Table of Contents
Departures from Subjective Mens Rea ........................................................................2
R. v. Sault Ste Marie 1978 SCC – Strict liability, guidelines for strict/abs/true crime ................ 3
R. v. Chapin 1979 SCC – strict vs absolute liability ....................................................................................... 4
R. v. Kanda 2008 ONCA – application of Sault Ste Marie, policy goals/reasoning........................ 4
Objective Fault ...........................................................................................................................................................4
R v Tutton 1989 SCC CM – modified objective standard in criminal negligence .......................... 7
R v J.F. 2008 SCC - Difference between penal and crim neg .................................................................... 7
R v Hundal 1993 SCC - applying the modified objective standard ...................................................... 7
R. v. Beatty 2008 SCC - marked departure + moral blameworthiness ............................................... 8
Mens Rea and the Charter .....................................................................................................................................9
Relevant Charter Provisions: ...............................................................................................................................9
Reference s.94(2) of the Motor Vehicle Act 1986 SCC – Charter interpretation ..........................11
R. v. Raham 2010 OCA – Upholds SSM in Charter era, constitutionality presumption .............12
Stigma and the Mens Rea of Murder .............................................................................................................. 12
R. v. Martineau 1991 SCC – Stigma of murder + s.7 + intent .................................................................12
R. v. DeSousa SCC 1992 – Application to not-murder offences .............................................................13
R. v. Creighton SCC 1993 - Objective MR test ...............................................................................................13
Wholesale Travel Group v. R. SCC 1991 – strict liability + reverse onus ..........................................15
Defences ................................................................................................................ 15
R. v. Cinous 2002 SCC – Air of reality test .......................................................................................................15
Mistake of Fact ........................................................................................................................................................ 15
R. v. Kundeus 1976 SCC - .........................................................................................................................................16
Pappajohn 1980 SCC – honest belief, reasonableness...............................................................................16
R. v. Ewanchuk 1999 SCC – communicating consent ................................................................................17
Provocation .............................................................................................................................................................. 18
R. v. Hill 1985 SCC – ordinary person + test from provocation .............................................................18
R. v. Thibert 1996 SCC – air of reality in provocation ...............................................................................18
R. v. Daniels 1983 NWTCA – past relationship + limitations to the “sudden” requirement ....19
R. v. Tran 2010 SCC – ordinary person + relevance of subjective factors ........................................19
R. v. Nealy 1986 OCA – looking at mitigating elements collectively ..................................................20
Provocation Summary .............................................................................................................................................20
Mental Disorder...................................................................................................................................................... 21
Statute – Section 16 ..................................................................................................................................................21
Definitions .....................................................................................................................................................................22
How mental disorder operates ............................................................................................................................22
R. v. Chaulk 1990 SCC – “failure to know act was wrong” ......................................................................23
R. v. Swain – burden of proof for 16(3) ............................................................................................................23
Mental Disorder vs. Automatism ........................................................................................................................23
Automatism .............................................................................................................................................................. 24
R. v. Rabey 1977 OCA – disease of the mind + internal v. external causes.......................................24
R. v. Parks 1992 SCC - sleepwalking not a mental illness .......................................................................25
R. v. Stone 1999 SCC – MD vs automatism +test for automatism ........................................................25
Self-Defence ............................................................................................................................................................. 26
R. v. Lavallée 1990 SCC – battered women’s ‘sydrome’ + expert evidence ......................................26
R. v. Pétel 1994 SCC – mistake doesn’t negate access to defence .........................................................26
R. v. Malott 1998 SCC – clarifies Lavallee on reasonable, BWS ............................................................27
R. v. McIntosh 1995 SCC - .......................................................................................................................................27
Necessity ................................................................................................................................................................... 27
R. v. Perka 1984 SCC – elements + moral voluntarism+ excuse v. justification.............................28
R. v. Latimer 2001 SCC – narrow defence + proportionality .................................................................29
R. v. Ungar 2002 OCA – successful defence of necessity ...........................................................................29
Duress......................................................................................................................................................................... 29
Hibbert 1995 SCC – using the common law + exclusions from s.17....................................................31
Ruzic 2001 SCC – modifying s.17 – immediacy, physical presence, harm to 3rd party ..............32
Departures from Subjective Mens Rea
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Only the fed gov can establish a true crime
o Prov gov can only create a regulatory offence
o If using an offence in the Code assumption is that it is a true crime-> use subjective
MR (Beaver, Sault Saint Marie)
o If using an act that is not the Code, whether fed or prov, you need to figure out
whether it is regulatory or a true crime
Step 1) Are you in a true crime or are you in a realm of a regulatory offense?
o Where the statute is silent on MR knowing what type of legislation you have allows
you to determine starting presumption for MR
o Step 1) Are we dealing with a crime in a prov statute?
 If yes= regulatory offense
o Step 1) Are we dealing with fed act? (Chapin)
 1- Look at the punishment and how serious the punishment is
 2- Consider the regulatory purpose
 Chapin- doesn’t prohibit hunting, just regulates it
 Where the predominant purpose is:
o Regulating acts= public welfare offense
o Prohibits= criminal
Starting presumptions of MR:
Types of Crime
Actus Reus
Mens Rea
True crime
Crown needs to
prove each element
BRD
(PWO)/“regulatory”
– Overall (see
below for abs v
strict)
Crown needs to
prove beyond
reasonable doubt
Subjective MR
(what was in the
mind of the
accused) proven
by the Crown
beyond a
reasonable doubt
No MR proof
required
PWO: Strict liability
(e.g. public welfare-
Crown needs to
prove beyond
No MR
Displace starting
presumption of
MR?
Yes, IF clear
statutory language
permits
Defence of due diligence
Yes, by clear
statutory language
(Sault Ste Marie)->
becomes true crime
Yes, for strict liability not for
absolute liability
No, if statutory language alters
MR requirement
Not allowed
Allowed- did everything he could
to avoid the offense (Sault Ste
pollution)- only
need AR
PWO: Absolute
liability (e.g. public
welfare- meat
contamination)

Marie)
reasonable doubt
Crown needs to
prove beyond
reasonable doubt
No MR
Burden of proof is on the accused
to prove defence on balance of
probabilities
Not allowed
Step 2) When working with a PWO, analyse the regulatory scheme to figure out the
required proof for MR
o For PWO starting presumption is strict liability
o If clear statutory language (ex. uses “wilfully”, “intent”, “purpose”, “knowledge”) of
act permits, changes MR to true crime standard (subjective MR)
o To figure out whether strict or absolute liability (Sault Ste Marie):
 1- overall regulatory pattern or scheme
 2- subject matter if the legislation
 3- **gravity of the penalty**
 4- precise language used in the offence creating section
 *In applying these factors consider the judicial repugnance for absolute
liability
R. v. Sault Ste Marie 1978 SCC – Strict liability, guidelines for strict/abs/true crime
A was charged with causing or permitting pollutants to be discharged into clean water contrary to
the Ontario Water Resources Act.
Before Sault Ste Marie, there would have only been absolute liability and true crime
o
o
Now there is strict liability (allows defence of due diligence)
Why?
 Regulating an activity because it may cause public harm, want to provide
an incentive to behave in a way to avoid causing public harm
Starting presumption for PWO is strict liability, with the following burden/standard of proof:
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Crown must establish actus reus beyond a reasonable doubt
Crown need not establish mens rea;
A may prove on the balance of probabilities that s/he took all reasonable care, which
involves a consideration of what the reasonable person would do in the circumstances.
(Defence of due diligence)
o Reasonable and honest belief about a state of affairs that is in reality wrong
 Ex. thought they had a license and complied with it, but because of an
administrative error they didn’t actually have a license
On absolute v. strict liability:

Most often court finds for strict liability
o Rare that they find absolute liability
 Unless:
 The penalty is very low (ex. 25$ for jay-walking)
 The statutory language does not allow for defence of due
diligence/ strict liability
o Charter s. 7
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
Absolute liability and prison cannot be combined
So the court presumes strict liability if there is a sentence of
imprisonment in the offense (Motor Vehicle Ref)
R. v. Chapin 1979 SCC – strict vs absolute liability
A was convicted of hunting within one quarter mile of a place where bait was deposited, contrary
to the Migratory Birds Regulations. She was unaware of the presence of grain
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SCC determines that it is a PWO (application of PWO test)
o 1- Not a true crime-> based on severity of punishment + lack of words that would
import in subjective MR
o 2- Whether there is absolute liability or strict liability (Sault Ste Marie)
 Look to the punishment-> 6 month prison charge
 Serious – implies that there needs to be some possible defence
 Look to purpose of the Act-> regulating hunting/baiting, not prohibit
 Lack of feasibility of compliance as an absolute liability offence-> would
burden the hunter to walk around looking for bait piles = impractical
o 3- Since strict liability is found, defence of due diligence is available
 Court found that she did exercise due diligence:
 Grain would have been difficult for her to see, conservation
officer barely saw
 Familiar with the hunting club, club did not use bait, she had no
reason to expect that there would be bait
Acquitted - would be unreasonable to convict on the facts.
R. v. Kanda 2008 ONCA – application of Sault Ste Marie, policy goals/reasoning
A was charged with driving a motor vehicle while a child under 16 was not wearing a seatbelt.
The issue in this case is whether a person caught driving a car containing a child who is not
wearing a seat belt can raise a defence of due diligence: He testified that his son had unbuckled
the belt at some stage, and that A had checked the belt before he began driving. A was acquitted
under defence of due diligence.
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Deterrent effect of defence of due diligence (as opposed to strict liability)
Strict liability as encouraging good behaviour:
o The classification of strict liability strikes an appropriate balance between
encouraging drivers to be vigilant about the safety of child passengers in their
vehicles and not punishing those who exercise due diligence with respect to
children’s seat belts.
OBJECTIVE FAULT
What the reasonable person should have done, foreseen or known
When do you use objective mens rea?
Use objective MR if the provision uses “negligence” (s.219)-> “ought to know”
Use objective MR if the provision uses “dangerous”, “without reasonable care”,
“unlawful act” (all manslaughter provisions)
S.215(2)- In Naglik SCC determined that objective MR be used for this offence
Penal negligence and criminal negligence are judged on a modified objective standard
(Hundal, J.F.).
What is the difference between civil negligence, penal negligence, and criminal negligence?
What are the relevant differences in the actus reus and the mens rea in crimes of objective fault?
How do we reconcile conflicting SCC decisions in this area?
(Note: constitutional dimensions of moral blameworthiness poke their head in here)
Civil, Penal, and Criminal Negligence
Civil negligence = the tort of negligence. How much of a breach does there need to be? It has
to be a breach of a duty of care -> and the breach has to breach the reasonable standard of care
for the specific duty that applies.
o The standard is reasonableness / reasonable foreseeability.
o In other words, any breach, however minor, will create liability, if proved to a balance of
probabilities.
Penal Negligence. What is the standard here?
o Marked departure from the standard of conduct expected of a reasonable person in all
the circumstances. (Beatty, J.F) (A small slip won’t trigger this liability: that’s the point of
Beatty.)
o This will engender a criminal consequence.
o Includes dangerous driving, perhaps some other crimes as well as criminal negligence
o Has a constitutional dimension because of the possibility of criminalization
o Modified objective MR (Hundal)
Criminal Negligence. This is a subset of penal negligence.
o defined in s. 219, but charged under section using the words “criminal negligence” or
it’s penal negligence
o S. 220-221 provide the offenses under criminal negligence.
o Marked and substantial departure from the expected standard of care. (Tutton, J.F.) ->
More substantial than penal negligence
o Attachs the sigma of criminal conviction
o Modified objective standard (Hundal, J.F.)
How do we identify a crime of objective mens rea?
Rely on precedent, which the best place to start:
s. 249 – Beatty, Hundal
s. 219 – Tutton (McIntyre’s judgment); (R. J.F.)
s. 215(2) –Naglik, where the SCC held that s. 215(2) was objective (necessaries of life)
If no precedent, argue by analogy & look to hint words.
Look to the statutory language – “without reasonable care” (Tutton); “unreasonable” (Tutton);
“negligence” (Tutton); “duty” (Tutton); “dangerousness” (Beatty) “conduct which shows
wanton or reckless disregard” (Tutton)
How do we determine the standard for mens rea?
We will make the reasonable assumption that Charron’s majority in Beatty (SCC 2008)
represents the current state of Canadian law.
The place where the law is undecided is whether the general test for penal negligence (The
Beatty/Hundal test) is the same for the test of criminal negligence. The question is: does criminal
negligence require a higher mens rea standard? There is some case law to suggest it does.
o The phrase used is “marked and substantial departure”.
o Does this signify a higher standard? It is contested whether this distinction exists.
o Discussed but not resolved in R. v. J.F. (though the court seemed favourable to
it)
o The outcome? Three standards of liability for negligence – civil, penal, and the
most serious, criminal negligence
Section 249 is the section around which Beatty and Hundal revolve. It is the exemplar for penal
negligence:
Actus Reus. What Charron tells us in relation to the actus reus of s. 249 is that the trier of fact
must be satisfied BRD that, viewed objectively, the accused was “driving in a manner that was
dangerous to the public, having regard to all the circumstances, including … the place the vehicle
is being operated and the amount of traffic …”
o The focus is on the “manner of driving”, not the consequences of the driving.
o “If drinking and driving and running a red light was not a marked departure from the
standard, it did not become so because a collision occurred” R v. Anderson
Mens Rea. The mens rea is judged on a “modified objective standard.” This has two
components: (1) that the conduct amounted to a “marked departure” from the standard of care
that a reasonable person would observe in the accused’s circumstances; and (2) the possibility
for exculpatory explanations.
(1) “Marked Departure” from the standard of care that a reasonable person would observe in
the accused’s circumstances
o Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal
attributes such as age, experience, and education are not relevant (beatty citing
Creighton)
o The lack of care “must be serious enough to merit [criminal] punishment”
o “conduct that occurs in such a brief time frame in the course of driving, which is
otherwise proper in all respects, is more suggestive of the civil rather than the
criminal end of the negligence spectrum” R .v Willock
o In Beatty, the trial judge found “no evidence of speeding, no evidence of alcohol
or drugs, no evidence that he was driving erratically or improperly… and the
crash occurred within a split second”
o Driving, though inherently risky, is a legal activity that has social value. If every departure
from the civil norm is to be criminalized, regardless of the degree, we risk casting the net
too widely and branding as criminals person who are really not morally blameworthy.
o Obviously, if the accused, subjectively, intentionally drives dangerously, this will suffice
(2) If a marked departure is found, “the trier of fact must consider evidence about the actual
state of mind of the accused, if any, to determine whether it raises a reasonable doubt
about whether a reasonable person in the accused’s position would have been aware of
the risk created by his conduct” (beatty)
o Example defences: sudden onsets of disease or physical disability, reasonable mistakes
of fact (the welder)
o If the accused offers an explanation for their conduct or omission, then the trier of fact
has to be satisfied that a reasonable person would have been aware of the risk and the
danger involved in the accused’s conduct in order to convict
o This is best shown in Tutton – withholding insulin from a diabetic six-year old clearly
constitutes a “marked departure”; the tougher thing is dealing with the parent’s honestly
held belief that a miraculous cure had taken place. The court rejected this: they ruled that
the honestly held belief must itself be reasonable in order to constitute an excuse.
The modified objective standard – exculpatory explanations
Charron in Beatty says there is a second way in which this is a modified objective test (i.e. over
and above the “marked departure”): it allows for a defence of exculpatory explanation. If you had
a sudden heart attack, were stung by a bee, took a new medication, or something else happened
– an intervening event – the question becomes, could a reasonable person have foreseen the risk
of that event, and if the answer to that question is no, could a reasonable person have done
anything to avert what happened?
The court characterizes this analysis as a departure from a strict objective test – which is why
they call it a “modified” objective test. To an extent, it takes account of the circumstances in which
the accused found him or herself.
Charron notes that personal characteristics – such as age, inexperience – will not modify the
expectations. [Good question: is this only for driving? Emma says that in Hundal it seemed so,
but in Beatty they seem to open it up to other situations.]
R v Tutton 1989 SCC CM – modified objective standard in criminal negligence
A (x2) stopped giving their diabetic son insulin because they believed he had been cured by the
holy spirit. They were charged with manslaughter under [ss. 215 & 219].



Defense claimed that “recklessness” is subjective standard, they could demonstrate that they
honestly believed that the boy was cured
SCC:
o “wanton and reckless regard”= reasonableness, but need high departure from
standard of care
o Therefore the crown has to prove marked and substantial departure beyond a
reasonable doubt
o If the crown does so, it is open to the accused to defend by proving that they were
relying on honest and reasonable belief
 In this case court found that Tutton’s belief was honest but not reasonable
Lamer J: In applying the “objective norm”, there must be allowance for factors particular to A,
such as youth, mental development and education.
R v J.F. 2008 SCC - Difference between penal and crim neg
A was convicted by a jury of “manslaughter by criminal negligence” and acquitted of
“manslaughter by failing to provide the necessities of life”. Child killed by foster mother, father
was charged with criminal negligence in failure to protect the child from his spouse
 The jury’s verdict answered ‘“yes” and “no” to essentially the same question.
 On failure to provide the necessities of life, Crown had to prove marked departure from the
standard of conduct of a reasonable parent.
 On criminal negligence, Crown had to prove marked and substantial departure.
 Convicting JF of the higher mens rea (criminal negligence) while acquitting on the lower (penal
negligence) is incomprehensible.
o A must be acquitted.
R v Hundal 1993 SCC - applying the modified objective standard
A hit another car and killed the driver after running a red light. His truck was overloaded and he
stated that he had been unable to stop for the light but had honked. He was charged with
dangerous driving under [s.249].
 Issue - whether subjective MR is required to prove dangerous driving and whether
dangerousness is measured in a moment or in a collective act
o
Whether the crown has to prove that the accused knew the act was dangerous while
driving
o Court says judge objectively, based on what a reasonable person would have
done
o Reasonable person test, which is objective, but that reasonable person is
modified by some of the personal characteristics of the accused (modifiedobjective test)
 Generous allowances in considering personal characteristics, such as:
 Stroke/ heart attack-> unexpected, reasonable person cannot
predict therefore cannot prove marked departure from
reasonable person, not voluntary
 Honest and reasonable perception of info received- welder
example (para 40), relies on reasonable information
 Whether in order to determine a marked departure, should consider the moment or the
circumstances leading up to the dangerous act
o Court says should look at the pattern of behaviour, not just the moment
 In this case the truck was overloaded and he went through several red
lights before hand
 If A offers an explanation, the trier of fact must consider whether a reasonable person in A’s
shoes would have appreciated the risk and danger inherent in that course of action.
 McLachlin J: objects to the language “modified objective test” but agrees that regard should
be had to all the circumstances, including what A knew, in determining whether A was
criminally negligent.
R. v. Beatty 2008 SCC - marked departure + moral blameworthiness
A was charged with dangerous operation of a motor vehicle causing death contrary to s.249. A’s
truck crossed the centre line of a highway into the path of an oncoming car, killing all three
occupants. A was found to have had a momentary lapse of attention.

Charged with s.249- dangerous driving (penal negligence) -> requires a marked departure
from standard of care
o “dangerous”= objective m/r
o Does not mention “crim negligence”, so is a penal negligence offense
 Offence seeks to punish morally blameworthy conduct-> momentary lapse does
not meet moral blameworthiness intended in the CC (uses s.7 of Charter as
support)
 Everyone has moments of lapse of attention while driving
 Driving is dangerous and has a social benefit
o In what circumstances should we, as society, attach a crim stigma for an act of
dangerous driving? (policy issue)
o AR satisfied where A meets all requirements of the provision (s.249)
 Look to each clause of the offense creating section
 Licensing regime establishes the standard of care of a reasonable person
 What does dangerous mean?
 In relation to AR = does it pose an objective risk to the public
o Dangerousness of conduct can’t be determined from the
consequences of the act (fact that they died is not
determinative), but can be determined based on the
circumstances of the act
 Conduct- operating of a motor vehicle (voluntariness- negated if have heart
attack or epileptic fit)-> MR: intention to drive (subjective)
 Circ- dangerous in all circ… -> MR: marked departure from std of care
o
o
(objective)
(marked departure cannot be determined from
consequences of the act)
 Consequences- causing bodily harm-> m/r: n/a
MR= marked departure from standard of care (Hundal, clarified in Beatty)
Requires either deliberately dangerous conduct or that Crown demonstrate a
reasonably prudent driver in A’s situation would have been aware of the risk and
acted to avert it
 Step 1- Was the accused’s behaviour a marked departure from the
standard of care expected of a reasonable person in the accused’s
situation (objective circumstances- such as state of weather, state road,
etc.)?
 If yes, step 2:
 Step 2- Whether step 1 is modified by what the accused reasonably
understood (personal understanding- ex. welder example from Tutton,
mistake of fact)
 Not only what the accused claims they knew, but that this belief is
reasonable
MENS REA AND THE CHARTER
RELEVANT CHARTER PROVISIONS:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
LIFE, LIBERTY AND SECURITY OF PERSON.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
SEARCH OR SEIZURE.
8. Everyone has the right to be secure against unreasonable search or seizure.
DETENTION OR IMPRISONMENT.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
ARREST OR DETENTION.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if
the detention is not lawful.
PROCEEDINGS IN CRIMINAL AND PENAL MATTERS.
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the
offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit
of trial by jury where the maximum punishment for the offence is imprisonment for five years or a
more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or
omission, it constituted an offence under Canadian or international law or was criminal according
to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and
punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the
time of commission and the time of sentencing, to the benefit of the lesser punishment.
TREATMENT OR PUNISHMENT.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
SELF-INCRIMINATION.
13. A witness who testifies in any proceedings has the right not to have any incriminating
evidence so given used to incriminate that witness in any other proceedings, except in a
prosecution for perjury or for the giving of contradictory evidence.
EQUALITY BEFORE AND UNDER LAW AND EQUAL PROTECTION AND BENEFIT OF LAW /
Affirmative action programs.
15. (1) Every individual is equal before and under the law and has the right to the equal protection
and equal benefit of the law without discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS / Exclusion of evidence
bringing administration of justice into disrepute.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in
a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the
evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission of it in the proceedings would bring the administration of justice into disrepute.
Comments:
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

Limitations of the Charter
Common law presumptions of MR is susceptible to statutory language to the contrary (Sault
Ste Marie, Beaver)
o Ex. In public welfare offences the presumed MR is strict liability
Before the Charter, the legislature could do whatever they wanted, could make any offence
an absolute liability offence as long as was within their division of powers
o Court dislikes absolute liability, prefer strict liability
o
With Charter, absolute liability can’t have punishment of imprisonment
Reference s.94(2) of the Motor Vehicle Act 1986 SCC – Charter interpretation
s.94(2) of the MVA created an absolute liability offence for driving while unlicensed or suspended.
It was punishable by a minimum term of 7 days imprisonment.
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

Impact of the Charter on legislative competence in relation to crimes AND general
principles of interpretation of the Charter
Charter interpretation
o Language of the Charter is not given a strict interp (Hunter v. Southam), it is to be
given a purposive interpretation (what was the purpose of the right or freedom)
o The rights and freedoms guaranteed by the Charter should be interpreted liberally
and not narrowly (Motor Vehicle Ref)
 US Bill of Rights is given a narrow interp-> In US no exceptions if the
constitutional right is breached
 in Canada there is a compromise re: breach of Charter rights (s.1, s.24(2),
s.33)
 Living tree principle
Issue= whether s.94(2) of the Motor Vehicle act is consistent with the Charter
The legislation
o S.94(2)- creates an absolute liability in which the proof of guilt is driving whether the
D knew of the prohibition or suspension (purely knowledge)
o Courts must measure the content of legislation against the constitution
 Not concerned with whether the policy decision is the best choice, but role of
the court is to make sure the legislatures do not go beyond the limits of
their constitutional mandate
o Purposive analysis of the right
 Issue= determining the scope of the words “principles of fundamental
justice”, based on Parl choice of words
 The principles of fundamental justice are to be found in the basic tenets
and principles, not only of judicial process, of our legal system
 i.e. common law, international conventions, and the Charter
itself
 s.8-s.14 are examples of breaches of s.7 rights to life, liberty and
security in a manner consistent with the principles of fundamental
justice
 s.7 = Belief in the essential dignity of people
Absolute liability in penal law
o The morally innocent should not be imprisoned (fundamental principle)
o Sault Ste Marie- absolute liability in the penal law offends the principles of
fundamental justice
 Absolute liability does not violate s.7 in of itself – it is the combination
of AL with imprisonment that is a violation
 Certain offences (ex. water and air pollution), in the public interest,
require absolute liability
 Combination of absolute liability and imprisonment violates the
fundamental principle and s.7 of the Charter that morally innocent
should not be punished
 Can only be salvaged if the authorities can prove under s.1 that
such deprivation of liberty is in a free and democratic society,
under the circumstances a justified reasonable limit to one’s
rights under s.7
R. v. Raham 2010 OCA – Upholds SSM in Charter era, constitutionality presumption
A was convicted at trial of stunt racing for driving at >50kmh over the speed limit. The appeal
judge held that stunt racing was an absolute liability offence which raised the possibility of
imprisonment, and was therefore in contravention of s. 1 of the Charter.
Illustrates the manner in which Sault Ste Marie and Motor Vehicle Act Reference should be
merged in the Charter era. Points to note:



Sault Ste Marie scheme for deciding strict v absolute continues to apply in the
Charter era
Presumption of constitutionality:
o When interpreting legislation, court will presume a parliamentary intention to
comply with the constitution if the legislation can reasonably be interpreted in a
manner that preserves its constitutionality (i.e. where imprisonment is a
potential sanction, court will try to interpret offence as strict liability);
In considering ‘the precision of the language used’, a court is entitled to have regard to
the potential availability of the defence of due diligence (as a practical matter)
o Question to ask: Whether it might be open for an individual to argue that s/he
took all reasonable steps to avoid committing this offence and not whether s/he
took all reasonable steps to avoid illegality.
o In this case:
 1- pattern did not classify as strict or absolute
 2- subject matter (speeding) is generally an absolute liability offence
 3- potential incarceration implies strict liability (presumption by the courts
that provision is constitutionally valid), would need clear language to
indicate absolute liability
 4- language was neutral re: absolute or strict
 Defence of due diligence, whether took all reasonable steps
to avoid THIS offence (not to avoid breaking the law at all
(i.e. due diligence to avoid speeding at 51km/hr, not due
diligence to avoid speeding at all))
 Application of possibility of due diligence-> is possible
(hypothetically)
o Therefore it can be presumed as a strict liability offence,
so provision is constitutional and accused is entitled to a
new trial
STIGMA AND THE MENS REA OF MURDER


Court held that for “high stigma” crimes, s. 7 of the Charter requires proof of foresight of the
prohibited consequences (e.g. death) before an accused can be convicted (fundamental
principle)
Vaillancourt- court considers m/r and the constitution after the Motor Vehicle Ref
o SCC held that s. 213(d) violated ss. 7 and 11(d) of the Charter, since it did not
require proof of subjective nor objective foresight of death
 At minimum need objective foreseeability of death
 Murder is special, carries a stigma that someone guilty of murder has
intended to cause death
 As such s.213 violates moral blameworthiness of a lesser state than murder
=unconstitutional
R. v. Martineau 1991 SCC – Stigma of murder + s.7 + intent
A was convicted of 2nd degree murder under s.213(a) of the Code, which raises culpable
homicide to murder where A intends to inflict bodily harm to facilitate the commission of a crime
listed in s.213. Martineau testified that he knew that they were going to commit a crime, but that
he thought it would only be a “b and e”, after robbing the trailer Martineau’s friend Tremblay shot
and killed the McLeans, convicted of 2nd degree murder .


Does s. 213(a) of CC infringe rights or freedoms guaranteed by s. 7 and/or s. 11(d) of the
Canadian Charter of Rights and Freedoms ? If yes, it justified by s. 1?
o Vaillancourt- a principle of fundamental justice that before a person could be
convicted of murder there must be proof beyond a reasonable doubt of at least
objective foreseeability of death-> not so in s.213(d)
o Murder carries most severe stigma, therefore need special mental element to attain
culpability required for conviction of murder
o In order to be convicted of murder, s.7 requires Crown to prove BRD that A
meant to cause death or bodily harm likely to result in death (subjective
foreseeability, more than just objective as in Vaillancourt) - any lesser state is
not enough to be convicted of murder
 Otherwise unnecessarily stigmatises person who may not have had
subjective MR to commit murder
Section 213(a) compared with s. 231(5)
o Section 213(a) raises manslaughter to murder in circumstances where A meets the
MR for causing bodily harm.
o Section 231(5) raises 2nd degree murder to 1st degree murder when A has the MR for
murder but lacks the planning and deliberation element.
R. v. DeSousa SCC 1992 – Application to not-murder offences
Threw broken bottle, glass hit innocent bystander. A was charged with unlawfully causing bodily
harm (s. 269). A challenged the constitutionality of this section, arguing that it breached s. 7 of
the Charter.


Need an unlawful offence (predicate offence)
o Cannot be an absolute liability offence
Mental element- composed of two separate requirements:
o 1- Mens rea of the underlying the predicate offence must be satisfied
 Constitutional sufficiency
o 2- Additional fault requirement from wording of s. 269 must also be satisfied
 Objective mens rea is required (objective foreseeability of risk of
bodily harm)
 Meaning of “unlawful= at least objectively dangerous (dangerous as
defined in Beatty)
 Act must be both unlawful and one that is likely to subject
another person to danger of harm or injury
 Bodily harm must be more than merely trivial or transitory in
nature
 Courts want to avoid attaching penal sanctions to mere
inadvertence
 Does not require minimum constitutional requirement for s.7 of
subjective foresight since it does not attach a grave stigma to this
offence as for murder (in Vaillancourt and Martineau)
R. v. Creighton SCC 1993 - Objective MR test
A was charged with manslaughter. V died after A injected cocaine into her arm. A challenged s.
222 on the basis that it was unconstitutional to confine the objective mens rea requirement to a
risk of bodily harm rather than a risk of death.




Common law definition of manslaughter requires objective foresight of harm, but do you
need foresight of death?
Manslaughter
o Predicate offence of an unlawful act or criminal negligence + homicide
 Need reasonable foreseeability of the risk of bodily harm and objectively
dangerous (DeSousa)
Constitutionality of the “foresight of bodily harm” test for manslaughter
o Gravity of the offence
 Proportionate to blameworthiness-> intentional vs. unintentional killing?
 Manslaughter lacks the intention to kill
 But nonetheless someone died, so that should be regarded
o Fault and consequences of the offence
 If one engages in criminal behaviour, one is responsible for any
unforeseen actions stemming from the unlawful (Smithers), liable for the
consequences
 If moral wrong is engaging in the predicate offence-> objectively
dangerous, therefore need to accept consequences of your
actions
 In terms of crim negligence-> departing from std of care is
morally wrong
o Penalty that attaches to offences
 Murder = life imprisonment
 Manslaughter = wide range of circumstances in order to craft sentence
that fit moral blameworthiness
o Therefore moral blameworthiness does not require objective foreseeability
of death
 What level of moral blameworthiness is required depends on the
offence
 There is no principle of fundamental justice/absolute rule that
requires symmetry between AR and MR (re: consequences),
 if the symmetry does not exist then need to find moral
blameworthiness (objectively dangerous or departure from
standard of care)
 Good starting rule that if you have AR consequence element,
that you require a MR consequence element, but there are
exceptions (as shown in this case)
Policy considerations
o Deterrence as a good reason to have a lower level of MR, since want to deter
people from causing bodily harm (and causing death as a result)
o Justice requires that the criminal law account for the concerns of the victim
and for the concerns of society – in this case, that someone has died as a
result of A’s actions.

Objective MR Test:
o Single standard of mens rea for crimes of penal negligence
 reasonable foreseeability of a risk of harm which is neither trivial
nor transitory.
o Only exception to this rule is if A lacks capacity to appreciate the risk.

Standard of care can be breached in more than one way:
 Operating dangerously (decision to act in the first place given lack of
experience) or
 Grossly negligent
 Ex. Brain surgery
 Standard of actions is that of a reasonable, prudent person in
that position (i.e. brain surgeon)



Average person should not even be doing it= breaching the std
of care
Punishing because you are a risk to society rather than punishing
because you are bad
In this case
o Trial judge

Creighton committed the unlawful act of trafficking in cocaine, guilty of
the criminal negligence, using the standard of the reasonable person
o SCC
o Agrees but adds the question of whether the reasonable person in all the
circumstances would have foreseen the risk of bodily harm?
 Yes - Injections pose a reasonably foreseeable risk of harm
Wholesale Travel Group v. R. SCC 1991 – strict liability + reverse onus
 The reverse burden of proof in strict liability does not breach the Charter either
because it doesn’t violate s. 11(d) or because it is saved by s. 1.
Defences

Air of reality test (general test for defenses) (Cinous)
o Defence must raise air of reality to the defence
o Akin to an evidentiary burden
o Legal burden is on the Crown to disprove elements of the defense BRD
o Judge MUST leave defense to the jury if there is an air of reality
R. v. Cinous 2002 SCC – Air of reality test
 Gang stealing computers, A gets to a point where convinced Mike and Ice are trying to
kill him, at a gas station shoots V
 Air of reality test
o Evidence upon which a properly instructed jury acting reasonably could
acquit
 1- Evidence- Defense counsel/judge needs to identify evidence for
EACH element of the defence
 Defence counsel can pull evidence from Crown witnesses or
may have to provide their own if missing from crown evidence
 2- Whether a properly instructed (knowing legal elements of
defence) jury acting reasonably could acquit
o If air of reality/defence is not raised by the defence counsel, but judge
thinks air of reality is raised he has to put to the jury
o If unsure whether to leave to jury, determine if there is evidence that would raise
reasonable doubt for any (one) element-> if possible, must leave to jury
 Once defence is left to the jury Crown must disprove air of reality of ANY one
element BRD
o In Cinous, defence proved air of reality on 5 of the 6 objective-subjective
elements, but failed on the last element (crown disproved BRD that accused
reasonably had another option but to kill) so the defence fails
MISTAKE OF FACT



Complete defence
Negates MR, where MR is an element of the offence
Burden of proof on A to raise air of reality that s/he holds an honest belief in a set of
circumstances that, if true, would warrant an acquittal (e.g. complainant consented)

Judge and jury are able to presume intention (MR) through the accused’s actions
o Mistake of fact allows A to displace the presumption by demonstrating what
they actually thought
o Do not necessarily have to testify, but need some evidence of this (from facts or from
victim’s testimony or from accused’s testimony)
R. v. Kundeus 1976 SCC A was sitting in a bar, calling out offers to sell drugs. An undercover officer asked for acid or
hash, and was offered mescaline instead. A took money and returned with 2 capsules that later
proved to be LSD. A was charged with trafficking LSD but argued that he had intended the
lesser offence of selling mescaline. (Mistake of Fact)
o Standard is whether belief was honestly held, no need for reasonableness
o Majority:
o Rebuttable presumption arose that the accused intended to traffic in LSD and
that he was guilty of the offence charged.
o No evidence having been tendered by the accused, it was not possible to find
that he had an honest belief amounting to a non-existence of mens rea.
 A needed to testify or introduce some evidence to establish his honest
belief
o Court allowed MR to transfer from trafficking mescaline to trafficking LSD
 Would this be acceptable post-Charter?
o Laskin dissent:
o It is impossible to bring mescaline within restricted drug category - governed by
other statutory provisions than those governing controlled or restricted drugs.
o It could not be accepted that where mens rea is an element of an offence, as it is
here, it can be satisfied by proof of its existence in relation to another offence
unless, of course, the situation involves an included offence of which the accused
may be found guilty on his trial of the offence charged.
o The actus reus and the mens rea must relate to the same crime.
Pappajohn 1980 SCC – honest belief, reasonableness
A was charged with raping C, a real estate agent. Both testified – C testified that she resisted A’s
advances throughout; A testified that he believed C consented until bondage, and no intercourse
took place thereafter.
Dickson - The test for mistake of fact is that the mistake must be honestly held, but need
not be reasonable. The jury should be instructed that reasonableness can only go to
credibility of A’s assertion in an honest belief.
o Mistake of fact often arise in sexual assault cases
o AR requires proof of absence of consent
o MR- what is enough to constitute on honest mistake?
 AR and MR:
o Conduct- touching-> A has intention/voluntariness
o Circumstances:
 Sexual nature-> no MR (objective) (Creighton)
 Absence of consent-> knowledge (Ewanchuck, Papajohn), recklessness
(Sansregret, Theroux) or wilful blindness (Briscoe)
 Absence of consent-> V subjective belief in lack of consent
(Ewanchuck)
 MR knowledge-> Honest belief by A, reasonableness is not required
(Ewanchuck)



 Credibility of the A is important
If A wants to raise mistaken belief in consent has to do so directly (through their
testimony)
o Honest belief has to be held, but does not have to be reasonable
o Reasonable is implied based on the credibility of the As testimony
Defence of mistake of fact should only be put to the jury if there is an air of reality
In this case there was no air of reality to an honest belief
Dissent (only on whether it was right to put defence to jury)
 Found that there was evidence on which the jury could find that A mistakenly but honestly
believed there was consent and therefore defence should be left to jury.
R. v. Ewanchuk 1999 SCC – communicating consent
A made sexual advances towards C, who repeatedly said “no”. Each time, A stopped his
advances and then began again. C testified that she was frightened but determined not to let A
see her fear; and that she believed A had locked the door of the trailer where the events
occurred. A did not testify.
Issue:
o
Whether non-consent needs to be actively communicated
o
Where lack of communication can allow A to raise defence of mistake


AR- Implied consent is not available in assault cases
o If in her mind V was not consenting, the AR is established-> no implied consent
defense
o Even if she was consenting in her mind in submission because of fear (duress)->
 No consent (s.273.1)
MR- Enough for A to have an honest belief in consent (doesn’t have to be reasonable)
o HOWEVER, in this case the court convicted A, so they did not find A had honest
belief in consent
 V said “no” and he would stop-> demonstrates acknowledgement of lack
of consent
 A cannot rely on lapse of time -after V says “no” once, need to obtain clear
communication of positive consent from V
 Silence, passivity or ambiguous conduct will not found a belief in
consent.
 No air of reality arises where something less than actively
communicated consent is the basis on which A seeks to counter mens
rea.
L’Heureux-Dube (concurring):
 Goes further-> no A can establish honest belief in consent unless he has complied with
s.273.2(b)
 Policy arguments
o TJ and CA judge erred in determining implied consent = fosters rape
myths/stereotypes that women want it or are walking around asking for it
o Improper for judges and juries to use those myths to determine guilt re: sexual
assault cases
 s.273.2(b) may violate Charter
o Victim’s right to bodily integrity (security of the person) vs.
o Accused’s right to freedom
PROVOCATION



Partial defence (doesn’t negate conviction entirely)
o Provocation can only reduce murder to manslaughter
Elements of provocation (in chronological order)
o 1) No prior incitement by A (s.232(3))
o 2) Wrongful act or insult to A (s.232(2) & (4))
 Not something that V had legal right to do (s.232(3))
 Doesn’t say that has to be insult or act by V
o 3) Sufficient to deprive ordinary person of self-control (objective) (s.232(3))
 Ordinary person in defences is different than manslaughter (different
than Creighton) cases that we looked at before
 For defences the “ordinary person” has much more similar personal
characteristics to the accused (ex. age, experience)
o 4) A acted on the sudden (s.232(2))
 A was deprived of self-control
o 5) A acted before there was time for passions to cool (s.232(2))
o 6) A murdered V (s.232(1))
Critique= provocation defence comes up mostly in cases re: sexual relationships (advances,
affairs)
o Throughout these cases there are often hints of past abuse/domestic violence in
these relationships, but not considered as legally relevant for provocation (little bit in
Daniels)
R. v. Hill 1985 SCC – ordinary person + test from provocation
Murdered Pegg (hit in head and stabbed), which he claims was due to a homosexual advance. A
was convicted of 2nd degree murder. Crown theory was that A & V were lovers, had an argument,
as a result of which A first hit V over the head then stabbed him. A testified that V had made
unwelcome advances and A accidentally hit V in trying to fend him off, then stabbed V when V
threatened to kill A. Is a homosexual advance enough to deprive an ordinary person of selfcontrol?
Dickson: Test for provocation is:
(1)
(2)
(3)
Would an ordinary person be deprived of self-control by the act or insult?
Did A in fact act in response to these provocative acts?
Was A’s response sudden and before there was time for passion to cool?
How to define the “ordinary person”?
 Objective person standard permits jury to have regard to characteristics that are relevant
to the insulting nature of V’s behaviour.
o This relevance flows from the context of the case.
 Jury is intelligent enough to put into context and will naturally think about
attributing characteristics of the accused to the ordinary person
o Judge not required to direct the jury on the “ordinary person”, though judge
does say that if there is a particularly relevant characteristic (i.e. race, when the
insult is a racist comment), it may be prudent to charge the jury.
R. v. Thibert 1996 SCC – air of reality in provocation
A was convicted of murder after shooting his (separated) wife’s lover. A testified that he had
gone to wife’s work to talk things over and scare wife with rifle, but V insulted and demeaned A by
holding wife in front of him and daring him to shoot. TJ did not tell jury that Crown bears burden
of disproving provocation, where raised, BRD.

SCC Majority (Cory)
o

Test for air of reality is whether there is some evidence that would allow the jury
to conclude that the element was not disproven BRD by the Crown
o Without something more, leaving a relationship does not constitute provocation
o What is something more to warrant loss of control on the part of an ordinary
person?
 A did not expect to see the lover when he went to meet wife AND the
victim demonstrated some sort of provocation/taunting
 Taunting= something more = an air of reality to the
provocation defence
SCC Dissent (dissent) (Major)
o Breakup of a marriage does not constitute provocation without something more
o No air of reality for defence of provocation in this case
o At the time the victim taunted, he was scared (gun pointed at him), however he
chose to respond the threat is his decision - it does not constitute an insult or
wrongful act
 Taunting was a result of A’s actions (pointing gun)
R. v. Daniels 1983 NWTCA – past relationship + limitations to the “sudden” requirement
 Rare case where a woman successfully uses defence of provocation
 Victim had affair with As husband for a long period of time, A was often abused by victim
and husband, A was drunk, armed herself with a knife and went to victim’s house looking
for a confrontation, and stabbed victim to death
 TJ directed jury to only consider immediate context (on night of offence) in defence of
provocation
 CA said that there is a requirement that A act on sudden and before passions to
cool, but jury can also consider the broader relationship with the victim
o Jury not limited to looking at the facts of the incident as a “one off” thing
o Therefore, TJ was wrong in limiting jury consideration to immediate context
o Past relationship is relevant
R. v. Tran 2010 SCC – ordinary person + relevance of subjective factors
A and his wife were separated, A went to his wife’s house and saw her in bed with V (her new
partner). He stabbed both several times and killed V. TJ acquitted on 2 nd degree murder and
convicted on manslaughter. Crown appealed on basis that there was no air of reality to the
defence.
SCC:




Provocation is about the wording/statutory interpretation of the language of s.232
Must have both objective and subjective dimensions
Language hasn’t changed, but social context in which it is interpreted has changed and
should be interpreted as such
o Relevant when considering whether an ordinary person would lose self-control
 Does not apply in relation to whether they had a legal right to act a
certain way
o Ex. separation/ ending of a marriage is more common
Ordinary person element
o Contextualizing ordinary person without individualizing the ordinary
person
o Will not individualize to the context that goes against Charter values
o Will not be characterized to the point of traits re: crankiness or short fuse of the A
o Approves of Daniels, but limits Daniels
 Appropriate to recognize past relationship, but the details of that
relationship are irrelevant (unclear how deep you can go into details)
o Personal characteristics and context are generally relevant but does not
individualize the ordinary person test



Subjective element
o Did the A in fact respond to the provocation (causation)?
o Did the A act on the sudden and before passion had time to cool?
 No air of reality for either in this case
o Went there armed with a knife
o A knew about the relationship, so could he have really acted on the sudden
 Suspected lover would be there and wanted to confirm the rumours
o Whether there was time for passions to cool from the initial response to the point
of continued attack
o What is in the As mind?
 Testimony important, but so is context of the relationship
Air of reality needs to be raised by the A for both objective and subjective
elements, but once air of reality is raised Crown needs to disprove (at least one element
of the defence) BRD
Conclusion -no air of reality that an ordinary person would have lost self-control on the
facts of this case
o No insult-> They were having their relationship discretely (in locked apt.)
R. v. Nealy 1986 OCA – looking at mitigating elements collectively
A killed victim in bar fight out of anger after rude comments about A’s girlfriend, parties were
intoxicated. A claimed to be drunk, scared, and angry. TJ did not direct jury on cumulative effect
of drunkenness, fear and anger.



Issue= Whether to consider these elements (drunk, scared, angry) collectively to prove
level of intent (to kill or cause bodily harm knowing death is likely to ensue)
o Intent can be affected by intoxication, anger and fear
TJ did not instruct jury to consider these elements collectively, only considered defences
individually
CA said TJ should have directed jury to consider the defences individually and to also
look to elements collectively to determine requisite intent required for murder
Provocation Summary
1) Would ordinary person be deprived of self-control by act or insult?  OBJECTIVE PART
Hill: “Ordinary person” test set out by objective standards. Particular characteristics that aren’t
peculiar or idiosyncratic can be ascribed to ordinary person without undermining logic of objective
test of provocation.
Daniels: “Ordinary person” permits consideration of history before incident that finally triggers
reaction. Incident may be “coloured” and given meaning by consideration of events which
proceeded it.
Thibert: “Ordinary person” now permits inclusion of many characteristics of A. Wrongful act/insult
must, in light of past history and relationship of A and V, deprive ordinary person of same age &
sex and sharing with A other factors as would give act/insult special significance, of power of selfcontrol.
2) Did A, in fact, act in response to these provocative acts?  SUBJECTIVE PART
Hill: Loss of self-control by A determined by evidence from surrounding facts. Subjective:
assessment of what occurred in A’s mind. Entitled to consider mental state and psychological
temperament.
Daniels: Consider previous history
Thibert: Consider background and history of relationship b/w A and V.
3) Was A’s response sudden and before there was time for passion to cool?
Tran: a) Whether A’s response constituted response to sudden mental onslaught on mind
unprepared causing loss of self control as defined in law
b) Even if response initial loss of self control, as opposed to mere anger/excitement,
whether opportunity for passions to cool and whether A still deprived of self control power when
killed V
MENTAL DISORDER
Statute – Section 16
Section 16 Criminal Code

16(1) provides a defence if A commits an act or omission while suffering from a mental
disorder that rendered the person incapable of appreciating the nature and quality
of the act or of knowing that it was wrong.
o Act or omission
o i.e. illness, disorder or abnormal condition which impairs the human mind and its
function, except self-induced states (ex. drugs or alcohol)
o Psychosis caused by drugs= intoxication (not mental disorder)
o If have mental disorder and choose to stop taking meds, still held that A has
mental disorder therefore s.16 may apply
o Mental disability may also have access since may not have capability to
appreciate unlawful act (ex. sexual assault)
o Psychopaths don’t apply
 Long-term offender
 Know their acts are morally wrong, just don’t care that it is morally wrong
o Rendered A incapable of i) appreciating the nature and quality of the act or ii) of
knowing that it was wrong
 Incapable (Chaulk)- subjective, whether the A was not capable of
appreciating or knowing
 Renders- mental disorder must cause incapability
 Proof of causation on balance of probab, need expert evidence
 A would not have had the incapacity as they did “but for” the
mental disorder
 i) Appreciating quality of the act (Cooper)- As incapable of understanding
of the quality of the act and its consequences
 Ex. A knows using a saw but thinks cutting bread not a head
 If prove i, don’t have to prove ii (ii harder to prove)
-OR ii) Knowing it was wrong
 Shwartz- knowing legally wrong exempts you from using s.16
defence
 Chaulk- doesn`t matter if know if it is legally wrong, but if it is
morally wrong
o In state of psychosis A knew killing was wrong but
thought it was morally right to do so (ex. divine order)
o Mewett`s Scenarios:
o 1- A knows act is legally wrong and A knows he should
not break the law
 S.16 does not apply= guilty
o


2- A does not know legally wrong, but A knows most ppl
would condemn his actions
 S.16 does not apply= guilty
 Ignorance of the law is not an excuse
 Moral sense that should not commit
the act is enough to raise that A is
criminally responsible
16(2) establishes a presumption that A is not suffering from a mental disorder until
the contrary is proved to BoP. (Contravenes Charter s. 11(d) but justified under s. 1
per majority in Chaulk 1980 SCC considering s. 16 in its previous form).
o Starting presumption= presumption of sanity (i.e. criminally responsible)
o Can be displaced by proving elements of s.16(1) on balance of probabilities
 Most often needs to be proved by A, shifts burden of proof to A (reverse
onus)
 S.11d Charter issue!!
o *NB. raising an air of reality does not contravene s.11d
Charter
 But is saved by s.1 (Chaulk)
16(3) places burden of proof on party that raises the issue.
Definitions
“While suffering from a mental disorder”
Cooper 1980 SCC. “any illness, disorder or abnormal condition which impairs the human mind
and its functioning, excluding, however self-induced states … as well as transitory mental states
…”.
“Incapable” generally
Chaulk 1990 SCC per Dickson C.J. citing Fortin and Viau with approval this word connotes “a
purely subjective and personal dimension of the individual”. The incapacity must be causally
linked to the disease of the mind.
“Incapable of appreciating the nature and quality of the act”
Cooper 1980 SCC this word requires perception “an ability to perceive the consequences, impact
and results of physical act”.
“Incapable of knowing that it was wrong”
Chaulk 1990 SCC The requisite incapacity for the second limb of the defence is incapacity to
appreciate that the act is wrong according to the ordinary moral standards of reasonable
members of society. That is, even if the accused knew that the act was legally wrong, he may
be acquitted if he was incapable of understanding that it was morally wrong.* Full
normative comprehension of a rule violation includes comprehension of what the violation will
mean to others, and how they will respond.
*Chaulk overruled previous holding in Schwartz – previously if A had capacity to
understand that the act was legally wrong, s/he could not access the defence.
How mental disorder operates
Chaulk 1990 SCC The defence may operate to:
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negate actus reus on premise that accused did not act consciously;
negate mens rea on premise that accused was incapable of forming the requisite
mens rea (such as lack of intent);
provide an excuse on the basis that the accused’s mental condition prevented him
or her from knowing that the act was wrong.
Each is predicated on capacity. Jury faced with NCR defence should consider questions in the
following order:
a.
b.
has the accused established NCR under one of the two limbs of s. 16 BRD?
does the evidence of mental disorder negate mens rea in whole or part (e.g.
prevent A from forming specific intent for murder)?
R. v. Chaulk 1990 SCC – “failure to know act was wrong”
 *Code sections referenced in Chaulk have been changed since 1990*
 Meaning of “failure to know act was wrong” in s.16
o Changed Shwartz decision that knowing legally wrong exempts A from using s.16
o Chaulk allows A to use defence if knows that legally wrong but thinks not
morally wrong and that law should not apply to them in the moment (ex. since
divine order to kill)
 Capacity to comprehend normative value of the law (reason why against
the law)
 Charter issues- s. 16(2) presumes that A is criminally responsible, goes against s.11d of
Charter (innocent until proven guilty), but is it a reasonable limit on Charter right
(prove by s.1)
o Applies the Oakes Test to justify that limit on s.11d Charter
 1- Nearly impossible burden on Crown if s.16(3) did not exist
 if there was a lesser burden on the A, everyone would claim NCRMD
(floodgates/policy reason)
 2- Minimally impairs the right to be presumed innocent
 3- Limit is proportionate to ends
o Therefore s.16 is found constitutional
R. v. Swain – burden of proof for 16(3)
 S.16(3) defence must be proven on BoP by the party that raises the issue
Mental Disorder vs. Automatism
Mental disorder
Automatism
Requires disease of the mind
No disease of the mind required
Mental disorder automatism (where actus reus
is denied)
Non-mental disorder automatism
Verdict is not criminally responsible (NCR)
by reason of mental disorder
Verdict is acquittal
May be detained in hospital if board concludes
that A is a significant threat.
No continuing supervision but the possibility of
a peace bond or civil commitment arises.
AUTOMATISM
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Common law defence (not statutory)
Cases turn on expert evidence and facts of the case
Definition= transient state of impaired consciousness (Stone) in which A has no
voluntary control over his actions
o Between full consciousness and unconsciousness where one can still function
physically but have no mental control over actions
o Need evidence that affect was strange
What can cause automatism?
o Acute, immediate stress
 Beyond ordinary emotional blows of life (Rabey)
o Sleepwalking (Parks)
 A would need to prove no recurrence, otherwise would go under s.16
(mental disorder) (Stone)
 Policy- if treat person under s.16, they receive continual
supervision
o External cause
 Physical cause (ex. concussion)
 Internal cause (ex. Extreme shock)
 Cannot be caused by a mental disorder
 Cannot be caused by self-induced intoxication
R. v. Rabey 1977 OCA – disease of the mind + internal v. external causes
V wrote letter re: guys at school which A reads and dwells on, told A they were just friends,
immediately after A hit her with a rock, dragged her under the stairs and choked V. Conflicting
psychiatric opinions regarded whether dissociation is a mental illness or not.
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TJ: Vs words were psychological blow causing automatism, court acquitted A
CA: Psychological blow (that girl you like likes someone else) was not enough to cause
automatism, must be that A had predisposition to mental disorder (under s.16, not
automatism), retrial based on s.16 defence
 SCC: upheld CA reasoning
“Disease of the mind” is a legal term and the TJ must determine whether a particular condition
fits within that phrase – question whether A suffered from condition is for jury.
“ordinary stresses and disappointments of life which are the common lot of mankind do not
constitute an external cause constituting an explanation … [which amounts to non-insane
automatism]”. – Martin J.A.
“internal cause” – source in psychological or emotional make-up [may amount to mental
disorder]
R. v. Parks 1992 SCC - sleepwalking not a mental illness
A was under considerable stress (stole money from employer), was being supported by his
parents in law (no motive), killed parents in law while sleepwalking. . A had a family history of
sleepwalking and other sleep disorders, and experts suggested that it was highly improbable that
he would be violent again. Sleepwalking had no treatment, but recommended practices to
minimize recurrence.
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On these facts, automatism was not a disease of the mind but a transient state.
It was open to the TJ to leave non-insane automatism to the jury and for jury to acquit.
Possibility of recurrence is an important, but not determinative factor
Policy question
o Flood gates that sleepwalking is non-insane automatism, everyone would raise
that defence
 Court says need strong evidence of this level of sleepwalking
(sleepwalking is not automatically automatism, need high level of
evidence)
R. v. Stone 1999 SCC – MD vs automatism +test for automatism
A stabbed his wife after she had insulted and yelled at him over a period of several hours. He
testified that when he committed the violent act, he was unaware of what he was doing and only
returned to full consciousness with the knife in his hand and his wife dead. Two psychiatrists
testified – one said that A’s account was consistent with dissociation and the other testified that it
was extremely unlikely that A was dissociated at the time.
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Automatism as a “state of impaired consciousness in which A has no voluntary
control over his or her actions”.
Insane automatism is subsumed by the s. 16 defence
Non-insane automatism is treated separately.
The test for establishing automatism of either variety is the same:
1. Establish a proper foundation for the defence
 Burden on A to raise evidence sufficient to permit a properly instructed
jury to conclude on BoP that s/he was automatistic – requires psychiatric
evidence and additional evidence such as history of dissociation,
corroborating evidence, and absence of motive.
 Defence will only be put to jury if judge concludes that sufficient
evidence exists
2. Consider whether automatism has its genesis in a mental disorder
 starting presumption should be that the dissociation did originate from a
mental disorder
o A will need to disprove this if they choose
 TJ should consider whether automatism had an internal cause
“psychological blow” – if so, more likely to be a disease of the mind.
 . If A presents a continuing danger, more likely to be a disease of the mind.
 Other policy factors such as the need to protect society may also be
identified on a case by case basis
3. Jury determines questions of fact depending of whether MD v Automatism
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If non-insane automatism, question whether A acted involuntarily on a
balance of probabilities.
If a disease of the mind, jury considers defence according to s. 16 framework
– did A suffer from a disease of the mind which rendered him or her
incapable of appreciating the nature and quality of the act.
Conclusion: TJ should have left s. 16 (MD) to the jury NOT non-insane automatism
SELF-DEFENCE
Complete defence (result is acquittal)
NOT ON EXAM (Though Lavallee, etc. may be relevant for discussion of AoR, etc.)
R. v. Lavallée 1990 SCC – battered women’s ‘sydrome’ + expert evidence
A killed her partner after he had threatened to kill her “later”. At the time A shot V, V had his back
to A and was walking out of A’s bedroom. Evidence established a pattern of violent physical
abuse by V towards A. Expert evidence suggested that A suffered from the psychological effects
of battered woman syndrome, explained that she was likely well attuned to the nature and
severity V’s impending violence, and suggested why she would have disbelieved that she could
leave the premises as a way of escaping the violence.
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Crown resisted defence of self-defence on 2 grounds
o 1- There was not an assault in progress since was walking out of the room when
shot
o 2- Was not reasonable for A to believe that had no other option (why didn’t she
just leave)
TJ- left to jury and acquitted
CA- should not have been left to the jury so need re-trial
SCC
o Changes plain meaning of s.34 (don’t need immediacy of assault)
o Upheld TJ decision that defence should have been left to the jury and upheld
acquittal
o Reasonableness (reasonable apprehension of death of grievous bodily harm and
reasonable belief have no other way to protect himself)
 Reasonableness should not be a standard which excludes history
(against s.15 of Charter where everyone should have equal benefit of the
law)
 Reasonable apprehension of death or GBH
 Belief had to be understood in context of relationship between
A and V (nature of relationship and knowledge of pattern of
violence)
o Expert evidence= in battered relationship violence is
cyclical, where A could predict peak in the cycle of
violence
o A thought that she might dies that night
 Therefore there is no longer a rule that A has to be in
situation of immediate attack by V (raised knife standard)
 Reasonable belief that A has no other means to protect himself/herself
 Expert evidence can be useful in understanding subjective
belief and establish reasonableness that A believed could
not leave the relationship/situation
o Ex. learned helplessness
R. v. Pétel 1994 SCC – mistake doesn’t negate access to defence
A killed R, who was an acquaintance of her daughter.
Under s. 34(2), A may make a reasonable mistake about whether she is being assaulted and
have access to the defence. Imminence is only one factor to consider when assessing
reasonableness.
R. v. Malott 1998 SCC – clarifies Lavallee on reasonable, BWS
A was convicted of 2nd degree murder of her ex-spouse and attempted murder of his girlfriend.
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Lavalleé did not establish a defence of being a battered woman
o directed court to consider situation and experience of battered woman in
applying legal tests of reasonableness.
o May equally apply to duress, provocation, necessity.
Court should resist “syndromization” (Grant) by focusing on reasonableness of A’s
actions in light of her personal experiences and experiences as a woman
R. v. McIntosh 1995 SCC V had agreed to repair sound equipment for A. For eight months, A tried to reclaim the
equipment. Eventually, A went to V’s house with a knife and demanded the equipment. A
testified that V pushed A then picked up a dolly, raised it and advanced on A. A stabbed V,
dropped the knife, and fled. It was open to jury to find that A provoked the assault – question was
whether s. 34(2) could apply in this circumstance.
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Section 34(2) is not ambiguous re. question of whether it requires an absence of
provocation
o Where section is silent you can’t read in such prohibitions
34(2) is available to initial aggressors
Also mentioned the NOW OVERRULED principle of interpreting unclear statutes in a
manner that favoured the accused.
NECESSITY
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Common law defence
o Allowed to use CL defences under s.8 of the Code
Burden of proof: The defence must raise an air of reality about each element of the
defence. (Cinous)
o If air of reality established, Crown must disprove ANY element beyond a
reasonable doubt. (Cinous)
Element (Perka)
Mens rea (Latimer)
A is in a pressing emergency of great peril
Subjective (A’s honest belief) and modified
objective (taking A’s situation and
characteristics into account, relying on Hibbert)
Compliance with the law is demonstrably
impossible
Subjective and modified objective
A’s response is proportionate to the threatened
harm
Purely objective – no modification. Homicide
might never be proportionate.
R. v. Perka 1984 SCC – elements + moral voluntarism+ excuse v. justification
A (x 4) were on a boat conveying cannabis from one destination in international waters to
another. The boat started to have difficulties, so they made an emergency landing in a bay on
Vancouver Island. Their evidence was that they intended to repair the boat, reload the drugs,
and proceed. They were charged with importing cannabis.
An excuse rather than a justification, and is confined to circumstances in which A’s actions
were normatively involuntary.
Defence raises an air of reality about each element. Crown disproves ANY element BRD.
(Cinous)
Elements:
1. A was in a situation of pressing emergency of great peril
o Only available in exceptional circumstances
o In this case, due to state of the ships engines accused ran risk of drowning in sea
2. Compliance with the law was “demonstrably impossible” – there was no legal way out
o No legal way out, no reasonable alternatives to breaking the law
o Seems to suggest burden of proof re: impossibility on accused, but burden is
actually on Crown to disprove
o In this case may have been a reasonable alternative so sent back for re -trial
3. There was proportionality between the harm threatened by the situation and the one
inflicted by A’s response.
o Balancing
 From who’s perspective do you measure that? (relies on Hibbert in
Latimer)
 In this case, drowning (20 crew members) vs. importing drugs into
Canada
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 Voluntariness
o Normative involuntariness
o Punishment for morally and physically voluntary actions is a principle of
fundamental justice under s.7
 Must be voluntary to be punished
 Under necessity normatively involuntary
 Excuse vs. Justification
o Justification- act was in the circumstance the right thing to do (avoided a
greater evil)
 Ex. killing shooter that was going to shoot students
o Excuse- act doesn’t change wrongfulness, but provides a good reason for acting
that way in the circumstance
 Concession to human frailty – court should excuse human frailty without
sanctioning
 Policy Issues
o Crown argued that defence should not be available if accused is already
engaged in an illegal act when necessity arises
 Court held that if there is an illegal act that should be dealt with under
another proceeding, defence of necessity under another offence should
apply unless there is a clear, reasonably foreseeable (in criminal
law) consequence of the illegal action they were committing at the
time
R. v. Latimer 2001 SCC – narrow defence + proportionality
A killed his daughter, who suffered from severe cerebral palsy and experienced continual pain.
He pleaded necessity in defence to 2nd degree murder, but TJ refused to leave this defence to the
jury.
Key findings from case:
 Emphasizes Perka that defence of necessity should be applied narrowly
 First two elements set out by Dickson J. in Perka are assessed on a modified objective
standard plus A must have an honest belief in both factors.
 Proportionality is assessed on a purely objective standard.
o Harms/Act need to be ‘approximately equal’ (rough standard)
o Court expressed doubt about whether homicide could ever be a proportionate
response, but left this question for another day.
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Applying the Perka test:
 Court concluded that defence of necessity failed since air of reality was not raised for any
of the 3 elements
o 1- Pressing emergency and great peril
 in this case an operation that would cause more pain is not a pressing
emergency or situation of great peril ( has to be very near/imminent)
 Imminence is required here since it is a defence of excuse (rather than in
self-defence where imminence is no longer required since it a defence of
justification)
o 2- No reasonable alternatives
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in this case fails air of reality since reasonable alternatives existed (daughter
could have gone into a home, family could have struggled with a difficult
situation)
o 3- A’s response is proportionate to the threatened harm
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at a minimum harms need to be approximately equivalent based on a
purely objective basis what is best for society, moral question/judgements,
policy question- what do amount of harm/pain do we expect people to bear)in this case court expected A to bear the pain
 Court expressed doubt about whether homicide is ever excused based on
proportionality
R. v. Ungar 2002 OCA – successful defence of necessity
A was charged with dangerous operation of a motor vehicle. He drove on the wrong side of the
street and broke the speed limit with lights flashing while driving to deliver emergency medical
assistance to an injured woman.
Lampkin J. It was not a reasonable legal alternative to fail to respond to the call for assistance.
The defence of necessity succeeds and the Crown should never have pressed these charges.
Saving a life!
DURESS
Theoretical Basis:
 Ruzic 2001 SCC suggests that duress is largely an excuse based on the same principles as
necessity.
 Like necessity, duress arises because A responds to some external pressure.
o Hibbert 1995 SCC acknowledges that occasionally duress may negate mens rea, but
cautions that this only works where A’s desire or motive is an element of the offence
and that desire or motive is not present because of the duress.
Burden of Proof
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The burden of proof rests upon A to raise an air of reality about each element of the
defence, and shifts to the Crown to disprove any element beyond a reasonable doubt.
The court should apply “reasonable, but strict standards” for the purpose of deciding
whether an air of reality has been raised Ruzic.
Difference between necessity and duress: Necessity is a response to an external threat, while
duress is generally a response to a human threat (inflicted by another person)
Difference between self-defence and duress: In self-defence the victim created the situation
that led to the accused acting as they did, where in duress the situation/force is created by a third
party (from Hibbert obiter)
Origins of duress
 Common law
 S. 17
o Has been modified by Ruzic
Major issues with s.17 raised/modified by Ruzic:
Principle that criminal liability is attached when morally voluntary is new principle of justice –
different from moral blameworthiness.
Three issues:
 “Immediacy & physical presence” requirements: imposes temporal, spatial, physical
proximity requirements.
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Violates principle of moral voluntariness. Moral voluntariness can be removed when
threatener is not present when offence committed nor immediate. So court removes
these unnecessarily constraining reqs.
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Keeping these immed/presence reqs makes it such that the kinds of people the section
looks to protect/absolve of criminal liability (like Ruzic) are not eligible.
2) Requirement of threat being against A rather than 3rd party:
1. s. 17 doesn’t stipulate who threat needs to be towards; language broad enough to allow
threat to be made to 3rd party.
After cutting immediacy and physical presence requirements, Court wants ensure some limits to
defence.
2. Interesting break in LeBel’s logic – unclear whether he is saying that s.17 is completely
supplanted by the common law defence (though this doesn’t seem to be the case) or is
he just reading in certain parts of the common law to s.17. Under the “new stuff read in”
model:
o
Threat must be one to which a person of reasonable firmness would respond
o
New addition to s. 17: A must raise air of reality there was no safe avenue of
escape (common law requirement originally established in Hibbert).
o
Unclear if proportionality and imminence are also read in. (This causes
problems)
3. Refused to rule on constitutionality of excluding broad list of offences from statutory
excuse. Possible resolutions:
o
Exclusion list violates s. 7 b/c renders person who acted in morally voluntary
fashion liable to conviction; thus, must be read out so s. 17 applies to A.
o
Words “this section doesn’t apply” coupled with presumption that Parliament
doesn’t intend to pass unconstitutional legislation (Ruzic & Lavallee) lead to
conclusion that person charged with offence listed in s. 17 should rely on
common law defence (relying on Pacquette, Hibbert)
o
List violates s. 7 but saved under s. 1 (s. 7 violations rarely saved by s. 1,
especially given strong language in Ruzic)
Section 17
Common law
A commits an offence other than those
excluded by the section.
A commits an offence as a party to the
principal offender. (Hibbert.)
A is acting under compulsion by threats of
death or bodily harm (query whether to which a
person of reasonable firmness would respond)
A is acting under compulsion by threats of
death or serious bodily harm to which a person
of reasonable firmness would respond. (Ruzic)
To A or another person (Ruzic).
To A or another person.
Which A believes will be carried out
Which A believes will be carried out.
From a person
From a person.
While A has no safe avenue of escape, using a
modified objective test. (Ruzic)
While A has no safe avenue of escape, using a
subjective and modified objective test
(Hibbert)
Query whether proportionality will be read in
(Ruzic). Most likely it will.
And A’s criminal act is proportionate to the
threat made against A (Ruzic) measured on
subjective-modified objective standard
(compare Latimer).
*Immediacy and *presence requirements are
read out (query whether imminence
requirement is read in)(Ruzic).
And there is a sufficiently close connection in
time between the threat and its execution to
overbear A’s will. (Ruzic)
And A is not a party to a conspiracy or
association
A acted without voluntarily assuming the risk
(?) (Ruzic suggested this reqmt in obiter).
Hibbert 1995 SCC – using the common law + exclusions from s.17
A was charged with attempted murder and convicted of a lesser included offence. A was charged
as a party to an offence where the actus reus was actually committed by B. A testified that he
had taken B to V’s apartment because B had threatened to kill A if he did not co-operate. A also
testified that he had no opportunity to run away or warn V.
Lamer CJ: Common law defence of duress available to parties (i.e. not he principle offender)
charged under s. 21 CC. A can’t rely on defence if had opportunity to safely extricate himself,
opportunity to retreat assessed on subjective-modified objective standard (using Lavallee
standard, not Creighton. Lavallee modification applies to self-defence and duress and by analogy
as an excuse-based defence, necessity)
 If you are an accessory to the crime you are in the common law NOT s.17
Decision: Appeal allowed, conviction set aside, new trial ordered.
 Duress does not negate MR.
o Under circumstances of A, will excuse behaviour because of threat from outside.
 As principal offender, only Bailey eligible for s. 17 defence (but fails), A covered by
common law.
Ruzic 2001 SCC – modifying s.17 – immediacy, physical presence, harm to 3rd party
A charged w/ importing heroin, using fake passport, testified she & mother threatened by M who’d
also been physically violent to A. Expert evidence supported A’s assertion that she didn’t trust
Yugoslavian police to protect her from M. A claimed duress under s. 17 CC. Ruzic’s mother was
in Belgrade as was the threatener, Ruzic was in Toronto when arrested.
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Issue of physical presence, whether or not 3rd parties are legitimate recipients of
threats to cause an A to do something, and the immediacy.
Principle of fundamental justice under s. 7 Charter that only voluntary conduct
“behaviour that is the product of a free will and controlled body, unhindered by external
constraints” attracts the penalty and stigma of criminal liability.
o The requirements in s. 17 that a threat be one of “immediate” harm and that the
crime occur in the physical presence of A violate this principle of fundamental
justice and cannot be saved under s. 1.
TJ in this case was correct to leave the common law defence of duress to the jury.
Moral voluntariness (Le Bel J): wanted to commit offense b/c would protect mother from harm intention established BUT out of prevention of greater harm (to mom). Court says A still has
choice but will recognize in this circumstance, reasonable person may lack firmness to withstand
threat. Moral voluntariness is analogous to physical voluntariness - don’t attach blameworthiness
unless free to choose to do wrong. AR & MR committed, but lack of choice. Mens rea isn’t
negated (unlike in discussions of moral blameworthiness) – the A made a choice to act (did
AR/MR) but that choice was not a free choice. Duress & necessity means choice taken away.