Constitutional/Charter Challenges
Criminal law = valid criminal law purpose (e.g. harm prevention)
backed with prohibition + penalty (Malmo-Levine; Caine); Must
comply with the constitution and Charter (Sharpe; Heywood)
If Charter violation, gov’t must justify the law under s1 (Oakes):

Must show pressing and substantial objective

Means are reasonable and demonstrably justified
o Rationally Connected
o Minimally Impairing
o Not Grossly Disproportionate
s 7 All laws impacting life, liberty, and security of the person must
comply w/principles of Fundamental Justice (Canada v Bedford):

Not overly vague

Not arbitrary

Not overly broad

Not grossly disproportionate
Judicial Remedy: Stay of Proceedings (Canada v Tobiass)
functionally the same as an acquittal
Two types: no reliable inquiry into truth caused by state; state
misconduct (goes to rep of justice system); Test:
1. Prejudice will occur, continue, or be exacerbated by
continuing trial
2. No other remedy will eliminate prejudice
3. *balance affront w/public interest in decision on merits
s 10(b)—rights on arrest or detention: right to consult lawyer
without delay & to be informed of this right—has information and
implementation components (Sinclair)
Police must facilitate accused contacting a lawyer; must not
question accused until they have had opportunity to contact
lawyer once 10(b) right is invoked (Manninen)
If waiving 10(b) right, must do so explicitly & with the
understanding of consequences; right includes access to duty
council and legal aid if meets criteria (Brydges)
Must be given reasonable time to access/retain a lawyer; if takes
a while to see duty council, must wait to question accused
(Prosper)
Does not include right to have lawyer present during questioning
(Sinclair); Cannot stop interrogation by invoking right to remain
silent (Singh)
Can seek additional advice from counsel (if not present) during
questioning only in certain circumstances (Sinclair):

Change in procedure (e.g. polygraph, lineup)

New jeopardy/charges

Reason to believe first advice was deficient or cop starts
denigrating lawyer/advice

Client is confused about options/didn’t understand initial
advice
s 11(b)—right to trial within a reasonable time: if not tried within
reasonable time, stay of proceedings granted
1. Start with guideline for reasonable time: PC = 14-15 mos;
SC/CA = 22-24 mos (Morin)
2. Then contextualize (Morin):

look @ complexity of case: more complex, more time

look @ defence conduct:

did they ask for delay (official waiver); did they show real
concern for speed of trial, diligent in asking for disclosure
etc. (general conduct)


Look @ Crown conduct: late disclosure?
Look @ prejudice to the accused

Liberty interest (onerous bail conditions, no bail)

Personal impact (health, employment etc.)

No full answer & defence (evidence no longer available
due to delay)
s 8: protection against unlawful search & seizure: if search
violates s 8, evidence may not be admissible
For valid S&S (Hunter v Southam):

Prior authorization—search w/o prior auth will be prima
facie unreasonable; party searching can rebut

Person giving prior auth must be able to eval evidence
in impartial manner; must be convinced on probable and
reasonable grounds there is offence being committed and
evidence exists at location on application
Protects one’s reasonable expectation of privacy—factually
specific inquiry; merely inviting others into your space doesn’t
negate expectation of privacy (Wong)
Factors—when police access info, s8 issue? (Plant):

Nature of the info & subj. feelings about info

Nature of relationship between party giving info and party
asserting confidentiality

Place & manner in which info obtained

Seriousness of crime being investigated
*Don’t need warrant to search public record (Plant)
Factors—reasonable expectation of privacy for a certain person
at a certain place (Edwards):

Presence at the time of the search

Possession or control of property or place that is searched

Ownership of the property or place being searched

Historical use of property or item

Ability to regulate access (to invite and exclude)

Subjective expectations of privacy

Objective reasonableness of the expectation
Places w/reasonable expectation of privacy: bus locker, phone,
backpack, briefcase, computer
Places w/o reasonable expectation of privacy: girlfriend’s house
(Edwards); if passenger, car trunk (Belnavis); garbage bins
Statutory Interpretation
Interpreting Term: Look for similar terms defined in the code or
code section to assist in giving meaning (Clark)
Interpreting fault standard: look to evolution of leg. over time;
look at words used (do they convey awareness); compare
wording to statutes with clear fault standards; use fault standard
to limit scope of law where needed (ADH)
“While committing” does not need to be simultaneous, just close
temporal relationship (Pare)
Reverse onus wording: “establishes” = prove on BOP; “unless
there is evidence to contrary” = raise RD
Essential Elements
Must prove identity (Sheppard) & all elements on the charging
sheet as particularized (Saunders) *date and location are
flexible; Must prove both AR & MR BRD; both must overlap at
some point during the offence (Cooper)
Burden of Proof
Always on the Crown (Lifchus); Must prove each EE BRD, not
each piece of evidence (R v Morin) *exception: reverse onus in
some offences—accused must show they didn’t do it (Oakes)
Must bring evidence on each EE; if no evidence upon which a
properly instructed jury could convict, must acquit = directed
verdict (Charemski)
BRD standard: based on reason and common sense; logically
connected to evidence/lack of; not the same as moral certainty
(Lifchus); between absolute certainty and BOP—v close to
absolute certainty (Starr)
If using vetrovec witness, must point to corroborating evidence
(R v Kyllo)
Actus Reus
Can be voluntary act or voluntary omission (Fagan) that causes
certain conduct—must be factual and legal cause—or occurs in
certain circumstances
Causation: do not have to be only cause, just make more than
minimal contribution (Smithers)

Manslaughter: more than minimal contribution (Smithers)

2nd Degree Murder: significant contribution (Smithers’ test
from Nette)

1st Degree Murder: actions form essential, substantial and
integral part of killing (s 231(5) in Harbottle); is a higher
degree of participation, not higher standard (Nette); other
than 231(5), use significant contributing cause
Intervening Acts & Causation: 2 part test (Maybin)

Reasonable Foreseeability—could one foresee general
circumstances? More unusual  less foreseeable

Independence—are initial and intervening act independent?
More independent  less foreseeability
Mens Rea
Awareness of circumstances constituting actus reus; the “guilty
mind”; does not include motive
Subjective Intent:

General intent—prove general thought process

Specific Intent—prove narrow intent “for the purpose of”; met
by knowledge
Ways of Proving Subjective Intent:

Absolutely certain of consequences of actions

Substantially certain of consequence of actions

Wilful Blindness = deliberately remaining ignorant (Briscoe)

Recklessness = aware of risks of conduct, but does it
anyway (Sansregret)
Availability of Recklessness: look at wording, related statutes,
prior cases, breadth of statute

Likely YES = “recklessly”; subjective MR offence with broad
language (Buzzanga)

Likely NO = “knowingly”, “intentionally”, “wilfully”, “for the
purpose of” (Buzzanga)
Non-subjective Fault: Strict Liability Offences
Strict Liability--wording of “cause” or “permit” (Sault Ste Marie)
Have modified objective standard—conduct must be “marked
departure” from the actions of reasonably prudent person
(contextualize reasonableness in the circumstances) (Beatty)
*Unlawful act manslaughter can have strict liability fault
standard (Creighton)
Reg. offences (in statute with penalty provision): have objective
fault standard (not marked departure; use took reasonable steps)
& defendant can raise defence = strict liability:

due diligence on BOP (Sault Ste Marie);

officially induced error on BOP (Levis (City) v Tetreault)
s 21(2)—“while committing”: objective fault standard; agree to do
crime A, crime B happens while committing crime A, guilty for
crime B (Mills)
Constitutional Requirements for Fault Standards

Cannot combine absolute liability and jail; need some
proportionality between level of fault and level of punishment
(Re s94(2) BC MVA; Vaillancourt)

Not all criminal offences require subjective fault—can be
objective or strict liability (DeSousa)

Offences requiring subjective fault:
o Murder—for principal & a/a (Martineau)
o Attempted murder (Vaillancourt)
o Theft (Vaillancourt)
Attempts
If have intent to commit offence and do anything for the purpose
of carrying out the offence, whether or not it is possible, guilty of
attempt (s 24(1)); Attempts are included offences (s 660)
AR = more than mere preparation (Cline); factually specific
analysis (Deutsch v the Queen) Must have same MR as full
offence & subjective intent; recklessness not likely available
(Ancio)
*attempted murder requires subjective foresight of death
(Logan); cannot convict for attempted murder under 229(a)(ii)—
less than full intent to kill (Ancio)
Does not matter if crime was factually or legally impossible;
exception: imaginary crimes (US v Dynar)
Conspiracy
Two or more people agree to commit an offence
Not included offence, must charge under s465
AR = agreement of a common design; MR = intent to commit
offence; at least two parties must truly agree; factual/legal
impossibility not a defence (exception: things you think are
crimes but actually aren’t) (US v Dynar)
Group Participation/Parties to an Offence
s. 21(1)—parties to an offence; legally, principal, aider, and
abettor are the same thing (Thatcher)
can be multiple principal offenders; need to intend actions to
aid/abet (H(LI))
Mere presence is not enough to be aiding/abetting—can infer
more than mere presence (e.g. remote location, there for a long
time) (Jackson)
Wilful blindness available for aiders/abettors; recklessness is not
(Dunlop & Sylvester)
Aiding/abetting needs more mens rea: if principal = objective,
aider/abettor needs subjective (conflicts with Jackson) (Helsdon)
Areas of Offences
2.
Against the Person: Aggravated Assault s 265(1)
Has general intent; 3 elements (Foti)
1. Intentional application of force or threat of application of
force with means to carry out
2. Objective foresight of risk of harm
3. Victim wounded, maimed, or disfigured
3.
Against the Person: Discharge of Firearm w/ intent to wound s
244: specific intent crime; 2 elements (Foti)
1. Proof of intent to wound
2. Actual wounding
Financial: Fraud s 380(1): subjective fault; recklessness
available; 2 elements (Theroux)
1. Act or omission of deceit, falsehood, or other fraudulent
means (objective standard) & subjective knowledge of the
act
2. Deprivation (or risk of) caused by act or omission and
subjective knowledge of deprivation
Against Admin of Justice: Perjury s 131(1): recklessness not
included; elements (Buzeta)
1. False statement made under oath to person authorized by
law
2. Knowledge statement is false
3. Intent to mislead
Possession: Def’n of possession in s 4(3); subjective intent; 2
elements (Muthuthevar)
1. Knowledge that substance was there
2. Control (to some degree) over substance
Defences
3 categories:
1. Crown hasn’t proven an EE—always available; accused
must raise RD
2. Circumstances negating Crown’s ability to prove EE—needs
AOR; if defence raises a RD, acquit
a. Mistake of Fact
b. Intoxication
3. Actions were excusable or justified—needs AOR; crown
must disprove element of defence BRD
a. Self-Defence (justification)
b. Necessity (excuse)
c. Duress (excuse)
d. Provocation (partial excuse)
Air of Reality: is there evidence upon which properly instructed
jury acting reasonably could acquit if believed evidence to be
true; assume evidence credible & reliable; applied to each
element of defence (Cinous)
Mistake of Fact: negates MR for those that are not morally
culpable; must show reasonable and mistaken belief (Ewanchuk)
Mistake of Law: honest belief something is not illegal; not a
defence (s 19); relevant in sentencing; parliament can write
offence so knowledge of illegality is required
Self-Defence: have right to defend self or others in certain
situations; does not apply if use/threat of force is from someone
lawfully carrying out law enforcement, unless believe they are
acting unlawfully (s 34);
Requirements:
1. Reasonable belief in use or threat of force against self or
other person
Act that is offence committed for purpose of protecting self
or other from use/threat of force
Act was reasonable in circumstances (see 34(2))
a. Intoxication not taken into account in assessing
reasonableness (IAOS)
Must be both subjectively and objectively reasonable for 34(1)(a)
& (c) (Cinous); use modified objective standard—account for
certain circumstances of the accused, expert evidence may help
show reasonableness; imminent danger strengthens defence but
is not required (Lavallee); prior events can help determine if
belief is reasonable (Petel)
Necessity: defence of true moral involuntariness; 3 requirements
(Latimer):
1. Imminent peril or danger (virtually certain to occur)
2. No reasonable, legal alternative
3. Proportionality between harm inflicted and harm avoided (2
harms of comparable gravity)
*1&2—modified objective standard; 3—objective
Duress (s 17): focused form of necessity; is list of offences to
which defence does not apply in s 17—list applies to principal
offenders, but not aiders/abettors
Duress (CL): more flexible; can be used by principal (if offence
not on list) or aider/abettor; requirements (Hibbert; Ryan):
1. commit offence under threat of harm; reasonable belief
threat will be carried out
2. no safe avenue of escape (modified objective)
3. proportionality between harm caused and harm avoided
(modified objective)
Threat of harm can be to accused or 3rd party; threat need not be
immediate, but close temporal link; person making threats need
not be present (Ruzek)
Must be compelled to commit specific offence against 3 rd party;
not available to those involved in conspiracy or as a party and
know threats to commit offence are possible consequence
(Ryan)
Intoxication: can negate MR of specific intent & reduce to general
intent e.g. murder to manslaughter (Advanced Intoxicationpartial) (Daley); can negate MR of general intent (Extreme
Intoxication—complete) (Daviault)
*s 33.1(3)—cannot apply to assaultive offences or interference
w/bodily integrity of another
Provocation (s 232(1)): only reduces murder to manslaughter;
need sudden provocative act sufficient to deprive ordinary
person of control
Mental Disorder
NCRMD = s 16—not criminally responsible for act or omission
made while suffering from mental disorder that:

renders incapable of appreciating nature and quality of
actions; OR

prevented them from knowing it was wrong
*Must prove both elements BRD—that have MD and that it
prevented you from one of the 2 options: Presumed sane—
presumption constitutionally valid—violates 11(d) but saved
under 1 (Chaulk & Morrissette)
Person found NCRMD must be discharged absolutely unless
they pose “significant threat” to public (s 672.54); finding of sig.
threat must be supported by evidence (Winko); if don’t meet
NCRMD, can take MD into account in sentencing (Adamo)
NCRMD and fitness to stand trial are separate; if found NCRMD
are exempt from punishment, not from trial; (Whittle);
Fitness to Stand Trial (s 672.22 – 672.33): deals with ability to
communicate w/counsel and make decisions for oneself
(Whittle); presumed fit unless proven on BOP (s 672.22);
Raising Issue of MD: Accused can raise at any time; Crown can
only raise after accused has raised OR after accused already
found guilty (Swain)
Disease of the Mind: legal term, judge determines if condition is
DOM (R v Simpson); includes any illness, disorder or abnormal
condition that impairs human mind & its functioning; does not
include temp states or self-induced states (Cooper v The Queen)
Incapable of Appreciating Nature & Quality of Actions: includes
foresight of consequences (Cooper); goes to inability to
comprehend mens rea (Abbey)
Knowing Act is Wrong: either morally or legally wrong; morally
wrong must be incapable of knowing society views it as wrong
(Chaulk & Morrissette); must have capacity to tell right from
wrong AND be able to apply this capacity to the criminal act—if
unable to do one or both, can be found NCRMD (Oommen)
Automatism
Automatism = Involuntary actions from someone capable of
action but is in impaired state of consciousness (Stone); blocks
finding of AR—not voluntary (Luedecke) Must prove automaton
state on BOP (Stone); 2 types:
1. MD Automatism: arises from DOM, leads to NCRMD, likely
internal cause (Stone)
2. Non-MD Automatism: not arising from DOM, leads to
acquittal, likely external cause e.g. sleepwalking (Stone)
Determining if something is a MD: modified objective test; holistic
approach; 2 main factors (not exhaustive) (Stone):
1. Internal Cause—triggering event internal to person more
likely to be MD
2. Continuing Danger—if condition likely to be a continuing
danger, more likely to be MD
*not mutually exclusive—more external an event, more likely it is
not continuing danger (Luedecke)
Rolled Up Defence
Applies to all specific intent offences; if you defences on their
own, can still take the evidence going to mental state raised all
together to raise RD about ability to form specific intent; includes
disassociation (lesser form of automatism) (Bakker)
Sentencing
Core Principles: Prevention, Deterrence, Retribution,
Rehabilitation (Lyons); Retribution, Denunciation, Protection of
Society (M(CA))
Steps to Sentencing: from statute:
1. Check provision for statutory min/max
2. Sentence must be proportionate to gravity of offence and
degree of responsibility of the offender (s 718.1)
3. Choose sentence by balancing principles (s 718 & 718.2)
Judge can accept as fact evidence disclosed at trial/sentencing
or that is agreed upon by the parties (s 724(1)); if fact disputed,
have mini-trial (Gardiner), must prove fact on BOP, except
Crown must prove aggravating factor BRD (s 724(3))
Court should only intervene & adjust sentences where is
substantial & marked departure from sentences received by
similar offenders for similar crimes; should not impose sentence
that greatly exceed expected lifespan (MCA);
2+ offences from 1 event  concurrent sentences; 2+ offences
from 2+ events  consecutive sentences (Langthorne)
Options: diversion; fine/restitution; absolute/conditional discharge
(no crim rec if perform obligations); suspended sentence
(sentence = jail but don’t have to go if meet conditions);
incarceration: intermittent (weekends only); incarceration:
conditional (serve in community s 742.1); incarceration < 2 yrs =
prov jail; incarceration > 2 yrs = fed prison
*can also impose probation in addition to fine or jail time
*conditional sentence analysis of principles in Howitt (grow-op)
Dangerous Offender (s 753): poses substantial danger to public;
remains in jail unless can convince review board they no longer
pose substantial danger; Long-Term Offender (s 753.1):
substantial risk to reoffend; subject to conditions upon release
Mandatory Minimums: challenge under s 12 (cruel & unusual
punishment); 2 avenues (Adamo):
1. Individualized Approach—MM results in grossly disprop.
Sentence given offender and offence—must offend society’s
sense of decency (Latimer-unsuccessful; Adamo-success)
2. Reasonable Hypothetical—is there a reasonable
hypothetical where MM would result in grossly disprop.
sentence? (Nur-guns; Smith-importing drugs)
If found unconstitutional, must strike down MM (Ferguson);
Aboriginal Offenders: should consider non-jail options wherever
possible, with particular attention to circumstances of Ab
offenders (s 718.2(e)); most important with Ab offenders b/c
imprisonment may not be as effective in achieving goals
(Hamilton); must consider unique circumstances that brought Ab
offender before court & sentencing procedures & sanctions
appropriate for offenders based on Ab heritage; must do presentence report outlining options (Gladue);
more violent offence  less likely punishment differs between Ab
and non-Ab offenders (Wells)
Wrongful Convictions (Marshall Inquiry)
Causes: mistaken eyewitnesses, unreliable experts,
prejudicial/propensity evidence, racial bias, vetrovec witnesses,
crown/state errors, police tunnel vision, defence counsel
Solutions: special evidentiary rules, special jury instructions, try
to make evidence more reliable, provide full disclosure to
defence, education, mechanism to deal w/evidence arising after
appeals, innocence project
Role of Counsel
Is a duty to be civil—if not, judge can lose jurisdiction and case is
thrown out (Felderhof)
Crown: make every possible investigation; not proceed if doubtful
of accused’s guilt; maintain neutral attitude; not to get conviction
but to lay out evidence (Boucher v the Queen); disclose all
evidence (Stinchcombe)
Defence: maintain duty and confidentiality to client; ethical duty
to court—cannot mislead court or witness; only advise client—
client makes choices (Colpitts)