objective standard (can’t use subjective, since they’re claiming no awareness)
Self Induced Intoxication
 Limited defence of intoxication in s 33.1 applies only where consumption of intoxicants is self-induced or
voluntary.
R v Chaulk 2007 p 871 [Test for whether intoxicated state was self-induced]
Facts: Severly Drunk Mr. Chaulk breaks neighbours door down to find female neighbour hiding in Mr.
MacDougall’s apartment. He threatened to kill him, then rushed him, took clothes off, was subdued, switching btw
compliant and combative. Charged with assaulting Mr. MacDougall, threatening to cause bodily harm, break &
enter with intent to committing assault (specific intent), mischief by willfully damaging property. At Trial,
acquitted due to defence of non-mental disorder automatism/extreme intoxication.
Issue: Whether TJ erred in concluding that Mr. Chaulk’s intoxicated state was not self-induced?
Decision: Not decided
Reason:
 Tj conclusion based on evidence of Mr. Chaulk’s drug + alcohol consumption that night
 Crown argued A’s intoxication was self induced, therefor s 33.1 precludes reliance on defence of extreme
intoxication for all but property offence (because for property he can raise daviult)
 A said: went to party, consumed 6-8 beers, might have had weed. Getting bored planned to leave, Matt
offered him “wake up pill” which he took. He thought substance was caffeine pill (but was actually an
intoxicating substance)
o Heart pounded, things look weird. Had no further recollection of events, until he woke up at
hospital at 10:30 am next morning.
 Expert evidence
o Drs: confirm hat state was consistent with exposure to chemicals/stimulant-type drugs; He told Dr.
he had consumed mixture of acid, ecstacy and weed
o Forensic Psychiatrist: reasonable probability that Mr. CHaulk’s mental state fulfilled non-insane
automatism
64

Self Induced Intoxication
o Vickberg: For intoxication to be self-induced, the accused must intend to become intoxicated, either
by voluntarily ingesting a substance knowing or having reasonable grounds to know it might be
dangerous, or by recklessly ingesting such a substance
o Brenton: A argued that he took marijuana to relax, did not intend to become intoxicated = not self
induced. WRONG. If ingestion is voluntary, and risk of becoming intoxicated is within
contemplation, or reasonably should be, then any resulting intoxication is self-induced
o  Involuntary= spiked drink, or accused becomes intoxicated while taking prescription drugs and
their effects not known
 Case At Hand: Accepts VIckberg
o Crown does not have to prove that substance is illegal, or that A must know precisely what he took
o King: if impairment was result of doctor’s order or recommendation, and effect unknown to
patient, = involuntary
o Voluntary Intoxication: The consuming of a substance where the person knew or had
reasonable grounds for believing such might cause him to be impaired. The accused need
not contemplate the extent of the intoxication or intend a certain level of intoxication.
o Test:
 1. The accused voluntarily consumed a substance which;
 2. He knew or ought to have known was an intoxicant and;
 3. The risk of becoming intoxicated was or should have been within his
contemplation
Class Notes
Note at para 45:
 Courts have consistently held that voluntary intoxication means the consuming of a substance where the
person know or had reasonable grounds for believing such might cause him to be impaired
o Imports test: they objectively should have know that they were going to get intoxicated when they
took this pill.
o Taking away the subjective nature of the CHOICE to get intoxicated is to far
o Should subjectively know
Note at para 46:
 The accused need not contemplate the extent of the intoxication or intend a certain level of intoxication
R v Bouchard-Lebrun 2011 SCC [Malfunction of mind resulting exclusively from self-induced intoxication NEVER
considered “disease of the mind”; but if underlying mental condition – then depends on source]
Facts: A takes intoxicant (pill). Then brutally assault 2 individuals which in psychotic state (religious delirium,
believed apocalypse was coming) caused by chemical drugs taken few hours earlier. Stomped on one victim’s head
caused serious and permanent harm.
Issue: Whether toxic psychosis resulting from state of self-induced intoxication caused by use of chemical drugs
constitutes a mental disorder and thus exempts A from criminal responsibility for bodily integrity charge? How
does the psychosis affect A’s criminal responsibility?
Decision: His underlying mental condition is irrelevant, if it is determined that the cause of his lack of knowledge
was intoxication.
Reason:
 Not disputed that A had serious psychotic condition at time of offences (confirmed by expert evidence)
 At trial  acquitted on breaking and entering due to extreme intoxication and suffering from toxic
psychosis at time of offence. Convicted A of aggravated assault (as per s 33.1 = self-induced intoxication
cannot be defence to offence against bodily integrity of another person
 A agrees it was induced from self-intoxication. BUT argues that it was a single episode of a mental disorder
producing abnormal effects on the accused arguing indirectly that toxic psychosis developed after taking
the pill resulted from underlying disease of the mind that became apparent as result of his intoxication
o A argues that Sopinka J’s dissent in Daviault supports this
 Defences of Intoxication and Insanity are Mutually Exclusive!
o For Intoxication to apply (s 33.1): court must reach conclusion in law that A lacked general intent
or voluntariness required to commit offence by reason of self-induced intoxication.
65
Absence of intent/voluntariness preclude finding that incapacity was caused by disease of mind
Conversely, fact that A was intoxicated at material time, cannot support finding that s 33.1 applies
if accused establishes that he was incapable of appreciating the nature of quality of his act by
reason of mental disorder.
o Bottom line: If A was intoxicated and in psychotic condition at material time, court must
identify a specific source of mental condition: either self induced intoxication or a disease of
mind
 Determines if A is criminally liable
 More difficult when they have underlying mental condition
o 1. Start with Disease of the Mind
 “any illness, disorder or abnormal condition which impairs human mind and its
functioning, excluding self-induced states caused by alcohol or drugs, as well as transitory
mental states as hysteria or concussion” (Cooper)
 THe Mental disorder must go to the CAUSE of the lack of knowledge.
o 2. If s 16 does not apply, court can consider s 33.1
Question remaining: whether a toxic psychosis that results exclusively from state of intoxication with
abnormal effect, constitutes mental disorder for purposes of s 16 or is excluded by cooper?
o Insanity rests on fundamental level: exemption from criminal liability due to incapacity for criminal
intent. Their actions are not a product of their free will
o Characterizing a mental condition as “mental disorder” is a legal exercise with a medical and
scientific substratum
 So A cannot argue that Toxic Psychosis is ALWAYS mental disorder, since it rests on
argument that legal characterization of s 16 depends exclusively on medical diagnosis
 In each new situation, the case turns on its own facts  must use contextual approach not
broad approach
o The general exclusion of Cooper can be rebutted by showing that, at material time, he was suffering
from disease of the mind that was unrelated to intoxication-related symptoms
 Burden of Proof = holistic approach (Stone) to enable the court to determine whether
mental condition of A at material time constitutes “mental disorder” for purposes of s 16
Applied
o TJ found A highly intoxicated. In psychotic condition.
o Taking of the pill is external factor that contraditcts A’s argument, since reaction of normal person
to such a pill would be toxic psychosis. strongly suggests lack of mental disorder
o First Factor from Stone: Rapid appearance of psychotic symptoms generally indicates specific
external factor = substance intoxication
 Such delusions do not result from disease of mind within Code
o Second Factor from stone:
 No evidence indicating that mental condition of A is inherently dangerous. provided that
abstain from such drugs, no threat to public safety
 (If A was addicted, SCC might have concluded that he was a risk to public safety  so
maybe s 16 if addiction constitutes disease of the mind)
o Part XX.1 of code is not intended to apply to persons whose temporary madness was induced
artificially by state of intoxication
o IS s 33.1 Applicable?
 1) The accused was intoxicated at material time 2) it was self induced and 3) A departed
from reasonable care generally recognized in Canadian society by interfering with bodily
integrity of another.
 If these three above are proved = no defence that A lacked general intent or voluntariness
required to commit offence
 S 33.1 applies to any mental condition that is direct extension of state of intoxication. No
distinction based on seriousness of effects of self-induced intoxication.
o S 33.1 was applicable rather than s 16
o
o


66
At para. 20, LeBel J. sets out how the law should generally operate where a person with a mental disorder is
intoxicated. Basically:
It depends exclusively on the reason why the accused is claiming an absence of AR/MR
TH: The difficulty in regulating the interaction between s 16 and 33.1 lies primarily in the fact that:
Its not always easy, as a factual matter, to separate symptoms of the mental disorder from symptoms of the
intoxicant
Defences
Introduction to Defences:
Type
Non-Defence Defences
Qualified Defence
Examples
Mistake of Fact, Consent, Intoxication, Extreme
Intoxication, Automatism, Accident, Colour of
Right
officially induced error, entrapment, double
jeopardy
Defence of Provocation
General Defence
Necessity, duress, self-defence
Special Defences
Result
Can lead to Acquittal, or lesser
charge
Do not lead to acquittal, lead to stay
of proceedings
Minimize liability rather than
exculpate, cannot be acquitted
Acquittal
Where do Defences Come From?
 Defences can come from statute and from Common Law, can be created at any time
 A judge can make a defence. Therefore if, a line of argument is convincing that accused should get off, the judge
may create a new defence and excuse him!! (Section 8(3) of the Code: preserves domain of CL and allows judges to
create and recognize new defences)
Reason:
 Defences need to be adaptable and modernized.
 Takes into account motives
Necessity: Introduction






Defence of Necessity: “necessity knows no law”
in dire circumstances of looming peril, the claims of positive law seem to weaken.
Do criminal prohibitions, crafted for range of anticipated or normal situations, continue to have legal or
moral force in situations of extremity?
Recognized in Canada as a defence for crimes committed in urgent situations of clear and imminent peril in
which the accused has no safe avenue of escape or legal way out of the situation
 also objective/reasonableness requirement
SCC majority says defence is only ever EXCUSATORY, does not justify the crime
Necessity: Controversial Judge-Made Defence



No clear hierarchy of interests
Balances competing moral imperatives: What if obeying the law allows greater harm to take place?
Requires acceptance that higher principle can legitimize law-breaking
Necessity: Application of Objective Modified Test
 Was there imminent peril? (Modified Objective Test)
1. Did accused believe peril was immenent?
2. Was the belief reasonable, taking into account anything that limited accused’s perception? (Does factor
in self-induced alcohol, drugs)
 Was there a legal alternative? (Modified Objective Test)
1. Did the accused believe there was a legal alternative?
67

2. Was belief reasonable taking into account limitation of perception
Was harm caused proportional? (Fully Objective Test)
1. Did the harm avoided outweigh the harm caused by breaking law? (perception of accused irrelevant)
Conceptualization of Necessity as an Excuse or Justification
Perka v The Queen SCC 1984 [Defence of Necessity as Justification vs. Excuse; Excuse = morally involuntary, had no
legal reasonable alternative]
Facts: Accused charged with importing weed for purposes of trafficking. Accused adduced evidence as to poor
condition of ship, that there were engine breakdowns and they needed to go to Vancouver island. Said shipment
was going from Colombia to Alaska. TJ acquitted accused on defence of necessity. BCCA ordered new trial. SCC
agrees about order of new trial.
Issue: Should boat get acquitted on defence of necessity?
Decision: New Trial. Should have put to jury: was there reasonable legal alternative?
Reasons: (Dickson J)
 Defence of necessity exists
 Criminal theory recognizes distinction btw justifications and excuses
o Sankoff: does not buy distinction  look at self defence being justified, or excuse.
Justification: challenges the wrongfulness of an action which CRITICISMS
technically constitutes a crime
No system of positive law can recognize a
“its the right thing to do”
principle that entitles a person to violate the law
because they subjectively see the law conflicted
 Ie. Police officer shoots kidnapper, victim of assault
with some higher social value
who uses force as defence
1. Imports undue subjectivity into criminal
 Purpose: to prevent a greater evil than resulting from
law
violation of the law
2.
Invites courts to second-guess legislature
 Utilitarian balancing of the benefits of obeying the law
and assess relative merits of social
as opposed to disobeying it, when balance is clearly in
policies underlying criminal prohibitions
favor of disobeying, exculpates an actor who
3. Could evolve into a mask for anarchy
contravenes a criminal statute
 For the greater good, more value in disobeying the
law, then obeying it
Excuse: concedes the wrongfulness of the action but asserts
LESS OPEN TO CRITICISM
that the circumstances under which it was done are such that Rests on realistic assumption of human weakness,
it ought not to be attributed to the actor
liberal and humane crim law cannot hold ppl to
“Its wrong, but understandable”
strict obedience in emergency situations where
normal human instincts impel disobedience
 Ie. Accused incapable due to DoM of appreciating
consequences, drunkard, sleepwalker
 Not praise, but pardon
 We disapprove intensely, but will not punish




Restrict Defence to Urgent situations of clear and imminent peril when compliance with the law is
demonstrably impossible
o Restriction focuses on “moral involuntariness” on behavior by providing number of tests for
determining if wrongful act was only realistic option – or was it a choice
 If it was a choice, then it could not have been involuntary
o 1) Requirement for urgent/imminent peril  tests whether it was unavoidable for actor to act at
all. Must be so pressing that human instinct crys out for action.
o 2) Compliance with law be “demonstrably impossible  Could have acted to avoid peril/harm
without breaking the law? Was there a legal way out?
 Must be no reasonable legal alternative
o 3) Proportionality: no excuse for infliction of greater harm to allow actor to avert lesser evil
If one is already doing something illegal, and peril comes up, past conduct colours response to emergency
as also wrongful
Necessity goes to EXCUSE conduct, not to JUSTIFY it  does not vindicate the act
Case at hand:
68
o
o
o
o
o
Were defence to succeed = not vindicate importing weed.
The question is not is what he did wrongful but  is what he did VOLUNTARY?
Maybe they came into Canadian waters due to self-preservation
Fact that they were engaged in illegal conduct would not disentitle them to raise the defence alone
Trial judge directed jury properly to necessity but should have posed questions
 Was emergency real? Did it constitute immediate threat of harm? Was response
proportionate? Was the danger one that social would reasonable expect average person to
withstand? Was there reasonable legal alternative?
10 Key Points
1. DoN conceptualized as either justification or an excuse
2. Should be recognized in Canada as an excuse by virtue of s 8(3) of code
3. Necessity as an excuse implies no vindication of deeds
4. The criterion is moral involuntariness of the wrongful action
5. Involuntariness is measured on basis of society’s expectation of appropriate and normal resistance to
pressue
6. Negligence or involvement in criminal/immoral activity dos not disentitle the actor to the excuse of
necessity
7. Actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle
8. Existence of reasonable legal alternative disentitles, since involuntary requires inevitable, unavoidable,
afford not reasonable opportunity for alternative course of action that does not involve breach of law
9. Defence only applies in circumstances of imminent risk where act was taken to avoid direct and immediate
peril
10. Where accused places before court sufficient evidence to raise the issue, onus is on crown to meet it BYD
11. If necessitous situation was foreseeable to reasonable observer, and actor contemplated that action could
give rise to emergency requiring breaking the law, then defence not available
Wilson J (Concurring)
 Disagrees with closing door on justification as appropriate judicial basis in some cases
 Fact that one act done out of urgency, and another after some contemplation = not sufficient distinguish
 Justification must be premised on need to fulfill duty conflicting with one which the accused is charged
with having breached
o Ie. Conflicting duty
 Ie. Necessary to rescue someone to whom one owes a positive duty of law to rescue
 Where necessity is invoked as justification for violation,
o 1) justification must be restricted to situations where accused’s act constitutes performance of a
duty recognized by law
o 2) Proportionality: defence rests on rightfulness of accused’s choice of one duty over the other
 Note: Calculation is not simply mere utilitarian calculation of lives saved vs. deaths avoided, must assess
nature of rights and duties
 Crucial question for justification defence: whether the accused’s act can be said to represent a
furtherance of or a detraction from the principle of the universality of rights
TH: Dickson CJ says: "no system of positive law can recognize any principle which would entitle a person to violate
the law because on his view the law conflicted with some higher social value". This corresponds closely with:
 Section 19: Ignorance of the law is not an excuse
TH: Which of the following accused has a better chance at raising a necessity defence:
A) Jim breaks into a house to retrieve something he feels the homeowner took from him. An alarm goes off, and
private security surround Jim. He grabs a bike and takes off.
OR
B) Fred breaks into a car. Riot breaks out. Hotwires the care to escape.
1. Is peril foreseeable? (In A - no, not clear he will face physical danger) (B – could face danger)
2. If there is a legal alternative (In A – he can get caught. That is legal) (B – must leave)
69
TH: Accused went to party to retrieve stolen keg. Knew it would be problematic. Drove up, 40ppl attack his car,
drives away and in the process, injures 2 ppl. Charged with dangerous operation of car causing bodily harm.
Valid claim of necessity?
 Is the danger that is causing the peril foreseeable? Yes.
 Does he have much choice? Is there an alternative legal alternative? NO. He was morally involuntary.
TH: Accused at end of 60 day fast, breaks into house in winter, with hypothermia to eat food. Passes out. Charged
with breaking and entering.
 Was imminent peril foreseeable? Yes.
 Is there an alternative legal alternative? Yes. Knock on someones house. He was morally voluntary. He had
options.
Necessity and the Latimer Case
Latimer v The Queen SCC 2001 p 890
 Test for elements is primarily OBJECTIVE
 Defence grounded in understanding of actions (so they must be reasonable)
 Imminent Peril & Alternatives measured on modified objective test (would reasonable person have seen
alternatives in this situation?)
 Proportionality is straight objective balance. Does the harm that you sought to cause, outweigh the harm
that you sought to avoid.
o Ie. If someone is coming to break ur arm, and you kill someone to get out of situation = not
proportional.
Duress





Evolved as separate defence (before necessity)
Statutory intervention!
It is not an MR defence (Hibtter) because motivation and intention not the same
Section 17 of the Code enacted clear restrictions: Only applies in following situations:
o Must be threat of death or bodily harm, must be immediate
o Threats must be by someone who is present when the offence is committed (ie. Threaten to kill
your family doesn’t count if they aren’t there)
o Person is not a party to a conspiracy to situation of compulsion
o Note: In Ruzic: court quashes immediacy and presence requirement
CL: If you are non-party, this defence does not apply to you. (because judges hated this defence)
o Principal actors are still bound by s 17.
o If you are just helping someone do defence = use common law duress
o In Ruzic: SCC considered constitutionality
 Import heroine from Serbia and we will harm ur mom if you don’t.
 Does not pass s 17, person not under duress.
 Court says it is unconstitutional
 Court quashes “immediacy” and “presence”, but left party/non-party split intact
o Result? No duress defence available where certain crimes committed as listed in s 17.
Duress: Elements





Threats of death or Bodily Harm (dos not have to be serious, because based on proportionality)
Reasonable belief that threat will be carried out (or you won be acting involuntarily)
No safe avenue of escape (reasonable belief that police cannot help safely)
Close connection btw the threat and offence
Proportionality – a few distinctions from necessity. (looked at from perspective of the accused, whether
accused thought, reasonably, that act outweighed harm)
Duress: Application of Objective Modified Test
 Belief there was a threat that would be carried out (Modified Objective)
70



No safe avenue of escape? (Modified Objective)
Close temporal connection? (Objective Test – Factual finding, not belief)
o Sankoff: this factors into no safe avenue of escape
Proportionality of harm and reasonable resistence? (Modified Objective Test)
1. The harm sought to be avoided must be proportional
2. What would reasonable person had done, consider circumstances of the accused
R v Ryan 2013 SCC (Supp)
Facts: Victim of abuse, provided undercover cop with info/payment to kill her husband. Charged with counseling
commission of an offence not committed, contrary to s 464(a) of Code.
Issue: May a wife, whose life is threatened by her abusive husband, rely on the defence of duress when she tries to
have him murdered? TJ: she may and was acquitted of counseling the commission of her husband’s murder?
Decision:
Reasons:
 TJ: elements for offence met. Evidence of abusive relationship true. She had intense and reasonable fear,
felt helpless, police didn’t respond, vulnerable, felt that hitman was the only way out. Found that CL
defence of duress applied and acquitted.
 On Appeal, crown took position that duress was not available in law as defence to these facts
Analysis:
 Is duress a possible defence where the threats made against A were not made for purpose of compelling
the commission of an offence?
 Crown asserted that defence of duress not open to A
TH: For an act to qualify as duress, a person must be subjected to the threat of harm. How much?
 There is no need to have a barrier on harm because threats of just a little harm can be dealt with in
assessing whether response by accused was proportionate.
TH: Given how SCC revamps duress, why could Mrs. Ryan not claim the defence?
 She was not compelled by any threat to commit the crime in question
 Court of Appeal argues: Conceptually widen the defence of duress; SCC: No
TH: Primary reason why A escapes conviction is:
 Because the Crown did not raise the fact that duress was not available as a matter of law until the appeal
If she had committed the murder – she WOULD have had the defence.
Defences: Clarification of Subjective and Objective

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Most offences are measured on subjective liability – you cannot be punished for being ignorant or stupid
But defences measured MOSTLY objectively – none premised on only subjective tests
Idea is that we only excuse or justify what is criminal liable where act was reasonable
Defences tend to measure “morality” of action – something that cannot be left to subjective choice
A few elements Subjective, some Objective, most are modified objective
Modified Objective Test
TH: Most defences require consideration of a modified objective test. The “modified” aspect of the test refers to the
fact that:
 The test considers the reasonableness of the accused’s belief or actions, taking into consideration anything
reasonable that affects the accused’s perception.
 1) Was what you did reasonable?
 2) Was that affected by anything, reasonably?
Comparison of Modified Objective Test to Objective Test of MR
Modified Objective Test
Objective test of MR
71
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

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Different because defences are premised on moral
entitlement
Accused must SUBJECTIVELY believe to warrant the
defence
Accused must believe the element in question +
belief must be reasonable.
Latimer “We can consider circumstances that
legitimately affect accused’s ability to evaluate”
If A is Young person  factors in





Purely objective: individual characteristics not
relevant
Why? Situation where person did not see risk
Would a reasonable person have foreseen the
risk?
Only relevant factors going to capacity to foresee
risk are considered. (Creighton)
Young, driver?  Does not factor in: measured
against reasonably prudent driver.
Self-Defence and Defence of Others

New Self-Defence law in March 2013
Evidentiary Burden and Self-Defence




Self defence has both subjective and objective components
Before SD will be left to the jury, must be air of reality that elements of defence were present
This means that some evidence that accused perceived threat AND that threat was reasonable
Example: Cinous
o Accused involved in crimes with A&B, Rumours A&B planned to kill him, Accused thought A&B
were about to kill him. Stopped to get gas, accused shot both of them. Claims self-defence
o Issue: Is self-defence available?
o Decision: No
 There was an air of reality that the threat was coming (objectively + subjectively)
 Air of reality that he was facing death (thus response proportionate)
 No air of reality that this was reasonable option in circumstances – he had opportunity to
get away.
Evidentiary burden: Is there an air of reality to the defence before the jury gets it?
TH: In which case would evidentiary burden be LACKING?
Not Sufficient
Sufficient
Given A’s version of events, force
Case where A admits on stand that he now sees he was mistaken about
used was clearly disproportionate to
the fact that he was being threatened
what he needed to defend himself
A was intoxicated and mistakenly believed he was under attack
(just like in Cinou)
A gives version of events that is implausible given competing evidence
The New Self-Defence: Three components
1.
2.
3.
4.
Belief that force being used or threat of force being used against them (Modified Objective Test)
Response is to Defend (Subjective: s (34(1)(b)) “for the purpose”)
Response is REASONABLE (taking into account accused perceptions)
Last Component: consider a list of 8 factors; balancing of these factors are left to the jury biggest change
btw new law and old law
5. S 34 does NOT require that victim be the person that attacked the Accused
a. Ie. If A is coming at you, and you hit B = can use defence if it is reasonable for you to hit B
EXCEPTION: Cannot raise self defence to LEGAL force by police/state agent unless person REASONABLY believes
force is unlawful (cannot shove someone if they’re coming to cuff you)
Example: Insults exchanged btw Big A and Small B. B charges A. A restrains him, then punches B.
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of
force is being made against them or another person; CONCEDED
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(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the
other person from that use or threat of force; and Difficult to know if it was the purpose of defending without
asking him. (you can enjoy it at the same time, + be defending yourself, you retain the right to hold your
ground)
(c) the act committed is reasonable in the circumstances. PASS
 May Fail on Proportionality: Cannot use (g) the nature and proportionality of the person’s response to the use
or threat of force; Court considers that B did not Punch A, but to punch A is reasonable taking into the
account the state of mind of the accused at the time. Proportionality will allow little excessiveness. (Bogue)
TH: Self-defence is premised on the notion that you are entitled to respond to force to defend yourself. It follows
that if you start a fight, the defence is not available.
 FALSE
 Person who starts fight can still pass 34(1) a and b. C is harder to prove that it was reasonable  as per
34(2)(c): the person’s role in the incident.
o Used in fights where there is an escalation of force ie. punch punch knife gun
o Can you shoot someone who brings a knife at you.. yes. Depends on circumstances.
TH: The defence of self-defence is unavailable in any case where the force:
 Was a blow delivered against a person whom the accused knew was unconscious
o Can never pass (34(1)(a): because they are never a threat to you where they are unconscious
 It is available if you:
o Imposed harm that was grossly disproportionate that the defender was responding to.
 The ultimate harm DOES NOT MATTER – what matters is whether your RESPONSE was
reasonable
o Intentionally designed to cause death = hard to get off, they better be trying to kill you
o Could have avoided altercation: not necessary
o Designed to protect someone that accused had no duty to protect: NO duty, you act to protect
anyone, you are okay
Factors in Self- Defence (S 34 (2))
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(a) Nature of the force
o More allows for bigger response
(b) Extent to which use of force was imminent (could you avoid it?)
(c )Persons role (if you provoked it = harder time claiming SD)
(d) Use of a weapon (if he uses weapon = better claim to SD, if you use weapon, they better provoke you
seriously)
(e) Size, age, gender, capabilities (How real was this threat?)
(f) and (f.1) Relationship + context
(g) Nature and proportionality of response
o Cannot use a gun to deflect a fist
(h) Was your act in response to a legal act (eg. Self-defence?)
R v Docherty [Castle Doctrine: If you are in your own home, you are not obliged to retreat and it will not be considered
a factor under s 34, because your home is your last line of defence]
Facts: A killed Weber by stabbing him in the neck in garage attached to A’s home. Weber was after a debt and had
used physical force and threats. A feared for his life.
 Under old law: you have a duty to retreat. Court says its not a stand alone doctrine. Implement castle
doctrine.
o Self-defence can only be accepted as last resort and is not available where other reasonable options
are, but this is different where person is attacked in their own home.
o Ancient common law: castle doctrine: gives rise to the principle that person in own home does not
have duty to retreat from home in face of attack. Home provides protection, and duty of retreat
would force person to leave family and their possessions exposed to aggressors.
o May apply to a home burglary
73
o
S 34: whether there were other means available to response to force: factor to consider in a home
invasion. The ability to avoid the harm is important, but not when you are in your home, because
your home is your castle. Retreat is a good idea, but not in your home. That is your last line of
defence.
R v Bogue [A person defending himself against a reasonably apprehended attack CANNOT be expected to weigh to a
nicety the exact measure of necessary defensive action]
Facts: A rent apartment with John Moran. After scream and thud, neighbours find A in defensive position on floor
at Moran’s feet. Neighbour attempts to separate A and Moran. A had hit Moran over the head with an iron.
Neighbour leaves and comes back to find Moran on bed with stab wounds. A admitted to stabbing him.
 Proportionate does not have to be exact
 If the test was objective, requiring absolute proportionate would be wrong
 When a mans life is in the balance he cannot be expected to make the same decision as he would on sober
reflection
 Two key lessons still applicable today
o 1) Reasonableness: In a heated fight where things get out of hand, the court factors in the force that
is being used
o 2) “A person defending himself against a reasonably apprehended attack CANNOT be expected to
weight to a nicety the exact measure of necessary defensive action”
Self Defence and Domestic Violence
R v Lavallee SCC 1990 p 955 [Expert evidence on battered women mental state should be heard by Jury for SelfDefence]
Facts: Boisterous party. A living with Rust. After argument, Rust was killed by shot to back of head fired by A as he
was leaving the room. The appellant showed injuries consistent with those sustained in a defensive stance. The
appellant was frequently a victim of severe physical abuse by Rust but did not leave him.
Issue: 1) Should jury have considered Plea of self defence without expert testimony? 2) Did charge to jury meet
requirements
Decision: SCC unanimously allow appeal. Set aside order of CA and restored acquittal.
Reasons: (Wilson J)
1. Expert evidence is admissible and necessary when:
a. It provides scientific information that is likely to be outside the knowledge of a judge or jury (R. v. Abbey,
supra.). Since knowledge of the battered wife syndrome is beyond that of the average juror (State v.
Kelly), the expert evidence should be considered.
b. The subject matter is such that ordinary people are unlikely to form a correct judgment if unassisted by
special knowledge [Kelliher (Village of) v. Smith]. Since stereotypes of the battering relationship may
adversely affect one’s consideration of a battered woman’s claim to have acted in self-defence, the expert
evidence should be considered.
2. To determine whether or not the appellant acted in self-defence (as defined by s. 34(2) of the Code), the jury
must consider the accused’s appreciation of the situation and her belief as to the reaction it required (Reilly v.
The Queen). Since the information necessary to consider the accused’s perception of the situation is not
available in the facts alone, expert evidence should be considered.
a. In being in those types of situations of being a battered woman, she had reasonable grounds that an
attack was coming which she would need to defend her life. This was the imminent threat.
3. Abbey requires the judge to instruct the jury carefully on the weight accorded to expert opinion. The trial
judge met these requirements because:
a. He warned jury about deciding cases on the basis of things the witnesses did not see or hear.
b. He emphasized the distinction between admissible evidence and hearsay and the respective weight
attributable to the expert evidence.
Ratio:
74


Expert evidence is necessary and should be considered when either the case deals with knowledge beyond
that of the average lay person or the subject matter contains aspects that may incorrectly alter
consideration, or both. Jury should have an opportunity to hear EE.
The trial judge must explain to the jury that the weight attributable to the expert testimony is directly
related to the amount and quality of admissible evidence it is relying on.
Note:
Because his back was turned – imminent threat not met. How was the force reasonable when she was not
defending herself when the killing took place.
The fact that the murder was temporally removed from assault, justified by expert evidence.
TH: A women is beaten up daily by her husband. She tries to leave, but to no avail, and is diagnosed with BWS.
Beatings usually start with slaps to the head and escalate. One night, the husband slaps her in the head before
dinner. After sitting down and turning his back, the wife slits the husband's throat. When asked why she did this by
police, she says "I was tired of getting beat up". In your view:
 She may have a defence of self defence. Sankoff says it could have gone either way.
Isabel Grant, “The Syndromization of Women’s Experience” 1991 p 967
 Category of Battered woman syndrome: risks transforming the reality of this form of gender oppression
into a psychiatric disorder
 Victim becomes abnormal, whose conduct must be explained by expert
 Woman forced to be semi-objective scale of reasonability to either reasonable man or reasonable battered
woman.  “reasonable woman” may disappear
 Battered woman syndrome associated with form of mental abnormality called learned helplessness 
woman’s perceived inability to extricate herself from the battering environment
 Not necessarily her helplessness that renders her killing reasonable, but repetition + regularity of abuse
and perception of threat to life/safety
 Contradiction in using expert testimony on battered woman syndrome to justify claim of self-defence for
woman who kills abusive spouse
o Evidence used to portray woman as weak and helpless, unable to escape
o YET it supports the instance where she DID act to preserve her own safety. The Act of Killing
ITSELF is not that of a helpless woman
o Killing is not abnormal here, it is a rational way out.
o The fact that she remained in an abusive relationship does not mean she abandoned her right to
defend herself.
Provocation
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Partial defence to offence of murder only. Effect: reducing murder to manslaughter, but cannot result in
complete acquittal.
Escapes mandatory minimum sentence: life imprisonment
Tran: “provocation incorporates notions of both excuse and justification. Defence recognizes that as a
result of human frailties, the A reacted inappropriately and disproportionately, but understandably to a
sufficiently serious wrongful act or insult”
Defence is available where provocation arises from accused’s own actions, so long as accused did not incite
the provocation solely as to excuse the killing
TH: We still have provocation because of the harsh sentencing regime for murder. Provocation is way to
mitigate the sentence, when A had mitigating circumstances.
TH: The defence is WHETHER an insult was enough to provoke an ordinary person to lose self-control (not
to provoke them to commit the act of murder)
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Elements of Provocation
1. A wrongful act or insult;
2. Loss of Self Control: The wrongful act must be sufficient to deprive an ordinary person of the power of selfcontrol (the objective element)
3. Gravity of act: The wrongful act or insult must have caused the accused to lose self-control and act out of
control (the subjective element);
4. Suddenness, in that the killing must be in response to a sudden act of provocation and the accused’s acts
must occur on the sudden before he or she has time to regain self-control
Problems with the Control Element (#3)
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

Hill SCC: the ordinary person has a normal temperament and level of self-control
“Hey shorty! Get a ladder and climb up to my kneecaps”  would not constitute insult to tall person
The insult must be assessed within the context of the person who is being insulted.
S 232 of the Code
Murder reduced to manslaughter
232. (1) Culpable homicide that
otherwise would be murder may
be reduced to manslaughter if the
person who committed it did so in
the heat of passion caused by
sudden provocation.
What is provocation
(2) A wrongful act or an insult
that is of such a nature as to be
sufficient to deprive an ordinary
person of the power of selfcontrol is provocation for the
purposes of this section if the
accused acted on it on the
sudden and before there was time
for his passion to cool.
Questions of fact
(3) For the purposes of this
section, the questions
(a) whether a particular wrongful
act or insult amounted to
provocation, and
(b) whether the accused was
deprived of the power of selfcontrol by the provocation that he
alleges he received,
are questions of fact, but no one
shall be deemed to have given
provocation to another by doing
anything that he had a legal
right to do, or by doing anything
that the accused incited him to do
in order to provide the accused
with an excuse for causing death
or bodily harm to any human
being.
“Wrongful Act or Insult” broad, but limited by (3). On face then: Act itself
must be illegal ie. assault, threat
 but (3) interpreted restrictively, applying to when victim is exercising
positive right sanctioned by law ie. self defence, or right to prevent
commission of a crime
Insult: Act of attacking or assailing injuriously contemptuous speech or
behavior; scornful utterance or action intended to wound self-respect, an
indignity (Finding ex-wife in bed w/ another man is not an “insult”)
Wrongful Act: Contrary to the law in circumstances which it occurred,
conduct wrong according to moral standards of reasonable members of
society; unjustified acts of violence, conduct amounting to sexual assault
Ordinary person: Purpose: invite jury to assess on certain standard/norm.
Critical to the defence that the gravity of the act/insult, its relationship to
ordinary person, was severe enough to make ordinary person lose control.
In past: court look at whether final insult was enough to provoke OP to
murder. Now, court sometimes looks further into complicated
relationship. BUT effect of looking at context turns “ordinary person” into
effectively the accused.
 ex. Thibert: A sleeps with B’s ex wife. A says, you want to shoot me? B
shoots A. A’s statement alone ≠ wrongful act/insult. Cory j held statement
could not be assessed in abstract. Look to long history btw them, and how A
was holding ex-wife on shoulder in possessory manner. This approached has
not been followed in every case.
Tran: Fact: ex-husband goes to new wife’s house, sees her naked in bed with
her bf. Kills both of them. Says: ACT was an insult! Insults of this nature are
not accepted because “Society’s norms and values will not allow defence.
Must align with contemporary society’s norms”.
- Certain types of insults need to be removed from the law.
- S: Future: value needs to get compassion of today’s society. Ie. if you are
provoked by someone who is abusing your sister.
While relevant personal circumstances are important to keep in mind, must
not assess ordinary person standard to assimilate circumstances peculiar to
the individual in the objective standard.
Cannot extend objective test too far, it would allow all sorts of killings
Note: ordinary person cannot be fixed with beliefs that are irreconcilable
with fundamental Canadian values ie. violence against women in some
circumstances is acceptable ie. in islam if they cheat.
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Death during illegal arrest
(4) Culpable homicide that
otherwise would be murder is not
necessarily manslaughter by
reason only that it was committed
by a person who was being
arrested illegally, but the fact that
the illegality of the arrest was
known to the accused may be
evidence of provocation for the
purpose of this section.

Deprive the Accused of Self-Control (Subjective)
Even if the ordinary would loss self control, A must prove they actually lost
their own self control  consider their mental condition, intoxication level
Acted on the Sudden: Imposes 2 restraints on the defence
1) Must characterize both the insult + act of retaliation, measured
exclusively upon what A actually did
 Delay of 5 minutes = too long (Olney)
 Criticism: favours quick temper over slow-burner, favours physical
strength men over women
2) Insult must strike upon a mind unprepared for it
 D not available in cases where A is prepared for insult or initiates
confrontation and receives predictable response
 Pappas: Victim extorting $ from A, threatens for months to kill his mom.
A fed up, goes to V’s house with gun to scare him into stopping. V says “why
should I? I’ve got great insurance”. A regards “insurance” comment as threat
against mother and snapped. SCC says: Evidence shows A was well aware
that V would continue threatening him, A could not claim he was unprepared
for it.
 But Louison: A robs taxi, puts driver in trunk. Lets him out for air. Driver
hits A on head w/ hammer. A takes hammer and beats driver to test. Court
does not let defence of provocation go to jury since it was foreseeable result.
Is courts equation of sudden with unforeseeable acceptable?
- SCC in Cairney: an ordinary person who seeks to extract promise at
gunpoint would not be surprised if person confronted insults him. V’s
response “F u” is predictable. Cannot support element of sudden shock reqd
to cause ordinary person to lose self control
Before the matter is left with the jury, must be air of reality to the claim that accused acted with
provocation (Thibert)
o Air Establish  Left w/ jury  Crown must disprove existence of provocation byd
Criticisms of Provocation Defence
o
o
o
Privileges emotion of anger, while not recognizing other intense emotions (compassion/mercy)
and Gendered: Excuses men for murdering women
1) Provocation’s privileges Anger or Rage
 Isabel Grant “The Law of Homocide”
 “When should an uncontrolled impulse to kill another be seen as frailty justifying
compassion”
 special defence to deal with homicidal rage
 Only available to anger, not pity etc, love, despair
2) Understanding of intense emotion and response that can produce
 Berger, “Emotions and the Veil of Voluntarism”
 Are these emotional responses that we want law to recognize as legit or even
tolerable?
 To view emotions in evaluative way involves recognizing that emotions are
themselves always already based in assessments of and judgments about the world.
Emotions are therefore, open to judgement
 Three implications
o 1) Emotions involve thought on part of actor. Normative reflection and
emotion cannot be separated. Should be open to condemnation.
o 2) Emotions can be mistaken, we can err in our emotions. Open to outside
scrutiny and criticism
77
3) So when person reacts to strong emotion: insufficient to state that
individual’s choice was constrained and therefore his conduct was not
morally voluntary
 Retreats from “moment of judgment”, requires analysis of basis for
emotion
o 3) Deeply gendered nature of defence
 Horder, “Provocation and Responsibility”
 Vast majority of killers are males. In domestic context, men more likely to be
serious aggressors
 Does provocation reinforce conditions in which men are perceived and perceive
themselves as natural aggressors against women? = YES
 Threats to self worth of men result in violence ie. possessiveness, jealousy, domestic
work, attempt to leave partner
 At heart of men’s self worth is their possession and control over their “woman”.
 Provocation should not be viewed as natural, or understandable, or appropriate
response
 Feminists believe we should eradicate this. Should not “legalize” or forgive or have
compassion for violence against women or men’s violence in general
TH: Problems with Provocation:
 Invoked to excuse killings done “in the name of honour”
 Mr. Stone 47 stab wounds, 3 years after parole. Mr. Latimer loves his daughter and gets 10 years
imprisonment.
 WHY ARE WE EXCUSING ACTIONS THAT ARE DETESTABLE??
 Favours male killing actions over female killing actions
 Its fiendishly complex to apply properly
 It is often used as a justification for killing women
 The fact that it uses a reasonable person test to measure someone when someone would snap and kill
someone. Is it ever reasonable?
 Excuses on the basis of personal values that may well be detestable
o
R v Parent SCC 2001 p 763 [intense anger alone cannot reduce murder to manslaughter]
Facts: Parent shot and killed estranged wife. She had initiated divorce 4 years earlier. Financial situation
deteriorate, shares seized and put up for sale. Wife attends sale. They speak in closed room. He shoots her 6 times
after she said “I told you I would wipe you out completely”. He didn’t know what he was doing, aimed infront of
him. Parent argued provocation. TJ = guilty of manslaughter. Crown appeal.
Issue: 1) whether TJ erred in charge to jury 2) whether that error was cured by redirection.
Decision: TJ erred in his direction on intention and recharge did not eliminate possibility that this error led jury
wrongly to find R guilty of manslaughter. Order new trial on second-degree murder.
Reasons:
 Issue 1
o In relation to murder, defence of provocation does not eliminate need for proof of intention to kill,
operates as an excuse that has the effect of reducing murder to manslaughter
o Crown argues TJ erred in suggesting anger is capable of negating intention to kill, and therefore
allows jury to convict of Manslaughter
o TJ: Anger, if sufficiently serious, but not amounting to defence of provocation, may reduce
murder to manslaughter, anger may negate criminal intention for murder = FALSE: these
connected propositions are not legally correct. Intense anger alone is insufficient to reduce murder
to manslaughter.
o Must meet defence of provocation requirements
 1) wrongful act or insult would have cause reasonable person to lose self control
 2) which is sudden and unexpected
 3) which in fact caused accused to act in anger
 4) before having recovered normal control (Thibert)
o Note: anger can cause someone to enter state of automatism, negating AR (Stone)
78

Issue 2: Error was not cured by redirection.
Party Liability
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

When the actual perpetrator and persons other than the actual perpetrator can be held accountable as a
party to that offence
A person who is full participant in the execution of a crime is a principal s 21(1)(a)
A person who assists a crime is liable if its done for the purpose of assisting s 21(1)(b)
Concerns with Party Liability
1. Labelling and stigma: when should a person be stigmatized for participating in something he did not do?
2. Moral blameworthiness: Is a person who just helps as morally blameworthy as another?
3. Sentencing: Is there room today to fix this in sentencing? (What about mandatory minimum sentences)
CDN Position on Party Liability
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For purposes of guilt, law draws no distinction btw parties
Therefore, if you meet reqs of party liability – you committed the offence. (Your record doesn’t show only
party liability. You get same stigma + same label)
You get full conviction, no discount
Degree of participation is worked out in sentencing
Section 718.1 “sentence must be proportionate to the gravity of offence and degree of responsibility of
offender”
Modes of Party Liability (Section 21) Examinable
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

Person who commits the offence s 21(1)(a)
Aids in commission of the offence s 21(1)(b)
Abets the commission of the offence s 21(1)(c )
Common intention s 21(2)
Counseling s 22(1)
TH: Joe and Bob decide to do a robbery together. Bob is reluctant, but Joe encourages him to do it. Joe gets Bob a
map of the jewelry store, and provides a getaway car. Joe never sets foot in the store, where Bob is caught. Joe is
liable for the robbery because:
 He is a party to the offence under s 21(1) because they acted together. They do not need to be parties to
every act, but they are in agreement that they will commit the offence.
 Step 1: Are they are Party? If they are in agreement that they will commit the offence.
 Step 2: Was the AR committed? Yes
o Do not need to attach every element of AR to every actor to get them as a “party”
 Step 3: Do they have MR? Yes
TH: Ryan Gosling in Drive: Aided in commission of the offence under s 21(1)(b).
 Don’t need to go down path of common intention because you can get him for willfully blind.
Section 21(1)(b): Aiding
Everyone is a party to an offence who does or omits to do anything for the purpose of aiding any person to
commit it
 Limitation: the law of omission has been incorporated into this provision. Only punished for an omission to
a party if you had a duty to do something
o Example: case from 1st term where dad let son grow weed on his land. Dad acquitted, not a party
because he had no duty to report his son.
 BUT – not all omission are omission
 Lai, 2006:
79
Group of young people enter karaoke bar and beat victim to death. Accused did not beat, but was
part of group that entered hallway in threatening way.
o Not an omission.
o Accused acted with goal of crowding the area to “prevent or hinder interference with
accomplishment of criminal act”
 For the Purpose: intentionally or with knowledge (including willful blindness)
o Imposes higher MR requirement than some of the crimes for which person is charged
o Roach 2004
 Accused charged with assisting in fraud
 Fraud committed when person dishonest and reckless about whether other will be
deprived
 Jury charged that Roach guilty if he was reckless about whether victims would lose
 Conviction overturned. Could not be convicted unless he acted for the purpose of depriving
(with full intention)
 Caveat: with predicate offences
o Example: Joe decides to commit a robbery. He does all the work, but his friend Brian helps him out
by supplying him with a shotgun, knowing that Joe plans to rob a bank. A bank is robbed and Joe is
charged, but he is acquitted. The police then find out about Brian and charge him.
 Under the circumstances: Brian can be convicted.
 Does not matter if the offence ever takes place, or if Joe is acquitted. BUT healthy discount
in sentencing because there was no harm.
TH: Joe is standing outside a bank as it is being robbed. He never enters the bank, and never communicates with
anyone inside. Under these circumstances:
 Joe could be convicted just for standing outside, so long as he did so for the purpose of aiding the robbery.
o
R v Greyeyes 1997 p 531 [If your assistance is directed to purchaser, person charged is aiding possession, not aiding
trafficking]
Facts: Takes undercover cop to house where they are trafficking drugs.
Issue: Can A be charged with trafficking?
Decision: Greyeyes is guilty of trafficking.
Reasons: (Lheureux Dube J) (Narrow)
 His assistance was essential to complete the sale – never would have taken place without him.
 Traffic: “sell administer, give, transfer, transport, send or deliver the substance”
 Creative judicial solution: You can either be a party to possession OR trafficking. KEY: whether your
assistance is directly incidental to the purchaser.
o If your assistance is more in assisting the purchaser, proper charge would be aiding an abetting the
possession of narcotic, not trafficking.
o In this case, he did the negotiating, he accepted money after the fact
Dissent: (Cory J): BROAD
 Anyone who buys is helping in the selling = essentially aiding
 The purchaser can be convicted of trafficking.
 Greyeyes was acting not just as a purchaser, but also as an agent
 Anybody except the purchaser is guilty!
 Nuances can be dealt with in sentencing
Dunlop and Sylvester v The Queen SCC 1979 p 537 [Mere presence is not enough to ground liability, must HELP and
have knowledge about what is going to happen]
Facts: A convicted for part in mass rape of 16 yr old. No evidence that these 2 guys who delivered beer to scene
saw what happened, then they left.
Decision: Not guilty of aiding and abetting
Reasons:
 Mere presence not enough – needs encouragement of principle offender, an act which facilitates
commission of the offence
o Ie. Keep watch on enticing victim away
80
Ie. Act which tends to prevent or hinder interference with accomplishment of the criminal act 
preventing escape, being ready to assist prime culprit
 Presence at commission of offence can be evidence of aiding and abetting if accompanied by other factors,
such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the
purpose of encouragement.
 Person is not guilty because he is present at the scene and does nothing to prevent it
 One must be able to infer that A had prior knowledge that an offence of the type committed was planned ie.
their presence was with knowledge of the intended rape
Dissent: Martland J
 It’s for the jury to decide. There was sufficient
o
R v Jackson SCC 2007 p 542 [Mere presence is enough to ground acquittal, but if evidence can show more than mere
presence, court can conclude guilty.]
 Difference btw law of evidence and criminal liability
Facts: Found at site where producing weed, not a ton of evidence to show he participated. Argues he didn’t do
anything.
Decision: presence of crime in circumstances consistent with innocent will not = innocence. Evidence finds
otherwise, being at crime scene for 5 days, even though not actually caught in act.
R v Salajko 1970 p 539 [Mere presence not enough to convict]
Facts: Girl raped by 15 men in a field. 3 charged. 2 identified as having sex. She admits one guy didn’t rape her, but
pleasured himself watching.
Decision: Mere presence is not enough to convict
Today: Sankoff: would be decided differently today. He is essentially part of a gang that has decided to gang rape,
he is encouraging and signaling approval.
Party Liability - Intent


The mental state of the principal is the one required in the code
The mental state of the assisting party is from s 21(1)(b)  know that they will commit offence
R v Nixon 1990 p 543 [MR requirements are different btw principal and assister]
 Officer knows that by throwing criminal into jail cell, he will get beat up
 Officer has duty to protect people in their custody
 Requires intent to apply force, knowing absence of consent
 But for Nixon, there is NO intent to apply Force
 Instead, there is KNOWLEDGE that assault will take place
R v Helsdon ONTCa p 545 [21(1)(b) imposes HIGH MR, A must know or be willfully blind
Facts: A (reporter) charged with aiding publisher in breaching publication ban by submitting story that contained
name C in sexual assault case. Story subsequently published by Annex
Issue: whether appeal judge erred in finding that A had necessary MR to make him liable as an aider of abettor
under ss 21(1)(b) or (c) of code to the offence of publishing article
Decision: Restore verdict of Acquittal
Reason:
 S 486(5): offence does not req subjective knowledge of existence on publication ban
 Crown must only establish intent to publish offending info, upon proof of failure to meet an objectively
determined standard of care
 Whether the MR necessary to hold A liable as aider or abetter to the offence is the same as that for the
principal, or if, as A argues, is higher, requiring an element of subjective MR to the existing of the
publication ban
 A’s act in preparing and filing the offending article with the newspaper for publication was sufficient to
constitute the AR necessary to make him an aider to Annex’s offence under s 21(1)(b)
 Crown Argues:
o MR for aider  only objective test
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If subjective MR, than all members of media would escape liability for breaching publication bans,
since Crown would have to prove they knew ban was in place
 Disagrees with Crown
o 21(1)(b) imposes HIGH MR
o Objective mental element inconsistent with expressed requirement of “purpose” which = intent
o Ex. R v Roach rejects that subjective recklessness was sufficient to satisfy MR for party liability
o Crowns argument that when offence does not use full MR, 21(1)(b) should also not use full MR is
WRONG. This would require reading down plain language of 21(1)(b)
o Jackson does not stand for proposition that only Objective is necessary, only that importing
objective MR element applied solely to consequences of unlawful act
 21(1)(C) does not require “for the purpose” but Crown must prove that A intended his words or acts
encourage the principal
o Courts commonly treat MR requirement as the same
Class Notes:
 Party liability requires AID or ABET for the purpose
 This means WITH INTENT
 Heldson: where element of offence normally objective, party guilty ony where SUBJECITVELY knew
 True also of reckless elements
 BUT conequens of unlawful acts treated the same way
 IF if know the other person will assault, I can be guilty of manslaughter if victim dies (reasonable foresight
of bodily harm) (and elements met)
o
EXAMPLE: If it’s a predicate offence (unlawful act with objective consequences).
A and G hate Bob. Bob sees A&G start running. A trips Bob to stop him. Greg then beats bob up. Bob dies from
injuries. A says he only thought Greg was going to beat Bob up, not kill him.
 Even though statute says “for the purpose”. He subjectively knew that he was helping Greg assault.
 But helper should not get off bc 21(1)(b) requires subjective MR
 Where a person commits an unlawful act, or assists knowing of the commission of an unlawful act, that has
consequences
o That person is liable so long as its reasonably foreseeable
R v Popen 1981 p 549 [Must know what is going to happen, must know that you are helping]
 Wife beat newborn. Husband shocked, or otherwise unable to react. Charged as party to manslaughter.
 Court held: no evidence that A had done or omitted to do anything for the purpose of aiding his wife inflict
injuries on child
o Even if his omission to act had effect of aiding, no evidence to prove it was for the purpose of aiding
o The fact that he was shocked gets him off party liability
 Where D has right to control actions of another and deliberately refrains from exercising it, his inactivity
may be positive encouragement to other to perform act, and therefore as aiding and abetting
o BUT A was never present during abuse of child
o  Could be criminally negligent for failing to protect child
o Necessaries of life in s 197 = duty to protect child from harm (also echoed in CL)
R v Palombi 2007 p 550 [Must know what you are doing is going to help, and also intend to help. By omitting to help
does not automatically= encourage/intending to help]
Facts: Take newborn home. Unclear who abused the child. A charged with aggravated assault
Issue: Can A be a party to the offence?
Decision: Order new trial
Reason:
 Party Liability
o He omitted to act while under a duty which helped his wife commit crime
o A, by failing to intervene to protect child, assisted/encouraged co-accused in assault of child
o Jury instructed that Palombi is guilty if “she had knowledge of the type of offence” being committed
by partner
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Knowledge of acts not enough
Where the point was made that knowledge of the principal offender’s acts can be cogent evidence
of requisite MR,
 Whether in fact A had requisite intent always remains question for jury
She Must act or fail to act with intent to help
Sankoff says: she should be guilty if she knew the act was taking place, and be morally certain that her
omission contributed to the act taking place.
Palombi wants subjective thought of KNOWING you are assisting, is necessary to be criminally guilty.
Palombi develops Dunlop and Sylvester. Knowing of the act is not enough. Must know you are assisting.
o
o
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Common Intention (21)(2): ONLY way to convict PARTY for UNFORESEEN EVENTS
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Where 2+ person form intention to carry out unlawful purpose…and any one commits offence, each of
them who knew or ought to have known commission of offence would be probably consequences are
parties to offence
What it means:
o First: 2 people agree to carry out unlawful purpose (ie. we are going to rob the store)
o But: don’t agree to what happens next
o One guy punches someone
o Both are guilty of assault  because he OUGHT TO HAVE KNOWN that could happen
Once you are engaged in an unlawful purpose, you are GUILTY for everything your partner does (Except
for Murder: logan), if it was reasonable event
R v Kirkness SCC 1990 p 553 [Minority: Show that he knew death was probable consequence after sexual assault]
Facts: A and his friend snowbird break into Ms. Johnsons house after night of partying, at suggestion of A. One
entered through window, then opened backdoor for snowbird. Snowbird went into her bedroom and sexually
assault the 80 yr old woman. A remained in hallway and stole stuff. Then snowbird begin to choke woman and put
her in bath tub with hot water running. Jury acquitted A.
Decision: Acquitted
Reasons:
 A is not guilty because he removed himself from any joint enterprise with snowbird that involved killing of
Ms. J after he told snowbird to stop
 Dissent (Wilson)
o To establish liability under s 21(2)
 1) Show that A formed an intention in common with others to carry out unlawful purpose
and assist them in achieving that purpose
 Common intention can arise right before, need not be pre-planned
 A share common intention with Snowbird to rob house
 2) A knew or ought to have known of the probable commission of acts which constituted
offence
 A) Commission of ultimate offence has to be probable
 B) A must know or ought to have known of this probability
o Abandonment (Once you have a common intention, what are you in for??)
 A absolve himself of liability for acts of the principal if he can show that he abandoned his
purpose to assist in commission of criminal offence
 A will be held to different standard depending on his involvement in the crime
 Issue is: the quality of the withdrawal
o Liability under s 21(2) does not require A to assist directly in act causing death. Sufficient that
manslaughter was probable consequence of offence which A aided or abetted
 Should have put to jury: whether A aided Snowbird in crime which was of type that could
have caused bodily harm
R v Logan SCC 1990 p 561 [Someone can be charged under s21(2) for murder, but strike out words “ought to have
known”, must have subjective intention]
Facts: A’s commit armed robbery and are convicted with murder pursuant to 21(2)
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Issue: Do A’s have requisite MR?
Decision:
Reasons:
 Guilt will be worked out in sentencing
 Armed robbery is serious enough sentence
 It is not unconstitutional to use “ought to have known” under 21(2) to charge criminals with MOST
offences
 Only a select list, ie. Attempted murder, will require subjective intention. In that case, cross out works
“ought to have known”
Counselling as a Form of Participation (S 22)

Counselling is a form of participation
R v O’Brien 2007 p 564 [If you push someone to do this, you can be guilty. Requires heavy level of encouragement]
Facts: A convicted of counseling Brandy to rob a convenience store. Brandy was drug addict who bought drugs
from A. She was robbing store to get more money for drugs.
Section 464: Counseling of a crime that is never committed is still a crime.
Attempts
Introduction
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Criminal liability for incomplete offences
Described as form of inchoate liability because the full offence is not completed
Require proof of the prohibited act and fault
Developed and established by common law (Cline)
Big Questions
o Boundary btw innocent behavior and criminal conduct?
o At what stage does planning to commit a robbery become a crime?
The Offence
A person who tries to commit a criminal offence but does not succeed can nevertheless be found guilty of
attempting the offence if his conduct falls within the terms of s 24:
24(1) Attempts
(1) Everyone who, having an intent to commit and offence, does or omits to do anything for the purpose of
carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible
under the circumstances to commit the offence.
24(2) Question of Law
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not
mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is
a question of law.
Fundamental Points


Attempt law alters the standard AR & MR required to commit ANY offence! Must comply with s 24 to
convict
Different sentencing regime! Section 463 of Code
o Summary conviction the same!
o If Crime is punishable by life: Max Life = Max 14 years
o For Crimes with Max Life 14 or less = ½ of available Max
o Attempt Murder – Special s 239 (no min. unless firearm used)
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Actus Reus
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Law does not have to wait for complete AR
BUT: Accused must have gone beyond preparation for the offence?
Note: Ideas alone are not punishable, no matter how sinister
Is an Act or omission mere preparation and TOO remote?
R v Cline ONTCA 1956 p 572 [Preparation vs. Attempt]
Issue: whether or not an act is sufficient in law to constitute an AR
 Each case must be determined on its own facts, with due regard to
o The nature of the offence and
o Particular acts in question
 IS an act, an act of preparation only? Or an attempt?
Consummation of a crime comprises a series of acts which originate in idea to do criminal act
1) Idea develops to a decision to do that act
Too Remote in connection w/ crime
2) Plan may be made for putting decision into effect
Too Remote in connection w/ crime
3) Preparation only for carrying out the intention and plan
Too Remote in connection w/ crime
4) Preparation fully completed
Too Remote in connection w/ crime
5) Next step done for purpose and with intention of committing the
specific crime as planned
 Not TOO REMOTE. The connection is
close enough in proximity to the crime.
Sufficient to establish AR
AR Examples:

Joe plans to murder Bob. Buys a knife and lies in wait. Arrested while waiting. Cannot be charged with
attempted murder.
TH: Evidence showed he was hanging around on a street corner wearing dark glasses, with intent to find young
boys he could lure down an alleyway. What would be the MINIMUM to show a culpable AR of attempted sexual
assault?
 Just standing on corner = not enough (but could... Since question states he has intent)
 Just standing on Corner + had done it before = ENOUGH!
 Evidence he approached a young boy and was talking to him = ENOUGH!
 Evidence he approached a boy and asked him to go down alley = Can get him before this!
Six Principles of Attempts from Cline
1. Must be MR and AR to constitute crim. Attempt, but criminality of misconduct lies mainly in intention of
the accused
2. Evidence of similar acts done by A before he was charged, and also afterwards (if such acts are not too
remote in time), are admissible to establish a pattern of conduct which Court can infer MR
3. Such evidence can be advanced in the case for prosecution
4. Not essential that AR be a crime or tort or moral wrong or social mischief
5. The AR must be more than mere preparation (Factual Issue)
6. BUT, when preparation is fully complete and ended, next step constitutes AR sufficient in law to establish a
criminal attempt to commit the crime
Deutsch v The Queen SCC 1986 p 573 [Preparation vs. attempt left to common sense judgement; Look at the
relationship btw the nature and quality of the act & nature of complete offence]
Facts: A charged with attempting to procure female persons to have illicit sex w/ another person contrary to s
212(1)(a) (as it is now). The A placed ad in paper for secretary, 3 women apply + policewoman, state during job
interview A indicated as part of job woman were req. to have sex with client where it was necessary to conclude
contract. Women could earn up to 100k per year. TJ acquitted bc acts not gone beyond preparation bc he did not
OFFER the job to women. CA switch. SCC uphold CA.
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Issue:
Decision: New trial bc TJ did not make finding as to whether there was the necessary intent to procure
Reasons (Le Dain J + unanimous)
TEST:
1. Look at the relationship btw the nature and quality of the act & nature of complete offence
 Law does not provide good distinction btw preparation and attempt  must be left to common sense
judgement
 IF the A had the necessary intent to induce the women to seek employment that requires sex, and
holding large financial rewards, could constitute AR of an attempt to procure
2. Examine proximity of act taken to final act
o Little else that A would be required to do to complete offence other than to make formal offer of
employment
o Before offer of employment made, Applicant would have to seek the position.
o Holding out financial reward in course of interview = a step in the commission of the offence = AR
of attempt
Mens Rea
Is the MR for an attempt the intent to commit the complete offence or could it be something less?
R v Ancio SCC 1984 p 574 [MR for attempted murder is not less than specific intent to kill]
Facts: Ancio wanted to speak with estranged wife, broke into building with loaded shotgun. Wife living with
Kurely, investigates sound of breaking glass, threw chair at Ancio. TJ found that Ancio broke into apt. with intent to
use weapon to force wife to leave and convicted him of attempted murder (s 230(d)). CA overturn and order new
trial. Crown appeal to SCC
Issue: What is the intent req for an attempt to commit murder?
Decision:
Reasons:
 Intent to commit the desired offence is basic element of the offence of attempt
 Crown: intent req for conviction of attempted murder is intent to do that which will, if death is caused,
constitute commission of murder
 Respondent: Logic and principle dictate that intent should be limited to specific intent to kill
 Intention to commit the complete offence of murder requires intention to kill. MR for an attempted
murder cannot be less than specific intent to kill. Higher req is necessary
o Recklessness will not suffice, may lead to attempted aggravated assault
o Note: Cannot have attempted Manslaughter! Impossible. Must intend to aggravated assault or
intend to kill.
o Note: Cannot have attempted criminal negligence causing bodily harm.
Ancio: Why is Intent to cause result important?
 A wishes to cause bodily harm to B, but is stopped from doing so
 There is no objective foreseeability in the law of attempts.  A cannot be charged with attempted
manslaughter, will be charged with attempted aggravated assault
 Provocation exists to lower harshness of murder. Don’t need to mitigate attempted murders because there
is already a flexible sentencing regime.
R v Logan SCC 1990 p 576 [Change Ancio: MR for Attempted murder is Subjective foresight of death]
Facts: A charged with number of offences related to robbery of Becker’s store and wounding of cashier. Two of the
A’s convicted with attempted murder. ONTca set aside the conviction.
Issue: MR for attempted murder?
Decision:
Reason: Lamer CJ
 Ancio = specific intent to kill  but didn’t answer if this was constitutional
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
Martineau: no one can be convicted for murder, as const. req., unless Crown proves BYD that person had
subjective foresight of fact that death of victim likely to ensue
o Because of both the stigma and severe penal consequences
 Vailliancourt: PRJ req minimum degree of MR for only very few offences, based on stigma + penalties
available
o There will be serious social stigma impose don A upon conviction
 The MR for attempted murder cannot, w/o restricting s 7, be less than mental element required for a
murder
o Subjective foresight of the consequence of death
o Objective foresight is not sufficient or attempted murder or murder
LHD: Dissent
 Intent to murder as in Ancio should be constitutionally required intent ie. INTENT TO KILL, not slightly
lower knowledge required (subjective foresight of consequence of death)
 Ancio requires specific intent to kill and held that no lesser MR will suffice
R v Sorrell and Bondett 1978 [If only AR evidence available, MR must be proved w/ extrinsic evidence. Without this,
even though AR looks like crime, it may be insufficient to show acts done with intent]
Facts: A charged with attempted robbery of manager of fried chicken store. Store closed 15 mins early, A’s came
with balaclavas on head and gun in hand, knocked on door, Manager said store was closed, A’s left, police called,
and A’s were arrested down the block.
Decision: Acquitted by TJ. Crown Appealed to CA. CA: Acquitted
Reasons:
 TJ find that necessary intent to commit robbery was not proved BYD
 Acts done by them clearly had advanced beyond preparation, and were sufficiently proximate to constitute
attempt
 Prosecution had to rely on acts of the Accused to constitute AR and MR
 There is no extrinsic evidence of intent, acts of the accused, which on their face look like attempted
robbery, may be insufficient to show that acts were done with intent to commit the crime.
MR Examples
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William: (Guy had HIV, lied about status)
o Charged w/ aggravated assault – assault that endangers the life of complainant
o She caught HIV
o There was evidence they had consensual sex before he found out he was HIV positive
Answer: Not guilty of aggravated assault, because of problems involving factual causation
o Aggravated assault requires: endanger life of complainant. Must show that your act put them at risk
of HIV, or gave them HIV.
 Therefore, if you don’t know if you have HIV, can you put the victim at risk? NO. = Legal
Sex. But after he found out = illegal sex.
 Science can’t prove WHEN she caught the HIV. So this is a problem of Factual causation.
o SINCE you can’t prove he was guilty of Aggravated Assault. Then Charged with Attempted
Aggravated Assault.
 Did he know he was going to endanger her life? YES. (doesn’t matter whether she had HIV
already or not, all that matters is the possibility to commit the crime)
Impossibility
Can a person be guilty of an attempt when completion of the offence is for some reason impossible? YES
 Impossibility is not a defence to an attempt?
 Only Imaginary Crimes are impossible to commit
 Even though all fake stuff involved, Police can still get a guy for a sting operation
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US v Dynar SCC 1997 p 579 [Factually impossible attempts, as opposed to imaginary impossibility, should be convicted
of attempt]
Facts: R, CDN citizen, subject of failed sting operation by FBI. Charged with attempting to launder money and
conspiracy. R agreed to launder money for undercover agent. Arrange meeting for agent to give R money. Sent
associate to meet FBI agent. FBI abort operation before money laundered.
Issue: Whether R’s conduct amounts to attempt?
Reasons: Cory J (+ 5)
 Code s 24(1): …is guilty of an attempt to commit the offence Whether or not it was possible under the
circumstances to commit the offence
 On the face: does not matter whether Mr. D could have possibly succeeded or not.
 Respondent argues: parliament in s 24(1) did not intend to criminalize all attempts to do the impossible,
but only “factually impossible”.
o Attempt to do factually impossible is an event that runs up against intervening obstacle, and cannot
be completed
 Ie. pickpocket put hands in man’s pocket intending to steal wallet, only to find no wallet
o Legal impossibility: an attempt that would fail because even if completed no crime would have
been committed
 Respondent is wrong. S 24(1) draws no distinctions btw attempts to do the possible but by inadequate
means, attempts to do the physically impossible and attempts to do something that turns out to be
impossible “following completion” . These are all factually impossible
o ONLY attempts to commit imaginary crimes fall outside the scope
 Imaginary crime = bringing sugar into Canada believing importation of sugar is a crime.
 Should not be troubling that AR does not constitute AR of full offence of money-laundering, because then
he would be guilty of complete offence
 Law of attempt only engaged here when the MR of the completed offence is entirely present, and the AR is
present in an incomplete but more-than-mere-prepatory-way.
 Purpose of law of attempt; to be deterrent of subsequent attempts
 Impossible attempts
o Such attempts are no less menacing
o Only thing that makes it impossible is CHANCE
o Person should still get charged with murder even though circumstance that makes AR possible isn’t
there (ie. actually killing someone bc that person passed away in their sleep moments before
murderer got there). Attempts prevents them from trying to kill someone again!
Abandonment
Can you ever abandon once you’ve don’t act beyond mere preparation? NO.
 guilty of attempt when you go beyond mere preparation
Example: Joe wishes to set a house on fire. It's a windy night, and he's only brought a pack of matches. He tries to
light the matches, but after a number of tries - he fails. He then decides this was a bad idea, and decides not to burn
the house down. Under these circumstances:
 Joe is Guilty of Attempted Arson
 Doesn’t matter that it was seemingly impossible, or that he abandoned it.
 Court looks fondly on abandonment, gives discount on sentencing.
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