CASE BRIEFS-CRIMINAL LAW
Contents
R v. York (2005), 193 C.C.C. (3d) 331 (B.C.C.A)
..................................................................... 12
R. v. Murray, [2000] O.J. No. 2182 (Ont. S.C.J)
..................................................................... 26
R v Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.)
..................................................................... 13
R v J.S.R., 2008 O.N.C.A. 544 ........................ 27
SOURCES OF CRIMINAL LAW .................................. 4
Frey v Fedoruk, [1950] S.C.R 517 ................... 4
R v Terrence, [1983] 1 S.C.R. 357 ................. 14
R v Jobidon, [1991] 2 SCR 714 ........................ 5
R v Morelli, 2010 SCC 8, [2010] 1 SCR 253 ... 14
SUBJECTIVE MENS REA WITH OBJECTIVE
FEATURES ......................................................... 28
POWER TO CREATE CRIMINAL OFFENCES .............. 6
Consent as element of Actus Reus ................... 15
R. v Chase, [1987] 2 S.C.R. 293 ..................... 28
R v Malmo-Levine, 2003 SCC 74..................... 6
R v Jobidon, [1991] 2 SCR 714 ...................... 15
R v Theroux, [1993] 2 S.C.R. 5 ...................... 28
CHARTER OF RIGHTS AND FREEDOMS.................... 7
R v J.A, 2011 SCC 28 ..................................... 16
KNOWLEDGE .................................................... 29
Canada (Attorney General) v. Bedford, 2013
SCC 72 ............................................................ 7
R v Mabior, 2012 SCC 47 .............................. 17
R v Ewanchuk, [1999] 1 S.C.R. 330 ............... 29
CAUSATION ...................................................... 18
R v Levigne, [2010] 2 S.C.R. 3 ....................... 30
R v Oakes, [1986] 1 S.C.R. 103 ....................... 7
R v Smithers, [1978] 1 S.C.R. 506 ................. 18
R. v ADH, 2013 SCC 28 ................................. 31
R. v. Labaye, S.C.C. (2005) .............................. 8
R v Nette, [2001] 3 S.C.R. 488 ...................... 19
WILLFUL BLINDNESS ......................................... 31
INTERPRETATION OF CRIMINAL CODE ................... 9
R v Williams [2003] 2 S.C.R. 488................... 20
R v Pare, [1987] 2 S.C.R. 618 .......................... 9
R v Maybin 2012 SCC 24............................... 21
R. v. Currie (1975) 24 C.C.C. (2d) 292 (Ont.
C.A.) .............................................................. 31
R. v. Mac, [2002] 1 S.C.R. 856 ........................ 9
R v Reid, 2003 NSCA 104 .............................. 22
R. v. Collins, [1987] 1 S.C.R. 265 ................... 10
OMISSION- ACTUS REUS................................... 23
Canadian Foundation for Children v. A.G.
Canada, S.C.C. (2004) 1 S.C.R. 76 ................. 10
R v Moore, [1979] 1 S.C.R. 195 .................... 23
ELEMENTS OF CRIMINAL OR REGULATORY
OFFENCES-ACTUS REUS ........................................ 11
R v Peterson, [2005] O.J. No. 4450 (Ont. C.A.),
leave to appeal refused. ............................. 24
R. v Roks, 2011 ONCA 526............................ 27
R. v. Vinokurov, 2001 ABCA 113 (Alta C.A.) . 32
R. v. Briscoe, 2010 SCC 13 ............................ 32
RECKLESSNESS .................................................. 33
R. Theroux, [1979] 2 S.C.R. 5 ........................ 33
R. v. Buzzanga and Durocher [1979] 49 C.C.C.
(2d) 369 (Ont. C.A.) ...................................... 34
Definition-Voluntary or Willed Acts ................. 11
R v Browne (1997), 166 C.C.C. (3d) 183 (Ont.
C.A.) .............................................................. 25
OBJECTIVE MENS REA AND TRUE CRIMES ............ 34
R. v. J.(D.), 2002 ........................................... 11
SUBJECTIVE MENS REA ......................................... 25
R. v. Martineau [1990] 2 S.C.R. 633 ............. 34
R v Gunning, [2005] 1 S.C.R. 627 .................. 12
INTENTION, ULTERIOR MENS REA .................... 25
Marked departure test ..................................... 35
Act of possession .............................................. 12
R. v. Vandergraff, [1994] M. J. No. 503 (Man.
C.A.) .............................................................. 26
R. v. Creighton [1993] 3 S.C.R. 3 .................. 35
R. v. Beatty, 2008 SCC 5 ............................... 36
REGULATORY OFFENCES ....................................... 36
R v Cooper. [1980] 1 S.C.R. 1149.................. 49
R v Mack, [1988] 2 S.C.R. 903....................... 62
R. v Sault Ste. Marie, [1978] 2 S.C.R. 1299 ... 37
R v Kjeldson, [1981] 2 S.C.R. 617 .................. 50
R v Barnes, [1991] 1 S.C.R. 449 .................... 63
Reference Re B.C. Motor Vehicle Act, [1985] 2
SCR 486 ........................................................ 37
R v Oommen, [1994] 2 S.C.R. 507 ................ 50
IGNORANCE OF THE LAW ................................. 63
AUTOMATISM AND INVOLUNTARY ACTS ......... 51
Lilly v The Queen, [1983] 1 SCR 794 ............. 63
R v Swaby, [2001] O.J. No. 2390 (Ont. C.A.) . 51
R v Jones, [1991] 3 SCR 110 ......................... 64
R v Parks, [1992] 2 S.C.R. 871 ....................... 52
Levis (City) v. Tetreault, 2006 SCC 12 ........... 65
R v Stone, [1999] 2 S.C.R. 290 ...................... 53
R. v. MacDonald, 2014 SCC 3 ....................... 65
R v Fontaine, [2004] 1 S.C.R. 702 ................. 54
ADVERSARIAL PROCEEDING ................................. 66
R v Luedecke, 2008 ONCA 716 ..................... 54
Presumption of Innocence and Ultimate
Standard of Proof ............................................. 66
R v Raham, 2010 ONCA 206 ......................... 38
Levis (City) v. Tetreault, 2006 SCC 12 ........... 39
R v Wholesale Travel Inc. [1991] 3 S.C.R. 154
..................................................................... 39
EXTENSIONS OF CRIMINAL LIABILITY .................... 40
AIDING AND ABETTING .................................... 40
R v Dunlop and Sylvester, [1979] 2 S.C.R. 881
..................................................................... 40
SIMPLE INTOXICATION ..................................... 55
The Queen v. George [1960] S.C.R. 871 ....... 55
R v Logan, S.C.C. (1990)................................ 41
R v Robinson, [1996] 1 S.C.R. 683 ................ 56
R. v. Briscoe, 2010 SCC 13 ............................ 42
EXTREME INTOXICATION .................................. 57
R v Thatcher, [1987] 1 S.C.R. 652 ................. 42
R v Daviault, [1994] 3 SCR 63 ....................... 57
R v JF, 2013 SCC 12 ....................................... 43
R v Bouchard-Lebrun, 2011 SCC 58 .............. 58
R v Gauthier, 2013 SCC 32............................ 44
SELF DEFENCE ................................................... 58
COUNSELLING................................................... 45
R v Lavallee, [1990] 1 S.C.R. 852 .................. 58
R v Hamilton, [2005] 2 S.C.R. 432 ................ 45
NECESSITY......................................................... 59
ATTEMPTS ........................................................ 46
R v Latimer, [2001] 1 S.C.R. 3 ....................... 59
R. v. Ancio [1984] 1 S.C.R. 225 ..................... 46
DURESS ............................................................. 60
R v Deustch, [1986] 2 S.C.R. 2 ...................... 46
R v Ryan, 2013 SCC 3 .................................... 60
R v Dery, 2006 SCC 53 .................................. 47
PROVOCATION ................................................. 61
DEFENCES ............................................................. 49
R v Tran, [2010] 3 S.C.R. 350 ........................ 61
MENTAL DISORDER .......................................... 49
ENTRAPMENT ................................................... 62
R. v. Lifchus, [1997] 3 S.C.R. 320 .................. 66
R. v. Starr [2002] 2 S.C.R. 144 ...................... 67
R v J.H.S., 2008 SCC 30 ................................. 67
OTHER BURDENS .............................................. 68
R. v. Arcuri, S.C.C. (2001) ............................. 68
R v Cinous, 2002 SCC 29 ............................... 69
R v Cinous, 2002 SCC 29 ............................... 69
R. v. Fontaine, S.C.C. (2004) ......................... 70
R. v. Oakes, S.C.C. (1986) ............................. 70
NEUTRAL IMPARTIAL TRIER .............................. 71
R. v. Gunning, [2005] 1 S.C.R 627 ................. 71
R. v. Hamilton, [2004] O.J. No. 3252 (Ont.
C.A.) .............................................................. 71
ROLE OF PROSECUTOR ..................................... 72
Page | 2
Krieger v. Law Society of Alberta, [2002] 2
S.C.R. 372 .................................................. 72
R. v. Nixon, 2011 SCC 34 .............................. 73
R. v. Babos, 2014 SCC 16 .............................. 74
R. v. Anderson, 2014 SCC 41 ........................ 75
GETTING READY FOR TRIAL .................................. 76
POLICE POWERS ............................................... 76
R. v. Grant, 2009 SCC 32 .............................. 76
R. v. Suberu, 2009 SCC 33 ............................ 77
R. v. Aucoin, 2012 SCC 66............................. 77
R. v. Cole, 2012 SCC 53................................. 78
R. v. MacDonald, 2014 SCC 3 ....................... 80
R v Find 2001 SCC 32 .................................... 85
ARREST AND BAIL ............................................. 81
R v YUMNU, 2012 SCC 73 ............................. 86
R. v. Hall, S.C.C. (2002) ................................. 81
SENTENCING ......................................................... 87
DISCLOSURE ..................................................... 82
R v Nasogaluak [2010] 1 S.C.R 206 ............... 87
R v Stinchcombe, [1991] 3 S.C.R. 326 .......... 82
R v C.A.M, [1996] 1 S.C.R 206 ...................... 87
R v O’Connor, [1995] 4 S.C.R. 411 ................ 83
R v Gladue [1999] 1 S.C.R. 688 ..................... 88
R v McNeil 2009 SCC 3 ................................. 83
R v Ferguson 2008 SCC 6 .............................. 89
PRELIMINARY ENQUIRY ........................................ 84
R v Morrisey, 2000 SCC 6 ............................. 89
R v Acuri [2001] 2 S.C.R. 828 ........................ 84
R v Pham, 2013 SCC 15 ................................ 90
JURY TRIAL ........................................................ 85
R v Williams [1998] 1 S.C.R. 1128 ................ 85
R. v. Spencer, 2014 SCC 43 ........................... 79
Page | 3
SOURCES OF CRIMINAL LAW
Frey v Fedoruk, [1950] S.C.R 517
Common law cannot create criminal offences, only Parliament (statutes) can.
FACTS
Peeping tom case.
ISSUE
Can someone be arrested for a crime not defined in CC? Can the common law define an offence, not previously defined in CC?
PRINCIPLE
Criminal offences can only be created by Statute/Parliament.
NOTES
From
judgement
SC concluded that only Parliament can decide what is an offence in CC otherwise law would be too confusing. “If ay course of
conduct is now to be declared criminal, which has not upto the present time been so regarded, such declaration should be made
the Parliament and not the Courts”.
Other Notes
S. 9 of CC: No person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great
Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or
place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court
judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
Page | 4
Levis (City) v Tetrault [2006] 1 SCR 420
Common law cannot create criminal offences, only Parliament (statutes) can.
FACTS
Peeping tom case.
ISSUE
Can someone be arrested for a crime not defined in CC? Can the common law define an offence, not previously defined in CC?
PRINCIPLE
Criminal offences can only be created by Statute/Parliament.
NOTES
From
judgement
SC concluded that only Parliament can decide what is an offence in CC otherwise law would be too confusing. “If ay course of
conduct is now to be declared criminal, which has not upto the present time been so regarded, such declaration should be made
the Parliament and not the Courts”.
Other Notes
S. 9 of CC: No person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great
Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or
place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court
judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
R v Jobidon, [1991] 2 SCR 714
Defence created by common law/meaning of consent- keep in mind, only ‘offences’ are defined in CC (defenses or argument for defences can be
common law)
Jobidon and victim had a bar fight leading to fist fight. Jobidon attacked the victim and then continued to plummet after victim
FACTS
was unconscious. Victim died.
ISSUE
Is absence of consent a material element that must be proved by the Crown in all cases of assault?
Page | 5
JUDGEMENT
Appeal dismissed.
PRINCIPLE
Consent is not a factor in assault leading to death.
Reasons
For
judgement
Jobidon’s argument that both parties consented to the fight and since the charge of assault must ‘lack consent’, he cannot be
convicted of manslaughter. The court rejects this, citing S 14 CC (you cannot consent to imposition of death). Consent is
recognized when bodily harm is trivial. Jobidon continued to attack the victim after he was unconscious.
Other Notes
CC Section 8 (3). Every rule and principle of the common law that renders any circumstance a justification or excuse for an act
or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of
Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.
POWER TO CREATE CRIMINAL OFFENCES
FACTS
ISSUE
JUDGEMENT
R v Malmo-Levine, 2003 SCC 74
Malmo-Levine was charged with possession and trafficking of marijuana. He ran a non-profit helping people reduce the harms
associated with marijuana and teaching them "safe practices". His clinic was searched and a large amount of marijuana was
found. He tries to challenge the prohibition's constitutional validity. He was convicted and the Court of Appeal, in a majority
decision, upheld the conviction.
Was the law valid?
Appeal dismissed
PRINCIPLE
Criminal law power extends to laws designed to promote public peace, safety, order, health or other legitimate public purpose
Reasons
For
judgement
For law to be classified as criminal law, 3 requirements:
(i) valid criminal law purpose,
(ii) backed by prohibition,
(iii) and a penalty;
Criminal law power extends to laws designed to promote public peace, safety, order, health or other legitimate public purpose
(para. 74)
Page | 6
CHARTER OF RIGHTS AND FREEDOMS
FACTS
ISSUE
JUDGEMENT
NOTES
From
judgement
FACTS
ISSUE
JUDGEMENT
Canada (Attorney General) v. Bedford, 2013 SCC 72
The applicants, argued that Canada's prostitution laws were unconstitutional. CC includes a number of provisions, such as
outlawing public communication for the purposes of prostitution, operating a bawdy house or living off of the avails of
prostitution, even though prostitution itself is legal.
The applicants argued that the laws deprive prostitutes of their right to security by forcing them to work secretly. Court of appeal
ruled that some, but not all, of these prohibitions violated the Charter.
Are the laws unconstitutional
The SC ruled in a 9-0 decision that all of these laws are unconstitutional; although, it delayed the striking down of the laws by
one year to allow Parliament to update the laws in accordance with the ruling.
This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the
law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and
gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective)
The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad;
a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.
Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing
limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional
rights of prostitutes.
R v Oakes, [1986] 1 S.C.R. 103
Oakes charged with unlawful possession of narcotic for purpose of trafficking. Oakes claims s.8 of Narcotics Act violates
presumption of innocence contained in s.11(d) of Charter (presumption of innocence). That section provides that if the Court finds
the accused in possession of a narcotic, presumption is that possession was for trafficking and burden of proof is on accused to prove
that it was not intended for trafficking.
Whether S.8 of Narcotics Act violated S. 11(d) of charter and whether it could be saved under S.1 of Charter (reasonable limit for
public good)
S. 8 Narc Act violates 11(d) of Charter
Page | 7
“reverse onus” provision under Narcotic Control Act violates s.11(d) Charter presumption of innocence; accused must
rebut presumption that in possession of drugs for purposes of trafficking – no rational connection between basic fact of
possession and presumed fact of possession for purpose of trafficking – not saved by s.1
Court proposes a two part test( Oakes test):
1. The purpose of the law must be important to society or be designed to promote a sufficiently important objective.
2. Proportionality: should be proportionate to objective
(i) Rational Connection: connected to the end the government seeks to achieve
(ii) Minimal Impairment: minimally impairs the rights in the Charter
(iii) Proportionality between means and effect: The law does not have a disproportionately severe effect on those
whose rights it infringe
•
NOTES
From
judgement
FACTS
JUDGEMENT
NOTE
NOTES
From
judgement
R. v. Labaye, S.C.C. (2005)
Accused operated a club in Montréal for group sex. Accused charged with practice of acts of indecency under s. 210(1) of the CC.
The club had three floors. The first floor was occupied by a bar, the second a salon, and the third the “apartment” of the
accused. Entry to the club and participation in the activities were voluntary. At trial, the accused was convicted. The trial judge
found that the accused’s apartment fell within the meaning of “public place”, under s. 197(1) CC. She also found social harm in
the fact that sexual exchanges took place in the presence of other members of the club. She concluded that this conduct was
indecent under the Code because it was degrading and dehumanizing. A majority of the Quebec Court of Appeal upheld the
accused’s conviction.
The appeal should be allowed and the accused’s conviction set aside.
Opinion of Minority- presumption that statutes are presumed to be constitutionally valid
•
Majority: autonomy and liberty of public not affected by unwanted confrontation with sexual conduct in question, only
those
disposed
to
this
sort
of
sexual
activity
allowed
to
participate
and
watch.
•
Minority: Whether or not serious social harm is sustained has never been the determinative test for indecency. The
existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of
fundamental social and ethical considerations is sufficient.
Community does not tolerate acts of this nature in place of business to which public has easy access, consent of
participants, observers not determinative .
Page | 8
INTERPRETATION OF CRIMINAL CODE
FACTS
ISSUE
JUDGEMENT
R v Pare, [1987] 2 S.C.R. 618
Purposive interpretation of statute
The accused murdered a young boy two minutes after indecently assaulting him. The killing was motivated by fear that the child
would tell his mother about the incident. At trial, the jury found the accused guilty of first degree murder. At the time of the offence,
definition provided that "murder is first degree murder in respect of a person when the death is caused by that person while
committing an offence under section . . . 156 (indecent assault on a male)". The Court of Appeal dismissed the accused's appeal but
substituted a verdict of second degree murder for the jury's verdict of first degree murder.
This appeal is to determine whether the accused murdered the child "while committing" the indecent assault.
Appeal to be allowed. Conviction of first degree murder restored.
PRINCIPLE
Purposive interpretation of statute
NOTES
From
judgement
The words ‘while committing’ do not require both acts to be done simultaneously. They should constitute one continuous
sequence of events.
Narrow interpretation of statute may not be reasonable or reflect policy considerations underlying provision.
–
Interpretation of the criminal code d) French/ English
R. v. Mac, [2002] 1 S.C.R. 856
Interpretation of French/English versions
Accused charged with being in possession of various machines and materials adapted and intended to be used in forging credit
FACTS
cards – Proper interpretation of word “adapted” in s. 369(b) of Criminal Code – Ambiguity arising from English version of
Criminal Code resolved by clear language in French version.
ISSUE
JUDGEMENT
PRINCIPLE
Proper interpretation of the word “Adapted”
French version to be adapted
When there is ambiguity in statute, both English and French versions to be read. Ambiguity to be resolved in favor of clearer
version.
Page | 9
NOTES
From
judgement
FACTS
ISSUE
NOTES
From
judgement
–
In this case, any ambiguity arising from the English version is resolved by the clear and unambiguous language of the French
version of s. 369(b). There is therefore no need to resort to further rules of statutory interpretation, such as those invoked by
the Court of Appeal.
R. v. Collins, [1987] 1 S.C.R. 265
Appellant had been under surveillance by 2 members of the RCMP. A police officer approached her in a pub, said he was a police
officer, grabbed her throat and pulled her to the floor. The throat hold is used to prevent someone from swallowing drug. She
has a bag of heroine in her hand. Officers did not have warrant for search.
Should the drugs found in her hand be excluded from trial under S. 24(2) of Charter?
Difference between English and French versions of S. 24(2)- English version uses the words “Would bring administration of
justice into disrepute” while French uses “Could bring…into disrepute”.
As one of the purposes of s. 24(2) is to protect the right to a fair trial, the French text should be favored as it better protects that right.
S. 24(2) should thus be read as "the evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission of it in the proceedings could bring the administration of justice into disrepute".
Interpretation of the criminal code e) the Charter
FACTS
ISSUE
JUDGEMENT
Canadian Foundation for Children v. A.G. Canada, S.C.C. (2004) 1 S.C.R. 76
Charter and interpretation of Code
The appellant, the Canadian Foundation for Children, Youth and the Law, appealed against the refusal of the Court of Appeal for
Ontario to issue a declaration that s. 43 of the Criminal Code, which justified the reasonable use of force by way of correction by
parents and teachers against children in their care, violated ss. 7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms
(the Charter).
Is S. 43 of the CC infringement of the Charter?
The Court dismissed the appeal holding that s. 43 of the Code did not infringe ss. 7, 12 and 15 of the Charter.
Page | 10
NOTES
From
judgement
S.43 adversely affects children’s security of person, but does not offend principle of natural justice. There were proper safeguards
under s. 43 to protect child’s interests. Neither is the section unduly vague or overbroad – sets out real boundaries, delineates
risk zone for criminal sanction, avoids discretionary law enforcement
ELEMENTS OF CRIMINAL OR REGULATORY OFFENCES-ACTUS REUS
Definition-Voluntary or Willed Acts
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R. v. J.(D.), 2002
Definition of Actus Reus
Two police officers were investigating a break and enter. Police dog led them to a park where JD matched the description of the
offender. Police officers called JD but he sped away. JD then went to an acquaintance’s house and rang the bell. Friend answered
the door and JD told her to tell the cops that he lived there. JD tried to escape from the back door of friend’s house but it was
blocked with a couch. The police arrested JD without incident. Ontario C of Justice acquitted JD of charged against forcible entry
for which the police arrested him but the court convicted him for forcible entry into the friend’s house. JD is appealing that
decision.
Do the appellant’s actions fall within the definition of ‘breaking and entering’ under S. 72(1) of Criminal code?
Acquitted
Actus reus and mens rea not present.
Prohibited entry must interfere with the peaceful possession of the owner, at the time of entry. The appellant’s friend opened
the door and the friend’s mother was not surprised to see the appellant in the house.
The appellant also did not have any ‘intention’ to take possession of the property at the time of entry.
Entry was without any force, violence or threat. He had been in the residence before and entered with permission. No basis to
conclude that he entered forcefully or disturbed the peaceful possession of the residence owners.
Page | 11
Other Notes
FACTS
JUDGEMENT
Good case for Actus Reus (No Actus Reus)
R v Gunning, [2005] 1 S.C.R. 627
Accused shoots trespasser, but claims firing of gun accidental, meant only to intimidate trespasser, not intentional firing of
weapon
The appeal should be allowed. The conviction should be set aside and a new trial ordered.
PRINCIPLE
Hierarchy of offences (Murder, Manslaughter, Assault [if victim not dead])
NOTES
From
judgement
In this case, if the jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would be the
shooting itself and the accused would be guilty of murder.
If the Crown failed to prove an intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful act
of careless use of a firearm.
If the jury had a reasonable doubt on this question, he was entitled to an acquittal.
Act of possession
1) Knowledge
FACTS
ISSUE
R v. York (2005), 193 C.C.C. (3d) 331 (B.C.C.A)
Significance: Manual Possession
York had leased warehouse property with a partner and was assisted by two other people. One day he found stolen property in
his warehouse. He was aware that the property was stolen. He hired a trailer and drove the stolen property away from his
warehouse. He was apprehended for being in possession of property that he knew was stolen.
Does it constitute “possession” if someone knowingly takes brief control of goods that he knows are stolen?
Page | 12
JUDGEMENT
Acquited. Reasonable doubt for possession charges.
PRINCIPLE
Possession cannot be proved without knowledge, control and intention at the same time.
NOTES
From
judgement
Act of Possession requires knowledge and control. It also requires intention to use the property for some personal use.
Intention could not be established.
Important
paras from
Judgement
[10] In order to prove possession the Crown must establish the following:
(1) manual or physical handling of the prohibited object;
(2) knowledge; and
(3) control.
Para [11] Thus, the offence of possession is made out where there is the manual handling of an object co-existing with the
knowledge of what the object is, and both these elements must co-exist with some act of control.
[20] I think the law can be summarized as follows. Personal possession is established where an accused person exercises
physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be,
and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in
some prohibited manner. The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen,
and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of
this conduct fell short of that required for a conviction for a crime of dishonesty.
2) Consent
FACTS
ISSUE
JUDGEMENT
R v Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.)
Joint Possession not established due to lack of control
Marshall in car with others who smoke marihuana. Marshall had knowledge of presence of drugs, but no control, right to
control, or consent to its presence. The cops stopped the car twice and the second time, marihuana was caught.
Can joint possession be established if someone has knowledge but does not consent to the possession of illegal substance in the
car?
Acquitted. Joint possession requires knowledge and consent.
Page | 13
PRINCIPLE
Knowledge and control are required to establish possession (or joint possession).
NOTES
From
judgement
Accused had the knowledge but no control over the substance. Choice facing accused was to leave car and risk hitch
hiking to return to school on time, or staying in car with drugs – accused lacked power to control persons in car
possessing drug, not owner of car.
3) Control
R v Terrence, [1983] 1 S.C.R. 357
Joint possession- consent required along with knowledge and consent
FACTS
Accused was driving in a stolen car. He testified that he had no knowledge that the car was stolen. He believed that the car
belonged to his friend’s brother in law. Trial court rejected this claim even though there was nothing to contradict the statement
of accused. Court of appeal quashed the decision stating that some element of control is necessary to establish possession. SC
appeal brought by crown against court of appeal’s decision.
ISSUE
Whether the word “possession” used in s. 3(4)(b) of the Code imports control as essential element.
JUDGEMENT
Appeal dismissed.
PRINCIPLE
under Joint possession in S. 3(4)(b) of CC, ‘knowledge and consent’ cannot exist without some measure of ‘control’ over the
property.
NOTES
From
judgement
A measure of control on the part of the person deemed to be in possession is a constituent and essential element of
possession under s. 3(4)(b) of the Criminal Code. The “knowledge and consent” required cannot exist without some
measure of control over the subject-matter.- (second last para of judgement)
FACTS
ISSUE
R v Morelli, 2010 SCC 8, [2010] 1 SCR 253
Possession of electronic data- For possession, always differentiate intangible property from tangible property
An accused is charged with possession of child pornography. During his trial, the court applies the criminal standard of proof
beyond a reasonable doubt. The evidence is clear. He is found guilty.
Does possession of illegal image in computer means possession of underlying data file?
Can possession be established even if accused did not download image?
Page | 14
JUDGEMENT
No possession.
PRINCIPLE
Possession of electronic data
NOTES
From
judgement
Merely viewing in web browser illegal image stored in remote location on Internet does not establish level of control
necessary for possession – possession of digital images in computer, rather than tangible objects, but possession of
image in computer means possession of underlying data file, not its mere visual depiction.
[28] Interpreting possession to apply only to the underlying data file is also more faithful to a traditional understanding of what
it means to “possess” something. The traditional objects of criminal possession — for example, contraband, drugs, and illegal
weapons — are all things that could, potentially at least, be transferred to another person.
Jugement
paras
[29] Without storing the underlying data, however, an image on a screen cannot be transferred. The mere possibility of sharing
a link to a Web site or enlarging the visual depiction of a Web site, as one could “zoom in” on a TV screen image, is insufficient
to constitute control over the content of that site. It is indeed the underlying data file that is the stable “object” that can be
transferred, stored, and, indeed, possessed. More broadly, the object possessed must itself have some sort of permanence.
[30] Thus, while it does not matter for the purposes of criminal possession how briefly one is in possession of the object, the
thing said to be culpably possessed cannot — like a broadcast image flickering across a TV screen or a digital image displayed
transiently on-screen — be essentially evanescent.
Consent as element of Actus Reus
R v Ewanchuk
FACTS
R v Jobidon, [1991] 2 SCR 714
Consent
Jobidon and victim had a bar fight leading to fist fight. Jobidon attacked the victim and then continued to plummet after victim
was unconscious. Victim died.
Page | 15
ISSUE
JUDGEMENT
Is absence of consent a material element that must be proved by the Crown in all cases of assault?
Appeal dismissed.
PRINCIPLE
Consent is not a factor in assault leading to death.
Reasons
For
judgement
Jobidon’s argument that both parties consented to the fight and since the charge of assault must ‘lack consent’, he cannot be
convicted of manslaughter. The court rejects this, citing S 14 CC (you cannot consent to imposition of death). Consent is
recognized when bodily harm is trivial. Jobidon continued to attack the victim after he was unconscious.
Other Notes
Comments: s.265 should be read in light of common law limitations on consent, Code provisions have not ousted common law
limitations – victim’s consent to “fair fight” did not preclude commission of offence of assault
FACTS
ISSUE
JUDGEMENT
NOTES
From
judgement
R v J.A, 2011 SCC 28
Accused and complainant engaged in sexual activity of asphyxiation. Complainant lost consciousness and accused performed
anal act. Complainant later filed complained saying she consented to being asphyxiated but did not consent to the act performed
during unconscious period. Later she recanted statement but case still filed.
Whether prior consent is applicable in sexual acts.
Appeal allowed, respondent’s conviction of sexual assault restored.
Complainant cannot consent in advance to sex acts that committed later when she is unconscious; Parliament has
defined consent in way that person must be conscious throughout sexual activity (para. 37 consent as actus reus
element (did complainant subjectively consent in her mind), and mens rea element (did accused believe believe
complainant communicated consent)) Summary para 66 complainant must provide actual active consent through
every phase of sexual activity
Para 37: The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must be
conscious throughout the sexual activity. Before considering these provisions, however, it is important to keep in mind the
Page | 16
differences between the meaning of consent under theactus reus and under the mens rea: Ewanchuk, at paras. 48-49. Under
the mens rea defence, the issue is whether the accused believed that the complainantcommunicated consent. Conversely, the
only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not
required to express her lack of consent or her revocation of consent for the actus reus to be established.
Para [66] The definition of consent for sexual assault requires the complainant to provide actual active consent throughout
every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses
her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is
consenting is therefore not consensual within the meaning of the Criminal Code.
R. v. Ewanchuk, S.C.C. (1999) – actus reus of sexual assault requires proof of touching, sexual nature
of contact,
absence of consent; no defence of implied consent to sexual assault exists in Canada – to be legally effective, consent
must be freely given
Ewanchuk @ para 26: the only relevant period of time for the complainant’s consent is while the touching is occurring.
R v Mabior, 2012 SCC 47
Vitiating consent by reason of fraud“Consent a requirement to prevent charge of sexual assault”
CC 265(3)(c ): No consent is obtained where the complainant submits or does not resist by reason of fraud
FACTS
ISSUE
JUDGEMENT
NOTES
From
judgement
Accused was HIV positive with low viral load and had sex with several women, with or without condom. Complainants
had all consented to sex but accused did not inform them about his HIV status. Crown brought a charge of aggravated
assault under S 265(3)(c) of CC.
Trial court found accused guilty of aggravated sexual assault (no consent due to fraud), Appeals court set aside
conviction. Matter went to SC finally.
Whether having sex with a HIV positive person, without being informed about his health, vitiated consent by reason of
fraud.
Appeal allowed in part (reference to complainants who had sex without condom)
At para [94]: This leaves the question of when there is a realistic possibility of transmission of HIV. The evidence adduced
here satisfies me that, as a general matter, a realistic possibility of transmission of HIV is negated if:
(i)
The accused’s viral load at the time of sexual relations was low, and
(ii)
Condom protection was used.
Page | 17
Reason: Court examined whether the Cuerrier test applied:
(i)
Was there a dishonest act; and
(ii)
Did that lead to deprivation (denying knowledge of HIV to complainants, which would have caused them to
refuse sexual relations that exposed them to significant risk of bodily harm)
Court determined that the absence of realistic possibility of HIV transmission precludes a finding of fraud vitiating
consent under S 265(3)(c) of CC.
In this case, no ‘realistic possibility of transmission’ was established with complainants with whom accused had sex with
condom.
For all others (with whom sex was without protection), appeal was allowed.
CAUSATION
FACTS
ISSUE
JUDGEMENT
R v Smithers, [1978] 1 S.C.R. 506
Accused and deceased were players in opposing teams. During game, a fight broke out. After game accused caught up with
deceased and kicked him in stomach. Deceased died due to aspiration of foreign materials present from vomiting.
Trial court convicted accused of manslaughter. Accused appealed, appeal court dismissed appeal. Now appeal in SC.
Was the kick a sufficient cause of the death to attract criminal liability?
Appeal dismissed. Conviction upheld.
PRINCIPLE
The "thin skull" rule applies in criminal law as in tort law.
NOTES
From
judgement
Kick had to be an "operating clause outside of the de minimis range" (ie: a contributing cause that is not trivial or insignificant)
in order for it to be deemed the cause of death, that is, the Crown had to prove that the kick caused the vomiting, and that the
vomiting caused the death. Judge accepts the Crown's argument that this was outside the de minimis range, as the thin skull rule
applies in criminal law and therefore the kick led to the victim's reaction that resulted in death. This is a lower standard than the
Smith test, which is what the defence wanted to be used. The Smithers test needs a lower threshold of causation to be proven in
order to get the conviction
Ratio: An action only has to be an operating cause outside of the de minimis range in order to be deemed the cause of a
prohibited result in criminal law; a lower threshold of causation than was required in the Smith test.
The "thin skull" rule applies in criminal law as in tort law.
Page | 18
Important judgement part: Death may have been unexpected, and the physical reactions of the victim unforeseen, but that
does not relieve the appellant.
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Nette, [2001] 3 S.C.R. 488
Facts: Elderly victim robbed and bound with electrical wire on bed, garment around head and neck, dies in next 48 hours from
asphyxiation.
What is the threshold test of causation for 2nd degree murder?
Conviction stays.
There is only one standard of causation for homicide offences – Smithers.
2nd degree murder – accused must be contributing cause beyond de minimis range (ie. Significant contributing cause of
death). [see judgement para 71]
Must show that they caused the death both on fact and law: [see para 44-45]
(a) Factual causation – inquiry about how the victim came to her death – medical, mechanical and physical sense;
(b) Legal causation (imputable causation) – accused’s responsibility in law, informed by legal considerations such as wording of
offence, principles of interpretation. (Basically, should the accused be held responsible in law for the death that occurred given
his level of involvement?)
[Para 44] In determining whether a person can be held responsible for causing a particular result, in this case death, it must be
determined whether the person caused that result both in fact and in law.
Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical,
mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the
remaining issue is legal causation.
[Para 45] Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused
person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording
of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental
principles of criminal justice such as the principle that the morally innocent should not be punished. In determining whether
legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally
responsible for the consequences that occurred.
When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order
to qualify it for legal recognition is not a test of causation but a moral reaction. The question is whether the result
can fairly be said to be imputable to the defendant. . . . If the term “cause” must be used, it can best be distinguished
in this meaning as the “imputable” or “responsible” or “blamable” cause, to indicate the value-judgment
Page | 19
involved. The word “imputable” is here chosen as best representing the idea. Whereas the but-for cause can
generally be demonstrated scientifically, no experiment can be devised to show that one of a number of concurring
but-for causes is more substantial or important than another, or that one person who is involved in the causal chain
is more blameworthy than another.
[Para 71] The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. In addition, in the
case of first degree murder under s. 231(5) of the Code, Harbottle requires additional instructions, to which I will return. The
only potential shortcoming with the Smithers test is not in its substance, but in its articulation. Even though it causes little
difficulty for lawyers and judges, the use of Latin expressions and the formulation of the test in the negative are not particularly
useful means of conveying an abstract idea to a jury. In order to explain the standard as clearly as possible to the jury, it may be
preferable to phrase the standard of causation in positive terms using a phrase such as “significant contributing cause” rather
than using expressions phrased in the negative such as “not a trivial cause” or “not insignificant”. Latin terms such as “de minimis”
are rarely helpful.
Judgement regarding higher degree of causation for first degree murder:
[Para 73] In light of Harbottle, where the jury must be instructed on first degree murder under s. 231(5) of the Code in addition
to manslaughter or second degree murder, the terminology of “substantial cause” should be used to describe the applicable
standard for first degree murder so that the jury understands that something different is being conveyed by the instructions
concerning s. 231(5) of the Code with respect to the requisite degree of participation of the accused in the offence. In such cases,
it would make sense to instruct the jury that the acts of the accused have to have made a “significant” contribution to the victim’s
death to trigger culpability for the homicide while, to be guilty of first degree murder under s. 231(5), the accused’s actions must
have been an essential, substantial and integral part of the killing of the victim.
FACTS
JUDGEMENT
NOTES
From
judgement
R v Williams [2003] 2 S.C.R. 488
Accused has unprotected sex with victim, learns after 5 months he is HIV positive but fails to inform victim, however victim likely
already HIV positive by this time.
The appeal should be dismissed.
To constitute aggravated assault by endangering life of victim, s.268, actus reus and mens rea must coincide – before date
accused aware of condition there was endangerment but no intent, afterwards intent but reasonable doubt as to endangerment;
accused guilty of attempted aggravated assault, not aggravated assault
Page | 20
R v Maybin 2012 SCC 24
Breaking chain of causation- analysis
Accused punches victim in head in bar fight, renders him unconscious, third party also punches victim in head, dies from injuries,
issue is whether intervening act by other person severs causation chain, Supreme Court holds that in intervening act cases,
causation test remains whether dangerous and unlawful acts of accused are a significant contributing cause of victim’s death
FACTS
ISSUE
issue is whether intervening act by other person severs causation chain
PRINCIPLE
NOTES
From
judgement
Analysis of break in chain of causation

Analysing whether an intervening act absolves accused of manslaughter.

Both the “reasonable foreseeability” and the “intentional, independent act” approach may be useful, depending on the facts.
(i)
Intervening act reasonably foreseeable to accused may not break chain of causation
(ii)
An independent and intentional act by third party may sometimes break the chain of causation

Even where there has been intervening act, question remains whether dangerous and unlawful acts of accused are significant
contributing cause of victim’s death.

“Reasonable foreseeability” approach suggests that where accused undertaking dangerous act contributes to death, he
should bear the risk that other foreseeable acts may intervene and contribute to that death. The harm that actually transpired
must flow reasonably from conduct of accused. Then accused’s actions may remain significant contributing cause of death.

Whether an intervening act is independent is sometimes framed as a question of whether the intervening act is a response
to the acts of the accused. In other words, did the act of the accused merely set the scene, allowing other circumstances to
(coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party? If the
intervening act is a direct response or is directly linked to the accused’s actions, and does not by its nature overwhelm the
original actions, then the accused cannot be said to be morally innocent of the death.
Page | 21
R v Reid, 2003 NSCA 104
Causation and intervening event
FACTS
ISSUE
Victim assaulted in fight with accused, but botched resuscitation efforts result in vomit being forced into lungs, victim dies;
question to resolve is whether acts of accused are significant contributing cause of death, and whether intervening cause occurs
between accused’s acts and death of victim – any independent, intervening and therefore exculpatory factors that occur after
accused’s acts, thereby severing link in chain that tied them to death of victim (para. 62); explanation of causation para 89
whether acts of accused are significant contributing cause of death and whether intervening cause occurs between accused’s
acts and death of victim
Intervening causes do constitute a unique category of case such that in circumstances like these where, upon the evidence, the
failed attempts at CPR clearly interrupted and therefore separated the acts of Accused from victim’s ultimate death.
Causation:
In order to be satisfied beyond a reasonable doubt that the accused caused the death of victim, questions to be considered are:
(i)
(ii)
NOTES
From
judgement
Whether the accused’s unlawful acts in fact amounted to a significant contributing cause of victim’s death?
If yes, then whether any intervening cause which resulted in victim’s death occurred between the accused’s acts and
the victim’s death?
(iii)
It is enough for the Crown to prove to the Jury’s satisfaction that the actions of accused, were a significant contributing cause of
victim’s death.
Intervening event:
The next question to consider is whether actions (which has been confirmed by doctors as cause of victim’s death) of those on
scene to resuscitate the victim, an intervening event that broke the chain of causation between accused’s action and victim’s
death- such that actions of accused are no longer seen as significant contributing cause of victim’s death.
If jury was satisfied that the chain of causation was unbroken, or jury was not left with a reasonable doubt about it, jury would
then conclude that this element of the offence of manslaughter was made out. If on the other hand jury decided that the CPR
efforts had severed the chain of causation linking accused to victim’s death, or were left with a reasonable doubt about it, then
Page | 22
the Crown would have failed to establish this essential element of the charge and would therefore be unable to convict that
accused of manslaughter.
OMISSION- ACTUS REUS
FACTS
ISSUE
JUDGEMENT
NOTES
From
judgement
R v Moore, [1979] 1 S.C.R. 195
Accused ran red light on bike. Police officer stopped him to ‘ticket’ him. Accused refused to give his name and address. Charged
with obstructing police officer.
Trial court acquitted accused. Appeal court overturned the decision, stating that accused obstructed the police officer. Now
decision in SC.
Is there a duty for a person to identify himself to police officer if statute or common law do not specify the same?
Majority decision upheld the Appeals court decision. Minority would have upheld trial court decision
Officer under duty to attempt to identify wrong-doer, accused’s failure to identify self constitutes offence of obstructing peace
officer in execution of his/her duty, Code, s.129
• minority – no duty at common law to identify self to police, refusal to identify self not obstruction of police, absent
legal duty to answer
See Code provisions notes- 215(1)
Page | 23
R v Peterson, [2005] O.J. No. 4450 (Ont. C.A.), leave to appeal refused.
FACTS
Adult son failed to look after his father. Liability under S 215 (2) of CC.
ISSUE
Is an adult child under a legal duty to care for his elderly parent(s)?
[35] Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked
departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively
foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the
person under the charge of the other. The personal characteristics of the accused, falling short of capacity to appreciate the risk,
are not a relevant consideration. The use of the word “duty” is indicative of a societal minimum that has been established and is
aimed at establishing a uniform minimum level of care.
[40] First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in the
charge of another. The dependency of the parent under a disability on an independent adult child is justified by their relationship
to one another in which an element of trust will usually be present.
The mere breach of a federal or provincial statute, which imposes a duty on a child to support a parent, does not constitute a
crime. It is nevertheless proper for the trier of fact to consider legislation governing the accused in order to determine whether
the accused’s actions or inactions show a “marked departure” from the conduct expected.
NOTES
From
judgement
[41] Second, the word “charge” is not unknown to the criminal law in other contexts involving adults. One speaks of a person
who is fixed with responsibility of supervision as one who is in ‘charge’”.
[42] Used in these contexts the word “charge” connotes, among other things, the duty or responsibility of taking care of a person
or thing.
[43] In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to
understand and appreciate their circumstances is a factor to consider. A parent who is not in full possession of his or her faculties
may not appreciate that he or she cannot provide himself or herself with the necessaries of life and may not have the capacity to
understand that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury. Just as some
contributory negligence by the victim is not a defence to a charge of criminal negligence, the inability of the victim to appreciate
his or her need for necessaries and the victim’s unwillingness to cooperate is not a defence for an accused charged with failure
to provide necessaries. If the parent is otherwise in the child’s charge and the child cannot care for the parent due to the parent’s
refusal to accept care, the child is obliged to seek the help of a community agency.
Page | 24
[44] A further consideration in determining whether a person is in the charge of another is whether one person has explicitly
assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly
acknowledging to others in the community by words or conduct an assumption of responsibility.
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Browne (1997), 166 C.C.C. (3d) 183 (Ont. C.A.)
Accused charged with criminal negligence causing death where partner swallows drugs to avoid detection, dies before he can
get her to hospital.
Was accused under a legal duty to care for victim?
No legal duty on accused to care for victim
Where there is no legal duty under the law, there is no obligation.
There existed no undertaking under S 217 of CC and hence there was no legal duty to care for the victim.
The trial judge found that the relationship between Dexter Browne and Audrey Greiner as partners in drug dealing gave rise to
an implicit undertaking by Browne that he would take Audrey Greiner to the hospital whenever she swallowed cocaine. The
fundamental error made by the trial judge was in reversing the analytical steps under s. 217 by starting her analysis with whether
a duty of care existed, finding that it did, and then basing her finding of an undertaking on the existence of a legal duty. The
inquiry should have begun with whether there was an undertaking. Only if there was an undertaking in the nature of a binding
commitment could a legal duty have arisen under s. 217, regardless of the nature of the relationship between the appellant and
Audrey Greiner.
There being no undertaking within the meaning of s. 217 of the Criminal Code, there can be no finding of a legal duty. There being
no duty, there can be no breach contrary to s. 219 of the Code.
SUBJECTIVE MENS REA
INTENTION, ULTERIOR MENS REA
Page | 25
R. v. Vandergraff, [1994] M. J. No. 503 (Man. C.A.)
Intention necessary to prove criminal act that accused is charged with (eg assault)
FACTS
Accused was at a hockey game. He got frustrated with results of the game and threw a jar of peanut butter at field. It hit the victim
and accused was charged with assault. Trial court found him guilty of assault, stating intention was not necessary. Case in
Manitoba Court of appeal.
ISSUE
Whether intention is required to prove accused committed the criminal act that he is accused of.
JUDGEMENT
Assault provisions requires intention under CC. Without proof of intention to apply force to victim, criminal act of assault (with
a weapon) cannot be established.
NOTES
From
judgement
Crown could have brought a charge of criminal negligence causing bodily harm and accused could have been convicted of that.
But the charge here was specifically for assault and the required mens rea of intention was not present in this case.
FACTS
ISSUE
JUDGEMENT
R. v. Murray, [2000] O.J. No. 2182 (Ont. S.C.J)
Lawyer representing rapist/killer client (Scarborough rape case) retained client’s tapes without disclosing to crown or police
for 17 months. His intention was to cross examine client’s co accused spouse, to incriminate her (she had entered into an
arrangement with crown to be set free by testifying that she was abused into participating in sexual acts with victims- tapes
proved she was a willing participant and her testimony was completely false).
Whether intention was necessary to prove mens rea for attempt to obstruct justice by concealment of videotapes.
Accused acquitted.
NOTES
From
judgement
The statutory provision of ‘attempt to obstruct justice’ clearly states that the accused must ‘willfully intend’ to obstruct justice.
Accused’s testimony stating that he only retained tapes with the intention of using them for cross examining the co accused (ie.
No intention to obstruct justice or retain tapes permanently) raised reasonable doubt regarding his intention to obstruct justice.
Tips
READ THE FACT SCENARIO, READ THE STATUTE. IF FACT SCENARIIO STATES THERE WAS NO INTENTION AND STATUTE
SPECIFIES THAT THERE SHOULD BE SPECIFIC INTENTION TO COMMIT THE OFFENCE, THEN USE ONE OF THE CASES.
Page | 26
R v J.S.R., 2008 O.N.C.A. 544
There is intention to kill someone, but not the person who is killed
FACTS
ISSUE
JUDGEMENT
NOTES
From
judgement
Accused was involved in a street gun fight with another person. While gun shots being exchanged, bystander caught in mid and
killed by other person’s gun. Accused charged under Culpable homicide-murder, S 229 (c) – intention to cause death to someone
and causing death to another by accident.
If accused did not intend to cause death of victim, is he still liable for causing accidental death while attempting to cause death
to another?
Accused guilty under S 229 (c ) of CC
Under S 229 (c), accused would be guilty of murder if trier of fact established 5 elements:
(i)
The object was unlawful (eg. Gun fight in a crowded place);
(ii)
Doing anything (eg. Carrying a loaded gun, holding gun with finger on trigger);
(iii)
That accused knew was likely to cause death of a human being (eg. Intending to kill the other shooter);
(iv)
Caused the death of someone else (eg. The victim)
(v)
Whether or not the weapon was accidently discharged
There is liability for unintentional death (accidental or not) to someone while intending to cause death to someone else.
R. v Roks, 2011 ONCA 526
Subjective foresight of likelihood of death is required to establish murder conviction, not objective foresight of what a reasonable person would
have done.
Accused owned a business. He and others formed a plan to empty the building and set it on fire on Christmas (fewer people on
FACTS
streets so no harm to anyone) and collect insurance money. Accused did not know how fire will be set and was not involved in
setting the fire. One person died when setting fire. One of the charges on accused was murder under S 229 (c) of CC.
Whether subjective foresight of intention of accused or objective foresight of what a reasonable person would do, is necessary
ISSUE
for S 229 (c).
JUDGEMENT
NOTES
From
judgement
Not guilty of murder under S 229 (c) but of manslaughter.
[judgement paras 124-149]
The knowledge of consequences or likelihood of consequence (death) of dangerous act (arson) refers to actual subjective
knowledge of the accused, not objective knowledge of what a reasonable person would have done. Here the accused did not
know ‘how’ the arson would be committed and was not involved in the act.
Page | 27
Where crown proves that the accused did and act (or series of acts), the natural and probable cause of which would be a
particular result (death), it refers only theto the ‘natural’ and ‘probable’ consequences of the conduct-not to every possible,
conceivable and remote consequence.
3 elements to prove guilt:
(i)
Action was taken for unlawful object
(ii)
There was ‘subjective foresight’ of death
(iii)
Death was thereby caused
What is important is the ‘subjective foresight’ of ‘likelihood’ of death. [para 263]
The common sense proposition that harm or death is natural and even likely is not subjective but objective foresight.
SUBJECTIVE MENS REA WITH OBJECTIVE FEATURES
R. v Chase, [1987] 2 S.C.R. 293
Sexual assault case involving subjective mens rea (what accused intended) and objective features (what a reasonable person would do)
Also definition of sexual assault
Accused lived next to the 15 year old victim. He entered the house uninvited and grabbed the complainant by the breast and
FACTS
made lewd comments. There was no touching of private parts as the complainant successfully defended herself. Trial court stated
that there had to be some touching of private parts to be sexual assault and changed the sentence to assault.
ISSUE
JUDGEMENT
NOTES
From
judgement
FACTS
What is the definition of sexual assault?
The act constituted as sexual assault
[Para 9] The test for defining sexual assault depends on many factors (not just whether there was a specific contact). Sexual
assault can also be between people of same sex.
[Para 11] Sexual assault is assault in circumstances of a sexual nature, where the victim’s sexual integrity is violated. The test is
objective- Viewed in circumstances, whether a reasonable observer would view the assault as sexual or carnal in nature.
R v Theroux, [1993] 2 S.C.R. 5
Subjective mens rea with objective features for fraud
The accused owned Construction Company and took money from depositors by claiming that the money was insured by
Federation of construction in Qubec. There was no insurance as the accused did not pay any premium. The accused honestly
believed that the construction would be completed. The company went bankrupt and many investors lost their investment.
Page | 28
ISSUE
JUDGEMENT
NOTES
From
judgement
Whether intention to defraud the public is required to establish mens rea for fraud.
Accused guilty of fraud
[Para 27]: Actus reus of fraud can be established by proof of:
(i)
The prohibited act, whether it is an act of deceit, falsehood or some other fraudulent means; and
(ii)
Deprivation caused by the prohibited act, that may consist of actual loss or placing of victim’s pecuniary interest at
risk
Mens rea of fraud is established by proof of:
(i)
Subjective knowledge of prohibited act; and
(ii)
Subjective knowledge that the prohibited act could, as a consequence, deprive another (which deprivation may
consist in knowledge that the victim’s pecuniary interest are put at risk)
The question is whether the accused subjectively appreciated that certain consequences will follow from his/her acts, not
whether accused believed his/her acts to be moral. The personal feelings of accused about morality or dishonestly about the act
are not relevant.
What reasonable people could consider dishonest helps to determine whether the actus reus of the offence can be established
by particular facts.
KNOWLEDGE
See:
S 265(4) CC: Accused’s belief as to consent
S 273.2 CC: Where belief in consent not a defence
FACTS
R v Ewanchuk, [1999] 1 S.C.R. 330
Accused offered job to complainant and conducted interview in the trailer where he made physical advances. Complainant was
fearful for her life and did not resist everytime but clearly said ‘no’ time and again. Trial court acquitted accused under implied
consent defence stating that complainant’s actions implied that she consented. Appeals court overturned verdict. Now matter in
SC.
Page | 29
ISSUE
JUDGEMENT
Meaning of consent for sexual assault.
Appeals court verdict upheld. Accused held guilty.
PRINCIPLE
There is no defense of implied consent to sexual assault
NOTES
From
judgement
There is no defense of implied consent to sexual assault
[Para 42] mens rea of sexual assault contains two elements: (1) intention to touch; and (2) knowing of, or being reckless or
wilfully blind to, lack of consent by person touched.
Libeman J comments: accused may challenge crown’s evidence of mens rea by asserting honest but mistaken belief in consent –
defence of mistake is simply denial of mens rea, no burden of proof imposed on accused; if accused’s belief found to be mistaken,
then honesty of belief must be considered – to be honest, belief cannot be reckless, wilfully blind or tainted by awareness of
s.273.1 factors, eg., person incapable of consenting.
R v Levigne, [2010] 2 S.C.R. 3
Knowledge Mens Rea- Reasonable steps
FACTS
Accused luring an underage 13 yr old child on internet. Was in fact undercover police officer. Accused was told that child was 13
yrs old, even though the profile showed him as 18. Accused set up meeting to meet the child and was arrested. Trial court
acquitted him, appeal court found him guilty.
ISSUE
Is the accused required to take reasonable steps to determine age of child.
JUDGEMENT
NOTES
From
judgement
Guilty
[para 31] under S 172.1(4) of CC, it is not a defence that accused believed the person he/she was communicating with was not
underage, unless accused took reasonable steps to ascertain the age of that person.
[Para 32]
(i)
Where represented to accused that person is underage, accused presumed to believe that person in fact underage.
(ii)
Presumption rebuttable – displaced by evidence to contrary which must include evidence that accused took steps
to ascertain real age of party.
(iii)
Objectively considered, steps taken must be reasonable in circumstances.
(iv)
Prosecution fails where accused takes reasonable steps to ascertain age of other and believed he/she not underage
(v)
Evidential burden on accused, persuasive burden on crown; where evidential burden of accused discharged, he/she
must be acquitted if trier of fact left in reasonable doubt whether accused in fact believed party not underage
Page | 30
172.1(4) It is not a defence to a charge under paragraph (1) (a), (b) or (c) [telecommunication with underage children] that the
accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years
of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
Comments: Merely asserting that accused did not have knowledge of the real situation is not sufficient. For defence must be able to
prove that accused took reasonable steps to determine the age etc.
FACTS
ISSUE
JUDGEMENT
Reasons for
Judgement
Comments
R. v ADH, 2013 SCC 28
Accused did not know she was pregnant and delivered the baby in Walmart washroom. Since the baby was blue, she assumed it
was dead and left him in the toilet. Charged with abandoning a child and endangering life under S. 218 of CC. Trial court acquitted
her.
is it subjective (knowledge of accused that her conduct will endanger the child’s life) or objective knowledge (marked departure
from what a reasonable person would have done in similar situation) important in this case?
Acquittal upheld
Under S.218 child abandonment offence, no express fault requirement. Subjective fault restricts broad ambit of the offence
having regard to text, scheme and purpose of provision.
Comments: Important part from case for subjective v objective mens rea
[para 3] In general terms, when fault element is assessed subjectively, focus is on what the accused actually knew, did she know
that abandoning the child would put child’s health or life at risk?
Objectively, focus is not on what accused actually knew, but whether a reasonable person in similar circumstances would have
seen the risk and whether accused’s conduct is marked department from what reasonable person would do.
WILLFUL BLINDNESS
FACTS
ISSUE
R. v. Currie (1975) 24 C.C.C. (2d) 292 (Ont. C.A.)
Currie charged with unlawfully and knowingly uttering a forged document (trying to cash a stolen cheque at a CIBC branch).
He claims he didn’t know it was a stolen cheque with a forged signature on the back and was only trying to help out the guy
who gave it to him to cash, who seemed like an honest guy. The trial judge convicted on the ground that Currie was wilfully
blind.
Should the doctrine of wilful blindness apply here?
Page | 31
HELD
No. Appeal allowed; Currie acquitted.
RATIO
The doctrine of constructive knowledge has no application in criminal law.
NOTES
Wilful blindness is only applicable when a suspicion arises and a person omits to make further inquiries. That is not the
case here. Currie was never suspicious. Perhaps Currie “ought to have known” but this does not constitute knowledge for
the purpose of criminal liability.
FACTS
R. v. Vinokurov, 2001 ABCA 113 (Alta C.A.)
Accused managed a pawn shop and received stolen property from a customer. Accused denied knowing that the property was
stolen. Crown made a case of willful blindness but trial court rejected the argument stating that crown did not establish that
accused had knowledge of property being stolen. Trial court instead, charged the accused with recklessness.
ISSUE
Clarification on doctrine of recklessness and wilful blindness
HELD
Conviction set aside. New trial ordered.
REASON
Recklessness presupposes knowledge of likelihood of prohibited consequence, accused must see risk and take the chance –
finding that wilful blindness not established precludes knowledge requirement (paras 14-15)
NOTES
FACTS
R. v. Briscoe, 2010 SCC 13
Accused charged for role in kidnapping offences, rape and murder of young girl, acquitted on basis mens rea as party to
offences not proven because he did not have requisite knowledge of co-accused’s intention to commit each crime; Court of
Appeal orders new trial on basis that trial judge failed to consider wilful blindness
ISSUE
Whether accused was involved with the crime based on willful blindness.
HELD
Supreme Court agrees trial judge erred
REASON
Briscoe argued that willful blindness is a heightened form of recklessness, which is inconsistent with high mens rea
standard for murder.
Page | 32
Court clarified [para 21] willful blindness can substitute for actual knowledge, whenever knowledge is a component of
mens rea
S 229(a) CC: Causing death, while meaning to cause death (knowledge and intention).
Willful blindness is equivalent to knowledge. Willful blindness is distinct from recklessness. Willful blindness can only be
raised when it can almost be said that the defendant actually knew. willful blindness imputes (assigns) knowledge to
accused whose suspicion is aroused to point where he/she sees need for further inquiries but deliberately chooses not to
make those inquiries
NOTES
Keep in mind, willful blindness is established only where accused can be proved to have the knowledge that a criminal act
is being done or is proposed but does not ask about it just to not be convicted.
In this case, Briscoe said, “whatever you guys wanna do, just do it. Don’t do it around me. I don’t want to see nothing I don’t
know what the f+*# you’re gonna do” Briscoe knew his friend wanted to do something illegal with a girl and generally
‘approved’ of the plan.
RECKLESSNESS
FACTS
ISSUE
R. Theroux, [1979] 2 S.C.R. 5
Théroux was the directing mind of a residential construction company that took deposits from co-contractors on the basis that
the deposits were insured. They weren’t. The company went bankrupt and the deposit money was lost. Théroux was charged
with fraud.
What constitutes the mens rea for the offence of fraud? Did Théroux’s belief that the houses would be built negate the mens
rea for fraud?
HELD
No. Appeal dismissed.
RATIO
Théroux had subjective knowledge that others would act on his lie and he thereby put their property at risk.
NOTES
The mens rea of fraud is established by proof of:
1. Subjective knowledge of the prohibited act (deceit, falsehood); and
2. Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which
deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).
The question is whether the accused subjectively appreciated that certain consequences will follow from his/her acts, not
whether accused believed his/her acts to be moral. The personal feelings of accused about morality or dishonestly about the
act are not relevant.
Page | 33
FACTS
R. v. Buzzanga and Durocher [1979] 49 C.C.C. (2d) 369 (Ont. C.A.)
The defendants put out a satirical document that appeared to be promoting hatred of French Canadians. They actually intended
the document to sway public opinion in favour of building a French-language high school in the area. They were charged and
convicted with wilfully promoting hatred. The trial judge treated the defendants’ testimony that they wished to create a
“controversy, furor, and uproar” as a virtual admission that they had the state of mind requisite for guilt.
ISSUE
Did the trial judge err?
HELD
Yes. Appeal allowed; new trial ordered.
RATIO
NOTES FROM
JUDGEMENT
An intention to create “controversy, furor and uproar” is not the same thing as an intention to promote hatred and it
was an error to equate them.
willfully promoting hatred offence, Code s.319(2), does not include recklessness but requires intention of promoting hatred –
general mens rea required where no mental element mentioned in definition of crime is either intentional or reckless
bringing about result which law seeks to prevent
OBJECTIVE MENS REA AND TRUE CRIMES
FACTS
R. v. Martineau [1990] 2 S.C.R. 633
The accused and a companion robbed a trailer. After the robbery, the companion killed the occupants of the trailer contrary
to what the accused had intended.
ISSUE
Do felony murder and the objective foresight standard violate the Charter?
HELD
Yes. Crown’s appeal dismissed; new trial ordered.
TEST
Lamer C.J.C. – Subjective foresight of death must be proven beyond a reasonable doubt before a conviction for
murder can be sustained.
[Para 12] Principles of fundamental justice under Charter s.7 require conviction for murder to be based on proof
beyond reasonable doubt of subjective foresight of death.
NOTES
special mental element for death necessary before culpable homicide can be treated as murder, give rise to moral
blameworthiness justifying stigma and punishment for murder – phrase “ought to know is likely to cause death” in Code
s.229(c) likely violates ss.7, 11(d) Charter and not saved by s.1, since subjective foresight of death required
Page | 34
Marked departure test
FACTS
ISSUE
R. v. Creighton [1993] 3 S.C.R. 3
The accused injected cocaine into the body of the deceased. The Crown argued that the accused was guilty of manslaughter as
the death was the direct result of that unlawful act. The accused was convicted at trial and the C.A. upheld this. The common
law’s definition of unlawful act manslaughter required the objective foreseeability of the risk of bodily harm which is neither
trivial nor transitory. The foreseeability of death is not required. The S.C.C. confirmed that the common-law rule does not
violate s. 7 of the Charter.
What is the meaning of negligence in the criminal law?
•
•
•
NOTES
From
judgement
Test for mens rea of unlawful act manslaughter is objective foreseeability of risk of bodily harm which is neither trivial,
transitory (temporary) in context of dangerous act – foreseeability of risk of death not required, this test does not
violate principles of fundamental justice under s.7 Charter
Mens rea requirement of foreseeability of harm entirely appropriate to stigma associated with manslaughter offence –
by very act of calling killing manslaughter, law indicates that killing less blameworthy than murder; sentence attached
to manslaughter does not require elevation of degree of mens rea for offence
Standard of mens rea required for manslaughter appropriately tailored to seriousness of offence, accused properly
convicted of manslaughter
[Para 38] Objective test: Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must
ask:
(1) Would a reasonable person in the same circumstances be aware that the likely consequences of his or her unlawful
conduct would create the risk of death? If answer is no, then acquittal. If yes,
(2) Was the accused unaware
(a) because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of
death likely to result; or
(b) because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and thus
to the risk of death likely to result, due to human frailties?
Note, frailties relate to things that are beyond the control of the accused (like illiteracy, preventing accused
from reading danger warnings)
Page | 35
Personal
notes
FACTS
ISSUE
DECISION
Unlike murder, foreseeability of death not required for unlawful act manslaughter. Objective foreseeability is enough.
R. v. Beatty, 2008 SCC 5
Accused charged with dangerous driving causing death, truck suddenly crosses center line into path of oncoming car, killing
occupants. Witnesses testified that vehicle driven properly before accident. Accused stated he must have become unconscious
or fallen asleep for a few minutes. Trial judge found him not guilty, appeal court reversed acquittal.
Does the accused’s negligent driving also attracts criminal liability under criminal negligence causing death?
Acquittals upheld on appeal
There is a difference between civil and penal negligence. Negligent driving does not necessarily constitute dangerous
driving.
NOTES
From
judgement
[Para 43] Actus reus of dangerous driving:
Viewed objectively, accused was driving in a manner that was dangerous to the public, having regard to all
circumstances eg nature, condition & use of place where motor vehicle is operated, amount of traffic that may
reasonably be expected at that place
Mens rea of dangerous driving:
Mens rea for penal negligence can be established only when there is ‘marked departure from standard of care expected
from reasonable person”.
Personal
notes
Momentary act of negligence insufficient to support finding of marked departure from standard of care of reasonably prudent
driver
REGULATORY OFFENCES
Page | 36
FACTS
ISSUE
PRINCIPLE
R. v Sault Ste. Marie, [1978] 2 S.C.R. 1299
Water pollution case. City of Sault ste marie hired a company for waste disposal. The waste disposed polluted Ontario waters
and City was sued under Ontario regulatory act.
Definition of regulatory offences
Regulatory offences can be classified into three categories
1.
NOTES
From
judgement
FACTS
ISSUE
Mens Rea: Offences which consist of some positive state of mind such as intent, knowledge, or recklessness, must be
proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
Prima facie, public welfare offences are categorised as Strict Liability. They are not subject to presumption of full
mens rea. Offence would fall under mens rea only if words such as ‘willfully’, ‘with intent’, ‘knowingly’, or
‘intentionally’ are used in statute.
Self notes: (eg., Ontario Business Practices Act offence of knowingly engaging in unfair business practice.)
2. Strict Liability: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the
doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving
that he took all reasonable care. This involves consideration of what a reasonable man would have done in the
circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if
true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These
offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
(eg., Highway Traffic Offence (Ont.) of careless driving)
3. Absolute Liability: Where it is not open to the accused to exculpate (exonerate) himself by showing that he was free
of fault.
(eg., Highway Traffic Act (Ont.) offence of speeding – mistaken belief that not speeding no defence, but accused can challenge
proof of actus reus, - radar not working properly, wrong car)
Reference Re B.C. Motor Vehicle Act, [1985] 2 SCR 486
BC motor vehicle act stipulated that anyone driving without drivers license or under suspended licence would be imprisoned.
It also mentioned that the liability was one of absolute liability. (note, absolute lia means that the crown only needs to prove
that accused committed actus reus- and accused does not have any defence of mistaken belief).
Whether imprisonment under absolute liability offences contradict S 7 of the Charter. (note, absolute liability means accused
cannot get fair hearing)
Page | 37
PRINCIPLE
Imprisonment for Absolute liability offences is against S 7 of Charter rights
NOTES
From
judgement
Absolute liability does not violate principles of fundamental justice under s,7 of Charter; however absolute liability offence
combined with imprisonment does violate s.7, irrespective of nature of offence; provision in Act for driving motor vehicle
while prohibited with mandatory 7 days minimum sentence unconstitutional (paras 72-75, presumption against absolute
liability)
FACTS
R v Raham, 2010 ONCA 206
New highway act created offence of stunt driving, punishable by fine, imprisonment or both. Stunt was defined as driving over
a specific speed limit. Defendant argued that speeding is absolute liability, imprisonment is against S 7 of Charter. Court of
Appeal holds stunt driving by speeding is strict liability offence – would violate s.7 Charter if absolute liability as jail mandatory
ISSUE
JUDGEMENT
Whether characterization of speed offence as strict liability is unconstitutional.
Stunt driving can be characterized as Strict Liability offences
•
Issue of statutory interpretation first considered by Court, reference made to french version (para. 24); three ways in
which offence may be committed, one of which is stunt driving: driving in race or contest, driving while performing
stunt, driving on bet or wager
•
Constitutionality of s.172 – nothing inherent in act of speeding that dictates all speed based offences must be
characterized as absolute liability offences, [para. 31];
proper characterization of speed based offences as absolute, strict or full mens rea offences depends on Sault Ste.
Marie analysis – availability of jail suggests strict liability
•
NOTES
From
judgement
•
Due diligence defence to strict liability charge amounts to claim defendant took all reasonable care to avoid
committing offence with which charged; where accused contends he/she operated under reasonable
misapprehension of relevant facts, due diligence takes form of reasonable mistake of fact claim
•
Stunt driving offence by speeding is strict liability – while prohibited conduct same as conduct prohibited by
speeding under s.128 of Highway Traffic Act, nothing illogical in treating stunt driving as strict liability, speeding as
absolute liability, para. 51
Page | 38
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
Levis (City) v. Tetreault, 2006 SCC 12
Company accused of operating vehicle without renewing its registration. Driver charged with driving on expired permit.
Officially induced error argued. City sent renewal notice without complete address, which was returned to city.
Whether officially induced error of law is recognised defence under Strict liability
Officially induced error is recognized as a defence for strict liability offences.
The company did not prove that there was officially induced error, hence company and driver fined.
Officially induced error of law is a recognised defence for strict liability
•
•
NOTES
From
judgement
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
•
Defence of officially induced error of law recognized by Supreme Court for strict liability offences under Quebec
Highway Safety Code, (although not made out successfully by the company)
Concept of diligence based on acceptance of citizen’s civic duty to take action to find out what his/her obligations are
– passive ignorance not valid defence
Company failed to establish conditions for officially induced error of law defence:
(1) error of law/mixed law made;
(2) person who committed act considered legal consequences of his/her actions;
(3) advice obtained came from appropriate official;
(4) advice reasonable;
(5) advice erroneous; and
(6) person relied on advice in committing act (para. 26)
R v Wholesale Travel Inc. [1991] 3 S.C.R. 154
The company was charged with false mislead advertising. There were also lengthy statutory defences defined, which included
the defence of due diligence. But s.37.3(a) (b) stated that you cannot use the defence of due diligence if you become aware of
false advertising and failed to make the timely prompt correction or retraction.
Whether absolute liability offence of timely retraction offends principles of fundamental justice and violates S 7 of Charter?
Whether reversal of burden of proof violate S 11 (d) presumption of innocence under the Charter?
Paragraphs (a) and (b) do not violate the Charter
(i)
Where imprisonment is coupled with due diligence defence, it is strict liability and does not breach the
Charter
Page | 39
(ii)
NOTES
From
judgement
Reversal of burden of proof is not unconstitutional
Proof of negligence or allowing a due diligence defence is sufficient to comply with s.7.
Strict liability that has the possibility of imprisonment does not violate the Charter if a due diligence defence is provided to
the accused.
Reversal of burden of proof justified by difficulties of proving negligence by crown, accused knows reasons for his/her
conduct
EXTENSIONS OF CRIMINAL LIABILITY
AIDING AND ABETTING
FACTS
ISSUE
JUDGEMENT
R v Dunlop and Sylvester, [1979] 2 S.C.R. 881
Gang rape case. D and S part of motorcycle club. They were present at a club gathering where they were introduced as
prospective members. Later they delivered beer to a dump site where the club members were present. They saw one club
member having sex with a girl and they left.
The girl was the victim who claimed to be raped by 18 club members, where 2 people held her and one person put a knife at
her. She identified D and S as two offenders but stated they neither held her nor put a knife to her throat. No evidence that they
were present during rape.
D and S convicted at Trial and Appeal. Now they appeal to SC.
Can someone who is present but not participating during a crime, be charged with aiding and abetting that crime?
Appeal allowed.
PRINCIPLE
A mere bystander cannot be charged with aiding and abetting, lacking evidence of intention or knowledge of the crime.
NOTES
From
judgement
Presence at a crime can be evidence of aiding and abetting when accompanied by other factors like prior knowledge of principal
offender’s intention to commit offence or encouraging the principal offender during such presence.
A person is not guilty merely because he is present at the scene of crime and does nothing to prevent it. An example of this is
the typical case of an urbanite who stands around at a subway station while someone is being murdered.
Page | 40
Mere presence without anything more not enough; person cannot properly be convicted of aiding and abetting in commission
of acts which he does not know may be or are intended
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
R v Logan, S.C.C. (1990)
Accused convicted of attempted murder, during robbery. One group member shot and severely injured cashier. Accused admits
being one of robbers but states he had no intention to shoot, no discussion concerning use of guns. The trial judge said the jury
could convict if the Crown proved beyond a reasonable doubt that the accused knew or ought to have known that someone
would should with the intention of killing. They were convicted of attempted murder. The C.A. overturned this. The Crown
appealed.
Is it a principle of fundamental justice that a party to any offence cannot be found guilty of the offence based on a lower standard
of requisite mens rea than that required for convicting the principal? (In short, is "ought to have known" in s. 21(2) too low a
standard of mens rea?)?
Yes. Crown's appeal dismissed.
Section 21(2) doesn't violate the Charter for most offences. However, attempted murder is one of the few offences for
which the Constitution requires subjective intent and therefore the objective component "ought to have known"
contravenes ss. 7 and 11(d) of the Charter without being saved by s. 1.
• Requisite mens rea for murder conviction logically must be same for conviction of attempted murder (subjective
foresight)
•
NOTES
From
judgement
•
•
•
When principles of fundamental justice require subjective foresight in order to convict principal of attempted murder,
same minimum degree of mens rea constitutionally required to convict party to offence of attempted murder.
Where S.21(2) allows for conviction of party to offence (aider/abettor) of attempted murder on basis of objective
foreseeability [Phrase “ought to have known” in S. 21(2)], its operation restricts s.7 of Charter
Words “or ought to have known” inoperative when considering under s.21(2) whether person party to offence,
where constitutional requirement for conviction that foresight of consequences be subjective, which is case for
attempted murder
Once words (ought to have known) deleted, remaining section requires, for attempted murder, that party to common
venture know it is probable that accomplice would do something with intent to kill in carrying out common purpose.
Page | 41
R. v. Briscoe, 2010 SCC 13
Aiding-Abetting/Willful Blindness
Accused charged for role in kidnapping offences, rape and murder of young girl, acquitted on basis mens rea as party to
offences not proven because he did not have requisite knowledge of co-accused’s intention to commit each crime; Court
of Appeal orders new trial on basis that trial judge failed to consider willful blindness.
Whether accused had mens rea/actus reus for Aiding Abetting.
Whether accused was involved with the crime based on willful blindness.
FACTS
ISSUE
HELD
Supreme Court agrees trial judge erred
•
•
REASON
•
•
NOTES
Supreme Court upholds order for new trial – mens rea requirement reflected in word “purpose” under s.21(1)(b) has
two components: intent and knowledge
Intent component –crown must prove accused intended to assist principal in commission of offence, not required that
accused desired offence be successfully committed
Knowledge component – in order to have intention to assist in commission of offence, aider must know principal
intends to commit the crime, although not precisely how it will be committed
Even in case of murder, principal’s intention to commit crime must be known to aider or abettor, but need not be
shared – it is sufficient he/she, armed with knowledge of principal’s intention to commit the crime, acts with intention
of assisting principal in its commission
The accused had knowledge that his friend was going to do something criminal, he was willfully blind, thus
aiding/abetting the crime.
In this case, Briscoe said, “whatever you guys wanna do, just do it. Don’t do it around me. I don’t want to see nothing I
don’t know what the f+*# you’re gonna do” Briscoe knew his friend wanted to do something illegal with a girl and
generally ‘approved’ of the plan.
R v Thatcher, [1987] 1 S.C.R. 652
Thatcher was charged with causing the death of his ex‑wife following their separation and an increasingly bitter relationship.
The ex‑wife was ferociously beaten and then shot to death.
FACTS
At trial, the Crown led direct and circumstantial evidence to prove that T had personally murdered his ex‑wife or, alternatively,
that he aided or abetted the killer. In his charge, the trial judge instructed the jurors that T could be found guilty of murder if
they were satisfied beyond a reasonable doubt that he was the principal offender or a party to the offence under s. 21 of the
Code
Page | 42
The jury returned a verdict of guilty of first degree murder contrary to s. 218 of the Code. Appeal court dismissed appeal from
T.
ISSUE
JUDGEMENT
PRINCIPLE
Should jury be unanimous as to particular nature of participation in offence- whether accused personally committed the act
or aided/abetted commission of offence?
Or simply put, is there a distinction between principal accused and aider/abettor?
Appeal dismissed. Conviction charges upheld.
In criminal law, with regards to liability, there is no difference between principal accused and aider/abettor.
Provision of S. 21 (1) has been designed to make the difference between principal offender and aider/abettor, irrelevant.
Either mode of committing the offence is equally culpable.
NOTES
From
judgement
In any case where there is doubt whether the person committed the offence personally or aided/abetted the commission of
offence, it may be advisable to prefer indictment against him as a principal. Such indictment is sufficient even if subsequent
evidence points out that the person was accessory or principal before the fact.
S. 21 has been designed to relieve the necessity of crown from choosing between two different forms of participation in criminal
offence- principal or aider/abettor. Crown is under no legal duty to separate different forms of participation in criminal offence,
into two different counts.
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
R v JF, 2013 SCC 12
Aiding and abetting of conspiracy
JF knew one girl who intended, along with her sister, to kill their mother. He made several suggestions to the girls on how to
execute the murder and how to get away upon police questioning. He was convicted of conspiracy to murder, appeal dismissed
by appeal court.
Can a person be held liable for party to offence of conspiracy?
Appeal dismissed. Conviction upheld.
Aiding and abetting of conspiracy is where accused aids or abets the actus reus of conspiracy, namely the act of
agreeing.
Page | 43
NOTES
From
judgement
FACTS
A person can be found liable as party to conspiracy where he/she aids or abets or assists in initial formation of
agreement that comprises essence of crime of conspiracy, or encourages or assists new members to join pre-existing
conspiracy, as opposed to aiding or abetting furtherance of unlawful object of conspiracy
R v Gauthier, 2013 SCC 32
Abandonment as defence for aiding and abetting
G made plans with her spouse for a murder suicide pact (kill children and die). At one point, she wrote the suicide letter dictated
by her spouse but then tore it up and told him she did not intend to go through with it. The spouse poisoned everyone and only
G survived. Trial court rejected her defence of abandonment. Appeal court dismissed appeal.
ISSUE
For this exam
What are the conditions for abandonment defence in aiding and abetting?
JUDGEMENT
Appeal dismissed. Conviction upheld.
PRINCIPLE
NOTES
From
judgement
Four conditions must be met to qualify for defence of abandonment in aiding and abetting.
[Para 50] Conditions for defence of abandonment or withdrawal by party to offence to others:
(1) intention to abandon or withdraw from unlawful purpose;
(2) timely communication to those who wish to continue offence; (3) communication serves unequivocal (clear) notice
to those who wish to continue offence;
(4) taking in manner proportional to his/her participation, reasonable steps to neutralize or cancel effects of
participation or prevent commission of offence
Page | 44
COUNSELLING
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Hamilton, [2005] 2 S.C.R. 432
Accused sends “teaser” email on internet marketing sale of “top secret” files. He advertises that software would enable
purchaser to generate valid credit card numbers, instructions include how to make bombs, break into house. Accused charged
under s.464 with counseling indictable offences not committed, including fraud.
Accused testifies he had seen computer generated list of contents of files, but not read them or used credit card numbers;
trial judge finds accused did not have necessary mens rea to commit counseling fraud
Are those who counsel others to commit criminal offences liable under Criminal Law?
Trial judge confused “motive” and “intent”, majority orders new trial
Subjective knowledge necessary for counselling offence not committed.
Note: subjective knowledge that the information that use of false credit card is illegal is sufficient.
Actus reus for counseling: deliberate encouragement or active inducement of commission of criminal offence;
Mens rea consists of nothing less than accompanying intent or conscious disregard of substantial and unjustified risk inherent
in counseling –
Must be shown accused either intended offence counseled be committed, or knowingly counseled commission of offence
while aware of unjustified risk that offence counseled was in fact likely to be committed as result of accused’s conduct (para.
29)
Page | 45
ATTEMPTS
FACTS
ISSUE
JUDGEMENT
R. v. Ancio [1984] 1 S.C.R. 225
Mens rea for attempted murder (S 239 CC)
Ancio's wife had left him and was living with one Kurely. Ancio called his wife on false pretences wanting to meet with her but
she refused. Ancio then broke into a friend's house and stole three shotguns, sawing off the barrel of one, loading it, and taking
it along with some extra ammo to Kurely's apartment building. Ancio broke the glass of the front door to enter the building.
Kurely, upstairs, saw Ancio coming and threw a chair at him. The gun went off missing Kurely then they wrestled around until
the cops arrived.
What is the mental element (mens rea) required for proof of the crime of attempted murder?
Crown's appeal dismissed; C.A.'s order for a new trial confirmed.
PRINCIPLE
Mens rea for attempted murder cannot be anything less than the specific intent to kill.
NOTES
From
judgement
Murder involves a killing. Therefore, intention to commit murder must include an intention to kill. Mens rea for an attempted
murder cannot be less than the specific intent to kill.
A mental state falling short of that level may lead to conviction for other lesser and included offences, eg. Aggravated assaults,
but not to a conviction of attempted murder. (lesser and included crime)
Personal
Notes
Section 24 defines an attempt as "having an intent to commit an offence." This is a general provision so we must "read in" the
offence in question.
FACTS
ISSUE
R v Deustch, [1986] 2 S.C.R. 2
Deutsch ran a company, and put an advertisement in the paper looking for "secretary-sales assistants to the sales executive".
When women came in to interview, he told them that they would have to have sexual intercourse with clients if it was required
to secure a contract. However, this could result in bonuses of up to $100,000 a year. An undercover police officer went in for
an interview and had the same experience. No one was hired under the ad. Deutsch was charged with attempting to procure
females for illicit intercourse with other persons contrary to s.195(1)(a) of the Code (now s.212). He was convicted at trial, but
a new trial was ordered on appeal.
What constitutes ‘mere preparation’? When does an attempt proceed far enough to constitute a crime?
Page | 46
JUDGEMENT
Appeal dismissed.

PRINCIPLE

•
•
NOTES
From
judgement
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
•
The actus reus for attempt must be some step towards the actual commission of the crime that goes beyond mere acts
of preparation.
The distinction between preparation and attempt is qualitative and dependent on the relative proximity of the act (in
time, location and between the acts under the control of the accused remaining to be accomplished) to the nature of
the completed offence.
Crown must prove mens rea – intent to commit offence in question, and actus reus – some step towards commission of
offence beyond mere acts of preparation
The actus reus must be more than mere preparation to commit a crime. When preparation to commit a crime is fully
completed and ended, the next step towards committing a specific crime constitutes actus reus sufficient to establish
a criminal attempt.
Distinction between preparation and attempt is a qualitative one, involves relationship between nature and quality of
act in question and nature of complete offence – consideration must be given to relative proximity of act to completed
offence in terms of time, location, acts under control of accused remaining to be accomplished
R v Dery, 2006 SCC 53
Liquor store had stored it’s excess liquor in a trailer during the holiday season. In an unrelated incident, the communication
between Dery and another person was intercepted and their plans to rob the trailer were overheard. No further action was
taken by Dery or his friend to commit the crime.
Trial judge finds no agreement established between parties and finds them not guilty of conspiracy, however as actions more
than merely preparatory to conspiracy, conviction imposed for attempting to conspire
Is attempt to conspire to commit a substantive offence (theft) an offence under Canadian law?
Appeal allowed, acquittals entered.
Attempt to conspire to commit substantive offence is not offence under Canadian law
•
Attempt to conspire to commit substantive offence is not offence under Canadian law – criminal liability does not
attach to “fruitless discussions” in contemplation of substantive crime that is never committed, nor even attempted by
parties to discussion; criminal law does not punish “bad thoughts” that were abandoned before agreement reached, or
attempt made, to act upon them
Page | 47
•
Acts that precede a conspiracy are not sufficiently proximate to substantive offence to warrant criminal sanction –
given that conspiracy is essentially crime of intention, it is difficult to reach further than law of conspiracy already does
– not goal of criminal law to catch all crime “in the egg”; conspiracies are criminalized when hatched, and only hatched
by agreement (para. 47)
Page | 48
DEFENCES
MENTAL DISORDER
FACTS
ISSUE
JUDGEMENT
R v Cooper. [1980] 1 S.C.R. 1149
Cooper, was an outpatient at a psychiatric hospital. At a party organized for patients of the hospital he took a woman aside, kissed
her, and then strangled her to death because, as he later testified, he was afraid that she would tell on him. At trial the defence of
insanity (now mental disorder) was not raised (at the time Cooper would have been ordered into an institution for life if this
defence was accepted), but Cooper rather relied on the negation of mens rea in the offence. He also had expert testimony from a
forensic psychiatrist saying that he would not have been able to understand the consequences of his actions or form the mens
rea. Despite this, the trial judge charged the jury with s.16, although the charge was very poor. Cooper was convicted at trial and
his appeal was rejected by the Court of Appeal.
• although subsequently modified in R. v. Parks, S.C.C. (1992); significance of concept of “appreciates” also discussed in
case
What is the proper interpretation of S.16 of the Criminal Code?
– issue for jury was whether it could conclude, on balance of probabilities, that accused had disease of mind to extent it rendered
him incapable of appreciating nature and quality of act of which he was charged, or of knowing that it was wrong
Appeal allowed, new trial ordered
•
“to know” the nature and quality of act may mean merely to be aware of the physical act; while “to appreciate” may
mean to estimate and understand the consequences of the act.
•
•
•
For defence of mental disorder, accused must be unable to ‘appreciate’ nature, quality and consequences of act.
S. 16 of CC,
“Disease of mind” – to be given broad, liberal legal construction, embraces any illness, disorder or abnormal condition
which impairs human mind and its functioning, eg., personality disorder; but excludes self-induced states caused by
alcohol or drugs, plus transitory mental states such as hysteria or concussion (p.8)
•
“appreciating nature and quality of an act or omission” – word “appreciate” rather than “know” used to broaden legal,
medical considerations bearing on accused’s mental state, makes it clear cognition not sole criterion –
•
“to know” the nature and quality of act may mean merely to be aware of the physical act; while “to appreciate” may
mean to estimate and understand the consequences of the act.
PRINCIPLE
NOTES
From
judgement
Page | 49
•
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
FACTS
Code requires level of understanding of act which is more than mere knowledge of act taking place – capacity to
apprehend nature of act and its consequences (p.9)
R v Kjeldson, [1981] 2 S.C.R. 617
Accused used defence of insanity, while convicted of first degree murder at trial. Medical evidence revealed that he was a
psychopath and understood the physical nature and consequences of his act, though indifferent to such consequences.
The trial judge instructed the jury (1) that psychopathy could be a disease of the mind and (2) on the meaning of the word
“appreciate” in s. 16 of the Criminal Code. On appeal, the Court dismissed the appeal but substituted a verdict of second degree
murder because the trial judge failed to instruct the jury adequately on the difference between first and second degree murder.
What is the definition of the word ‘appreciate’?
Is the defense of mental disorder available for psychopath or sociopath offenders?
Appeal dismissed. Second degree murder conviction upheld.
Simply suffering from mental disorder not sufficient as defense under S. 16. Important that accused be unable to
‘appreciate’ nature and consequences of his actions.
A psychopath understands physical nature and consequences of his act, but indifferent to such consequences.
•
Person appreciates nature and quality of act within meaning of s.16 if he knows what he is doing and aware of physical
consequences which will result from his acts in case at bar, that knows he was hitting woman on head with rock, with
great force, and in addition capacity to estimate and understand physical consequences which would flow from his act
– that he was causing physical injury which could result in death.
•
[Referring to judgement in R v Simpson] S 16 exemption not available to someone who understands the nature,
character and consequences of the act, but has apathy towards the victim and no remorse or guilt. Even if such apathy
or lack of remorse is due to a disease of the mind.
R v Oommen, [1994] 2 S.C.R. 507
The accused killed, without apparent motive, a friend who was sleeping in his apartment. For a number of years the accused had
been suffering from psychosis of a paranoid delusional type and, believed that his friend was part of a local union that was trying
to kill him.
Page | 50
At his trial on a charge of second degree murder, the accused raised the defence of insanity. Psychiatrists testified that the
accused possessed the general capacity to distinguish right from wrong and would know that to kill a person is wrong but had
moments of psychosis losing momentary ability to reason. Trial judge rejected defense (since he could distinguish right from
wrong generally). Appeal court allowed appeal ordering new trial. Crown appealed.
JUDGEMENT
Appeal should be dismissed
meaning of “wrong” in Code s.16; “wrong” means morally wrong, not legally wrong: As confirmed in R. v. Chaulk, S.C.C.
(1990) – Oommen interprets phrase “knowing that act was wrong”
S.16(1) embraces not only intellectual ability to know right from wrong in abstract sense, but also ability to apply that
knowledge in rational way to alleged criminal act – section focuses on particular capacity of accused to understand his
act was wrong at time of committing the act.
•
NOTES
From
judgement
•
AUTOMATISM AND INVOLUNTARY ACTS
FACTS
ISSUE (For our
purpose)
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Swaby, [2001] O.J. No. 2390 (Ont. C.A.)
The police followed a car driven by the accused in which J was a passenger. The car stopped, J ran into a nearby backyard, and
the accused ran off. The police found a loaded, unregistered, restricted weapon in the backyard.
The accused testified that he had no knowledge of the gun, thought cops were chasing illegal drugs. He followed passenger's
instructions where to drive and stopped the vehicle at his request. Found abt gun later.
The accused testified that he had no knowledge of the gun. After deliberating for several hours, the jury asked the trial judge
for an explanation of "the time frame of being aware of the weapon". The trial judge responded by reading the Code "shd be
aware of the existence of the weapon while both he and [J] were in that vehicle." The accused was convicted of the offence of
possession of gun, all other events he was acquitted. He appealed.
What is definition of voluntariness to form ‘actus reus’?
Appeal dismissed
Voluntary conduct is necessary element for criminal liability. act must be voluntary act of accused for actus reus to exist



(para. 18)
voluntary conduct is necessary element for criminal liability;
requirement for voluntary conduct applies even if provision creating offence does not expressly require one
no general Code stipulation that guilty act must be voluntary
Page | 51

FACTS
ISSUE
(for our
purpose)
JUDGEMENT
PRINCIPLE
R v Parks, [1992] 2 S.C.R. 871
Non-insane automatism case, accused drives in sleep 23 km, attacks in-laws. Immediately after the incident, the respondent went
to a nearby police station, again driving his own car, and told them what he had done. Jury acquits accused. Crown appeals.
Does sleepwalking constitute non-insane automatism or it is a "disease of the mind" under CC Section 16.
Appeal dismissed.


•
•
NOTES
From
judgement
act must be voluntary act of accused for actus reus to exist
•
•
•
Non insane Automatism works as a defence and results in an absolute acquittal.
Once the defendant raises automatism as a defence the burden is on the Crown to prove voluntariness, or alternatively
to prove "insane" automatism which results in a non-criminal responsibility verdict but may result in an alternative
disposition under s.672.54.
Automatism, though spoken of as defense, is conceptually sub-set of voluntariness requirement, belongs to actus reus
component of criminal liability
involuntary act, including one committed in automatistic condition, entitles accused to unqualified acquittal, unless
automatistic conditions stems from disease of mind that renders accused insane, in which case verdict of insanity results
(para 41)
When defense of non-insane automatism raised by accused, trial judge must determine whether defense should be left
with trier of fact – two discrete tasks arise:
(1) determine first whether some evidence on record to support leaving defence with jury; evidential burden rests with
accused, mere assertion of defence will not suffice;
(2) given proper foundation, trial judge must consider whether condition alleged by accused is in law non-insane
automatism – if judge satisfied some evidence pointing to condition that in law is non-insane automatism, defence can
be left with jury (para 42)
Page | 52
FACTS
ISSUE
JUDGEMENT
R v Stone, [1999] 2 S.C.R. 290
Stone stabbed his wife 47 times with a hunting knife kept in his car. He testified that he blacked out and felt a "woosh" go
through his body. He hid her body in his truck's tool chest, picked up a six pack, drove home, left a note for his daughter, and
took off to Mexico. After a few weeks in Mexico he decided to return to Canada and turn himself in.
In his defence, Stone pleaded insane automatism, non-insane automatism, lack of intent, and in the alternative, provocation. The
judge allowed for a defence of insane automatism which was presented to the jury. The jury convicted him of manslaughter and
sentenced him to seven years. The verdict was upheld by the Court of Appeal. Crown appealed.
Can a conscious person be automatistic?
Appeal dismissed
A claim of the defence of automatism has two steps:
1. The accused must establish, on a balance of probabilities, that there is sufficient evidence (if believed) to make the
defence operate. In order to do this the accused must have expert evidence to go along with his or her testimony. If this
is not met, then the defence fails.
PRINCIPLE
NOTES
From
judgement
2.
The judge must decide if there is a disease of the mind. If there is, then a special verdict is entered and normal s.16
procedures are followed. If there is not, then the question must be left to the jury if the accused acted involuntarily. If he
did, then he is acquitted.
•
•
Defence must establish proper foundation for automatism
Burden only met where trial judge concludes evidence on which jury could find accused acted involuntarily on balance
of probabilities; in all cases this requires defence make assertion of involuntariness and call confirming psychiatric
evidence
Other relevant factors for determining whether defence burden satisfied:
(i)
severity of triggering stimulus,
(ii)
corroborating evidence of by-standers,
(iii)
corroborating medical history of automatistic like dissociative states,
(iv)
whether evidence of motive for crime,
(v)
whether alleged trigger of automatism is also victim of automatistic violence
(para 192 paraphrased)
•
Page | 53
FACTS
ISSUE
(for our
purpose)
JUDGEMENT
R v Fontaine, [2004] 1 S.C.R. 702
Fontaine worked "under the table" at a car garage. R, a former employee, called the store and said "we're coming to get you,
pigs". D, the eventual victim, came in to the store and told a co-worker that there was a hit out for Fontaine and himself. Having
been informed of this, when he left work, Fontaine purchased a firearm. That evening, Fontaine saw R outside his house. During
the night, Fontaine smoked marijuana and at some point in the night he freaked out and shot bullets through his windows and
doors, thinking that someone was breaking in to get him. The next day, D came into the garage to pay off a debt and Fontaine,
thinking he was the hitman, shot him seven times, killing him.
He turned himself into the police. He claimed that he was "frozen" at the time of the murder and only partially recollected it; he
said that his actions were not his own.
Several different doctors testified, and stated that it was possible that Fontaine suffered from paranoia that was triggered by his
habitual smoking of marijuana, making him delusional. The doctor for the defence found conclusively that Fontaine did have a
major psychological disorder and that he was unable to determine right from wrong.
The trial judge did not put mental-disorder automatism to the jury, who convicted him; the Court of Appeal overturned this and
issued a new trial, stating that the defence should be left to the jury.
Standard of evidence for insane automatism
Appeal dismissed
PRINCIPLE
The evidentiary burden is discharged if the accused raises sufficient evidence that there is an "air of reality" that the defence
might succeed; the judge is not to consider the truth of the evidence when deciding if the accused has met the burden.
NOTES
From
judgement
[Para 89-90]- paraphrased
For defence of mental disorder automatism, asserting involuntary action by accused and qualified expert testimony is sufficient
to fulfil evidentiary burden. These two elements could lead to a properly instructed jury finding that the defence applies (the air
of reality test). It is then up to the jury as finders of fact to determine if the evidence is true, and if the defence applies.
FACTS
R v Luedecke, 2008 ONCA 716
Accused sexually assaulted victim in his sleep. At trial, sleep disorder specialist testified that accused was in a parasomniac state
at the time, acting without any volition, consciousness or capacity to control his behaviour. The accused had a family history of
parasomnia and had experienced parasomniac events in the past, including episodes of engaging in sexual intercourse with
girlfriends while asleep. Finally, the expert testified that, from a medical perspective, he did not regard parasomnia as a mental
disease or disorder.
Page | 54
Relying mainly on the uncontradicted evidence of the expert, the trial judge found that the accused's actions were involuntary
and that they were not the product of a mental disorder. He acquitted the accused. The Crown appealed.
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
Whether the verdict of not guilty or not criminally responsible due to mental disorder applicable
Appeal should be allowed
Outright acquittal does not address danger caused by his condition
Even though accused was not mentally ill, criminal law uses the concept of mental disorder very differently than medical
profession.
Outright acquittal does not address danger caused by his condition. The prior episodes of accused’s prior episodes (with ex
girlfriends) demonstrate that this was not an isolated ‘one off’ episode. Accused could not differentiate between consenting and
non-consenting partner when in parasomnia state.
Trial judge had erred while following parks!
SIMPLE INTOXICATION
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
The Queen v. George [1960] S.C.R. 871
George tried to sell a fur to Mr. A but the man declined. Late the same night, when the defendant was very drunk, he came back
to the house and assaulted the man, stealing $22. He was charged with robbery under s.288 of the Criminal Code (now s.343).
The accused stated that he was very drunk and did not remember much about the incident, but he did remember hitting someone,
and remembered the house being the same one that he had been in earlier that day.
Does drunkenness negate mens rea?
Appeal allowed, charge of common assault found, sentenced to time served.
Intoxication often makes it impossible for a person to form the specific intention in specific intent crimes, however only
intoxication to the point of insanity will negate mens rea altogether in cases involving only general intent.
Intoxication prevented the defendant from forming the specific intent required for the original charge. However, unless
intoxicated to the point of insanity the accused could still form the intention to strike the man (the charge of assault only
requiring that the defendant have applied force intentionally).
From judgement:
Page | 55
In considering the question of mens rea, a distinction should be made between "intention" for acts done to achieve an immediate
end and acts done for specific and ulterior motive to achieve an illegal object.
Acts for immediate end maybe purely physical manifestations of momentary passion. But acts with ulterior motive involve
forming a specific intent. An intoxicated person may intentionally strike someone at a time when his mind is unable to formulate
a specific intent.
Robbery requires specific intent, but common assault simply refers to physical act of applying force to another person.
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Robinson, [1996] 1 S.C.R. 683
The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence revealed that he had
been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. After
being instructed on provocation, self-defence and intoxication, the jury found the accused guilty of second-degree murder. The
Court of Appeal, however, allowed his appeal. Crown appealed.
How juries should be instructed regarding evidence of intoxication
Appeal dismissed to SC
Intoxication is not a defense on basis that accused had no capacity to form intent.
Intoxication is simply a factor to be considered in assessing whether crown has proved beyond reasonable doubt accused had
required intent
• Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the
intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a
reasonable doubt. Once satisfied of this, the judge must make it clear to the jury that the issue before them is whether the
Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. In the case of murder, the
issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was
death.
• [“capacity” to form intent] language no longer to be used while instructing jury, intoxication is simply a factor to be
considered in assessing whether crown has proved beyond reasonable doubt accused had required intent;
• effect of rule was accused may be convicted of murder even if evidence raises reasonable doubt as to existence of intent
element of offence
• Before intoxication is considered by jury, he/she must be satisfied that effect of intoxication is such that effect might have
impaired accused’s foresight of consequences sufficiently to raise reasonable doubt
• The main issue for jury is whether crown satisfied them beyond reasonable doubt accused had requisite intent
Page | 56
In this case the court decided that while instructing the jury, judge must make sure that the jury understands that
intoxication is relevant only so long as it has raised reasonable doubt as to crown’s case.
If the jury is mislead to believe that intoxication is relevant if it raises doubt as to ‘capacity’ of accused to form intent, then
it may find innocent person guilty. Eg. Someone who may not be intoxicated enough to lack capacity to form intent but
may have still not had subjective mens rea may get wrongly convicted.
Notes for self
EXTREME INTOXICATION
FACTS
ISSUE
JUDGEMENT
R v Daviault, [1994] 3 SCR 63
Daviault, an alcoholic, delivered a bottle of brandy to a 65 year-old woman in a wheelchair. She had one drink and fell asleep.
Daviault, who had already been drunk during the day, drank the rest of the bottle. This put him at a level of intoxication that would
lead to coma or death in most people. He sexually assaulted the woman; however he was so drunk that he did not remember any
of it. Expert evidence was adduced at trial stating that a blood alcohol level as high as Daviault's could have resulted in an episode
of "l'amnésie-automatisme", also known as a blackout. Daviault was acquitted at trial, as the judge held he was so intoxicated that
he was unable to form the mens rea of the offence, but the Court of Appeal substituted a conviction.
Does voluntary intoxication to a point that closely resembles automatism, act as a defence for crimes of general intent like
assault and sexual assault?
SC ordered new trial.

If an accused is intoxicated to the extent that they have no control over their action and they are acting autonomously
then they cannot form the necessary mens rea to commit crimes, or be said to act voluntarily; thus, being this intoxicated
is a defence to crimes requiring both general and specific intent.

The burden of proof is on the accused to prove this on a balance of probabilities.
•
Mental aspect of offence long recognized as integral part of crime – to eliminate it would deprive accused of
fundamental justice; to deny even very minimal mental element required for sexual assault offends Charter (para 47)
Person in state of automatism cannot perform voluntary act – someone in extreme state of intoxication akin to
automatism also deprived of that ability; Charter s.7 would be offended if accused who was not acting voluntarily could
be convicted of criminal offence (para 59)
PRINCIPLE
NOTES
From
judgement
•
Page | 57
FACTS
ISSUE
PRINCIPLE
R v Bouchard-Lebrun, 2011 SCC 58
B brutally assaulted two individuals while he was in a psychotic condition caused by drugs he had taken a few hours earlier. As a
result of these incidents, B was charged with aggravated assault. The trial judge convicted B on the basis that all the elements of
s. 33.1 of CC which provides that self-induced intoxication cannot be a defence to an offence against the bodily integrity of another
person, had been proven beyond a reasonable doubt. B then tried unsuccessfully on appeal to obtain a verdict of not criminally
responsible on account of mental disorder under S. 16 CC. The Court of Appeal held that s. 33.1 CC applied in this case
In case of psychosis caused by drugs, can defence of insanity apply?
Intoxication and insanity are two distinct legal concepts.
•
•
NOTES
From
judgement
•
•
Intoxication & insanity two distinct legal concepts, if s.16 insanity not applicable (or proved), court can consider selfinduced intoxication under s.33.1 –
toxic psychosis not mental disorder but covered under s.33.1
3 conditions under s.33.1: (1) accused intoxicated at material time; (2) self-induced; (3) accused departed from standards
of reasonable care generally recognized in Canadian society by interfering or threatening to inference with bodily integrity
of another –
where these three things are proved accused has no defence to general intent offence on ground that lacked voluntariness
to commit offence; s.33.1 applies to any mental condition that is direct extension of state of intoxication (para 89)
SELF DEFENCE
FACTS
ISSUE
R v Lavallee, [1990] 1 S.C.R. 852
Lavallee and her common law partner R had an abusive relationship, however she kept coming back. On the night of the killing,
there was a party at their house. Rust hit her and told her that she was going to "get it" when all the guests left. He threatened to
harm her, saying "either you kill me or I'll get you". During the altercation Rust slapped her, pushed her and hit her twice on the
head. At some point during the altercation he handed Lavallee a gun, which she first fired through a screen. Lavallee contemplated
shooting herself, however when Rust turned around to leave the room she shot him in the back of the head. She was charged with
murder. A psychiatrist gave expert evidence at trial describing her state of mind, and that she felt as though she was "trapped" and
that she would have been killed if she did not kill him. The jury acquitted her at trial, but this was overturned at the Court of Appeal
who ordered a new trial. Lavallee appealed this order to the Supreme Court.
Did the accused reasonably apprehended death or grievous bodily harm under S 34(2) (a) of CC?
Page | 58
(for our
purpose)
JUDGEMENT
Appeal allowed


PRINCIPLE

NOTES
From
judgement
Self-defence applies even when you are not directly or immediately in harm.
Expert testimony can be very helpful in claims of self-defence as it helps the jury/judge understand the condition that the
accused was in when they acted and allows for an objective determination if their actions were reasonable in the
circumstances.
Actions that claim to be in self-defence but are too temporally removed or violent in the circumstances to be considered
reasonable will not satisfy the s.34(2) requirements to be a defence.
Expert evidence respecting ability of accused to perceive danger from her partner may go to issue of whether, under s.34(2)(a),
she “reasonably apprehended” death or grievous bodily harm on particular occasion; such evidence may also explain why she did
not flee when she perceived her life to be in danger, and thus assist jury, under s.34(2)(b), in assessing reasonableness of her belief
that killing her batterer was only way to save her own life (para 36)
NECESSITY
FACTS
ISSUE
JUDGEMENT
R v Latimer, [2001] 1 S.C.R. 3
The accused was charged with first degree murder following the death of T, his 12-year-old daughter who had a severe form of
cerebral palsy. T was quadriplegic and her physical condition rendered her immobile. She was said to have the mental capacity
of a four-month-old baby, and could communicate only by means of facial expressions, laughter and crying. T was completely
dependent on others for her care. She had to be spoon-fed, and her lack of nutrients caused weight loss. There was evidence that
T could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health, and that
might also have allowed for more effective pain medication to be administered, but the accused and his wife rejected this
option. After learning that the doctors wished to perform additional surgery, which he perceived as mutilation, the accused
decided to take his daughter’s life. Accused was found guilty of second degree murder; the Court of Appeal upheld the accused’s
conviction and sentence, but this Court ordered a new trial.
What are the elements of defence of necessity?
The appeals against conviction and sentence should be dismissed.
Page | 59
PRINCIPLE
Three elements recognized for defence of necessity
•
NOTES
From
judgement
•
•
•
•
•
•
•
Three elements required for defence of necessity: (1) requirement of imminent peril or danger; (2) accused must have
had no reasonable legal alternative to course of action he/she undertook; (3) there must be proportionality between harm
inflicted and harm avoided (para. 28)
First element – disaster must be imminent, or harm unavoidable and near; not enough that peril foreseeable or likely;
Second element – if there was reasonable legal alternative to breaking the law, there is no necessity;
Third element – harm inflicted must not be disproportionate to harm accused sought to avoid
Standard to apply to necessity: objective or subjective standard?
Modified objective test appropriate for first and second requirements, imminent peril and no reasonable legal alternative:
objective evaluation applies, but one which takes into account situation and characteristics of particular accused (paras
32, 33)
Third requirement, proportionality, must be measured on purely objective standard – evaluating nature of act is
fundamentally determination reflecting society’s values as to what is appropriate and what represents a transgression
(para. 34)
No air of reality to three requirements of necessity in circumstances of case
DURESS
FACTS
ISSUE
JUDGEMENT
R v Ryan, 2013 SCC 3
R was the victim of a violent, abusive and controlling husband. She believed that he would cause her and their daughter serious
bodily harm or death and that she had no safe avenue of escape other than having him killed. She hired undercover RCMP officer
posing as a hit man. She was arrested and charged. The trial judge was satisfied beyond a reasonable doubt that the requisite
elements of the offence were established. The only issue at trial was whether the defence of duress applied. The trial judge
accepted R’s evidence that the sole reason for her actions was intense and reasonable fear arising from her husband’s threats of
death and serious bodily harm to herself and their daughter. The trial judge found that the common law defence of duress applied
and acquitted R. On appeal, for the first time, the Crown argued that duress was not available to R in law. The Court of Appeal
upheld the acquittal.
Whether defence of duress is available to accused
Appeal allowed
Page | 60
PRINCIPLE
NOTES
From
judgement
Notes to self
The defence of duress is only available when a person commits an offence while under compulsion of a threat made for the purpose
of compelling him or her to commit the offence.
• Court notes common elements between common law and Code provision for duress (para. 81):
– Explicit or implicit threat of present or future death or bodily harm proffered against accused or third party
– Accused reasonably believes threat would be carried out
– No safe avenue of escape, to be evaluated on modified objective standard
– Close temporal connection between threat and harm threatened
– Proportionality between harm threatened and harm inflicted by accused; harm caused to be equal or no greater
than harm threatened, evaluated on modified objective standard
– Accused not party to conspiracy or association where accused subject to compulsion and actually knew that
threats or coercion possible result of criminal activity, conspiracy or association.
Might have qualified under necessity (not duress)
PROVOCATION
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Tran, [2010] 3 S.C.R. 350
The accused had knowledge that his estranged wife was involved with another man. One afternoon, the accused entered his
estranged wife’s home, unexpected and uninvited, and he discovered his estranged wife in bed with her boyfriend. The accused
viciously attacked them both, killing the boyfriend by repeatedly stabbing him. Having accepted the defence of provocation, the
trial judge acquitted the accused of murder, but convicted him of manslaughter. The Court of Appeal allowed the Crown’s appeal
and substituted a conviction for second degree murder. Accused appealed.
Did the accused meet necessary elements of provocation?
Appeal dismissed
Elements of provocation established
•
•
Both objective and subjective component to provocation defence in s.232:
Once established that wrongful act/insult sufficient to deprive ordinary person of self-control, inquiry turns into
consideration of subjective element of defence: whether accused acted in response to provocation and on sudden before
passion could cool;
Page | 61
•
•
•
•
•
•
•
•
Focus on accused’s subjective perceptions of circumstances, including what he/she believed, intended or knew;
Subjective element:
(1)the accused must have acted in response to the provocation and
(2) on the sudden before there was time for his/her passion to cool (para 36)
Ordinary person standard informed by contemporary norms of behaviour – accused must have justifiable sense of being
wronged, personal circumstances may be relevant to determining whether person provoked, but this does not shift
ordinary person standard to suit individual accused;
objective element:
(1) there must be wrongful act or insult; and
(2) wrongful act or insult must be sufficient to deprive ordinary person of power of self-control (para 25)
ENTRAPMENT
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Mack, [1988] 2 S.C.R. 903
Mack was convicted of unlawful possession of a narcotic for the purpose of trafficking. He claims that he got into the transaction
because of undercover police tactics that involved persistent inducement of fear. Mack was convicted at trial and the B.C. C.A.
dismissed his appeal.
How should the courts deal with the doctrine of entrapment?
Appeal allowed; Conviction set aside, proceedings stayed.
Entrapment is not dependant on culpability, so an objective assessment of the conduct of police and their agents is
required.
• there is entrapment when (a) authorities provide person with opportunity to commit offence without acting on
reasonable suspicion that person already engaged in criminal activity or pursuant to bona fide inquiry; (b) although
having such reasonable suspicion or acting in bona fide inquiry, they go beyond providing opportunity, induce
commission of offence (para 130)
Page | 62
•
•
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
As far as possible objective assessment of conduct of police and their agents required; predisposition of accused never
relevant as regards whether they went beyond offer, since that is to be assessed with regard to what average nonpredisposed person would have done
Onus on accused to prove on balance of probabilities that conduct of state is abuse of process due to entrapment – guilt
or innocence of accused not in issue (para 154)
R v Barnes, [1991] 1 S.C.R. 449
Random virtue testing case, accused approached on hunch that in possession of drugs. Undercover officer asked for ‘weed’, accused
denied. She persisted until he agreed to a sell small amount of cannabis resin. Another officer arrested the appellant shortly
afterwards
The appellant was found guilty of trafficking. The trial judge found, however, that the police officer had engaged in "random virtue
testing" and granted a judicial stay for entrapment. The British Columbia Court of Appeal allowed the Crown's appeal of the finding
of entrapment and ordered a new trial.
Was there entrapment?
No entrapment.
No entrapment when person is in physical location associated with particular criminal activity for which accused is
arrested.
• Random virtue testing arises when police officer presents person with opportunity to commit offence without
reasonable suspicion that (a) person already engaged in particular criminal activity, or (b) physical location where
person associated is place where particular criminal activity likely occurring.
• Accused approached by officer when walking near Granville Mall, notion of being associated with area does not require
more than being present in area, accused thus associated with location where it was reasonably believed drug-related
crimes were occurring;
• Officer’s conduct justified under first branch of test for entrapment set out in R v Mack.
IGNORANCE OF THE LAW
FACTS
Lilly v The Queen, [1983] 1 SCR 794
Appellant, a licensed real estate broker, was convicted of theft of $$$, being sums deposited “in trust” with respect to real
property transactions. The appellant relied, for 18 of the 21 transactions involved in the count on which he was found guilty, on
the defence of colour of right alleging he thought he could lawfully transfer the amounts from the “in trust” account to the
Page | 63
agency’s general account once the offer to purchase the property had been accepted. As to the other transactions involving a
total of $13,500 he relied on an alleged lack of knowledge of the transfers. The Court of Appeal dismissed appellant’s appeal. This
appeal is to determine whether the trial judge misdirected the jury as to the meaning of the phrase “colour of right”.
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
Is the accused entitled to color of right defence?
The appeal should be allowed and a new trial ordered.
Defence of color of right applies to accused’s belief (did he, at the time of the act, have an honest belief that he had the right to
something) and not upon what his actual rights were.
Legal error about who owns property may afford defence to theft and other property offences as fault element requires
accused act without colour of right;
Colour of right based on mistaken belief by accused as to his/her legal entitlement prevents Crown from proving offence – issue
is accused’s belief, not the actual legal entitlement
R v Jones, [1991] 3 SCR 110
The appellants were charged with unlawfully conducting a bingo contrary to the Criminal Code. The charges arose out of gaming
operations at the Indian Reserve, which were initiated under First Nation. Before conducting the lotteries, the appellants had been
advised by representatives of the province, including the Ontario Provincial Police, that the Criminal Code prohibits lottery schemes,
other than those conducted under the auspices of a provincial licence. The appellants were convicted at trial and their convictions
affirmed by the Court of Appeal.
Whether the appellants were entitled to be acquitted by reason of a defence of colour of right. That right was the belief that CC did
not apply to their activities since they were carried out on a reserve which they thought was not subject to the laws of Canada relating
to gaming.
The appeal should be dismissed.
Appellants' mistake was one of law, rather than of fact. They mistakenly believed that the law did not apply because it was inoperative
on Indian reserves. A mistake about the law is no defence to a charge of breaching it.
Accused did not have defence because they believed they were not legally required to have provincial licence to operate bingo on
Aboriginal reserve – mistake was not a defence as it related to believing law does not apply as being inoperative on the reserves
Page | 64
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
Levis (City) v. Tetreault, 2006 SCC 12
Company accused of operating vehicle without renewing its registration. Driver charged with driving on expired permit.
Officially induced error argued. City sent renewal notice without complete address, which was returned to city.
Whether officially induced error of law is recognised defence under Strict liability
Officially induced error is recognized as a defence for strict liability offences.
The company did not prove that there was officially induced error, hence company and driver fined.
Officially induced error of law is a recognised defence for strict liability
•
•
NOTES
From
judgement
FACTS
•
Defence of officially induced error of law recognized by Supreme Court for strict liability offences under Quebec
Highway Safety Code, (although not made out successfully by the company)
Concept of diligence based on acceptance of citizen’s civic duty to take action to find out what his/her obligations are
– passive ignorance not valid defence
Company failed to establish conditions for officially induced error of law defence:
(1) error of law/mixed law made;
(2) person who committed act considered legal consequences of his/her actions;
(3) advice obtained came from appropriate official;
(4) advice reasonable;
(5) advice erroneous; and
(6) person relied on advice in committing act (para. 26)
R. v. MacDonald, 2014 SCC 3
Police responded to a noise complaint at M’s home. When M opened the door, an officer observed that M had an object in his
hand, hidden behind his leg. The officer twice asked M what was in his hand. Because M did not answer, the officer pushed the
door open a few inches further to see. A struggle ensued and M was disarmed of a loaded handgun. M was licensed to possess
and transport the handgun in Alberta, but not in Nova Scotia as he believed he was.
At trial, the judge concluded that M’s possession of the gun was unauthorized. He also concluded that the officer’s pushing the
door open further did not breach M’s s. 8 Charter right to be free from unreasonable search. The trial judge convicted M of
multiple accounts related to firearm. Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s s. 8
Charter right, but significantly reduced the sentences.
Page | 65
ISSUE
JUDGEMENT
Was M’s S.8 Charter right infringed?
The appeal of the s. 8 Charter issue should be dismissed
PRINCIPLE
Did officer’s conduct constitute search under S.8 of Charter?
NOTES
From
judgement
The officer’s action of pushing the door open further constituted a “search” for purposes of s. 8 of the Charter. The action went
beyond the implied licence to knock on the door and constituted an invasion of M’s reasonable expectation of privacy in his
home.
Although the officer’s action constituted a search for s. 8 purposes, that search was reasonable because both stages of the
Waterfield test were satisfied.
Waterfield test:
(i)
does conduct fall within general scope of duty imposed by statute or common law- (yes, common law police duty to
protect life and safety)
(ii)
whether such conduct involves non-justifiable use of powers associated with that duty (yes, search constitutes a
justifiable exercise of powers associated with the duty)
ADVERSARIAL PROCEEDING
Presumption of Innocence and Ultimate Standard of Proof
FACTS
ISSUE
JUDGEMENT
R. v. Lifchus, [1997] 3 S.C.R. 320
The accused, a stockbroker, was charged with fraud. The trial judge told the jury in her charge on the burden of proof that she
used the words “‘proof beyond a reasonable doubt’ . . . in their ordinary, natural every day sense”, and that the words “doubt”
and “reasonable” are “ordinary, every day words that . . . you understand”. The accused was convicted of fraud. On appeal, he
contended that the trial judge had erred in instructing the jury on the meaning of the expression “proof beyond a reasonable
doubt”. The Court of Appeal allowed the appeal and ordered a new trial. Crown appealed to SC.
Did the judge err in instructing Jury on meaning of ‘proof beyond reasonable doubt’?
Appeal dismissed. New trial order upheld.
Page | 66
PRINCIPLE
Definition of Proof beyond Reasonable Doubt.
NOTES
From
judgement
Jury should be explained that A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy
or prejudice, but on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if jury believes the accused is probably guilty or likely guilty, that is not sufficient- Accused must be given benefit of the
doubt and acquitted because the Crown has failed to prove guilt of the accused beyond a reasonable doubt.
On the other hand jury must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown
is not required to do so. Such a standard of proof is impossibly high.
Therefore, if, based upon the evidence before the court, jury is sure that the accused committed the offence, they should convict
since this demonstrates that jury is satisfied of the guilt beyond a reasonable doubt.
What judge should not say:
Judge should refrain from describing the term “reasonable doubt” as an ordinary expression which has no special meaning in
the criminal law context. Jurors should not be asked to use the same standard of proof they use in everyday important decisions.
Beyond reasonable doubt should not be equated to proof of “moral certainty”. Judge should not advise jurors to convict if they
are ‘sure’ that accused is guilty, before explaining them properly what ‘beyond reasonable doubt” means.
FACTS
PRINCIPLE
R. v. Starr [2002] 2 S.C.R. 144
Accused convicted of first degree murder. Case was about hearsay evidence and its exceptions. As a side note, issues of judge
not being able to charge the jury on ‘beyond a reasonable doubt’ also came up.
Reasonable doubt is much closer to absolute certainty than balance of probability
•
NOTES
From
judgement
•
•
FACTS
Trial judges would err if they did not make it clear to jury that the reasonable doubt standard was much closer to
absolute certainty than the civil balance of probabilities standard
Effective way to define reasonable doubt standard for jury is to explain that it falls much closer to absolute certainty
than proof on balance of probabilities.
Something less than absolute certainty and something more than probable guilt is required to prove BoP.
R v J.H.S., 2008 SCC 30
The accused was charged with sexual assaultafter the complainant alleged that the accused had sexually abused her over a
number of years. Accused denied it. The issue at trial was whether the alleged events had ever happened. The complainant
and the accused were the principal witnesses.
The trial judge charged the jury on the credibility of the witnesses and specifically instructed the jury that the trial was not a
choice between two competing versions of events. The jury returned a verdict of guilty. A majority of the Court of Appeal set
aside the conviction and ordered a new trial on the basis that the trial judge insufficiently explained the principles of reasonable
Page | 67
doubt as they applied to credibility, concluding that the jury was not clearly instructed that lack of credibility on the part of the
accused does not equate to proof of his guilt beyond a reasonable doubt. The dissenting judge would have upheld the
conviction finding that the charge to the jury was sufficient.
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
Relationship between assessment of credibility and Proof beyond reasonable doubt standard
Appeal allowed, conviction restored.
Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility
and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard.
General instruction on reasonable doubt, without adverting to its relationship to credibility/lack of credibility of witnesses,
gives rise to confusion or misunderstanding.
Must be made crystal clear to jury that burden never shifts from crown to prove every element of offence beyond reasonable
doubt. Where credibility is important, jury must not have impression that it must choose between versions of events – lack of
accused’s credibility does not equate to proof of guilt beyond reasonable doubt.
OTHER BURDENS
FACTS
JUDGEMENT
NOTES
From
judgement
R. v. Arcuri, S.C.C. (2001)
The accused was charged with first degree murder. At the preliminary inquiry, the Crown’s case was entirely circumstantial
and the accused called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected the
accused’s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused
should be committed to trial for second degree murder. The accused’s certiorari application was dismissed and that decision
was affirmed by the Court of Appeal. The issue before this Court was whether the preliminary inquiry judge, in determining
whether the evidence was sufficient to commit the accused to trial, erred in refusing to weigh the Crown’s evidence against the
allegedly exculpatory direct evidence adduced by the accused.
Appeal dismissed
Where direct evidence adduced on all elements of offence, case must proceed to trial;
Where circumstantial evidence, judge must engage in limited weighing of whole of evidence, determine whether reasonable
jury properly instructed could return verdict of guilty, not for judge to draw inferences from facts or assess credibility (paras
20-23)
Page | 68
R v Cinous, 2002 SCC 29
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
Analysis
R v Cinous, 2002 SCC 29
C was involved in criminal underworld. C was with X and Y and said he knew they were planning on killing him. C went in to
store. When came back saw an opportunity and shot X and Y
Is there an air of reality to the defence of self-defence?
Dismissed
Air of reality test
Defence should be put to jury only if evidential foundation for it, or “air of reality”, which imposes burden on accused which is
merely evidential, not persuasive;
In applying air of reality test, judge considers totality of evidence, assumes accused’s evidence to be true, determination not
aimed at deciding substantive merits of defence – question is whether evidence discloses real issue for jury, not how it should
ultimately decide the issue (para 50)
Elements:
*Unlawful attack, (C has this, both objective and subjective)
*Reasonable apprehension of harm and death, and (C has this both objective and subjective)
*Reasonable apprehension of no alternative to not be hurt or killed (this is where it fails, on the objective part)
→ It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot – the accused must be
able to point to a reasonable ground for that belief
→ The belief he had no option but to kill must be objectively reasonable
→ For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds
that his own safety and survival depended on killing the victim at that moment
Comments:
When doing air of reality test for self-defence, must do it both objectively and subjectively. Therefore you would be looking at
the 3 elements from the test 2 times.
Page | 69
FACTS
PRINCIPLE
R. v. Fontaine, S.C.C. (2004)
Fontaine worked "under the table" at a car garage. R, a former employee, called the store and said "we're coming to get you,
pigs". The next day, D came into the garage to pay off a debt and Fontaine, thinking he was the hitman, shot him seven times,
killing him.
He turned himself into the police. He claimed that he was "frozen" at the time of the murder and only partially recollected it;
he said that his actions were not his own. Several different doctors testified, and stated that it was possible that Fontaine
suffered from paranoia. The doctor for the defence found conclusively that Fontaine did have a major psychological disorder
and that he was unable to determine right from wrong.
The trial judge did not put mental-disorder automatism to the jury, who convicted him; the Court of Appeal overturned this
and issued a new trial, stating that the defence should be left to the jury.
Discussion about Evidential and Persuasive burden on accused
•
•
NOTES
From
judgement
•
•
•
FACTS
NOTES
From
judgement
Evidential burden” is not burden of proof, it determines whether issue should be left with trier and “persuasive
burden” determines how issue should be decided – these are fundamentally different questions, first is matter of law,
second question of fact;
Judge decides whether evidential burden met, whether there is evidence upon which properly instructed jury could
reasonably decide issue
In case of “reverse onus” defence, such as mental disorder automatism, accused bears both persuasive, evidential
burdens ;
Persuasive burden discharged by evidence on balance of probabilities;
Evidential burden discharged where there is some evidence that puts defence “in play” – whenever properly instructed
jury could reasonably, on account of that evidence, conclude in favour of accused
R. v. Oakes, S.C.C. (1986)
Oakes charged with unlawful possession of narcotic for purpose of trafficking. Oakes claims s.8 of Narcotics Act (assumption
that accused had narcotics for selling unless proved otherwise by accused) violates presumption of innocence contained in
s.11(d) of Charter.
Provision which requires accused to disprove (on balance of probabilities) existence of presumed fact, which is important
element of offence in question, violates s.11(d) presumption of innocence, not saved by s.1 in this case – no rational connection
between basic fact of possession, presumed fact of possession for purpose of trafficking, eg., possession of small quantity of
narcotics does not support inference of trafficking
Page | 70
NEUTRAL IMPARTIAL TRIER
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
R. v. Gunning, [2005] 1 S.C.R 627
During a party at his house, the Appellant assaulted one of the other partygoers, causing him bodily harm (at trial the Appellant
conceded this offence). Victim left, the returned to get his stereo equipment from the basement. The Appellant attacked victim
with a knife, victim disarmed appellant but did not leave. At some point, the two started to grapple with one another. In the
course of these events, victim was severely cut across the face.
The trial judge instructed the jury that Crown had proven unlawful act necessary to prove murder or manslaughter. The
Appellant was charged with assault causing bodily harm and aggravated assault. The Appellant conceded the assault. The trial
judge acquitted the Appellant of aggravated assault. On appeal, the Court of Appeal allowed the appeal against the acquittal
and substituted a verdict of guilty of aggravated assault for the acquittal.
Did the trial judge err in instructing jury
The appeal should be allowed. The conviction should be set aside and a new trial ordered.
Trial judge cannot direct a verdict of guilty.
•
NOTES
From
judgement
FACTS
•
•
Trial judge erred in instructing jury Crown had proven unlawful act necessary to prove murder or manslaughter – jury
is to decide whether offence has been proven on the facts
Judge entitled to give opinion on question of fact, but not a direction – no entitlement to direct verdict of guilty
The judge is entitled to give an opinion on a question of fact but not a direction. A trial judge has no duty or entitlement
to direct a verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential foundation
does not detract from this principle. (paras 27-33)
R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.)
H and M pleaded guilty to importing cocaine. H, a 26-year-old black single mother with no criminal record, agreed to act as a
courier for compensation. She had no financial interest in the cocaine and no involvement in its proposed distribution. H had
a grade nine education and few employable skills, and was unemployed at the time of sentencing. M was a black single
mother, aged 31 at the time of the offence, with no criminal record. Both accused were remorseful. The trial judge found that
the accused should receive conditional sentences.
The trial judge introduced hundreds of pages of his own statistical research into societal ills into the proceedings, and relied
upon these materials in support of his conclusion that the accused, because of their race, gender and poverty, were particularly
Page | 71
vulnerable targets to those who sought out individuals to act as cocaine couriers. He gave conditional sentence and suspended
sentence with curfew to both. The Crown appealed.
ISSUE
JUDGEMENT
Did the trial judge compromise his neutrality?
Held, the appeal should be dismissed.
•
NOTES
From
judgement
•
Court of Appeal rejects arguments that trial judge’s conduct gives rise to reasonable apprehension of bias, but critical
that he assumed combined role of advocate, witness and judge – although sentence upheld – judges must be very
careful before introducing issues into sentencing proceeding, this is role traditionally left to counsel
Problems created by judge’s conduct:
•
Appearance of impartiality put at risk;
•
Fundamental disconnect between case on sentencing presented by counsel and issue raised by judge;
•
Real risk of inaccurate fact finding as material not analyzed or tested before court;
•
Evidence introduced played virtually no role in determining appropriate sentence, consumed lot of
court time
ROLE OF PROSECUTOR
FACTS
ISSUE
Krieger v. Law Society of Alberta, [2002] 2 S.C.R. 372
K was assigned to prosecute an accused charged with murder. Prior to the commencement of the preliminary inquiry, he
received the results of DNA and biological tests conducted on blood found at the scene of the crime which implicated a different
person than the accused. Ten days later, he advised the accused’s counsel that the results of the testing would not be available
in time for the preliminary inquiry. The defence counsel only learned of the testing results at the preliminary hearing,
and complained to the Deputy Attorney General that there had been a lack of timely and adequate disclosure. K was
reprimanded and removed from the case after a finding that the delay was unjustified. Six months later, the accused
complained to the appellant Law Society about K’s conduct.
K sought an order that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown
prosecutor and an order that the Rule of the Code of Professional Conduct requiring a prosecutor to make timely disclosure to
the accused or defence counsel was of no force and effect. K’s application was dismissed by the Court of Queen’s Bench, but
that decision was overturned by the Court of Appeal.
Did Law society have jurisdiction to review Crown’s prosecutorial discretion?
Page | 72
JUDGEMENT
NOTES
From
judgement
FACTS
ISSUE
JUDGEMENT
The appeal should be allowed and the trial judgment restored.
Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. Decisions that do not go to the
nature and extent of the prosecution, such as the decisions that govern a Crown prosecutor’s tactics or conduct before
the court, do not fall within the scope of prosecutorial discretion, however, but are governed by the inherent
jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.
Because Crown prosecutors must be members of the Law Society, they are subject to the Law Society’s code of
professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the
conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a
legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting
dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General
had reviewed it from the perspective of an employer. A clear distinction exists between prosecutorial discretion and
professional conduct, and only the latter can be regulated by the Law Society.
R. v. Nixon, 2011 SCC 34
The accused drove her motor home through an intersection and struck another vehicle, killing a husband and wife and injuring
their young son. She was charged with several CC offences reference to dangerous driving. Counsel initially entered into a plea
agreement which would reduce sentence to a fine under provincial traffic act, in return for which the Crown agreed to withdraw
the CC charges.
The Office of the Attorney General believed that plea to careless driving in the circumstances was contrary to the interests of
justice and would bring the administration of justice into disrepute. Crown counsel was instructed to withdraw the plea
agreement and to proceed to trial. In response, the accused brought a S.7 Charter application alleging abuse of process and
seeking a court direction requiring the Crown to complete the plea agreement.
The application judge held that negotiations between counsel after charges are laid are matters of tactics or conduct which are
subject to review by the court, and that the repudiation of the plea agreement, in this case, was not justified. He concluded that
the accused’s S. 7 Charter right was breached and he directed the Crown to proceed with the agreement. The Court of Appeal
allowed the Crown’s appeal, finding that the repudiation of a plea agreement is a matter of prosecutorial discretion not
reviewable by the courts, subject to the doctrine of abuse of process.
Was accused’s S.7 right violated?
Appeal dismissed
Page | 73

NOTES
From
judgement



FACTS
ISSUE
JUDGEMENT
There are two categories of abuse of process under s. 7 of the Charter:
(1) prosecutorial conduct affecting the fairness of the trial; and
(2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the
judicial process.
While s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made
out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of the justice
system.
Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse
of process.
The situations in which the Crown can properly repudiate a plea agreement are, and must remain, very rare. It is the
circumstances surrounding the repudiation of a plea agreement which should be reviewed to determine whether that
decision amounts to an abuse of process.
R. v. Babos, 2014 SCC 16
The accused was being tried for meth related offences. During the course of the trial, the accused brought an application to
stay the proceedings for abuse of process. They alleged three forms of state misconduct: attempts by the Crown to intimidate
them into pleading guilty, collusion on the part of two police officers to mislead the court about the seizure of a firearm, and
improper means used by the Crown in obtaining the medical records of one of the accused. The trial judge stayed the
proceedings. The Court of Appeal set aside the stay and ordered a new trial.
Did prosecutor abuse the process?
The appeals should be dismissed.
A stay of proceedings may be imposed when the state conduct is so profoundly and disproportionately inconsistent with the
public perception of what a fair justice system requires, that proceeding with a trial means condoning unforgiveable conduct.
NOTES
From
judgement
Two types of state conduct may warrant a stay.
(i)
The first is conduct that compromises the fairness of an accused’s trial (the “main” category).
(ii)
The second is conduct that does not threaten trial fairness but risks undermining the integrity of the judicial
process (the “residual” category).
The test for determining whether a stay of proceedings is warranted is the same for both categories and consists of three
requirements:
Page | 74
(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be
manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome,
(2) there must be no alternative remedy capable of redressing the prejudice, and
(3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests
in favour of granting a stay against the interest that society has in having a final decision on the merits.




FACTS
ISSUE
JUDGEMENT
NOTES
From
judgement
When the residual category is invoked, the first stage of the test is met when it is established that the state has
engaged in conduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial
in the face of that conduct would be harmful to the integrity of the justice system.
At the second stage of the test, the focus is on whether an alternate remedy short of a stay of proceedings will
adequately dissociate the justice system from the impugned state conduct going forward.
Finally, the court must decide whether staying the proceedings or having a trial despite the impugned conduct
better protects the integrity of the justice system.
The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct
is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she
faces, and the interests of society in having the charges disposed of on the merits.
R. v. Anderson, 2014 SCC 41
The accused was convicted of impaired driving. The offence of impaired driving carries with it a minimum sentence. These
mandatory minimum sentences apply only if the Crown notifies the accused of its intention to seek a greater punishment prior
to any plea. Crown counsel served a Notice of intent to seek greater punishment by reason of the accused’s four previous
impaired driving convictions. The trial judge held that Crown counsel breached S. 7 of the Charter by tendering the Notice
without considering the accused’s Aboriginal status. The accused was sentenced to a 90-day intermittent sentence. The Court
of Appeal dismissed an appeal from sentence.
1) Whether S. 7 of the Charter requires the Crown to consider an accused’s Aboriginal status when making decisions
that limit the sentencing options available to a judge (2) whet her the decision to tender the Notice is a matter of “core”
prosecutorial discretion, and if so, the standard by which it may be reviewed.
The appeal should be allowed and a term of imprisonment of 120 days should be substituted, with service of the remainder of
the sentence stayed in accordance with the concession of the Crown.

Crown prosecutors are not constitutionally required to consider the Aboriginal status of an accused when deciding
whether or not to seek a mandatory minimum sentence for impaired driving for two reasons.

While it is a principle of fundamental justice that a sentence be proportionate to the gravity of the offence and the degree
of responsibility of the offender, the duty to impose a proportionate sentence rests upon judges, not Crown prosecutors.
Page | 75

Prosecutorial discretion is reviewable for abuse of process. The abuse of process doctrine is available where there is
evidence that the Crown’s conduct is egregious and seriously compromises trial fairness or the integrity of the justice
system. The burden of proof lies on the accused to establish, on a balance of probabilities, a proper evidentiary foundation
to proceed with an abuse of process claim, before requiring the Crown to provide reasons justifying its decision.
Tendering the Notice was a matter of prosecutorial discretion.

GETTING READY FOR TRIAL
POLICE POWERS
FACTS
ISSUE
PRINCIPLE
R. v. Grant, 2009 SCC 32
Psychological Detention
Police officers were on patrol in school areas. 2 of the officers were dressed in plain clothes. 1 in uniform in a different vehicle.
(3 officers were larger then Grant). 2 officers felt Grant looked suspicious, and asked the other officer to go talk to him.
He went to talk to him, Mr. Grant was nervous. Grant was told to keep his hands in front of him. The other two officers went to
identify themselves and stood behind other officer and in front of Grant, blocking his way to go forward. Grant was asked a series
of questions, when he told them he had a firearm they immediately arrested him.
What constitutes detention?
Were Grant's rights under ss. 8, 9 and 10(b) of the Charter violated?
Psychological detention when reasonable person may conclude that he/she has no choice but to comply.
•
•
NOTES
From
judgement
•
Detention under ss. 9 and 10 of Charter refers to suspension of person’s liberty interest by significant physical or
psychological restraint
Psychological detention establish where individual has legal obligation to comply with restrictive request or demand,
or reasonable person would conclude by reason of state conduct that he/she had no choice but to comply
In cases where there is no physical restraint or legal obligation, it may be unclear whether person detained – to
determine whether reasonable person in individual’s circumstances would conclude he/she deprived by state of liberty
of choice, court may consider following factors:
(a) circumstances giving rise to encounter as they would reasonably be perceived by the individual (whether the police
were providing general assistance; maintaining order; making general inquiries regarding a particular occurrence; or,
singling out the individual for focussed investigation.);
Page | 76
(b) nature of police conduct, including the language used; the use of physical contact; the place where the interaction
occurred; the presence of others; and the duration of the encounter.;
(c) particular characteristics or circumstances of individual where relevant, including age; physical stature; minority
status; level of sophistication.
(summary para 44)
FACTS
ISSUE
JUDGEMENT
R. v. Suberu, 2009 SCC 33
Constable R responded to a call about a person attempting to use a stolen credit card at a store. When R went to store, Suberu
walked past R and said he was leaving. R followed Suberu outside and said “Wait a minute. I need to talk to you before you go
anywhere”. While R was talking to Suberu, he received information of description and licence plate number of the van driven by
the men who used a stolen credit card at another store earlier that day. The description and the licence plate number both
matched Suberu’s van. R also saw shopping bags between and behind the front seats.
At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his
arrest and cautioned him as to his right to counsel. S brought an application under s. 24(2) of the Charter, seeking the exclusion
of any statements made by him and of the physical evidence seized at the time of his arrest, on the ground that this evidence had
been obtained in a manner that infringed his s. 10(b) right to counsel. Suberu argued that he was detained as soon as he was
told to “wait” and was engaged in questioning by R. He also argued that R’s failure to inform him of his s. 10(b) right to counsel
at that point in time constituted a Charter breach.
The trial judge dismissed the application. S was ultimately convicted at trial on several counts. Both the summary conviction
appeal court and the Court of Appeal upheld the convictions and the trial judge’s ruling that S’s right to counsel was not violated.
Was the accused detained when he was followed for questioning?
Appeal dismissed.
PRINCIPLE
Being delayed momentarily is not the same as detention.
NOTES
From
judgement
The question is whether a reasonable person in similar circumstances would conclude that he or she had no choice but to comply.
The fact that a person is delayed by the police is not sufficient to ground a reasonable conclusion that he or she was not free to
go, or that he or she was bound to comply with the officer’s request for information.
Being delayed momentarily not same as detention “Wait a minute, I need to talk to you” not detention (para 34)
FACTS
R. v. Aucoin, 2012 SCC 66
Late one night, A was stopped by a police officer because the licence plate on the vehicle he was driving was registered to a
different vehicle. A failed a roadside screening test and the officer decided to impound his vehicle and issue him a ticket pursuant
Page | 77
to the Motor Vehicle Act. Fearing that A might disappear into the nearby crowd, the officer decided to secure A in the rear of his
police cruiser while completing the paper work. The officer first conducted a pat-down search, after asking for and receiving A’s
permission. The officer felt something soft in A’s pocket and, when asked what it was, A said that it was ecstasy. A was arrested
and searched further. The officer found cocaine and pills in his pocket. The trial judge held that the search did not violate s. 8 of
the Charter and the seized evidence was admissible. A was convicted for possession of cocaine for the purpose of trafficking. His
appeal was dismissed by a majority of the Court of Appeal.
ISSUE
JUDGEMENT
NOTES
From
judgement
FACTS
ISSUE
Was Aucoin’s search unreasonable under S.8 of Charter?
Appeal dismissed (though court gave some direction regarding unlawful search)
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was
carried out is reasonable. The question is not whether there was authority to detain accused, but whether officer was justified
in exercising it in the present circumstances.
Whether there were other reasonable means by which the officer could have addressed his concern about A disappearing into
the crowd. The officer’s actions, though carried out in good faith, were not reasonably necessary. Because A’s detention in the
back of the cruiser would have been unlawful, it cannot constitute the requisite basis in law to authorize the warrantless
pat-down search.
Note: Despite the above, Court declared that the search was in good faith
There were unusual circumstances that prompted the police officer’s conduct in this case and he acted in good faith. When the
police act in good faith and without deliberate disregard for or ignorance of Charter rights, seriousness of the breach may be
diminished.
R. v. Cole, 2012 SCC 53
The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer. He
was authorised to use his office computer during off-hours. While performing maintenance activities, a technician found child
pornography (underage student). Technician copied files into secondary disk. The laptop and both discs were handed over to
the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic
purposes.
Trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Charter. The summary conviction appeal
court reversed the decision, finding that there was no s. 8 breach. The Court of Appeal set aside that decision and excluded the
disc containing the temporary Internet files, the laptop and the mirror image of its hard drive. The disc containing the
photographs of the student was found to be legally obtained and therefore admissible. As the trial judge had wrongly excluded
this evidence, the Court of Appeal ordered a new trial.
Did the accused have reasonable expectation of privacy in use of his computer?
Page | 78
JUDGEMENT
PRINCIPLE
The appeal should be allowed. The exclusionary order of the Court of Appeal is set aside and the order of a new trial is affirmed.
Personal use computers (no matter how infrequently used for personal use), have reasonable expectation of privacy.

NOTES
From
judgement
FACTS
ISSUE
JUDGEMENT


Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain
information that is meaningful, intimate, and touching on the user’s biographical core. While workplace policies and
practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do
not in themselves remove the expectation entirely. A reasonable though diminished expectation of privacy is nonetheless
a reasonable expectation of privacy, protected by s. 8 of the Charter.
Accused has reasonable expectation of privacy in use of his computer, even though extent of privacy diminished;
When computer handed over to police accused’s s.8 Charter rights against unreasonable search and seizure violated.
R. v. Spencer, 2014 SCC 43
The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child
pornography through an Internet file-sharing program. They then obtained from the Internet Service Provider (ISP), without
prior judicial authorization, the subscriber information associated with that IP address. The request was purportedly made
pursuant to Digital law. This led them to the accused. He had downloaded child pornography into a folder that was accessible to
other Internet users using the same file-sharing program. He was charged and convicted at trial of possession of child
pornography and acquitted on one other charge. The Court of Appeal upheld the conviction, however set aside the acquittal on
the other charge of “making available charge” and ordered a new trial.
Did accuse have reasonable expectation of privacy while using his computer?
Appeal dismissed
PRINCIPLE
There is high degree of privacy in online anonymity.
NOTES
From
judgement
Authority’s obtainment of Spencer’s subscriber information was a search for the purposes of section 8. Spencer had reasonable
expectation of privacy in his subscriber information.
The court set out three key elements of informational privacy:
(i)
privacy as secrecy,
(ii)
privacy as control, and
(iii)
privacy as anonymity.
Page | 79
Anonymity is particularly important in an online context, since subscriber information can associate not only with the person’s
name or address and as user of that information.
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R. v. MacDonald, 2014 SCC 3
Police responded to a noise complaint at M’s home. When M opened the door, an officer observed that M had an object in his
hand, hidden behind his leg. The officer twice asked M what was in his hand. Because M did not answer, the officer pushed the
door open a few inches further to see. A struggle ensued and M was disarmed of a loaded handgun. M was licensed to possess
and transport the handgun in Alberta, but not in Nova Scotia as he believed he was.
At trial, the judge concluded that M’s possession of the gun was unauthorized. He also concluded that the officer’s pushing the
door open further did not breach M’s s. 8 Charter right to be free from unreasonable search. The trial judge convicted M of
multiple accounts related to firearm. Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s s. 8
Charter right, but significantly reduced the sentences.
Was M’s S.8 Charter right infringed?
The appeal of the s. 8 Charter issue should be dismissed
Did officer’s conduct constitute search under S.8 of Charter?
The officer’s action of pushing the door open further constituted a “search” for purposes of s. 8 of the Charter. The action went
beyond the implied licence to knock on the door and constituted an invasion of M’s reasonable expectation of privacy in his
home.
Although the officer’s action constituted a search for s. 8 purposes, that search was reasonable because both stages of the
Waterfield test were satisfied.
Waterfield test:
(iii)
does conduct fall within general scope of duty imposed by statute or common law- (yes, common law police duty to
protect life and safety)
(iv)
whether such conduct involves non-justifiable use of powers associated with that duty (yes, search constitutes a
justifiable exercise of powers associated with the duty)
Page | 80
ARREST AND BAIL
FACTS
ISSUE
JUDGEMENT
R. v. Hall, S.C.C. (2002)
David Scott Hall was charged with the murder of a woman in a high-profile case. He applied for bail pending trial. The judge
denied the application—not for reasons of ensuring appearance in court or protecting the public—but in order "to maintain
confidence in the administration of justice". Paragraph 515(10)(c) of the Criminal Code allows the denial of bail for this reason.
Hall appealed the decision on the basis that section 515(10)(c) violated the right "not to be denied reasonable bail without just
cause" under section 11(e) of the Charter.
Did S. 515(10)(c) CC violate Charter right 11(e)?
Appeal dismissed
Part of S. 515(10)(c) declared unconstitutionalstarr, other part declared valid.
• Fundamental principle of justice that person cannot be detained by virtue of vague legal provision, Parliament must
lay out narrow and precise circumstances in which bail can be denied.
NOTES
From
judgement
•
S.11(e) Charter guarantees right not to be denied reasonable bail without just cause.
•
Portion of s.515(10)(c) permitting detention “on any other just cause being shown” unconstitutional as open-ended
judicial discretion to refuse bail;
Phrase “without limiting the generality of the foregoing” also void for vagueness;
But phrase “to maintain confidence in the administration of justice” valid – provides basis for denying bail not covered
by subs.(10)(a) and (b), essential that a means of denying bail be available because public confidence essential to proper
functioning of bail system, justice system as a whole.
•
•
Page | 81
DISCLOSURE
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
R v Stinchcombe, [1991] 3 S.C.R. 326
Accused was a lawyer charged with breach of trust, theft fraud. His former secretary was defence witness and gave favorable
evidence for him, at prelim enquiry. After that and before trial RCMP official taped her interview. During trial, Crown took her
written statements. Defence counsel was told about the existence of tape and statement but not told about the content. His
request for disclosure denied.
During trial defence counsel learnt that the witness would not be called upon. He brought an order that witness be called or
Crown disclose contents of statements. Trial judge dismissed application. Trial proceeded, accused charged with breach of trust
and fraud. Stay on theft charges. Appeal court upheld convictions.
Is disclosure at discretion of crown?
Appeal allowed. New trial ordered.
Crown has a legal duty to disclose all relevant information to defence.
•
•
NOTES
From
judgement
•
•
•
crown has legal duty to disclose all relevant information to defense – fruits of investigation in possession of crown not
property of crown for use in securing conviction but property of public to be used to ensure justice is done; s.7 Charter
right to full answer and defence
Obligation to disclose subject to discretion as to withholding information and timing, manner of disclosure, eg., crown
has duty to respect rules of privilege, protect identity of informers (paras 18-21)
Discretion of crown also to be exercised as to relevance of information
Crown’s discretion reviewable by trial judge – to be guided by general principle that information should not be
withheld if there is reasonable possibility it will impair right of accused to make full answer and defence – absolute
withholding of information which is relevant to defence can only be justified on basis of existence of legal privilege
which excludes information from disclosure – accused to bring to attention of judge at earliest opportunity (para 2223)
Initial disclosure to occur before accused called upon to elect mode of trial or plead -subject to crown’s discretion, all
relevant information must be disclosed, whether crown intends to introduce it into evidence, and whether evidence
inculpatory or exculpatory (para 28)
Page | 82
R v O’Connor, [1995] 4 S.C.R. 411
3rd Party Disclosure- Production
FACTS
Accused was charged with several counts of sexual assault. He obtained pre-trial order for disclosure of the complainants’
entire medical, counselling and school records. When accused was unsuccessful in obtaining all these records, trial judge
entered a stay.
ISSUE
What is the procedure to be applied when accused seeks documents in the hand of third party?
NOTES
From
judgement
FACTS
ISSUE
The Court held that the medical and counselling records of a complainant in a sexual assault case that are held by a third
party can be disclosed by order of the judge if they meet two requirements.
(i)
The applicant must establish, without seeing them, that the records are likely to be relevant to the case. (relevant
but not paramount condition)
(ii)
The judge must review the records and decide whether to disclose them based on the balancing the right to make
full answer and defence, and the right to privacy. (additional factors)
Where trial judge decides whether to order the record or any portion of it, a number of factors should be considered:
(a) Extent to which record is essential to make full answer and defence by accused;
(b) Probative value of record;
(c) Nature and extent of reasonable expectation of privacy in records;
(d) Whether production would be based on any discriminatory belief or bias;
(e) Potential prejudice to complainant’s dignity, privacy or security
R v McNeil 2009 SCC 3
Accused charged on drug related charges. Arresting police officer had disciplinary and criminal investigations against him on
drug bust issues. The records in issue were the police disciplinary records and criminal investigation files relating to the said
police witness.
What is the role of police in disclosure by Crown?
-
Crown has disclosure obligation of records in its possession; police must disclose information to Crown relating to
investigation of accused, including misconduct by investigating officer at disciplinary hearing or criminal charges, so
they form part of 1st party disclosure.
-
Court lists 5 types of records that fall under this category (Ferguson Five list)
NOTES
From
judgement
Page | 83
(i)
-
-
Conviction of guilt u/Criminal Code (CC) or Controlled drugs substances act (CDSA), for which no pardon is
granted;
(ii)
Outstanding charges under CC or CDSA
(iii)
Conviction or finding of guilt under any other Federal or Provincial statute
(iv)
Finding gilt for misconduct under Police Service Act;
(v)
Current charge of misconduct under Police Service Act for which Notice of Hearing has been issued.
Records like these need to be provided by Crown without prompting (though concerned officer needs to be given
notice of intention to disclose)
Records not so related and in possession of third parties subject to Code third party record regime, s.278.1, or common
law test; must meet likely relevance test, if so to be produced to court for inspection, then second stage of test where
court balances privacy interests of third party with accused’s right to make full answer and defence
PRELIMINARY ENQUIRY
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v Acuri [2001] 2 S.C.R. 828
The accused was charged with first degree murder. At the preliminary inquiry, the Crown’s case was entirely circumstantial
and the accused called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected the
accused’s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused
should be committed to trial for second degree murder. The accused’s certiorari application was dismissed and that decision
was affirmed by the Court of Appeal.
Whether the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial,
erred in refusing to weigh the Crown’s evidence against the allegedly exculpatory direct evidence adduced by the accused.
Appeal dismissed
The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence
upon which a reasonable jury properly instructed could return a verdict of guilty.
In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she
assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable
for a properly instructed jury to infer guilt. This task of limited weighing never requires consideration of the inherent reliability
of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from
the circumstantial evidence.
Page | 84
JURY TRIAL
FACTS
ISSUE
JUDGEMENT
R v Williams [1998] 1 S.C.R. 1128
The accused, an aboriginal, pleaded not guilty to a robbery charge and elected a trial by judge and jury. The trial judge at the
first trial allowed questions to be put to potential jurors but the Crown successfully applied for a mistrial on the basis of
procedural errors and the “unfortunate publicity” of the jury selection process. At the second trial, the judge who heard the
accused’s motion for an order permitting him to challenge jurors for cause dismissed the motion. The judge who presided at
the trial dismissed a renewed application and did not warn the jury, either in his opening or closing addresses, to be aware of
or to disregard any bias or prejudice that they might feel towards the accused as a native person. The Court of Appeal dismissed
an appeal from conviction. The courts below accepted that there was widespread prejudice against aboriginal people in the
community.
Whether the evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality
Accused’s appeal allowed
PRINCIPLE
challenge based on racial prejudice do not require accused to present evidence (para 35)
NOTES
From
judgement
3 types of juror prejudice:
- Interest prejudice: juror has interest in case or one of the parties;
- Specific prejudice: attitude or beliefs arising from personal knowledge of case, mass media, public discussion or
rumors
- Generic prejudice (issue in this case): stereotypical attitudes about parties or crime itself- bias against racial or ethnic
group or persons charges with sex abuse.
It is impossible for accused to evidence that jurors will be unable to set aside their prejudice. Racial prejudice is at community
level and impossible for jurors to set aside their prejudice.
FACTS
R v Find 2001 SCC 32
The accused was charged with 21 counts of sexual offences involving complainants ranging between 6 and 12 years of age at
the time of the alleged offences. Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the nature
of the charges against him gave rise to a realistic possibility that some jurors might be unable to try the case against him
impartially and solely on the evidence before them. The trial judge rejected the application. The accused was tried and
Page | 85
JUDGEMENT
convicted on 17 of the 21 counts. The majority of the Court of Appeal dismissed the accused’s appeal, upholding the trial judge’s
ruling not to permit the accused to challenge prospective jurors for cause.
The appeal should be dismissed. The nature of the charges against the accused did not give rise to the right to challenge
prospective jurors for cause on the ground of partiality.
PRINCIPLE
Absent proof, it cannot be simply assumed that strong beliefs and emotions translate into a realistic potential for partiality,
granting right to challenge for cause
NOTES
From
judgement
Many criminal trials involve strong views and can stir up powerful emotions including revulsion and revulsion. This is the
nature of trial process. However, there needs to be evidence that strong emotions and believes can translate into realistic
potential for partiality, giving rise to challenge for cause.
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
R v YUMNU, 2012 SCC 73
Appellants were convicted of murder and conspiracy of murder. They discovered that crown attorney, through police, did ‘jury
vetting’- to see if any jury member had criminal record. None of this told to appellants during trial.
The Court of Appeal dismissed all three appeals. Court did declare on issue of ‘jury vetting’ that Crown had failed to disclose
information obtained from the jury vetting process that might have assisted the appellants in the exercise of their peremptory
challenges, but it was not satisfied that the appellants suffered any prejudice from such failure.
Did failure to disclose cause actual unfairness or did ‘jury vetting’ create appearance of unfairness?
Appeal dismissed
Authorities are entitled to conduct record checks of potential jury members, till the time it does not impact fairness
of trial.
• Juror eligibility under CC and Provincial statues may render jurors with criminal record to be disqualified or result in
his/her being removed for cause.
• Authorities entitled to conduct record checks on potential jury members to see if eligible for jury duty or for basis to
bring challenge for cause,
• But defense should have been provided with information as part of Crown’s disclosure obligation –
• Jury selection or fairness of trial not impacted however
Page | 86
SENTENCING
FACTS
ISSUE
JUDGEMENT
R v Nasogaluak [2010] 1 S.C.R 206
Police received a tip about an intoxicated driver which led to a high speed pursuit of Nasogaluak. While being arrested, he was
physically beaten up by officers, leading to punctured lung. His breath alcohol was above legal limit. Police did not report their
beating him up. He told the officers he was hurt and told them he could not breathe. He was released the following morning
and checked himself into a hospital. He was found to have suffered broken ribs and a collapsed lung that required emergency
surgery.
At trial, N entered a guilty plea to charges of impaired driving and flight from police. At sentencing, the trial judge held that the
police had used excessive force in arresting the accused and breached his rights under s.7 of the Charter. As a remedy under
s.24(1) of the Charter, he reduced the accused's sentence and ordered a 12-month conditional discharge on each count, served
concurrently, with a one-year driving prohibition. The Court of Appeal held that a sentencing judge has no discretion to reduce
a sentence below a statutorily mandated minimum sentence and ordered the minimum fine for a first offence mandated by
s.255(1) of the Criminal Code.
Is the imposition of a reduced sentence for the commission of a criminal offence an available and appropriate remedy for the
breach of an offender's Charter rights?
Appeal dismissed
PRINCIPLE
Proportionality is central to sentencing
NOTES
From
judgement
proportionality central to sentencing process; sentencing judge has wide discretion, but constrained by Code provisions and
determining what is fit sentence for offence and circumstances of offence – Charter breach may be appropriate to consider as
factor on sentencing, in exceptional circumstances sentence might be reduced as result as remedy under s.24(1) Charter
FACTS
ISSUE
R v C.A.M, [1996] 1 S.C.R 206
Accused pleaded guilty to a number of sexual, physical and emotional abuse of his children. None of the offences carried life
imprisonment. Judge gave him cumulative 25 years. Corut of appeal reduced it to 18 years 8 months. (logic: where life term not
available as penalty, totality principle requires judge to limit fixed term cumulative sentences to 20 yrs imprisonment, absent
special circumstances)
What term should be upheld?
Page | 87
JUDGEMENT
PRINCIPLE
25 yrs term upheld
Retribution and denunciation principles of sentencing
•
NOTES
From
judgement
FACTS
ISSUE
JUDGEMENT
•
•
•
•
•
Retribution important principle of sentencing, not the same as “vengeance”, means punishment advances deterrence
and rehabilitation considerations as well as moral culpability of offender – requires imposition of just and appropriate
punishment, nothing more (paras 79-80);
(para.81)
judicial sentence to properly reflect moral blameworthiness of particular offender
Denunciation is also an important principle
Society must show abhorrence towards certain offences and the only to do so is through sentences passed by courts
A sentence which expresses denunciation is simply the means by which these values are communicated.
R v Gladue [1999] 1 S.C.R. 688
G stabbed fiancé in heart. Drunk at time. Had been in fight earlier that night. During time before trial she moved back in with
her father. Went back to school. Began drug and alcohol counseling. No mention was given about her being an Aboriginal
Offender at trial.
Trial judge concluded that offence is a serious one where apt sentence would be 3 years. Court of appeal dismissed accused’s
appeal.
Should s.718.2(e) be understood as being remedial in nature? – should they use different framework when sentencing
Aboriginal peoples.
Appeal dismissed
PRINCIPLE
Judges should look at systemic factors when sentencing Aboriginal Offenders
NOTES
From
judgement
Summary of principles for sentencing aboriginal offenders (para. 93):
•
CC s.718.2(e) requires courts to consider all available sanctions other than jail, pay particular attention to
circumstances of aboriginal offenders
• S.718.2(e) remedial in nature, to be used to address problem of overrepresentation of aboriginals in jail, promote use
of restorative justice
• All of principles and factors set out under Part XXIII to be considered on sentencing, attention to be paid to new
emphasis on decreasing use of jail
• Sentencing individual process, court must consider what is fit sentence, but s.718.2(e) directs courts to alter method
of analysis when determining what is fit sentence for aboriginal offender, eg., consider what systemic or background
Page | 88
•
FACTS
ISSUE
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
FACTS
factors may have played role in offence; judicial notice may be taken of systemic and background factors affecting
aboriginals
S.718.2(e) not to be taken as means of automatically reducing prison sentence for aboriginals or imposing more lenient
sentence, although jail term may be shorter in some cases for same offence for non-aboriginal offender
R v Ferguson 2008 SCC 6
During an altercation with detainee held in a cell, RCMP officer shot and killed detainee. Charged with lesser offence of
manslaughter with firearm. Minimum mandatory sentence of 4 yrs is imposed by S 236(a)CC but the trial judge imposed
conditional sentence of 2 yrs less a day. Reasoning was that circumstances in this case, minimum mandatory sentence
constituted cruel and unusual punishment u/s 12 charter. Court of appeal overturned sentence and imposed mandatory
minimum.
Does minimum sentence of 4 yrs constitute charter violation?
Appeal dismissed. No charter violation.
Constitutional exemptions of S. 12 (cruel and unusual punishment) should not be recognised as remedy for law
prescribing minimum sentence
• Mandatory minimum 4 year sentence for manslaughter with firearm not cruel or unusual punishment, s.236(a) Code
• Issue in case was whether sentence should be more than 4 years, or whether facts of case such that 4 year sentence
would be grossly disproportionate – on facts of case was not cruel or unusual punishment
• In any event constitutional exemption not appropriate remedy for Charter s.12 violation – if law imposing minimum
sentence is unconstitutional on facts of particular case, it should be declared inconsistent with Charter and hence of
no force or effect under s.52 of Constitution Act, 1982.
R v Morrisey, 2000 SCC 6
Accused accidently killed the victim. No evidence that he intended to kill him. He pleaded guilty to criminal negligence causing
death. Spent 5 months in pre-trial custody. Trial judge found that 4 yr minimum sentence u/s 220(a) CC violated S.12 of Charter.
Accused sentenced to 2 yrs plus one year (for unlawfully pointing firearm). Court of appeal imposed 4 yr sentence without
credit for pre-trial custody.
ISSUE
JUDGEMENT
Appeal dismissed for all counts but one. Accused’s time spent in pre-trial custody given credit towards sentencing.
Page | 89
PRINCIPLE
NOTES
From
judgement
FACTS
JUDGEMENT
PRINCIPLE
NOTES
From
judgement
In applying S.12 charter, court must be satisfied that the punishment imposed is grossly disproportionate for offender such
that Canadians would find the punishment abhorrent or intolerable
• criminal negligence causing death with firearm minimum 4 year sentence not cruel or unusual punishment, s.220(a)
Code
• Section 12 Charter provides broad protection to Canadians against punishment which is so excessive as to outrage
society’s sense of decency – court must be satisfied that the punishment imposed is grossly disproportionate for
offender such that Canadians would find the punishment abhorrent or intolerable;
• in assessing whether sentence is grossly disproportionate, court must first consider gravity of offence, personal
characteristics of offender and particular circumstances of case to determine what range of sentences would have been
appropriate
• If sentence is grossly disproportionate for individual offender, court proceeds to analyze whether infringement of s.12
can be justified under s.1 of Charter
R v Pham, 2013 SCC 15
Accused non-citizen of Canada convicted of drug related offences. Court imposed 2 yrs sentence. Under immigration act, noncitizens that get 2 yrs or more were deported (now changed to 6 months). Neither party raised the issue of collateral
consequences at sentencing.
Appeal court dismissed the appeal and refused to alter sentence.
Appeal allowed. Sentence reduced to 2 years less a day.
Collateral consequences of sentencing
•
•
Proportionality is fundamental principle of sentencing, collateral consequences (immigration) may be taken into
account so long as part of proportionality.
If offence not too grave for sentencing judge to reject lower sentence.
Page | 90