CRIMINAL LAW AND PROCEDURE
I. INTRODUCTION
A. SOURCES OF CRIMINAL LAW
With the exception of contempt of court, criminal offences are created in Canada by statute.
Most criminal offences are created by the Criminal Code but it is not the only statutory source.
Drug trafficking, for example, is made a criminal offence by the Controlled Drugs and
Substances Act. Prohibted actus reus of an offence is a matter of statutory interpretation. The
common law cannot be used to create offences in canada because of the concerns related to
priniciple of legality and the notion that the criminal offences sahould be clear, certain and should
pre-existy the act of being procecuted.
3 MAIN SOURCES –
i. Constitution - (it is the supreme law of the land and it prevails over both statutes and
common law. Therefore, a criminal offence that is enacted by parliament can be
struck down by the courts on th3e grounds that it violates the constitution)
1. Division of powers including
2. Canadian charter of rights and freedom
ii. Statutes enacted by legislature – including criminal code and other statues creating
offences. (Statues prevail over judge made common law).
iii. Judge made common law in the form of defenses, that have not been codified in the
criminal code.
FREY v. FEDORUK [1950] S.C.R. 517 is a decision by the Supreme Court of Canada on the
definition of a breach of the peace and whether being a "peeping tom" is a crime. The Court found
that actions do not necessarily breach the peace just because they cause violent reactions. Due to
this finding, courts would have less say in determining what is criminal as a breach of the peace,
and the Parliament of Canada would have more.
FACTS - Frey was caught and detained by Fedoruk after he was observed at 11pm looking into a
window of a woman's room. Frey was charged with peeping, convicted at trial but conviction was
overturned on the basis that "peeping" was not a valid
OFFENCE
◦ Frey then brought a civil suit against Fedoruk for false imprisonment
ISSUE - Does the conduct of a "peeping tom" constitute a criminal offence? Were the Defendants
justified in arresting the Plaintiff without a
LAW - Court of appeal found that Frey did act in a manner likely to cause a breach of the peace,
and therefore the Defendants were justified in restraining him. Conduct may be treated as criminal
because, although not otherwise criminal, it has a natural tendency to provoke violence by way of
retribution
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CONCLUSION - Trial judge (who convicted Frey initially) found that "Criminal responsibility
at common law is NOT a matter of precedent, but of application of generic principle to the differing
facts of each case". SCC found this was too broad and could lead to confusing arrests.
Wills found the decision in this case not to expand the range of common law crimes to cover
"peeping toms" but rather the decision "to protect the individual from the risk of oppression" above
"the protection of the state from the risk of disorder". The decision of what is lawful is upto the
parliament and not the courts. Appeal was allowed.


But the common law defenses are available under the Canadian criminal law (e.g – levis v.
Tetreault)
Common law can determine how criminal offences are interpreted.
B. CRIMINAL LAW AND CONSITUTION
a. Federal parliament can enact criminal laws.
b. Criminal law may be unconstitutional if it infringes a right or a freedom protected under
the charter.
c. Section 7 – provides – people cannot be deprived of the life, liberty and security of the
person except in accordance with the principles of fundamental justice.
R v. JOBIDON (1991)
PRINCIPLE: Under s.8(3), courts may look to pre-existing common law rules and principles to
give meaning to and explain the outlines and boundaries of an existing defence or justification to
indicate where they will not be held legally effective, provided there is no clear language in the
Code to indicate its displacement of the common law.
FACTS: The appellant and the deceased were involved in a fist fight. The appellant punched the
deceased who fell onto the hood of a car. Unaware that the deceased was unconscious, the appellant
continued to punch the deceased on the head. The victim died as a result of one of the punches
received from the appellant. The trial judge held that the appellant did not intend to kill the
deceased and that he believed that the deceased had consented to a fight. The trial judge held that
the victim's consent negated assault and that there was no criminal negligence.
ISSUE: whether absence of consent is a material element which must be proved by the Crown in
all cases of assault or whether there are common law limitations which restrict or negate the legal
effectiveness
of
consent
in
certain
types
of
cases.
HELD: Appeal dismissed. The common law limitations to consent applied in the context of
section 265 of the Criminal Code. Thus the victim's consent to a fist fight did not preclude the
commission of an assault under section 265. The limits on consent to assault vitiated consent
between adults to apply force causing serious bodily harm to each other in the course of a fist fight.
Justice Gonthier, writing for the majority, held that the criminal law has a "paternalistic" dimension
which attempts to ensure that all "citizens treat each other humanely and with respect".
Nevertheless, consent would be a valid defense where the harm was trivial or where it is part of a
socially valuable activity such as sports.
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Justice Sopinka, in concurring with the decision, but not with the majority's reasoning, held that
the majority was expanding the scope of section 265 beyond what was intended by Parliament.
One fact of the case was that Jobidon continued to beat the victim after the victim had been
knocked unconscious. This fact led Justice Sopinka to concur with the initial trial judge by stating
that the victim lacked the agency to consent to the fight once he was knocked unconscious, and
therefore, Jobidon could not use consent as a defence and was guilty of manslaughter by the
unlawful act of assault
C. THE POWER TO CREATE CRIMIAL OFFENCES AND RULES OF CRIMINAL
PROCEDURE
Constitutional division of power
Canadian charter of rights and Freedom
a. Constitutional division of power –
i. both the federal government and provincial governments have jurisdiction to
create non-criminal offences, but only federal government can create the
“criminal offence” section 91 (27) constitution act.
R v. MALMO-LEVINE (2003),SCC 74
FACTS – Davis Malmo-Levine, a marijuana/freedom activist”, ran an organization in East
Vancouver called the “Harm Reduction Club”, which attempts to reduce the harm associated with
marijuana use by educating users and the public about the drug and provide the drug at the cost.
In December, 1996 the police raided the club and seized 316 grams of marijuana charging Malmo
with the possession for the purpose of trafficking.
The second case involved the 1993 arrest of Victor Caine for possession of marijuana. Caine was
in his van by the ocean when two RCMP officers approached him. He was stopped and a 0.5 gram
were found in his possession.
Both Caine and Malmo-Levine challenged the constitutionality of the criminalization of marijuana
under the Narcotics Control Act.
Malmo-Levine's argument focused on whether there should be a requirement of harm for criminal
law. He argued that the constitutional power to enact criminal law under section 91(27) of
the Constitution Act, 1867 is limited to conduct that causes harm. He further argued that the "harm
principle" should be a principle of fundamental justice under section 7 of the Canadian Charter of
Rights and Freedoms.
RATIO – the “harm principle” is not a fundamental aspect of our justice system and need not be
included in crimes for them to be constitutionally valid.
ISSUE – must all crimes adhere to harm principles; is the prohibition of marijuana constitutionally
valid?
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REASONS – this claim is ungrounded as there is no principle stating that all laws must adhere to
“harm principle” and further there are several crimes in the code that do not harm others. They
decide that “harm principle” is not a fundamental aspect of our justice system and therefore its
violation does not lead to the prohibitions being unconstitutional.
b. The Canadian charter of rights and Freedom 1982
i. The charter can be used to invalidate offences that parliament has created and be
used to strike down rules of criminal procedure.
Criminal Offence Being Struck Down
R v. HEYWOOD (Eg – criminal offence being struck down – Overbreadth pg-73 Roach)
FACTS - Heywood had been convicted of sexual assault two years before this case. In this case
he was charged under s.179(1)(b) of the Code for loitering around a public park (where children
would be) while having a record of being a sex offender. He was caught once and warned not to
do it, and then caught again and charged. After searching his pictures, they found compromising
images of minors in public. Heywood was convicted at trial, but the conviction was overturned by
the Court of Appeal.
RATIO – the law is overbroad, captured more than it needed to in trying to achieve a certain goal
of public safety for children from sex offenders.
ISSUE – whether s179(1)(b) of the CC infringed as of the charter, and if so, whether those
infringements were justified under s1.
HELD - the section in question clearly violates s.7 of the Charter as it restricts the defendant from
being in many areas such as parks and beaches for the rest of his life. The question then becomes
whether this is saved by s.1. the way section is structed limits the freedom in ways that go beyond
what is necessary or justice. Four main reasons were given:




Geographical limits are too far reaching (including areas without children)
The lifetime ban is unreasonable, and should be subject to review
It limits all sex offenders, when it should only limit those who abused children and;
It puts the prohibition in place without notifying the offender first.
The offence was to sweeping in relation to the objective (particularly in relation to its geographical
ambit), and therefore limits liberty beyond what is necessary for parliament to accomplish its goal.
There is also a discussion of the relationship between vagueness and overbreadth. A crime that is
overly vague is unconstitutional, and one that is overly broad is as well because it does more than
is needed to protect justice. With either definition of "loitering" used, this crime is not overly
vague, however the way that the majority approaches it makes its reach too broad, while this
problem does not exist in the minority's analysis because it only limits those with malicious
intentions involved with their loitering.
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Therefore, appeal is dismissed and held section is unconstitutional.
CANADA (AG) v BEDFORD 2013 SCC 72 (Eg – criminal offence being struck down –
Overbreadth)
Facts - The applicants, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, argued that
Canada's prostitution laws were unconstitutional. The Criminal Code 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 sex workers of their right to security by forcing them
to work secretly. In 2012, the Court of Appeal for Ontario ruled that some, but not all, of these
prohibitions violated the Canadian Charter of Rights and Freedoms and were unconstitutional.
The Supreme Court of Canada ruled in a 9–0 decision on December 20, 2013, 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.[4]
R v. Oakes (example of rule of criminal procedure being struck down and note the operation of
s1 as a limiting provision)
Facts – Oakes challenged s8. Of the narcotics Control Act, which held that if the courts find the
accused in the possession of Narcotics, he is presumed to be I possession for the purpose of
trafficking. Oakes was found having weed and harsh oil. Oakes argued that NCA violates rights to
be presumed innocent under s11(d) of the charter because law places burden on the accused to
prove that he is not in possession for the purpose of trafficking.
Ratio – To test of a section is saved under s1 –


The section must fulfill an objective related to concerns which are pressing and substantial
in a free and democratic society; and
The means chosen must be reasonable and demonstrably justified.
The charter can also be used as an important interpretive tool by allowing courts to use
constitutional values to influence the way statues are interpreted
R v. LABAYE (2005) 3 SCR 728 (Criminal indecency)
FACTS – Jean Paul Labaye of Montreal was charged with operating a “common bawdy-house”,
a violation under section 210(1) of the criminal code, for owning the club, in which persons who
paid membership fees and their guests could assemble and engage in group sex and oral sex and
masturbate. All of these activities were consensual and, while members paid the club membership
fees, the members did not pay each other in exchange for sex. Having been found guilty, Mr.
Labaye was fined $2500
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Ratio – Morality is of no use in determining whether activates are indecent; only objective
standards of decency established in Canadian law. What is indecent under criminal code is that
which is contrary to principles in the constitution or other important laws.
Issue – is the operation of a bawdy - house indecent/ does it cause harm to Canadian society?
Reasons – Acts of group sex at a swinger’s club were not indecent within the meaning of section
197(1) of criminal code of Canada because the acts were relatively private and did not degrade
participants. Therefore, the club was not indecent within the meaning of s 210(1) of the code.
Therefore, to ground responsibility for indecency, the harm must be one which society formally
recognizes as incompatible with its proper functioning.
D. CLASSIFICATION OF OFFENCES
a. 2 General Categories
Indictable Offences
More serious offence
Punishable by upto 6 months of
jail /or upto $2000 fine
Crown elect dual procedure/hybrid
for some offences, crown can
elect whether to proceed by indictment
or summary.
Summary Offences
lowest form of offence
Can be tried in any court
Super summary conviction offence –can be summa
conviction offences, but parliament decreed
punishment can be upto 18 months in jail
i. Offences can be hybrid i.e – prosecutor has the right to elect whether to treat as
indictable or summary.
ii. The classification of offences has important implications for the penalties that are
possible, and for the procedure that will be used, including the mode of trial.
iii. The classification are a bit confusing because there are so many exceptions – all
summary convictions are heard at the court of criminal conviction (lower court).
However, the accused can “elect” whether to have his case heard by the judge in a
superior court or a judge and jury – the CC takes away the right of election for many
offences.
iv. In general, indictable offences are more serious than summary offences – but this is not
always reliable.
v. Indictable offences carry higher maximum sentences.
vi. There is no statute of limitations for indictable offences.
vii. Summary offences are time barred for 6 months
viii. The system is irrationally complex – the law reform commission of Canada has stated
that the current classification id a profound impediment to needed reform of Canadian
criminal procedure.
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E. INTERPRETING CRIMINAL OFFENCES
a. Definitions – found in CC section 2.
b. Strict Construction – Traditionally, the criminal statues were interpreted in favor of the
liberty of the accused, although this principle still continues to apply, it has been heavily
modified by hr purposive interpretation approach.
R.v. PARE (1987)
Ratio: strict construction is used only if the ambiguity still exists after purposive methods of
interpretation. Must first look at the intention of parliament and the acts the law is designed to
cover in determining how to interpret ambiguous language.
FACTS – The accused indecently assaulted a boy, threatened to kill him and. Killed after 2
minutes.
ISSUE: did accused kill the victim “while committing” indecent assault?
HELD – The words “while committing” in section 214(5) do not require the murder and the
underlying offence to take place simultaneously. While the act of causing death and the acts
constituting the indecent assault all form part of one continuous sequence of events forming a
single transaction., the death is caused “while committing” an offence for the purpose of s.214(5).
The offences under s214((5) all involve the illegal domination of people by other people.
Accordingly, it is the continuing illegal domination if the victim which given continuity to the
sequence of events cumulating in the murder and makes it a single transaction. The murder
represents an exploitation of the position of power created by the underlying crime and knits the
two together. The conviction. Of first degree murder should be restored.
c. Purposive interpretation - candiadian law makes liberal use of purposive interpretation.
d. French/English – federal laws like the CC are passed in both English and French; each is
equally authoritative and ambiguities in one language can be clarified in other.
e. The Charter – the charter can have important influence on the way statutory provisions
are interpreted because of the presumption that statutes were intended to be
constitutionally valid.
f. See – Canadian Foundation for Children, Youth and the Law v. Canada.
Facts – ccs 43 excludes from crime reasonable physical correction of children by their
parents and teachers. The CFC and other foundations, seek declarations that this
exemption violated s7 because it fails to give procedural protections to children;
violates s12 because it constitutes cruel and unsual punishment and violated s15.
Issue – constitutionality of provision allowing parents and teachers to use minor
corrective force.
Reasoning –s7 analysis:” section 7nprotects individual from violation of their personal
security. McLachlin found that there was no violation of section. The crown had
conceded that the law adversely affected the child’s security of person, so the issue was
whether the violation offended a principle of fundamental justice. The foundation
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proposes three claims as mentioned above. McLachlan rejected the first claim that it
failed to give procedural protection as children receive all the same protection as
anyone else. On the second claim, she rejects the best interest of the child is a principle
of fundamental justice there is no consensus that it is vital or fundamental to out societal
notion of justice.
Section 12 analysis – section 12 prevents “cruel and unusual punishment”. Citing the
standard of showing cruel and unusual punishment from Rv. Smith as “so excessive as
to outrage standards of decency”. Mclachlin, rejects the claim, as the section only
permits “corrective force that is reasonable” thus cannot be excessive by definition.
S43 – Does not lead to a violation of s 15 of the charter, and the foundation erroneously
equates equal treatment with identical treatment. Do while s43 makes a distinction on
the basis of age, the distinction is not discriminatory. The question may be put as
follows: viewed from the perspective of the reasonable person identified above., does
parliament choice not to criminalize reasonable use of corrective force against children
offend their human dignity and freedom, by marginalizing them or treating them as less
worthy without regard to their actual circumstances?
HELD – the law stands.
II.
CRIMINAL OFFENCES
A. ELEMENTS OF OFFENCE –
Physical elements
(actus rea)
Mental elements
(mens rea)
a. ACTUS REA
i. Acts and Statutory Conditions
The act must be the act of the accused, and must be the kind of the act described in the relevant
provision, and the act must be committed under the circumstances specified in the offence e.g –
an accused cannot be convicted of the offence of break and enter with the intent to commit a
criminal offence pursuant to s348(1)(a) unless he “breaks” and “enters” something that qualifies
as a “place”
R v. J.(D) 2002
The man was charged with breaking and entering a house which he enters while trying to get away
from the police who were following him.
The man knocked on the door of a house in which he knew the owner and had been there before.
There was also no evidence that his entry or presence would be resisted by anyone in the home
thereby resulting in a breach of peace.
The evidence offered by the Crown was incapable in law of proving the offence of forcible entry.
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Forcible entry occurred only where the entry interfered with the peaceable possession of a person
in actual possession of prop[erty. A known person simply walking on the front door, straight
through the residence and out the back door did not have such an intention. Further, JD did not act
in a manner likely to cause a breach of the peace or reasonable apprehension of such breach.
The direct link between the manner in which the possession is taken and the breach or apprehended
breach of the peace found in the language of s 72 (1) is consistent with the purpose underlying the
offence, that being to prevent the breaches of the prevent breaches of the peace which can arise
from confrontations between those seeking to take possession of real property and those in actual
and peaceable possession of that real property. The appellant’s entry into Ms. VB residence was
not accompanied by an force, violence or threat of force and violence.
R v. GUNNING (2005) – see also General overview notes pg 21.
FACTS - Jody Gunning, was hosting a private party in the fraser Lake, BCon May 6, 2000.
Gunning had been drinking when he found a 23 year old Indian man, Chester Charlie, unknown
to Gunning, in the house. Gunning feel asleep and woke up to see Chester reaching though his
nightstand.
Gunning: "Get the fuck out".
Charlie then put his feet up on the bed and dared Gunning to: "Make me".
As the accused approached, the deceased kicked him causing him to stumble back and bang up
against the bedroom door.
"(Gunning) left the bedroom and returned there shortly after with a loaded .12 gauge shotgun.
"The accused again told him to leave. Mr. Charlie stood up, turned to the accused and said, "Fuck
you," and spit at the accused. The accused then caused the shotgun to discharge striking Mr.
Charlie in the side of the neck and killing him instantly."
HELD - At trial, he quoted the Criminal Code and argued that he had used force reasonable under
the circumstances in which he found himself.
He was convicted of second degree murder but the Supreme Court ordered a new trial1 adding:
"There are four elements to the defence raised by Mr. Gunning: he must have been in possession
of the dwelling-house; his possession must have been peaceable; Mr. Charlie must have been a
trespasser; and the force used to eject the trespasser must have been reasonable in all the
circumstances....
"Where the defence arises on the facts, the onus is on the Crown to prove beyond a reasonable
doubt that Mr. Gunning did not act in defence of property.
"The intentional killing of a trespasser could only be justified where the person in possession of
the property is able to make out a case of self-defence."
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R v D· Angelo, [2002]s. 161(1)(a) Code - attending a public park or public swimming area (key issue in dispute) where persons under the
age of fourteen years are present or can reasonably be expected to be present, D'Angelo is a member of the club.
Membership is automatic if requested for persons who either own a condominium or lease a rental
property. D Angelo rents an apartment. He has a valid membership card. The cost of his
membership is included in the rent he pays for his apartment.
Held - 2 reasons
1. there are many secondary and tertiary users of the pool. The secondary users are people from neighboring
communities who purchase club memberships. The tertiary users are non-members who use the pool for various
classes and programs. Importantly, many of the users in all of these categories are children.
2. The societal interest in protecting children from sexual abuse supports Parliament's use of the preventive part of
its criminal law power. I agree with this forceful statement. In my view, it is as applicable to the interpretation of s.
161of the Code as it was to s. 810.1.
b.
Acts must be Voluntary and Willed
i. it must be the willed act of the accused.
ii. Unless a physical motion is willful, it is not fair to call it an act of the accused
person. This is the foundation for the automatism defense.
R v. KING (1962) – Supreme Court refused to convict a person of impaired driving when the
impairment was caused by involuntarily consuming a drug at the dentist’s office. Therefore, there
can no actus reus unless it is the result of a willing mind at liberty to make a definite choice or
decision (Roach 116) this element of actus reus suggests that an accused who acts involuntarily
may not have committed the actus reus of an offence.
c.
Act of possession (s4.3) Roach 136
i. There are a couple of offences in the CC that have “possession” as an element (of
the actus reus), e.g., possession of firearm related offences, possession of property
obtained in a crime (s 354(1)), etc.
ii. “Possession” is defined in s 4(3): A person has something in his “possession”
where:
 He has it in PERSONAL POSSESSION (i.e. manual possession); OR
KNOWINGLY has it in the actual possession or custody of ANOTHER
PERSON (i.e. constructive possession); OR KNOWINGLY has it in any
place, whether or not that place belongs to or is occupied by him, for the
use or benefit of himself or another person (i.e. constructive possession)
 Where ONE OF TWO PERSONS has anything in his custody or possession,
with the KNOWLEDGE AND CONSENT of the rest, it shall be deemed to
be in the custody of ALL OF THEM (i.e. joint possession.
iii. Note that s 2 of the CDSA adopts this definition of possession.
iv. This section creates 3 types of possession: personal possession; constructive
possession and joint possession
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R v York (States the law of manual possession: 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)
FACTS: Two trailers containing furniture shipments were stolen from a yard controlled by PCE
Ltd – shipments total value exceeded 28 000. The appellant received a telephone call from Mr.
Shannon. Mr. Shannon told him that there was "a bunch of stuff" in the warehouse. He asked the
appellant if he had put it there. The appellant replied that he had not. They then drove to the
warehouse where the appellant noted that there was a trailer backed up into one of the bay doors
with no tractor unit hooked to it. When they entered the warehouse, the appellant said he was
surprised to see a lot of furniture and lumber and that he did not know where they came from. He
telephoned Mark Rogers, the manager, and asked him if he knew anything about the goods in the
warehouse. Mr. Rogers told the appellant that he knew about the goods but refused to disclose
where they came from. At that time, the appellant realized that the goods were probably stolen.
He said he did not think through what he was going to do regarding the goods; he simply wanted
to get rid of them. The appellant then borrowed a truck, hooked up the trailer and dropped it off
at a location on Carpenter Street, not far from the warehouse, and he was arrested.
ISSUE: Whether the Trial Judge Erred in Finding That the Evidence Established Beyond a
Reasonable Doubt That the Appellant Possessed the Necessary Mens Rea for the Offence of
Possession of Stolen Property
REASONING:
 The appellant testified. He knew the goods were stolen. He also exercised physical control
over the goods. However, there was no evidence that he had any intention to use in a prohibited
manner (deprive the rightful owner of the stolen goods), which is an essential requirement for
possession in law
 A brief handling of stolen goods with full knowledge of their character solely for the purpose
of getting rid of them does not constitute possession, for example
 This is because conduct may be characterized as criminal only where the Crown proves the
existence of a blameworthy state of mind.
HELD: 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. Appeal allowed
COMMENT: Note how the “act” of possession has a mental element; so sometimes the actus
reus and mens rea are not distinct
R v Terrence (States the law of joint possession re s 4(3)(b) – there must be evidence of
knowledge, consent and control over the subject matter re: the person who does not manually
possess the stolen goods)
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FACTS: Respondent, the passenger in a stolen car, was charged with its possession contrary to
s. 313 of the Criminal . Code. The respondent testified that he didn’t know the car was stolen.
There was no direct evidence to contradict his story.
ISSUE: The important question raised by this appeal relates to the true meaning to be attached to
the word “possession” as the same occurs in the context of s. 3(4)(b) of the Criminal Code and
more particularly whether “possession” as there employed imports control as an essential element
[Now s 4(3)]
REASONING:
 Knowledge and consent under s 4(3) must co-exist with some measure of control over the
subject matter
HELD: SCC agrees w/ Court of Appeal that control is a central element of possession; Appeal
dismissed
R. v. Marshall (1969)– joint possession, (pot in car from Vancouver- Calgary)- no control, right
to control or consent to pot’s presence. Also no aiding and abetting.
FACTS - In February 1968, 16-year-old Daniel Joseph Marshall of Calgary travelled as a
passenger by car with friend to Vancouver for a weekend holiday. On the way back to Calgary,
according to his own testimony, Marshall knew that marijuana was being smoked, saw others
smoking it, and passed the pipe for them to smoke it.
An RCMP officer stopped the car near Golden, British Columbia, for speeding and requested the
boys follow him into Golden. The boys complied, throwing the marijuana out of the window as
they started to follow. The alleged owner of the marijuana was detained in Golden because he did
not have any identification or a driver’s licence with him. The other boys were free to continue
their trip. Although he could have left the car at this point, Marshall remained with the group
because he had no money and had to get back to classes. Retracing their journey, the boys stopped
to retrieve the marijuana. Shortly thereafter, they also picked up a hitchhiker.
Just outside Calgary, the car was pulled over because of a faulty headlight. The police discovered
more than a kilo of marijuana, along with a hookah pipe used for smoking it. With the exception
of the hitchhiker, the boys were arrested and charged with unlawful possession of marijuana for
the purpose of trafficking, contrary to the provisions of s. 4, ss. 2 of the Narcotic Control Act. All
four were found guilty on the basis of s. 3(4)(b) of the Criminal Code, which defines possession.
Section 3(4)(b) states where one or two or more persons, with the knowledge and consent of the
rest, has anything in his custody or possession, it shall be deemed to be in the custody and
possession of each and all of them.
Marshall admitted to knowledge. The trial judge considered Marshall’s actions of remaining in the
car in Golden, when he might have made other arrangements to get back to Calgary from that
point, along with the fact that his passing of the hookah (although he did not use it), constituted
consent. With both knowledge and consent requirements satisfied, the judge found Marshall guilty.
Marshall appealed his conviction to the Supreme Court of Alberta.
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HELD - The Alberta Supreme Court agreed that Marshall had knowledge of the marijuana, but
not that he had consented to it. Indeed, the Court held that Marshall, in choosing to continue his
trip, “did not consent or agree to, nor acquiesce in the presence of the drugs in the car. . . the
consent was only as to riding in the car and not to the marijuana being there.” With regards to
Marshall passing the pipe, the Supreme Court held that, “while it came very close to consent, [it]
was almost a reflex action and did not constitute consent.” The Supreme Court then considered the
question of whether Marshall was guilty of aiding or abetting. They determined that Marshall had
no power to control the persons possessing the marijuana, nor was he the owner of the car.
Therefore, he could not be guilty of aiding or abetting. The appeal was allowed and the conviction
quashed.
R v Pham (States the law in relation to constructive and joint possession: for constructive
possession as set out in s 4(3)(a)(i) and (ii) AND joint possession defined in s 4(3)(b), there must
be both knowledge and control; And provides an example of how the law of possession is
applied)
FACTS: There was no evidence of actual possession in that the appellant was not present in the
apartment when the search was conducted, so that the Crown’s case rested on constructive or joint
possession (within a premise). Drug exchanges were occurring at P’s apartment, and a neighbor
saw and heard P opening door/collecting money. Nguyen became an occupant of the apartment.
On March 3, 2003 at 4:40 p.m. the appellant was seen (by surveillance) to leave her apartment and
did not return prior to the seizure of the drugs on March 5, 2003. Nguyen was the only person
there during the search.
ISSUE: Whether the appellant had knowledge and control of the cocaine found in the black cloth
purse in the bathroom, sufficient to constitute constructive or joint possession as defined in
paragraphs 4(3)(a) and (b) of the Code.
REASONING:
 In order to constitute constructive possession, there must be knowledge, and some measure of
control over the item
 In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be
knowledge, consent, and a measure of control on the part of the person deemed to be in possession.
 Whether someone is in possession of something pursuant to section 4(3) of the Code is a
question of fact to be determined on the evidence based on the inferences to be drawn in each case
The evidence and the trial judge’s findings support the conclusion that she was in constructive
and/or joint possession of the cocaine (the court lists the evidence and findings that exhibit
knowledge and control, e.g.”the black purse containing the drugs and the bag containing the money
were found in full view in the bathroom, a common area of the apartment) . Possession is a Q of
fact based on inferences in each case.
COMMENT: Remember that knowledge can be established by circumstantial evidence (don’t
need direct evidence)
13
R v Swaby (An otherwise criminal act cannot be said to be voluntary unless the person is given
reasonable time to avoid committing the act)FACTS:
The appellant faced two sets of charges. He was charged with possession of an
unregistered restricted weapon, possession of prohibited ammunition, possession of a weapon for
a purpose dangerous to the public peace, being an occupant of a motor vehicle knowing there was
present a restricted weapon for which no occupant held a permit permitting possession, and
possession of a firearm with serial number defaced. The Crown’s case largely rested on the
evidence of Johnson. He testified that the gun belonged to the appellant. Johnson denied any
knowledge of its existence until the two were in the appellant’s car. He swore that as they were
driving, the appellant became alarmed by the attention of the police. The appellant told Johnson
that he had a gun. The appellant stopped the vehicle, handed Johnson the gun, and instructed him
to dispose of it in a backyard.
ISSUE: Did the trial judge err in his answer to jury questions relating to the occupant of motor
vehicle charge?
REASONING
 The trial judge erred in failing to give the jury a more complete answer to the questions it posed.
 To establish guilt on this count, the Crown had to prove the coincidence of the two essential
elements of the offence as defined by s. 91(3), namely occupancy of the vehicle and the
appellant’s knowledge of the weapon.
 It is implicit as well that the Crown had to prove that the coincidence of occupancy and
knowledge was attributable to something amounting to voluntary conduct on the part of the
appellant, as voluntary conduct is a necessary element of criminal liability
 If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely
cannot be the law that criminal liability instantly attaches. There must be some period of time,
however short, afforded to the person who has acquired that knowledge to deal with the situation.
Accordingly, it is my view that if the appellant acquired knowledge of the weapon while the
vehicle was in motion, he would have to be given a reasonable opportunity to either remove
himself or to see that the weapon was removed from the vehicle. If the appellant only acquired
knowledge of the weapon at the point when Johnson was leaving the vehicle, he would be entitled
to an acquittal.
HELD: Conviction must be set aside
R v Morelli (2010)
Facts – A computer technician arrived at the accussed’s house, unannounced, to find him home
alone with his younger doughter. On inspection of the accussed’ computer, the technincian noticed
several links to both adult and child pornography sites in the taskbar’s favorite list. As well, in the
smame room, he noticed home videos and a on a tripod, a webcam that was connected to a
videotape recorder and was pointed at the toys and at the child. when he returned the following
morning, he found that everything had been “cleaned up”. Worried, the technician reported what
he saw to a social worker, who reported this to RCMP. This led to the drafting of an information
to obtain a search warrant (ITO), which led to a warrant being issued pursuant to s 487 of the
Criminal Code, to search the accused’s computer.
14
Pornographic pictures involving children were found on the computer and the accused was charged
with possession of child pornography contrary to s163.1(4) of the CC.
At the trial he unsuccessfully challenged the validity of the search warrant under s8 of the Canadian
Charter of Rights and Freedom. The trial judge convicted the accused and the majority of the court
of appeal upheld the conviction.
ISSUE – the case concerns the right of everyone in Canada, including the appellant to be secure
against unreasonable search and seizure. And it relates, more particularly, to the search and seizure
of personal computers.
DECISION – It was held that the appeal was to be allowed. The accused’s conviction was quashed
and an acquittal was entered.
ANALYSIS - The ITO is limited to allegations of possession of child pornography contrary to
s163.1(4) CC, and does not involve allegations of accessing child pornography pursuant to
s163.1.(4.1) merely viewing in web browser an illegal image stored in a remote location on the
internet does not establish the level of control necessary to find possession. Neither does creating
a favorite or an icon on one’s computer prove anything.
In order to commit the offence of possession, as opposed to the offence of accessing child
pornography, one must knowingly acquire the underlying data files and store them in a place under
one’s control. It is the underlying data file that is the stable object that can be transferred, stored
and possessed. The automatic caching of a file to the hard drive does not, without more, constitute
possession. While the cached file might be in a “place” over which the computer user has control,
in order to establish possession, it must be shown that the file was knowingly stored and retained
through cache.
An ITO seeking the warrant to search for evidence of possession, rather than accessing, must
therefore provide reasonable grounds to believe that the alleged offender possess digital files of an
illegal image, and that evidence of the possession will be found in the place to be searched at the
time the warrant is sought.
Here, the search and seizure of the accused’s computer infringed his rights under S8 of the charter.
Even when corrected and amplified on review, the ITO was insufficient to permit any justice of
the peace, acting reasonably to find the adequate grounds for the search. The ITO did not allege
the distinct and separate offence of accessing child pornography and stripped of its defects and
deficiencies, all that really remained were two internet links seen four months earlier in the
“favorites” menu of a web browser in the computer that was subsequently formatted, deleting both
the links. The prior presence of two “LOLITA” links supports a reasonable inference that the
accused browsed a website that contained explicit images of females under the age of 18, but this
does not suffice to establish possession.
d. Consent as an element of Actus Reus
i. Absence of consent by the victim is an important actus reus condition, and must be
present for offences to occur.
ii. If alleged victim allegedly consented, must also consider whether the consent is
obtained lawfully: s 265(3)
15
R v Ewanchuk- Van rape (Explains law on consent in relation to sexual assault, and gives an
overview of the elements of a sexual assault)
FACTS: Interview in van, E began touching, which progressively became more intimate,
notwithstanding complainant saying “no”. Any compliance by complainant was done out of fear.
Trial judge acquitted accused on grounds of implied consent.
ISSUE: Whether the TJ erred in understanding of consent in sexual assault and whether his
conclusion that the defense of implied consent exists in Canadian law is correct.
REASONING:
A conviction for sexual assault requires proof, beyond a reasonable doubt (“B/R/D”), of two
elements:
 the actus reus (unwanted sexual touching and absence of consent);
 the mens rea (the intention to touch + knowing of, or being reckless of or willfully blind
to, a lack of consent, either by words or actions, from the person being touched)
TWO DISTINCT CONSENT ANALYSES- mens rea of D, actual consent of victim
The Actus Reus:
 The absence of consent is subjective, determined by reference to the complainant’s
subjective internal state of mind towards the touching. The actual state of mind of the
complainant is determinative (purely subjective).
 While complainant’s testimony is the only source of direct evidence as to state of mind,
credibility must be assessed, in light of ALL EVIDENCE.
 No such thing as defense of “implied consent” in sexual assault cases. There are only
two options: the complainant consented or did not consent.
 To be legally effective, consent must be freely given. If the complainant consented, or
there is reasonable doubt about her-non-consent, circumstances might call into
question what factors prompted her apparent consent; see s 265(3), which says that no
consent is obtained where the “complainant submits or does not resist by reason of:
 the application of force to the complainant;
 threats or fear of the application of force to the complainant;
 fraud; or
 exercise of authority
 So, if established B/R/D that the complainant did not consent, the actus reus is
established (assuming there was touching in a sexual manner, and the touching was
voluntary). If reasonable doubt as to consent, or established that complainant activity
participated in sexual activity, must still consider whether complainant consented
because of fear, fraud etc.
Mens Rea:
 The accused might have an honest belief in consent: see s 265(4), which the accused need
not assert. Accused simply has to bring forward some evidence to raise this as a possibility,
and the court have to assess the evidence (and whether this raises a reasonable doubt over
the victim’s state of mind)
16
HELD: Appeal allowed and conviction entered
R v Jobidon – fist fight (Cannot consent to the intentional application of force to cause
hurt or non-serious bodily harm)
FACTS: Accused was charged with manslaughter, through the offence of assault,
following a fist fight. Fighting started inside bar, and the parties agreed it was not over
after they were kicked out. Outside, when victim was facing J, J struck victim with fist,
hitting him hard on head. Victim was knocked to hood of car, and rendered unconscious
by initial punch. J continued forward with the beating, resulting death.
ISSUE: Whether absence of consent is an element which must be proved by the Crown in
all cases of assault, or whether there are common law limitations which restrict or negate
the legal effectiveness of consent in certain cases.
REASONING:
 Although all criminal offences are defined in the Code, that doesn’t mean that the
common law no longer illuminates these definitions, nor gives content to the various
principles of criminal responsibility.
 The fact that s 265(3) sets out factors that vitiate consent does not mean that we cannot
rely on CL to ascertain other ones. C/l limits on consent.
 Where two people engage in a fight by mutual consent, the blows struck by each
constitute an assault on the other, unless there is justifiable self defence (i.e. you cannot
consent to the infliction of bodily injury, or non-trivial bodily harm)
 The policy of the common law will not affect the validity or effectiveness of freely
given consent to participate in rough sporting activities, so long as the intentional
applications of force to which one consents are within the customary norms and rules
of the game
R v Cuerrier- HIV sex (Develops the rules relating to how fraud vitiates consent under
s 265(3))
FACTS: The accused was charged with two counts of aggravated assault pursuant to
s. 268 of the Criminal Code. Even though he had been explicitly instructed, by a public
health nurse, to inform all prospective sexual partners that he was HIV-positive and to use
condoms every time he engaged in sexual intercourse, the accused had unprotected sexual
relations with the two complainants without informing them he was HIV-positive. Both
complainants had consented to unprotected sexual intercourse with the accused, but they
testified at trial that if they had known that he was HIV-positive they would never have
engaged in unprotected intercourse with him. At the time of trial, neither complainant had
tested positive for the virus. The trial judge entered a directed verdict acquitting the
accused. The Court of Appeal upheld the acquittals.
ISSUE: Whether a complainant’s consent to engage in unprotected sexual intercourse is
vitiated by fraud when partner knows they are HIV positive and either fails to disclose or
17
deliberately deceives her about it?
(aggravated assault) be applicable?
If the consent is fraudulently obtained, can s 268
REASONING:
 It is not necessary, when considering whether consent is vitiated under s 265(3) (i.e.
consent vitiated by fraud), to consider whether the fraud relates to the “nature and quality
of the act”; all that is required is a fraud and a causal connection between that fraud and
the submission or failure to resist.
 What is fraud? It involves:
 DISHONESTY (determined objectively, ask whether there is deliberate deceit or
non-disclosure of the HIV disease; note that the dishonest actions must relate to the
obtaining of the consent); and
 DEPRIVATION (namely significant risk of serious bodily harm)
 The greater the risk of deprivation, the higher the duty of disclosure – and since the failure
to disclose HIV-positive status can lead to a devastating illness with fatal consequences,
there exists a positive duty to disclose.
 The nature and extent of the duty to disclose, if any, will always have to be considered in
the context of the particular case.
R. v. J.A. (SC, 2011) - no unconscious consent, also mentions de minius concept- law does
not care for small or trifling things"
FACTS - On May 27, 2007, J.A. and his long-term partner, K.D., began having consensual
sexual activity together. During the sexual activity, K.D. consented for J.A. to choke her as
part of the sexual activity. K.D. lost consciousness for about three minutes, and she understood
this might happen when she consented to being choked.
While K.D. was unconscious, J.A. tied K.D. up and performed additional sexual acts on her.
In her testimony, K.D. was not clear whether she knew or consented to that sexual activity J.A.
performed on her while she was unconscious. After K.D. regained consciousness, she and J.A.
continued having consensual sexual activity.
On July 11, 2007, K.D. made a complaint to the police, saying that the activity was not
consensual, although she later recanted her statement. J.A. was charged with
aggravated assault, sexual assault, attempting to render a person unconscious in order to
sexually assault them, and breaching a probation order.
On appeal, the Court of Appeal for Ontario was unanimous that there was insufficient evidence
to conclude that K.D. did not consent to the sexual activity.
In addition, the majority found that persons can consent to sexual activity to take place after
they are rendered unconscious. The majority also concluded that while the trial judge erred and
that there was, in fact, bodily harm, they ruled that bodily harm cannot vitiate consent on a
charge of only sexual assault.
The dissenting judge found that consent for the purpose of sexual assault required an active
mind during the sexual activity in question.
18
ISSUE – does consent for the purpose of sexual assault require an active mind during the
sexual activity in question?
HELD - The majority reviewed the definition of consent for sexual assaults found in section
273.1 of the Criminal Code,[1] and concluded that: "Parliament viewed consent as the
conscious agreement of the complainant to engage in every sexual act in a particular
encounter." Ultimately, the majority concluded that Parliament intended for a person to have
an active mind during the sexual activity in question.
In coming to their conclusion, the majority noted the following:
1. Consent in advance is not a defense, as a person must be able to withdraw their consent
during the sexual activity in question.
2. The rule only applies to consent in cases of sexual assault.
3. Although this may lead to an odd interpretation, such as one partner kissing the other
partner while they are asleep, the majority found that this was Parliament's intention, and
it cannot be overruled without a constitutional challenge. (See Canadian Charter of Rights
and Freedoms#Interpretation and enforcement.)
As a result, J.A. was guilty of sexual assault.
R v. MABIOR (2012)
FACTS – Accused undergoing therapy and having protected and unprotected sexual relations
knowing he was HIV-positive.
ISSUE – whether the approach outlined in R v. Cuerrier remains valid in determining fraud
vitiates consent to sexual relations – whether non-disclosure of HIV status in circumstances
where no realistic possibility of transmission exists can constitute fraud vitiating consent.
REASONS – here, the four complainants all consented to sexual intercourse with Mr. M and
testified that they would not have sex with him had they known he was HIV positive. M had
intercourse by vaginal penetration with the four complainants, during which he ejaculated. At
the time of intercourse with the complainant’s S.H., D.C.S and D.H.M and a low viral load
but did not use a condom. Consequently, those convictions should be maintained. As regards,
K.G. the record shows that M’s viral load was low. When combined with condom protection,
this did not expose K.G. to a significant risk of serious bodily harm. This conviction must
accordingly be reversed.
The court held that consent would be vitiated where failure to disclose would cause a
significant risk of harm and where the complainant would not have consented had she or he
been informed. The court interpreted the significant risk of harm standard as applying to a
realistic possibility of harm.
19
R v. DS (2004) - Ontario court of Appeal heal that there was no consent or voluntary
agreement when a man threatened to distribute nude photographs of his ex-girlfriend if she
have sex with him.
e. Causation
i.
ii.
iii.
iv.
Where the relevant offence prescribes a “consequence” that must occur before the
offence is complete, the Crown prosecutor must prove that the accused caused
that consequence beyond a reasonable doubt.
So where an offence requires a specific consequence, causation becomes an element
of the offence.
The offences which prescribe a consequence include:
 criminal negligence causing bodily harm (s. 221),
 criminal negligence causing death (s. 220),
 dangerous operation causing bodily harm (s. 249(3),
 dangerous operation causing death (s. 249(4)),
 impaired driving causing bodily harm (s. 255(2)),
 impaired driving causing death (s. 255(3)),
 assault causing bodily harm (s. 267(b)),
 aggravated assault (s. 268),
 sexual assault causing bodily harm (s. 272(1)(c),
 aggravated sexual assault (s. 273(1)), mischief causing danger to life (s.430.2)
 Arson causing bodily harm (s. 433(b)).
The law on causation, in overview form, is this:
 Causation involves an analysis into both factual causation (i.e. the medial cause
of death) and legal causation (i.e. whether the accused should be held
responsible in law) (Menezes):
a. Factual causation:
 As there can be more than one cause of death, the causation test is
not restricted to a search for the most proximate, the primary, or the
only cause of death (Menezes).
 Regardless of whether the accused’s conduct is the sole cause, ask
was it a material cause? The test is this: “was the conduct of the
accused a significant contribute cause of the prohibited
consequence?”
 If the act of the accused is too remote to have caused the result
alleged, causation is not established.
 If the triggering of a chain of events is interrupted by an intervening
cause, it can serve to distance and exonerate the accused (R v Nette).
But an intervening act terminating the causal chain of events may be
the withdrawal or abandonment by the accused of involvement in
the dangerous enterprise. The abandonment of conduct requires a
positive communication of notice. The sufficiency of the notice
20
is determined by the nature of the offense and the degree of the
accused’s participation.
 Factual causation is typically resolved by the ‘but for’ test.
b. Legal causation:
 Moral blameworthiness. Concerns if accused should be held criminally
responsible in law for that death – a moral reaction, value-judgment –
whether, in the circumstances, a“blamable” cause ought to be identified (R
v Nette).
 Causation expresses an element of fault. That, together with the requisite
mental element, is in law sufficient to base criminal responsibility.
v. In the context of homicide, too, the accused’s conduct must be a “significant
contributing cause” of the prohibited act (Nette).
vi. Contributory negligence does not negate causation/criminal responsibility
(Menezes)
vii. Improper medical treatment does not usually break the chain of causation: s 225
Code.
viii. Note: accused must take victim as you find them (i.e. the thin skull rule) (Menezes)
R v Williams (Where Crown cannot prove that the prohibited consequence occurred, the
accused cannot be convicted)
FACTS: W was HIV positive, and engaged in consensual sex with the complainant, who later
contracted HIV. W kept the complainant in the dark about his disease, despite having unprotected
sex with her.
ISSUE: Whether an accused who fails to disclose that he has HIV to a complainant who, at the
time of the alleged assault, could herself have been infected with HIV, can be convicted of
aggravated assault. The issue is not with mens rea, the issue is whether the Crown has been able
to prove all elements of the actus reus.
REASONING:
 Aggravated assault is an offence based on proof of certain consequence.
 The Crown must establish all of the elements of an assault, plus the aggravating
circumstance (in this case, “endangers the life of the complainant”)
 Section 268(1) is only one of a number of Criminal Code provisions that “call for a more
serious charge if certain consequences follow.
 The Crown was unable to prove the endangerment of life, and therefore unable to prove
every element of the actus reus.
HELD: W acquitted on charge of aggravated assault
R v MENEZES (Causation is a two stage analysis, requiring “factual causation” and “legal
causation”)
21
FACTS: Two dudes racing, one dies. Defense says that the accused withdrew from the race at a
material time before the accident, and this created a break in the causal linkage to the victim’s
death. Dude pleads not g uilty to criminal negligence causing death.
ISSUE: Whether a person who survived a street race in which the second participating party lost
his life can be held criminally liable for that death solely based on his co-participating in the race.
REASONING:
Criminal negligence death (not criminally negligent manslaughter-, culpable homicide/murder
under 229c)
 Criminal negligence amounts to a wanton and reckless disregard for the lives and safety of
others: Criminal Code, s.219(1).
 This is a marked and substantial departure in all of the circumstances from the standard of
care of a reasonable person.
 In the context of a dangerously negligent act, the mens rea for the offence charged is
objective foreseeability of the risk of bodily harm which is neither trivial nor transitory.
 As is the case with crimes of subjective mens rea, the mens rea for objective foresight of
risking harm is normally interred from the facts
Dangerous driving
 The crime of dangerous driving, on the other hand, is established where the prosecution
proves a marked departure from the standard of conduct of a reasonably prudent driver in
all the circumstances: Criminal Code, s.249(1)(a). The basis of liability for dangerous
driving is negligence. The question to be asked is not what the accused objectively intended
but rather whether, viewed objectively, the accused exercised the appropriate standard of
care.
Hazard of Racing
 A death caused as a result of a driver’s involvement in a race on a public street can amount
to criminal negligence causing death.
 Racing on a public roadway resulting in the death of a passenger in one of the participating
motor vehicles can also reasonably be found to constitute dangerous driving.
 Where the victim is the occupant of a third vehicle, dangerous driving may again be the
appropriate result.
Causation
 A determination of causation requires a finding that the accused caused the death of another
both in fact and in law.
 FACTUAL causation is concerned with an inquiry as to 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. In other words, were the actions of the accused beyond negligible?
Where there are multiple operative, independent, and significant contributing causes,
competing causes need not be sorted out by the trier of fact in an effort to identify a
predominant cause. Regardless of whether the accused’s conduct is the sole cause, was it
a material cause?
 TEST: Was the conduct of the accused a significant contributing cause of the
prohibited consequence? “If the act of the accused is too remote to have caused
the result alleged, causation is not established.” Look at facts of case.
22

LEGAL/IMPUTABLE causation inquiry concerns whether the accused should be held
criminally responsible in law for that death – a moral reaction, a value-judgment – whether,
in the circumstances, a “blamable” cause ought to be identified (R v Nette). Causation
expresses an element of fault. That, together with the requisite mental element, is in law
sufficient to base criminal responsibility.
 In examining the traceable origin of the chain of events causing death, may become an
issue. If the act of the accused is too remote to have caused the result alleged, causation is
not established. If the accused’s actions are fairly viewed as only part of the history of the
setting in which the prohibited result unfolded, without more, causation is not proven: R.
v. Cribbi.
 If the triggering of a chain of events is interrupted by an intervening cause, it can serve to
distance and exonerate the accused (R v Nette). An intervening act terminating the causal
chain of events may be the withdrawal or abandonment by the accused of involvement in
the dangerous enterprise.
The abandonment of conduct requires a positive
communication of notice. The sufficiency of the notice is determined by the nature of
the offense and the degree of the accused’s participation.
Application
 X can be directly responsible for the death of Z, if X and Y were racing, and Y kills Z as a
natural result of the racing/criminal negligent driving. Each driver bears equal
responsibility for its continued lifespan subject to withdrawal or intervening event. As
each driver in effect induces the other to drive in an unlawfully unsafe manner, each is
taken to assume any consequential risk objectively within the ambit of the danger created.
This surely includes a risk of bodily harm or death to a co-principal arising out of
miscalculation or other judgment error by that individual in the course of, and related to,
pursuing the jointly maintained, and unlawfully conducted, dangerous activity. (See R. v.
JSR – TO downtown shootout.)
 M was not criminally negligent, but was dangerous driving (judge cites the testimony to
show why), but his dangerous operation of the motor vehicle did NOT cause the death of
the victim, who chose to maintain excessive speed after the accused slowed down. In these
circumstances, if the accused slowed his speed to the range of 60% of that of the deceased
nearly half a mile from the point of control loss, there must be a reasonable doubt, although
nothing more, that his withdrawal from the race amounted to a sufficiently dramatic lack
of commitment to keeping pace for it to be known to Jacob Meuszynski
HELD: Guilty only of dangerous driving
R v NETTE (Leading decision on the standard for causation in criminal offences, including all
homicide cases)
FACTS: 95 year old lady robbed, tied up with wire on neck, and died. Accused charged w/ 1st
degree murder (murder while committing the offence of unlawful confinement under s 231(5)),
and 2nd degree murder. Guilty second degree.
ISSUE: Determination of the threshold test of causation that must be met before an accused may
be held legally responsible for causing a victim’s death in a charge of second degree murder.
23
REASONING:
 There must be factual and legal causation.
 Factual causation is concerned with an inquiry about how the victim came to his
or her death.
 Legal causation (which is referred to as imputable causation) is concerned with
the question of whether the accused should be held responsible in law (i.e. the
inquiry is directed at the question of whether the accused person should be held
criminally responsible for the consequences 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.
 There is only one standard of causation for homicide offences, including second
degree murder. That standard may be expressed using different terminology, but it
remains the standard expressed by this Court in the case of Smithers, supra (i.e. “more than
a trivial cause”; “significant contribution or cause”). C says ok to use different words for
different degrees.
 Causation is usually not in issue in 1st and 2nd degree murder cases, but generally is in
manslaughter cases
COMMENT: Also, this case deals with the higher standard of responsibility of imputable case
(i.e. moral blameworthiness) that is required to secure a first degree murder conviction, and
illustrates the thin skull rule (take the victim as you find him- cites Smithers).
Rv. SMITHERS (legal causation principe of the “thin skull”) (pg 122 Roach)
FACTS: During rough hockey game, appellant was subjected to racial insults by the deceased and
both were ejected from the game. Outside, appellant caught up with the deceased and managed to
kick him in the abdomen. Death resulted shortly after that. The medical evidence of the epiglottis
was probably caused by the kick but could have resulted from fear. Appellant testified he had acted
in self-defense but was convicted of manslaughter.
DECISION- Degree of contribution to cause death need only pass a de Minimis test. The assault
by the appellant on the deceased was clearly an unlawful act and there was cogent evidence to
which the jury could apply common sense in considering the issue of causality.
The kick caused immediate distress and that the death followed in minutes. Thee was therefore
evidence before the jury was entitled to convict.
There was substantial evidence before the jury indicating that the kick was at least a contributing
cause of death, outside the de Minimis range, and that was all that the crown was required to
establish.
It was material that the death was in part caused by a malfunctioning epiglottis to the malfunction
of which appellant may, or may not have contributed.
24
Where the fact that Cobby was susceptible to failure of the epiglottis should not absolve Smithers
from liability. Consequently, since the kick may have killed Cobby, its contribution to his death
was more than trivial and so Smithers is criminally liable.
ANALYSIS  A person commits homicide when directly or indirectly, by any means, he causes the death
of a human being and it was therefore no defense that appellant did not expect that death
would ensue.

Crown need only show the amount contributed to cause the death be more than trivial – a
contributing cause that is not insignificant.

Finally, there could be no self-defense if for some considerable time before the incident
appellant alone was the aggressor.

Affirmed the application of the thin skull doctrine in homicide, take your victims as they
come.

Liable for all consequences resulting from his or her tortious (usually negligent) activities
leading to an injury to another person, even if the victim suffers an un-usually high level
of damage (e.g. due to pre-existing vulnerability or medical condition) takes into account
the physical, social and economic attributes of the plaintiff which might make him more
susceptible to injury.
R v MAYBIN (2012) (whether intervening events have broken the relevant chain of causation)
FACTS – T and M, repeatedly punched the victim in the face and heard a bar. T eventually struck
a blow that rendered the victim unconscious. Bar bouncer struck the victim in the head. Medical
evidence inconclusive about which blows caused the death. As a result, the trial judge acquitted
the accused brothers and the bouncer. CA was unanimous that the accused’s assaults were factually
a contributing cause of death – “but for” their actions, the victim would not gave died.
DECISION – it was open to the trial judge to find that the appellants caused the death.
The Maybin brother’s assault was either the direct medical cause of death or it rendered the victim
vulnerable to the brother’s assault.
Trier of the fact could find that it was reasonably foreseeable to the appellants that their assault on
the victim, which occurred in a crowded bar, late at night, would provoke the intervention of others.
Perhaps the bars staff, with resulting non-trivial harm.
It was open to trial judge to find that the bouncer’s act was closely connected in time, place,
circumstances, nature and effect with the accused’s acts and the effects of the accused’s actions
were still subsisting and not spent at the time the bouncer acted.
25
General risk of intervening acts and the accompanying risk of harm were reasonably foreseeable
and that the act was in direct response to the accused’s unlawful actions.
The judge could have concluded that the bouncer’s assault did not necessarily constitute an
intervening act that severed the link between the accused’s conduct and the victim’s death, such
that it would absolve them of moral and legal responsibility.
The trial judge could have found that the accused’s actions remained a significant contributing
cause of death.
ANALYSIS –
Factual causation:
Even if the appellant’s actions were not the direct and immediate cause of victim’s death, “but for”
their actions, the victim would not have died.
Smithers and Nette: factual causation is not limited to the direct and immediate cause, not is it
limited to the most significant cause.
Legal causation:
Any assessment of legal causation should maintain focus on whether the accused should be held
legally responsible for the death would amount to punishing a moral innocent.
The dangerous and unlawful acts of the accused must be a significant contributing cause od th
victim’s death.
Smithers’ test for causation is manslaughter as a “contributing cause of death, outside the de
minimis range.
f.
Omissions / Duties (PG 128-130 ROACH)
i. Section 215 of CC - provides that a parent, spouse, or guardian has a legal duty to
provide necessaries of life for his or her child under sixteen years of age, spouse or
common law partner or dependent charge, and makes it an offence to fail to do so
without lawful excuse.
ii. If a person commits this offence, or is criminally negligent in omitting to perform
another duty imposed by law, he or she can be convicted of manslaughter by means
of an unlawful act, or criminal negligence.
iii. This duty could apply to a person who agreed to be a lifeguard, but who did not
make reasonable efforts to save a drowning person. On the other hand the person
who had not agreed to be a lifeguard would be under no such duty. He or she could
walk away from a drowning person. The Ontario court of Appeals has stressed that
only binding and intentional commitments will suffice to expose an accused to
criminal liability for filing to act. A mere expression of words will not be enough
to create a duty under section 217. (Rv. BBROWNE)
iv. Some offences don’t require a positive act by the accused, but rather can be
committed by showing that the accused failed to act, or omitted to act.
v. To be guilty of omission:
26
 The offence must contemplate guilt for omissions (based on statutory
interpretation).
 The accused must be placed under a legal duty to act either by the provision
charging him or
 By some incorporated provision (see ss 215-217)
 The omission in question must be a failure to fulfil that legal duty
R V MOORE
FACTS: Dude runs red with bike, stopped by officer, refuses to give name and address, and
charged with unlawfully and willfully obstructing a peace officer in the execution of his duty.
RULE: Omission to act in a particular way will give rise to criminal liability only where a duty
to act arises at common law or is imposed by statute. The statute prohibited running light- applied
to bikes.
R v Peterson
FACTS: Dennis Peterson was convicted of failing to provide the necessaries of life to his father,
Arnold Peterson, thereby endangering Arnold’s life (s 215). D lived with father A (84 yrs old) in
messed up house. A wasn’t being looked after properly (food, clothes, housing); he fell sick many
times etc.
REASONING:
Elements of s 215(1)(c) and s 215(2) (i.e. the relevant sections of the charge) also see pg 34 of
GR notes.
 s 215(1)(c): A duty to provide the necessaries of life arises when: “one person is under the
other’s charge, is unable to withdraw from that charge, and is unable to provide himself or
herself with necessaries of life.
 The phrase “necessaries of life” includes not only food, shelter, care, and medical attention
necessary to sustain life but also appears to include protection of the person from harm.
 s 215(2): 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, without lawful
excuse.
 For sub (2), the personal characteristics of the accused, falling short of capacity to
appreciate the risk, are not a relevant consideration. The objective basis of liability
includes an assessment of whether the person in charge could have acted other than as he
or she did.
 The words “without lawful excuse” in s. 215(2) provide a defense and serve to prevent the
punishment of the morally innocent. The obligation to provide necessaries is not absolute
and may be excused, for example, where there is financial inability.
27
The Meaning of “Under his charge”
 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 not only by their past course of
dealing in which the parent supported the child but also by their relationship to one another
in which an element of trust will usually be present
 Second, the word “charge” is not unknown to the criminal law in other contexts involving
adults. In the impaired driving context, the court characterized having “care, charge or
control” of a vehicle as requiring “a kind of domination as in the master-servant
relationship and as in the parent-child or teacher-beginner relationship”
 Used in these contexts the word “charge” connotes, among other things, the duty or
responsibility of taking care of a person or thing
 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.
 The evidence to the TJ indicated that the appellant was in charge of his father, and that the
father was unable to withdraw from his son’s charge
HELD: Appeal dismissed; TJ findings stand.
R V BROWNE
FACTS: The appellant, Dexter Browne, was charged with criminal negligence causing the death
of Audrey Greiner by failing "to render assistance to [her] by failing to take her immediately to
the hospital after undertaking to render such assistance. A and B (drug dealers) were friends. A
swallowed a plastic bag containing crack cocaine to avoid its detection by police after being
stopped. A began shaking and sweating in B’s room. B made a statement (at 2 am) which the TJ
found to be an “undertaking” pursuant to s 217 (he said he was “going to take A to the hospital”).
A arrived at 3:10 am dead at hospital by taxi. The TJ held that using a taxi instead of 911 constituted
a “wanton and reckless disregard” for A’s life, contrary to s 219 (criminal negligence)
ISSUE: Whether the trial judge (TJ) erred in concluding that the appellant had caused Audrey
Greiner's death by breaching a legal duty arising from an "undertaking" within the meaning of s.
217 of the Criminal Code to take her to the hospital. Only if the appellant can be found to have
given an undertaking giving rise to a legal duty under s. 217 can he be found criminally negligent
for "omitting to do anything that it is his duty to do" within the meaning of s. 219 of the Code.
REASONING:
 Given serious penal consequences of being convicted of causing death by criminal
negligence, the relevant “undertaking” must have been made with binding intent
 The evidence doesn’t disclose any undertaking of a binding nature; the words “i’ll take you
to a hospital” hardly constitute an undertaking creating a legal duty under s 217.
28





To find a legal duty, there must be a finding of an undertaking
Only if there was an undertaking in the nature of the relationship.
Section 217 of the Code, provides that every one who undertakes to do an act is under a
legal duty to do it if an omission to do an act is or may be dangerous to life.
Under section 217, there is no –pre existing relationship or situation that creates a duty
reflected a wanton or reckless disregard, under s.219(1) of the code, not to whether there
was an undertaking under s217.
The mere expression of words indicating a willingness to do an act cannot trigger the legal
duty. Nothing short of a binding commitment can give rise to the legal duty contemplated
by s217.
SUBJECTIVE MENS REA – intention
i.
ii.
iii.
iv.
v.
vi.
Subjective mens rea is normally gleaned circumstantially, including by using the common
sense inference that persons usually intend the natural consequences of their acts (e.g.
Daviault)
Subjective mens rea focuses on the actual state of mind of the accused – a court is likely to
assume that the accused knew of the elements of the offense unless, “defense of mistake of
fact”, is made out.
Most of the offences require more than mental state to exist. For instance; to be guilty of
murder, the accused must know that the living being she is killing is a human being and
intend to cause death to that human being. A sexual assailant must intend to touch the
complaint and be aware or willfully blind that is not consenting.
Use the mens rea provided for in the relevant provision, as construed according to relevant
criminal law principles.
If an offence specifies the relevant state of mind, then only that state of mind will suffice
(e.g. “assault” requires intentional touching, and not simply reckless touching.)
If a true crime is silent as to the mental state and the offence requires a consequence, it is
implied that “intention” or “recklessness” in bringing about the consequence will suffice In what follows, the most common mental states are illustrated and identified
a) Intention, and Ulterior Mens Rea
1. The accused must have the very intention required by the relevant provision.
R v VANDERGRAFF – peanut butter/hockey rink. (V intended to throw the object, but not make
contact with the victim, and therefore the “assault” was not intended. The assault provision, s 265,
requires the intentional application of force to the person.)
Vandergraff intended to throw the object, but not to make the contact with the victim. His “assault”
was not intended and he was not guilty. He could have been charged with criminal negligence
causing injury, but the wrong charge was laid.
RATIO – Mens Rea for assault with a weapon must be that of the underlying offence of assault
which requires force to be intentionally applied to another person.
29
FACTS – Charged with the offence of assault with a weapon (a jar of peanut butter). The TJ held
that it was the accused’s jar that struck the complainant, however, the defendant did not intend to
hit anybody. He concluded, “there was the intention to apply force in general sense, and it
happened to be particularly against the complainant.”
ISSUE: What is the intention required for assault with a weapon?
JUDGEMENT – the conviction cannot stand. Without proof of an intention to apply force to the
complainant or to another person. The offence is an assault, and the intent that must be established
is the intention to apply force, directly or indirectly, to another person.
DECISION – conviction set aside and acquittal granted.
R v. MURRAY (2000) (SEE GR notes pg38 for analysis)
SUMMARY - (M intended to hold the Bernardo tapes, but not for the purpose of willfully
attempting to obstruct justice (s 139(2)), and therefore he could not be found guilty. “Willfully”
constitutes the mens rea - is the act is done for the purpose of obstructing the course of justice.
This is a “specific intent” offence and the onus is on the Crown to prove that Murray, when he
secreted the tapes, intended to obstruct the course of justice)
FACTS – charge of obstructing justice as a result of the applicant taking possession of and
retaining in his possession, for a period of approximately 17 months, the videotapes which showed
sexual assaults on 3 women. The crown called as witness 2 members of Mr. Bernado’s defense
team to obtain from them evidence which, on the face of it, was protected by solicitor –client
privilege. Consequently, the preliminary inquiry began on September 12, 1997 and ended on nov,
5, 1999, a period of approx. 26 months.
ISSUE - what was Murray’s purpose in concealing tapes? (i.e. to obstruct justice or advance
Bernardo’s defense? Was it unethical to handle physical evidence without confronting the police)?
HELD - there was a reasonable doubt as to whether Murray was acting with the intention of
obstructing justice; he was acquitted because may well have believed under circumstances that he
had no legal duty to disclose tapes until resolution discussions for trial.
REASON –
 videotapes are NOT communication between client and solicitor, and as such, don’t
constitute privilege; instead, they are evidence of crime because they pre-existed the clientsolicitor relationship.
 thus, while Murray’s discussions with Bernardo about the tapes are covered by privilege,
the physical objects, the tapes, are not, and hiding them from police on behalf of his client
cannot be said to be part of client-solicitor communication.
 maintaining confidentiality in the scheme of client-solicitor privilege is not permissible
because evidence may have had some exculpatory value; still must turn over any
30
incriminating physical evidence to the prosecutor if it improperly comes into your
possession as lawyer (however, there is no positive obligation to assist the Crown)
RATIO:
 if you come into the possession of physical evidence as a lawyer, you must turn it over.
 physical evidence is not protected by client-solicitor privilege (as per Sowers v Olwell [US
1964])
 Willfully attempts interpreted by the court as the specific intention to obstruct justice,
which was not intention of D. therefore, the mens rea was not found.
 For actus rea of s139, we use “Tendency Test”. Would his actions have had the tendency
to obstruct justice? The element of the offence was found.
 For mens rea, we have a specific intent offense. A specific intent is a more precise form of
intent that is usually linked to a purpose. It is the intention to do an act for a purpose, not
just the intent to do an act. The offence says that he must have intended a specific out come
. this was not found.
R v. ROKS (2011)
FACTS – Tan, involved arson, fraud and use of the proceeds of crime. The scheme was to burn
down a building after removing valuables. Submit a claim to recover the proceeds of a policy of
fire insurance, and use the proceeds of the insurance claim to pay those involved in the plan and
its execution, and to finance a new building on the same site. The plan failed as the arsonists were
too generous in their distribution of the accelerant, gasoline, inside the building. The volatile
mixture exploded. One arsonist, died. Another was severely injured. Appeal from convictions of
conspiracy to commit arson and second degree murder.
HELD - Watt J.A.:
 The conviction of murder is unreasonable and substitute for it a conviction of
manslaughter. Trial judge’s finding that the appellant committed murder was
unreasonable and cannot be supported on a consideration of the evidence as a whole.
 He knew that the fire was to be set at night when people were not around. He knew that
someone with “fire suppression” training would set the fire. It is in this context that we
must consider the reasonableness of the conclusion that the fault element in s. 229(c)
was proven with the necessary certainty.
 Under these circumstances, the likelihood of harm or death was clearly foreseeable.
Whether the person harmed would be the one to set the fire, a resident of an adjacent
building, or a firefighter called to the scene, is irrelevant for the purposes of s. 229(c).
 I am therefore satisfied beyond a reasonable doubt that the mens rea requirements of s.
229(c) are met in this case: Roks knowingly conspired and assisted in the unlawful object
31
of arson for the purpose of insurance fraud; I am also satisfied that he possessed subjective
knowledge that harm or death was a likely outcome of the fire.
 The principal complaint in this case has to do with the essential characteristics of
confirmatory evidence and the capacity of the testimony of one witness, whose
evidence is subject to a Vetrovec caution, to confirm the testimony of another witness,
whose evidence is subject to the same caution.
 The extrinsic misconduct in this case disclosed the appellant’s involvement in other
fraudulent schemes. The schemes were contemporaneous with the scheme to burn down
Woodbine and collect the proceeds of the fire insurance policy on the building and its
contents.
 No evidence as a whole to ground the conclusion that the appellant knew that the death of
a human being would likely occur from setting the fire at Woodbine.
ANALYSIS:
 Witness testimony is subject to a Vetrovec caution, where each was a participant in the
crime.
 In determining the veracity of the suspect evidence, jurors should look for evidence
from another source (indepedence requirement) tending to show that the
untrustworthy witness is telling the truth about the guilt of the accused (the
implicative quality or materiality requirement): Vetrovec, [1982] 1 S.C.R. at p. 829.
o Independence requirement insists that to be confirmatory, evidence must not
be “tainted” by connection to the Vetrovec witness: Khela, at para. 39.
o To satisfy the materiality requirement, confirmatory evidence gives comfort to
the trier of fact that the Vetrovec witness can be trusted in his or her assertion
that the accused is the person who committed the offence: Vetrovec, at p. 833.
 A trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence
of confirmatory evidence where satisfied that the witness is telling the truth: Khela, at
para. 37;
 There is a bar against mutual corroboration by those who were participes criminis
Evidence of Extrinsic Discreditable Conduct
 As a general rule, evidence of the general disposition of an accused is not admissible.
No crime to be of bad character. The guilt of an accused is to be proven, if at all, by
evidence of what the accused did, not by evidence of the kind of person the accused
is: Handy, para. 72.
 Do not exclude evidence that is relevant just because it tends to show an accused is of
bad disposition, but only if it shows nothing more: Handy, para. 71.
32
 The probative value of the evidence must dominate over its prejudicial effect –
balacing approach (deference to trial jugdge decision by appelant court).
The Unreasonableness of the Conviction of Murder
 Crown must prove three elements to prove guilt of this offence beyond a reasonable
doubt:
o that action was taken for an unlawful object;
o there was subjective foresight of death (see the discussion of R. v. Martineau
(1990);
o that death is thereby caused.
 Essential elements of murder, s. 229(c): Shand paras 141-146
o An unlawful object (distince from dangerous act):
 Conduct which, if prosecuted fully, would amount to a serious crime,
that is, an indictable offence requiring mens rea.
 Something the accused knows is likely to cause the victim’s death and
be reckless whether the victim lives or dies.
o A dangerous act (anything likely to cause death and thereby causes death)
 Something done in furtherance of the unlawful object.
 Discrete act or a series of closely related acts that results in the death
of a human being. General course of conduct, only loosely connected to
the killing, does not satisfy the dangerous act requirement in s. 229(c)
 The mental or fault element = foresight or knowledge.
o Knowledge or foresight (“that he knows is likely to cause death”).
 Actual or subjective knowledge of the person charged, not the objective
or constructive knowledge of a reasonable person in the same
circumstances
 Knowledge of a specific consequence: death of a human being
 Knowledge of the prospect of the consequence: the likelihood of.
o Focus on the accused’s knowledge coexistent with the dangerous act.
 The fact that someone died as a result of the accused’s dangerous act
does not mean that the accused knew that the dangerous act was likely
to kill someone.
 Do not engage in retrospective reasoning.
o The inference extends only to the natural and probable consequences of the
conduct, not to every possible, conceivable or remote consequence
33
b)
Knowledge (roach 211-213)
1. The accused must generally know that the conditions of the actus reus exist. E.g., an
accused cannot be convicted of assaulting a police officer, if she does not know the
victim is a police officer.
2. Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we
presume the accused knows of the relevant conditions, UNLESS the accused presents a
“mistake of fact” defense.
3. In Beaver – SC held that a person in physical possession of a substance could not be
said to possess the substance unless he or she knew the nature of such substance.
R v EWANCHUK- Van rape- knowledge/recklessness of consent.
FACTS – 17 yrs old complainant was the victim of sexual touching and said no four times. After
each time, he stopped. The TJ found her to be credible. Accused argued that there was an implied
consent because she went along with him, portrayed calm and didn’t leave the trailer.
ISSUE – whether the TJ erred in understanding of consent in sexual assault and whether his
conclusion that the defense of implied consent exist was correct?
HELD –
 a conviction for sexual assault req’s proof beyond a reasonable doubt of two basic elements
 The accused committed the actus reas – unwanted touching
 The mens rea is the intention to touch, knowing of, or being reckless of, or wilfully blind
to, a lack of consent.
 The absence of consent, however, is purely subjective and determined by reference to the
complainant’s subjective internal state of mind towards the touching, at the time it
occurred.
 It is open to the accused to claim that the complainant’s words and actions, before and
during the incident, raise a reasonable doubt against her assertion that she, in her mind, did
not want the sexual touching to take place. If, however, the TJ believes the complainant
that she did not consent, the Crown has discharged its obligation to prove the absence of
consent.
 The accused’s perception of the complainant’s state of mind is not relevant and only
becomes so when a defence of honest but mistaken belief in consent is raised in the mens
rea stage of the inquiry.
 No defence of implied consent to sexual assault exists in Canadian law
 There is a difference in the concept of “consent” as it relates to the state of mind of the
complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in
respect of the mens rea. For the purposes of the actus reus “consent” means that the
complainant in her mind wanted the sexual touching to take place. In the context of mens
rea – specifically for the purposes of the honest but mistaken belief in consent – “consent”
means that the complainant had affirmatively communicated by words or conduct her
agreement to engage in sexual activity with the accused. The two parts of the analysis must
be kept separate.
34



The accused’s putting consent into issue is synonymous with an assertion of an honest
belief in consent. If his belief is found to be mistaken, then honesty of that belief must be
considered
Moreover, to be honest the accused’s belief cannot be reckless, willfully blind or tainted
by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2
If at any point the complainant has expressed a lack of agreement to engage in sexual
activity, then it is incumbent upon the accused to point to some evidence from which he
could honestly believe consent to have been re-established before he resumed his
advances. If this evidence raises a reasonable doubt as to the accused’s mens rea, the
charge is not proven
ANALYSIS –
 Conviction for sexual assault requires proof beyond reasonable doubt of two basic
elements, that the accused committed the actus reus and that he had the
necessary mens rea.
(1) Actus Reus
 First consider if the complainant has asserted that she did not consent, the question is then
one of credibility = take into account the totality of the evidence, including any ambiguous
or contradictory conduct by the complainant. If the trier of fact is satisfied beyond a
reasonable doubt that the complainant did not in fact consent, the actus reus of sexual
assault is established and the inquiry must shift to the accused’s state of mind.
 Actus reus of sexual assault is established by the proof of three elements:
o (i) Voluntary touching (any intentional but unwanted touching is criminal)
o (ii) the sexual nature of the contact, and
o (iii) the absence of consent – (i) & (ii) are objective.

The absence of consent is subjective and determined by reference to the complainant’s
subjective internal state of mind towards the touching, at the time occurred.
(2) Mens Rea
 Sexual assault is a crime of general intent = Crown need only prove that the accused
intended to touch the complainant in order to satisfy the basic mens rea requirement.
o Intention to touch and knowing of, or being reckless of or wilfully blind to, a
lack of consent on the part of the person touched. See Park, supra, at para. 39.
 The defence of mistake is simply a denial of mens rea.
 Park, supra, at para. 39, L’Heureux-Dubé J.: the mens rea of sexual assault is also satisfied
when it is shown that the accused knew that the complainant was essentially not
saying “yes”.
R v LEVIGNE (SC, 2010)- This case is about presumed knowledge. Luring a child online,
statutory presumption of knowledge, 172.1(3).
FACTS – Accused communicated by computer with the police officer posing a 13 yrs old boy.
Communication indicated accused’s desire to engage in explicit sexual activity. Boy insisted he
was 13 notwithstanding profile staging his age to be 18. Accused took no steps to ascertain
35
interlocutor’s real age. Arrangements were made to meet the anticipated sexual encounter.
Accused was arrested and charged with luring the child. Accused’s acquittal was overturned on
appeal.
ISSUE – Whether the TJ bound by combined effect of presumption of belief in s 172.1 (3) of
criminal code and reasonable steps requirement in s172.1.(4) to find accused believed he was
communicating by computer with an underage interlocutor.
HELD – accused conviction must be upheld.
APPEAL – The appeal court held that the combined effect of s172.1(3) & (4) made the accused
guilty.

172.1 (1) Every person commits an offence who, by means of a computer system w/in the
meaning of ss342.1

(2), communicates with:
o (a) a person who is, or who the accused believes is, under the age of eighteen years,
for the purpose of facilitating the commission of an offence under ss153(1)...;
o (b) a person who is, or who the accused believes is, under the age of 16 years, for
the purpose of facilitating the commission of an offence under s 151 or 152...; or
o I a person who is, or who the accused believes is, under the age of 14 years, for the
purpose of facilitating the commission of an offence under s 281 with respect to
that person.

(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to
the accused as being under the age of eighteen years, sixteen years or fourteen years, as the
case may be, is, in the absence of evidence to the contrary, proof that the accused believed
that the person was under that age.

No defense

(4) It is not a defense to a charge under paragraph (1)(a), (b) or (c) 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.
Supreme court held that the conviction stands and the appeal is dismissed

*See CC ss265(4); 273.2
 Accused’s belief as to consent in an assault 265(4)
o Where an accused alleges that he believed that the complainant consented to the
conduct that is the subject-matter of the charge, a judge, if satisfied that there is
sufficient evidence and that, if believed by the jury, the evidence would constitute
a defence, shall instruct the jury, when reviewing all the evidence relating to the
determination of the honesty of the accused’s belief, to consider the presence or
absence of reasonable grounds for that belief.
36

Cannot use belief in consent as a defence for a sexual assault
o It is not a defence to a charge under s 271, 272 or 273 that the accused believed that
the complainant consented to the activity that forms the subject-matter of the
charge, where:
o (a) the accused’s belief arose from the accused’s;
o (i) self-induced intoxication, or
o (ii) recklessness or wilful blindness; or
o (b) the accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting.
R v. ADH (2013)
FACTS – Accused gave birth in a Wall-Mart bathroom and left the newborn in the toilet. Accused
testified that she had not realized that she was pregnant and she believed that the child was born
dead.
ISSUE – Whether the fault element is subjective or objective –
DECISION – The appeal should be dismissed.
REASONS – the legislative history of s218 further supports the conclusion that the fault element
for s218 is penal negligence. The provision has never included words of subjective intention, as
confirmed by the early English interpretation of the offense. Furthermore, neither the social stigma
associated with it nor the gravity of the offense of child abandonment require it to be treated
differently than its sister provision s 215 (failure to provide necessaries) where penal negligence
was found to be requisite fault element.
Under a penal negligence standard, a mistake of fact that is both honest and reasonable affords a
complete defense. Thus, an objective mens rea standard does not punish the morally blameless. In
the present circumstances, TJ found that the respondent honestly believed that her child was dead
at birth and that this belief was objectively reasonable. As such, she was entitled to be acquitted
based on the defense of honest and reasonable mistake of fact.
c) Subjective Mens Rea with Objective Actus Reus
1. Some criminal offences use standards to define criminal conduct (e.g. “dishonest”;
“sexual” etc).
2. It is not sensible to require the accused to have a subjective appreciation that the relevant
criminal standard has been met before a conviction can follow. E.g. An accused can
commit fraud even if he does not appreciate that the relevant transaction was “dishonest”.
R v THEROUX (The “dishonesty” actus reus in fraud is determined objectively, but subjective
mens rea about performance of prohibited act) (ROACH 501-502)
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FACTS: Accused, being directing mind of company, made false representations in order to secure
unsecured deposits. Company later became insolvent, and investors lost deposit money. TJ
convicted accused.
ISSUE: Whether the fact that the accused honestly believed that the project would be completed
negates the mens rea of the offence of fraud. There is no doubt that the appellant deliberately practiced
a deceitful act, constituting the actus reus of the offence of fraud.
REASONING: Fraud: The prohibited act is deceit, falsehood, or some other dishonest act. The
prohibited consequence is depriving another of what is or should be his, which may, as we have seen,
consist in merely placing another's property at risk. The mens rea would then consist in the subjective
awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act)
which could cause deprivation in the sense of depriving another of property or putting that property
at risk. If this is shown, the crime is complete.
HELD: The appellant is guilty of fraud. The actus reus is established: the appellant committed
deliberate falsehoods, which caused deprivation. The mens rea is established: the appellant told
the depositors they had insurance protection when he knew that they did not (i.e. he knew this to
be false; and it may be inferred from his possession of this knowledge that the appellant knew that
he was placing the depositors’ money at risk). The fact that he sincerely believed that in the end
the houses would be built and that the risk would not materialize cannot save him.
R v. CHASE (The “sexual” part of a sexual assault is determined objectively, not
subjectively)(ROACH 475-476)
RATIO – An assault deemed a sexual assault when, viewed in the light of all the circumstances,
the sexual nature of the assault is evident to a reasonable observer.
FACTS: C enters victims home and touches breasts, and tries to touch vagina- but doesn’t.
Appeals-sexual= genatalia.
ISSUE: The definition of sexual assault. Did the accused have the mental element, knowing there
was no consent.
REASONING (SC):
 The test for the recognition of sexual assault does not depend solely on contact with specific
areas of the human anatomy.
 Test to determine whether the assault is “sexual” is an objective one, viewed in light of all
circumstances is sexual assault visible to reasonable person.
 The intent purpose of the person committing the act, to the extent that this may appear from
the evidence, may also be a factor in considering whether the conduct is sexual. If the motive
of the accused is sexual gratification, to the extent that this may appear from the evidence, it
may be a factor in determining whether the conduct is sexual
 Implicit in this view of sexual assault is the notion that the offence is one requiring a general
intent only (i.e. the Crown need only prove that the accused intended to touch the complainant)
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HELD: Guilty of sexual assault.
d) Willful Blindness
1. Willful blindness is related to, but distinct from, recklessness.
2. It is the subjective state of mind, requiring that the accused personally sees the risk of a
fact, but then willfully avoids confirmation so as to be able to deny knowledge.
R v. DUONG (The culpability in recklessness is justified by consciousness of the risk and by
proceeding in the face of it, while in willful blindness it is justified by the accused's fault in
deliberately failing to inquire when he knows there is reason for inquiry)
FACTS: D’s friend commits murder, and then stays at D’s apartment, after indicating he was in
trouble for murder and had no place to go. The trial judge held that the Crown had to prove that
the appellant knew that Lam was a party to a murder when the appellant agreed to hide him from
the authorities, and that willful blindness of that fact would suffice to establish the necessary
culpable mental state.
ISSUE: Did the trial judge err in holding that the doctrine of willful blindness was applicable and
that the appellant was willfully blind as to whether Lam had committed murder?
REASONING:
 Willful blindness arises where a person who has become aware of the need for some inquiry
declines to make the inquiry because he does not wish to know the truth.
 The culpability in recklessness is justified by consciousness of the risk and by proceeding
in the face of it, while in willful blindness it is justified by the accused's fault in
deliberately failing to inquire when he knows there is reason for inquiry.
 Willful blindness will fulfill a mens rea requirement.
 Liability based on willful blindness is subjective.
HELD: D was willfully blind in this case.
R v. VINOKUROV (Willful blindness is imputed knowledge, and will fulfil the mens rea
requirement, while recklessness is something less than that; where an offence requires
knowledge on the part of the accused, recklessness is not applicable.
FACTS: V charged w/ possession of stolen property. V, owner of store, received stolen property,
which he claimed he did not know was stolen.
ISSUE: Whether V knew the property was stolen
REASONING:
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 When the term “knowingly” is used in a criminal statute, the reasonable person standard
will not satisfy the mens rea requirement.
 Willful blindness will fulfil the mens rea requirement. Willful blindness is imputed
knowledge, while recklessness is something less than that. So, where an offence requires
KNOWLEDGE on the part of the accused, it is improper to instruct the jury that a finding
of recklessness satisfied that requirement.
 Thus, recklessness cannot satisfy the knowledge requirement on a charge of possession of
stolen property.
R V BRISCOE [2010] (Wilful blindness can substitute for actual knowledge whenever
knowledge is a component of the mens rea).
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L said earlier in the day that he would like to find someone to kill
A 13 year old girl and her friend were lured into a car on a false pretense to be taken to a
party.
B stood by and watched as C was brutally raped and murdered by L and other minors.
B and L were tried together and B was acquitted because the TJ found that the mens rea
could not be proven b/c B did not have the requisite knowledge that L intended to commit
the crimes.
CA overturned the acquittals and ordered a new trial b/c the TJ failed to consider wilful
blindness.
An appeal was made against the decision for a retrial.
Supreme court held: appeal should be dismissed.
“The mens rea requirement reflected in the word “purpose” under s. 21(1)(b) of the CC has
two components: intent and knowledge.
o For the intent component, the Crown must prove that the accused intended to assist
the principal in the commission of the offence. It is not req’d that the accused
desired that the offence be successfully committed.
o As for knowledge in order to have the intention to assist in the commission of an
offence, the aider must know that the principal intends to commit the crime,
although he or she need not know precisely how it will be committed. Even in the
case of murder, the principal’s intention to commit the crime must be known to the
aider or abettor, but it need not be shared. It is sufficient that he or she, armed with
knowledge of the principal’s intention to commit the crime, acts with the intention
of assisting the principal in its commission.”
“The doctrine of wilful blindness, correctly delineated, is distinct from recklessness
and involves no departure from the subjective inquiry into the accused’s state of mind
which must be undertaken to establish an aider or abettor’s knowledge. Wilful blindness
does not define the mens rea req’d for particular offences. Rather, it can substitute for
actual knowledge whenever knowledge is a component of the mens rea. Wilful
blindness imputes knowledge to an accused whose suspicion is aroused to the point where
he or she sees the need for further inquiries, but deliberately chooses not to make those
inquiries.”
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e) Recklessness
1) Recklessness is a subjective state of mind, whereby it is objectively unjustifiable to take a
risk that the accused personally foresees will lead to a prohibited consequence.
2) It is subjective state of mind with objective features because it exists only where it is
objectively unjustifiable to the risk the accused was taking
3) Recklessness will apply where the provision creates a consequence, but does not, as a
matter of construction, require some more limited kind of mens rea.
4) See also “wilful blindness” below.
5) It differs from negligence; which apply even of the actor does not personally see the risk;
provided a reasonable person would have. (Mentioned in case of SANAREGRET by SC)
the consuct of one who sees the risk and who takes the chance.
6) Reckless requires that the accused is subjectively aware of the possibility of the prohibited
act, whereas knowledge required that accused be aware of probability of prohibited act.
R v BUZZANGA and DUROCHER – willfully for hate crimes doesn’t include recklessness.
French-Canadians write anti-French literature to spread knowledge of bias – no intent to promote
hate.
FACTS – Accused charged with willfully promoting hatred against an identifiable group, namely,
the French Canadian public, contrary to s 281.2(2) of CC. the accused closely identified with the
French Canadian minority. The handbill, entitled “Wake Up Canadians Your Future is at Stake”;
contained statements such as “Who Will Rid us of this Subversive Group if not Ourselves”.
ISSUE – does willfully means intentionally (P494) or recklessly?
HELD – Section 281.2.1 – prohibits the incitement of hatred in public place where such incitement
is likely to lead to a breach of the peace – section imports the necessity of mens rea.
The general rule mens rea requires that where no mental element is mentioned in provision is either
the intentional or reckless bringing about the result which the law seeks to prevent. A person who
foresees that a consequence is certain or sustainably certain to result from an act that he does in
order to achieve some other purpose intends that consequence.
Accused willfully promoted hatred in this case: (a) their conscious purpose in distributing the
handbill is to promote hatred against FC community or (b), they foresaw that the promotion of
hatred against that group was certain or morally certain to result from the distribution of the
pamphlet, but distributed if as a means of achieving their purpose of having the high school built.
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If the accused intentionally promoted hatred against French Canadian community as a
means of obtaining the school then the offense was proven, but the accused’s evidence, if
believed, did not inevitably lead to that conclusions.
Beaver rule: If the statute is silent, there is no mens rea requirement. The serious nature of
the offense makes it necessary to require mens rea, but recklessly can be used for a wide
interpretation and easier prosecution.
Martin J.A.: Mens rea = Intending the act + Intending the result. (P495)
41
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o Unless the statute specifies "willfully commits an act which causes", it probably
refers to both the act and consequence as wilful. (P494)
Recklessness (Subjective): a person foresees that his conduct may cause the prohibited
result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about
(Glanville Williams).
Contrast to the woman who blew up a plane to kill her husband. She was not reckless (she
was wilful) with the other passengers, because she was quite certain that they would die.
Intention: a person who foresees that a consequence is certain or substantially certain to
result from an act which he does in order to achieve some other purpose, intends that
consequence.
Foresight of the certainty or moral certainty of the consequence resulting from his conduct
compels a conclusion that if he, none the less, acted so as to produce it, then he decided
to bring it about (albeit regretfully), in order to achieve his ultimate purpose.
His intention encompasses the means as well as [sic] his ultimate objective.
The greater the likelihood of the relevant consequences ensuing from the accused’s act, the
easier it is to draw the inference that he intended those consequences.
The purpose of this process, however, is to determine what the particular accused
intended, not to fix him with the intention that a reasonable person might be assumed to
have in the circumstances , where doubt exists as to the actual intention of the accused.
Willfulness (Subjective): the word “wilfully” does not have a fixed meaning, but I am
satisfied that in the context of s.281.2(2) it means with the intention of promoting hatred
and does not include recklessness.
Court held that the guy either intended to promote hatred or foresaw that it was certain to
result from the pamphlets. Intentions can be direct or indirect.
The TJ erred in equating "intent to create controversy, furor, uproar" with "intent to
promote hatred". There must be a new trial to decide which intention existed, since courts
of appeal cannot decide matters of fact. (P500). Intent can be inferred from objective
circumstances.
R v. THEROUX (Also see above pg 38.)
FACTS 
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Agreements to purchase residences. The contracts were made and the deposits taken on the basis of a
false representation by the company that the deposits were insured.
The trial judge found that the accused, as directing mind of the company, was responsible for the
misrepresentations. The accused knew at the time that the deposits were not guaranteed but
nevertheless made misrepresentations to induce potential home purchasers to sign a contract and give
a deposit. The trial judge also found that the accused sincerely believed that the residential project
would be completed and hence that the deposits would not be lost. The accused was convicted of fraud
pursuant to s. 380(1)(a) of the Criminal Code and the Court of Appeal upheld the conviction.
ISSUE - whether the fact that the accused honestly believed that the project would be completed negates the
mens rea of the offence of fraud.
Mclachlin J.: Appellant was guilty of fraud. The actus reus of the offence is clearly established.
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The appellant deliberately lied to his customers, by means of verbal misrepresentations, a
certificate of participation in the insurance scheme, and brochures advising that the scheme
protected all deposits.
Appellant knew at the time he made these falsehoods that the insurance for the deposits was not in
place. Appellant genuinely believed that the homes would be built and hence that there was no
risk to the depositors. "No risk" = appellant believed the risk would not materialize.
Appellant committed deliberate falsehoods, which caused or gave rise to deprivation.
Depositors did not get the insurance protection they were told they would get and the money they
gave to the appellant's company was put at risk = suffices to establish deprivation.
Mens rea is established = appellant told the depositors they had insurance protection when he
knew that they did not have that protection.
He knew this to be false. He knew that by this act he was depriving the depositors of something they
thought they had, insurance protection.
Appellant knew that he was placing the depositors' money at risk. The fact that he sincerely believed
that in the end the houses would be built and that the risk would not materialize cannot save
him.
ANALYSIS  The actus reus of the offence of fraud will be established by proof of:
1. The prohibited act, be it an act of deceit, a falsehood or some other fraudulent means and
2. Deprivation caused by the prohibited act, which may consist in actual loss or the placing of
the victim's pecuniary interests at risk – proof of loss irrelevant, just proof of risk
 Correspondingly, the mens rea of fraud is established by proof of:
1. Subjective knowledge of the prohibited act (deceit, falsehood or other dishonest act); 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 accused may introduce evidence negating that inference, such as evidence
that his deceit was part of an innocent prank, or evidence of circumstances which
led him to believe that no one would act on his lie or deceitful or dishonest act.
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Fraud: The prohibited act is deceit, falsehood, or some other dishonest act.
The prohibited consequence is depriving another of what is or should be his, which may, as
we have seen, consist in merely placing another's property at risk.
The mens rea would then consist in the subjective awareness that one was undertaking a
prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in
the sense of depriving another of property or putting that property at risk. If this is shown, the
crime is complete.
R v J.SR - JSR intended to shoot into a crowd, with intent to kill a human being (albeit not the
one killed), opening the door to his possible murder conviction during his upcoming trial,
depending on how the evidence comes out. 2nd degree murder charge allowed –it’s not objective
standard, if conduct proven, conduct would meet the high degree of moral blameworthiness needed
to justify the stigma of a murder conviction for “culpable homicide” under 229©.
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f) Objective Mens Rea and True Crimes
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The criminal law has been uncomfortable with objective fault b/c historically the criminal
law responded to an “evil”. It has gradually accepted objective fault, but not for murder
where there must be a subjective mens rea – b/c you must prove the person is evil!
 For crimes using objective fault as mens rea, “penal negligence”, a more restricted form
of negligence is generally req’d.
The exception to the above is with “predicate offences” – i.e. aggravated forms of offences that
apply when serious consequences result, and include w/in their elements another complete but
lesser.
R V MARTINEAU [1990] (Conviction for murder cannot rest on anything less than subject
foresight of death)
RATIO – Murder is a stigma offence. A subjective mens rea needed that reflects seriousness of
the crime. Any form of murder that does not require subjective mens rea all the way through is
unconstitutional
FACTS: Martineau and a friend, Tremblay, set out armed knowing that they were going to commit
a crime; Martineau testified that he thought it would only be a break and enter. Tremblay shot and
killed two people after robbing them and their house.
ISSUE: Is the offence of constructive murder unconstitutional?
REASONING:
 Elements of crime must exist in accordance w/ the principles of fundamental justice
 s230 (previously 213) expressly removes from the Crown the burden of proving beyond a
reasonable doubt that the accused had subjective foresight of death.
 This s stands as an anomaly as regards to the other murder provisions.
 It is a principle of fundamental justice that a conviction for murder cannot rest on anything
less than proof beyond a reasonable doubt of subjective foresight of death.
HELD: s230(a) of the CC infringes both ss7 and 11(d) of the Charter and is not justified by s1
R V CREIGHTON [1993] (Defines unlawful act and criminal negligence manslaughter; and
upholds the constitutionality of the manslaughter offence)
FACTS: Mr. Creighton was convicted of manslaughter, arising from the death of Kimberley Ann
Martin, who died as a result of an injection of cocaine given by Creighton. The TJ found that the
death constituted manslaughter either on grounds that it was caused by an unlawful act, or on
grounds that it was caused by criminal negligence.
ISSUE: Is the common law definition of manslaughter offence unconstitutional b/c it req’s only
foreseeability of the risk of bodily harm, and not foreseeability of death?
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REASONING:
 Unanimous obiter, that the criminal negligence test was objective, is now the law.
 5-4 on factors to be taken into account. Marked departure is the standard.
 McLachlin P566: Agrees w. Hart on objective standard, regardless of background or
training. Assume no drug experience here. (Exception: Lack of capacity to understand
risk or avoid the situation.
Background
 Manslaughter is a crime of venerable lineage. It covers a wide variety of
circumstances. Two requirements are constant: (1) conduct causing the death of another
person; and (2) fault short of intention to kill.
 That fault may consist either in committing another unlawful act which causes the death,
or in criminal negligence s222(5) CC. The structure of the offence of manslaughter depends
on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide.
 It is now settled that the fact that an offence depends upon a predicate offence does not
render it unconstitutional, provided that the predicate offence involves a dangerous act, is
not an offence of absolute liability, and is not unconstitutional (R v DeSousa)
Unlawful act manslaughter
1) Unlawful act : The unlawful act must be
a. objectively dangerous (i.e. one that is likely to subject another person to danger of
harm or injury and non-absolute liability offence) (R v DeSousa) (this is the actus
reus).
b. there must be intent to commit this underlying act (part of mens rea)
c. as well as objective foreseeability of the risk of bodily harm that is non-trivial (R
v DeSousa)
2) Did the accused possess the requisite capacity to appreciate the risk flowing from his
conduct? If this further question is answered in the affirmative, the necessary moral fault
is established and the accused is properly convicted. If not, the accused must be acquitted.
[NOTE: Personal factors are not relevant in this assessment, except on the question of
whether the accused possessed the necessary capacity to appreciate the risk]
Criminal negligence manslaughter
1) Criminal negligence manslaughter requires:
a. an act that exhibits a marked departure from the standards of a reasonable person
in all of the circumstances (i.e. the definition of criminal negligence in s 219 must
be satisfied) (this is the actus reus)and;
b. objective foreseeability of the risk of non-trivial bodily harm (foreseeability of
death is not req’d) (this is the mens rea)
2) Did the accused possess the requisite capacity to appreciate the risk flowing from his
conduct? If this further question is answered in the affirmative, the necessary moral fault
is established and the accused is properly convicted. If not, the accused must be acquitted.
3) Personal factors are not relevant, except on the question of whether the accused possessed
the necessary capacity to appreciate the risk.
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HELD: The offence is not unconstitutional.
R V BEATTY [2008] (Defines the elements of the dangerous operation of a motor vehicle
offence, s249)
FACTS:
 Beatty was charged with three counts of dangerous operation of a motor vehicle causing
death.
 Mr. Beatty’s pick-up truck, for no apparent reason, suddenly crossed the solid centre line
into the path of an oncoming motor vehicle, killing all three occupants.
 B says “I just lost consciousness”. He had been working in sun all day.
 The TJ said that these few seconds of negligent driving could not, without more, support a
finding of a “marked departure” from the standard of care of a reasonably prudent driver.
 CA set aside the acquittals and ordered a new trial stating that the accused’s conduct of
crossing the centre line onto oncoming traffic could only be viewed as objectively
dangerous and a “marked departure” from the requisite standard of care.
ISSUE:
 Whether there is an explanation for the accused’s conduct that would raise a reasonable
doubt that a reasonable person would have been aware of the risks in the accused’s conduct.
REASONING:
 Actus reus: The accused was driving dangerously, in light of all the circumstances, which
is what is req’d in s.249 to satisfy the actus reus
 Mens rea: The mental element in dangerous operation doesn’t require proof of a positive
state of mind, such as intent or recklessness.
 And, indeed, there is no evidence here of any deliberate intention to create a danger for
other users of the highway that could easily provide an answer to this question.
 Hence, the TJ was correct in finding that the question of mens rea in this case turns on
whether Mr. Beatty’s manner of driving, viewed on an objective basis, constitutes a marked
departure from the norm.
 By contrast, it is my respectful view that the Court of Appeal leaped too quickly to the
conclusion that the requisite mens rea could be made out from the simple fact of the
accident occurring, leaving no room for any assessment of Mr. Beatty’s conduct along the
continuum of negligence.
HELD: The appeal by Beatty was allowed and the acquittals were restored. Not guilty.
R V DESOUSA [1992] (Defines the elements of the offence of unlawfully causing bodily harm,
s269)
FACTS: The appellant was involved in a fight in which a bystander was injured when a bottle
allegedly thrown by the appellant broke against a wall and a glass fragment from the bottle struck the
bystander.
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ISSUE: Does the mental element of s269 CC violate s7 of the Charter? There are two underlying
issues: (i) the mental element req’d by s.269 and whether this element is constitutionally sufficient
and (ii) whether s.7 of the Charter req’s as a constitutional minimum, foresight of each or any of the
consequences that comprise the actus reus of an offence.
REASONING:
 For liability to be imposed for unlawfully causing bodily harm, the harm must have
sufficient causal connection to the underlying offence.
 The major issue here is the mental element req’d by s.269 CC
 It is vital in criminal law that their s/b no responsibility w/o personal fault (R v City of
Sault Ste Marie)
 A provision should not lack any element of fault unless the statutory language mandates it.
 The mental element of s.269 is composed of two requirements:
o The mental element of the underlying offence of s.269 must be satisfied.
o The additional fault requirement supplied by the wording of s.269 also be satisfied.
 The concept of “unlawful” as used in s.269 does not include any underlying offence of
absolute liability.
 The term “unlawful” incorporates an additional mental requirement in s.269 – that the act
must be objectively dangerous.
 Objective foresight of bodily harm is req’d for both criminal and non-criminal acts
underlying s.269.
Summary:
 The test is one of objective foresight of bodily harm for all underlying offences.
 Act must be both unlawful and one that is likely to subject another person to harm or injury.
 Bodily harm must be more than merely trivial in nature.
 The focus is to inquire whether a reasonable person would inevitably realize that the
underlying unlawful act would subject another person to the risk of bodily harm.
HELD: s269 does not violate s7 or s11(d) of the Charter.
R v. J.F. (2008)
FACTS – M was 4 yrs old when he died in his foster home from multiple blunt traumas to his
head. M’s body was extensively bruised. M’s foster mother confessed to beating M and pleaded
guilty to manslaughter. The accused, M’s foster father, was charged with manslaughter by criminal
negligence and manslaughter by failing to provide the necessaries of life.
HELD – The order setting aside the conviction on the charge of manslaughter by criminal
negligence should be affirmed and an acquittal entered – criminal negligence must be quashed.
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Was there a failure of the duty to protect foster child from foreseeable harm from his
spouse? Failure to provide the necessities o life requires proof of a marked departure from
the conduct of a reasonably prudent parent in circumstances where it was objectively
foreseeable that the omission would lead to risk of danger to M’s life, or risk of permanent
endangerment to his health.
Criminal negligence – required proof that the same omission represented a marked and
substantial departure from the conduct of a reasonably prudent parent in circumstances
where the accused either recognized and ran an obvious and serious risk of M’s life or gave
no thought to that risk.
o Consider whether the accused, failing to provide the necessities of life, showed a
wanton or reckless disregard for the life or safety of the child. if so, negligence
proved.
o If not, jury could still find the accused guilty of failure to provide the necessities of
life, but not of a criminal negligence.
g) Regulatory Offenses
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Can be created by any level of government.
They can be full mens rea offences (like true crimes), but m/b a clear indication that mens
rea is req’d is needed before regulatory offences will be interpreted as having mens rea
elements.
They are presumed to be strict liability offences (offences that can be committed by simple,
non-penal negligence, w/ accused bearing the burden of proving an absence of negligence
to avoid conviction).
Some operate as absolute liability offences and will be committed whenever the relevant
actus reus is proved, provided this is clearly what the legislators intended when
establishing the offence.
It is important to be able to distinguish b/t true crimes from regulatory offences.
ABSOLUTE LIABILITY OFFENCES
Crown must provide the commission of prohibited act beyond a reasonable doubt, but does
not require proof of any additional fault element such as guilty knowledge or negligence.
R v. PIERCE FISHERS Ltd. – the SC held that the possession of undersized lobsters contrary
to regulations under the Fisheries Act was an absolute liability offence.
R V SAULT STE. MARIE [1978] (Distinguishes b/w the three types of offences: mens rea
offences, strict liability and absolute liability offences; also discusses the defence of due
diligence)
FACTS: The City of Sault Ste. Marie was charged with pollution in disposing waste.
ISSUE: Whether the City is guilty of an offence under s 32(1) of The Ontario Water Resources
Commission Act
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REASONING:
Background
 Regulatory offences are not criminal in any real sense but are prohibited in the PUBLIC
INTEREST; although enforced as penal laws through the utilization of the machinery of
the criminal law, the offences are in substance civil in nature.
 They relate to such everyday matters as traffic infractions, sales of impure food, violations
of liquor laws, and the like.
 In this appeal we are concerned with pollution. Also, s32(1) is a provincial enactment and
therefore cannot be criminal in nature.
The mens rea point
 The distinction between the true criminal offence and the public welfare offence is one of
prime importance.
 Where the offence is criminal, the Crown must establish a mental element, namely, that
the accused who committed the prohibited act did so intentionally or recklessly, with
knowledge of the facts constituting the offence, or with willful blindness toward them.
Mere negligence is excluded.
 Absolute liability, on the other hand, entails conviction on proof merely that the defendant
committed the prohibited act, and there is no relevant mental element.
 There has been a line of cases which adopt a middle ground between true crimes (requiring
mens rea), and absolute liability offences, in the context of public welfare. offences. The
middle ground essentially opens up a defence of due diligence.
 Defence of reasonable care: in this doctrine it is not up to the prosecution to prove
negligence. Instead, it is open to the defendant to prove that all due care has been taken or
that there has been a reasonable belief in a mistaken set of facts. This burden falls upon the
defendant as he is the only one who will generally have the means of proof.
Therefore, there should be 3 categories of offences:
1. True Crimes - Offences in which mens rea, consisting of some positive state of mind such as
intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from
the nature of the act committed, or by additional evidence (Public welfare offences will only fall
into this category if such words as “willfully, with intent, knowingly, or intentionally” are contained
in them; also, if the offence is a true crime, then there is a presumption of full mens rea)
2. Public Welfare Offenses = 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 on a BoP 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 honestly and 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 (So, here, prosecution must prove the act B/R/D, and it is open to accused to avoid
liability by proving, on a BoP that he took all reasonable care). PRIMA FACIE, public welfare
offences fall into this category.
49
3. ABSOLUTE LIABILITY - Offences of absolute liability where it is not open to the accused to
exculpate himself by showing that he was free of fault (the principle that punishment should in
general not be inflicted on those without fault applies). Offences of absolute liability would be
those in respect of which the Legislature had made it clear that guilt would follow proof merely of
the proscribed act. To determine if an offence is one of absolute liability, consider: the overall
regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance
of the penalty, and the precision of the language used.
The Ontario Water Resources Commission Act s 32(1)
 There is no presumption of full mens rea, b/c (a) this is a public welfare offence; (b) it is a
provincial statute
 What category of offence is it then?
 The present case concerns the interpretation of two troublesome words frequently found in
public welfare statutes: “cause” and “permit.”
 These two words are troublesome b/c neither denotes clearly either full mens rea nor
absolute liability.
 The conflict in the above authorities, however, shows that in themselves the words “cause”
and “permit”, fit much better into an offence of strict liability than either full mens rea or
absolute liability.
 Since s. 32(1) creates a public welfare offence, without a clear indication that liability is
absolute, and without any words such as “knowingly” or “wilfully” expressly to import
mens rea, application of the criteria which I have outlined above undoubtedly places the
offence in the category of strict liability.
 Therefore, proof of the act prima facie imports the offence, but the accused may avoid
liability by proving that he took reasonable care.
Actus reus:
 The prohibited act would, in my opinion, be committed by those who undertake the
collection and disposal of garbage, who are in a position to exercise continued control of
this activity and prevent the pollution from occurring, but fail to do so.
 The “causing” aspect centres on the defendant’s active undertaking of something which it
is in a position to control and which results in pollution.
 The “permitting” aspect of the offence centres on the defendant’s passive lack of
interference or, in other words, its failure to prevent an occurrence which it ought to have
foreseen.
 The close interweaving of the meanings of these terms emphasizes again that s. 32(1) deals
with only one generic offence.
R V CHAPIN [1979] (Example of classifying an offence into one of the three categories)
FACTS:
 Duck hunter, charged under Migratory Birds Regulations.
 Unlawful to hunt for migratory birds w/in one quarter mile of a place where bait/grain has
been deposited.
50

It was a windy day. When she walked over the boards, in hip waders and carrying a gun,
her sole concern was to avoid falling into the water.
ISSUE:
 What category of offence is the following: s14(1) Subject to subs (2), no person shall hunt
for migratory game birds w/in one-quarter mile of any place where bait has been deposited?
 Note: S 12(1) provides: 12(1) Every person who violates this Act or any regulation is, for
each offence, liable upon summary conviction to a fine of not more than three hundred
dollars and not less than ten dollars, or to imprisonment for a term not exceeding six
months, or to both fine and imprisonment
REASONING:
(1) What category of offence is it (re: Sault Ste Marie)?
 It is NOT a “mens rea” offence: One would be hard pressed to characterize the offence
created by s14(1) of the Migratory Birds Regulations as a “crime” in the true sense.
 Violation is punishable upon summary conviction and not indictment.
 Note the absence of the usual signals connoting mens rea such as “wilfully” or “w/ intent”.
 The Migratory Birds Convention Act is a regulatory statute enacted by the Parliament of
Canada for the general welfare of the Canadian public.
 S 14(1) of the Migratory Birds Regulations creates a public welfare offence which is not
criminal in the true sense and it is therefore not subject to the presumption of full mens rea.
 It is NOT an “absolute liability” offence: The language of the offence is straightforward,
“No person shall…”. Yet there is not a strict prohibition on hunting, rather a hunt controlled
w/in certain limits as to season, methods, and types and numbers of species taken.
 Nor can one ignore the controls on shipment and export of game, nor the stricter controls
in certain prescribed geographic areas “for the control and management of such area”.
 Also note the SERIOUIS PENALTY
 The best the Crown can do to shift this offence into the category of absolute liability is to
suggest that the availability of a defence of reasonable care would considerably weaken the
enforcement of the legislation.
 This may be true, but as Weatherston J.A. observed, the problems that may be encountered
in the administration of a statute or regulation are a very unsure guide to its proper
interpretation.
 Difficulty of enforcement is hardly enough to dislodge the offence from the category of
strict liability, particularly when regard is had to the penalties that may ensue from
conviction
 It IS a “strict liability” offence: Because it’s a public welfare offence, prima facie falls into
this category.
 Further, it is a classic example of an offence in the second category delineated in the Sault
Ste. Marie case.
 An accused may absolve himself on proof that he took all the care which a reasonable man
might have been expected to take in all the circumstances or, in other words, that he was
in no way negligent.
(2) Convicted? No!
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REFERENCE RE S 94(2) OF THE MOTOR VEHICLE ACT (BC) [1985] (Absolute liability
and imprisonment cannot be combined)
RATIO – PFJ are subjective. Section 7 is the parent of s8-14. They are really just specifications
of the kinds of things that are required for a just system. It constitutionalizes SAULT MARIE. You
will not be exposed to a loss of liberty without mens rea. Absolute liability and a potential loss of
liberty can no longer be combined.
FACTS – BC govt., had an offense for driving with suspended license whether or not they know
its suspended.
ISSUE: Is the relevant s of the Motor Vehicle Act in contravention of s7 of Charter?
REASONING
 The words “principles of fundamental justice” do not refer to procedure only.
 The proper approach to the definition of the rights and freedoms guaranteed by the Charter
is a purposive one.
 The principles of fundamental justice are to be found in the basic tenets of our legal system.
 The term "principles of fundamental justice" is not a right, but a qualifier of the right not
to be deprived of life, liberty and security of the person; its function is to set the
parameters of that right.
 Ss 8 to 14 address specific deprivations of the "right" to life, liberty and security of the
person in breach of the principles of fundamental justice, and as such, violations of s. 7.
 They are therefore illustrative of the meaning, in criminal or penal law, of "principles of
fundamental justice"; they represent principles which have been recognized by the
common law, the international conventions and by the very fact of entrenchment in the
Charter, as essential elements of a system for the administration of justice which is founded
upon the belief in the dignity and worth of the human person and the rule of law.
 Consequently, the principles of fundamental justice are to be found in the basic tenets and
principles, not only of our judicial process, but also of the other components of our legal
system.
 Whether any given principle may be said to be a principle of fundamental justice w/in the
meaning of s7 will rest upon an analysis of the nature, sources, rationale and essential role
of that principle w/in the judicial process and in our legal system, as it evolves
 It has long been recognized that the innocent not be punished.
 A law enacting an absolute liability offence will violate s7 of the Charter only if and to
the extent that it has the potential of depriving of life, liberty, or security of the person.
 Obviously, imprisonment (including probation orders) deprives persons of their
liberty.
 I am therefore of the view that the combination of imprisonment and of absolute
liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate
under s. 1 that such a deprivation of liberty in breach of those principles of fundamental
justice is, in a free and democratic society, under the circumstances, a justified reasonable
limit to one's rights under s7.
52

An absolute liability, which makes a person liable for an offence whether or not they took
steps not to be at fault, violates the principles of fundamental justice.
 Therefore, any possibility of a deprivation of life, liberty, or security of person from an
absolute liability offence offends the Charter.
 It is only through reasons of public interest can such offences be saved through s 1 of the
Charter.
 The Crown failed to show that the public interest of ridding the roads of bad drivers could
be proportional to the limiting of people's rights by imprisoning them.
HELD: The s is unconstitutional.
R V CANCOIL THERMAL (1986) (If a regulatory offence is intended to be one of absolute
liability based on an analysis of the wording of the offence, AND if that offence has as a
potential punishment of imprisonment, then a court must interpret that offence to be one of
strict liability to make it conform to the Charter)
FACTS:
 Owners of a company took the guard off a piece of machinery, ostensibly in violation of
an Ontario statute, and an employee cut 6 of his fingers. A violation of the impugned Act
entailed a possible prison sentence
ISSUE:
 Should the impugned s of the act be treated as an absolute liability offence?
 Note: There was a specific exclusion of a statutory due diligence defence to the relevant
offence AND conviction of the relevant offence can lead to person being fined max 25,000
or imprisoned for 12 months max
REASONING:
 The specific exclusion of a statutory defence for this offence (although provided for other
offences in the Act), suggests that the Legislature had determined that the subs creates an
absolute liability offence
 But if that subs were treated as creating an absolute liability offence, it would offend s7 of
the Charter
 In Reference re s9.4(2) of Motor Vehicle Act 1985 CanLII 81 (S.C.C.), (1985), 23 C.C.C.
(3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, the Supreme Court of Canada held that
the combination of absolute liability and the potential penalty of imprisonment was a
violation of s7 of the Charter
 To avoid a violation of s7 of the Charter, [the impugned provision] must be treated as creating
a strict liability offence. The defence of due diligence was available to the respondents.
R V RAHAM [2010]
RATIO – there is presumption on favour of constitutionality, which requires offense to be
interprested as strict liability offenses where possible to construe as absolute or strict liability.
53
FACTS –
 The respondent Raham was clocked at 131Kph in an 80 KPH zone. He was 51km/h over
the speed limit and was charged with stunt driving under s172 Highway Traffic Act. The
offense commonly referred to as stunt driving or racing, is punishable by a fine, a term of
imprisonment or both.
ISSUE - Does the offense of stunt driving by speeding by being an absolute liability offense
punishable by imprisonment, violate s.7 of the charter?
HELD  Justice of the peace interpreted the offence as one of strict liability and rejected the
constitutional argument.
 Appeal Court judge held that the offence was an absolute liability offence punishable by
imprisonment and therefore was contrary to s7 of the Charter
 Held: Appeal judge erred in holding that stunt driving as an absolute liability.
 The offence was properly regarded as a public welfare offence and was prima facie a strict
liability offence. The availability of incarceration suggested strict liability.
 b/c of the presumption of constitutionality, it would take very clear language to create an
absolute liability offence that was properly punishable by incarceration.
LEVIS (CITY) V TEREAULT [2006] (Illustration of due diligence defence failing)
FACTS:
 Respondent convicted of motor vehicle related offences under the Highway Safety Code
(namely having put a motor vehicle into operation w/o having paid registration fees).
 The postal service did not deliver the notice of registration renewal, which it returned to
the SAAQ on February 14, 2002. In April 2002, the police stopped the vehicle and
observed that its registration had expired due to a failure to pay the fees for the year in
progress and had not been renewed.
 A complaint was then brought against the company, and it is in issue here.
ISSUE: What type of offence is this? Should the conviction stand?
REASONING:
The offences the respondents are charged with belong to a vast category of offences known
as regulatory offences.
 Classifying the offence in one of the three categories now recognized in the case law thus
becomes a question of statutory interpretation
 Dickson J. noted that regulatory or public welfare offences usually fall into the category of
strict liability offences rather than that of mens rea offences. As a general rule, in
accordance with the common law rule that criminal liability ordinarily presupposes the
existence of fault, they are presumed to belong to the intermediate category (strict liability)
 Absolute liability offences still exist, but they have become an exception requiring clear
proof of legislative intent; This intent can be deduced from various factors, the most
important of which would appear to be the wording of the statute itself: “The overall
54
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regulatory pattern adopted by the Legislature, the subject matter of the legislation, the
importance of the penalty, and the precision of the language used will be primary
considerations..”
NOT a mens rea offence: Nothing in the words of this provision indicates an intention to
create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due
diligence defence. The provision in no way places the burden of proving mens rea on the
prosecution.
Nor does it include any expression of the legislature’s intent to create an absolute liability
offence. Furthermore, such an intent cannot be inferred from the scheme of this provision,
which seeks to ensure that the requirements of the regulation of highway safety are met by
monitoring drivers’ licences without it being necessary to deprive an accused of a due
diligence defence.
A strict liability scheme responds adequately to the concern to ensure that vehicle operators
are aware of their legal obligations and, in particular, of their duty to do what is necessary
to ensure that their licences remain valid and to drive only while they are valid.
The only issue in dispute thus consists in determining whether the defence of the accused
is consistent with the concept of due diligence.
Due diligence? In Mr. Tétreault’s case, the judgments of the courts below confused
passivity with diligence.
The accused did no more than state that he expected to receive a renewal notice for his
licence and that he had confused the licence expiry date with the due date for paying the
fees req’d to keep the licence valid.
He proved no action or attempt to obtain information.
The concept of diligence is based on the acceptance of a citizen’s civic duty to take action
to find out what his or her obligations are. Passive ignorance is not a valid defence in
criminal law.
Consequently, the acquittals are unfounded in this case.
The Municipal Court should have found the respondent guilty as charged and imposed the
fine prescribed by law.
As for the defence of officially induced error, although it is available in Canadian criminal
law, the company has not established that the conditions under which it is available have
been met.
HELD: Conviction stands.
R v. WHOLESALE TRAVEL INC. (1991)
RATIO – the reverse burden to show the due diligence that is associated with strict liability is
constitutionally acceptable.
FACTS – Company charged with false or misleading advertisement contrary to Competition Act,
For wrongly advertising that its travel packages were wholesale. Accused challenged s36 of
Competition Act, which created a statutory due diligence defense violated s11(d) of the charter.
55
ISSUE – Upon proof of the act, you are presumed guilty (I.e. absolute liability) was the reverse
burden a breach of the presumption of innocence?
DECISION – Split decision
REASONS – Lamer – violates the presumption of innocence and cannot be justified under s1.
Ioaccobucci – the reverse burden does infringe s11(d) of the charter but is justified under s1. For
regulatory offense the reversal of burden is justified because the purpose is to try and get people
to take care.
STANDING – Wholesale travel has standing to challenge the constitutionality of the false
misleading advertising provisions under s 7 and 11(d) of the charter. Fi provisions violate charter
rights they must be struck down to the extent of the inconstancy and cannot apply to any accused,
corporate or individual.
The offense of false, misleading advertising is punishable by imprisonment and therefore must not
be one of absolute liability and must command at least a fault requirement of negligence, in that al
least a defense of due diligence must always be open to an accused.
The presumption of innocence is protected expressly by s11(d) and inferentially by s7 because the
presumption is a principle of fundamental justice.
Section 11(d) requires, where a person faces penal consequences, that the individual be proven
guilty beyond a reasonable doubt, the state bear the burden of proof, and that the prosecution be
carried out lawfully. Section 11 (d) is offended if an accused may be convicted notwithstanding a
reasonable dowbt on an essential element of the offence.
SUMMARY OF RO
REGULATORY OFFENCES
Express fault requirement
crown must prove fault
Strict Liability
Crown proves Act
Accused must prove due diligence.
Absolute Liability
Crown must prove act
** REGULATORY OFFENCE FRAMEWORK ANSWER **
STEP 1: What category of offence is this?
- Classifying the offence into one of the 3 types is a matter of statutory interpretation (R v Sault
Ste Marie):
56
1) Is the offence a TRUE CRIME or a REULGATORY/PUBLIC WELFARE
OFFENCE?
a. If it’s a true crime, then there’s a presumption that it’s a full mens rea offence, and,
to rebut the presumption, you would have to establish why it should not be a mens
rea offence (by analysing the language of the offence);
i. If committing the offence is punishable upon summary conviction and not
indictment, this is suggestive of a regulatory offence, and not a true crime
(R v Chapin)
ii. if the offence comes from a provincial statute, this leans toward it being a
regulatory offence and not a true crime (R v Sault Ste Marie)]
b. If it’s a public welfare offence (which, on the exam, it is likely to be), then there is
a presumption that the offence is a strict liability offence [Note: such offences
relate to such everyday matters as traffic infractions, sales of impure food,
violations of liquor laws, and the like]
------- On exam, it will likely be presumed to be a public welfare offence, and prima facie a strict
liability offence. But you always go through each category and analyse whether the offence
belongs in it:
2) Is it a MENS REA offence? Look for the words like “wilfully, knowingly, with intent,
intentionally” etc. But words like “cause” or “permit” do not indicate a mens rea offence
(R v Sault Ste Marie). If not, consider the next question.
3) Is it a STRICT LIABILITY OFFENCE (R v Sault Ste Marie). Look at the wording of
the statute, its purpose, and see if the public interest is the focus here; if it is, then the strict
liability presumption will arise.
4) Is it an ABSOLUTE LIABILITY offence? Consider the overall regulatory pattern
adopted by the Legislature, the subject matter of the legislation, the importance of the
penalty, and the precision of the language used. There must be CLEAR proof of legislative
intent for it to be an absolute liability offence.
a. E.g. in R v Chapin, look at whether there is a STRICT prohibition of the relevant
act – in that case, there were certain limits placed on hunting, but it was not an all
or nothing prohibition, so that pointed towards it not being an absolute offence.
b. E.g. in R v Chapin, there was a serious penalty, which pointed towards it not being
an absolute liability offence.
c. Note: If a regulatory offence is intended by Parliament/Legislature to be one of
absolute liability, and that offence has as a potential punishment imprisonment, then
a court must interpret the offence to be one of strict liability to make it conform to
the Charter (R v Cancoil Thermal)
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STEP 2: Should the accused be convicted of the offence?
1) If the offence is one of:
a. Strict liability: Then the proof of the act prima facie imports the offence, but the
accused may avoid liability by proving that he took all reasonable care (i.e. the
defence of due diligence). That is, the prosecution must prove the act B/R/D, and
the accused can attempt to prove the due diligence defence on a BoP. [APPLY THE
FACTS TO DETERMINE IF X IS CONVICTED]
i. Passivity cannot amount to due diligence (Levis v Tereault)
b. Mens rea: Then the prosecution must prove the prohibited act and the relevant
mental state B/R/D. [APPLY THE FACTS TO DETERMINE IF X IS
CONVICTED]
c. Absolute liability: Then proof of the act imports the offence, and there is no defence
of due diligence. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED]
[Note: Try and apply the cases above as much as possible, and show command of the relevant
law in this area]
III.
EXTENTIONS OF CRIMINAL LIABILITY
A. AIDING AND ABETTING
(i) Can be convicted for aiding (physically supporting) or abetting (encouraging) the
accused to commit the offence.
(ii) Persons who aid and abet one offence can, in some circumstances, be convicted of
offences they did not intent to aid or abet provided that the offence is a foreseeable
outcome of the offences they did intend to air or abet.
(iii) It is not only the person who actually performs the actus reus (principal offender) who
can be convict of the offence. So too can those who aid (physically support) or abet
(encourage) the accused to commit the offense.
(iv) The criminal law does not distinguish between the principal offender and the parties
to an offense in determining the criminal liability. The person who provides the gun,
therefore, may be found guilty of the same offense as the one who pulls the trigger.
The actus reus and mens reus for arising and abetting, however are distinct from those
of the principle offense.
(v) There are varying degree of guilt and it remains the functions of the sentencing
process to adjust the punishment for each individual offender accordingly.
(vi) Anyone who aids and encourage a person in the commission of the offense is as guilty
as the person who commits the actual criminal act.
See CC s 21
Parties to offence
58
s21. (1) Every one is a party to an offence who;
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful
purpose and to assist each other therein and any one of them, in carrying out the common
purpose, commits an offence, each of them who knew or ought to have known that the
commission of the offence would be a probable consequence of carrying out the common
purpose is a party to that offence.
R V DUNLOP AND SYLVESTER [1979] (Mere presence, and passive acquiescence, at the
scene of a crime is not sufficient to ground culpability by way of s 21(b) and (c) – aiding and
abetting. Some active steps m/b taken)
FACTS:
 Complainant raped by 18 men, while she was being held by 2. She pointed to Dunlop and
Sylvester as two of the men who raped her. The judge chose to instruct the jury upon parties
to an offence under s. 21 of the Code, and it is in this respect that the convictions are
challenged.
ISSUE – is mere presence sufficient to find aiding and abetting?
DECISION – appeal allowed and acquittals entered.
REASONING:
The law
 Mere presence, and passive acquiescence, at the scene of a crime is not sufficient to ground
culpability. Some active steps must be taken by word or action.
 Presence at the commission of an offence can be evidence of aiding and abetting if
accompanied by other factors, such as prior knowledge of the principal offender's intention
to commit the offence or attendance for the purpose of encouragement.
 A person cannot properly be convicted of aiding or abetting in the commission of acts
which he does not know may be or are intended. One must be able to infer that the accused
had prior knowledge that an offence of the type committed was planned, i.e. that their
presence was with/ knowledge of the intended rape.
Application
 In this case there was no evidence that while the crime was being committed either of the
accused rendered aid, assistance, or encouragement to the rape of the complainant
 There was no evidence of any positive act or omission to facilitate the unlawful purpose.
One could infer that the two accused knew that a party was to be held, and that their
presence at the dump was not accidental or in the nature of casual passers-by, but that was
not sufficient. A person cannot properly be convicted of aiding and abetting in the
commission of acts which he does not know may be or are intended.
59

The evidence failed to disclose any facts as distinguished from surmise or suspicion, upon
which a jury could conclude beyond reasonable doubt that the accused had assumed a role
which would qualify them as aiders and abettors under s. 21(1) of the Code
HELD: The TJ erred in instructing the jury about s 21.
R V LOGAN [1990] (Analyzes the constitutionality of s 21(2) – common purpose liability – in
relation to the offence of attempted murder) (s 21 – parties to offence) (see GR NOTES PG 67)
FACTS:
 L and a few others were charged with a number of offences arising from a series of
robberies.
 This appeal pertains only to the charges against the two respondents for attempted murder
which resulted from an incident during one of the robberies. Neither respondent fire the gun.
ISSUE: The only issue before this Court is the constitutionality of s. 21(2) of the Criminal Code.
REASONING:
 The appellant is challenging the constitutionality of s21(2) in general and, in particular, of the
objective component of the s ("ought to have known").
 The Court of Appeal, quite correctly, did not declare the objective component of s21(2)
inoperative for all offences.
 They dealt specifically with the operation of the provision in relation to the offence of
attempted murder and the possibility that a party to an attempted murder could be convicted
upon proof of objective intent, whereas a conviction of the principal would require proof of
subjective intent.
 With respect, I cannot construe Vaillan court as saying that, as a general proposition,
Parliament cannot ever enact provisions requiring different levels of guilt for principal
offenders and parties.
 That said, however, there are a few offences with respect to which the operation of the
objective component of s. 21(2) will restrict the rights of an accused under s7.
 If an offence is one of the few for which s7 req’s a minimum degree of mens rea, Vaillancourt
does preclude Parliament from providing for the conviction of a party to that offence on the
basis of a degree of mens rea below the constitutionally req’d minimum.
 I would declare inoperative the words "or ought to have known" when considering under s.
21(2) whether a person is a party to any offence where it is a constitutional requirement for a
conviction that foresight of the consequences be subjective, which is the case for attempted
murder.
 Once these words are deleted, the remaining s req’s, in the context of attempted murder, that
the party to the common venture know that it is probable that his accomplice would do
something with the intent to kill in carrying out the common purpose.
R V BRISCOE 2010 (Above Pg 40 Notes)
 Mens req in the word “purpose” has 2 components: intent and knowledge
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Intent – crown must prove the accused intended to assist the principle
Knowledge – the other must know that the principle intends to commit the crim.
R V. THATCHER (1987)
FACTS – Appellant was arrested and charged with causing the death of his ex-wife, who was
ferociously beaten and then shot to death.
HELD – Appellant was correctly found guilty of murder.
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
Where an accused is being tried alone and there is evidence that more than one person was involved
in the commission of the offence, it is also appropriate for the trial judge to direct the jury with respect
to the provisions of s. 21 of the Code, even though the identity of the other participant or participants
is unknown and even though the precise part played by each participant may be uncertain.
Section 21(1) of the Criminal Code is designed to make the difference between aiding and abetting
and personally committing an offence legally irrelevant.
o It provides that either mode of committing an offence is equally culpable and, indeed, that
whether a person personally commits or only aids and abets, he is guilty of that offence--in
this case, murder--and not some separate distinct offence.
Where there is evidence before a jury that points to an accused either committing a crime personally
or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied
beyond a reasonable doubt that the accused did one or the other, it is a matter of indifference which
alternative actually occurred. It follows that s. 21 precludes a requirement of jury unanimity as to the
particular nature of the accused's participation in the offence.
R. V. JF, 2013 SCC
FACTS  J, a youth, learned that his friend T and her sister R were planning to murder their mother
by plying her with alcohol and drowning her, a plan which the sisters ultimately executed
and were convicted for. Crown also led evidence that J supplied the girls with pills and met
T and R after the murder to provide an alibi.
 Can a person be a party to the offence of conspiracy as a matter of law and, if so, how and
under what circumstances?
MOLDAVER J.: dismiss the appeal from conviction. Once the jury rejected his explanation that he
was not being serious, as it must have, a finding of guilt on the basis of membership was inevitable.
 The appellant, with knowledge of the conspiracy between R and T, provided advice and
offered assistance to them, with their knowledge and consent, for the purpose of facilitating
the killing of their mother. As he said in his MSN conversation with T, shortly before the
murder occurred, “I’m involved this much, I’m willing to help you out with any of it [T]”
(A.R., at p. 197).
 That, along with other evidence which implicated the appellant in providing the Tylenol 3
pills and attending a restaurant after the killing to provide R and T with an alibi, provided
the jury with all the evidence it needed to find an agreement between the appellant and R
and T that the murder should be carried out. Nothing more was needed to establish the
appellant’s membership in the conspiracy. It is immaterial that the appellant, unlike R and
T, took no part in the actual killing of A.K.
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ANALYSIS Party liability to a conspiracy is limited to cases where the accused encourages or assists
in the initial formation of the agreement, or where he encourages or assists new members
to join a pre-existing agreement – “[t]he actus reus is the fact of agreement” = mutuality
of objective requirement of the actus reu
 Section 465 of the Criminal Code criminalizes the offence of conspiracy, in particulatr
conspiracy to commit murder. The crime is complete when two or more persons agree to
kill a third party. No one need be killed; nor is it necessary that any steps be taken to bring
about the murder.
o R. v. Déry, 2006 SCR: “attempted conspiracy” is not an offence known to law
 Trieu outlines how, and under what circumstances, a person can be found liable as a party
to the offence of conspiracy: The offence is made out where the accused aids or abets the
actus reus of conspiracy, namely the act of agreeing.
o Trieu: operated a small business selling cellular phones. He sold phones to five
people who were involved in a conspiracy to traffic in cocaine. Trieu knew that the
conspirators were engaged in drug trafficking, that they worked as a group, and that
they would use the phones in their trafficking operation
o Costigan J.A. in ABCA noted that the essence of the offence of conspiracy is the
agreement, and acts done in furtherance of the unlawful object are not an element
of the offence...“[t]o be a party to an offence, a person must aid the principal in
the commission of that offence” (para. 32). It follows for Trieu to be a party to the
offence of conspiracy to traffic in cocaine, the Crown had to prove that Trieu
performed acts for the purpose of aiding the formation of an agreement to traffic in
cocaine. Acts performed after the agreement was formed did not aid in the
commission of the offence of conspiracy on the facts of this case. Although acts
performed after the agreement was reached could have aided in the commission of
the offence of trafficking, Trieu was not charged with the offence of trafficking
 Aiding or abetting the formation of an agreement between conspirators amounts to aiding
or abetting the principals in the commission of the conspiracy, and should therefore lead to
party liability for conspiracy.
o An act done in furtherance of the unlawful object is not an element of the offence
of conspiracy = not themselves a component of the actus reus of conspiracy.
o Indeed, a conspiracy can be established in the absence of any overt acts done in
furtherance of its unlawful object. In other words, “[t]he crime of conspiracy is
complete once the agreement is reached”
 But to aid and abet a crime it is necessary not merely to help the criminal, but to help him
in the commission of the particular criminal offense. A person does not aid and abet a
conspiracy by helping the “conspiracy” to commit a substantive offense
 Where a person, with knowledge of a conspiracy (which by definition includes knowledge
of the unlawful object sought to be attained), does (or omits to do) something for the
purpose of furthering the unlawful object, with the knowledge and consent of one or more
of the existing conspirators, this provides powerful circumstantial evidence from which
membership in the conspiracy can be inferred.
 To be precise, it would be evidence of an agreement, whether tacit or express, that the
unlawful object should be achieved. Ultimately, that issue is one for the trier of fact, who
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must decide whether any inference other than agreement can reasonably be drawn on the
evidence.
 Conspiracies are often proved by way of circumstantial evidence = evidence of conduct
that assists the unlawful object. Furthermore, it is not necessary that all members of a
conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful
object. Indeed, members in a conspiracy need not personally commit, or intend to commit,
the offence which each has agreed should be committed
Aiding or Abetting a Pre-Existing Agreement
 Conspiracy has been identified as a continuing offence (Bell v. The Queen, [1983] at p.
488), party liability can attach to anyone who aids or abets the agreement at any point
during the life of the conspiracy
 Aiding or encouraging someone to become a member of a pre-existing conspiracy
facilitates that new member’s commission of the offence of conspiracy — that is, the act
of agreement.
 To be consistent in principle, party liability should thus extend to assistance or
encouragement that results in the addition of a new member to a pre-existing conspiracy.
 In cases where the circumstantial evidence falls short of establishing membership, there
are other charges open to the prosecution. In some instances, the Crown will be able to rely
on party liability to charge the substantive offence that forms the object of the conspiracy,
or an attempt to commit that offence; in other instances, the offence of counselling the
substantive offence may apply.
R v. GAUTHIER (2013) – (SEE Criminal law and procedure note pg 50 for RATIO)
FACTS - G was charged with being a party, together with her spouse, L, to the murder of their
three children. G was a party to the murder in planning it as part of a murder-suicide pact and in
supplying the murder weapon. She did not act to prevent the children from being poisoned with
drinks served by her spouse, which contained Gravol and oxazepam. Thus, she aided L to kill the
children. At her jury trial, G claimed to have abandoned the common purpose of killing the
children and to have clearly communicated her intention to do so to her spouse. The jury found G
guilty of the first degree murder of her three children.
Wagner J: The appeal should be dismissed.
 G’s evidence that she communicated her withdrawal from the deadly plan and that her
communication was timely and unequivocal is insufficient.
 “I told Marc we couldn’t [do that]”: That communication would not on its own have sufficed, in
the circumstances of this case, for the judge to put the defence of abandonment to the jury = G did
more than merely promise to take part in the murder-suicide pact.
 She supplied her spouse with the intoxicants he used to cause the children’s deaths. She therefore
had to do more either to neutralize the effects of her participation or to prevent the commission of
the offence. For example, could have hidden or destroyed the medication, remained watchful and
taken the children to a safe place for the evening, insisted that her spouse give her verbal
confirmation of what he intended to do, or simply called the authorities.
 The defence of abandonment therefore did not meet the air of reality test, and the trial judge
was not required to put the defence to the jury.
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Essential Elements of the Defence of Abandonment
 Defence meets the air of reality test if there is “(1) evidence (2) upon which a properly instructed
jury acting reasonably could acquit if it believed the evidence to be true” (Cinous, at para. 82).
 In any case, the trial judge must determine whether the alternative defence has a sufficient factual
foundation, that is, whether a properly instructed jury acting reasonably could accept the defence
if it believed the evidence to be true.
 The defence can be raised by an accused who is a party to an offence on the basis that he or she did
or omitted to do anything for the purpose of aiding any person to commit the offence, or abetted
any person in committing it (s. 21(1) of the Criminal Code ), or on the basis that he or she had
formed with other persons an intention to carry out an unlawful purpose and to assist each other
therein and that an offence was committed in carrying out the common purpose (s. 21(2) of the
Criminal Code ), if the evidence shows:
(1) That there was an intention to abandon or withdraw from the unlawful purpose; (2) That
there was timely communication of this abandonment or withdrawal from the person in
question to those who wished to continue;
(3) That the communication served unequivocal notice upon those who wished to continue;
and
(4) That the accused took, in a manner proportional to his or her participation in the
commission of the planned offence, reasonable steps in the circumstances either to
neutralize or otherwise cancel out the effects of his or her participation or to prevent the
commission of the offence.
There will be circumstances in which timely and unequivocal communication by the accused of his
or her intention to abandon the unlawful purpose will be considered sufficient to neutralize the effects
of his or her participation in the crime. But there will be other circumstances, which it is hard to see
how timely communication to the principal offender.
B. COUNSELLING
(i) An accused can be convicted of counselling offenses whether or not offenses
counselled are actually committed. It does not matter if a person solicited never
intended to act in the offence.
(ii) If the accused counsels another person to commit an offence, and the offence is
committed, then s22 (person counselling offense) operates, and the person is found
guilty an d punished as if he had committed the complete crime.
(iii) If the offence isn’t committed, then s 464 (counselling offence that is not
committed) operates and the person is found guilty of a separate offence that is
punished as if she had been guilty of attempting the crime.
R V HAMILTON [2005] (Defines the elements for counselling an offence)
FACTS:
 H offered for sale through the Internet access to a credit card number generator.
 Mr. Hamilton was charged under s. 464(a) of the CC, in four separate counts, with
counselling the commission of indictable offences that were not in fact committed.
 The TJ was not satisfied that Mr. Hamilton had acted with the requisite mens rea, or
culpable intent, and she therefore acquitted him on all four counts
ISSUE: Whether the TJ erred as to the issue of mens rea
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REASONING:
 The actus reus for counselling is the active inducement of the commission of a criminal
offence.
 The mens rea consists of nothing less than an accompanying intent or conscious disregard
of the substantial and unjustified risk inherent in the counselling: that is, it must be shown
that the accused either intended that the offence counselled be committed, or knowingly
counselled the commission of the offence while aware of the unjustified risk that the
offence counselled was in fact likely to be committed as a result of the accused’s conduct.
 The TJ acquitted the accused on the count of counselling fraud because his motivation was
mercenary as opposed to malevolent.
 The TJ’s conclusion that the accused did not intend to induce the recipients to use those
numbers is incompatible with the plain meaning of the “teaser” e-mail and with her other
findings of fact, including her finding that the accused understood that the use of the
generated numbers was illegal.
 Her assertion that “[h]is motivation was monetary” immediately after her reference to these
facts demonstrates an error of law as to the mens rea for counselling the commission of a
crime, and warrants a new trial.
HELD: The TJ confounded “motive” and “intent”, and H should be found guilty of the offence
C. ATTEMPTS
(i) See s24 for definition of “attempts” - s24. (1) Everyone who, having an intent to
commit an offence, does or omits to do anything for the purpose of carrying out the
intention is guilty of an attempt to commit the offence whether or not it was possible
under the circumstances to commit the offence.
(ii) The question whether an act or omission by a person who has an intent to commit an
offence is or is not mere preparation to commit the offence, and too remote to
constitute an attempt to commit the offence, is a question of law.
(iii) Not all the crimes need to be complete before the offense
(iv) Arises. There is (1) discrete offense under s464 of counselling a crime that is not
committed, (2) the offense of conspiracy under s 465 in which the agreement to
commit a crime is a crime, and (3) there is a liability for attempting to commit an
offense under s24 of the CC

See s 463, 465, 660.
R V ANCIO [1984] (For one to be guilty of an attempt, they must intend to commit the
completed offence, and to have some act towards the accomplishment of that objective; e.g. for
murder, there must be the intent to kill)
FACTS:
 Accused broke into estranged wife’s apt. w/ a loaded gun; wife’s boyfriend throws chair at
him and gun goes off; convicted at trial of attempted murder b/c judge found that he broke
in w/ intent to use the weapon to force his wife to leave;
 C.A. overturned conviction and ordered a new trial
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ISSUE: What is the intent/MR req’d for an attempt to commit murder?
REASONING:
 As with any crime, to be convicted of an attempt, the Crown must prove mens rea,
that is, the intent to commit the offence in question, and the actus reus, that is, some
step towards the commission of the offence attempted beyond mere acts of
preparation
 Since the mischief contained in an attempt depends upon the nature of the crime intended,
the criminality lies much more in the intention than in the acts done
 Here, the completed offence of murder involves a killing. The intention to commit the
complete offence of murder must therefore include an intention to kill
 I find it impossible to conclude that a person may intend to commit the unint entional
killings described in ss212 and 213 of the Code. I am then of the view that the mens
rea for an attempted murder cannot be less than the specific intent to kill.
 MR for attempted murder is the specific intent to kill. An attempt to murder, aimed at the
completion of the full crime of murder, should not have an intent lesser than that of murder
 Mental state falling short of that level may well lead to conviction for other offences,
for example, one or other of the various aggravated assaults, but not to a conviction for
an attempt at murder.
HELD: New trial ordered
R V DEUSTCH [1986] (Sets out how to distinguish between attempts and mere preparation,
which does not constitute an attempt – focussing on the actus reus of an attempt)
FACTS: Accused charged with attempting to procure female persons to have illicit sexual
intercourse with another person. The accused posted ads for a secretary/sales assistant.
 Three women and a policewoman testified that the accused indicated that the job req’d
sexual intercourse with clients to conclude contracts.
 Generous salary $$$ was promised. TJ acquitted on the basis that his acts did not go far
enough because he had not offered the job to the woman.
ISSUE: How to distinguish between an attempt and mere preparation.
REASONING:
 There is no clear line between attempt and preparation.
 The difference between attempt and preparation is qualitative, involving the relationship
between the nature and quality of the act in question and the nature of the complete offence
 1. Define the nature of the actus reus of completed offence.
 2. Consider factors of proximity (how close was the completed offence?): Time,
location, and acts under the control of the accused.
HELD: The accused is guilty of attempting.
 I agree with the Court of Appeal that if the appellant had the necessary intent to induce or
persuade the women to seek employment that would require them to have sexual intercourse
with prospective clients then the holding out of the large financial rewards in the course of the
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
interviews, in which the necessity of having sexual intercourse with prospective clients was
disclosed, could constitute the actus reus of an attempt to procure.
There would be little else that the appellant would be req’d to do towards the completion
of the offence other than to make the formal offer of employment
R V DERY [2006] (No such offence as “attempting to conspire to do X”)
FACTS:
 D & S were charged w/ conspiring to commit theft and conspiring to possess stolen liquor
 The TJ found that no agreement had been established and acquitted the two of conspiracy
charges.
 However, he found their actions more than precatory to conspiracy and convicted them of
attempting to conspire.
 Never before has anyone been convicted in Canada of an attempt to conspire to commit a
substantive offence of any sort.
 There was no evidence that either accused had taken any steps to carry out the proposed
theft, and the TJ was not persuaded that they had at any point agreed to steal or possess the
liquor that was the object of their covetous musings
ISSUE: Whether there is any legal basis for concluding that attempt to conspire to commit an
indictable offence is a crime in Canada.
HELD: No such offence.
 When applying attempt to conspiracy, the justification for criminalizing attempt is lost,
since an attempt to conspire amounts, at best, to a risk that a risk will materialize
D. CORPORATE AND ASSOCIATION LIABILITY
(i) See ss 22.1, 22.2
(ii) Corporations are liable for the acts of their agents for strict and absolute liability
offences.
(iii) Since these kinds of offences turn on the actus reus alone, there is no need to use
any legal devises to ascribe mens rea to the corporation and so the Criminal Code
corporate liability provisions do NOT apply to regulatory offences.
(iv) For true crimes, the Criminal Code sets out standards for corporate and association
liability.
(v) Section 22.2 applies to subjective mens rea offenses charged against an association.
(vi) Section 22.1 applies to objective fault or negligence offenses where an association is
charged.
(vii) The required fault element of the offence must be found in a senior office – defined
in s2. Directors, chief executive and chief financial officer – an those who play an
important role in the establishment of policies who are senior enough that their fault
can be fairly be attributed to the corporation.
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[Note: for s 22.1, in addition to any mental element that must accompany the external
circumstances, the acts or omissions of the senior officer, the Crown must prove that a senior
officer had the ulterior intent, at least in part, to benefit the organization by the prohibited conduct]
 S 22.2 applies to subjective mens rea offences charged against an association
 See DEFINITIONS of “organization”, “representative” and “senior officer”: s2
IV. SELECT CRIMINAL DEFENCES
A. MENTAL DISORDER –
(i) s16 modifies common law defence of insanity:
1. s16(1) “No person is criminally responsible for an act committed or an omission
made;
2. While suffering from a mental disorder that rendered the person incapable of
appreciating the nature and quality of the act or omission or of knowing that it
was wrong
(ii) s16(2) – every person is presumed not to suffer from a mental disorder so as to be
exempt from criminal responsibility by virtue of subs (1), until the contrary is proved
on the balance of probabilities.
(iii)To establish this defence, the accused must establish:
1. that he has a “mental disorder” as defined by R v Cooper and as modified by R v
Park.
2. that the disorder affected him in one or both of the ways described in s16.
(iv) Mental disorder can be used a defense, if accused establish that he has a mental disorder
(as defined under s2 as “disease of mind”) and that it affected him in one or bith the
ways described under s16(1).
MENTAL DISOIRDER SECTION 16 –
Not
Criminally
Responsible
by
reason of Mental
Disorder
(NCRMD)
What is the disease
of mind?
 Prior to 1991, defense was “not guilty by reason of insanity” and would
result in an acquittal.
 Held indefinitely until Swain ruled that violation of s7.
 Parliament created NCRMD and new regime with goals of public safety and
treatment.
 “Mental Disorder means a disease of mind (s 2 of criminal code)
 Any illness disorder, or abnormal condition which impairs the human mind
and its functioning.
 Excluded however are: self-induced states caused by alcohol or drugs as well
as transitory mental states such as hysteria or concussion.
 Should be a broad meaning (Cooper)
 Disease of mind is a legal concept, although it includes a medical
component. Judge determines whether the condition constitutes a disease of
the mind.
Effect of NCRMD
 Disposition hearing by review board. Accused will be (s.672.54) –
 Released (discharged) without conditions
 Released (discharged) subject to appropriate conditions; o
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 Detained in custody in a hospital subject to appropriate conditions.
 The disposition will turn on factors including: need to protect the public,
mental condition of the accused, reintegration of the accused, other needs of
the accused.
 If person found NCRMD, can be held in an institution indefinitely.
 Has the effect that defense won’t necessarily raise the defense because
person could spend less time incarcerated if they plead guilty and do time.
Who can raise the
defense and when?
Burden of proof
TEST OF NCRMD
S16
 Accused can whenever they wish up until the point that a conviction is
entered (i.e. after the verdict given but before the conviction).
 Crown cannot raise md until accused has put his mental health at issue in the
trial OR in the space between rendering of verdict and entering of conviction
(SWAIN) rationale:
 Accused has the right to be found guilty or not guilty of the charge regardless
of if they have a mental illness.
 If MD brought up, early, might increase assumption of guilty.
 16(3) the BOP that an accused was suffering from a mental disorder so as to
be exempt from criminal responsibility is on the party that raises the issue.
 Reverse burden. If the Crown wants to raise mental disorder, then burden on
them. Its on a balance of probabilities.
 16(2) – presumption is no mental disorder
 16(3) – REVERSE BURDEN: burden of proof on party raising the issues on
a balance of probabilities
 16(1) did the disorder render the accused incapable of appreciating the
nature and quality of the act or omission OR of knowing that it was wrong?
 To appreciate the nature and quality of act means –
 Knowledge of the act AND
 Capacity to measure and foresee the consequences (COOPER)
 Does not mean –
 Having appropriate emotional feeling or remorse (KJELDSEN).
Psychopaths are then guilty and should be convicted and punished.
 Knowing the penal consequences (ABBEY)
 Irresistible impulses.
 To determine whether the accused was capable of knowing the act was
wrong.
 Ask- whether, owing to a disease of mind, an accused was incapable of
rationally evaluating whether the act was wrong in either a legal sense OR
as a matter of society’s moral views (CHAULK AND MORRISSETTE;
OOMMEN; LANDRY)
R v. COOPER [1980] (Provides a definition of “mental disorder”; start with this case, but then
move on to Parks below, which expands the definition)
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FACTS:
 The appellant was charged with the murder of another patient in the same institution.
 The appellant unsuccessfully attempted to have sexual intercourse w/ the victim then
chocked her.
 Appellant had a lengthy psychiatric history.
“Mental disorder”:
 “disease of mind” can mean different things to different psychiatrists.
 To some, for example, it may include such things as neurasthenia, anxiety states, hysteria,
and psychopathic personality. Others would exclude such disorders from the definition.
 There is support for a “broad and liberal legal construction of the words disease of mind”
 In summary, one might say that in a legal sense, “disease of the mind” embraces any
illness, disorder, or abnormal condition which impairs the human mind and its
functioning, EXCLUDING however, self-induced states caused by alcohol or drugs,
AS WELL AS transitory mental states such as hysteria or concussion.”
 In order to support a defence of mental disorder, of course, the disease must be of such
intensity that it renders the accused incapable of “appreciating the nature and quality
of the violent act or of knowing that it is wrong.”
“Appreciating the nature and quality of an act or omission”
 In using the term “appreciate” rather than “know”, the draftsmen of the code made a
deliberate change in language from the common law rule in order to broaden the legal and
medical considerations bearing upon the mental state of the accused and to make it clear
that cognition was not to be the sole criterion
 Our code stipulates an independent test, requiring a level of understanding of the act which
is more than mere knowledge that it is taking place; in short, a capacity to apprehend the
nature of the act and its consequences
 So mere knowledge of nature and quality of an act does not equal appreciation
 “To “know” the nature and quality of an act may mean merely to be aware of the physical
act, while to “appreciate” may involve estimation and understanding of the consequences
of that act.
 In the case of the appellant, as an example, in using his hands to choke the deceased, he
may well have known the nature and quality of that physical act of choking.
 It is entirely different to suggest, however, that in performing the physical act of choking,
he was able to appreciate its nature and quality in the sense of being aware that it could
lead to or result in her death. In the opinion of the medical expert who testified at the trial,
the appellant could have been capable of intending bodily harm and of choking the girl,
but not of having intended her death”
 The McRuer Report Test, which Dickson adopts: “Was the accused person AT THE
TIME of the offence… by reason of disease of the mind, unable fully to appreciate not
only the nature of the act but the NATURAL CONSEQUENCES that would flow
from it?” The legally relevant time is the time when the act was committed
 In the case of the appellant, as an example, in using his hands to choke the deceased, he
may well have known the nature and quality of that physical act of choking. It is entirely
different to suggest, however, that in performing the physical act of choking, he was able
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to appreciate its nature and quality in the sense of being aware that it could lead to or result
in her death.
 Underlying all of this discussion is the concept of responsibility and the notion that an accused
is not legally responsible for acts resulting from mental disease or mental defect
 Although the term expresses a legal concept and a finding is made according to a legal test,
psychiatric knowledge is directly linked to the legal conclusion, for medical testimony forms part
of the evidence on which the trier of fact must reach its decision
 Once the evidence is sufficient to indicate that an accused suffers from a condition which could
in law constitute disease of the mind, the judge must leave it open to the jury to find, as a matter
of fact, whether the accused had disease of the mind at the time the criminal act was committed.
R v. PARKS (defines MD)
 Disease” of the mind” is a legal term and not a medical term, but contains a substantial
medical component as well as a legal or policy component.
 The medical component of the term, generally, is the medical opinion as to how the mental
condition in question is viewed or characterized medically.
 The legal or policy component relates to: (a) the scope of the exemption from criminal
responsibility to be afforded by mental disorder; and (b) the protection of the public by the
control and treatment of persons who have caused serious harms while in a mentally
disordered state.
 Because disease of mind is a legal concept, a TJ cannot rely blindly on medical opinion.
 Two distinct approaches to the policy component of insanity have emerged in automatism
cases, the "continuing danger" and "internal cause" theories:
o The first theory holds that any condition likely to present recurring danger should be
treated as insanity;
o The second holds that a condition stemming from the internal make-up of the accused,
rather than external factors, should lead to a finding of insanity.
 The purpose of the insanity defense has always been the protection of the public against
recurrent danger
R v. KJELDSON [1981] (Psychopathy or sociopathy is not included w/in the definition of
mental disorder)
FACTS:
 The accused was out on parole for a previous murder.
 In violation of his parole, he took a plane from BC to Saskatchewan. He took a cab into
Regina.
 The driver was a woman. Later he called the cab company again and asked for the same
driver.
 On this second call, he asked the driver to stop the car after which he raped her and killed
her with a rock.
 Kjeldsen claimed to be psychotic and incapable of emotionally appreciating the
significance of his act. There was overwhelming evidence that the accused was a
psychopath.
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ISSUE: Can psychopathy be exempted by s16, w/in the words “incapable of appreciating the
nature and quality of an act or omission”?
REASONING
 Appreciation of the nature and quality of the act does not import a requirement that the act
be accompanied by appropriate feeling about the effect of the act on other people…”
 McIntyre J.—“…I do not think the exemption provided by s16(1) extends to one who has
the necessary understanding of the nature, character and consequences of the act, but
merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for
what he has done, even though such lack of feeling stems from ‘disease of the mind’.”
 “Appreciation of the nature and quality of the act does not import a requirement that
the act be accompanied by appropriate feeling about the effect of the act on other
people. … No doubt the absence of such feelings is a common characteristic of many
persons who engage in repeated and serious criminal conduct.”
HELD: Psychopathy cannot be exempted.
R. v. OOMMEN [1994] (Defines phrase “knowing the act was wrong”)
FACTS:
 Oommen suffered from a mental disorder describes as a psychosis of a paranoid delusion
type.
 He shot a women whom he thought was conspiring against him.
 Circumstances, such as the presence of a knife, and the going off of buzzers, helped to
establish an air of reality to Oommen’s testimony of suspecting a conspiracy.
 TJ did not grant a defence of mental disorder because the accused knew that the society
would think that his act was wrong. Had a general capacity of right and wrong.
ISSUE: Whether this delusion exempted Mr. Oommen from criminal responsibility under s16(1) of
the Criminal Code on the ground that he lacked the capacity at the relevant time to know the difference
between right and wrong.
REASONING:
 What is meant by the phrase "knowing that [the act] was wrong" in s16(1)?
 Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by
society?
 Or does it extend to the inability to rationally apply knowledge of right and wrong and hence
to conclude that the act in question is one which one ought not to do?
 The accused must possess the intellectual ability to know right from wrong in an
abstract sense.
 But he or she must also possess the ability to apply that knowledge in a rational way to
the alleged criminal act.
 The crux of the inquiry is whether the accused lacks the capacity to rationally decide
whether the act is right or wrong and hence to make a rational choice about whether to
do it or not
72
o Test: “Did the accused lack the capacity to rationally decide whether the act
is right or wrong and hence to make a rational choice about whether to do it
or not?” (810)
o The accused in the case at bar accepted society's views on right and wrong. The
suggestion is that, accepting those views, he was unable because of his delusion to
perceive that his act of killing was wrong in the particular circumstances of the case.
HELD: New trial ordered.
B. AUTOMATISM AND INVOLUNTARY ACTS “NEGATIVING” THE ACTUS REUS


The accused doesn’t satisfy the actus reus req\ unless his act is willed.
A sophisticated application of the voluntariness concept was employed in R v Swaby.
R v SWABY [2001] (An otherwise criminal act cannot be said to be voluntary unless the person
is given reasonable time to avoid committing the act)
FACTS:
 The appellant faced two sets of charges. He was charged with possession of an unregistered
restricted weapon, possession of prohibited ammunition, possession of a weapon for a
purpose dangerous to the public peace, being an occupant of a motor vehicle knowing there
was present a restricted weapon for which no occupant held a permit permitting possession,
and possession of a firearm with serial number defaced.
 The Crown’s case largely rested on the evidence of Johnson.
 He testified that the gun belonged to the appellant. Johnson denied any knowledge of its
existence until the two were in the appellant’s car.
 He swore that as they were driving, the appellant became alarmed by the attention of the
police. The appellant told Johnson that he had a gun.
 The appellant stopped the vehicle, handed Johnson the gun, and instructed him to dispose
of it in a backyard.
ISSUE: Did the TJ err in his answer to jury questions relating to the occupant of motor vehicle
charge?
REASONING
 The TJ erred in failing to give the jury a more complete answer to the questions it posed.
 To establish guilt on this count, the Crown had to prove the coincidence of the two essential
elements of the offence as defined by s. 91(3) [now repealed by s94(3)], namely occupancy
of the vehicle and the appellant’s knowledge of the weapon.
 It is implicit as well that the Crown had to prove that the coincidence of occupancy and
knowledge was attributable to something amounting to voluntary conduct on the part of
the appellant, as voluntary conduct is a necessary element of criminal liability
 If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it
surely cannot be the law that criminal liability instantly attaches.
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
There must be some period of time, however short, afforded to the person who has
acquired that knowledge to deal with the situation.
Accordingly, it is my view that if the appellant acquired knowledge of the weapon
while the vehicle was in motion, he would have to be given a reasonable opportunity
to either remove himself or to see that the weapon was removed from the vehicle.
If the appellant only acquired knowledge of the weapon at the point when Johnson was
leaving the vehicle, he would be entitled to an acquittal.
HELD: Conviction must be set aside
AUTOMATISM:
 It is the voluntariness concept that explains the defence of automatism.
 Note the automatism defence won’t realistically operate in any case where the accused
appears conscious of his conduct. It is reserved to those unusual cases where there appears
to be some disconnect b/w the actions of the accused and his conscious will
 Non-insane automatism is a full defence
 The accused bears both the persuasive and evidential burden in establishing this
defence (R v Stone; R v Fontaine)
 The decision in Parks was controversial enough that the SCC took procedural steps to cut
the defence back in R v Stone
 Some of the excessive language in of Stone was qualified in the decision of R v Fontaine
 Automatism is divided into two categories
o Insane (or mental disorder) and;
o Non-insane (non-mental disorder)
 Where the court finds “insane automatism” – the real defence is “mental disorder” – since
the accused person is automatistic b/c of a disease of the mind.
 If the defence used is “non-insane automatism”, a complete acquittal.
R v PARKS 1992 (Look at both medical/expert evidence and legal/policy considerations,
namely continuous danger and internal cause theories, to determine whether the automatism
defence can succeed)
FACTS:
 In the early morning of May 1987, Ken Parks drove to the house of his wife's parents.
 He attacked both of them with a kitchen knife, killing the mother and leaving the father
seriously injured. Following the attack Parks went to the police station and turned himself
in
ISSUE:
 The issue before the Supreme Court was whether the condition of sleepwalking can be
classified as non-insane automatism or should it be classified as "disease of the mind" (ie.
mental disorder automatism) and warrant a verdict of "not guilty for reason of insanity" or
non-insane automatism. This distinction is a matter of law and decided by the judge
REASONING:
Background
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
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
Only those found to be acting with the req’d voluntariness should be convicted of a
crime.
Automatism, although spoken as a “defence”, is conceptually a sub-set of the
voluntariness requirement.
An involuntary act, including one committed in an automatistic condition entitles an accused
to an unqualified acquittal, unless the automatistic condition stems from a disease of the mind
that has rendered the accused insane.
Everyone is presumed to be sane until the contrary is proved.
The question of law at issue here, given that the accused laid the proper foundation for the
defence of automatism, was whether sleepwalking should be classified as non-insane
automatism or a disease of the mind, thereby leaving only the defence of insanity for the
accused.
“Disease of mind” or automatistic state?
 “Disease” of the mind” is a legal term and not a medical term, but contains a substantial
medical component as well as a legal or policy component.
 The medical component of the term, generally, is the medical opinion as to how the mental
condition in question is viewed or characterized medically.
 The legal or policy component relates to: (a) the scope of the exemption from criminal
responsibility to be afforded by mental disorder; and (b) the protection of the public by the
control and treatment of persons who have caused serious harms while in a mentally
disordered state.
 Because disease of mind is a legal concept, a TJ cannot rely blindly on medical opinion.
 Two distinct approaches to the policy component of insanity have emerged in automatism
cases, the "continuing danger" and "internal cause" theorie:
o The first theory holds that any condition likely to present recurring danger should be
treated as insanity.
o The second holds that a condition stemming from the internal make-up of the
accused, rather than external factors, should lead to a finding of insanity.
 The purpose of the insanity defence has always been the protection of the public against
recurrent danger.
 Sleepwalking is not a disease of mind (“DOM”), but instead it’s non-insane automatism
because it likely won’t reoccur.
 Use these theories to help classify DOM or not & are therefore not bound by psych./med.
Evidence.
 Must also consider policy in addition to theories above (floodgates). Relevant policy issue:
recurring danger
Application
 On the evidence there is no likelihood of recurrent violent somnambulism. Moreover, none
of the other policy considerations relevant to the distinction between insanity and automatism,
for example, the floodgates argument, or that automatism can be feigned, is of concern in this
case.
 Here, won’t be floodgates: Parks had supported his testimony with medical evidence and
expert testimony.
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

Somnambulism is a condition that is not well suited for analysis under the internal
cause theory.
Our system of justice is predicated on the notion that only those who act voluntarily should
be punished under the criminal law. Here, no compelling policy factors preclude a finding
that the accused's condition was one of non-insane automatism.
However, because the medical evidence in each case impacts at several stages of the policy
inquiry and is significant in its own right, sleepwalking in a different case on different
evidence might be found to be a disease of the mind.
R v STONE [1999] (Leading case on the automatism defence – limits non-insane automatism
in Parks)
FACTS: S and wife had conflicts in relationship.
 One day in car, S’s wife was telling him off, saying he’s a lousy fuck with a small dick
 S claimed that her voice began to fade away and a “whooshing” sensation came over him.
 Next thing he remembers is looking down at her body slumped over the seat and a knife in
his hand.
 He had stabbed her 47 times. He hid her body in his truck's tool chest, left a note for his
daughter, and took off to Mexico.
REASONING:
Psychiatric evidence
 Defence psychiatrist testified that the appellant’s account of the facts in this case was
consistent with a dissociative episode caused by a series of psychological blows.
 Crown psychiatrist testified that, although it is possible, it is extremely unlikely that the
appellant was in a dissociative state when he killed his wife.
 Dr. Murphy’s scepticism was based upon several factors.
 First, she pointed out that the appellant’s reported decrease in concentration, difficulty
following driving directions and memory loss were common phenomenon which, though
consistent with dissociation, could easily be attributed to a number of other factors.
 Dr. Murphy also pointed out that the frenzied, overkill nature of the attack was equally
consistent w/ rage as w/ dissociation.
Nature of automatism
 Two forms of automatism are recognized at law:
o insane automatism, and
o non-insane automatism.
 Involuntary action which does not stem from a disease of the mind gives rise to a claim of
non-insane automatism
 Involuntary action which does not stem from a disease of the mind gives rise to a claim of
non-insane automatism. If successful, a claim of non-insane automatism entitles the
accused to an acquittal.
 On the other hand, involuntary action which is found, at law, to result from a disease of the
mind gives rise to a claim of insane automatism.
76


It has long been recognized that insane automatism is subsumed by the defence of mental
disorder, formerly referred to as the defence of insanity.
Accordingly, a successful claim of insane automatism will trigger s16 of the Code and
result in a verdict of not criminally responsible on account of mental disorder
The Stone Test
Step #1: Is there a proper foundation for a finding of automatism?
 The law presumes people to act voluntarily, so accused must rebut presumption of
voluntariness by showing that there is evidence upon which a properly instructed jury
could find on the BOP that the accused was automatistic (Fontaine overruled this, air of
reality requirement instead of BOP).
 Must be expert evidence to confirm its claim.
 The TJ will also examine all other available evidence, if any,
 Examine factors to see whether defence has met the evidential burden (Fontaine states
jury now examines these factors, because this would involve weighing of evidence):
o Corroborating evidence of a bystander which reveals that the accused
appeared uncharacteristically glassy-eyed, unresponsive and or distant
immediately before, during or after the alleged involuntary act
o Severity of triggering stimulus
o Corroborating evidence of bystanders
o Corroborating medical history
o Whether there is a motive for crime – ie, A motiveless act will generally lend
plausibility to an accused’s claim of involuntariness
o Whether the trigger is the victim.
Step #2: If Step # 1 satisfied, the TJ determines whether the condition alleged is mental disorder
or non-mental disorder automatism (i.e. which defence should be left with the jury):
 The assessment of which form of automatism should be left with the trier of fact
comes down to the question of whether or not the condition alleged by the accused is
a mental disorder.
 Judge to start from proposition that condition is DOM – does evidence take it out of
category?
o Internal cause factor:
 If “internal cause” it is DOM (disease of the mind) but may still be DOM
if not internal.
 The nature of the alleged trigger of the automatism is at the centre of the
comparison the TJ must undertake. In effect, the TJ must consider the
nature of the trigger and determine whether a normal person in the same
circumstances might have reacted to it by entering an automatistic state as
the accused claims to have done.
 For psychological blow automatism, evidence of an extremely shocking
trigger will be req’d to establish that a normal person might have reacted
to it by entering an automatistic state as the accused claims to have done.
77

It will be internal if not “extraordinary event that would cause a normal
person to dissociate”.
o Continuing danger factor:
 Any condition which is likely to present a recurring danger to the public
should be treated as a disease of the mind (but may still be DOM if not
continuing danger)
 Consider expert evidence:
 Consider medical history/psychiatric history
 Consider likelihood of triggers occurring
o Other “policy factors”
 There may be cases in which consideration of the internal cause and
continuing danger factors alone does not permit a conclusive answer to the
disease of the mind question; e.g., where the internal cause factor is not
helpful because it is impossible to classify the alleged cause of the
automatism as internal or external, and the continuing danger factor is
inconclusive because there is no continuing danger of violence.
 Policy concerns assist TJs in answering the fundamental question of mixed
law and fact which is at the centre of the disease of the mind
inquiry: whether society req’s protection from the accused and,
consequently, whether the accused should be subject to evaluation under
the regime contained in Part XX.1 of the Code.
 Policy considerations include:
 Reputation of administration of justice
 Ease of feigning (faking)
 Floodgates
 Ensuring public safety
Step #3: Available Defences Following the Determination of the Disease of the Mind Question
 If the TJ concludes that the condition the accused claims to have suffered from is not a
disease of the mind, only the defence of non-mental disorder automatism will be left with
the trier of fact as the TJ will have already found that there is evidence upon which a
properly instructed jury could find that the accused acted involuntarily. The question for
the trier of fact will then be whether the defence has proven, on a balance of probabilities
that the accused acted involuntarily. A positive answer to this question by the trier of fact
will result in an absolute acquittal.

If the TJ concludes that the alleged condition is a disease of the mind, only mental disorder
automatism will be left with the trier of fact.The case will then proceed like any other s16
case, leaving for the trier of fact the question of whether the defence has proven, on a
balance of probabilities, that the accused suffered from a mental disorder which rendered
him or her incapable of appreciating the nature and quality of the act in question
HELD: The TJ had found that only the non-insane automatism defence applied; however, the
triggering effect for Stone was not something that would reasonably be expected from a normal
78
person. Consequently, his defence should fail (note, however, that the SCC did not doubt that a
more severe psychological blow could induce a normal person into an automatistic state)
COMMENT:
 Remember that one need not be asleep to achieve a state of automatism. A person who is
awake and sane may suffer a “psychological blow”;
 Majority took judicial notice that it will only be in rare cases that automatism is not caused
by mental disorder.
R v FONTAINE [2004] (Qualifies the Stone test in some ways)
FACTS: The accused worked as a garage mechanic. He received a call from R, a disgruntled
former employee, who said, “We’re coming to get you, pigs.”
 The accused later heard from a co-worker that the victim had been offered a contract to
kill both of them. Feeling that he was being watched and followed, the accused purchased
a firearm.
 One evening, the accused thought he saw R lurking outside his home. The co-worker came
by to check, but noticed nothing unusual.
 During the night, after smoking marijuana, the accused thought he heard someone breaking
into his home so he fired shots at windows and walls and concluded he had shot the
intruders.
 Seeing the victim at the garage the next day, the accused shot and killed him.
 Before a judge and jury, the accused pleaded mental disorder automatism. Several
psychiatrists gave evidence. The judge refused to put this defence to the jury on the ground
that the req’d evidential foundation had not been laid.
 The accused was convicted of 1st degree murder. The CA quashed the conviction and
ordered a new trial.
ISSUE:
 Did CA err in law as to the nature of the evidential burden on a defence of mental disorder
automatism?
 Did CA err in law in concluding that the respondent had discharged that burden in this case
and was therefore entitled to have his defence considered — and decided — by the jury?
REASONING:
 “Evidential burden” is not a burden of proof – it determines whether an issue s/b left to the
trier of fact
 “persuasive burden” determines how the issue s/b decided
 The first is a matter of law, the 2nd is a question of fact!
 So at trial, the judge decides if whether the evidential burden has been met and it is up to
the jury to decide the quality, weight or reliability of the evidence
 Stone case is a bit overzealous in its attempt to almost make non-mental disorder
automatism impossible to argue.
79
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



Stone can no longer be read that way in view of the Court’s subsequent decisions,
particularly R. v. Arcuri, and R. v. Cinous.
In the case of “reverse onus” defences, such as automatism, it is the accused who bears the
persuasive and the evidential burdens.
Reverse onus defences will therefore go to the jury (be in play) where there is any evidence
upon which a properly instructed jury, acting judicially, could reasonably decide the issue
(air of reality).
Where mental disorder automatism is raised as a defence, an assertion of involuntariness
on the part of the accused, supported by the logically probative opinion of a qualified
expert, will normally provide—as it did in this case—a sufficient evidentiary foundation
for putting the defence to the jury.
So, for step 1 of the automatism defence analysis, the “air of reality” test must be met.
Further, there is to be no weighing of the factors which were suggested in Stone (this can
be left for the jury to do) (i.e. may apply those factors outlined in Stone at step 1, at step 3
by
the
trier
of
fact)
COMMENT: Compare reverse onus defences, like automatism, with “ordinary” defences, where
the accused has no persuasive burden at all. Once the issue has been “put in play”, the defence
will succeed unless it is disproved by the Crown beyond a reasonable doubt.
R v. LUEDECKE, 2008
FACTS –
The accused was charged with sexual assault. He admitted that he engaged in non-consensual
relations with the victim, but claimed that he was asleep when the sexual activity occurred. At
trial, he called a sleep-disorder expert who opined that the accused was in parasomnia state at the
time without any volition, consciousness or capacity to control his or her behaviour. The accused
had a family history of parasomnia and had experienced events in the past, including episodes of
engaging in sexual intercourse with girlfriends while asleep. The expert identified factors that are
known to trigger parasomnia events in individuals predisposed too parasomnia, including sleep
deprivation, stress and alcohol consumption. Finally, the expert testified that, from a medical
perspective, he did not regard parasomnia as a mental disease or disorder. TJ found that the
accused’s actions were involuntary and that they were not the product of mental disorder. He
acquitted the accused.
HELD – the appeal should be allowed.
 In acquitting the accused rather than finding him “not criminally responsible” (NCR) on
account of mental disorder, TJ failed to apply the proper legal standards.
 If an accused establishes that he or she acted involuntarily while in a disassociated state,
he or she will almost always be found NCR.
 At the post-verdict stage, the emphasis shifts to an individualized assessment of the
actual dangerousness of the NCR accused. Where that personalized assessment does
not demonstrate the requisite significant risk, the NCR accused must receive an
absolute discharge.
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
Even where a significant risk exists, the disposition order must be tailored to the specific
circumstances of the individual and must, to the extent possible, minimize the
interference with that individual's liberty.
In this case, the trial judge failed to appreciate the significance of the hereditary nature
of the accused's condition, failed to give effect to the accused's well-established history
of what the defense expert called "sexsomnia" and failed to appreciate the
significance of the strong likelihood of the recurrence of the events that triggered the
sexsomnia.
The trial judge also failed to appreciate that the expert's medical opinion that
parasomnia did not constitute a mental disorder was largely irrelevant to the
determination of whether, for policy reasons, the condition should be classified legally as
a disease of the mind.
On a successful Crown appeal from acquittal, the court may order a new trial or, if the
original verdict was not returned by a jury, substitute a conviction.
The court does not have the power to substitute an NCR verdict for the acquittal. As
this was not a case for a conviction, a new trial was the only possible remedy. Section
686(6) of the Criminal Code authorizes an order ancillary to an order for a new trial
made under s. 686(4) limiting the scope of the new trial.
In this case, it was appropriate to make an order limiting the new trial to whether the
accused's automatism should result in an acquittal or an NCR verdict.
ANSWER FORMAT
**FINAL NON-INSANE/INSANE AUTOMATISM DEFENCE FRAMEWORK **
(AS PER PARKS; STONE; FONTAINE)
STEP (1): Is there a proper foundation for a finding of automatism?
 The law presumes people to act voluntarily, so [the accused] must rebut presumption of
voluntariness (Parks; Stone)
 To do so, [the accused] must show that there is an “air of reality” to the defence, namely
that there is some evidence with which a properly instructed jury could reasonably, on
account of that evidence, conclude in favour of the accused (Fontaine).
 Note that the evidence must be supported from psychiatric expert evidence (Stone)
STEP (2): If Step # 1 satisfied, the TJ determines whether the condition alleged is mental
disorder or non-mental disorder automatism (i.e. which defence should be left with the jury):
 The assessment of which form of automatism should be left with the trier of fact comes
down to the question of whether or not the condition alleged by the accused is a mental
disorder
 Judge to start from proposition that condition is disease of mind, and asks whether evidence
takes it out of category (Stone)
 Judge should consider the following:
81
o Internal cause factor:
 If the condition stems from an “internal cause”, this means that the condition
is a “Disease of the Mind” (Note: if not internal cause, still may be DOM)
 The nature of the alleged trigger of the automatism is at the centre of the
comparison the TJ must undertake. In effect, the TJ must consider the
nature of the trigger and determine whether a normal person in the same
circumstances might have reacted to it by entering an automatistic state as
the accused claims to have done
 For psychological blow automatism, evidence of an extremely shocking
trigger will be req’d to establish that a normal person might have reacted to
it by entering an automatistic state as the accused claims to have done.
 It will be internal if not “extraordinary event that would cause a normal
person to dissociate”.
o Continuing danger factor:
 Any condition which is likely to present a recurring danger to the public
should be treated as a disease of the mind (but may still be DOM if not
continuing danger)
 Consider expert evidence
 Consider medical history/psychiatric history,
 Consider likelihood of triggers occurring.
o May consider other “policy factors”
 There may be cases in which consideration of the internal cause and
continuing danger factors alone does not permit a conclusive answer to the
disease of the mind question.
 e.g., where the internal cause factor is not helpful b/c it is impossible to
classify the alleged cause of the automatism as internal or external, and the
continuing danger factor is inconclusive b/c there is no continuing danger
of violence.
 Policy concerns assist TJs in answering the fundamental question of mixed
law and fact which is at the centre of the disease of the mind
inquiry: whether society req’s protection from the accused and,
consequently, whether the accused s/b subject to evaluation under the
regime contained in Part XX.1 of the Code.
 Policy considerations include:
 Reputation of administration of justice.
 Ease of feigning (faking)
 Floodgates potentiality
 Ensuring public safety
STEP (3): Available defences for trier of fact to consider:
 Non-insane automatism?
o If the TJ concludes that the condition the accused claims to have suffered from is
not a “DOM”, only the defence of non-mental disorder automatism will be left with
82
the trier of fact as the TJ will have already found that there is evidence upon which
a properly instructed jury could find that the accused acted involuntarily.
o The question for the trier of fact will then be whether the defence has proven, on a
balance of probabilities that the accused acted involuntarily.
o A positive answer to this question by the trier of fact will result in an absolute
acquittal.
o Here, jury may be instructed to consider things such as:
 Whether there is a motive for crime – ie, A motiveless act will generally
lend plausibility to an accused’s claim of involuntariness.
 Severity of triggering stimulus.
 Corroborating evidence of bystanders.
 Corroborating medical history.
 Whether the trigger is the victim

Insane automatism?
o If the TJ concludes that the alleged condition is a “DOM”, only mental disorder
automatism will be left with the trier of fact.
o The case will then proceed like any other s16 case, leaving for the trier of fact the
question of whether the defence has proven, on a balance of probabilities, that the
accused suffered from a mental disorder which rendered him or her incapable of
appreciating the nature and quality of the act in question.
o A successful defence of mental disorder automatism will result in a verdict of not
criminally responsible on account of mental disorder as dictated by s672.34 of the
Code. Under s672.54, an accused who receives this qualified acquittal may be
discharged absolutely, discharged conditionally or detained in a hospital
RABEY v. R. (1980) Read from GR notes pg85
Also look for table on AUTOMATISM on criminal law notes – PG59
C. SIMPLE INTOXICATION AND SPECIFIC INTENT CRIMES

Remember that the defence applies to both drugs and alcohol.
(a) SIMPLE INTOXICATION





Intoxication does not operate as a justification or excuse for criminal conduct.
Rather, it helps leave the judge or jury in reasonable doubt as to whether the accused
formed the relevant mens rea for the offence.
The law is hostile towards this defence, therefore it only applies to “specific intent”
offences
For “general intent” offences, it will be assumed that the accused was not intoxicated (even
if he was)
Therefore, this law is more of a way of limiting cases where the judge or jury can factor
intoxication into mens rea, rather than operating as a defence
83
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
Even if you are found not guilty of a specific intent offence on the account of intoxication,
you can still be convicted of an included general intent offence (e.g. murder =>
manslaughter, e.g. assault with intent => assault)
- See R v Daviault below for a distinction between general and specific intent offences
General Intention Offences
Specific Intention Offences
1. Assault (S. 266)
1. Assault W/ Intent To Resist Arrest
S270(B)
2. Arson Causing Bodily Harm S433
2. Arson W/ Intent To Defraud S435
3. Break Enter And Commit
3. Break Enter W/ Intent To Commit
S348(1)(A) & (B)
4. Sexual Assault (Rape)
4. Touching For A Sexual Purpose S
271 & S151
5. Manslaughter
5. Murder
6. Theft
***Note: this categorization assumes voluntary
intoxication***
7. Attempted Assault, Break And
Enter, Sexual Assault, Etc.
R v BERNARD [1988] (Sexual assault causing bodily harm is a general intent offence, and
therefore simple intoxication doesn’t work as a defence)
FACTS:
 B charged w/ sexual assault causing bodily harm s 246.2(c) (now s272)
 B committed the sexual assault upon the 18 year-old complainant in his apartment.
 It was conceded that intercourse had taken place w/o the consent of the complainant.
 During the course of the assault, the appellant punched her, caused an injury to her eye, and
threatened to kill her.
ISSUE: The intoxication defence; distinguishing between general and specific intent crimes
REASONING:
 Sexual assault merely adds the req’ of causing bodily harm to complainant.
 Resulting interference w/ physical integrity of the complainant aggravates the seriousness
of a sexual assault but the mental element remains the same.
 Therefore, it’s a general intent offence (i.e. the mental element is the intent to commit
the assault)
84
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

General intent: offence in which the only intent involved relates solely to the performance
of the act in question w/ no further ulterior intent or purpose.
Specific intent: involves the performance of the actus reus, coupled w/ an intent or purpose
going beyond the mere performance of the questioned act (e.g. assault with the intent to
maim or wound)
Drunkenness in a general sense is not a true defence to a criminal act. Where, however, in a
case which involves a crime of specific intent, the accused is so affected by intoxication that
he lacks the capacity to form the specific intent req’ to commit the crime charged it may apply.
The defence, however, has no application in offences of general intent.
 For general intent offences simple intoxication does not work because:
 A person is presumed to have intended the natural and probable consequences of his
actions.
 In cases where accused was so intoxicated as to raise doubt as to the voluntary nature of
his conduct, Crown may meet this evidentiary obligation respecting the necessary
blameworthy mental state of the accused by proving the fact of voluntary self-induced
intoxication by drugs or alcohol.
 The reckless behaviour in attaining the level of intoxication affords necessary
evidence of a culpable mental condition
 Policy grounds = can’t intoxicate yourself; commit a crime, and then use your intoxication
as a defence here.
 Does it violate s7 and s11(d) of the Charter?
 Not a violation.
 Rule recognizes that accused persons who have voluntarily consumed drugs or alcohol,
thereby depriving themselves of self-control leading to the commission of a crime, are not
morally innocent, and are, indeed, criminally blameworthy.
 While rule excludes consideration of voluntary intoxication in the approach to general
intent offences, it nonetheless recognizes that it may be a relevant factor in those generally
more serious offences where the mens rea must involve not only the intentional
performance of the actus reus but, as well, the formation of further ulterior motives and
purposes.
 Only intrudes upon security of the person in accordance with sound principles and w/in
established boundaries of legal process.
R v ROBINSON [1996] (Overrules MacAskill; outlines 2 step process when dealing w/ claims
of simple intoxication)
FACTS:
 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.
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
The Court of Appeal, however, allowed his appeal.
ISSUE:
(1) How juries should be instructed regarding evidence of intoxication;
(2) Whether the charge to the jury, read as a whole, constituted misdirection and reversible error on
the issues of intoxication, the common-sense inference that a person intends the natural and probable
consequences of his or her acts, and the burden on the Crown to prove the intent req’d for murder
beyond a reasonable doubt;
REASONING:
 The rule in MacAskill provides that intoxication is not a relevant factor for triers of fact to
consider except where the intoxicant removed the accused’s “capacity” to form the
requisite intent
 But a trier of fact only need to find that the accused did not have the mens rea (i.e. intent
in fact) for the offence and if not found, do not need to inquire about capacity to have intent.
 Why look at capacity when the offence says D is only guilty if has he has intent?
 Of course, if he lacked the capacity to form that intent, then he did not have the intent, but the
converse proposition does not follow, i.e., it does not follow that just because he had the
capacity, he also had the specific intent
 It would be contrary to the Charter to require capacity because it would allow an accused
to be convicted in the face of a reasonable doubt as to whether he had the req’d mens rea.
 The inquiry is in the actual state of mind and not the capacity to have a state of mind.
 Threshold that m/b met: m/b evidence that the intoxication must have undermined the mens
rea.
 Must have air of reality.
 The rule in MacAskill should be overruled.
What new rule should replace MacAskill?
1) TJ 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
2) TJ then instructs jury that the issue before them is whether the Crown has satisfied them
BRD that the accused had the requisite intent
 (e.g. 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)
R v. GEORGE, [1960] S.C.R.
Facts:
 Charged with robbery with violence, and was acquitted by the trial judge on the ground
that he was so intoxicated as to be incapable of forming the specific intent to commit
robbery. In appealing this decision, the Crown contended that the trial judge did not
consider the included offence of common assault and, in the result, failed to direct himself
with respect to the divisibility of the charge laid and to the incidence of drunkenness as a
defence to a charge of common assault, as distinguished from a charge of robbery with
violence.
86
FAUTEUX J.: The appeal should be allowed, the verdict of acquittal with respect to common
assault set aside, and a verdict of guilty of that offence entered.
 Pursuant to s. 569 of the Code the trial judge was under a duty to consider the included
offence of assault. The manner in which force was applied by the respondent to his victim
was not accidental or unintentional
 Offence of robbery requires the presence of the kind of intent and purpose specified in ss.
269 and 288 of the Code, but the use of the word "intentionally" in defining "common
assault" in s. 230(a) is exclusively referable to the physical act of applying force to a person
ANALYSIS:
 In considering the question of mens rea, a distinction is to be made between: (i) intention
as applied to acts considered in relation to their purposes and (ii) intention as applied to
acts considered apart from their purposes. A general intent attending the commission of an
act is, in some cases, the only intent required to constitute the crime while, in others, there
must be, in addition to that general intent, a specific intent attending the purpose for the
commission of the act.
 Classified robbery as a specific intent offence that allows a defense of simple intoxication
but found that the included offence of assault was a general intent offence that did not allow
the defence.
o Contrary to what is the case in the crime of robbery, where, with respect to theft, a
specific intent must be proved, there is no specific intent necessary to constitute the
offence of common assault.
 Evidence of drunkenness which renders the accused incapable of forming the specific
intent essential to constitute the crime should be taken into consideration with the other
facts proved in order to determine whether or not he had this intent
 The question is whether, owing to drunkenness, respondent's condition was such that he
was incapable of applying force intentionally.
 As provided by s. 569(1) (a) of the Code, when the commission of the offence charged, as
described in the enactment creating it or as charged, includes the commission of another
offence, the charge is divisible, and the accused may be convicted of the offence so
included, if proved, notwithstanding that the whole offence that is charged is not proved
R. v. DAVIAULT, [1994] S.C.R.
FACTS:
 65-year-old woman who is partially paralysed and thus confined to a wheelchair, knew the
accused through his wife. At about 6:00 p.m. one evening, at her request, the accused arrived
at her home carrying a 40-ounce bottle of brandy. The complainant drank part of a glass of
brandy and then fell asleep in her wheelchair. When she awoke during the night to go to the
bathroom, the accused appeared, grabbed her chair, wheeled her into the bedroom, threw her
on the bed and sexually assaulted her. The accused had drunk the rest of the bottle between
6:00 p.m. and 3:00 a.m. The accused was a chronic alcoholic. He testified that he had spent
the day at a bar where he had consumed seven or eight bottles of beer. He had no recollection
of what occurred between then and when he awoke nude in the complainant's bed. He denied
sexually assaulting her.
87

The pharmacologist called by the defence as an expert witness testified that an individual with
the blood-alcohol ratio he hypothesized the accused would have had after consuming that
amount of alcohol might suffer a blackout. In such a state the individual loses contact with
reality and the brain is temporarily dissociated from normal functioning.
Cory J.: The appeal should be allowed and a new trial ordered.
 The voluntary act of becoming intoxicated cannot be substituted for the voluntary action
involved in sexual assault. Self-induced intoxication cannot supply the necessary link between
the minimal mens rea required for the offence and the actus reus.
 Strict application of the rule that the mens rea of a general intent offence cannot be negated
by drunkenness offends both ss. 7 and 11 (d) of the Charter. To eliminate the mental aspect
of an offence would be to deprive an accused of fundamental justice.
 The mental element in general intent offences can be inferred from the proof that the assault
was committed by the accused.
 Wilson J. in Bernard, whereby evidence of intoxication could properly go before a jury in
general intent offences if it demonstrated such extreme intoxication that there was an absence
of awareness which was akin to a state of insanity or automatism.
 Given the minimal nature of the mental element required for crimes of general intent, even
those who are significantly drunk will usually be able to form the requisite mens rea and will
be found to have acted voluntarily. Extreme intoxication akin to automatism or insanity
should, like insanity, be established by the accused on a balance of probabilities. It will only
be on rare occasions that evidence of such an extreme state of intoxication can be advanced.
 While such a burden constitutes a violation of the accused's rights under s. 11 (d) of
the Charter , it can be justified under s. 1 . It is only the accused who can give evidence as to
the amount of alcohol consumed and its effect upon him. Expert evidence would be required
to confirm that the accused was probably in a state akin to automatism or insanity as a result
of his drinking.
R. v. DAVIAULT – Sopinka J.
 Two factors help distinguish crimes of general intent from those of specific intent: first,
“[t]he nature of the mental element and its relative importance” and second, “the social
policy sought to be attained by criminalizing the particular conduct”: p. 122.
 General intent crimes involves “minimal intent to do the act which constitutes the actus
reus”: Daviault, at p. 123. Crimes involve minimal thought and reasoning processes, even
a high degree of intoxication short of automatism is unlikely to deprive the accused of the
slight degree of mental acuity required to commit them.
o Bearing in mind the common sense inference that a person intends the natural
consequences of his or her actions, one can typically infer intent from the act.
o “Offences that persons who are drunk are apt to commit”.
 Specific intent crimes require a heightened mental element, often require “the formation of
further ulterior motives and purposes”: Daviault, at p. 123
o More complicated thought and reasoning processes, one can readily understand
how intoxication short of automatism may negate the required mental element.
o Likely to be the type of offences that intoxicated people are apt to commit.
88
o Specific intent offences often include lesser offences that only require general
intent. In such cases, an intoxicated offender will not escape punishment: Daviault,
p. 124.
R. v. LEMKY, [1996] 1 S.C.R.
FACTS:
 The accused fatally shot his companion during a domestic argument and was convicted of
second degree murder. He had maintained at trial that the gun had gone off by
accident. Evidence was conflicting as to his state of inebriation at the time: the police noted
several physical characteristics of drunkenness and a breathalyzer taken shortly after his
arrest registered .130.
McLachlin J.: The evidence was insufficient to raise a reasonable inference that the accused did
not foresee the consequences of his act.
 The trial judge must instruct the jury on any defence that on the evidence has an air of
reality. The threshold test is met when there is an evidentiary basis for the defence which,
if believed, would allow a reasonable jury properly instructed to acquit.
 The Beard test (Director of Public Prosecutions v. Beard) no longer governs.
 Drunkenness may afford a defence where the evidence falls short of reasonably supporting
the inference that the accused lacked the capacity to form the intent required by the
relevant Criminal Code provision. The jury must be instructed that the ultimate issue is
whether they are satisfied beyond a reasonable doubt that the accused actually intended the
consequences of his or her act.
 The threshold for putting the defence to the jury must be evidence sufficient to permit a
reasonable inference that the accused did not in fact foresee the consequences of act.
 While capacity and actual intent may be related, cases exist where evidence, which falls short of
establishing that the accused lacked the capacity to form the intent, may still leave the jury with a
reasonable doubt that the accused did in fact foresee the likelihood of death when the offence was
committed.
R v DALEY [2007] SCR
FACTS:
 After more drinking and socializing, D and a friend rode on motorcycles on search for
another party, leaving M. D returned around five in the morning. The house was locked
and neighbours heard him cursing and trying to get into the house and his vehicles. Later
in the morning, M was found in the kitchen, dead from a stab wound. D was found drunk
in a bedroom and arrested for murder. At trial, D testified that, due to his alcohol
consumption on that night, he was unable to remember the events that took place after he
arrived home. An expert witness testified about the effect of alcohol on judgment and brain
function.
BASTARACHE J.: jury found D guilty of second degree murder
89
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





For a murder charge, the defence of intoxication will only be available to negate specific
intent so as to reduce the charge to manslaughter.
Three legally relevant degrees of intoxication:
o First, mild drunkenness, which induces relaxation of both inhibitions and socially
acceptable behaviour. This has never been accepted as a factor in determining
whether the accused possessed the requisite mens rea and the trial judge is not
required to give any instruction on mild intoxication.
o Second, there is advanced intoxication, i.e. intoxication to the point where the
accused lacks the specific intent, to the extent of an impairment of the accused’s
foresight of the consequences of his or her act sufficient to raise a reasonable doubt
about the requisite mens rea. A defence based on this level of intoxication applies
only to specific intent offences and the extent of intoxication required to advance it
successfully may vary, depending on the type of offence involved.
o Third, there is extreme intoxication akin to automatism, which negates
voluntariness and thus is a complete defence to criminal responsibility, but such a
defence would be extremely rare and, by operation of s. 33.1 of the Criminal
Code , limited to non-violent types of offences
The trial judge’s instructions on advanced intoxication should cover eight elements:
o (1) Instruction on the relevant legal issues, including the charges faced by the
accused; (2) an explanation of the theories of each side; (3) a review of the salient
facts which support the theories and case of each side; (4) a review of the evidence
relating to the law; (5) a direction informing the jury they are the masters of the
facts and it is for them to make the factual determinations; (6) instruction about the
burden of proof and presumption of innocence; (7) the possible verdicts open to the
jury; and (8) the requirements of unanimity for reaching a verdict [29]
The trial 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.
One of the main questions was whether D was so intoxicated that he could not foresee that
stabbing M would result in her death. A clear and specific linkage between foreseeability
and intoxication was not necessary so long as the charge as a whole conveyed the need to
address the effect of drunkenness on foreseeability.
For expert testimony to be relevant, accused had to clearly convey that someone in their
state could not foresee the consequences of his actions.
If accused was capable of voluntary action, his defence of intoxication was no longer
relevant – one-step charge focusing only on whether the accused possessed actual intent be
used in all future charges on intoxication.
Jury to be instructed that they are not bound to draw the common sense inference,
particularly in light of the evidence of intoxication
R. v. TATTON, 2015 SCC – distinction between specific and general intent offences
FACTS:
 T caused a fire that destroyed the contents of his ex-girlfriend’s home. In a highly
intoxicated state, he placed a pan with oil on a stove, set the burner to high, and left the
90
house to get a coffee. When he returned approximately 20 minutes later, the house was on
fire. T was charged with arson contrary to s. 434 of the Criminal Code . At trial, T claimed
that the fire was an accident. The trial judge determined that s. 434 was a specific intent
offence, meaning that T could rely on self-induced intoxication as a defence. T was
acquitted.
Moldaver J.: The appeal should be allowed, the acquittal set aside and a new trial ordered.
 A new trial is required because the trial judge’s critical findings of fact were tainted by his
belief that self-induced intoxication was relevant to the issue of intent.
 s. 434 is a general intent offence for which intoxication falling short of automatism is not
available as a defence. The actus reus is the damaging of property by fire. The mental
element is the intentional or reckless performance of the illegal act — the causing of
damage to property. No additional knowledge or purpose is needed. No complex thought
or reasoning processes are required. On its face, the level of intent required for the offence
would appear to be minimal.
 Recklessness describes the act of one who sees the risk and acts without regard for the
consequences: Sansregret v. The Queen, [1985] S.C.R. at p. 582. It always involves a
subjective inquiry — and this case is no exception. The risk of damage by fire is typically
obvious, even when it involves a chain of events and not the simple application of a match
to the property
 It would erode the policy underlying the offence of causing damage to property by fire if
an accused could rely on self-induced intoxication as a defence.
ANALYSIS
(1) The Classification of General and Specific Intent Offences
 The law does not allow offenders to rely on self-induced intoxication falling short of
automatism as an excuse for general intent offences: R. v. Daviault, [1994] S.C.R., at p.
123
 The distinction lies in the complexity of the thought and reasoning processes that make up
the mental element of a particular offence, and the social policy underlying the offence.
(a) Classifying Specific and General Intent Offences
 Start with a determination of the mental element of the offence in question. This is an
exercise in statutory interpretation – not a factual assessment based on the circumstances
o General intent crimes, the mental element simply relates to the performance of an
illegal act. No intent or actual knowledge to bring about certain consequences
 Mental element is straightforward and requires little mental intent and
consciousness – Assault is a classic example. The accused must
intentionally apply force; however, there is no requirement that he intend to
cause injury.
o Specific intent offences involve a heightened mental element = crimes involving an
ulterior purpose. For such crimes, the accused must not only intend to do the act
that constitutes the actus reus, he must also act with an ulterior purpose in mind
 For example, assault with intent to resist arrest is an offence containing an
ulterior purpose. The accused must not only commit the assault, he must
also act with the ulterior purpose of resisting arrest or the offence simply
requires that he act with that purpose/intent in mind – ex. Murder
91

Equally, a heightened mental element could take the form of a requirement
that the accused have actual knowledge of certain circumstances or
consequences, where the knowledge is the product of more complex
thought and reasoning processes – ex. Possession of stolen property is one
such crime. Although this offence contains no ulterior purpose, the
knowledge component renders the mental element more acute. Intoxication
is therefore available as a defence for such crimes.
 After the mental element of the provision has been determined, the next question is whether
the crime is one of general or specific intent – look at existing jurisprudence
o For example, sexual assault is a general intent offence, (R. v. Chase, [1987] S.C.R.),
whereas robbery (R. v. George, [1960] S.C.R.) and murder (R. v. Cooper, [1993]
S.C.R.) are specific intent offences
(2) The Role of Policy
 First examine the nature of the mental element – Only when this analysis fails to yield a
clear answer should one turn to policy considerations.
 Policy considerations are closely tied to the nature of the mental element. General intent
crimes involve such minimal mental acuity that it is difficult to see how intoxication short
of automatism could deprive the accused of the low level of intent required. This is a strong
policy reason for precluding reliance on intoxication for these offences: Daviault, at p. 123.
 Policy suggests that intoxication can be considered for specific intent crimes – if an
examination of the mental element does not provide a clear answer, policy considerations
may help resolve the question.
o If alcohol consumption is habitually associated with the crime in question, then
allowing an accused to rely on intoxication as a defence would seem
counterintuitive.
o For example, intoxication is often associated with the crime of sexual assault.
Allowing self-induced intoxication to provide an accused with a defence would be
to endorse, if not promote, the very behaviour that has historically proved to be a
root cause of the problem.
o Also, the presence of judicial sentencing discretion may be a factor to consider. If
the crime is one for which the accused will receive a heavy minimum sentence upon
conviction, it may be unduly harsh to preclude consideration of intoxication.
THE QUEEN v. GEORGE (1960) S.C.R. 871
RATIO – Normal intoxication is never a defense for general intent offences. For specific intent
offences, normal intoxication is a defense and can raise a reasonable doubt as to MR.
FACTS – George was drunk, committed robbery and argued defense of intoxication. TJ acquitted
him and also decided not to convict him of the lesser offence of assault. Crown appealed and
argued for a distinction between crimes where there is simple MR (assault) and those with added
MR (robbery)
CHARGE – Robbery (AR – assault: intent to steal)
92
ISSUE – can intoxication be a defense for criminal activity?
DECISION – Acquitted of robbery; convicted of assault.
REASONS – The MR required for a general intent crime is too vague to be negated by normal
intoxication, unlike specific intent offenses.
INTOXICATION




Negative defense (either AR or MR)
Normal intoxication (NO MR)
Extreme intoxication (NO AR or MR)
Results in acquittal if successful
on


Is the offence SPECIFIC
INTENT or GENERAL
INTENT?


Unjust to punish the morally innocent (NO MR)
However, don’t want to concede to the person who gets drunk and commits a
crime.
Argue for one or the other based on the circumstances involved.
Classify it as either specific or general intent; then turn it over the facts of the
case.
SUMMARY
Competing
intoxication
views
GENERAL INTENT OFFNCE
 MR is intending to apply physical force to your body. Nothing interned
beyond the physical act itself. It is a very simple mens reus. Eg – just making
body move.
 Assault / bodily harm, assault/peace officer, B&E, crime harassment, incest,
indecent assault, manslaughter, mischief, sexual assault, unlawful
confinement, willful obstruction/peace officer.
SPECIFIC INTENT CRIME
 MR involves some extra purpose that is more complicated.
 Look for - language that requires planning or foresight, a specific type of
knowledge
 Aiding and abetting, arson, assault / intent to resist arrest, assaulting police
officer, attempt at any offence, attempted murder, B&E, murder, possession
of stolen property, robbery, theft, sexual exploitation, willfully causing fire.
Does this involve normal
 Normal intoxication – intoxication affects the capacity to form MR.
or extreme intoxication?
 Extreme intoxication – intoxication akin to automatism. No capacity to form
AR or MR. brain isn’t in control and no longer acting voluntarily.
Rules of intoxication
 It is a specific intent offence?
defense
 For specific intent offences, normal intoxication is a defense. The jury
must acquit if there is a reasonable doubt as to whether the accused
formed the requisite MR.
93
 Burden of proof is on the crown beyond a reasonable doubt.
 D must establish an air of reality.

Is this general intent offense?
 The form of MRE required is so simple and basic that normal intoxication
cannot raise a reasonable doubt as to MR. however, extreme intoxication
(akin to automatism) is a defense.
 The burden of proof is on the accused on a balance of probabilities. Expert
evidence normally required.

Does it involve interference with bodily integrity of another person?
 YES – statutory bar based on s.33.1

S33.1. for general intent offenses involving interference with bodily integrity
of another, even extreme intoxication is not an available defense.
For general intent offenses involving interference with bodily integrity of
another, intoxication is NO DEFENSE at all.

S.33.1 of CC
(1) it is not a defense to an offense referred to in subsection (3) that the accused by
reason of self-induced intoxication, lacked the general intent or the voluntariness
required to commit the offence, where the accused departed markedly from the
standard of care as described in subsection (2).
(2) for the purposes of this section, a person departs markedly from the standard of
reasonable care generally recognized in Canadian society and is thereby criminally at
fault where the person, while in state if self-induced intoxication that renders the
person unaware of, or capable if consciously controlling, their behavior, voluntary or
involuntary interferes or threatens to interfere with bodily integrity of another person.
(3) This section applies in respect of an offence under this Act or any other act of
parliament that includes as an element of assault or any other interference or threat of
interference by a person with the bodily integrity of another person.
D. EXTREME INTOXICATION AND GENERAL INTENT CRIMES
EXTREME INTOXICATION
 Where extreme intoxication applies, it can operate as a defence to both general and specific
intent offences, at least at common law.
 The theory behind the defence is that a person can become intoxicated enough that his mind
may cease to operate sufficiently to make conscious choices relating to his actions.
 Although this is controversial, Deviault recognized that if this were to occur, the Charter
would require an acquittal since voluntariness is a principle of fundamental justice.
 Deviault was so controversial that Parliament immediately enacted s33.1 CC to eradicate
this defence in sexual offence and violence cases
94
 s33.1 only limits the application of extreme intoxication and does not apply to simple
intoxication.
R v DAVIAULT [1994]
FACTS: D sexually assaults lady in a wheelchair after allegedly finishing a whole bottle of
alcohol. (read detailed facts above)
ISSUE: Can a state of drunkenness which is so extreme that an accused is in a condition that closely
resembles automatism or a disease of the mind as defined in s16 of the CC, constitute a basis for
defending a crime which req’s not a specific but only a general intent?
REASONING:
 Where intoxication is so extreme an essential element of the offence, voluntariness, is not
present.
 Can’t hold someone morally at fault w/ absence of voluntariness.
 Court held the defence of extreme intoxication had to be accepted b/c of Charter - s11(d)
presumes individuals to be innocent
 And s7 of the charter which state that depriving someone of life and liberty is contrary to
Principles of Fundamental Justice to commit someone if they didn’t voluntary commit
something.
 To use defence of Extreme Intoxication, you need:
1. Expert evidence (that the accused was in a state of automatism or insanity)
2. Accused must prove, with that expert evidence alongside any other evidence that,
on a BOP he was in an extreme state of intoxication.
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
Given the minimal nature of the mental element req’d for crimes of general intent, even those
who are significantly drunk will usually be able to form the requisite mens rea and will be
found to have acted voluntarily.
Note: Should it be thought that the mental element involved relates to the actus reus rather
than the mens rea then the result must be the same.
The actus reus req’s that the prohibited criminal act be performed voluntarily as a willed act.
A person in a state of automatism cannot perform a voluntary willed act since the automatism
has deprived the person of the ability to carry out such an act.
Court noted that this defence would only be available in rare cases, where the accused was an
automaton.
BUT see s33.1 of CC:
 Extreme intoxication is NOT a defence to any offence which involves assault as an element or
involves interfering, or threatening to interfere, with a person’s bodily integrity, whether or not
that person, by reason of the intoxication, lacked the general intent or voluntariness req’d for
the offence
 So, the defence of EI after Daviault is available for all general intent offences except for
assault, sexual assault, or interference w/ bodily integrity of another (basically any
violence or threats of violence)
95
R. v. BOUCHARD-LEBRUN, 2011 SCC
FACTS:
 B brutally assaulted two individuals while he was in a psychotic condition caused by drugs
he had taken a few hours earlier. B was charged with aggravated assault. The trial judge
convicted B on the basis that all the elements of s. 33.1 of the Cr. C which provides that
self-induced intoxication cannot be a defense to an offence against the bodily integrity of
another person, had been proven beyond a reasonable doubt.
LEBEL J.: The appeal should be dismissed. s. 33.1 Cr. C. applied in this case, not s. 16
 First factor from Stone, suggests the reaction of a normal person to such a pill would indeed
be to develop toxic psychosis = appellant was not suffering from a mental disorder
o Rapid appearance of psychotic symptoms generally indicates that the delusions of
the accused can be attributed to a specific external factor (self-induced intoxication)
o Such delusions therefore do not result from a disease of the mind within the
meaning of the Criminal Code .
 The psychotic symptoms experienced by the appellant began to diminish shortly after he
took the pill and continued to do so until they disappeared completely = Thibault J.A. could
thus say that “the appellant suffered from no [disease of the mind] before committing the
crimes, and once the effects of the drug consumption had passed, he was entirely sane”
(para. 77).
 Second factor from Stone, suggests no evidence indicating that the mental condition of the
accused is inherently dangerous in any way. Provided the appellant abstains from such
drugs in the future, which he is capable of doing voluntarily, it would seem that his mental
condition poses no threat to public safety.
 No valid reason to initiate the special procedure provided for in Part XX.1 of the Cr. C.
o An accused whose mental condition at the material time can be attributed
exclusively to a state of temporary self-induced intoxication and who poses no
threat to others is not suffering from a “mental disorder” for the purposes of s. 16 at
the time he committed the assault.
o Accused failed to rebut the presumption that his toxic psychosis was a “self-induced
stat[e] caused by alcohol or drugs” in accordance with the definition in Cooper.
ANALYSIS
 Malfunctioning of the mind that results exclusively from self-induced intoxication cannot
be considered a disease of the mind in the legal sense, since it is not a product of the
individual’s inherent psychological makeup.
 Cooper per Dickson J.: the “disease of the mind” concept includes “any illness, disorder or
abnormal condition which impairs the human mind and its functioning” (p. 1159).
 Rabey, per Dickson J.: “the concept is broad, embracing mental disorders of organic and
functional origin, whether curable or incurable, temporary or not, recurring or
non-recurring” (p. 533).
 After Daviault, Parliament enacted s. 33.1 Cr. C. to ensure that “intoxication may never be
used as a defence against general intent violent crimes such as sexual assault and assault”
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o For s. 33.1 Cr. C. to apply, the court must reach a conclusion in law that the accused
lacked the general intent or the voluntariness required to commit the offence by
reason of self-induced intoxication.
o The fact that an accused was intoxicated at the material time cannot support a
finding that s. 33.1 Cr. C. applies if the accused establishes that he or she was
incapable of appreciating the nature and quality of his or her acts by reason of a
mental disorder.
 STEP 1: If the accused was intoxicated and in a psychotic condition at the material time,
the problem the court faces is to identify a specific source for his or her mental condition,
namely self-induced intoxication or a disease of the mind, and determine whether it falls
within the scope of s. 33.1 or s. 16 Cr. C.
o The court must begin by considering the specific principles that govern the insanity
defence in order to determine whether s. 16 Cr. C. is applicable. If that defence
does not apply, the court can then consider whether s. 33.1 Cr. C. is applicable if it
is appropriate to do so on the facts of the case.
 Exclusion of “self-induced states caused by alcohol or drugs” applies only to the normal
effects of intoxication (p. 20). In this context, determine whether a toxic psychosis that
results exclusively from a state of intoxication, which the appellant views as an “abnormal
effect” of intoxication, constitutes a “mental disorder” for the purposes of s. 16 Cr. C. or
is excluded by Cooper.
Defence Provided for in Section 16 Cr. C.: An Exception to Criminal Responsibility
 The defence of not criminally responsible on account of mental disorder, codified in
s. 16 Cr. C., addresses an accused who did not voluntarily commit an act
 Taschereau J. stated in R. v. King, [1962] S.C.R., “there can be no actus reus unless it is
the result of a willing mind at liberty to make a definite choice or decision, or in other
words, voluntary conduct — behaviour that is the product of a free will and controlled
body, unhindered by external constraints — should attract criminal liability (para. 47)
 Insanity is an exception to the general criminal law principle that an accused is deemed to
be autonomous and rational. A person suffering from a mental disorder within the meaning
of s. 16 Cr. C. is not considered to be capable of appreciating the nature of his or her acts
or understanding that they are inherently wrong.
 Defence of mental disorder does not result in acquittal of the accused, but instead leads to
a verdict of not criminally responsible.
Requirements of the Defence of Not Criminally Responsible on Account of Mental Disorder
 An accused must prove on a balance of probabilities that, at the material time, he or she
was suffering from “a mental disorder that rendered the person incapable of appreciating
the nature and quality of the act or omission or of knowing that it was wrong”
(s. 16(1) Cr. C.).
 An accused who wishes to successfully raise the defence of mental disorder must therefore
meet the requirements of a two-stage statutory test:
o First stage involves characterizing the mental state of the accused. The key issue
to be decided at trial at this stage is whether the accused was suffering from a mental
disorder in the legal sense at the time of the alleged events.
o Second stage concerns the effects of the mental disorder, whether, owing to mental
condition, accused was incapable of “knowing that [the act or omission] was
wrong”
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Specific Problem of a Toxic Psychosis from the Voluntary Consumption of Alcohol or Drugs
 When confronted with a difficult fact situation involving a state of toxic psychosis that
emerged while the accused was intoxicated, start from the general principle that temporary
psychosis
is
covered
by
the
exclusion
from Cooper.

Accused can rebut the presumption provided for in s. 16(2) Cr. C. by showing the disease of the
mind was unrelated to the intoxication-related symptoms.
For the internal cause factor: determine what state a normal person might have entered after
consuming the same substances in the same quantities as the accused.
o Since certain factors such as fatigue and the pace of consumption.
If a normal person might also have reacted to similar drug use by developing toxic psychosis, it
will be easier for the court to find that the mental disorder of the accused was purely external in
origin and was not a disease of the mind within the act.
E. DEFENCE OF THE PERSON
 There are 4 separate but potentially overlapping statutory defences: s 34(1), 34(2), 35 and
37.
 Note that the concept of provocation for the purpose of self-defence is defined in s 36.
 All of the defences apply when the accused is being unlawfully assaulted, or reasonably
believes he is about to be unlawfully assaulted.
 But, each of the 4 separate offences have its own additional requirements.
 The following cases interpret these provisions:
R v PINTAR [1996] (Explains the relationship b/t s34(1) and (2) and the general approach to
using the various defences)
FACTS:
 P started seeing R’s (victim’s) wife.
 R made known he wanted to kill P.
 R enters P’s home with friend G, takes swing at P, and P ducks punch and knocked R to
floor.
 After more threats to P’s life, P shot and killed R and G.
ISSUE: Relationship between s 34(1) and (2), and the general approach that should be taken using
the various defences.
REASONING:
Issue 1
 The TJ erred in failing to leave the “single transaction” option to the jury – i.e. that the
initial unprovoked assault by R still had significance at the events which occurred outside
the home.
 The error takes on special significance in respect of s34(2) since that provision formed the
essence of the appellant's claim to self-defence.
Issue 2
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


Unlike s34(1) which speaks to the issue of intent, s34(2) does not.
The plain wording of s. 34(2) reveals that the provision is triggered when a person who has
been unlawfully assaulted causes death or grievous bodily harm in repelling the assault.
By necessary implication, Parliament's silence may be taken to mean that s34(2) is meant
to apply to accused persons who intend to kill or cause grievous bodily harm, as well as to
those who do not have such intent, but who do in fact cause death or grievous bodily harm
Issue 3
 In order for the appellant to succeed on s34(2), it was necessary that the jury believe or
have a reasonable doubt that at the time of the shootings, the appellant genuinely believed
on reasonable grounds, that he was in grave danger from the violence with which Ross and
Gill pursued their attack upon him, and that his use of deadly force in response to that
attack was necessary.
 Background information about the attackers’ propensity for violence is relevant here.
HELD: Appeal was allowed and a new trial ordered.
R v CINOUS [2002] (Shows how the defence in s 34(2) has subjective and objective elements
to be satisfied)
FACTS:
 C heard that M and Y wanted to kill him.
 M and Y, one day, asked C to assist in a computer theft.
 When they met up, M and Y were acting suspicious.
 M was wearing latex gloves, and they kept touching their jackets like they had a gun it
 While driving, C pulled over to gas station, pulled out gun and shot M in back of head.
 C testified that this was an instinctive reaction to a situation of danger.
ISSUE: Interpretation of self-defence under s 34(2); and that the defence was not properly
explained to the jury.
REASONING:
Elements of the defence
 To succeed in a defence of self-defence, there must be:
o The existence of an assault (did the accused reasonably and actually believe that
he was unlawfully assaulted?)
o Reasonable apprehension of death or grievous bodily harm.
o Reasonable belief in the absence of alternatives to killing or causing GBH
(grievous bodily harm)
 (It must be established both that the accused believed that he could not preserve himself
except by shooting the victim, and that he held this belief on reasonable grounds)
 Note: if any of these elements lack an air of reality, the defence should not be put to the
jury.
 Each of the three elements have both a subjective and objective component.
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





These three elements must be real as perceived by the accused (subjective) and be
reasonable (objective).
W/ respect to each of the 3 elements, the approach is first to inquire about the
subjective perceptions of the accused, and then to ask whether those perceptions were
objectively reasonable in the circumstances.
The “whole defence” must have an air of reality and backed by evidence
The accused’s testimony can provide a basis for inferring that both the subjective AND
objective components of each elements have been met.
Binnie, concurring, does not grant self-defence to criminals who set their own “rule of the
criminal subculture, which is the antithesis of public order.”
Criminals cannot claim self-defence if they avoid an alternative fearing that the alternative
would face them with arrest
APPLICATION
 Unlawful assault?
 It would be possible for the jury reasonably to conclude that the accused believed that he
was going to be attacked, and that this belief was reasonable in the circumstances.
 There is an air of reality to the subjective component of the defence as there is direct
evidence on the accused’s beliefs, in the form of the accused’s testimony.
 A jury acting reasonably could draw an inference from the circumstances described by the
accused, including particularly the many threatening indicators to which he testified, to the
reasonableness of his perception that he was going to be attacked.
 Reasonable apprehension of death or GBH?
 Yes. The accused’s testimony is unambiguously to the effect that he feared a deadly attack.
 A jury acting reasonably could draw an inference from the circumstances described by the
accused, including particularly the indications that Y and M were armed, the rumours of a
plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the
reasonableness of his perception that he was in mortal danger
 Reasonable belief of no reasonable alternatives to killing?
 It must be established both that the accused believed that he could not preserve himself
except by shooting the victim, and that he held this belief on reasonable grounds.
 There is an air of reality to the accused’s claim that, at the time he shot the victim, he
actually believed that he had no alternative.
 The accused’s extensive direct testimony regarding his subjective perceptions at the
relevant time amounts to more than a “mere assertion” of the element of the defence.
 However, the belief that the accused had no other option but to kill must have been
objectively reasonable. Here, there is absolutely no evidence from which a jury could
reasonably infer the reasonableness of a belief in the absence of alternatives
HELD: The appeal s/b allowed and the accused’s conviction restored.
R v LAVALLEE [1990] (Illustrates the defence applied in the battered women context)
FACTS:
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




A battered woman shoots husband in the back of the head as he left her room.
Shooting happened after an argument where the woman had been physically abused and
threatened that either she kills him or he would get her.
Psychiatrist prepared a report in support of the appellant for self-defence – he related many
things told to him by the appellant would could not be admitted as evidence.
The appellant did not testify at trial.
The jury acquitted, but the majority overturned the decision in the CA
ISSUE:
 Whether the evidence of the psychiatrist should have been before the court at all and were
the TJ’s instructions w/ respect to the report adequate?
REASONING:
 Expert testimony is admissible to assist the fact-finder in drawing inferences about an area
a lay person would not otherwise comprehend.
 The testimony may go to the issue of whether she “reasonably apprehended” death or
grievous bodily harm on a particular occasion.
 The expert testimony does not usurp the jury’s function of deciding whether, in fact, the
accused’s perceptions and actions were reasonable
 As long as there is some admissible evidence to establish the foundation for the expert’s
opinion, the TJ cannot subsequently instruct the jury to completely ignore the testimony
 The judge must warn the jury that the more the expert relies on facts not proved in evidence,
the less weight the jury may attribute to the opinion
HELD: appeal to the supreme court allowed.
R. v. CORMIER, 2017 NBCA
FACTS:
 Eldridge repeatedly threatened to cause harm to Cormier, culminating in a fatal
confrontation during which Cormier stabbed Eldridge as Mr. Eldridge and another man
were allegedly about to unlawfully enter the apartment of Cormier’s father. In a preemptive
move, some of the occupants of the apartment armed themselves to go outside. Upon
exiting through the street-level apartment doorway, Cormier immediately encountered
Eldridge who was armed with a pipe. Feeling threatened, Cormier stabbed him. Cormier
was charged with second-degree murder.
RICHARD AND BAIRD JJ.A.: allow the appeal, set aside the conviction and order a new trial.
 An overlap between defence of property and self-defence = open for the jury to conclude
that what began as a defence of property situation quickly escalated into a defence of the
person case.
 In these circumstances, the door was certainly not a barrier to self-defence and the factor
set out in s. 34(2)(b) had no real application.
 Judge’s failure to give a correcting instruction to the jury and his failure to properly instruct
the jury regarding the possible application of s. 35 to justify Mr. Cormier’s initial acts,
101


constitute errors of law that cannot be remedied by applying the curative proviso contained
in s. 686(i)(b)(iii).
At no time, however, does the opening of the door to confront the aggressor, of itself,
constitute a “barrier to self-defence”. In our view, on a reasonable interpretation of the
evidence in this particular case, Mr. Cormier’s decision to open the door is irrelevant to the
reasonableness of his response to the attack by Mr. Eldridge.
Self-defence was the central issue at trial and it was imperative the jury not be left with the
belief that by opening the door Mr. Cormier made self-defence inapplicable. Thus, on the
basis of this ground alone, we would set aside the verdict and order a new trial.
ANALYSIS
 Self-defence and defence of property” provisions: resides in section 34(1)(c) and section
35(1)(d) which respectively require that acts in defence of self and others and property be
“reasonable in the circumstances
 Justice David Paciocco, in a paper titled The New Defence Against Force (2014), 18
Canadian Criminal Law Review 269, comments on the new self-defence provision as
follows: new defence against force is not only simpler than the pre-existing law of selfdefence and defence of another, but it is also more generous. This is so even though the
three fixed factual prerequisites now found in section 34 also existed for each of the now
defunct self-defence provisions. What makes it possible for the new provision to operate
more generously in cases of self-defence is the flexibility of its evaluative component.
 Evans, 2015 BCCA, Frankel J.A. concludes the new provisions mark a substantive change
in the law resulting in a more generous application which could lead to more acquittals
than under the old regime. We agree.
 Section 35 applies to a wide range of offences and to any type of property. The provision
establishes the types of interference with “peaceable possession” of property that can
trigger a defensive response.
o The defence is triggered upon a reasonably based belief of peaceable possession of
property and of another person’s specific actions regarding that property, i.e. either:
(1) about to enter, entering or having entered to the property without lawful
entitlement; (2) about to take, taking or having just taken the property; or (3) about
to damage or destroy or in the process of damaging or destroying the property or
making it inoperative.
o Upon the defence being triggered, an act committed to prevent the triggering event
is justified provided it is “reasonable in the circumstances”. The defensive purpose
requirement is to be assessed subjectively. On the other hand, the reasonableness
of the response is objectively assessed.
 The extent of reasonableness under s. 35 remains to be jurisprudentially determined.
o Before the Citizen’s Arrest and Self-Defence Act came into force, jurisprudence had
clearly established that it was not reasonable to kill someone to prevent a crime
directed only against property: R. v. Gee, [1982] S.C.R.
 Recall that “the nature and proportionality of the person’s response to the use or threat of
force” is listed as a factor in s. 34(2)(g).
o Frankly, it is difficult to conceive how the killing of an individual solely to defend
one’s property could ever be found to be a reasonable response in the
circumstances.
102
(1) The door as a “barrier to self-defense”
 Additional principles apply when an incident occurs in one’s home.
 Imminence of the use of force is but one of the many factors to be assessed in determining
whether an act committed to defend oneself from the use or threat of force is reasonable in
the circumstances.
 The proposition that self-defence was not available because Mr. Cormier chose to open the
door is one that is incorrect in law. At the very least, Mr. Cormier’s decision to open the
door would simply be one of the various factors to consider in determining the
reasonableness of his response to the threats against his person. At no time, however, does
the opening of the door to confront the aggressor, of itself, constitute a “barrier to selfdefence”. In our view, on a reasonable interpretation of the evidence in this particular case,
Mr. Cormier’s decision to open the door is irrelevant to the reasonableness of his response
to the attack by Mr. Eldridge.
 A brief reminder about the obligation to retreat and the significance of evidence of a failure
to do so when self-defence is put forward as a justification for killing another will assist in
the resolution of this ground of appeal.
 The possibility of retreat is relevant to the second and third elements of the justification
afforded by the former s. 34(2). In other words, the possibility of retreat is a relevant item
of evidence for the jury to consider in deciding whether the accused:
1. Had a reasonable apprehension of death or grievous bodily harm from the victim’s
assaultive conduct; and
2. Had a reasonable belief that it was not otherwise possible to save him or herself
from death or grievous bodily harm except by killing or seriously harming the
victim.
 In R. v. Forde, [2011] ONCA, LaForme J.A.: a person has “the right to defend him or
herself in his or her own home without the duty to retreat from the home in face of an
attack” (para. 38). He explains that retreat in anticipation of an attack is a factor for the jury
to consider in assessing the reasonableness of self-defence
o But, in the case of an attack while in one’s own home, not only is there no
requirement to retreat, but “[r]ather, far from retreating, [an accused] would [also]
have been entitled … to use such force as was necessary to remove the complainant
therefrom” (para. 42)
o The rationale behind the principle that one does not have to retreat from one’s own
home is that one is legally entitled to use force to remove an intruder.
** SUMMARY OF THE SELF DEFENCE PROVISIONS **
S 34(1):
 Applies where there is an unlawful assault against the accused his unprovoked
[Remember: the elements of an assault as per s265 must be met for the accused to rely on
this sub s]
 Accused may repel force by using force if the force used:
o Is not intended to cause death or GBH; and
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o Is no more than necessary to defend himself
 Note:
o This s may not be used where accused intended to cause death or GBH (R v Pintar)
o An unlawful assault against accused need not actually occur; it is sufficient that
accused
 Reasonably believed that an assault has occurred (R v Cinous)
o The accused need not have any apprehension of death or GBH
S 34(2):
 Applies where there is an unlawful assault, whether provoked or unprovoked, and
accused, to repel the assault, causes death or GBH to another [Remember: the elements of
an assault as per s265 must be met for the accused to rely on this sub s]
 Accused is justified in causing death or GBH in response to the assault only if:
o He causes it under reasonable apprehension of his own death or GBH from the
violence w/ which the assault was originally made or w/ which the assailant pursues
his purposes; and,
o He believes, on reasonable grounds, that he cannot otherwise preserve himself from
death or GBH
 Note:
o An unlawful assault against accused need not actually occur; it is sufficient that
accused reasonably believed that an assault has occurred (R v Cinous)
o Each of the above elements must have an air of reality to them (Cinous)
 Each of the above elements (3 elements) has a subjective and objective component: 1st,
inquire about the subjective beliefs of the accused; 2nd, ask whether those perceptions are
objectively reasonable (Cinous).
s35:
 Applies either where:
o (i) the accused, without justification, assaults another but didn’t commence the
assault with intent to cause death or GBH; OR;
o (ii) where the accused has w/o justification provoked an assault on himself by
another, may justifiy the use of force subsequent to the assault if:
 He uses the force,
 Under reasonable apprehension of death or GBH from the violence of the
person whom he has assaulted or provoked, and
 In the belief, on reasonable grounds, that it is necessary in order to preserve
himself from death or grievous bodily harm:
 He did not, at any time before the necessity of preserving himself from death
or GBH arose, endeavour to cause death or GBH; and
 He declined further conflict and quitted or retreated from it as far as it was
feasible to do so before the necessity of preserving himself from death or
GBH arose
s 37:
 This is used only where other provisions don’t apply;
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 It operates as a general defence that is broad enough to subsume the other defences, but the
courts tend not to use it if any of the other provisions apply;
 Everyone is justified in using force to defend himself or any one under his protection from
assault, if he uses no more force than is necessary to prevent the assault or the repetition of
it.
F. NECESSITY
 The defence of necessity permits the conduct of the accused to be excused where its
elements are met; the defence, though, is heavily circumscribed.
 The logic behind this defence “rests on a realistic assessment of human weakness,
recognizing that a liberal and humane criminal law cannot hold people to the strict
obedience of laws in emergency situations where normal human instincts, whether of selfpreservation or of altruism, overwhelmingly impel disobedience”
R v. LATIMER [2001]
FACTS: Father killed disabled child and said he did it b/c he didn’t want her to suffer anymore
 The defence of necessity is narrow and of limited application to criminal law.
 The accused must establish the existence of 3 elements:
(1) Imminent peril or danger: Disaster must be imminent, or harm unavoidable and near
– it isn’t enough that peril is foreseeable or likely, it has to be on the verge of transpiring
(e.g., here, the accused did not himself face any peril, and T’s ongoing pain did not
constitute an emergency in this case. T’s proposed surgery did not pose an imminent threat
to her life, nor did her medical condition. It was not reasonable for the accused to form the
belief that further surgery amounted to imminent peril, particularly when better pain
management was available)
(2) No reasonable legal alternative to the course of action: Ask, given that the accused
had to act, could he nevertheless realistically have acted to avoid peril or prevent harm
without breaking the law? (e.g., here, the accused had at least one reasonable legal
alternative to killing his daughter: he could have struggled on, with what was
unquestionably a difficult situation, by helping T to live and by minimizing her pain as
much as possible or by permitting an institution to do so)
(3) Proportionality between the harm inflicted and the harm avoided (e.g., here,
leaving open the question of whether the proportionality requirement could be met in a
homicide situation, the harm inflicted in this case was immeasurably more serious than the
pain resulting from T’s operation which the accused sought to avoid. Killing a person —
in order to relieve the suffering produced by a medically manageable physical or mental
condition — is not a proportionate response to the harm represented by the non-life
threatening suffering resulting from that condition)
 What standard to employ? For the first 2 of the 3 elements, a modified objective test is
employed (i.e. It involves an objective evaluation, but one that takes into account the situation and
characteristics of the particular accused person, including his ability to perceive the existence of
alternative courses of action). The third requirement for the defence of necessity, proportionality,
105
must be measured on an objective standard, as it would violate fundamental principles of the
criminal law to do otherwise
HELD: The TJ was correct to remove the defence from the jury since there was no air of reality
to any of the three requirements for necessity.
G. DURESS
 The defence is available under s17 CC, and at common law.
 s17 identified a limited defence, but the common law and Charter have extended its
application:
R v. HIBBERT [1995]
FACTS: H accompanied M at the time M shot F. H was punched in the face by M as a way of
forcing H to help him find F. H helped get M down from his apartment where he was subsequently
shot.
REASONING:

s17 of the Code does not constitute an exhaustive codification of the law of duress.

s17 applies only to persons who commit offences as PRINCIPALS. The common law
defence applies to persons liable as parties.

The fact that a person who commits a criminal act does so as a result of threats of death or
bodily harm can, in some instances, be relevant to the question of whether he possessed the
mens rea necessary to commit an offence.

Whether or not this is so will depend, among other things, on the structure of the particular
offence in question -- that is, on whether or not the mental state specified by Parliament in its
definition of the offence is such that the presence of coercion can, as a matter of logic, have a
bearing on the existence of mens rea

If the offence is one where the presence of duress is of potential relevance to the existence of
mens rea, the accused is entitled to point to the presence of threats when arguing that the
Crown has not proven beyond a reasonable doubt that he possessed the mental state req’d for
liability.

A person who commits a criminal act under threats of death or bodily harm may also be able
to invoke an excuse based defence (either the statutory defence set out in s17 of the
Criminal Code or the common law defence of duress, depending on whether the accused is
charged as a principal or as a party). This is so regardless of whether or not the offence at issue
is one where the presence of coercion also has a bearing on the existence of mens rea.

The mental states specified in ss21(1)(b) and 21(2) of the Code are not susceptible to being
"negated" by duress

An accused person cannot rely on the common law defence of duress if he had an
opportunity to extricate himself safely from the situation of duress.

Rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the
condition of "normative involuntariness" that provides the theoretical basis for the defences
of both duress and necessity is absent.
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The question of whether or not a safe avenue of escape existed is to be determined according to an
objective standard. When considering the perceptions of a "reasonable person", however, the
personal circumstances of the accused are relevant and important, and should be taken into account.
R v RUZIC [2001]
FACTS:

The accused was tried before a judge and jury on charges of unlawfully importing two
kilograms of heroin into Canada, contrary to s5(1) of the Narcotic Control Act, and of
possession and use of a false passport contrary to s368 of the CC.

The accused admitted having committed both offences but claimed that she was then acting
under duress and should thus be relieved from any criminal liability.

She testified that a man in Belgrade, where she lived in an apartment with her mother, had
threatened to harm her mother unless she brought the heroin to Canada.

She also said that she did not seek police protection because she believed the police in
Belgrade were corrupt and would do nothing to assist her.

The accused conceded that her claim of duress did not meet the immediacy and presence
requirements of s17 of the Code, which provides a defence for a person “who commits an
offence under compulsion by threats of immediate death or bodily harm from a person who
is present when the offence is committed”.

She successfully challenged the constitutionality of s17 under s7 of the Canadian Charter
of Rights and Freedoms, raised the common law defence of duress and was acquitted.

The Crown appealed the acquittal on the charge of importing heroin, but the Court of
Appeal dismissed the appeal.
ISSUE: Scope and constitutionality of the defence of duress
REASONING:

s17 of the Code breaches s7 of the Charter because it allows individuals who acted
involuntarily to be declared criminally liable.

The s limits the defence of duress to a person who is compelled to commit an offence under
threats of immediate death or bodily harm from a person who is present when the offence
is committed.

The plain meaning of s17 is quite restrictive in scope. The phrase “present when the
offence is committed”, coupled with the immediacy criterion, indicates that the person
issuing the threat must be either at the scene of the crime or at whatever other location is
necessary to make good on the threat without delay should the accused resist.

Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is
not physically present at the scene of the crime.

The immediacy and presence requirements, taken together, clearly preclude threats of
future harm.

While s17 may capture threats to third parties, the immediacy and presence criteria
continue to impose considerable obstacles to relying on the defence in hostage or other
third party situations.

The underinclusiveness of s17 infringes s7 of the Charter.
107
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The Crown made no attempt before this Court to justify the immediacy and presence
criteria according to the s1 analysis and has therefore failed to satisfy its onus under s1.
In any event, the criteria would likely not meet the proportionality branch of the s1
analysis. In particular, these requirements seemingly do not minimally impair the
accused’s s7 rights.
The common law defence of duress was never completely superseded by s17 of the
Code, and remains available to parties to an offence
The common law defence of duress frees itself from the constraints of “immediacy” and
“presence”. The elements include:
(1) A threat to the integrity of the person: The law includes a requirement of proportionality
between the threat and the criminal act to be executed. The accused should be expected to
demonstrate some fortitude to put up a normal resistance to the threat
(2) The threat must deprive the accused of any safe avenue of escape in the eyes of a
reasonable person, similarly situated. Although the threat need not be immediate, there
must be a close temporal connection between the threat and the harm threatened (i.e. the
threat had to be a real threat affecting the accused at the time of the offence) (no immediacy
requirement)
(3) Threats need not be made by a person who is at the scene of the crime (no presence
requirement)
A modified objective test is employed.
R. v. RYAN, 2013 SCC
FACTS:
 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 spoke to an undercover RCMP officer posing
as a hit man and agreed to pay him $25,000 to kill her husband. She gave $2,000, an
address and a picture of her husband to the officer. She was arrested and charged with
counselling the commission of an offence not committed contrary to s. 464 (a) of the Cr.
C. – does duress apply?
LeBel and Cromwell JJ.: The proceedings should be stayed.Court of Appeal erred in law in finding
that duress is a legally available defence on these facts.
 Duress is available only in situations in which the accused is threatened for the purpose of
compelling the commission of an offence.
The Common Law Defence of Duress Post-Ruzic – comprises the following elements:
1. Explicit/implicit threat of death or bodily harm proffered against the accused or a third person
 Threat may be of future harm – strict imminence requirement does not apply here
o Requirement of a close connection in time, between the threat and its execution in
such a manner that the accused loses the ability to act freely” (Ruzic, at para. 65)
o Langlois, where Fish J.A. held it is also whether “the accused failed to avail himself
or herself of some opportunity to escape or to render the threat ineffective”
o This threat does not necessarily need to be directed at the accused (Ruzic, at para.
54). It can be either explicit or implied
108
2. The accused reasonably believed that the threat would be carried out
o Analyzed on a modified objective basis, that is, according to the test of the
reasonable person similarly situated
3. The non-existence of a safe avenue of escape, evaluated on a modified objective standard, of
a reasonable person similarly situated
o Take into consideration the particular circumstances where the accused found
himself and his ability to perceive a reasonable alternative to committing a crime,
with an awareness of his background and essential characteristics.
o Would a reasonable person in the same conclude that there was no safe avenue of
escape or legal alternative to committing the offence? If yes, defence applies
4. A close temporal connection between the threat and the harm threatened;
o Restrict to situations where there is a sufficient temporal link between the threat
and the offence committed – ensure that there truly was no safe avenue of escape
for the accused.
o If the threat is too far removed from the accused’s illegal acts, it will be difficult to
conclude that a reasonable person similarly situated had no option but to act
o Necessary to demonstrate the degree of pressure placed on the accused
5. Proportionality between the harm threatened and the harm inflicted by the accused. This is also
evaluated on a modified objective standard;
o The first element of proportionality requires that the harm threatened was equal to
or greater than the harm inflicted by the accused.
o The second element requires a determination as to whether they accord with what
society expects from a reasonable person similarly situated in that particular
circumstance – examine if the accused demonstrated “normal” resistance to threat.
6. The accused is not a party to a conspiracy or association whereby the accused is subject to
compulsion and actually knew that threats and coercion to commit an offence were a possible
result of this criminal activity, conspiracy or association
R. v. ARAVENA, 2015 ONCA
FACTS:
• Eight of the Toronto Bandidos motorcycle gang were shot and killed on a farm property
owned by Kellestine. Aravena, was charged with eight counts of first degree murder, along
with others due to a ‘shootout’. They invoked the defence of duress. Kellestine persuaded
eight members of the Toronto Bandidos to come to his farm under the pretence of a meeting
to discuss Bandidos business
Doherty and Pardu JJ.A.:
ANALYSIS
 Paquette per Martland J., accepted that the common law defence of duress was available
to a person charged as a party to a murder
 Common law defence of duress is available to persons charged as parties to a murder.
Laskin J.A., in Ruzic.
Issue #2: The Liability of Mather and Aravena under the Constructive First Degree Murder
Provisions
109

Aravena and Mather argue that standing guard as they did could not amount to “an essential
substantial and integral” part of the murders.
 The domination of the victims prevented them from escaping or fighting back. The forcible
confinement and killings were all part of the same course of events. As observed in R. v.
Ferrari, 2012 (Ont. C.A.), at para. 87, by Rosenberg J.A., “in some circumstances,
participation in unlawful[ly] confining the victim can also be the foundation for active
participation in the killing.”
Issue #3: Gardiner’s Liability for Murder on Counts Three to Eight
 Gardiner did not participate in the unlawful confinement or the shooting, but was a party
to a planned and deliberate murder – but he knew of the plan to kill all and he was there to
follow orders and assist as required = first degree murder
Issue #4: The Instruction on Aravena’s Post-Offence Conduct
 Aravena admitted in his evidence that he travelled from Winnipeg to Ontario in the hopes
of advancing in the Bandidos hierarchy. After the murder, he was elated and excited to
have earned a “prospect patch.”= He had obtained the goal to which he aspired by aiding
the killers with knowledge of the plan (post-offence conduct)
o Evidence as to what a person does after a crime has been committed can constitute
circumstantial evidence of a pre-existing plan.
R. v. WILLIS, 2016 MBCA
FACTS:
 Accused joined a criminal organization operated by Bennett (a.k.a. Fenali), making
deliveries of cocaine to the northern Manitoba. On one occasion, he was caught by police
and a shipment of cocaine was seized. As a result, the accused acquired a large drug debt
to the criminal organization. As the months went by, the threats regarding the debt
escalated. Members of the criminal organization shot at the accused and beat him up,
resulting in several broken bones. Nevertheless, he did not turn to the police for help. In
the week before the murder of Ms Tran, the accused received a new threat in the form of a
text message from Fenali containing the addresses of his brother and aunt. He took the text
message to be an implicit threat that, if the debt was not paid, he would not be the only one
killed. He decided not to contact police, nor did he warn his family members of the
threat. The option he chose in an effort to extricate himself from his predicament was to
kill Ms Tran. If the accused murdered Ms Tran, the two would split her property thus giving
the accused a way to repay his debt.
MAINELLA JA: Accused’s conviction for first degree murder should stand. There is no air of
reality to the defence of duress in this case taking into account the six requirements of that defence
at common law as set out in Ryan.
o The accused had a safe avenue of escape (calling the police or leaving town), and also that
the defence of duress was not available to him because he voluntarily joined a criminal
organization where threats of the nature he faced were known to him.
ANALYSIS
110
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
A principal or co-principal charged with murder is not deprived of their s. 7 Charter right
to liberty in a manner that is contrary to the principles of fundamental justice of moral
involuntariness or overbreadth by the statutory exclusion of the defence of duress.
Abbott, holding a victim while she is stabbed by another and then burying her alive while
she was dying, made the accused a party to the crime and not a co-principal.
If there is an air of reality to the defence of duress, then the trial judge will have to instruct
the jury that they will have to consider one and possibly a second further question if they
decide that the Crown has proven the offence.
o First, decide whether the defence of duress is open to the accused (i.e., has the
Crown proven beyond a reasonable doubt that the accused was a principal or coprincipal).
o If the jury has a reasonable doubt that the accused was a principal to the offence, it
will then have to go on to make a second decision as to whether the Crown has
negated one or more of the requirements of the defence of duress beyond a
reasonable doubt.
o Unless the Crown negates at least one of the requirements of the defence of duress
then the accused is excused from liability and is acquitted.
The ultimate consideration for the curative proviso is the evidence heard by the jury, not
the possible evidence the accused might have adduced if the defence of duress was not
statutorily barred by section 17 of the Code
The law is well settled that a trial judge must provide a “responsive answer” to a question
from the jury during their deliberations (R v Layton, [2009] SCR). That entails a response
that is clear, correct and comprehensive to the substance of the jury’s query (see S (WD) at
528).
H. PROVOCATION (see s232)

This defence applies solely to murder

It is a partial defence, reducing conviction to manslaughter where its elements are met
R V. TRAN [2010]
FACTS:

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 TJ acquitted the accused of murder, but
convicted him of manslaughter

The CA allowed the Crown’s appeal and substituted a conviction for second degree murder
HELD: Appeal s/b dismissed
111
REASONING:
 Provocation is a partial defence exclusive to homicide which reduces the conviction from
murder to manslaughter
 There is both an objective and a subjective component to provocation in s232 of the CC
 Once it is established that the wrongful act or insult was sufficient to deprive an ordinary
person of the power of self-control, the inquiry turns to a consideration of the subjective
element of the defence, which is whether the accused acted in response to the provocation
and on the sudden before there was time for his or her passion to cool.
s232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if
the person who committed it did so in the heat of passion caused by sudden provocation.
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary
person of the power of self-control is provocation for the purposes of this s if the accused acted
on it on the sudden and before there was time for his passion to cool.
 The “ordinary person” std is informed by contemporary norms of behaviour, including
fundamental values such as the commitment to equality provided for in the Charter
 The accused must have a justifiable sense of being wronged.
 A central concern with the objective standard has been the extent to which the accused’s
own personal characteristics and circumstances should be considered.
 A restrictive approach to the “ordinary person” approach ignores relevant contextual
circumstances.
 Conversely, an individualized approach would lead to anomalous results if all the accused’s
characteristics were taken into account; it would also ignore the cardinal principle that the
criminal law is concerned with setting standards of human behaviour.
 The proper approach is one that takes into account some, but not all, of the individual
characteristics of the accused.
 The subjective element of the defence of provocation focuses on the accused’s subjective
perceptions of the circumstances, including what the accused believed, intended or knew.
 Here, on the basis of the trial judge’s findings of fact and uncontested evidence, there was
no air of reality to the defence of provocation. The conduct at issue does not amount to an
“insult” within the meaning of s232 of the CC, as the accused alleges, nor does it meet the
requirement of suddenness Furthermore, there was nothing sudden about the accused’s
discovery and it cannot be said that it struck upon a mind unprepared for it.
I. ENTRAPMENT
Common law defense where the accused has committed a crime with the required fault.
 It results in a stay of proceedings in cases where a state agent has provided the accused
with an opportunity to commit a crime without either a reasonable suspicion that the
accused was involved in crime or a bona fide inquiry into a particular type of crime.
 Entrapment will apply if the state agent induces the commission of the crime
Objective assessment of the conduct of the police and their agents is required.
 Objective entrapment involving police misconduct, and not the accused's state of mind, is a
question to be decided by the trial judge, and the proper remedy is a stay of proceedings.
112

The issue of entrapment should be decided by the trial judge, as opposed to jury, for policy
reasons.
The claim of entrapment is a very serious allegation against the state. To place a lighter onus on the
accused would unnecessarily hamper state action against crime.
 The interests of the court, as guardian of the administration of justice, and the interests of
society in the prevention and detection of crime can be best balanced if the accused is required
to demonstrate by a preponderance of evidence that the prosecution is an abuse of process
because of entrapment.
 This is consistent with the rules governing s. 24(2) applications where the general issue is
similar to that raised in entrapment cases: would the administration of justice be brought into
disrepute?
R. v. MACK, [1988] S.C.R.
FACT:
 Appellant testified at his trial for drug trafficking that he had persistently refused the
approaches of a police informer over the course of six months, and that he was only persuaded
to sell him drugs because of the informer's persistence, his use of threats, and the inducement
of a large amount of money. Appellant testified that he had had a drug habit but that he had
given up his use of narcotics.
LAMER J.: Persistence of the police requests and the equally persistent refusals, and the length of
time needed to secure appellant's participation in the offence, indicate that the police had tried to make
appellant take up his former life style and had gone further than merely providing him with the
opportunity.
 The police here were not interrupting an ongoing criminal enterprise; the offence was clearly
brought about by their conduct and would not have occurred without their involvement.
 The most important and determinative factor, however, was that appellant had been threatened
and had been told to get his act together when he did not provide the requested drugs.
o The fact that the appellant eventually committed the offence when shown the money
was not significant because he knew of the profit factor much earlier and still refused.
o The average person in appellant's position might also have committed the offence, if
only to finally satisfy this threatening informer and end all further contact.
 The police had reasonable suspicion that the appellant was involved in criminal conduct but
they went too far in their efforts to attract him into the commission of the offence.
 Doctrine of entrapment applicable to preclude appellant's prosecution. The trial judge should
have entered a stay of proceedings for abuse of process.
ANALYSIS
 Entrapment occurs when (a) the authorities provide a person with an opportunity to commit
an offence without acting on a reasonable suspicion that this person is already engaged in
criminal activity or pursuant to a bona fide inquiry, and, (b) although having such a reasonable
suspicion or acting in the course of a bona fide inquiry, they go beyond providing an
opportunity and induce the commission of an offence (not dependant upon culpability)
113





The predisposition, or the past, present or suspected criminal activity of the accused is relevant
only as a part of the determination of whether the provision of an opportunity by the authorities
to the accused to commit the offence was justifiable.
o Predisposition is never relevant to whether they went beyond an offer, since that is to
be assessed with regard to what the average non-predisposed person would have done.
The following factors may be considered in determining if the police have gone further than
providing an opportunity: (1) the type of crime being investigated and the availability of other
techniques for the police detection of its commission; (2) whether an average person, with
both strengths and weaknesses, in the position of the accused would be induced into the
commission of a crime; (3) the persistence and number of attempts made by the police before
the accused agreed to committing the offence; (4) the type of inducement used by the police
including: deceit, fraud, trickery or reward; (5) the timing of the police conduct, in particular
whether the police have instigated the offence or became involved in ongoing criminal
activity; (6) whether the police conduct involves an exploitation of human characteristics such
as the emotions of compassion, sympathy and friendship; (7) whether the police appear to
have exploited a particular vulnerability of a person such as a mental handicap or a substance
addiction; (8) the proportionality between the police involvement, as compared to the accused,
including an assessment of the degree of harm caused or risked by the police, as compared to
the accused, and the commission of any illegal acts by the police themselves; (9) the existence
of any threats, implied or express, made to the accused by the police or their agents; (10)
whether the police conduct is directed at undermining other constitutional values – This list is
not exhaustive.
A judge should consider the question from the perspective of a reasonable person,
dispassionate and fully apprised of all the circumstances, and the reasonable person is usually
the average person in the community but only when that community's current mood is
reasonable.
The defence of entrapment is to be recognized once the accused has demonstrated that the
strategy used by the police goes beyond acceptable limits, a judicial condonation of the
prosecution would by definition offend the community.
The state must be given substantial leeway with drug trafficking because the traditional
devices of police investigation are not effective. The police or their agents must get involved
and gain the trust and confidence of the people trafficking or supplying the drugs.
R. v. BARNES, [1991] S.C.R.
FACTS:
• The Vancouver Police were conducting a "buy-and-bust" operation in an area -- the Granville
Mall -- considered to have a drug trafficking problem. In a "buy-and-bust" operation,
undercover police officers attempt to buy illicit drugs from individuals who appear, in the
officers' opinion, to be inclined to sell drugs. The appellant, who in the words of a police
officer was "dressed scruffy", was in the Granville Mall area when approached on a "hunch"
by an undercover police officer. The officer asked him if he had any "weed". Despite a
negative answer, the officer asked the question again and persisted until the appellant agreed
to sell a small amount of cannabis resin. Another officer arrested the appellant shortly
afterwards.
114
LAMER C.J.: The appeal should be dismissed.
• The police officer here did not have a "reasonable suspicion" that the appellant was already
engaged in unlawful drug-related activity. The factors drawing her attention to the
appellant -- his manner of dress, the length of his hair -- were not sufficient to give rise to a
reasonable suspicion that criminal acts were being committed.
o The subjectiveness of her decision to approach the appellant, based on a "hunch" or
"feeling" rather than extrinsic evidence, also indicated that the appellant did not arouse
a reasonable suspicion as an individual. The appellant, however, was presented with
the opportunity to sell drugs in the course of abona fide inquiry.
• The officer's conduct was motivated by the genuine purpose of investigating and repressing
criminal activity and the investigation was directed at a suitable area within
Vancouver. Although the size of the area itself may indicate that the investigation is not bona
fide, it was reasonable for the Vancouver Police Department to focus its investigation on the
Granville Mall.
o The appellant, when he was in the Granville Mall, was in a location where it was
reasonably believed that drug-related crimes were occurring. The officer's conduct
was therefore justified.
ANALYSIS
• The police may only present the opportunity to commit a particular crime to an individual
who arouses a suspicion that he or she is already engaged in the particular criminal activity.
o An exception to this rule arises when the police undertake a bona fide investigation
directed at an area where it is reasonably suspected that criminal activity is
occurring. When such a location is defined with sufficient precision, the police may
present any person associated with the area with the opportunity to commit the
particular offence. The notion of being "associated" with a particular area for these
purposes does not require more than being present in the area. Such randomness is
permissible within the scope of a bona fide inquiry.
• Random virtue-testing only arises when a police officer presents a person with the opportunity
to commit an offence without a reasonable suspicion that: (a) the person is already engaged
in the particular criminal activity, or (b) the physical location with which the person is
associated is a place where the particular criminal activity is likely occurring
• Section 695(1) does not allow this Court to make, in all circumstances, a decision that in its
opinion the Court of Appeal could have and should have made.
o This Court has jurisdiction under s. 695(1) to modify an order at the request of the
Crown when there is an appeal by the Crown making such a request. When there is
no appeal by the Crown, an appellant cannot leave this Court with less than what he
gained from the Court of Appeal.
o In the absence of an appeal by the Crown, this Court has no jurisdiction to allow the
Crown's request that the order below be modified. To hold otherwise would allow the
Crown to appeal to this Court where such an opportunity has not been provided by
the Criminal Code or the Supreme Court Act .
o The Crown is not given by statute the ability to appeal to this Court a decision
which allowed its appeal from an acquittal or judicial stay of proceedings, but which
gave the Crown less than what had been requested. As a result, there is no statutory
115
provision which would allow the Crown to appeal from the Court of Appeal's
judgment. Absent a statutory right of appeal, there is no right of appeal.
• As a general rule, an appellate court cannot disturb a verdict of acquittal or modify an order
directing a new trial, absent an appeal by the Crown asking it to do so.
o Appellate jurisdiction is conferred entirely by statute. The rationales underlying the
general rule, however, become inoperative in certain situations. One such situation
deals with circumstances where the Kienapple principle is triggered.
• Due to the operation of the rule against multiple convictions, an exception to the general rule
regarding Crown appeals and appellate jurisdiction has been formulated. The continued effect
of the "acquittal" is lifted and the conviction is reinstated should the Crown's appeal of the
stay, by appealing the application of the rule itself, be successful or should the accused
successfully appeal one of the convictions. There is really nothing of substance for the Crown
to appeal.
o As in a Kienapple situation, the "acquittal" fails to remain relevant after the
entrapment issue is dispensed with and an accused cannot ignore that necessary
result. Requiring the Crown to appeal the "acquittal" in order to formalize this
necessary consequence is a meaningless formality easily dispensed with in
a Kienapple situation. The same result should also obtain in an entrapment situation.
o One such situation, already recognized by this Court, deals with circumstances where
the rule against multiple convictions, or the Kienapple principle, is triggered.
o The doctrine of res judicata, prohibit the trying of an accused twice for the same
offence. Kienapple v. The Queen, [1975] S.C.R., extended the traditional formulation
of res judicata to cover situations where an accused is charged with offences having
a close factual and legal relationship.
o Simply stated, the rule against multiple convictions, or the Kienapple principle,
"proposes that an individual should not be subjected to more than one conviction
arising out of the same "cause or matter" or the same "delict", consisting of a single
criminal act committed in circumstances where the offences alleged are comprised of
the same or substantially the same facts and elements".
J. ERROR OF LAW
An error of law generally is not a defence, as ignorance of the law is not a defence: reflected in s.
19 of the Criminal Code
• However, this general principle is subject to exceptions in limited circumstances.
• In particular, when “colour of right” is specified to be relevant, a mistake about the law can
be relevant = colour of right "means an honest belief that an act is justifiable...".
• Using this as a defence does not automatically guarantee an acquittal; however, it does
diminish the mens rea component needed for a conviction.
Supreme Court has created the common law defence of “officially induced error”
 The inflexibility of this rule is cause for concern where the error in law of the accused
arises out of an error of an authorized representative of the state and the state then demands,
through other officials, that the criminal law be applied strictly to punish the conduct
 Officially induced error of law exists as an exception to the rule that ignorance of the law
does not excuse
116
Lilly v. THE QUEEN, [1983] SCR
FACTS:
 Appellant, a licensed real estate broker, was convicted of theft of $26,759.58, 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 agency’s general account once the offer to purchase the property had
been accepted. As to the other transactions he alleged lack of knowledge of the transfers.
This appeal is to determine whether the trial judge misdirected the jury as to the meaning
of the phrase “colour of right”.
LAMER J.: The trial judge misdirected the jury, quash the conviction and a new trial ordered.
 The fate of the appellant’s defence of colour of right was not dependent upon whether the
jurors were satisfied beyond a reasonable doubt that the appellant had not, at the time of
the transfers, an honest belief that he had the right to that money, and not, as they were
told, dependent upon what they thought his rights were.
 This is clearly misdirection in law. The fate of the accused’s defence of colour of right was
not dependent upon the jury determining when the commissions were payable. That
question was indeed important as relevant to whether the monies were his or those of his
clients.
 The fact that they still be the property of the client was a prerequisite to his having to raise
a defence to the taking or conversion.
o Rather, the accused’s defence was dependent upon whether they, the jury, were
satisfied beyond a reasonable doubt that he, the accused, had not, at the time of the
transfers, an honest belief that he had the right to that money, and not, as they were
told, dependent upon what they, the jurors, thought his rights were.
 Juries do not give reasons. Furthermore, they were not told they could find the accused
guilty for a lesser amount if satisfied that for some of the transactions the defence of colour
of right had been successful.
 When there is a defence of colour of right applicable only to some of the transactions, this
direction in conjunction to a misdirection as to that defence has the following effect: not
knowing whether the jury’s verdict of guilty was for one, or more, or all of the transactions,
the verdict could well be resting on one of those transactions where the defence of colour
of right was available and concerning which I have found clear misdirection
R. v. JONES, [1991] SCR
FACTS:
 Appellants were charged with unlawfully conducting a bingo contrary to s. 206(1) (d) of the
Cr. C. The charges arose out of gaming operations at the Shawanaga Reserve, which were
initiated under three Band Council resolutions signed by the appellants as Chief and
Councillor of the Shawanaga First Nation. Before conducting the lotteries, the appellants had
been advised by representatives of the province, including the Ontario Provincial Police, that
117
the Criminal Code prohibits lottery schemes, other than those conducted under the auspices
of a provincial licence.
STEVENSON J.: s. 207 of the Cr C. are not ultra vires, nor do they offend s. 11 (g) of the Charter
 Mistaken belief that the Code does not apply is no answer to the charges.
 The defence of colour of right does not apply to a charge under s. 206(1)(d) of the Code:
o First, no authority was cited for the proposition that colour of right is relevant to any
crime which does not embrace the concept within its definition.
o Second, 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.
 The appellants must be taken, for the purpose of this appeal, to acknowledge that they were
mistaken in their belief that the Criminal Code did not apply to their activities on the
reserve. They have not taken any proceedings to challenge the authority of Canada to enact
laws applicable to those activities and have not made any such challenge here.
 There are, in my view, two clear barriers to this alleged defence:
o Firstly, it is not a defence to this crime. Secondly, any mistake is a mistake of law.
o There is no suggestion of any mistake relating to those facts here, the mistake is in
believing that the law does not apply because it is inoperative on reserves.
 Section 19 of the Code expresses the long recognized principle that a mistake about the law
is no defence to a charge of breaching it
R. v MACDONALD, 2014 SCC
FACTS:
 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. 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.
LeBel J.: the Crown’s appeal of the s. 95 Cr. C. acquittal should be allowed.
 Crown not required to prove, in order to secure a conviction under s. 95 , that the accused
knew his possession and acquisition licence and authorization to transport the firearm did
not extend to the place where he unlawfully had it in his possession.
ANALYSIS
 Crown not required to prove, in order to secure a conviction under s. 95 , that the accused
knew the law – ignorance of the law is no excuse.
 The offence provided for in s. 95 is a mens rea offence = An individual who knowingly
possesses a loaded restricted firearm in a particular place with an intention to do so will be
liable to punishment for the offence provided for in s. 95(1) unless he or she holds an
authorization or a licence under which the firearm may be possessed in that place.
o Thus, a proper authorization or licence serves to negate the actus reus of the
offence, thereby allowing someone who legitimately possesses a restricted firearm
in a given place to avoid liability.
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LEVIS (CITY) v. TETRAULT, [2006] SCR
FACTS:
 Respondent company, which is charged with operating a motor vehicle for which the fees
relating to its registration had not been paid, raised the defences of due diligence and
officially induced error. Allege that a representative of the Société de l’assurance
automobile du Québec (“SAAQ”) had it pay registration fees corresponding to a 15-month
period and had told it that a renewal notice would be sent to it before the period expired.
Because of an error, the SAAQ sent the notice to the company with an incomplete address
and the postal service returned it to the sender. As for the respondent T, who is charged
with driving a motor vehicle without a valid driver’s licence, he raised the defence of due
diligence, stating that he was unaware that the date appearing on his licence was the date
the licence expired rather than a payment due date.
HELD: The alleged offences belong to the category of strict liability offences. Section 93.1, a
regulatory offence, does not place the burden of proving mens rea on the prosecution and includes
no expression of the legislature’s intent to create an absolute liability offence.
 The due diligence defence raised by the company and by T has not been made out. The
concept of diligence is based on the acceptance of a citizen’s civic duty to take action to
find out what his or her obligations are. Passive ignorance is not a valid defence
o T did no more than state that he expected to receive a renewal notice for his licence
and that he had confused the licence expiry date with the due date for paying the
fees required to keep the licence valid. He proved no action or attempt to obtain
information.
o The same is true of the company, which did nothing even though it was aware of
the date when the fees relating to the registration of its vehicle would be due.
 As for the defence of officially induced error, the company has not established that the
conditions under which it is available have been met. The issues the company raised with
the SAAQ’s representative related at most to administrative practices, not to the legal
obligation to pay the fees by the prescribed date.
Defence of Officially Induced Error (defence with an excuse)
 Lamer C.J. in R. v. Jorgensen, defined the conditions of the defence:
o The wrongfulness of the act is established, however, because of the circumstances
leading up to the act, the person who committed it is not held liable for the act in
criminal law = accused entitled to a stay of proceedings rather than an acquittal
(para. 37).
 Lamer C.J. defined the constituent elements of the defence and the conditions under which
it will be available, the accused must prove six elements: (Jorgensen, at paras. 28-35)
o That an error of law or of mixed law and fact was made; That the person who
committed the act considered the legal consequences of his or her actions; That the
advice obtained came from an appropriate official; That the advice was reasonable;
That the advice was erroneous; and That the person relied on the advice in
committing the act.
 It is necessary to establish the objective reasonableness not only of the advice, but also of
the reliance on the advice – Various factors considered:
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o The efforts made by the accused to obtain information, the clarity or obscurity of
the law, the position and role of the official who gave the information or opinion,
and the clarity, definitiveness and reasonableness of the information or opinion
(Cancoil Thermal, at p. 303) – aspect of the question must be considered from the
perspective of a reasonable person in a situation similar to that of the accused.
V. THE ADVERSIAL PROCEEDING
A. THE ADVERSARIAL PROCEES - Introduction
(i) The trial is the opportunity for the Crown to prove the specific allegation made in the
charge (information or indictment) beyond a reasonable doubt.
(ii) The key characteristic of the Canadian Criminal Trial is therefore the specific
allegation. (coughlan 312 – 331).
B. PLEAS
(i) s606 CC outlines that an accused can plead guilty, not guilty or one of the special pleas
outlined.
(ii) the special pleas are essentially a claim that the matters have been previously dealt w/
(ie. Acquittal, conviction, or a pardon).
(iii) Guilty Plea – is an admission of the offence and a waiver of a right to trial.
(iv) where an accused refuse to plead, the judge enters a plea of not guilty for him.
(v) an accused can later withdraw a plea if there are valid grounds to do so.
C. ORDER OF TRIAL
(i) Trial Procedures
1. covered in Parts XIX (19), XX (20) and XXVII (27) of the CC.
2. accused must be present, but judge can grant leave for summary offences.
(ii)
Opening Statements
1. crown presents its case first – will describe its theory and the evidence that will be
called.
2. they can later change their strategy and don’t have to call all the witnesses they.
3. indicated originally.
4. the accused.
5. normally the defence is not entitled to make an opening statement after the crown.
(iii) Presentation of the Crown Case
1. crown counsel is req’d to present evidence proving the charges.
2. evidence is to be taken under oath in the presence of the accused.
3. accused has the right to cross-examine witnesses and the evidence recorded.
(iv) Presentation of the Defence Case
1. after the crown closes its case the defence presents evidence.
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2. prior to that they can request a “directed verdict” – basically a judge directs jury to
acquit.
3. sometimes called “non-suit” or “no case to meet”
4. this can only be done when the crown has failed to provide evidence on some
essential elements.
5. if no directed verdict, the defence presents its case – at the order of their discretion.
(v)
Reopening the Crown’s Case
1. after the defence rests, the crown can request to reopen their case and call new
witnesses.
2. this is at the discretion of the judge and he will consider whether this will prejudice
the accused.
(vi) Rebuttal Evidence
1. the crown can lead rebuttal evidence if the defence has raised a new matter or
defence which the crown had no opportunity to deal with and could not have
reasonably anticipated.
2. essentially, rebuttal evidence must concern matters that the crown is surprised to
find in issue.
(vii) Reopening the Defence Case
1. up to the judge to reopen the defence case.
2. it is not possible to do this after a jury reach a verdict, but can be done after a judge
reaches a verdict.
3. the test for a TJ to reopen the defence case after a guilty verdict s/b the same as that
for admitting fresh evidence on appeal.
(viii) Addresses to the Jury
1. s651 C sets out the order in which the Crown and accused are to address the jury.
2. if the defence has not called evidence, then the crown argues first, but if it has, then
they argue first.
3. after counsel have argued, the judge “charges” the jury.
4. the purpose of the charge is to “decant and simplify” the case.
5. it is the judge’s discretion on what to instruct – the accused has a right to a properly
instructed jury, but not a perfectly instructed jury.
6. during deliberations, the jury can ask questions to a judge – the judge than “recharges” the jury.
***Read CHARGE from Andrews notes – pg 12.***
VI. PRESUMPTION OF INNOCENCE AND THE ULTIMATE STANDARD OF PROOF
A. An accused is presumed to be innocent: s11(d) Charter. The Crown must prove guilt BRD:
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R v. LIFCHUS [1997] (describes the meaning of beyond a reasonable doubt)
FACTS – Lifchus was a stockbroker who was accused of fraud and theft. He ws convicted of one
and acquitted of the other. He appealed on the basis that the judge did not properly explain the
burden of proof to the jury. “He said that beyond a reasonable doubt” is simply an everyday idea
and that everyone understands it – a “plain language” approach. The court of appeal allowed
ordering a new trial, which the crown appealed.
RATIO – When defining important criminal terms such as “Beyond Reasonable Doubt”, the judge
must not simply use a plain language definition; they must include descriptions of the important
underlying concepts of criminal law that must be considered, and the specific degree that must be
proven to be acceptable.
ISSUE - how should a judge charge a jury on the meaning of BRD
DECISION – Appeal dismissed – new trial ordered.
REASONS - CORY J.:
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The trial judge failed to explain the standard of proof fully and properly to the jury. He did
not provide a definition of “reasonable doubt” and told the jurors to evaluate the
concept of reasonable doubt as if these were “ordinary, every day words”. This is
unacceptable.
Since the trial judge did not provide any further guidance to the jury concerning the
meaning of proof beyond a reasonable doubt, this serious error was not saved by
further instructions and gave rise to the reasonable likelihood that the jury
misapprehended the burden of proof which they were required to apply.
The correct explanation of the requisite burden of proof is essential to ensure a fair criminal
trial and a serious error was made on this fundamental principle of criminal law. It cannot
be said that, had the trial judge not erred, the verdict would necessarily have been the
same.
ANALYSIS
 A judge must explain to jury an explanation of the expression “reasonable doubt” –
such as:
 The standard of proof beyond a reasonable doubt is inextricably intertwined with the
presumption of innocence, the basic premise which is fundamental to all criminal
trials, and
 That the burden of proof rests on the prosecution (Crown) throughout the trial and
never shifts to the accused.
 The jury should be instructed that a reasonable doubt is not an imaginary or frivolous
doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt
based on reason and common sense which must logically be derived from the evidence
or absence of:
o The word “doubt” should not be qualified other than by way of the adjective
“reasonable”. It is only after proper instructions have been given as to the
meaning of the expression “beyond a reasonable doubt” that jurors may be
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advised that they can convict if they are “certain” or “sure” that the accused
is guilty.
Summary of what the definition should contain:
 A reasonable doubt is not a doubt based upon sympathy or prejudice, but upon reason and
common sense, logically connected to the evidence or absence of evidence;
 Is does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it
an imaginary or frivolous doubt; and
 More is required than proof that the accused is probably guilty, if so, jury must acquit.
Certain references to the required standard of proof should be avoided:
 Describing the term “reasonable doubt” as an ordinary expression which has no special
meaning in the criminal law context;
 Inviting jurors to apply to the task before them the same standard of proof that they apply
to important, or even the most important, decisions in their own lives;
 Equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;
 Qualifying the word “doubt” with adjectives other than “reasonable”, such as
“serious”, “substantial” or “haunting”, which may mislead the jury; and
 Instructing jurors that they may convict if they are “sure” that the accused is guilty, before
providing them with a proper definition as to the meaning of the words “beyond a
reasonable doubt”.
BY LIRAN’S NOTES
 BRD does not involve proof to an absolute certainty; it is not proof beyond any doubt nor
is it an imaginary or frivolous doubt
 More is req’d than proof that the accused is probably guilty
 It must not be based upon sympathy or prejudice
 Rather, it is based on common sense; it is logically derived from the evidence or absence
of evidence
 A jury charge that includes these considerations will be a valid one. There is no magic
incantation
R v J.H.S [1997] (read facts from GR notes, page 131)
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Stepfather charged with and convicted for sexually assaulting his step-daughter
TJ charged the jury on the credibility of the witness and specifically instructed the jury that
“the trial was not a choice between two competing versions of events”
CA overturned set aside the conviction and ordered a new trial b/c the jury was not clearly
instructed by the TJ that the lack of credibility on the part of the respondent did not equate
to proof beyond a reasonable doubt
This decision was appealed!
Where credibility was important, the TJ’s instructions could not leave the jury w/ the
impression that it had to choose b/t the two versions of events
The TJ did explain that any reasonable doubt had to be resolved in favour of the respondent
She explained that even if they did not accept all of the respondent’s testimony, they could
still accept some of it
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She also told the jury that they could not decide the case simply by choosing b/t the
evidence of the complainant and that of the respondent
She reminded the jury that they had to consider all the evidence when determining
reasonable doubt
The charge was sufficient.
R v. STARR (2000) 2 S.C.R. 144
FACTS – in August 1994, Bernard Cook and Darlene Weselowski were drinking with Robert
Dennis Starr in a hotel near Winnipeg. In the late hours of the night Starr parted ways with Cook
and Weselowski. Together Cook and W, were approached by Jodie, a sometimes girlfriend of C.
during an ensuing conversation C told Jodie that he could not go with her that night because he
had to “go and do Autopac scam with Starr, as he had been given $500 for wrecking a car for
insurance purposes.
A few hours later the bodies of C and W were found on the side of the property of a nearby
highway. They had benn shot in the head. Starr was arrested in connection with the murders.
At trial, the crown advanced the theory that the murders were gang related where Starr had used
the insurance fraud scam as a means to get C into the countryside to murder him. The case hinged
on the testimony of Jodie and the statement she heard from C that night. The judge found the
statement admissible on the present intentions or state of mind exception to the hearsay rule.
RATIO – the reasonable doubt standard falls much closer to absolute certainty than to proof on a
balance of probabilities.
ISSUE – whether the TJ explained concept of RD to jury in adequate manner.
DECISION- in a 5 to 4 decision the court held that the evidence should not be admitted and sent
the case back for a retrial.
REASONS – with regard to the jury instructions, the court held that the judge failed to properly
instruct the jury on the standard of proof. The judge should have placed “BRD” between absolute
certainty and “balance of probabilities”.
VII. OTHER BURDENS
A. Prima facie case: For directed verdicts, and to be able to pass through the preliminary
inquiry stage, the defence and the Crown, respectively, must show that there is a prima
facie case.
B. The test is whether there is any evidence upon which a reasonable trier of fact, properly
instructed, could convict (Arcuri).
C. There are other burdens of proof that operate during a criminal process:
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(i) Evidential burden – that some rules of law impose for a party who wishes a matter to
be placed in issue to succeed in having that matter placed in issue – allows the judge to
evaluate whether the Crown has shown a prima facie case (discussed in Arcuri)
(ii) Even the accused must at times satisfy an evidential burden in order to have a matter
placed in issue. Indeed, if the accused wants to have a defense considered, the accused
must show that the defense has an “air of reality” to it. If the accused succeeds, the
judge must consider the defense, and in a jury trial mist direct the jury on the law that
applies to that defense.
D. Rules of evidence
(i) Presumptions: operate to assign burdens of proof to the accused. A presumption is a
rule of law that directs judges and jury to assume that a fact is true (the “presumed
fact”) in any case where the Crown proves that another fact is true (the “basic fact”),
unless the accused can rebut the presumed fact according to the assigned standard of
proof.
1.
Mandatory presumptions: can be rebutted by the accused simply raising a
reasonable doubt about whether the presumed fact follows from the basic fact.
(a) Typically, these can be recognized because the statutory provision will
contain language like “in the absence of evidence to the contrary”.
(b) Where a mandatory presumption is rebutted, the “presumed fact” falls back
into issue notwithstanding the presumption, and must be proved by the
Crown in the ordinary way, without the assistance of the presumption.
(c) A presumption will be interpreted as a “mandatory presumption” where it
fails to set out the required standard of rebuttal because of s. 25 (1) of the
Interpretation Act.
2.
Reverse onus provisions: deeming the presumed fact to exist where the Crown
proves the basic fact unless the accused disproves the presumed fact on the
balance.
(ii) The presumption of innocence lies at the very heart of the criminal law and is protected
expressly by s. 11 (d) of the Charter and inferentially by the s. 7 right to life, liberty
and security of the person.
1.
The right to be presumed innocent until proven guilty requires, at a minimum,
that:
(a) an individual be proven guilty beyond a reasonable doubt;
(b) the State must bear the burden of proof; and
(c) criminal prosecutions must be carried out in accordance with lawful
procedures and fairness.
(iii) Presumptions are prima facie contrary to the Charter and must be saved under s. 1.
R V ARCURI [2001]
 Crown produced entirely circumstantial evidence in a preliminary enquiry.
 The accused provided exculpatory evidence (evidence which clears him of guilt).
 Where the Crown adduces direct evidence on all the elements of the offence, the case must
proceed to trial, regardless of the existence of defence evidence.
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However, where the Crown produces entirely circumstantial evidence, the judge must
engage in limited weighing of the whole of the evidence (including any defence evidence)
to determine whether a reasonable jury properly instructed could return a verdict of guilty
The judge only asks whether the evidence, if believed, could reasonably support an
inference of guilt.
It should be regarded as an assessment of the reasonableness of the inferences to be drawn
from the circumstantial evidence
Evidential burden for putting forward defences:
 Even the accused must at times satisfy an evidential burden in order to have a matter placed
in issue
 If an accused wants a defence considered, he must show that the defence satisfies the “air
of reality”
 This is illustrated in R v Cinous and R v Fontaine
R v.CINOUS [2002] (In criminal cases, the accused may have an evidential burden where she
seeks to rely upon positive defences, like self-defence; “air of reality test”):
 Facts above – pg 99 of notes
 A defence s/b put to a jury if, and only if, there is an evidential foundation for it – the air
of reality test
 The air of reality test imposes a burden on the accused that is merely evidential rather than
persuasive.
 The test is whether there is evidence on the record upon which a properly instructed jury
acting reasonably could acquit (assuming the evidence to be true)
 Two principles derive from this test:
o (1) a judge must put to the jury all defences that arise on the facts which have an
air of reality;
o (2) they must keep from the jury defences lacking an evidential foundation.
 In applying the test, look at the totality of the evidence, and the purpose is not aimed at
establishing the substantive elements of the defence.
 The threshold determination by the TJ is not aimed at deciding the substantive merits of
the defense.
 That question is reserved for the jury.
 The TJ does not make determinations about the credibility of witnesses, weigh the
evidence, make findings of fact, or draw determinate factual inferences
 Nor is the air of reality test intended to assess whether the defense is likely to succeed
 The question for the TJ is whether the evidence discloses a real issue to be decided by the
jury, and not how the jury should ultimately decide the issue
R v. FONTAINE [2004] (Putting in play “reverse onus” defences just req’s evidential, not
persuasive burden)
RATIO – the evidentiary burden is discharged if the accused raises sufficient evidence that there
is an “air of reality” that the defense might succeed; the judge is not to consider the truth of the
evidence when deciding if the accused has met the burden.
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Facts of the case on pg 79 of notes
An “evidential burden” is not a burden of proof.
“persuasive burden” determines how the issue s/b decided.
The first is a matter of law, the 2nd is a question of fact!
So at trial, the judge decides if whether the evidential burden has been met and it is up to
the jury to decide the quality, weight or reliability of the evidence.
In the case of “reverse onus” defences, such as automatism, it is the accused who bears the
persuasive and the evidential burdens.
In these defences, the persuasive burden is discharged by evidence on the balance of
probabilities.
Reverse onus defences will therefore go to the jury (be in play) where there is any evidence
upon which a properly instructed jury, acting judicially, could reasonably decide the issue
(air of reality).
Compare reverse onus defences, like automatism, with “ordinary” defences, where the
accused has no persuasive burden at all.
Once the issue has been “put in play”, the defence will succeed unless it is disproved by
the Crown beyond a reasonable doubt.
In Stone, it appeared that the accused needed to discharge a persuasive burden before the
jury could even hear the defence of non-mental disorder automatism.
In Fontaine, the Court altered this
It was held that the accused only has to put forward some evidence capable of supporting
the defence.
Burden to rebut a presumption:
 There are numerous rules of evidence called “presumptions” that operate to assign burdens
of proof on the accused.
 A presumption directs judges/jury to assume that a fact is true (known as the presumed
fact) in any case where the Crown proves that another fact is true (known as the basic fact),
unless the accused can rebut the presumed fact according to the assigned standard of proof
 There presumptions are known as “mandatory presumptions”
 “Mandatory presumptions” can be rebutted by the accused simply raising a reasonable
doubt about whether the presumed fact follows from the basic fact
 Where a mandatory presumption is rebutted, the “presumed fact” falls back into issue
notwithstanding the presumption, and must be proved by the Crown in the ordinary way,
w/o the assistance of the presumption
 Other presumptions operate as “reverse onus provisions”, deeming the presumed fact to
exist where the Crown proves the basic fact, unless the accused disproves the presumed
fact on a balance of probabilities
 A presumption can be recognized as a “mandatory presumption” b/c the legal rule raising
the presumption will use the term “evidence to the contrary” to describe the burden of
rebuttal
 A presumption will be interpreted as a mandatory presumption where it fails to set out the
req’d standard of rebuttal b/c of s25(1) of the Interpretation Act
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Many presumptions operate in alcohol driving prosecutions and are used to determine
whether the accused has more than a legal amount of alcohol in his blood while driving or
having care or control of a motor vehicle (see for example s258(1)(c), (d.1) and (g) all
mandatory presumptions)
All presumptions are prima facie contrary to the Charter and must be saved under s1
R v. OAKES [1986]
RATIO – to test if a section is saved under s.1: (1) the section must fulfill an objective related to
concerns which are pressing and substantial in a free and democratic society; and (2) the means
chosen must be reasonable and demonstrably justified.
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VIII.
Facts are on pg. 5 of the notes.
In criminal cases, legal presumptions are often in tension with the presumption of
innocence
A provision which req’s an accused to disprove on a balance of probabilities the existence
of a presumed fact violates the presumption of innocence.
If an accused bears the burden of disproving an element of the offence, it would be
possible for a conviction to occur despite the existence of a reasonable doubt.
This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as
to his or her innocence but did not convince the jury on a balance of probabilities that the
presumed fact was untrue
THE NEUTRAL IMPARTIAL TRIER
A. INTRODUCTION
(i) A critical component of the accusatorial system is the presence of a neutral trier of law.
(ii) In Canada more than 95% of criminal cases are conducted by a judge alone (trier of
fact and law).
(iii)Where there is a jury, the judge acts as a trier of law and the jury as a trier of fact.
(iv) The judge makes all legal and procedural decisions and directs the jury by training them
in the law.
(v) The jury then makes the factual decisions and renders the holding.
(vi) In Canada, the appropriate sentence is a question of law  therefore done by a judge.
(vii) The jury should not be told the potential sentences for fear that it will inspire
sympathetic rather than legal verdicts.
(viii) Impartial does not mean that the judge must remain passive, but parties must initiate
the proof.
B. POWERS OF THE COURT (coughlan pgs 339-349)
(i) Judges have a variety of powers to control the process in court (statute, common law,
s482 CC).
C. CONTROL OVER THE COURT PROCESS
(i) TJ can restrain cross-examination, prevent irrelevant or harassing questions, and ask
questions.
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(ii)
These powers can be taken too far and must be used cautiously as they can interfere
w/ the accused’s right to a fair trial.
(iii) The test is not whether the accused was actually prejudiced, but “whether a
reasonably minded person who had been present throughout the trial would consider
that the accused had not had a fair trial” (R v Valley 1986).
(iv) The TJ has some discretion around the circumstances in which the evidence will be
heard.
(v) He can exclude any or all members of the public when it is in the interest of public
morals, the maintenance of order, or the proper administration of justice.
(vi) This conflicts with the principle that court proceedings s/b open and the freedom of
press.
(vii) It violates 2b Charter, but is saved as a reasonable limit provided discretion is used
properly.
(viii) s486.1 CC gives the judge some power over the manner in which some witness are
allowed to testify.
(ix) minors or people w/ mental or physical disabilities can be permitted a support person
of their choice.
(x) can also allow the above to testify outside a courtroom or from behind a screen or
other devices that prevent the witness from seeing the accuse.
(xi) This can only be made when the judge believes the exclusion is necessary to obtain
a full testimony.
(xii) Although the witness cannot see the accused, the accused can still see the witness.
D. PUBLICATION BANS
(i) Judge can order a publication ban in exceptional cases (by statute and common law)
1. The test for a publication ban was laid out in Dagenais/Mentuck:
(a) Such an order is necessary in order to prevent a serious risk to the proper
administration of justice b/c reasonably alternative measures will not
prevent the risk; and
(b) The salutary effects on the rights and interests of the parties and the public,
including the effects on the right to free expression, the right of the accused
to a fair and public trial, and the efficacy of the administration of justice.
2. The person seeking the publication ban has the onus.
E. CONTEMPT OF COURT
(i) This common law power is preserved by s9 CC.
(ii) Two types of contempt: in the face of the court and contempt not in the face of the
court.
(iii) Superior courts have jurisdiction over both while lower courts can only punish for
the 1st one.
(iv) Contempt covers a variety of behaviours: Ie. insolence to the court, refusal to answer
questions under oath.
(v) The power to punish for contempt is to maintain the dignity of the court and to ensure
a fair trial.
(vi) There is a three-step process to punish for contempt
1. Person is to be put on notice – being “cited” in contempt
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2.
3.
An adjournment given for person to consult with counsel.
Finally, a person found in contempt s/b allowed to make representations as to
sentence.
(vii) In exceptional circumstances, not all these steps must be followed.
F. MISTRIALS
(i) A judge has the authority to declare a mistrial at any point in the proceedings.
(ii) It is usually a remedy of last resort.
(iii) Other remedies can include an adjournment, reopening the case, or clearly instructing
the jury that they are to ignore the submissions of information they ought not to have
heard.
(iv) “the general principle is that a mistrial is declared if the Crown’s jury address is so
improper that it deprives the accused of the right to a fair trial”.
(v) The Crown can also apply for a mistrial
R v. GUNNING [2005]:
 It is for the judge to direct the jury on the law, and the jury to decide whether on the facts,
the offence has been proven
 The accused fatally show an unknown person who entered his home uninvited during a
party
 The TJ instructed the jury that the offence of careless use of a firearm had been made out
and he refused to instruct the jury on defence of property
 Later in his charge, he purported to correct the impugned instruction on careless use of
firearm
 The accused was convicted of murder – the CA upheld the conviction
 This is now being appealed
REASONING:
 The TJ erred in instructing the jury that the Crown had prove the “unlawful act” necessary
to prove murder or manslaughter and his recharge did not cure the error
 It is a basic principle of law that, on a trial by judge and jury, it is for the judge to direct
the jury on the law and to assist the jury in their consideration of the facts
 but it is for the jury, and the jury alone, to decide whether, on the facts, the offence has
been proven
 It is of fundamental importance to keep these functions separate
R v. HAMILTON [2004]: TJ made several findings of fact not supported by evidence
FACTS: H and M were charged with importing cocaine
 Both were black single mothers
 M was not a Canadian citizen and faced risk of deportation
 At the sentencing hearings conducted by Justice Hill, extensive social context evidence
concerning poverty, gender bias and systemic racism was filed, and the judge provided 700
pages of materials
 Based on this evidence, the judge concluded that the women should not receive
imprisonment, but should receive conditional sentences
 The Ontario CA commented on the inappropriateness of the judge’s decision
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REASONING:
 Judge made several findings of “fact” which were not supported by evidence (e.g., the
respondents were paid minimal amounts and used those amounts to provide the bare
necessities for their children)
 The respondents didn’t offer an explanation/description of their involvement in the crimes
apart from H’s indication that she acted out of financial need
 The judge had no indication of who may have hired them, what compensation they received
or what would happen to their children if they went to jail
 Judge did not purport to base his findings of fact on any material that actually related to
the accused’s
 Instead, he relied on his experiences in sentencing other individuals who couriered cocaine
from Jamaica, and applied those generalizations to the respondents
 While a judge is permitted to use common sense and wisdom gained from personal
experience in judging the trustworthiness of a particular witness, the judge must avoid
judging the credibility on the basis of generalizations or upon matters that were not in
evidence, Cory J said in R v S (R.D.)
 R v S (R.D.) draws a distinction b/t findings of fact based exclusively on personal judicial
experience and judicial perceptions of applicable social context, and the findings of fact
based on evidence viewed through the lens of personal judicial experience and social
context
 The latter is proper; the former is not.
IX. THE ROLE OF THE PROSECUTOR
A. The prosecutor is an advocate but also a quasi-judicial officer.
B. He cannot act solely as an advocate, but must make decisions in best interests of justice
and larger public interest, including the interest of the accused.
C. He has many discretionary decisions that can be made and should act as a “minister of
justice”.
D. Chatper IX (The Lawyer As Advocate) – The Canadian Bar Association Code of
Professional Conduct.
E. Rule: When acting as an advocate, the lawyer must treat the court or tribunal w/ courtesy
and respect and must represent the client resolutely, honourably and w/in the limits of the
law
R v. COOK [1997]
ISSUE: Does the Crown have a mandatory duty to call certain witnesses as part of its case in
chief?
 The Crown cannot adopt a purely adversarial role towards the defence, given its special
function in ensuring that justice is served
 but it is both permissible and desirable that the Crown vigorously pursue a legitimate result
to the best of its ability
 Part of this discretion involves the choice of which witnesses to call
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


Given the strong preference this Court has shown for deferring to the Crown’s discretionary
authority, it would take a strong opposing rationale to warrant the creation of a duty which
so clearly impedes it
The accused is not “ambushed” by the fact that a given witness is not called; any existing
unfairness can be resolved through the disclosure process and the accused’s ability to call
the witness
The TJ did not err in failing to inquire into why the Crown chose not to call the victim
The onus to prove the Crown’s misconduct lies upon the accused
Similarly, a finding of an abuse of process or “oblique motive” is only available where the
accused can establish such conduct on a balance of probabilities
R v. PROULX [2003]
 Mr Proulx appeals his conviction of impaired driving on several grounds
 One of them being that the TJ erred in not making an adverse inference to the Crown for
its failure not to call all the evidence that was available to it
 Mr. Proulx contends that the failure to call the breathalyzer operator and the conservation
officer was prejudicial to his defence since it was not until the morning of the trial that he
was informed that these witnesses would not be testifying
 There is no doubt that in certain situations the defence case may be prejudiced by the
Crown’s failure to call certain evidence
 There is no doubt, as well, that the Crown has unfettered discretion in deciding what
witnesses will be called to prove its case
 By not calling all of the evidence, the Crown may run inherent risks in not proving its case
beyond a reasonable doubt and thus, an acquittal will result
 Still, the decision of the determining what evidence to call rests with the Crown
 In this case, the defence acknowledges full disclosure of the Crown’s case
 If it felt that the breathalyzer operator or the conservation officer were helpful and
necessary to its case, then it could have subpoenaed both of these witnesses
 Alternatively, upon discovering that the officers were not going to be present, then an
application for an adjournment could have been made
 Neither of these actions was undertaken
 It should be mentioned that this argument was not raised at trial and only at the appeal level
 Accordingly, that ground of appeal fails
KRIEGER v. LAW SOCIETY OF ALBERTA [2002]
 Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety
 B/c Crown prosecutors must be members of the Law Society, they are subject to the Law
Society’s code of professional conduct
 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
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



A clear distinction exists b/t prosecutorial discretion and professional conduct, and only
the latter can be regulated by the Law Society
Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related
to this duty constitute a very serious breach of legal ethics
Here, it appears that K failed to disclose relevant information, a violation of his duty, but
later offered an explanation which would help to determine if he had acted dishonestly or
in bad faith
If so, this would be an ethical breach falling within the Law Society’s jurisdiction
The Law Society’s jurisdiction to review K’s failure to disclose relevant evidence to the
accused is limited to examining whether it was an ethical violation.
R. v. NIXON, 2011 SCC
FACTS:
 Counsel initially entered into a plea agreement according to which the accused would plead
guilty to a charge of careless driving, in return for which the Crown agreed to withdraw
the Criminal Code charges. When the Acting Assistant Deputy Minister of the Criminal
Justice Division of the Office of the Attorney General saw the proposed resolution, he
initiated an inquiry which led him to conclude that Crown counsel’s assessment of the
strength of the case was flawed. Crown counsel was thus instructed to withdraw the plea
agreement and to proceed to trial.
HELD: Crown’s repudiation conduct cannot be considered so unfair or oppressive to the accused,
or so tainted by bad faith or improper motive, that to allow the Crown to now proceed on the
dangerous driving Criminal Code charges would tarnish the integrity of the judicial system and
thus constitute an abuse of process.
 Indeed, the Acting Assistant Deputy Minister, in good faith, determined that Crown
counsel’s assessment of the strength of the evidence was erroneous and, on that basis,
having regard to the seriousness of the offences, concluded that it would not be in the
public interest to terminate the prosecution on the criminal charges. This can hardly be
regarded as evidence of misconduct.
 The Crown’s decision in this case to resile from the plea agreement and to continue the
prosecution clearly constituted an act of prosecutorial discretion subject to the principles
set out in Krieger: it is only reviewable for abuse of process and thus suffered no prejudice
as a result of the repudiation.
ANALYSIS
 Subject to the abuse of process doctrine, supervising one litigant’s decision-making process
— rather than the conduct of litigants — is beyond the legitimate reach of the court.
 Prosecutorial discretion is not spent with the decision to initiate the proceedings, nor does
it terminate with a plea agreement. So long as the proceedings are ongoing, the Crown
may be required to make further decisions about whether the prosecution should be
continued, and if so, in respect of what charges.
 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.
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Repudiation of a plea agreement may well constitute an abuse of process, either because it
results in trial unfairness or meets the narrow residual category of abuse that undermines
the integrity of the judicial process.
A plea agreement should not be regarded as a contractual undertaking. Vitiating factors,
such as mistake, misrepresentation or fraud, which usually inform a private party’s right
to resile from a bargain, do not fully capture the public interest considerations
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. Reviewing
for “reasonableness” a decision made in the exercise of prosecutorial discretion runs
contrary to the constitutionally separate role of the Attorney General in the initiation and
pursuit of criminal prosecutions as well as the principles set out in Krieger.
A court should not embark on an inquiry into the reasons behind the exercise of
prosecutorial discretion without a proper evidentiary foundation. = evidence that a plea
agreement has been reneged by the Crown meets the requisite threshold.
The evidentiary burden shifts to the Crown to enlighten the court on the circumstances and
reasons behind its decision to release from the agreement. The ultimate burden of proving
abuse of process, however, remains on the applicant.
R. v. BABOS, 2014 SCC 16
FACTS:
 During the course of the trial, the accused brought an application to stay the proceedings
for abuse of process. They took issue with three forms of state misconduct: attempts by the
Crown to intimidate them into foregoing their right to a trial by threatening them with
additional charges should they choose to plead not 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. CA set aside the stay
and ordered a new trial.
Moldaver J.: The appeals should be dismissed.
 The three forms of state misconduct that are at issue fall squarely within the residual
category. The trial judge erred in his assessment of the impugned misconduct and in
concluding that a stay of proceedings was warranted.
 Trial judge failed to consider the existence of another remedy that would have overcome
the threat posed to the integrity of the justice system — namely, excluding the firearm from
evidence in respect of both accused.
 As for the threats made by the Crown, while they were reprehensible, the trial judge failed
to consider that they were made more than a year before the trial began, and that the accused
took no steps for over a year to address the Crown’s conduct. And prosecutor who made
threats was removed. These factors shed light on how seriously the accused took the
threats.
ANALYSIS
 A stay of proceedings for an abuse of process will only be warranted in the clearest of
cases. Two types of state conduct may warrant a stay:
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
o The first is conduct that compromises the fairness of an accused’s trial (the “main”
category).
o 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: (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
o 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.
o 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.
o 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. This inquiry necessarily demands balancing.
 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
FACTS:
 Accused was convicted of impaired driving. The offence of impaired driving carries with
it a minimum sentence of 30 days’ imprisonment for a second offence and 120 days’
imprisonment for a subsequent offence. 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.
HELD: 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
 The principle advanced by the accused does not meet the second requirement as it is
contrary to a long-standing and deeply-rooted approach to the division of responsibility
between the Crown prosecutor and the courts. It would greatly expand the scope of judicial
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
X.
A.
B.
C.
D.
review of discretionary decisions made by prosecutors and put at risk the adversarial nature
of our criminal justice system by inviting judicial oversight of the numerous decisions that
Crown prosecutors make on a daily basis.
Tendering the Notice was a matter of prosecutorial discretion. In the complete absence of
any evidence to support it, the accused’s abuse of process argument must fail.
No constitutional obligation – 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.
o First, 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.
 The proportionality principle requires judges to consider systemic and
background factors, including Aboriginal status, which may bear on the
culpability of the offender. There is no basis in law to support equating the
distinct roles of the judge and the prosecutor in the sentencing process.
o Second, the principle of fundamental justice that the accused asks this Court to
recognize does not meet the test which governs principles of fundamental justice.
 A principle of fundamental justice must be a legal principle, enjoy
consensus that the rule or principle is fundamental to the way in which the
legal system ought fairly to operate, and be identified with sufficient
precision to yield a manageable standard against which to measure
deprivations of life, liberty or security of the person.
 As Abella J. observed for the majority in D.B., at para. 46, a principle of
fundamental justice must: (1) be a legal principle, (2) enjoy consensus that
the rule or principle is fundamental to the way in which the legal system
ought fairly to operate, and (3) be identified with sufficient precision to
yield a manageable standard against which to measure deprivations of life,
liberty or security of the person.
ROLE OF DEFENSE
Defence counsel is an officer of the court.
He must therefore be respectful and honest w/ the court and must not attempt to mislead
the court as to the state of the law.
Subject to this rule and the rules of law and ethics, the defence counsel is obliged to act
solely in the interests of the accused, advising the accused on the implications of, and
propriety, of pleading guilty, securing advantage of all procedural and constitutional
protections available to the accused that are not properly waived.
And, if the accused pleads not guilty, preparing the case fully, and challenging the
sufficiency of prosecutorial evidence, and advancing all defences that properly arise.
XI. GETTING TO TRIAL (Also see criminal law and procedure pg. 88 and on)
A. POLICE POWERS (Criminal Investigation)
(i) Theme throughout: balancing liberty with public security.
(ii) Police are independent of the Crown prosecutor in Canada.
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(iii) This independence is important to permit the prosecutor to act as a quasi-judicial
officer, and not get too close to the mind-set of an investigator.
(iv) Police will often seek advice from the Crown prosecutors, including the wording of
search warrants.
(v) In the interest of securing liberty, police powers are constrainedn by law.
(vi) Also limited by the Charter - s8 (unreasonable search and seizure) and s9 (arbitrary
detention).
(vii) Courts have taken a balancing of police powers to ensure respect for liberty w/o
undermining the effectiveness of police investigations and law enforcement.
B. GENERAL POLICE POWERS (coughlan pp 11-23)
(i) Police have broad powers under statute (mainly CC), and powers at common law
1. Statutory powers
(a) Primarily from the CC.
(b) include powers allowing police to arrest; compel an accused’s appearance in
court via a summons or appearance notice.
(c) they have broad powers to make arrests, except where the police officer does
not find the accused committing the offence and the offence is only a
summary conviction.
(d) they have extensive powers for searches and issuing warrants.
(e) Statutes other than the CC also create investigative techniques ie. Random
stops.
(f) s25.1 allows police, under various circumstances, to break the law in the
course of an investigation.
2. Common Law powers –
(a) 3 different senses in which police have common law powers:
 Historical c/l powers:
 Search incident to arrest for the purposes of ensuring safety; protection
of evidence from destruction, and discovery of evidence (Cloutier v
Langlois)
a. “police have a power to search a lawfully arrested person and to
seize anything in his or her possession or immediate surroundings
to guarantee the safety of the police and the accused, prevent the
prisoner’s escape or provide evidence against him”.
 The law was later rewritten to widen searches in R v Caslake
a. Ensuring the safety of the police and public, the protection of
evidence from destruction at the hands of the arrestee or others, and
the discovery of evidence which can be used at the arrestee’s trial.
b. This was a change to the underlying purposes of gathering evidence
in Cloutier.
 R v Golden stated that the power to conduct strip searches in the scope
of search incident to arrest had not been fully delineated in prior cases.
a. The court decided that further restrictions need to be imposed.
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b. Reasonable and probably grounds are generally not requirement of
search incident to arrest – however this is now a requirement for
police to conduct more than a “frisk”.

To enter into a private dwelling:
a. warrantless entry are prima facie unreasonable.
b. An exception was allowed when in a hot pursuit (R v Feeney).





New Common Law powers can be created – the
“ancillary powers” doctrine
Common law powers are never closed and it is always possible few
new police powers to be created.
R v Waterfield – UK Case – developed a test for when a detention is
lawful due to a common law power.
a. “first, does the conduct fall w/in the general scope of any duty
imposed by statute or recognized at common law; and 2nd, does the
conduct, albeit w/in the general scope of such a duty, involve an
unjustifiable use of powers associated w/ the duty.
The SCC has relied on this doctrine to support police power in a
number of areas. There are problems with relying on this test, though,
as it was not intended to allow the creation of new CL powers.
It is unlikely that the first branch of the Waterfield test will fail b/c
police duties can be interpreted broadly.
 Default common law powers:
 Police have the power to do anything that will not result in some
remedy being granted to an accused.
 Prior to the charter, there was no basis to exclude evidence, so long as
it was reliable.
 s24(2) depends on the accused establishing a breach of a charter right.
 Where no charter violation is found, the pre-Charter position on
evidence still applies.
 This means that the court is effectively giving the police power to do
whatever they like, so long as it does not violate a Charter right.
3. Consent
(a) Cooperation by a suspect is another source of police power.
(b) Consent can be revoked (R v Thomas)
C. POWERS OF SEARCH AND SEIZURE (coughlan 59-125)
(i)
Other than in powers of arrest, the ability of police offers to interfere with the liberty
of individuals is most evident in powers of search and seizure.
(ii) The rules reflecting competing concerns b/t the individual to be free of intrusions of
the state vs. that of the state to intrude on the privacy of the individual for the purpose
of law enforcement.
(iii) Hunter v Southam, it was stated that priority was to be given to the individual
interest.
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(iv)
(v)
(vi)
However, the state’s recent statutory ability to intrude on the individual has become
much greater.
The superior courts have become less firm on the rule set out in Hunter.
The Hunter case laid out basic principles that must be followed for search and
seizures:
1. The minimum constitutional req’s for a search w/ a warrant; and
2. The minimum req’s for searches w/o a warrant.
D. WHAT IS A SEARCH?
(i)
Court has adopted a purposive approach to define “search” based on the goal of s8
Charter.
(ii) The intent is to protect individuals from unjustified state intrusions upon their
privacy.
(iii) A state investigative technique is or is not a search depending on whether it infringes
on a person’s reasonable expectation of privacy.
(iv) A search or seizure only occurs where the accused’s reasonable expectation of
privacy was infringed.
(v) Thus if police take a sample of blood at a crime scene that is not a seizure, but if
they obtain medical records from your practitioner w/o your permission, that is a
seizure.
E. SEARCHES WITH A WARRANT
(i)
Searches, historically only authorized police to search a place, not a person.
(ii) Searches of a person were only allowed subsequent to some common law authority.
(iii) Recent CC has expanded the circumstances in which searching a person may take
place.
F. SEARCHING PLACES: SECTION 487
(i)
General search warrant provision is found in s487.
(ii) Must be issued by a justice; justice must be satisfied on reasonable grounds that
evidence will be found which must fall into 4 categories:
1.
anything on or in respect of which an offence has been committed;
2.
anything that will provide evidence regarding an offence or the location of a
person suspected of committing an offence;
3.
anything reasonably believed to be intended to be used to commit an offence
for which the person could be arrested w/o warrant or
4.
offence related property.
(iii) the search must be related to a “building, receptacle or place”; there must be
someone responsible for carrying out the search;
(iv) B/c it is issued by a justice, it means that it satisfies one of the minimum req’s in
Hunter
(v) When police approach a residence and knock on the door for the purpose of
searching, that will be considered a warrantless search. But if they knock on for a
different reason and then discover evidence giving them reasonable grounds to
search, there will be no charter violation.
(vi) Note that there are some limits to this search warrant power (see p 69 textbook)
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1.
Limited to searching for physical objects, therefore do not allow for the seizure
of a bank account.
2. Need for specificity in advance – can’t just say they believe evidence will be
found.
3. Must specify with reasonable precision what evidence might be found.
(vii) A related provision found in s489 allows police who are searching under a warrant
to seize items not mentioned in the warrant if they believe on reasonable grounds
that they were obtained by, or were used in, or afford evidence concerning an
offence.
G. SEARCHING PEOPLE (DNA WARRANTS):
(i)
Recent changes to the CC have allowed for warrants for taking blood, saliva etc.
(ii) Only available for “designated offences” listed in s 487.04 (see p 945 of Code) .
(iii) See s487.05 for the requirements to get the warrant – similar to search warrants
(iv) Basic requirements:
1.
a provincial court judge (i.e. cannot be a JP) must be satisfied by information
on oath that a bodily substance connected with an offence has been found.
2.
that a person was a party to the offence, and the DNA analysis of the substance
will provide evidence about whether the bodily substance was from that
person.
3.
judge is req’d to believe that the issuing of the warrant will be in the bests
interests of the administration of justice; etc (see p 72).
(v) Different rules apply when the DNA warrant concerns young people (see p 73).
H. OTHER STATUTORY SEARCH WARRANT PROVISIONS
(i)
There are other provisions for specific warrants that follow the basic characteristics
of s487.
(ii) Ie. s256 provide for warrants to obtain a blood sample from a person suspected of
driving impaired.
(iii) Other examples are warrants to attach tracking devices, phone taps etc.
I. REVIEWING A WARRANTS
(i)
The Code contains no provisions to appeal from the decision to issue a warrant.
(ii) But it is possible to challenge the issuance of a warrant by way of Certiorari (used
to review the process by which the warrant is used).
(iii) Although this has been called an “idle exercise” since it does not result in either the
return of the items seized or their exclusion as evidence.
(iv) The central issue in reviewing a warrant is whether the requirements for its issuance
under the Code have been met.
(v) The question for the reviewing judge is whether there is evidence upon which the
issuing judge could have decided to issue the warrant (R v Garofoli).
(vi) The actual result of the search is not relevant on review.
J. SEARCHES WITHOUT A WARRANT
(i)
Every warrantless search is prima facie unreasonable under s8 of the Charter (i.e.
guarantee against unreasonable search and seizure) (Hunter v Southam).
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(ii)
(iii)
As a result, every warrantless search must be made consistent with minimum
Charter standards.
R v Collins set out the framework for what those minimum standards were:
1.
Reasonable Expectation of Privacy:
(a) Threshold issue:
 First, to be a breach of s 8 of the Charter, the individual searched must be
determined to have a reasonable expectation of privacy over their
person, territory and information.
 if there is no reasonable expectation of privacy, there is no search/seizure
at all, and therefore no breach of s8.
 Reasonable expectation means an entitlement to privacy that a person
expects to enjoy in a free and democratic society.
 The task in assessing a warrantless search is to balance the privacy interest
of the accused against the investigative interests of the state; Ie. where an
accused has no reasonable expectation of privacy, any state investigative
interest will outweigh the accused’s interests.
 Deciding on the factors to be taken into account when determining
whether a person has a reasonable expectation of privacy at all.
 These were first articulated in Edwards – where they tried to show that
there was no reasonable expectation at all and therefore the accused could
not rely on s8 Charter.
 The police searched an apartment rented by the accused’s girlfriend w/o
a warrant.They did not believe that they had reasonable grounds for a
warrant.
 Normally this would cause a breach of s8 Charter.
 Factors:

Presence at the time of the search.

Possession or control of the property or place searched.

Ownership of the property or place.

Historical use of the property or item.

The ability to regulate access, including the right to admit or exclude
others.

Existence of a subjective expectation of privacy.

Objective reasonableness of the expectation.
 Based on this test, he was found not to have a right under s8 Charter
 There are 3 separate types of interests that ought to be distinguished:
(Tessling)

Personal privacy – attracts the highest protection.

Territorial privacy – level of protection is contingent on the place
being searched. Ie. home is high, car is a lesser level and a prison is
even lesser.

Informational privacy.
RECAP
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(a) Look at “entitlement” to privacy – not whether X had, in that case, privacy – i..e the
standards of privacy that a person can EXPECT to enjoy in a free and democratic society
(Wong)
(b) Look at factors in Edwards (looking at “totality of circumstances”) (p 87)
(c) Note the three kinds of interests that privacy protects (e.g. personal privacy, territorial
privacy, and informational privacy) (Tessling). Note: informational privacy = more
difficult to prove.
(d) How significant of a right to privacy is this on a sliding scale?



Once it has been determined that an individual has a reasonable expectation of privacy,
then it follows that the search was a prima facie violation of the accused’s s8 right.
The issue then becomes whether the search itself is reasonable, or was it an intrusion,
in light of that expectation of privacy).
Here, the nature of the accused’s reasonable expectation of privacy is also a background
factor in determining how reasonable the search is (the higher the level of privacy expected,
the more difficult it will be to determine that the search was reasonable, e.g. a person has
greater privacy when the search involves a bodily cavity as opposed to the trunk of their
car; or in the situation of a search incident to arrest – heavy state interests).
2.
Are the Collins Criteria Met?
(a) Once it has been determined that an individual has a reasonable
expectation of privacy, the issue becomes whether the search itself
reasonable.
(b) A three-part test was developed in Collins:
 Is the warrantless search authorized by law? (derived from 3 sources
of authority).
 Statute? (e.g. warrantless searches are authorized by s 487.11)
must be some facts out of the ordinary because warrantless
searches are prima facie unreasonable.
 Common Law (i.e. search incident to arrest; search during
investigative detention; exigent circumstances. Here, if you are
saying that there is a search incident to arrest, you would have
to go through the elements identified in the book i.e., you would
have to establish that:
o
the arrest was lawful;
o
the search was truly incidental to that arrest, and
o
that the search was conducted in a reasonable manner.
“Exigent circumstances” means “an imminent danger of
the loss, removal, destruction or disappearance of the
evidence if the search or seizure is delayed.
 Consent? – Dedman – “b/c of the intimidating nature of police
action and uncertainty as to the extent of police powers,
compliance in such circumstances cannot be regarded as
voluntary in any meaningful sense.”
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(c)
In another case – “acquiescence and compliance signal only a
failure to object, they do not constitute consent.”
Is the law itself reasonable?
 This question is usually subsumed by the one above – is the
warrantless search authorized by law.
 The reason is b/c the courts tend to read down the law to make it
comply with the constitutional minimum.
 Also, the common law is to be developed in a way that is consistent
with the Charter.
 Was the manner in which the search was carried out reasonable?
NOTE: There are variations on the Hunter v Southam standard. Searches under an
administrative scheme and searches of press offices have different rules (see p 111)
NOTE Other investigative powers, ie., general warrants (s 487.01) (which have broader warrant
power than s487)
 These are intended to provide warrants to perform investigative techniques not provided
for in the CC
 Creates warrants to “use any device or investigative technique or procedure or do any
thing described in the warrant that would, if not authorized, constitute an unreasonable
search and seizure”
 In other words, Parliament took a decision that relied on the assumption that there need to
be limits to police investigative techniques and used it to justify a provision creating an
unlimited range of potential police investigative techniques
 It is hard to reconcile this approach with the conclusion in Hunger v Southam
 It is a more broad provision b/c it allows police to use any device, technique, procedure
or to do any thing
 It is also more broad b/c it is not just based on reasonable grounds to believe an offence
has been committed, but on the basis that an offence “will be committed”
 there are some provisions intended to make this section more restrictive than 487
o warrant can only come from a judge or justice, not from a justice of the peace
o the judge can attach conditions to ensure the warrant is reasonable in the
circumstances
o judge m/b satisfied that “it is in the best interest of the admin of justice to issue
the warrant”
K. POWERS OF DETENTION AT THE INVESTIGATIVE STAGE (coughlan 126-142)
(i) Definition of Detention
1. it can have more than one meaning
2. s10(b) gives rights to people who are “detained”, e.g. right to counsel.
(ii) Different types of detentions as per R v Thomsen:
1. The general gist is this: “detention” can include not only those situations where the
police have an actual legal power to compel a person to remain, but also some
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situations of “psychological detention” in which no such power exists, yet the
person complies w/ the police demand nonetheless.
(iii)
Determining if someone has been detailed
1. One troubling context is police questioning – when does this qualify as a detention
and therefore give the detainee s 10(b) rights?
2. Not every conversation with a police officer should automatically be considered a
detention.
3. Therefore, they shouldn’t automatically advise them of their right to counsel.
4. But the court has recognized the concept of psychological detention b/c most people
do not know whether they are in fact compelled to comply w/ police requests or
not.
(iv) Common Law Powers of Detention
1. Common law detentions are more controversial than one’s from statute.
2. The Waterfield test to create new common law police powers Dedman,
3. the police created the R.I.D.E program of randomly stopping drivers w/ the goal of
detecting impaired drivers.
4. There was no statutory authority to create the stops.
5. The majority decided that they were allowed to make the stops based on the
Waterfield test.
6. The Waterfield test involves asking two questions:
(a) such conduct falls w/in the general scope of any duty imposed by statute or
recognized at common law and
(b) whether such conduct, albeit w/in the general scope of such a duty, involved
an unjustifiable use of powers associated w/ the duty
7. The majority held that the goals of the R.I.D.E. program were well w/in the scope
of police duties.
(v)
The “investigative detention” created in Mann
1. This power is more controversial, more likely to be used, more susceptible to
misuse than R.I.D.E.
2. Police can sometimes detain individuals for investigative detention
3. The decision amounts to confirming that such a power does exist
4. But, it is a fresh start as the court states that it is not creating a general power of
detention:
(a) It is clear that police cannot detain a person b/c they are suspicious in some
general way.
(b) They m/b suspicious of a particular person b/c of some suspected
connection to a particular crime already known to them.
(c)
There is also a prohibition on using the power for anticipated offences, it
must be a recent or ongoing offence.
(d) An officer must believe on “reasonable grounds” that a particular individual
is implicated in the criminal activity under investigation.
5. Police Roadblocks
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(a)
(b)
Subsequent to Mann, the court relied on Waterfield to create another police
power of detention.
This was done in the case of Clayton
6. Clayton
(a) Police rec’d a report of men w/ guns in a parking lot
(b) In response, the police set up a road block.
(c) They stopped all vehicles leaving the parking lot, whether they matched the
description or not.
(d) Clayton and Farmer were found to have hand guns.
(e) There was a question if there was a s9 Charter – the right not to be arbitrarily
detained or imprisoned.
(f) Majority held that there would be no violation if the police acted lawfully.
(g) The question now turned to whether they did have the power to act as they
did.
(h) Here we see a major expansion of the Waterfield test:
 The first part of the test is rarely in issue.
 It is the 2nd part – that the actions they took were not an unjustifiable use
of powers associated w/ those duties.
 They stated that “the detention of a particular individual is ‘reasonably
necessary’”
(i) but to say that the police can detain an individual whenever that is reasonably
necessary is to make that ability available to police far more frequently.
(j) in Mann, the court noted the fundamental principle that “the police... may
act only to the extent that they are empowered to do so by law”.
(k) In Clayton however, it seems to amount to saying that the police have the
power to do anything that is reasonable.
(l) The norm is for the police to act, except for cases where that can be shown
to be unreasonable!
(m) If this cases is truly meant to signal a new approach, then police powers will
have dramatically expanded.
L. POWER TO “BREAK THE LAW” (coughlan 143-146)
(i) ss25.1-25.4 CC permit police officers to break the law in certain circumstances
they protect designated officers from criminal prosecution in particular situations
but these provisions amount to a new police power an officer is justified in an offence
if two conditions are met:
1) the officer is investigating an offence or criminal activity
a. 2) the officer “believes on reasonable grounds that the commission of the act or
omission, as compared to the nature of the offence or criminal activity being
investigated, is reasonable and proportional in the circumstances, having regard to
such matters as the nature of the act or omission, the nature of the investigation
and the reasonable availability of other means for carrying out the public officer’s
law enforcement duties.
(In other words, they are permitted to break the law if, in their judgment, that is a
reasonable choice)
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b.
(ii) Designations are not made in relation to a particular investigation, but rather to a
particular officer.
(iii) The designation is to be made on the advice of a senior official. This power is made
for undercover officers for example (although the code does not say this explicitly)
(iv) s25.1(11) – limits on breaking the law.
(v) Nothing in this section justifies:
1. The intentional or criminally negligent causing of death or bodily harm to
another person;
2. The wilful attempt in any manner to obstruct, pervert or defeat the course of
justice; or
3. Conduct that would violate the sexual integrity of an individual.
(vi) There are additional restrictions set out in s25.1(9) on actions that would likely result
in the loss of or serious damage to property.
R v. GRANT 2009
FACTS:
 3 police officers were patrolling a school area where robberies are common.
 Two were dressed in plain clothes and had an unmarked vehicle and 1 in a marked vehicle
 As the two officers drove by a black male gave them a bad stare and fidgeted w/ his jacket
 They notified the officer in the marked vehicle that he should speak to him.
 When the officer asked his name, the accused began acting nervously.
 The two other officers approached and took out their badges and identified themselves.
 They asked the accused if he had anything which he should have on him.
 He replied that he had a small bag of weed and a gun.
 The officers arrested and searched the accused seizing the marijuana and the loaded gun.
 They advised him of his right to counsel and took him to the police station.
 At the trial the accused alleged violations of his rights under s. 8,9, 10(b) Charter.
ISSUE: Whether the police breached the accused’s right against arbitrary detention & right to
counsel.
REASONING:
 Detention under s9 & 10 Charter refer to a suspension of an individual’s liberty interest by
significant physical or psychological restraint.
 Psychological detention occurs either when the individual has a legal obligation to comply w/
a restrictive request or demand, or a reasonable person would conclude by reason of the state
of conduct that he or she had no choice but to comply.
 In cases where there is no physical restraint it may not be clear whether a person has been
detained.
 To consider whether a reasonable person in the individual’s circumstance would believe they
were being detained, the court must consider the following:
o the circumstances giving rise to the encounter as they would reasonably perceived by
the individual.
o the nature of the police conduct, and
o The particular characteristics or circumstances of the individual where relevant
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It is for the TJ, applying the proper legal principles to the particular facts of the case, to
determine whether the line has been crossed b/t police conduct that respects liberty and the
individual’s right to choose.
When the first officer approached and asked some questions that was insufficient to indicate
detention.
However, when the other two officers arrived, flashed their badges, assumed tactical
adversarial positions supports the conclusion that the officers were putting the accused under
their control and depriving him of his choice as to how to respond.
At this point the accused’s liberty was clearly constrained and he was in need of the Charter
protection associated w/ detention.
The officers acknowledged at trial that they did not have legal grounds or a reasonable
suspicion to detain the accused prior to his incriminating statements.
Therefore, the detention was arbitrary.
The police also failed to advise the accused of his right to speak to a lawyer before the
questioning.
R v. SUBERU [2009] (Investigative detentions)
FACTS:
 R, a police officer got a repot about a person attempting to use a stolen credit card.
 S walked passed R are and said, “he did this, not me so I guess I can go”.
 R followed S and asked him to “Wait a minute, I need to talk to you before you go
anywhere”.
 They had a brief exchange, then R got a description on his radio of the van S was driving w/
a matching licence plate.
 R saw shopping bags b/t and behind the front seats.
 At that point R decided he had reasonable and probably grounds to arrest S for fraud.
 He advised S of the reason for his arrest and cautioned him as to his right to counsel
ISSUE:
 S brought an application under s24(2) Charter to exclude any statements and physical
evidence seized at the time of the arrest on the grounds that they were obtained in a manner
that infringed.
 S argued that he was detailed as soon as R said “Wait”, he argued R failed to advise him of
his s10(b) right to counsel at that point which constituted a breach of the Charter.
 TJ dismissed the application, later upheld by the CA.
 Appealed to the SCC
HELD: Appealed dismissed
REASONING:
 From the moment someone is detained they must be advised of their rights under s10 w/o
delay.
 Not every interaction w/ police constitute a detention for the purposes of the Charter.
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Even when a person under investigation is asked questions, or is physically delayed by
contact w/ police.
s9 Charter does not forbid police to interact w/ the public unless they have reasonable
grounds.
likewise, not every encounter w/ police will trigger an individual’s right to counsel under
s10(b)
According to the purposive approach adopted in R v Grant 2009, detention under ss9 & 10
charter refers to suspension of the individual’s liberty interest by a significant physical or
psychological restraint.
The onus is on the applicant to show that they have been deprived of their liberty of choice.
The test is an objective one and the failure of the applicant to testify is not fatal.
In the present case, while S was momentarily delayed when police asked to speak to him, he
was not subjected to physical psychological restraint so as to ground detention in the
meaning of the Charter.
Only after the officer rec’d additional information did his detention crystallize and his rights
engaged.
R v. AUCOIN (2012)
FACTS:
 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 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.
 Moldaver J.: The cocaine found on the appellant was properly admitted into evidence under s.
24(2).
 The question is whether there were other reasonable means by which the officer could have
addressed his concern about A disappearing into the crowd.
o 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..
o Therefore, the pat-down search was unreasonable within the meaning of s. 8 and
constituted a breach of the appellant’s Charter .
o Officer attempted throughout to respect A’s rights. He was not searching for
evidence. The search was for reasons of officer safety and A’s safety. In other words,
his request was not a ruse to search for incriminating evidence.
o As for the impact of the search on the appellant’s privacy rights, it was significant —
but no more so than society’s interest in having this case tried on the merits
 Where the police act in good faith and without deliberate disregard for or ignorance of
Charter rights, as was the case here, the seriousness of the breach may be attenuated.
ANALYSIS
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This is not a case about investigative detention (Mann), having lawfully stopped him for a
regulatory infraction.
The existence of a general common law power to detain where it is reasonably necessary
in the totality of the circumstances was settled in R. v. Clayton, 2007 SCC
o As Abella J. observed: The determination will focus on the nature of the situation,
including the seriousness of the offence, as well as on the information known to the
police about the suspect or the crime, and the extent to which the detention was
reasonably responsive or tailored to these circumstances, including its geographic
and temporal scope. This means balancing the seriousness of the risk to public or
individual safety with the liberty interests of members of the public to determine
whether, given the extent of the risk, the nature of the stop is no more intrusive of
liberty interests than is reasonably necessary to address the risk.
If there were other reasonable means to ensure the appellant would not flee the scene, then
detaining him in the police cruiser could not be said to be reasonably necessary and would
thus have constituted an unlawful detention within the meaning of s. 9 of the Charter : .
Section 24(2)
o The law surrounding police powers in the detention context is still evolving. For
that reason, in cases where the police act in good faith and without deliberate
disregard for or ignorance of Charter rights — as was the case here — the
seriousness of a breach may be attenuated.
Three factors identified in R. v. Grant, [2009] S.C.R.:
o First, state conduct was serious
o Second, the impact of the breach on Charter protected interests was significant
o Third, without the evidence, the Crown would have no means of prosecuting the
case.
R v. SPENCER (2014)
FACTS:
 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 s. 7(3) (c.1)(ii) of the Personal Information
Protection and Electronic Documents Act (PIPEDA ). 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 a charge of making it available.
 Cromwell J.: Request for an IP address infringed the Charter's guarantee against
unreasonable search and seizure. The order for a new trial is affirmed
 Police request to Shaw for subscriber information corresponding to specifically observed,
anonymous Internet activity engages a high level of informational privacy.
 Such a request engages the anonymity aspect of the informational privacy interest by
attempting to link the suspect with online activities, activities which have been recognized
in other circumstances as engaging significant privacy interests.
 Contractual provisions support the existence of a reasonable expectation of privacy.
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In the totality of the circumstances of this case, there is a reasonable expectation of privacy
in the subscriber information. Therefore, the request by the police that the ISP voluntarily
disclose such information amounts to a search.
Conduct of the search violated the Charter. Without the subscriber information obtained
by the police, the warrant could not have been obtained – if that information is excluded
from consideration as it must be because it was unconstitutionally obtained, there were not
adequate grounds to sustain the issuance of the warrant and the search of the residence was
therefore unlawful and violated the Charter
The police, however, were acting by what they reasonably thought were lawful means to
pursue an important law enforcement purpose. Balancing the three Cole factors, the
exclusion of the evidence rather than its admission would bring the administration of justice
into disrepute. The admission of the evidence is therefore upheld.
In a prosecution under s. 163.1(3) of the Cr. C must be proved to have had knowledge that
the pornographic material was being made available to others. Does not require that the
accused must knowingly, by some positive act, facilitate the availability of the material.
ANALYSIS
 Whether there is a reasonable expectation of privacy in the totality of the circumstances is
assessed by considering: the subject matter of the search, the nature of the privacy interest
at stake and the statutory and contractual framework governing the ISP’s disclosure of
subscriber information.
 Informational privacy equated with secrecy or confidentiality, and includes the related but
wider notion of control over, access to and use of information
 The identity of a person linked to their use of the Internet must be recognized as giving rise
to a privacy interest of anonymity beyond that inherent in the person’s name, address and
telephone number found in the subscriber information.
 Subscriber information implicate privacy interests relating to an individual’s identity as the
source, possessor or user of that information.
R v. MACDONALD (2014)
FACTS:
 When M opened the door to his house, an officer observed that M had an object in his hand,
hidden behind his leg. Sgt. Boyd twice asked Mr. MacDonald what he had in his hand but
received no answer. 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.
 LeBel J.:
o Speaking or shouting through the door or knocking on it falls within the implied
waiver of privacy rights; pushing open a door further does not = constituted an
intrusion upon Mr. MacDonald’s reasonable privacy interest in his dwelling.
o Applying the Collins test, I find that the search carried out by Sgt. Boyd was
reasonable
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o Power was engaged because Sgt. Boyd had reasonable grounds to believe that there
was an imminent threat to the safety of the public or the police and that the search
was necessary in order to eliminate that threat.
o The manner in which he carried out the search was also reasonable in order to
determine what was behind Mr. MacDonald’s leg and in so doing eliminate any
threat to the safety of the public or the police = no less intrusive way to do so
ANALYSIS:
 Did officer’s Action Constitute a Search?
o R. v. Evans, [1996] S.C.R., per Sopinka J. outlines what constitutes a “search”:
it is only where a person’s reasonable expectations of privacy are somehow
diminished by an investigatory technique that s. 8 of the Charter comes into
play. A search entails the state invasion of a reasonable expectation of privacy”
(R. v. A.M., [2008] S.C.R., at para. 8)
o Only where state examinations constitute an intrusion upon some reasonable
privacy interest of individuals does the government action in question
constitute a “search” within the meaning of s. 8 . [para. 11.]
o Police have an implied licence to approach the door of a residence and knock – not
a search
o Where the conduct of the police goes beyond that which is permitted by the implied
licence to knock, the implied ‘conditions’ of that licence have effectively been
breached, and the person carrying out the unauthorized activity approaches the
dwelling as an intruder and this action constitutes a search (para. 15).
o Having found that the police action constituted a search, now consider whether that
search was unreasonable, and therefore in violation of s. 8 of the Charter .
o At this stage, if the search was warrantless, the Crown has the burden of showing
that it was reasonable (R. v. Collins, [1987] S.C.R. at p. 278).

Was the Search Unreasonable? – objective test based on circumstances
o The Crown bears the burden of demonstrating, on the balance of probabilities, that
the warrantless search was authorized by a reasonable law and carried out in a
reasonable manner – R. v. Buhay, [2003] S.C.R., at para. 32
o For first prong of the Collins test, a search will be authorized by law if it is
authorized by a valid police power = where a search is reasonably necessary to
eliminate an imminent threat to the safety of the public or the police, the police
have the power to conduct the search.
o In Godoy, Lamer C.J. affirmed that the police have a common law duty to protect
life and safety, which is constrained by a requirement of objectively verifiable
necessity.

A search that is reasonably necessary to eliminate threats to the safety of the public
or the police — “safety search” — will generally be warrantless and conducted by the
police as a unplanned reactionary measure in response to dangerous situations created by
individuals,
o A search cannot be justified on the basis of a vague concern for safety. Rather, for
a safety search to be lawful, the officer must act on “reasonable and specific
inferences drawn from the known facts of the situation” (Mann, at para. 41).
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If officer’s search was authorized by law, the Crown relies on the Waterfield test:
o First stage: the court must ask whether the action falls within the general scope of
a police duty imposed by statute or recognized at common law. For safety searches,
this is easily satisfied.
o Second stage, if the answer at the first is affirmative, court must inquire whether
the action constitutes a justifiable exercise of powers associated with the duty.
 For the infringement to be justified, the police action must be reasonably
necessary for the carrying out of the particular duty in light of all the
circumstances (Mann, at para. 39).
To determine whether a safety search is reasonably necessary, and therefore
justifiable, consider factors to balance the police duty against the liberty interest in
question:
o The importance of the performance of the duty to the public good (Mann, at para.
39)
o The necessity of the interference with individual liberty for the performance of the
duty (Dedman, at p. 35); and
o The extent of the interference with individual liberty (Dedman, at p. 35).
If these three factors, weighed together, lead to the conclusion that the police action was
reasonably necessary, then the action in question will not constitute an “unjustifiable use”
of police powers (Dedman, at p. 36).
If the requirements of both stages of the Waterfield test are satisfied, the court will then be
able to conclude that the search in question was authorized by law.
Charge under Section 95 of the Code.
o Crown not required to prove, in order to secure a conviction under s. 95 , that the
accused knew his possession and acquisition licence and authorization to transport
the firearm did not extend to the place where he unlawfully had it in his possession.
o This amounts to requiring the Crown to prove that the accused knew the law – such
a requirement is that ignorance of the law is no excuse.
o The offence provided for in s. 95 is a mens rea offence. As this Court recognized
in Lévis (City) v. Tétreault, at para. 16, classifying an offence as either a mens rea
offence, a strict liability offence or an absolute liability offence is a question of
statutory interpretation.
o Knowledge that one possesses a loaded restricted firearm, together with an
intention to possess the loaded firearm in that place, is enough. An individual who
knowingly possesses a loaded restricted firearm in a particular place with an
intention to do so will be liable to punishment for the offence provided for in s.
95(1) unless he or she holds an authorization or a licence under which the firearm
may be possessed in that place.
o Thus, a proper authorization or license serves to negate the actus reus of the
offence, thereby allowing someone who legitimately possesses a restricted firearm
in a given place to avoid liability.
R v. MARAKAH (2017) (Case Brief)
On December 8, 2017, the Supreme Court of Canada (SCC) found that text messages that have
been sent and received can, in some cases, attract a reasonable expectation of privacy according
152
to s. 8 of the Charter of Rights and Freedoms and therefore can be protected against unreasonable
search or seizure.
Mr. Marakah (M), appellant, was convicted of several offences including trafficking
firearms. Before trial, he challenged the search and seizure of his accomplice’s (W’s) cell phone
to which he had sent multiple text messages. The application judge concluded that M had no
standing to challenge the search of W’s phone because he had no reasonable expectation of privacy
in respect of those text messages.While the judge accepted that the sender of a text message has a
reasonable expectation of privacy in the message’s content after it has been sent, the judge found
that the reasonable expectation of privacy ends once the text message reaches its intended
destination and is no longer under the sender’s control. The Court of Appeal dismissed the appeal.
However, the SCC allowed the appeal, set aside the convictions and entered acquittals, on the basis
that M had a reasonable expectation of privacy in the text messages recovered from W’s phone.
Notably, the SCC stated that despite the reliable and probative evidence provided in the text
messages, “the police conduct in accessing and searching the electronic conversation through W’s
iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion
of the evidence.”
XII.
SECURING JURISDICTION OVER THE ACCUSED AND INTERIM RELEASE
(Taking Control Over the Accused)
A. GAINING JURISDICTION OVER THE ACCUSED (coughlan 50-53)
(i) Jurisdiction over the accused.
1. No court can adjudicate unless they have jurisdiction over the accused
2. The accused will be w/in the jurisdiction if he is w/in the territorial limits of the
court or has otherwise been lawfully ordered to appear before the court
3. Generally, jurisdiction over an accused is not lost over a non-appearance.
4. There are methods to regain jurisdiction if it is lost.
(ii)
Jurisdiction in Time
1. Indictable offences are not barred by a period of limitation or prescription.
2. Summary offences are barred 6 months after the completion of the offence.
3. There is a principle that criminal offences do not have retrospective application.
4. Confirmed in s11(g) Charter .
5. In R v Finta, Supreme court said that there is a partial exception for war crimes
committed in Europe during WWII.
6. This principle applies to substantive criminal law.
7. However, procedural rules have immediate effect and will therefore apply
retrospectively.
8. Determining if a rule is substantive or procedural is not always clear.
9. In general, a law is classified as procedural if it is exclusively so.
B. THE ARREST (coughlan 168-195)
(i)
The police have specified powers to arrest individuals.
(ii) So do non-police officers.
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(iii)
(iv)
(v)
(vi)
The common theme of the relevant legal provisions is that arrest – taking physical
control over the subject – is to be used as a last resort when other measures available
for ensuring good conduct and attendance before the criminal justice process are not
practical or desirable.
The least intrusive modes of securing attendance include the appearance notice, the
promise to appear and the summons.
Where the individual is arrested, he must either be released or given a bail hearing
In the hearing, it will be decided whether the person s/b released absolutely, subject
to conditions or held in custody pending the trial.
These will be discussed below, and it will be identified who can issue these, and
under what authority.
(vii) Introduction
1. Arrest is only one method to compel appearance of an accused before a court.
2. The 2 other methods are: summons and appearance notice (less intrusive.
3. Similar to powers of search and seizure, Part XVI of the Code is aimed at
balancing legitimate state interests in prosecuting crime against individual
freedom.
4. Judicial confirmation must occur before or after the arrest.
5. A police officer, in principle, cannot unilaterally compel the appearance of an
accused in court.
6. That decision must, at some point, be confirmed by a judicial officer, typically
Justice of the Peace.
7. Confirmation can occur either before or after arrest.
8. Must give notice to arresting person of reasons for arrest: s 10(a) Charter; s
29 CC.
9. The least intrusive way is where a police officer can show a justice that there
are reasonable grounds to believe that a person has committed an offence, and
consequently obtains a summons requiring the accused to appear in court on a
specific date: s507(1)(b) CC.
10. Alternatively, the officer can first encounter a person on the street committing
an offence and then require that person to appear by means of an appearance
notice, which must be confirmed by a justice: ss 501, 505 and 508(1)(b).
11. The most intrusive method is by taking physical control of the person (by way
of arrest), either after judicial authorization or before (this is the focus here)
(viii) What is an arrest?
1. An arrest consists of words of arrest accompanied either by touching of the
person with a view to detain, or by the person submitting to the arrest (R v
Whitfield).
2. Break down the situations into arrest with warrant and without warrant.
(ix)
Arrest with a warrant
1. A warrant can be issued only after an information is laid:
2. see s504 for indictable offences and s795 for summary offences.
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3.
4.
5.
6.
(x)
Then, a justice, who signs off on the information, can either issue a summons
or warrant requiring the accused to attend before a justice to answer the charge.
A summons MUST be issued instead of a warrant, unless to do so would not be
in the interests of the public: s507(4).
Must give notice to arresting person of reasons for arrest: s 10(a) Charter.
There are some other, less important rules for effecting the warrant.
Arrest without warrant
1. Governed by s494 and 495 CC
2.
s494 [Applies to any one and is sometimes regarded as the citizen’s arrest
power]:
(a)
Anyone may arrest someone they find committing an indictable offence.
(b)
Anyone may arrest someone they find fleeing from authorities, if they
reasonably believe an indictable offence was committed.
(c)
s494(2) applies to property owners’ arrest power and is slightly broader
than 494(1).
(d)
“finds committing” req’s that the person arresting actually witnessed the
offence being committed.
(e)
The term is read as “apparently” finds committing – b/c if they are later
found innocent, it does not invalidate the arrest – R v Biron.
(f)
The reasonable grounds to believe the accused committed an offence
must be objectively justifiable.
(g)
This is the same standard req’d for obtaining an arrest warrant.
3.
s 495 [Applies to police officers]
(a)
Peace officer may arrest anyone who has committed an indictable
offence or who, on reasonable grounds, he believes has committed, or
is about to commit, an indictable offence.
(b)
Peace officer may arrest anyone he finds committing a criminal offence.
(c)
Peace may arrest a person if he reasonably believes that a warrant exists
for the person’s arrest.
(d)
This s adopts a principle of restraint; essentially says that for minor
offences, officers are directed not to arrest simply because an arrest
power exists, rather to consider other factors as well. The officer may
arrest only to:
 establish identity of accused;
 secure or preserve evidence of or relating to the offence;
 prevent the continuation or repetition of an offence. Alternatively,
officer may arrest if it’s evident the accused won’t appear in court.
(e)
Shows that the principle of restraint adopted in (2) is only a guideline
 if one ignored s495(2), the arrest would still be held to be legal.
 one can argue that this is arbitrary detention according to s9 Charter.
 this section has not been developed yet and for now arbitrariness
equates to randomness.
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 therefore, a challenged of s9 Charter based on failure to comply with
s495(2) is unlikely to succeed.
(xi) Other Criminal Code Arrest Powers:
1. ex. An accused who evades service of a summons, does not appear for
fingerprinting, or violates conditions bail, may have an arrest warrant issued.
2. if an accused fails to appear for trial, it may result in the issuance of a bench
warrant.
C. SUPPORTING POWERS
(i)
Use of force permitted in certain circumstances s25(1) use of force likely to cause
death or GBH permitted in certain circumstances.
(ii) s25(4) special rules apply when entering a home to make an arrest (s529) etc .
(iii) E.g. officer is justified in using as much force as necessary when making an arrest,
provided that there is reasonable grounds to use that much force.
(iv) Nonetheless, an officer is criminally responsible for using excessive force.
D. RIGHTS ARISING ON ARREST
(i)
Statutory protections:
1.
s497 calls for officer who has arrested a person for one of the offences listed in
s495(2)(a), (b) or (c) (basically less serious, summary conviction or hybrid
conviction offences) to release that person on an appearance notice or
summons, unless grounds similar to those in ss495(2)(d) or (e) apply .
2.
(i.e. believes that need to get ID; secure evidence; won’t show in court etc).
3.
Where the offender is NOT released, s503 comes into play; accused is to be
brought before a JP to consider the issue of release (must occur w/o
unreasonable delay, and in any event, within 24 hours); “without
unreasonable delay” is the key factor here.
4.
Failure to do so may result in an arbitrary detention under s9 of the Charter
(ii)
Charter rights:
1.
s10 of the Charter creates specific guarantees arising on arrest:
2.
(a) accused must be informed promptly of the reasons for arrest;
3.
(b) must be informed of right to counsel.
E. COMPELLING APPEARANCE WITHOUT ARREST (coughlan 153-161)
(i) There are different ways to compel appearance, without arrest, either pre- or postcharge.
(ii) Arrest is a power of last resort.
(iii) Compelling appearance when charges have NOT been laid (i.e. pre-charge)
1.
If a peace officer decides that a person should be prosecuted, there are a number
of ways to compel that person to attend court BEFORE an information is laid
and he is actually charged.
2.
The most obvious example is an arrest without warrant.
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3.
4.
5.
6.
7.
8.
9.
10.
11.
But the Code also provides that a person may be req’d to attend court by means
of an appearance notice, a promise to appear or a recognizance.
Note s 495(2) (discussed above in arrests), suggests that, for less serious
offences, an officer should not necessarily use arrest powers.
The provision indicates, implicitly, that the officer issue an appearance notice
instead, unless there is good reason not to.
So, if officer decides NOT to arrest, then they may issue an appearance notice:
s495(2).
Even if an officer has arrested a person, the officer can decide afterword, under
s497(1), to release that person w/ the intention to compel her appearance by
means of a summons or appearance notice.
The “officer in charge”, under s498, is also directed to prefer releasing the
accused (officer in charge has broader powers; can release with more restrictive
conditions, including a recognizance).
The release provisions, however, are not mandatory, and are merely guidelines.
(i.e. an officer who fails to comply with the ss is still complying with their duty).
Note that before accused’s first appearance an information must be laid before
a justice: s505.
(iv) Compelling appearance when charges have been laid (i.e. post-charge)
1. After the laying of the information is completed, the justice will issue process
in the form of either a summons or a warrant for the arrest of the accused (if
the charge is endorsed).
2. A summons is a document issued by the court commanding the accused to
attend court at a specified time and place.
3. The choice b/w summons or arrest warrant lies in the discretion of the justice.
4. s507(4), though, directs the justice to issue a summons UNLESS there are
reasonable grounds to believe that a warrant is necessary in the “public
interest”.
F. THE BAIL HEARING (coughlan 161-167)
(i) Where an individual is arrested, he or she must be released or given a bail hearing
where it will be decided whether the individual should be released absolutely,
subjected to conditions of release, or held in custody pending the trial.
(ii) There is a ladder approach where the accused is presumed to be entitled to be released
and the Crown must justify each increasing step of intrusiveness.
(iii) s515(2) sets out a range of restrictions on liberty, short of detention, as conditions of
release:
1.
an undertaking w/ conditions.
2.
a recognizance w/o sureties and w/o deposit – that is the accused promises to
pay if he doesn’t appear as promised.
3.
a recognizance w/ sureties – a 3rd party agrees to owe the debt.
4.
a recognizance w/o sureties but w/ deposit of money “or other valuable
security” (must be made on consent of the prosecutor).
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5.
a recognizance w/ or w/o sureties and w/ a deposit of money or other valuable
security if the accused is not ordinarily resident in the province or w/in 200km
of the place in which he is in custody.
G. GENERAL SCHEME: RELEASE BY JUSTICE
(i) Assumption that accused should be released pending trial and with few restrictions
as possible.
(ii) s515(1) directs that the justice shall order that the accused is released on an
undertaking w/o conditions UNLESS the Crown shows cause as to why something
more restrictive is justified.
(iii) s515(2): Where a judge doesn’t order an outright release under s515, he shall,
UNLESS THE CROWN SHOWS CAUSE AS TO WHY DETENTION IS
JUSTIFIED, the judge must release the accused in one of the ways listed in that s (a)(e).
(iv) A judge cannot make an order under (b) to (e) of s515(2) unless prosecutor shows
cause as to why an order under the immediately preceding paragraph would be
inadequate: s515(3).
(v) s514(4) – (4.3): Set out various types of conditions that MAY or MUST be imposed
when an order for release is made under s 515(2) [Objective is to ensure accused
attends court or safety of community]
(vi) SUMMARY: If an “order of release (without conditions)” is not made by the judge
s515(1), there are two options, each for which the Crown must show cause:
1. (a) Show cause why detention is necessary (see below);
2. (b) or if that fails, try and show cause as to why a more serious condition of
release should be imposed.
(vii) General scheme: Crown seeking continued detention
1. s515(10) specifies 3 grounds on which continued detention of an accused may
be ordered:
(a) detention is necessary to ensure accused’s attendance in court.
(b) detention is necessary to ensure for the protection or safety of the public.
(c) detention is necessary in order to maintain confidence in the administration
of justice, having regard to all the circumstances [and there are a few listed]
(d) (e.g. apparent strength of prosecution’s case, gravity of offence,
circumstances surrounding
(e) commission of offence; et] (see R v Hall for test to apply)
(f) controversial section.
H. ADJOURNMENT
(i) The justice, on the application of the prosecutor, can adjourn the bail hearing by up
to 3 days without the consent of the accused: s516.
I. EXCEPTIONS TO THE GENERAL BAIL SCHEME
(i) s515(6): Lists a number of types of indictable offences which lead to a reverse onus
(ii) i.e. accused must show cause why he is to be released.
(iii) If the accused is ordered to be released, any of the ordinary conditions apply.
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(iv) s515(11) + s522 (re: s469 offences): Again a reverse onus applies. If the accused is
order to be released, any of the ordinary conditions apply.
J. REVIEWING ORDER
(i) A decision made by a justice concerning release or detention may be reviewed by a
judge upon application of the accused or the prosecution: s520/521
R v. HALL [2002]
FACTS:
 Hall was charged w/ 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 CC allows the denial of bail for this reason
 Hall appealed the decision on the basis that s 515(10)(c) violated the right "not to be denied
reasonable bail without just cause" under s11(e) of the Charter
ISSUE:
 The issue in this case is whether Bolan J. erred in denying bail on the basis that this was
necessary “to maintain confidence in the administration of justice”.
REASONING:
 “I agree that the opening phrase of s. 515(10)(c), read as conferring a broad discretion to
deny bail for “just cause”, is unconstitutional
 However, the balance of s515(10)(c), which permits denial of bail where necessary to
maintain confidence in the administration of justice, plays a vital role in preserving the bail
system and the good administration of justice, and is neither unduly vague nor overbroad”
 Function of para (c): To allow an accused to be released into the community on bail in the
face of a heinous crime and overwhelming evidence may erode the public’s confidence in
the administration of justice
 W/o public confidence, the bail system and the justice system generally stand compromised
 Bail denial to maintain confidence in the administration of justice is not a
mere “catch-all” for cases where the first two grounds have failed
 It represents a separate and distinct basis for bail denial not covered by the other two
categories
 Para (c) is not unconstitutionally vague or overbroad: the ground based on maintaining
confidence in the administration of justice is more narrowly defined than the “public
interest” standard in Morale
 Another question is whether the means it has chosen go further than necessary to achieve
that purpose.
 In my view, they do not. Parliament has hedged this provision for bail with important
safeguards. The judge must be satisfied that detention is not only advisable but
necessary. The judge must, moreover, be satisfied that detention is necessary not just to
any goal, but to maintain confidence in the administration of justice. At the end of the day,
the judge can only deny bail if satisfied that in view of these factors and related
159
circumstances, a reasonable member of the community would be satisfied that denial
is necessary to maintain confidence in the administration of justice
HELD: Para (c) is constitutionally valid.
R. v. ST-CLOUD, 2015 SCC
FACTS:
 S was charged with one count of aggravated assault under s. 268 of the Criminal Code for
having assaulted a bus driver together with two other individuals. The Crown opposed the
interim release of S. The justice of the peace who heard the initial application for release
found that detention was necessary on the basis of s. 515(10) (b) and (c) Cr. C., that is,
because the interim detention of S was necessary for the protection or safety of the public,
and to maintain confidence in the administration of justice. The justice who heard the
second application for release on completion of the preliminary inquiry found that the
detention of S was still justified under s. 515(10) (c). S then applied under s. 520 Cr. C. for
a review by a Superior Court judge, who determined that the detention of S was not
necessary under s. 515(10) (c) and ordered his release.
Wagner J.: The appeal should be allowed and the detention order restored.
 In this case, the Superior Court judge intervened even though there was no basis for a
review, given that there was no change in circumstances and no error of law, and that the
initial decision was not clearly inappropriate.
 When all the relevant circumstances are weighed as required by s. 515(10) (c), the
detention of S was necessary to maintain confidence in the administration of justice
 The ground set out in s. 515(10) (c) of the Criminal Code , is a distinct ground that itself
provides a basis for ordering the pre-trial detention of an accused.
o The fact that detention may be justified only in rare cases is but a consequence of
the application of s. 515(10) (c), and not a precondition to its application, a criterion
a court must consider in its analysis or the purpose of the provision.
 In determining whether the detention of an accused is necessary to maintain confidence in
the administration of justice, the justice must first consider the four circumstances that are
expressly referred to in s. 515(10) (c):
o First of all: the justice must determine the apparent strength of the prosecution’s
case. The prosecutor is not required to prove beyond a reasonable doubt that the
accused committed the offence, and the justice must be careful not to play the role
of trial judge or jury: matters such as the credibility of witnesses and the reliability
of scientific evidence must be analyzed at trial, not at the release hearing.
 The justice must nevertheless consider the quality of the evidence tendered
by the prosecutor in order to determine the weight to be given to this
circumstance in his or her balancing exercise. The justice must also consider
any defence raised by the accused in analyzing the apparent strength of the
prosecution’s case.
o Second: the justice must determine the objective gravity of the offence in
comparison with the other offences in the Criminal Code . This is assessed on the
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

basis of the maximum sentence — and the minimum sentence, if any — provided
for in the Criminal Code for the offence.
o Third: The justice must then consider the circumstances surrounding the
commission of the offence, including:
 Whether a firearm was used, the fact that the offence is a violent, heinous
or hateful one, in a context involving domestic violence, a criminal gang or
a terrorist organization, or that the victim was a vulnerable person. If the
offence was committed by several people, the extent to which the accused
participated in it may be relevant. The aggravating or mitigating factors that
are considered by courts for sentencing purposes can also be taken into
account.
o Finally, fourth, consider the fact that the accused is liable for a potentially lengthy
term of imprisonment. Because no crime is exempt from the possible application
of s. 515(10) (c), the words “lengthy term of imprisonment” do not refer only to a
life sentence. Consider all the circumstances of the case known at the time of the
hearing, as well as the principles for tailoring the applicable sentence = assessed
subjectively.
The circumstances listed in s. 515(10) (c) are not exhaustive. The court must consider all
the circumstances of each case, paying particular attention to the four listed circumstances.
o No single circumstance is determinative: involves balancing all the circumstances.
o At the end of this balancing exercise, the ultimate question to be asked by the court
is whether detention is necessary to maintain confidence in the administration of
justice (even where the four listed circumstances support such a result).
o Some other circumstances that might be relevant are the personal circumstances of
the accused (age, criminal record, physical or mental condition, and membership in
a criminal organization), the status of the victim and the impact on society of a
crime committed against that person, and the fact that the trial of the accused will
be held at a much later date.
The justice’s balancing of all the circumstances under s. 515(10) (c) must always be guided
by the perspective of the “public”, that is, of a reasonable person who is properly informed
about the philosophy of the legislative provisions, the values of the Charter, and the actual
circumstances of the case.
o The person in question is a thoughtful person, not one who is prone to emotional
reactions, whose knowledge of the circumstances of the case is inaccurate or who
disagrees with our society’s fundamental values. However, this person is not a legal
expert, and, although he or she is aware of the importance of the presumption of
innocence and the right to liberty in our society, expects that someone charged with
a crime will be tried within a reasonable period of time, and knows that a criminal
offence requires proof of culpable intent and that the purpose of certain defences is
to show the absence of such intent, the person is not able to appreciate the subtleties
of the various defences that are available to the accused. This reasonable person’s
confidence in the administration of justice may be undermined if a court declines
to order detention where detention is justified having regard to the circumstances
of the case, but also if it orders detention where detention is not justified.
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




Sections 520 and 521 of the Criminal Code do not confer an open-ended discretion on
the reviewing judge to vary the initial decision concerning the detention or release of the
accused. They establish not a de novo proceeding, but a hybrid remedy.
o The judge can exercise his or her power of review in only three situations: (1) where
there is admissible new evidence if that evidence shows a material and relevant
change in the circumstances of the case; (2) where the impugned decision contains
an error of law; or (3) where the decision is clearly inappropriate.
The four criteria from Palmer v. The Queen, [1980] S.C.R., to the determination of what
constitutes new evidence:
o First criterion: due diligence, the reviewing judge may consider evidence that is
truly new or evidence that existed at the time of the initial release hearing but was
not tendered for some reason that is legitimate and reasonable.
 Such new evidence is not limited to evidence that was unavailable to the
accused before the initial hearing. In each case, the reviewing judge will
have to determine whether the reason why the accused did not tender such
pre-existing evidence earlier was legitimate and reasonable.
o Second criterion: the evidence be relevant for the purposes of s. 515(10). This
criterion will therefore rarely be decisive since the range of relevant evidence will
generally be quite broad.
o Third criterion: that the evidence must be credible in the sense that it is reasonably
capable of belief – interpreted in light of s. 518(1) (e) of the Criminal Code
o Fourth criterion: the new evidence must be such that it is reasonable to think, having
regard to all the relevant circumstances, that it could have affected the balancing
exercise engaged in by the justice under s. 515(10) (c).
 The new evidence must therefore be significant. If the new evidence meets
the four criteria for admissibility, the reviewing judge is authorized to repeat
the analysis under s. 515(10) (c) as if he or she were the initial decisionmaker.
It will also be appropriate to intervene if the justice has erred in law or if the impugned
decision was clearly inappropriate, that is, if the justice who rendered it gave excessive
weight to one relevant factor or insufficient weight to another. The reviewing judge
therefore does not have the power to interfere with the initial decision simply because he
or she would have weighed the relevant factors differently.
In Morales, [1992] S.C.R., this Court struck down the component of s. 515(10) (b) Cr.
C. that authorized pre-trial detention on the ground that detaining the accused was
necessary in the “public interest”. The Court held that this wording was vague and
imprecise and that it authorized a “standardless sweep” allowing a “court [to] order
imprisonment whenever it [saw] fit”: p. 732.
McLachlin C.J., explained that in some circumstances it may be necessary to deny an
accused bail, even where there is no risk he or she will not attend trial or may reoffend or
interfere with the administration of justice: Hall, at para. 25.
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R. v. ANTIC, 2017 SCC
FACTS:
 A was arrested and charged with several drug and firearms offences. He was denied release
at his bail hearing, and sought review of the detention order. The bail review judge declined
to vacate the order, indicating that he would have released A if he could have imposed both
a surety and a cash deposit as release conditions. However, s. 515(2)(e) of the Criminal
Code permits a justice of the peace or judge to require both a cash deposit and surety
supervision only if the accused is from out of the province or does not ordinarily reside
within 200 km of the place in which he or she is in custody. As an Ontario resident living
within 200 km of the place in which he was detained, A did not meet these criteria. A
brought a subsequent bail review application, challenging the constitutionality
of s. 515(2) (e). The bail review judge found that since the geographical limitation
in s. 515(2) (e) prevented him from granting bail on the terms that he deemed appropriate,
the provision violated the right not to be denied reasonable bail without just cause
under s. 11 (e) of the Charter . He severed and struck down the geographical limitation
in s. 515(2) (e) and ordered A’s release with a surety and a cash deposit of $100,000.
Wagner J.: The appeal should be allowed and the declaration of constitutionality reversed.
 s. 515(2) (e) of the Criminal Code did not have the effect of denying A bail — it was the
bail review judge’s application of the bail provisions that did so – committed two errors in
fashioning A’s release order:
o First, by requiring a cash deposit with a surety, one of the most onerous forms of
release, he failed to adhere to the ladder principle. Even though A had offered a
surety with a monetary pledge, the bail review judge was fixated on and insisted on
a cash deposit because he believed the erroneous assumption that cash is more
coercive than a pledge.
o Second, the bail review judge erred in making his decision on the basis of
speculation as to whether A might believe that forfeiture proceedings would not be
taken against his elderly grandmother if he breached his bail terms. A judge cannot
impose a more onerous form of release solely because he or she speculates that the
accused will not believe in the enforceability of a surety or a pledge.
 Parliament expressly authorized the possibility of an accused being released on entering
into a recognizance with sureties in the place of cash bail, and judges should not undermine
the bail scheme by speculating, contrary to any evidence and to Parliament’s intent, that
requiring cash will be more effective.
 Given that s. 515(2) (e) did not have the effect of denying A bail, it cannot be concluded
that this provision denies him bail without just cause. Thus, the first aspect of
the s. 11 (e) Charter right is not triggered.
 As to the second aspect of the s. 11 (e) right, it does not need to be addressed because,
properly interpreted, s. 515(2) (e) does not apply to A and cannot therefore authorize an
unreasonable form of release in his case. Had the bail review judge applied the bail
provisions properly, A could have been granted reasonable bail.
 Accordingly, the bail review judge’s declaration of unconstitutionality should be reversed
and the cash-plus-surety release ordered should be replaced with a cash-only release
163
under s. 515(2) (d) on the same terms as those previously imposed, since A has already
posted the cash deposit.
ANALYSIS
 The right not to be denied reasonable bail without just cause is an essential element of an
enlightened criminal justice system. It entrenches the effect of the presumption of
innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of
accused persons.
 This right has two aspects: a person charged with an offence has the (1) right not to be
denied (2) bail without just cause and the right to reasonable bail.
o Under the first aspect, there is just cause to deny bail only if the denial occurs in a
narrow set of circumstances, and the denial is necessary to promote the proper
functioning of the bail system and is not undertaken for any purpose extraneous to
that system.
o The second aspect, relates to the terms of bail, including the quantum of any
monetary component and other restrictions that are imposed on the accused for the
release period. Protects from conditions and forms of release that are unreasonable.
 While a bail hearing is an expedited procedure, the bail provisions are federal law and must
be applied consistently and fairly in all provinces and territories.
 There were three forms of release: (a) release with sufficient sureties upon entering into
a recognizance, (b) release upon making a cash deposit, and (c) release upon entering
into a recognizance without a deposit
 A central part of the Canadian law of bail consists of the ladder principle and the authorized
forms of release, which are found in s. 515(1) to (3) of the Criminal Code.
 The following principles and guidelines should be adhered to when applying the bail
provisions in a contested hearing:
o Accused persons are constitutionally presumed innocent, and the corollary to the
presumption of innocence is the constitutional right to bail.
o Section 11 (e) guarantees both the right not to be denied bail without just cause and
the right to bail on reasonable terms.
o Save for exceptions, an unconditional release on an undertaking is the default
position when granting release: s. 515(1).
o The ladder principle articulates the manner in which alternative forms of release
are to be imposed. According to it, “release is favoured at the earliest reasonable
opportunity and, having regard to the [statutory criteria for detention], on the least
onerous grounds”: Anoussis, at para. 23. This principle must be adhered to strictly.
o If the Crown proposes an alternative form of release, it must show why this form is
necessary. The more restrictive the form of release, the greater the burden on the
accused. Thus, a justice of the peace or a judge cannot impose a more restrictive
form of release unless the Crown has shown it to be necessary having regard to the
statutory criteria for detention.
o Each rung of the ladder must be considered individually and must be rejected before
moving to a more restrictive form of release. Where the parties disagree on the form
of release, it is an error of law for a justice or a judge to order a more restrictive
form of release without justifying the decision to reject the less onerous forms.
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
XIII.
o A recognizance with sureties is one of the most onerous forms of release. A surety
should not be imposed unless all the less onerous forms of release have been
considered and rejected as inappropriate.
o It is not necessary to impose cash bail on accused persons if they or their sureties
have reasonably recoverable assets and are able to pledge those assets to the
satisfaction of the court to justify their release. A recognizance is functionally
equivalent to cash bail and has the same coercive effect.
 Thus, under s. 515(2)(d) or s. 515(2)(e), cash bail should be relied on only
in exceptional circumstances in which release on a recognizance with
sureties is unavailable.
o When such exceptional circumstances exist and cash bail is ordered, the amount
must not be set so high that it effectively amounts to a detention order, which means
that the amount should not be beyond the readily available means of the accused
and his or her sureties.
 As a corollary to this, the justice or judge is under a positive obligation,
when setting the amount, to inquire into the ability of the accused to pay.
 The amount of cash bail must be no higher than necessary to satisfy the
concern that would otherwise warrant detention and proportionate to the
means of the accused and the circumstances of the case.
o Terms of release imposed under s. 515(4) may “only be imposed to the extent that
they are necessary” to address concerns related to the statutory criteria for detention
and to ensure that the accused can be released.[5] They must not be imposed to
change an accused person’s behaviour or to punish an accused person.
o Where a bail review is applied for, the court must follow the bail review process
set out in St-Cloud.
Of course, it often happens that the Crown and the accused negotiate a plan of release and
present it on consent = Consent release.
GETTING READY FOR TRIAL
A. DISCLOSURE AND PRODUCTION
(i) A key right of the accused, and an important obligation on the Crown, is to make full
disclosure of the fruits of the investigation to the accused.
(ii) All the fruits of the investigation are to be disclosed save what is clearly irrelevant or
privileged.
(iii) Disclosure is to be made before the accused is called upon to elect his mode of trial
for s536 indictable offences.
(iv) Accused may seek to secure relevant “3rd party records” that are not the fruits of the
investigation.
(v) Complex applications must be filled out in order to obtain these records.
(vi) If there are issues about proper disclosure, the TJ can resolve them early on
(vii) R v Stinchcombe established the right of disclosure for an accused, and the case also
established various rules that apply to disclosure.
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R v STINCHCOMBE [1991]
FACTS:
 The accused, a lawyer, was charged with breach of trust, theft and fraud
 A former secretary of his was a Crown witness at the preliminary inquiry, where she gave
evidence apparently favourable to the defence
 After the preliminary inquiry but prior to trial, the witness was interviewed by an RCMP
officer and a tape-recorded statement was taken
 Later, during the course of the trial, the witness was again interviewed by a police officer
and a written statement taken
 Defence counsel was informed of the existence but not of the content of the statements
 His requests for disclosure were refused
 During the trial defence counsel learned conclusively that the witness would not be called
by the Crown and sought an order that the witness be called or that the Crown disclose the
contents of the statements to the defence
 The TJ dismissed the application.
 The trial proceeded and the accused was convicted of breach of trust and fraud
 Conditional stays were entered with respect to the theft counts
 The Court of Appeal affirmed the convictions without giving reasons
REASONING:
 Subject to the Crown's discretion, all relevant information must be disclosed, both that
which the Crown intends to introduce into evidence and that which it does not, and whether
the evidence is inculpatory or exculpatory
 All statements obtained from persons who have provided relevant information to the
authorities should be produced, even if they are not proposed as Crown witnesses
 Where statements are not in existence, other information such as notes should be produced
 If there are no notes, all information in the prosecution's possession relating to any relevant
evidence the person could give should be supplied
 Crown counsel has a duty to respect the rules of privilege and to protect the identity of
informers
 A discretion must also be exercised with respect to the relevance of information
 The Crown's discretion is reviewable by the TJ, who should be guided by the general
principle that information should not be withheld if there is a reasonable possibility that
this will impair the right of the accused to make full answer and defence
 The absolute withholding of information which is relevant to the defence can only be
justified on the basis of the existence of a legal privilege which excludes the information
from disclosure
 This privilege is reviewable, however, on the ground that it is not a reasonable limit on the
right to make full answer and defence in a particular case
 Counsel for the accused must bring to the TJ's attention at the earliest opportunity any
failure of the Crown to comply with its duty to disclose of which counsel becomes aware
 This will enable the TJ to remedy any prejudice to the accused if possible and thus avoid a
new trial
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Initial disclosure should occur before the accused is called upon to elect the mode of trial
or plead.
HELD:
 Crown counsel was not justified in refusing disclosure here on the ground that the witness
was not worthy of credit: whether the witness is credible is for the TJ to determine after
hearing the evidence
 The TJ ought to have examined the statements
 Since the information withheld might have affected the outcome of the trial, the failure to
disclose impaired the right to make full answer and defence
 Appeal should be allowed and a new trial ordered at which the statements are produced
R v. MCNEIL [2009]
 McNeil was convicted of multiple drug charges
 McNeil filed a motion to obtain 3rd party records, namely police disciplinary records and
criminal investigation files relating to the Crown’s main police witness in the case against
him
 Before being sentenced, McNeil learned that the police officer was engaged in drug-related
misconduct that had led to both internal disciplinary proceedings and to criminal charges
 McNeil filed to obtain those documents, claiming he req’d them to prepare for his appeal
 The CA held that an O’Connor-type procedure was only req’d in cases where 3rd party
records attracted a reasonable expectation of privacy
 The court drew a distinction b/t criminal investigation files and police disciplinary records
 They concluded that no expectation of privacy existed for the criminal investigation files
 The court ordered the 3rd parties to produce the files in their possession against the arresting
officer
Content of the right to disclosure
 Evidence, if relevant, must be disclosed by Crown, whether inculpatory or exculpatory
 Evidence is relevant if it is of some use to the defence (R v Egger)
 Disclosure must be made prior to election or plea so the accused can consider the disclosed
material
 It is a continuing duty to disclose
 The right isn’t absolute – e.g. need not produce privileged or irrelevant material
 What if disclosure isn’t made properly?
 There is no independent charter right for disclosure, it is simply an aspect of s7 Charter –
the right to full answer and defence
 O’Connor – the right to disclosure is not itself a constitutionally protected right and
therefore does not entitled the accused of a remedy under s24(1)
 Carosella gave an opposite conclusion – “if the material which was destroyed meets the
threshold test for disclosure or production, the appellant’s Charter rights were breached
w/o the req’t of showing additional prejudice
o The remedies range from adjournments to a stay of proceedings
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o A stay should only be granted in the clearest of cases (where prejudice to the
accused cannot be remedied and where there would be irreparable prejudice to the
integrity of the justice system of the prosecution were continued
La confirms the decision in Carosella, but diminishes the significance of the principle
o Where the Crown can show that the evidence was not lost due to unacceptable
negligence, duty to disclose is not breached
o It will still be possible for the accused’s right to full answer and defence to be
breached
o This removes much of the effect from Carosella that disclose is a right in itself
R v Dixon said that the accused must show that there is a reasonable possibility that nondisclosure affected the outcome at trial or the overall fairness of the trial process
o A) a reasonable possibility that the evidence would have affected the decision to
convict
o B) a reasonable possibility that lines of inquiry w/ witnesses or opportunities to
gather further evidence exist, which would have been available if the evidence had
been disclosed
Another issue is privileged information (of which there are 3 general categories – informer
privilege, solicitor-client privilege and privilege in counselling records).
Conflicting protections: disclosure and privileged information
 The following topics are covered in this part:
(1) Informer privilege; (2) Solicitor-client privilege; (3) Counselling records;
 Informer and solicitor-client privilege are sacred, but can be broken only when the
accused’s innocence is at stake
 McLure test for breaking the privlage is on pg 212 textbook
B. PRELIMINARY INQUIRES
(i)
At the preliminary inquiry, the judge determines whether the Crown has a prima
facie case.
(ii)
If so, the accused is committed to stand trial and the prosecutor will be called upon
to draft an indictment, which replaced the original information as the new charging
document.
(iii)
If there is no prima facie case, the accused is discharged (not the same as acquittal)
(iv)
The prosecution can relay the charge and try again if new evidence is found.
(v)
AG can lay a direct indictment, which gives the court jurisdiction to try the accused.
(vi)
A direct indictment can be used to re-institute a prosecution after a discharge or to
bypass a preliminary inquiry
Background
 Before an accused is tried on an indictable offence, a preliminary inquiry may be conducted
at the request of the Crown or the accused
 This can be overridden by the AG who can elect to proceed by way of direct indictment
s577 CC
 There is no entitlement to a preliminary inquiry for summary offences
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Until 2004, the preliminary inquiry was understood chiefly as a test of the sufficiency of
the prosecution’s case for trial
A second function was to test the quality of the evidence taken from witnesses under oath
Since 2004, amendments to the Code have altered the nature of the preliminary inquiry and
it can no longer be said that its primary function is to test the sufficiency of the prosecution
case as a whole
The inquiry will only be conduct with regard to the issues and witnesses that are specified
in advance: s 536.3
The preliminary inquiry is now a limited examination of the sufficiency of the prosecution
case with regard to the specific issues and the evidence of specific witnesses
Since the inquiry is not limited, it eliminates any test of sufficiency of the prosecution’s
case because it does not examine the whole of the evidence
Therefore it affects the decision to commit for trial
The function now is to test the evidence of specific witnesses on specific issues in
preparation for trial
Jurisdiction
 The authority of a justice to conduct a preliminary inquiry is strictly statutory under Part
XVIII CC
Commencement
 The possibility of have an inquiry will depend on the indictable offence and the mode of
trial.
Scope
 The scope of the inquiry is defined by s535, which directs the judge to inquire into the
charge of any indictable offence or any other indictable offence in respect of the same
transaction disclosed by the evidence
 The Code expressly allows the accused to call evidence and this can include exculpatory
evidence on a matter of defence: s541
 The judge does not weigh this evidence and so the primary purpose of the accused
submitting it is to test the evidence before trial
 s601 gives the judge power to amend the charges in the information at the preliminary
inquiry
 the accused does not have to be present at the inquiry and can be excused by a judge
 if the accused absconds, he is deemed to waive his right to be present and the inquiry
continues
 the jurisdiction granted by the CC during inquiries does not allow it to consider
constitutional issues
Evidence
 it is taken under oath and recorded
 prosecution witnesses are heard first and may be cross-examined
 evidence given must comply with the rules of admissibility that apply to trials
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the only difference is that s5407(7) grants power to the judge to “receive as evidence any
information that would not otherwise be admissible but that the justice considers credible
or trustworthy in the circumstances of the case, including a statement that is made by a
witness in writing or otherwise recorded
it appears s540(7) was drafted too broadly b/c it allows evidence that would not be tendered
at trial
the defence does not have to call witnesses and an inquiry cannot lead to an acquittal
anyway
there is no obligation for the defence to disclose their case
the advantage for the defence is to hear and see their witnesses and to test them out before
the trial begins
Publication Bans
 preliminary inquiries are open to the public unless there is a publication ban
 typically the presentation of evidence at inquiry is subject to a publication ban in a
newspaper or broadcast
Committal
 s548 directs the justice or judge at the preliminary inquiry to commit the accused for trial
on any indictable offence if the evidence in support of the charge is sufficient.
 It also req’s the accused to be discharged (but this doesn’t mean acquitted) if the evidence
is insufficient. Everything turns on the word “sufficient”
 In Shephard, the SCC stated that the test of sufficiency at the prelim inquiry is whether a
reasonable jury, properly instructed, could find the charge proved BRD
 One uncertainty is the issue of whether the judge should asses the probative value of the
evidence
 Criterion of completeness: Prosecution must lead evidence corresponding to each of
the elements (this is uncontroversial)
 Criterion of weight: Several cases suggest it is not the role of the judge to weigh evidence;
e.g. judge cannot assess credibility of witnesses (Arcuri).
 But where the prosecution’s case is circumstantial evidence, a limited weighing of evidence
is permitted, and req’s the judge to consider whether, if the evidence is believed, it could
support inferences in favour of the prosecution
 In short, ask whether the essential elements of the offence can be proved BRD in the
eyes of a reasonable trier of fact
See R v ARCURI [2001] above (pg 126 of notes)
C. THE JURY TRIAL (coughlan pgs 54-58 & 274-292)
(i) s471 mandates jury trials, but an accused can elect not to have a jury trial s588 except
for when the offence is listed in s469.
(ii) s473 states that an accused can elect not to have a jury even for offences listed in
s469 w/ the AGs consent.
(iii) so a choice of trial mode normally exists and s536(2), the accused is asked to elect a
mode.
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(iv) if an offence is listed as in the absolute jurisdiction of a magistrate, then the accused
does not elect.
(v) if the accused refuses to elect, then s565(1)(c) states the trial will be done by judge
and jury.
(vi) if co-accused’s want different modes of trial, the AG can compel a trial by jury if the
offence is punishable by more than 5 years (s568).
(vii) if an accused elects a trial by judge and jury and fails to appear, s598 says that a later
trial will be by judge alone unless the accused has a legitimate excuse
Jury Selection
 methods of trial – trial by provincial court judge, superior court judge, or superior court
judge w/ jury
 few offences, such as murder and treason, are req’d to be tried by jury
 while few offences, such as theft not exceeding $5000, cannot have a jury
 provinces have jurisdiction over the administration of justice including jury selection
procedures
 once the jury array has been assembled, the CC governs the remainder of the selection
procedures
 s632 allows a trial judge to excuse jurors based on: person interest in the matter,
relationship w/ judge, prosecutor, accused, counsel for the accused, or a prospective
witness; and for personal hardship or other reasonable cause
 TJ s/b open to being persuaded that there is a realistic potential for partiality when it comes
to race
 Widespread racial prejudice, as a characteristic of a community, could be subject of judicial
notice
 Once widespread prejudice has been proven in one case, judges in later cases can take
judicial notice of it w/o any need for an accused to provide evidence
 There is no absolute requirement that juries must be representative
 The accused and the Crown can use a peremptory challenge to dismiss a juror w/o
explanation
 s634 CC
 the problem w/ these is that the Crown may have acted on principles that violate the Charter
values
 if this is the case, the jury selection is tainted, unless the Crown offers an alternative
explanation
 However, “because I felt like it” is a perfectly valid explanation.
R. v. WILLIAMS, [1998] S.C.R.
FACTS:
 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
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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. At issue here is whether the evidence of widespread bias against aboriginal
people in the community raises a realistic potential of partiality.
MCLACHLIN J.: The appeal should be allowed.
 The prosecution and the defence are entitled to challenge potential jurors for cause on the
ground of partiality. Candidates for jury duty are presumed to be indifferent or impartial
and this presumption must be displaced before they can be challenged and questioned.
 Usually the party seeking the challenge calls evidence substantiating the basis of the
concern. Alternatively, where the basis of the concern is widely known and accepted, the
law of evidence may permit a judge to take judicial notice of it.
 The judge has a wide discretion in controlling the challenge process and should permit
challenges if there is a realistic possibility that the jury pool may contain people whose
racial prejudice might incline them to favour the Crown rather than the accused
 Applying Sherratt to the case at bar, the enquiry becomes whether in this case, the evidence
of widespread bias against aboriginal people in the community raises a realistic potential
of partiality.
 Judicial directions to act impartially cannot always be assumed to be effective in countering
racial prejudice. Where doubts are raised, the better policy is to err on the side of caution
and permit prejudice to be examined.
o A motion to challenge for cause therefore need not be dismissed if there was “no
concrete evidence” that any of the prospective jurors could not set aside their
biases.
 The contention that there need be some evidence of bias of a particular nature and extent
against aboriginal persons, or even further, that racial prejudice in the community must be
linked to specific aspects of the trial, is unduly restrictive. Evidence of widespread racial
prejudice may, depending on the nature of the evidence and the circumstances of the case,
lead to the conclusion that there is a realistic potential for partiality.
o The potential for partiality is irrefutable where the prejudice can be linked to
specific aspects of the trial, like a widespread belief that people of the accused’s
race are more likely to commit the crime charged.
 Racial prejudice against the accused may be detrimental to an accused in a variety of
ways. The link between prejudice and verdict is clearest where there is an “interracial
element” to the crime or a perceived link between those of the accused’s race and the
particular crime.
o Racial prejudice may also play a role in other, less obvious ways such as how jurors
assess the credibility of the accused.
 The trial judge has the discretion to determine whether widespread racial prejudice in the
community, absent specific “links” to the trial, is sufficient to give an “air of reality” to the
challenge in the particular circumstances of each case. It is impossible to provide an
exhaustive catalogue of those circumstances. Where specific “links” to the trial exist, the
trial judge must allow the challenge to proceed.
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Section 638(2) of the Criminal Code requires two inquiries and entails two different
decisions:
o The first stage is the inquiry before the judge to determine whether challenges for
cause should be permitted. The test at this stage is whether there is a realistic
potential or possibility for partiality.
o If the judge permits challenges for cause, a second inquiry occurs questioning
potential jurors as to whether they harbour prejudices against people of the
accused’s race, and if so, whether they are able to set those prejudices aside and act
as impartial jurors. At this stage, the question to be determined by the triers is
whether the candidate in question will be able to act impartially.
Section s. 638(1)(b) is intended to prevent persons who may not be able to act impartially
from sitting as jurors. This object cannot be achieved if the evidentiary threshold for
challenges for cause is set too high. To require evidence that some jurors will be unable to
set their prejudices aside is to ask the impossible.
The appropriate evidentiary standard on applications to challenge for cause based on racial
prejudice is a “realistic potential for partiality” (the rule in R. v. Sherratt). Absent evidence
to the contrary, where widespread prejudice against people of the accused’s race is
demonstrated at a national or provincial level, it will often be reasonable to infer that such
prejudice is replicated at the community level.
o Prejudice less than widespread might in some circumstances meet this test.
A judge’s discretion to allow challenge for cause must be exercised in accordance with
the Charter. s. 638(1)(b) should be read in light of the fundamental rights to a fair trial by
an impartial jury and to equality before and under the law.
R. v. FIND, 2001 SCC
FACTS:
 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 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.
HELD: 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.
 Here, the material presented by the accused falls short of grounding judicial notice of
widespread bias in Canadian society against an accused in sexual assault trials.
o First, while the widespread nature of abuse and its potentially traumatic impact are
not disputed, widespread victimization, standing alone, fails to establish
widespread bias that might lead jurors to discharge their task in a prejudicial and
unfair manner.
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o Second, strong views about a serious offence do not ordinarily indicate bias and
nothing in the material supports the contention, nor is it self-evident, that an
exception arises in the case of sexual assaults on children.
o Third, there was also no proof that widespread myths and stereotypes undermine
juror impartiality. While stereotypical beliefs might incline some jurors against an
accused, it is not notorious or indisputable that they enjoy widespread acceptance
in Canadian society.
o Fourth, although crimes arouse deep and strong emotions, one cannot automatically
equate strong emotions with an unfair and prejudicial bias against the
accused. Jurors are not expected to be indifferent toward crimes. Strong emotions
are common to the trial of many serious offences and have never grounded a right
to challenge for cause. The proposition that sexual offences are generically
different from other crimes in their tendency to arouse strong passions is debatable,
and does not, therefore, lend itself to judicial notice.
o Fifth, the survey of past challenge for cause cases involving sexual offences does
not, without more, establish widespread bias arising from sexual assault charges.
o Lastly, the theory of “generic prejudice” against accused persons in sexual assault
trials has not been proved, nor could judicial notice be taken of the proposition that
such prejudice exists. While judicial notice could be taken of the fact that sexual
crimes are almost universally abhorred, this does not establish widespread bias
arising from sexual assault trials.
It is highly speculative to suggest that the emotions surrounding sexual crimes will lead to
prejudicial and unfair juror behaviour. The safeguards of the trial process and the
instructions of the trial judge are designed to replace emotional reactions with rational,
dispassionate assessment. Our long experience in the context of the trial of other serious
offences suggests that our faith in this cleansing process is not misplaced. The accused
failed to establish that sexual offences give rise to a strain of bias that is uniquely capable
of eluding the cleansing effect of trial safeguards
ANALYSIS
 Section 638(1) (b) of the Criminal Code permits a party to challenge for cause where a
prospective juror is not indifferent between the Crown and accused.
 Lack of indifference constitutes partiality. Establishing a realistic potential for juror
partiality generally requires satisfying the court on two matters: (1) that a widespread bias
exists in the community; and (2) that some jurors may be incapable of setting aside this
bias, despite trial safeguards, to render an impartial decision.
o The first branch of the test is concerned with the existence of a material bias, while
the second is concerned with the potential effect of the bias on the trial process.
 However, the overarching consideration, in all cases, is whether there exists a realistic
potential for partial juror behaviour. The first branch involves two concepts:
o “Bias” refers to an attitude that could lead jurors to decide the case in a prejudicial
and unfair manner. Prejudice capable of unfairly affecting the outcome of the case
is required.
o “Widespread” relates to the prevalence or incidence of the bias sufficiently
pervasive in the community to raise the possibility that it may be harboured by
members of a jury pool. If widespread bias is shown, the second branch of the test
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requires an accused to show that some jurors may not be able to set aside their bias
despite the cleansing effect of the trial judge’s instructions and the trial process
itself.
Where a realistic potential for partiality is shown to exist, the right to challenge must
follow. If in doubt, the judge should err on the side of permitting challenges.
o Since jurors are presumed to be impartial, in order to rebut the presumption of
impartiality, a party must call evidence or ask the trial judge to take judicial notice
of facts, or both.
o In addition, the judge may draw inferences from events that occur in the
proceedings and may make common sense inferences about how certain biases, if
proved, may affect the decision-making process.
The threshold for judicial notice is strict: a court may properly take judicial notice of facts
that are either: (1) so notorious or generally accepted as not to be the subject of debate
among reasonable persons; or (2) capable of immediate and accurate demonstration by
resort to readily accessible sources of indisputable accuracy.
It is open to a trial judge reasonably to infer, in the absence of direct evidence, that some
strains of bias by their very nature may prove difficult for jurors to identify and eliminate
from their reasoning.
o The strength of the inference varies with the nature of the bias in issue, and its
amenability to judicial cleansing.
Fundamental distinctions exist between racial bias and the more general bias relating to the
nature of the offence itself: Firstly, racial bias may impact more directly on a jury’s
decision. Secondly, trial safeguards may be less successful in cleansing racial prejudice
because of its subtle, systemic and often unconscious operation.
R. v. YUMNU, 2012 SCC
FACTS:
 Following a trial in Barrie, Ontario, each of the appellants was convicted of two counts of
first degree murder and two counts of conspiracy to commit murder. They appealed from
their convictions, raising grounds relating to the adequacy of the trial judge’s charge to the
jury. While the appeals were under reserve, the appellants became aware of a “jury
vetting” practice in the Barrie area, consisting of inquiries conducted by the police, at the
behest of the Crown Attorney’s office, as to whether potential jurors had a criminal record
or whether they were otherwise “disreputable persons” who would be undesirable as
jurors. It was ascertained that in the present case, vetting of the jury lists by the police in
response to the Crown’s request netted information about 10 individuals who remained in
the pool of prospective jurors at the peremptory challenge stage of the proceedings. None
of this information was shared with the defence. The appeals were reopened to consider
evidence and arguments concerning the propriety of the vetting practice and its impact on
the appellants’ trial. The Court of Appeal dismissed all three appeals. With respect to the
ground of appeal related to jury vetting, the Court of Appeal found that the 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 the Crown’s failure to meet its
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disclosure obligations. The Court of Appeal held that there was no basis to conclude that
the Crown’s failure to disclose caused actual unfairness in the peremptory challenge
process, or that the jury vetting practice created an appearance of unfairness.
Moldaver J.: The appeals should be dismissed.
 Court of Appeal acted as a court of first instance in respect of the jury vetting issue. In
these circumstances, its findings, like those of a trial court, are entitled to deference. On
the issue of trial fairness, there is no basis for interfering with the findings of the Court of
Appeal on the impact — or the lack of impact — that the jury vetting practice had on the
jury selection process.
 Although the Crown failed in its disclosure obligations, as found by the Court of Appeal,
there was no reasonable possibility that the jury would have been differently constituted
had the pertinent information obtained from the vetting process been disclosed. The
appellants received a fair trial by an impartial jury.
 As for the appearance of unfairness and the suggestion that the verdicts are the product of
a miscarriage of justice, although aspects of the Crown’s conduct were improper and
should not be repeated, what occurred here did not constitute a serious interference with
the administration of justice, nor was it so offensive to the community’s sense of fair play
and decency that the proceedings should be set aside as a miscarriage of justice. The record
checks were carried out in good faith and there was no attempt on the part of the police or
the Crown to obtain a favourable jury. There is no basis for ordering a new trial.
ANALYSIS
 Jury vetting by the Crown and police gives rise to a number of concerns. First is the
prospect of the Crown and police joining forces to obtain a jury favourable to their
cause. Second is the fundamental precept of our justice system that “justice should not only
be done, but should manifestly and undoubtedly be seen to be done”. Third is juror
privacy. There are, however, countervailing interests at play that warrant some limited
checking and some minimal intrusions into the private lives of potential jurors.
 Only those persons eligible to serve as jurors should be permitted to participate in the
process. Under provincial statutes and the Criminal Code , a potential juror’s criminal
antecedents, and in some provinces his or her pending charges, may render that person
ineligible for jury duty or result in his or her removal from the jury pool
 Self-reporting is one way of screening potential jurors, but it has proved to be less than
satisfactory. Accordingly, absent legislation to the contrary, the authorities should be
permitted to do criminal record checks on potential jurors to determine whether they are
eligible to serve as jurors.
o It is thus permissible for the Crown, with the assistance of the police, to do limited
background checks using multiple police databases to identify potential jurors who,
by virtue of their criminal conduct, are not eligible for jury duty.
o The imbalance resulting from the defence’s inability to conduct such searches is
overcome by the disclosure obligations placed on the Crown to inform defence.
 When it is discovered at the appeal stage that information about prospective jurors which
should have been disclosed at trial was not disclosed, persons who seek a new trial on the
basis that this non-disclosure of information deprived them of their s. 7 Charter right to a
fair trial must, at a minimum, establish that:
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o (1) the Crown failed to disclose information relevant to the selection process that it
was obliged to disclose; and
o (2) had the requisite disclosure been made, there is a reasonable possibility that the
jury would have been differently constituted.
o In addition to these two steps, in the event the jury would have been differently
constituted, it may be that the Crown should then have the opportunity to show, on
balance, that the jury was nonetheless impartial.
With respect to the appearance of unfairness, there must be conduct on the part of the
Crown and the police, within and surrounding the jury selection process, that would
constitute a serious interference with the administration of justice and offend the
community’s sense of fair play and decency.
o When conduct of that nature is found to exist, it matters not that the accused may
otherwise have had a fair trial; nor is it necessary to find that the accused may have
been wrongfully convicted. It is the conduct itself that gives rise to a miscarriage
of justice and demands that a new trial be ordered.
R. v. KOKOPENACE, 2015 SCC
FACTS:
 The accused, an Aboriginal man from a First Nation reserve, was charged with second
degree murder and convicted of manslaughter after a trial by judge and jury. Prior to
sentencing, the accused’s counsel learned that there may have been problems with the
inclusion of Aboriginal on-reserve residents on the jury roll for the District of Kenora,
which raised questions about the representativeness of the jury in the accused’s case. The
trial judge refused to adjourn the proceedings to hear a mistrial application, as he
considered himself to be functus officio. The representativeness issue was therefore raised
for the first time on appeal, where fresh evidence was introduced regarding the efforts made
by the province in preparing the jury rolls for the district. The Court of Appeal was satisfied
that the accused received a fair trial and that his jury was not tainted by a reasonable
apprehension of bias or partiality. However, the majority held that the accused’s ss. 11 (d)
and 11 (f) Charter rights had been violated and ordered a new trial. All three judges
rejected the accused’s s. 15 Charter claims.
Moldaver J.: The appeal should be allowed. The order for a new trial is set aside and the conviction
is reinstated.
 The province met its representativeness obligation in this case. The Court of Appeal raised
potential issues with three parts of the process — the lists, the delivery, and the low
response rates. Assessed in light of what was known at the time and against the proper
standard, the province’s efforts to include Aboriginal on-reserve residents in the jury
process were reasonable. Accordingly, there was no violation of ss. 11 (d) or 11 (f) of
the Charter .
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Although the problem of the underrepresentation of Aboriginal on-reserve residents in the
jury system is a serious policy concern that merits attention, the accused’s ss. 11 (d)
and 11 (f) Charter rights are not the appropriate vehicle to address this concern.
The accused’s claims based on s. 15 of the Charter must also be dismissed. With respect
to his personal s. 15 claim, the accused has not clearly articulated a disadvantage. With
respect to his request for public interest standing to advance a s. 15 claim on behalf of
Aboriginal on-reserve residents who were potential jurors, it cannot be granted because the
accused may have different, potentially conflicting interests from those of potential jurors.
Representativeness is not about targeting particular groups for inclusion on the jury roll.
The province was therefore not required to address systemic problems contributing to the
reluctance of Aboriginal on-reserve residents to participate in the jury process.
Efforts to address historical and systemic wrongs against Aboriginal peoples — although
socially laudable — are by definition an attempt to target a particular group for inclusion
on the jury roll.
An accused’s representativeness right is not the appropriate mechanism for repairing the
damaged relationship between particular societal groups and our criminal justice system
more generally.
ANALYSIS
 Representativeness is an important feature of our jury system – required a representative
cross-section of society, honestly and fairly chosen. With respect to the jury roll,
representativeness focuses on the process used to compile it, not its ultimate composition.
 To determine if the state has met its representativeness obligation, the question is whether
the state provided a fair opportunity for a broad cross-section of society to participate in
the jury process. Fair opportunity will be provided when the state makes reasonable efforts
to:
1. Compile the jury roll using random selection from lists that draw from a broad
cross-section of society, and
2. Deliver jury notices to those who have been randomly selected.
 Jury representativeness is captured by both ss. 11 (d) and 11 (f) of the Charter , but it plays
a different role in these two guarantees. The role of representativeness under s. 11 (d) is
limited to its effect on independence and impartiality. A problem with representativeness
that does not undermine these concepts will not violate s. 11 (d).
 The parties in this case focused on the impartiality aspect of s. 11 (d). Even if the petit jury
does not appear to be biased, s. 11 (d) will be violated if the process used to compile the
jury roll raises an appearance of bias at the systemic level. This may occur in two ways:
the deliberate exclusion of a particular group, or efforts in compiling the jury roll that are
so deficient as to create an appearance of partiality. However, where neither form of
conduct exists, a problem with representativeness will not violate s. 11 (d).
 The narrow way in which representativeness is defined in common law means that
impartiality is guaranteed through the process used to compile the jury roll, not through the
ultimate composition of the jury roll or petit jury itself. A jury roll containing few
individuals of the accused’s race or religion is not in itself indicative of bias.
 The role of representativeness in s. 11 (f) is broader: it not only promotes impartiality, it
also legitimizes the jury’s role as the “conscience of the community” and promotes public
trust in the criminal justice system. This broader role creates an important point of
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distinction: while a problem with representativeness will not necessarily violate s. 11 (d),
its absence will automatically undermine the s. 11 (f) right to a trial by jury.
If the state deliberately excludes a particular subset of the population that is eligible for
jury service, it will violate an accused’s right to a representative jury, regardless of the size
of the group affected.
However, if it is a question of unintentional exclusion, it is the quality of the state’s efforts
in compiling the jury roll that will determine whether an accused’s right to a representative
jury has been respected. If the state makes reasonable efforts but part of the population is
excluded because it declines to participate, the state will nonetheless have met its
constitutional obligation.
o In contrast, if the state does not make reasonable efforts, the size of the population
that has been inadvertently excluded will be relevant.
o When only a small segment of the population is affected, there will still have been
a fair opportunity for participation by a broad cross-section of society.
There is no right to a jury roll of a particular composition, nor to one that proportionately
represents all the diverse groups in Canadian society. Requiring a jury roll to
proportionately represent the different religions, races, cultures, or individual
characteristics of eligible jurors would create a number of insurmountable problems.
Karakatsanis J.:
 Fair trial rights under s. 11 of the Charter entitle an accused person to an independent and
impartial jury, drawn from a jury roll that was created through a fair and neutral process of
random selection from broad-based source lists without deliberate or substantial exclusion.
That threshold was met in this case.
 Representativeness does not require a jury roll to mirror what a random sample from the
community would look like. Jury representativeness is aimed at ensuring that the jury can
fulfill its important roles as finder of fact and as the link connecting the judicial process to
the broader community.
 It does not mean that the jury must reflect a cross-section of the community or its different
characteristics or perspectives. It instead describes the functioning of the jury as an
institution, in which laypersons are asked to contribute to the criminal justice process and
to provide the crucial link between that system and the larger community.
 Representativeness requires more than reasonable efforts to use such a process. It is the
adequacy of the process used, rather than the quality of the state’s efforts, which determines
whether or not an accused’s Charter rights were violated.
 Provinces must be given leeway to use a selection process that is practical given the nature
of the source lists generally available. Unintentional exclusion of some segments of the
community from the jury roll does not amount to a constitutional defect. Even the best
source lists will still exclude some, and that inadvertent exclusion may disproportionately
apply to certain groups of people. This alone is insufficient to establish a s.
11 Charter violation.
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D. PRE-TRIAL MOTION (coughlan pgs 253 – 273)
(i) Intended to resolve preliminary legal issues before the trial gets going.
(ii) The TJ s/b the one hearing the motions.
Particular Pre-Trial Motions
 Change of venue, Fitness to Stand Trial, & Charter applications regarding the right to trial
w/in a reasonable time
 Can change the venue if a) it appears expedient to the ends of justice or b) a competent
authority has directed that a jury is not to be summoned at the time appointed in a territorial
division where the trial would otherwise by law be held
o The essential issue is where there is evidence of a general prejudicial attitude in a
community
 Part XX.1 CC sets out procedures to deal w/ accused who have been found not criminally
responsible based on their state of mind.
E. TRIAL WITHIN A RESONABLE TIME APPLICATIONS
(i) Section 11 (b) of the Charter guarantees an accused the right to trial within a
reasonable time. The only remedy for a breach of that right is a stay of proceedings,
which made many judges reluctant to find a breach of that right.
(ii) The result, over several decades, was that section 11(b) did very little to make the
justice system move expeditiously.
(iii) In 2016, in response to what it described as a “culture of complacency towards
deslay”, the SC created a new approach to section 11 (b) which provides judges with
less discretion about refusing a remedy, and which is meant to encourage all justice
system participants – the courts, the Crown, and the defense – to act to speed to the
system.
R v. JORDAN (2016) SCC 27
R v. CODY (2017) SCC 31
XIV.
SENTENCING
A. GENRAL PRINCIPLES OF SENTENCING
(i) NOTE:
1.
Before beginning a sentencing question, first look at what offence for which the
offender is being sentenced:
2.
Is there a minimum sentence? Is there a maximum?
3.
These points will be important for the applicability of some of the sentences.
(ii)
GENERAL PRINCIPLES OF SENTENCING
1.
Mostly codified in the Criminal Code
(a) s718: Lists objectives of sentencing, including denunciation, deterrence,
rehabilitation, reparation etc.
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(b) s 718.01: Offences against minors - the primary objectives are denunciation
and deterrence of such conduct.
(c) s 718.1: Proportionality principle (a fundamental principle of sentencing).
(d) s 718.2: Other sentencing principles court MUST take into account:
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Aggravating and mitigating factors s/b considered
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Sentences s/b similar to those of previous similar offence
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Consecutive sentences s/not be duly harsh
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Offender s/not be deprived of liberty if less restrictive sanctions are
more appropriate.
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Imprisonment s/b a last resort for Aboriginal offenders.
(e) s718.3: discusses: degrees of punishment, discretion respecting punishment,
imprisonment in default where term not specified, cumulative punishments.
(f) s719: discusses: commencement of a sentence, time at large, and
determining the sentences
R v. NASOGALUAK [2010]
FACTS:
 Police received a tip about a drunk driver and they had a high speed chase w/ the accused
 When the pursuit was over he refused to get out of the vehicle and one officer punched
him
 They then reached for the officer and was punched a 2nd time
 Then he was punched a 3rd time and pinned facedown and punched a 4th time in the back
 He suffered broken ribs and a punctured lung
 He was then breathalized well above the legal limit
 The accused entered into a guilty plea for impaired driving and flight from police
 At the sentencing, the judge found that the police actions constituted a violation of s7 and
11(d) of the Charter as the 3rd and 4th punches were unwarranted and therefore excessive
 as a remedy for Charter breaches, the judge granted a reduced sentence – 12 month
conditional discharge on both counts served concurrently, with a 1 year driving
prohibition
 CA agreed the sentence could be reduced pursuant to s24(1) Charter, but held that the
sentence could not fall below the statutory minimum sentence
 they said it was an unlawful interference w/ Parliament
 the conditional discharge was set aside and the minimum $600 fine was imposed
 the Crown appealed the finding of a s7 violation and the use of a reduced sentence
 The accused cross-appealed the decision to set aside the discharge and institute a fine
HELD:
 Crown appeal dismissed and Cross-appeal dismissed
 The CA did not err in finding a s7 Charter violation for excessive force
 There was no error to factor in a reduced sentence however the judge had to work w/in
the parameters of the CC when sentencing
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A sentence reduction outside statutory limits did not generally constitute an “appropriate”
remedy w/in the meaning of s24(1), unless the constitutionality of the statutory limit itself
was challenged
The court did not foreclose the possibility that, in some exceptional cases, a sentence
reduction outside statutory limits could be the sole effective remedy for some particularly
egregious form of misconduct by the state agents in relation to the offence and offender
R v C.A.M [1996]
FACTS:
 The accused pleaded guilty to numerous counts of sexual assault, incest and assault with a
weapon, in addition to other lesser offences, arising from a largely uncontested pattern of
sexual, physical and emotional abuse inflicted upon his children over a number of years
 None of the offences committed carried a penalty of life imprisonment
 The TJ, remarking that the offences were as egregious as any he had ever had occasion to
deal w/, sentenced the accused to a cumulative sentence of 25 years imprisonment
 The CA reduced the sentence to 18 years and 8 months
 The CA concluded that where life imprisonment is not available as a penalty, the totality
principle req’s TJs to limit fixed-term cumulative sentences under the CC to a term of 20
years, absent special circumstances
 This decision was Appealed
HELD:
 The appeal s/b allowed and the sentence of 25 years’ imprisonment restored
REASONING
 W/in the broad statutory maximum and minimum penalties defined for particular offences
under the Code, TJs enjoy a wide ambit of discretion under s717 in selecting a just and
appropriate fixed-term sentence
 The Code is silent with regard to whether there is an upper limit on fixed-term or numerical
term sentences
 It is an established tenet of our criminal law that the quantum of sentence imposed s/b
commensurate w/ the gravity of the offence
 In the context of consecutive sentences, the general principle of proportionality req’s a judge
to ensure that the cumulative sentence rendered does not exceed the overall culpability of
the offender
 Retribution is an accepted principle of sentencing in our criminal law
 It represents the principle that criminal punishment, in addition to advancing deterrence and
rehabilitation, should also be imposed to sanction the moral culpability of the offender
 Retribution req’s that a judicial sentence properly reflect the moral blameworthiness of the
particular offence
 The CA erred in reducing the accused’s sentence
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R v. PRIEST [1996] (Sets out sentencing principles re: (1) appropriate sentences where crime
committed in an area of high incidence of the relevant crime; (2) first time offenders; (3)
proportionality of sentences)
FACTS:
 A 19 year old appellant broke into a convenience store and stole $2700 worth of goods
 The owner went to the appellant’s house and he admitted to the crime and returned the
goods
 At the trial he was not represented by counsel and he had no prior criminal record
 The crown recommended 30-60 days and the main reason the TJ gave for the sentence
was because of the prevalence of break and enter in the community
 The entire proceedings took 5 mins
HELD:
 Appeal was allowed and the sentence was varied to time served (5 weeks) + 1 year
probation
REASONING:
 While the prevalence of crime in a community could be taken into account, it is ONE
factor and can’t be determinative of the sentence
 Must look at the offence and the offender when deciding a sentence
 The primary objectives in sentencing a first offender are individual deterrence and
rehabilitation
 Except for very serious offences and offences involving violence, these objectives are not
only paramount but best achieved by either a suspended sentence and probation, or a very
short term of imprisonment followed by a term of probation
 Court should consider all other dispositions before imposing a custodial sentence
 s718(c) instructs that separation of offenders from society is an appropriate objective of
sentencing “WHERE NECESSARY”
 s718.2(d) directs that an offender should not be deprived of liberty if less restrictive
sanctions may be appropriate in the circumstances
 Proportionality is a fundamental principle of sentencing
 The sentence imposed by the TJ in this case was wholly disproportionate to what
occurred
 This was a break-in of non-residential premises
 There were a number of mitigating factors that were completely ignored by the TJ
 The appellant had no prior record; he confessed to the offence; he returned all of the
stolen goods; and he pled guilty at an early opportunity
 The TJ was req’d to give effect to these mitigating factors in imposing sentence on this
appellant
 While I hesitate to label the sentence grossly disproportionate, it approaches that
standard. It was well above the threshold of the "clearly unreasonable" or "demonstrably
unfit" sentence requiring intervention by this court
 For the foregoing reasons, we allowed the appeal and reduced the sentence
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R v. BOUCHER [2004] ((1) Appropriate sentence for cases involving domestic violence; (2)
Aggravating factor of “planned and persistent” conduct)
FACTS:
 Boucher was convicted of attempting to murder his wife and 2 counts of threatening her
 He followed his wife’s car with his own while intoxicated
 He drove his car into hers and caused her vehicle to spin while he drove into a ditch
 He phoned a family member and told them that he had tried to kill his wife and himself
 He testified that he only intended to talk to her
 He was sentenced to two years less a day imprisonment in addition to 28 months credit
for time served on the attempted murder charge
 He was also sentenced to 30 days concurrent imprisonment for the threatening charges
 He was given 2 years probation
 He had no prior record, he spent 14 months in presentence custody
 The sentence was appealed by the Crown
HELD:
 Appeal allowed
 Principles of denunciation and deterrence are paramount in cases involving domestic
violence
 While it is true that the complainant did not suffer any physical injuries, in the context of
an attempted murder, the absence of physical injuries is a function of chance and does not
necessarily justify a significant reduction in the range of sentence that is otherwise
appropriate
 In addition to the aggravating feature of a domestic context, there is an additional
aggravating factor present in this case that appears to have been present in some, but not
all, of the authorities relied on by the Crown, namely, the planned and persistent nature of
the respondent’s conduct
 Despite the foregoing conclusions, I would not interfere at this time with the sentence
that was imposed by the TJ, other than to vary the period of probation from two years to
three years
 In all of the circumstances, I do not consider that it would be in the interests of justice to
re-incarcerate the appellant at this time
[2]
PROCEDURE
s720: a court should as soon as practicable sentence the offender; s720(2) says the court may,
with the
consent of the AG, delay sentencing until the offender attends a treatment program
s721: If req’d by the court a probation officer may produce a report to help with sentencing
s722: the court may hear a statement by the victim of the offence when considering sentencing
s723: The court, before sentencing, will hear submissions from both the prosecutor and
offender. Hearsay
evidence is admissible at this stage
s724: the court may accept as proved any information at the trial or sentence proceedings any
facts agreed
184
upon by the prosecutor and offender
R v Bremner [2000] (judge placed too much weight on victim impact statement)
FACTS:
 Appeal by Bremner from four concurrent sentences of 18 months incarceration
 Convicted of indecent assault occurring in the 60s and 70s when he was in his 20s
 The complainants were aged bt/ 13-16 years
 He subsequently married and had two grown sons
 He had stable employment and no criminal records, and psychologist report says low risk
of recidivism
 Complainants provided victim impact statements w/ someone evidence not properly
before the court
 At trial the judge found that Bremner was not a pedophile
 At sentencing the judge focussed on denunciation, general deterrence and restitution
 TJ determined that a conditional sentence was not appropriate b/c Bremner did not admit
his actions
HELD:
 Appeal allowed
 The judge placed too much reliance on the victim impact statements
 The victims should not have suggested the sentence to be impose
 Revenge was not proper consideration of sentencing
 The court should have sanctioned the Crown for its inference that Bremner was a
pedophile
 The fact that Bremner had not shown remorse did not preclude a conditional sentence
R v Cromwell [2005] (judge can reject a joint submission for a conditional sentence)
FACTS:
 Cromwell appeals a 5 month imprisonment, 1 year probation & 2 year driving prohibition
for impaired driving causing bodily harm and breach of regonizance
 He was responsible for an accident that injured 4 people
 He was released on bail and failed to appear for court - was later arrested for breach of
recognizance
 He had an untreated substance abuse problem
 The sentencing judge considered joint submissions for a conditional sentence, but found
that it would not represent adequate deterrence, denunciation and protection of public
HELD:
 Appeal dismissed
 The judge gave the recommendation serious consideration and provided sound reason for
rejecting it
 The judge did err in not providing counsel w/ an opportunity to make further submissions
in support of the sentence, the additional information would not have altered the result
 The rejection of the joint submission was warranted in the circumstances
[3]
TYPES OF SENTENCES
185
[a] Incarceration
s732: when the court imposes a sentence of imprisonment of 90 days or less, the court can
consider the age
and character of the offender and order the sentence to be served intermittently
s743: everyone convicted of an indictable offence for which no term is specified shall serve no
> 5 years
s743.1: people convicted for life or > 2 years shall be sentenced to imprisonment in a penitentiary
s745: terms of life imprisonment and eligibility for parole
s718.3(4):
discusses cumulative sentences
s 718.2(e): Imprisonment should be used as a sentence of last resort, particularly w/ Aboriginal
offenders
[b] Conditional Sentence of Imprisonment
s 742.1: This s authorizes service of a sentence of imprisonment in the community in certain
circumstances.
Some offenders are excluded (e.g. those convicted of a serious personal injury offence:
s752, or an offence punishable by a minimum term of imprisonment). To impose this
sentence, the following req’s must be met:
(i) the sentence of imprisonment is imposed for less than 2 years;
(ii) the service of the sentence in the community wouldn’t endanger the safety of the
community;
(iii) the sentence would be consistent with the fundamental purpose and principles of
sentencing
S 742.3: (1) Outlines the compulsory conditions of such an order; (2) Outlines optional
conditions
R v Proulx [2000]
 This case establishes the following:
 (1) A conditional sentence, unlike probation, is aimed at both punitive AND rehabilitative
aspects; probation is aimed at a rehabilitative sentence;
 (2) Sets out the process a judge must go through when imposing a conditional sentence;
 (3) General principles re: conditional sentences)
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The accused entered guilty pleas to one count of dangerous driving causing death and one
count of dangerous driving causing bodily harm
(1) A conditional sentence should be distinguished from probationary measures
Probation is primarily a rehabilitative sentencing tool
By contrast, Parliament intended conditional sentences to include both punitive and
rehabilitative aspects
Therefore, conditional sentences should generally include punitive conditions that are
restrictive of the offender’s liberty
Conditions such as house arrest should be the norm, not the exception
(2) s742.1 of the Code lists four criteria that a court must consider before imposing a
conditional sentence:
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[c]
(1) the offender must be convicted of an offence that is not punishable by a minimum
term of imprisonment;
(2) the court must impose a term of imprisonment of less than two years;
(3) the safety of the community would not be endangered by the offender serving the
sentence in the community; and
(4) a conditional sentence would be consistent with the fundamental purpose and
principles of sentencing set out in ss. 718 to 718.2.
Interpreting the req’t that judge must impose a sentence of imprisonment of less than 2
years:
(1) In a preliminary determination, the sentencing judge should reject a penitentiary term
and probationary measures as inappropriate;
(2) Having determined that the appropriate range of sentence is a term of imprisonment
of less than two years, the judge should then consider whether it is appropriate for the
offender to serve his or her sentence in the community.
The req’t in s742.1(b) that the judge be satisfied that the safety of the community would
not be endangered by the offender serving his or her sentence in the community is a
condition precedent to the imposition of a conditional sentence
Two factors should be taken into account:
(1) the risk of the offender re-offending; and
(2) the gravity of the damage that could ensue in the event of re-offence
Once the prerequisites of s742.1 are satisfied, the judge should give serious consideration
to the possibility of a conditional sentence in all cases by examining whether a
conditional sentence is consistent with the fundamental purpose and principles of
sentencing set out in ss718 to 718.2
This follows from Parliament’s clear message to the judiciary to reduce the use of
incarceration as a sanction
A conditional sentence can provide significant denunciation and deterrence
As a general matter, the more serious the offence, the longer and more onerous the
conditional sentence should be
There may be some circumstances, however, where the need for denunciation or
deterrence is so pressing that incarceration will be the only suitable way in which to
express society’s condemnation of the offender’s conduct or to deter similar conduct in
the future
(3) Generally, a conditional sentence will be better than incarceration at achieving the
restorative objectives of rehabilitation, reparations to the victim and the community, and
promotion of a sense of responsibility in the offender and acknowledgment of the harm
done to the victim and the community
A conditional sentence may be imposed even where there are aggravating circumstances,
although the need for denunciation and deterrence will increase in these circumstances
No party is under a burden of proof to establish that a conditional sentence is either
appropriate or inappropriate in the circumstances
The judge should consider all relevant evidence
Probation and Community Service
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s731: If person convicted of an offence, having regard to the age and character of the offender,
the nature of
the offence and the circumstances surrounding the offence, a probation order may be
made
(a) if no minimum punishment is prescribed OR
(b) in addition to fining or sentencing the offender to imprisonment for a term not
exceeding 2 years
s732.1: when the court imposes a sentence of imprisonment of 90 days or less, the court can
consider the age
and character of the offender and order the sentence to be served intermittently
s732.2: discusses when probation comes into force
s733.1: discusses failure to comply with a probation order
R v Ziatas [1973]
 An application for leave to appeal and an appeal by the accused from the sentence
imposed on him
 He pleaded guilty to assault w/ intent to resist arrest & was fined $150 and 1 year
probation
 One of his conditions of probation was that he not operate a vehicle for one year
HELD:
 Appeal allowed and the condition that he not operate a vehicle is struck out of the
probation order
 The appellant’s counsel argued that s238 CC allows a judge to prohibit operating a
vehicle for the offences listed under s238
 Since the offender was not charged with an offence listed under s238, the appellant’s
counsel argued that judge did not have the jurisdiction to impose this condition
 The CA did not discuss whether the TJ had jurisdiction or not
 CA agrees that he imposed this as additional punishment, however he did so based on the
wrong principle
[d] Fines
s734, s734.6, s734.7, s736, s787
[e] Absolute or Conditional discharge:
s730: a court may order a conditional or absolute discharge
R v Fallofield [1973]
 an appeal from his sentence for possession of stolen property
ISSUE:
 did the provincial court err in refusing to grant an absolute or conditional discharge?
 If yes, does the court have the power to make such an order
HELD:
 CA the answer is yes to both questions
 Appeal was allowed and the accused was discharged
 The accused had no previous records, was married, and was a corporal in the army
 He was found with stolen property under $200
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The police officer said that the accused turned over the stolen carpet and found that he
was friendly and co-operative
The officer would agree that he was foolish rather than being a theif
At the hearing, the appellant’s counsel applied for a conditional discharge under
s662.1(1)
The TJ declined and gave him a fine of $100, or in default, 30 days in prison
The basis of the refusal was that he did not think it was a case of strict liability or that it is
a case where the offence being committed was entirely completely unintentional or
unavoidable
CA held that the TJ proceeded on the wrong principle
There is nothing in the language of the section that limits its application
[f] Recognizance Orders
s810: An information may be laid before a justice where a person fears on reasonable grounds
that another
person will cause harm to them, a partner, child etc. A justice, if satisfied on the
evidence, can order that the defendant enter into a recognizance, with or without sureties,
to keep the peace and be of good behaviour
s810.01, 810.1, 810.2 (fear of terrorism, fear of sexual assault, fear of serious personal injury
offence)
s811: Discusses breach of recognizance
R v Budreo [2000]
 s810.1 CC permits to impose a recognizance on any person likely to commit any one of a
number of listed sexual offences against a child under the age of 14 and to prohibit that
person for up to one year of engaging in activities or attending places where children
under 14 are likely to be present
 this can be imposed though the person has not committed the offence and has no previous
criminal record
 the appellant was a pedophile and had a long record of sexual offences against young
boys
 in 1994 Budreo was released from prison for serving time for 3 convictions of sexual
assault
 the Crown sought a recognizance under s810.1
 the appellant brought an application to prevent the order and also to declare that s810.1
was unconstitutional b/c it violated ss7,9,11, and 15 Charter
 Then J concluded that s810.11 was constitutional except in 2 respects
o 1) he declared “community centre”, one of the places a person could be prohibited
from attending was overly broad and contrary to s7 Charter and could not be
justified by s1
o He found that s8120.1(2) which req’d a provincial court judge to cause the parties
to appear before the court, infringed ss7 and 9 Chart and could not be justified by
s1
 the remedy was to read down the word “shall” in s810.1(2) to read “may”
 Budreo appealed and was supported by the Canadian Civil Liberties Association
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HELD:
 Appeal dismissed b/c the CA agrees with the reasons given by Then J
REASONING:
 The purpose of s810.1 is not to punish crime, but to prevent it from happening
 Its sanctions are not punitive nor are they intended to redress a wrong
 s810.1 does not create a status offence, as the appellant tried to argue, it is a preventative
measure
 CA does not believe that s810.1 is overbroad
[g] Restitution
s738-s741.2 inclusive
s738: Where an offender is convicted or discharged, the court imposing sentence or discharging
may, IN
ADDITION TO ANY OTHER MEASURE imposed on the offender, order that the
offender make restitution to another
 the section lists a number of scenarios where restitution can be ordered
 e.g. payments for damaged property; and payments to victim who suffered
pecuniary loss as a result of psychological or bodily harm delivered by the
convicted
[h] Victim Surcharges:
s737(1):
Where D is convicted or discharged of an offence, a victim surcharge may be
imposed upon him/her,
in addition to any other punishment.
 Consideration is made as to whether or not such a penalty would result in undue hardship
to the convicted
[i] Sentencing Aboriginal Offenders
s718.2(e):
req’s that all available sanctions other than imprisonment be first considered with
all offenders, with
“particular attention to the circumstances of aboriginal offenders”
R v GLADUE [1999]
FACTS:
 A 19 year old aboriginal woman stabbed her husband to death
 She was sentenced to 3 years imprisonment
 She suspected her husband of cheating with her sister
 She had a blood alcohol level content b/t 155-165mg per 100ml of blood
 At sentencing, the judge took several mitigating factors into account
o She was a young mother
o Apart from an impaired driving conviction, she had no criminal record
o Her family was supportive and she attended alcohol abuse counselling
o She was provoked by the victim’s insulting behaviour and remarks
o She had hyperthyroid condition which caused her to overreact to emotional
situations
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The judge decided that a the principles of denunciation and general deterrence must play
a role in sentencing, also noted the need for rehabilitation of the accused
TJ decided that a conditional or suspended sentence was inappropriate
He noted that there were no special circumstances arising from the aboriginal status of
the accused and the victim that he should consider
Both were living in an urban area off-reserve and not “w/in the aboriginal community”
HELD & REASONING:
 Appeal dismissed
 Overreliance upon incarceration is a particular concern in the sentencing of aboriginal
Canadians
 The provision may properly be seen as Parliament’s direction to members of the judiciary
to inquire into the causes of the problem and to endeavour to remedy it, to the extent that
a remedy is possible through the sentencing process
 The Court identified 2 unique circumstances of Aboriginal offenders:
 (1) The systemic factors which often play a part in bringing the specific offender before
the courts; and
 As a practical matter, the Court does not require each Aboriginal offender to provide the
sentencing judge with a history of the discrimination faced by Aboriginal people in
Canada
 Rather, the Court states that judges must take judicial notice of these factors
 It is important to note that the Court states that the provisions of s718.2(e) apply to all
Aboriginal offenders
 It does not matter if the person is a status or non-status Indian, Metis or Inuit person - the
sectioin applies equally to all (para 90)
 Similarly, it does not matter if the person lives in an urban area and/or has been totally
estranged from his or her culture - the s still must be applied
 The provisions of the section must be applied in all cases where the offender
identifies him or herself as an Aboriginal person and provides some evidence as to
how their Aboriginal identity has had a part to play in understanding why they are
before the court
 (2) The types of sentencing approaches that might be appropriate to the offender because
of his or her Aboriginal heritage
 Restorative justice approach is relevant when sentencing aboriginal offenders
 The Court broadly terms these approaches “restorative justice” approaches
 It describes restorative justice as: “an approach to remedying crime in which it is
understood that all things are interrelated and that crime disrupts the harmony which
existed prior to its occurrence, or at least which it is felt should exist
 The appropriateness of a particular sanction is largely determined by the needs of the
victims, and the community, as well as the offender
 The focus is on the human beings closely affected by the crime”
 The Court makes it clear that a sentence that is intended to address restorative justice
concerns should not be seen as necessarily ‘lighter’ than a sentence of imprisonment
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The Court also cites articles that suggest that in some circumstances, a restorative justice
sentence might impose greater burdens on an offender than jail, particularly if there are
probation terms incorporated into the sentence
Community-based sanctions coincide with the aboriginal concept of sentencing and the
needs of aboriginal people and communities
It is often the case that neither aboriginal offenders nor their communities are well served
by incarcerating offenders, particularly for less serious or non-violent offences
The Court makes it clear that the fact that an offender is an Aboriginal person will not
automatically result in a non-prison sentence
The Court also indicates that the more violent the offence, the more likely that the
sentence will involve imprisonment, although the Court indicates that perhaps the term of
imprisonment might be less in the case of an Aboriginal offender as opposed to a nonAboriginal offender
The absence of alternative sentencing programs specific to an aboriginal community does
not eliminate the ability of a sentencing judge to impose a sanction that takes into account
principles of restorative justice and the needs of the parties involved
If there is no alternative to incarceration the length of the term must be carefully
considered
The jail term for an aboriginal offender may in some circumstances be less than the term
imposed on a non-aboriginal offender
HOWEVER, s718.2(e) is not to be taken as a means of automatically reducing the prison
sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a
more lenient sentence simply b/c incarceration is not imposed
s718.2(e) applies to all aboriginal persons wherever they reside
In this case, the sentencing judge may have erred in limiting the application of s718.2(e)
to the circumstances of aboriginal offenders living in rural areas or on reserve
Moreover, he does not appear to have considered the systematic or background factors
which may have influenced the accused to engage in criminal conduct
Although in most cases, such errors would be sufficient to send the matter back for a new
sentencing hearing, in THESE circumstances, it would not be in the interests of justice to
order a new hearing in order to canvas the accused’s circumstances as an aboriginal
offender
[J] Punishment of Organizations
s718.21:
discusses the factors to be considered when sentencing an organization
s735: discusses fines to be imposed on organizations
[k] Parole
743.6: Where an offender is sentenced to a term of 2 years of imprisonment or more on
conviction of an
offence set out in Schedule I or II that were prosecuted by way of indictment, the court
may order that the portion of the sentence that must be served before the offender may be
released on full parole is ½ of the sentence, or ten years, whichever less (having regard to
the circumstances of the offence, characteristics of the accused etc)
745.2: after a jury finds an accused guilty of 2nd degree murder, he must ask them for a
recommendation on
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the minimum time an accused must serve before being eligible for parole
R v Zinck [2003]
FACTS:
 Accused pleaded guilty to manslaughter of his neighbour
 He was sentenced to 12 years imprisonment and was ordered that his parole eligibility be
delayed for 6 years under s743.6 CC
 He appealed the delay and the CA upheld the sentence
 He appeals again to the supreme court of justice
HELD:
 Appeal should be dismissed
 In general, delaying parole must be used in a manner that is fair to the offender
 The judge must first determine the appropriate punishment for the crime, weighing all the
relevant factors
 Then the analysis may shift to the exercise of power to delay parole
 s743.6 should not be applied in a routine manner; judge must apply again the sentencing
factors
 in the 2nd balancing, priority is given to factors of general and specific deterrence as well
as denunciation
 the prosecution has the burden of proving the additional punishment is req’d
 delayed parole should not be ordered w/o necessity
 there is no obligation on the Crown to give a written notice that delayed parole will be
applied for
 fairness req’s only that the offender be informed clearly that s743.6 application is being
made
 the offender must be allowed to make submissions and to introduce additional evidence if
needed
 the offender is entitled to reasons at the end of the process which state clearly why a
delayed parole is made
 In this case, the TJ did not err in his application of s743.6
 Although his reasons were not extensive, they were enough for the appellate court to
ascertain and review the basis of his order
 The TJ carefully reviewed all relevant facts
 The Crown asked for delayed parole and the defence was given sufficient opportunity to
respond, but failed to use it
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XV. APPEALS AN DREVIEW
A. APPEALS OF FINAL DECISIONS AND JUSIDICAL REVIEW OF INTERIM
DECISIONS
Appeals of indictable offences
(a) Appeals by the accused
- s 675(1)(a) lists the grounds of appeal
- s 686(1)(a) lists grounds on which court of appeal can grant appeal: (i) verdict set aside b/c
unreasonable or cannot be supported by the evidence; (ii) wrong decision on a question of law;
(iii) on any ground that there is a miscarriage of justice
- s 686(1)(b) (follows s 686(1)(a): this section sets out grounds on which an appeal can be
dismissed (other than dismissing if none of the grounds for “granting” are made out) [See statute
for how the sections in (a) relate]
- It has been suggested that the underlying theory of s 686(1)(a) is miscarriages of justice (R v
Morrisey)
- See p 355 for options after granting appeal under s 686(1)(a)
- Note: appeal can be in relation to sentencing too
Standard of review
- Varies depending on ground of appeal
- Pure questions of law, standard of review is correctness (so appellate court can substitute
opinion); questions of fact should not be overturned in the absence of a “palpable and overriding
error”’; etc
Unreasonable verdicts
- Ask whether the verdict is one that a properly instructed jury acting judicially could reasonably
have rendered (R v Yebes). Could the TJ have reached its conclusion on the evidence before it?
- Works in judge or jury trials; harder in jury ones though
- What about overturning decision if TJ’s reasoning process was unreasonable? Yes (Beaudry)
Errors of law and miscarriages of justice
- These are similar – indeed they are all similar, in that miscarriage of justice underpins all of
them
- No requirement that verdict was not supported by evidence
- An “error of law” is any decision that was erroneous interpretation or application of the law (R
v Khan) (note that the curative provision applies to this ground) (e.g of error of law review:
where there is a air of reality to a defence and TJ instructs jury there is no air of reality)
- Miscarriage of justice can either be substantive or procedural (e.g. if the error at trial is one of
mixed fact and law, e.g. ineffective legal counsel
The curative provision
- Section 686(1)(b)(iii) allows a court of appeal to dismiss an appeal despite an error of law
provided no “substantial wrong or miscarriage of justice has occurred”
- see test on p 362
Procedural irregularities
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(b) Appeal by Crown
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