17th October- Tuesday
ACTUS REUSPart 1- Voluntariness
R v. Larsonneur- convicted without voluntariness.
Pg- 335-336
Facts: Larsonneur had a French passport and was granted access to England. Her passport was
marked to say that she had to leave the country on a certain date. She left England on that date
for Ireland, but was deported from Ireland and was sent back to England in Irish custody. She
was found in England, and this was after the date that her passport allowed her to be in the
country. She was convicted under the Aliens Restrictions Act for being in the country as an
alien to whom leave to land had been refused. She was convicted at second trial and appealed
on conviction.
Issue: Does it matter that she did not re-enter England on her own accord, but was forced to
do so?
Decision: Appeal Dismissed
Reasons: Hewart, writing for the court, says that it is clear that the woman was an alien. It is
also clear that the authorities had the power to put such a restriction on her passport. He says
that the circumstances of her being brought back to England after her passport expired were
immaterial. She was not allowed to be in England after a certain date, and was found in England
after the date. The reason she was there does not matter; she violated the act.
Ratio: Even if you are physically forced to commit the actus reus of an offence against your
will, you have still committed it for legal purposes (this is no longer the case).
Kilbride v. Lake- voluntariness different from mens rea and
considered prior to it. Act voluntary only when there’s some
other course too.
Pg- 336- 338
Facts: Kilbride was charged under the Traffic Regulations Act for operating a motor vehicle
without a current “warrant of fitness” (registration) displayed. He did in fact have one, and it
was displayed, however it was somehow removed when he left the car – which was also the
time that the officer gave him the ticket for the offence. He subsequently proved that the car
was registered and that the warrant had been displayed when he left the car. However, the
offence simply states that you must display the warrant at all times, and when the officer gave
the ticket the warrant was not displayed. He was convicted at trial, which he appealed.
Issue: Can something done perfectly innocently by a defendant become an offence by reason
of an intervening cause beyond his control (no choice), and which produced an effect outside
of his knowledge?
Decision: Appeal allowed, conviction quashed.
Reasons: Woodhouse holds that this is not a mens rea issue. He quotes Halsbury's, which
states, "a person cannot be convicted of any crime unless he has committed an act prohibited
by law, or failed to live up to a legal duty. The act or omission must be voluntary". Therefore,
the defendant must be shown to be responsible for the physical ingredient of the crime to be
convicted. Until this is proven, the question of mens rea is irrelevant. The actus reus must be
committed voluntarily, and it is not the line of conduct that produces the prohibited event, but
the event itself. Here, the prohibited event is permitting a vehicle to be on the road accompanied
by an omission to display a warrant. Both must occur simultaneously; however, in this case
only the first aspect was present. It was the extraneous cause that resulted in the conditions for
conviction becoming present, and the defendant did not voluntarily bring this about. Therefore,
as the actus reus is not proven, the mens rea issue does not matter.
Ratio: Disregarding any mental elements of an offence, a person cannot be criminally
responsible for an act or omission unless it was done or omitted in circumstances where there
was some other course open to him (he had choice).
If the actus reus of the offence is committed involuntarily, then the defendant cannot be
convicted.
Voluntariness is a component of actus reus.
R v. King- no actus reus if there’s no choice.
Pg- 338
Facts: King was charged with impaired driving. He went to the dentist's office to have teeth
pulled and was given sodium pentathol, an anesthetic. He was warned not to drive until he was
fit to do so and was reminded of this after the surgery when he "seemed fine" according to
testimony. He got in his car, drove, and caused an accident. Medical evidence showed that
patients of the drug usually feel fine, but then slip into unconsciousness soon after. King said
he did not know anything about the drug that he was on and did not hear the warning. He was
convicted at trial; the conviction was quashed upon appeal and the Crown appealed to the
Supreme Court.
Issue: Was the accused voluntarily under the influence of drugs? Did he willingly drive under
to influence?
Decision: Appeal dismissed, appellate court judgment upheld.
Reasons: The trial court judge stated that the prohibition to driving while impaired by drugs is
express, and that King's defence that the act was involuntary was not a defence for this section
of the Code. However, the Court of Appeal disagreed and stated that no fault can be imputed
to the accused, as the act was involuntary.
Ritchie, writing for the court, stated that there can be no actus reus unless it is the result of a
willing mind at liberty to make a definite choice or decision. In other words, there must be
willpower to do an act for the actor to be convicted. There must be an act proceeding from a
free will that brings about the mental conditions necessary to satisfy s.253, which did not occur
here.
Ratio: There can be no actus reus unless it is the result of a willing mind at liberty to make a
definite choice or decision.
R v. Ruzic- sometimes voluntariness overlaps both mens rea and
actus reus.
Pg- 339
Ratio: Notes that issue of voluntariness predates the Charter. Criminal responsibility could
be ascribed only to the acts that resulted from the choice of conscious mind and an
autonomous will.
Voluntariness can sometimes overlap both actus reus and mens rea.
The importance of mens rea and the quality of voluntariness in it underscores the fact that
criminal liability is founded on the premise that it will be borne only by those persons who
knew what they were doing and willed it.
Interplay of voluntariness with duress.
Absence of volition in respect of the act involved is always a defence to a crime.
Part 2- Contemporaneity
Fagan v. Commissioner of Metropolitan Police- Mens rea can
arise during an act.
Pg- 396-399
Ratio: Distinction outlined between a continuing act and a completed act. Mens rea can be
present at beginning or arise during an act, but you can’t have mens rea arising after an act has
completed (i.e. no retroactive mens rea can be imposed). Fact dependent, in this case facts
proved that act was continuing. The act was not criminal at its inception but became criminal
from the moment the intention was formed to produce the apprehension which was flowing
from the continuous act.
R v. Miller- intentional omission is an intentional act too if person
creates a situation.
Pg- 399-401
Facts: Miller, a vagrant, after consuming "a few drinks" went back to a house he was squatting
in, lit a cigarette and fell asleep. Upon waking and seeing that the mattress he was lying on was
on fire he got up, went into the next room and went back to sleep. When he awoke again, the
house was on fire. He was rescued and charged with arson.
Issue: Is the actus reus of the offence of arson present when a defendant accidentally starts a
fire and thereafter, intending to destroy or damage property belonging to another or being
reckless as to whether any such property would be destroyed or damaged, fails to take any steps
to extinguish the fire or prevent damage to such property by that fire?
Decision: Appeal dismissed, original conviction upheld.
Reasons: Diplock, writing for the court, states that the actus reus can be deemed to have
occurred, because Miller created a situation that would result in harm if he recklessly failed to
prevent the harm. As the appellant created the liability himself it would make no sense to
excuse him of criminal liability.
Lord Diplock stated that damage can be caused by failing to take reasonable steps to mitigate
a danger created by one’s self.
The accused having by his own act started a fire in the mattress which, when he became aware
of its existence, presented an obvious risk of damaging the house, became under a duty to take
some action to put it out.
From sleeping and setting fire to failing to put out the fire, it is a single continuous act.
Ratio: An omission can be treated as actus reus if a person creates a situation in which harm
to a person or property will occur, and he or she intentionally or recklessly fails to take steps
to prevent the harm; if the accused does not live up to the created duty, then it is a crime by
omission.
An unintentional act followed by an intentional omission to rectify that act or its consequences,
can be regarded in toto as an intentional act.
Unintentional act- setting fire.
Intentional omission- not extinguishing the fire off.
R v. Cooper- actus reus and mens rea should just coincide at some
point.
Pg- 401-402
Facts: Cooper was convicted pursuant to s. 212(a)(ii) of the Criminal Code (now s. 229).
During an argument Cooper grabbed the victim by the throat. She died of manual strangulation
but the accused testified that he had no recollection of causing her death. The accused had
consumed a considerable amount of alcohol prior to the murder and he argued that he did not
have the required mens rea to commit the murder or that he did not foresee that grabbing the
victim by the throat would cause her death. He testified to remembering to strangle the victim,
but had no recollection after that until he awoke to find the victim dead. The trial judge
instructed the jury that, once the accused had formed the intent to cause the victim bodily harm,
which he knew would likely cause her death, he need not be aware of what he was doing at the
moment she actually died. The Court of Appeal held that the trial judge had not adequately
explained the intent required for murder to the jury. Crown appealed.
Issue: Does the actus reus have to be completely concurrent with the mens rea or just coincide
at some point?
Decision: Appeal allowed, original conviction restored.
Reasons: In order to convict under for murder, there must be a subjective intent to cause bodily
harm and subjective knowledge that the bodily harm is likely to result in death.. At some point
the illegal act or actus reus must coincide with the intent. The requisite mens rea need not
continue throughout the commission of the wrongful act, but it is sufficient that the intent and
the act coincide at some point. It was open to the jury to infer that the accused intended to cause
the victim bodily harm when he seized her by the throat and that he knew that strangulation
was likely to result in death. The trial judge's charge with respect to the requisite mens rea and
the accused's intoxication contained no errors that would justify a new trial.
Ratio: The requisite mens rea need not continue throughout the commission of the wrongful
act, but it is sufficient that the intent and the act coincide at some point.
It is not always necessary for the guilty act and the intent to be completely concurrent. In
looking at whether there was one continuous act, court looked at time between the point when
accused grabbed the victim by the neck, and when she died (2 min, 30 seconds). Accused was
aware of consequences before blacking out…sufficient that intent and act of strangulation
coincided at some point. Not necessary that it continue throughout the entire 2 mins and 30
secs required for victim to die.
Cite Fagan too.
R v. Williams- Mens rea and Actus reus must coincide at some
point.
Pg- 403-404
Ratio: To constitute a crime, the actus reus and the mens rea or intent must, at some point,
coincide. Look at criminal code to determine nature of offence (here, was attempted aggravated
assault).
Part 3- Acts and Omissions
R v. Browne- undertaking to be clear and binding for a legal duty
to exist. (read from book)
Pg- 343-346
Facts: Browne was charged with criminal negligence causing the death of another drug dealer,
when he did not take her directly to the hospital after she swallowed a bag of crack to avoid
detection by police. Instead he waited until her symptoms got worrisome, at which point he
called a taxi (not 911). He was convicted for failing “to render assistance to her by failing to
take her immediately to the hospital after undertaking to render such assistance”. The question
is whether the trial judge erred in holding that the appellant caused the victim’s death by
breaching his legal duty arising from an undertaking within the meaning of s. 217 of the
Criminal code. The trial judge held that Browne undertook to take care of her after he knew
she had ingested crack. He thus had an obligation to take her directly to the hospital.
Issue: Did the appellant have a legal duty under s. 217 of the Code. (s. 217 – “Everyone who
undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be
dangerous to life”)
Decision: No, he did not have any legal duty.
Reasons: Under s. 217, there is no pre-existing relationship or situation that creates a legal
duty. Rather, there must be an ‘undertaking’ before a legal duty can be found.
The evidence does not disclose any undertaking of a binding nature. The two were drug dealers
and one swallowed a bag of crack to avoid detection by police. The appellant did not know
the victim’s life was in danger until 2 AM when he immediately called a taxi. The words “I’ll
take you to the hospital” hardly constitute an undertaking which would give rise to a legal
obligation under s. 217 of the Code. An undertaking cannot be implied; it must be clearly made,
with binding intent, most likely with someone relying on it.
Not the same level of proof required to show a breach of civil standards of care. In criminal,
must be clearly made and binding
There was no duty whereby Browne would take the woman to the hospital the second she
swallowed crack
Ratio: There has to be an undertaking for legal duty to exist. It has to be clearly made with
binding intent.
An undertaking cannot be implied; it must be clearly made, with binding intent, most likely
with someone relying on it.
R v. Thornton- Legal duty can arise at common law. (read from
book)
Pg- 347-354
Facts: Thornton, knowing he had tested positive twice for HIV antibodies, donated blood to
the Canadian Red Cross (CRC) without disclosing this to them. He was tried and convicted of
a violation of s.180 of the Criminal Code.
Issue: Is there a legal duty for an individual to disclose they are HIV-positive when donating
blood?
Decision: Appeal dismissed.
Reasons: Galligan, writing for the court, held that Thornton was guilty under s.180 for a breach
of legal duty which arises from the common law. This is established through finding that the
appellant had knowledge that he was HIV-positive and that he knew the screening used by the
CRC was not perfect. This knowledge was sufficient for the court to find mens rea and the
appeal was dismissed.
Ratio: Legal duty can also arise at common law.
There is a common law duty to refrain from conduct which one foresees could cause serious
harm to another person. Objective test (it was reasonably foreseeable that it would cause
serious harm to another person) for mens rea, here the accused should not have knowingly
donated HIV+ blood.
19th October- Thursday
ACTUS REUSPart 4- Consequences and Causation
R v. Winning- Factual causation issues are rare.
Pg- 360
Facts: Winning applied for credit at Eaton's, providing her real name and address but making
other fraudulent representations. She always paid her bill off on time, but Eaton's complained
that she had committed fraud and she was charged with "obtaining credit by false pretences".
Witnesses stated that they had not used the fraudulent information in issuing her credit; they
had only used her name and address. Winning was convicted by the lower court.
Issue: Were the appellant's fraudulent representations the cause of her obtaining credit?
Decision: Appeal allowed, conviction quashed.
Reasons: The charge requires that Eaton's relied on her fraudulent information when deciding
to issue her credit. As on the facts all they used was her name and address, which were given
truthfully, the necessary aspect of causation in the offence was not proven. She could have
been guilty of fraud, but not this specific crime.
Ratio: When causation is a required element of an offence, the specific causation stated in
the provision must be satisfied in order to get a conviction.
Stands for proposition that factual causation issues are rare, only become an issue if victim
relies on submitted fraudulent facts in their consequential acts/decisions.
Smithers v. Queen- operating cause should be outside de minimis
range. Low threshold for causation in criminal law.
Pg- 361-367
Facts: Smithers was a black player on a hockey team, and members of the opposing team
(particularly Cobby) racially insulted him during a game. About 45 minutes after the game he
ran up to Cobby and punched him twice in the head, and Cobby doubled over. Then he kicked
him in the stomach and Cobby fell to the ground and within five minutes appeared to stop
breathing. Cobby was dead on arrival at the hospital and the cause of death was determined to
be "spontaneous aspiration from vomit" during an autopsy – choking on his own vomit.
Cobby's epiglottis malfunctioned, and this led to his death. Smithers was convicted of
manslaughter at trial and the conviction was upheld on appeal.
Issue: Was the kick a sufficient cause of the death to attract criminal liability?
Decision: Appeal dismissed, conviction upheld.
Reasons: Dickson, writing for the court, said that the kick had to be an "operating clause
outside of the de minimis range" in order for it to be deemed the cause of death, that is, the
Crown had to prove that the kick caused the vomiting, and that the vomiting caused the death.
He accepts the Crown's argument that this was outside the de minimis range, as the thin skull
rule applies in criminal law and therefore the kick led to the victim's reaction that resulted in
death. This is a lower standard than the Smith test, which is what the defence wanted to be
used. The Smithers test needs a lower threshold of causation to be proven in order to get the
conviction.
Ratio: An action only has to be an operating cause outside of the de minimis range in order to
be deemed the cause of a prohibited result in criminal law; a lower threshold of causation than
was required in the Smith test.
It is no defence to manslaughter charge that the fatality was not anticipated or that death would
not ordinarily result from the unlawful act. Even if death is unexpected and the physical
reactions of the deceased unexpected, if the accused intended to do grievous bodily harm to
the deceased, that could be enough to show causation. All that the Crown needed to establish
for causation was that the kick was at least a contributing cause of death, more than de minimis.
The "thin skull" rule applies in criminal law as in tort law.
Not a defence to a manslaughter charge that the death was not anticipated or that death
ordinarily would not result from the unlawful act. It is a well-recognized principle that one who
assaults another must take his victim as he finds him.
Smithers test governs analysis of legal causation for almost all crimes in Canada.
Smithers test applies to all forms of homicide except first degree murder.
R v. Harbottle- higher threshold for legal causation for 1st degree
murder. Substantial causation test.
Pg- 367-372
Facts: Accused and co-accused brutally sexually assault victim; Accused strangles victim
while co-accused holds victim’s legs; Both accused convicted of 1st degree murder under
s.231(5) – guilty of 1st degree murder while causing a certain offence. Co-accused appeals to
Supreme court of Canada.
Issue: Can the co-accused be found guilty of first degree murder when he didn’t physically
commit the murder/ whether the appellant’s participation was such that he can be found guilty
of first degree murder pursuant to section 214(5)?
Held: Guilty. Co-accused’s appeal dismissed
Ratio: The consequences of a conviction of 1st degree murder and the wording of the s. 229
are such that a test of causation must be a strict one. The accused may only be convicted if the
crown establishes that the accused has committed an act or series of acts which are of such a
nature that they must be regarded as a substantial and integral cause of the death. The
substantial causation test requires that the accused play a very active role – usually a physical
role – in the killing (A substantial and integral cause of the death).
Legislation can require more that the de minimus causation test (Smithers). 1st degree murder
requires substantial causation, a substantial and integral cause of the death.
In this case - the accused played a very active physical role by holding down her legs- but for
his actions, she may have been able to escape.
Substantial Causation Test [only applies to s.231(5)]
Therefore, an accused may be found guilty of 1st degree murder if the crown has established
beyond a reasonable doubt that:
1. the accused was guilty of the underlying crime of domination or of attempting to commit
that crime;
2. the accused was guilty of the murder of the victim;
3. the accused participated in the murder in such a manner that he was a substantial cause
of the death of the victim;
4. there was no intervening act of another which resulted in the accused no longer being
substantially connected to the death of the victim; and
5. the crimes of domination and murder were part of the same transaction.
Professor- The phrase, "when the death is caused by that person" in first degree murder charge
is broad enough to include both perpetrators and those who assist in the murder in that they are
a substantial cause of the death. Liability under this section is not limited to a person who
diagnostically occasions the death of the victim. On the other hand, the consequences of a
conviction for first degree murder and the wording of the section are such that the test for
causation must be a strict one and more limited than the simple de minimis test which suffices
for liability for manslaughter. The Crown must establish that the accused has committed an act
or series of acts which are of such a nature that they must be regarded as a substantial and
integral cause of the death. The accused must play a very active role, usually a physical role,
in the killing.
R v. Nette- smithers test for 2nd degree murder.
Pg- 372-383
Facts: A 95-year-old widow was robbed and left hog tied in her room with a ligature around
her neck. Over a period of 48 hours she suffocated to death. During an undercover
investigation, a suspect, Nette, admitted to an undercover officer that he had robbed and killed
the widow. Nette was arrested and charged with first-degree murder under s.231(5) of the
Criminal Code. The Crown achieved a conviction at the lower court (upheld by the British
Columbia Court of Appeal) for 2nd degree murder using the Smithers test, which the defence
said was too low of a threshold.
Issue: What is the proper threshold of causation required for second-degree murder?
Decision: Appeal dismissed.
Reasons: Arbour, writing for the majority, states that the Smithers test applies for all forms of
homicide and the additional test used in R v Harbottle applies in the case of first degree murder,
rather than to all forms of homicide. On the topic of jury instruction, she held that it is better
to state the test positively as a "significant" cause rather than negatively and that this is really
the same concept as de minimus, which they take to mean a cause that is "not insignificant".
They state that this test is still met by the appellant's actions and the jury would have decided
the same thing with the new charge.
Ratio: When addressing a jury, the standard of causation for second-degree murder should be
positively stated in that the actions of the accused must have been a "significant contributing
cause" of death. However, the Smithers causation standard still applies to all forms of homicide
including second-degree murder.
Standard is changed from “not de minimis participation in the cause” to “significant
contributing cause”.
Professor- Causation has a factual and legal component. Factual causation is concerned with
an inquiry about how the victim came to his or her death in a medical, mechanical or physical
sense. Legal causation is concerned with whether the person should be held responsible in law
for the death. It is informed by legal considerations, such as the wording of the section and
principles of interpretation. The legal considerations reflect principles of criminal
responsibility such as the principle that the morally innocent should not be punished. While
causation is distinct from mens rea, the proper standard of causation expresses an element of
fault that is sufficient to base responsibility. In relation to manslaughter, this court has held
that the applicable standard of causation is a contributing cause outside the de minimis range.
R v. Maybin- Intervening act has to be reasonably forseeable.
Pg- 387-395
Facts: In a bar, T and M repeatedly punched victim in the head. T struck blow that knocked
victim unconscious. Arriving on scene within seconds, bouncer struck victim in the head again.
Medical evidence is inconclusive which blows caused death. Trial judge acquitted, Court of
Appeal ruled that the accused’s assaults were factual contributions to the cause of death, ie.
“but for” their actions, victim would not have died. The risk of harm caused by bouncer was
reasonably foreseeable to the accused.
Issue: When does an intervening act absolve the accused of legal responsibility for
manslaughter?
Ratio: (Karakatsanis J.) Approaches to intervening acts grapple with the issue of moral
connection between accused’s acts and the death.
Intervening act that is reasonably foreseeable to the accused may well not break the chain of
causation, while an independent/intentional act by a third party may in some cases make it
unfair to hold accused responsible. Causation test remains whether the dangerous/unlawful act
or accused was a significant contributing cause of victim’s death.
An accused who undertakes a dangerous act and contributes to a death should bear the risk that
other foreseeable acts may intervene and contribute to that death. The time to assess the
reasonable foreseeability is at the time of the initial unlawful act, rather than at the time of the
intervening act.
Intervening acts and ensuing non-trivial harm must be reasonably foreseeable in sense that the
acts/harm that occurred flowed from the conduct of the accused; if so, the accused’s actions
may remain a significant contributing cause of death.
Did the act of the accused merely set the scene, allowing other circumstances to coincidentally
intervene, or did the act of the accused trigger or provoke the action of the intervening party?
If the intervening act is a direct response or is directly linked to the accused’s actions and does
not by its nature overwhelm the original actions, then the accused cannot be said to be morally
innocent of the death.
Professor- The issue is whether the actions and consequences were reasonably foreseeable
prospectively, at the time of the accused's objectively dangerous and unlawful act. An
intervening act that is reasonably foreseeable will usually not break or rupture the chain of
causation so as to relieve the offender of legal responsibility for the unintended result.
Holding: It was open to the trial judge to conclude that it was reasonably foreseeable that fight
would escalate and that bouncers would use force to gain control of the situation. Therefore, it
was open to trial judge to conclude that general nature of intervening act and accompanying
risk of harm were reasonably foreseeable and that the act was in direct response to accused’s
unlawful actions.
Part 5- Consent
R v. J.A.- no consent in advance for sexual activity when
unconscious. Active mind is necessary.
(Headnote)
Facts: The complainant testified that she consented to her intimate partner (the accused)
choking her into unconsciousness. When she regained consciousness, she was on her knees at
the edge of the bed with her hands tied behind her back, and the accused was inserting a dildo
into her anus. The accused removed the dildo ten seconds after she regained consciousness.
The two then had vaginal intercourse and the accused cut the complainant’s hands loose.
Approximately two months later, she complained that she had not consented to the sexual
activity (in particular the use of the dildo). Criminal charges ensued. Consent was in issue.
The Ontario Court of Justice, convicted the accused of sexual assault. The trial judge held
that the complainant did not in fact consent to penetration with the dildo while unconscious
and, in any event, could not consent in advance to sexual activity which was to take place
while she was unconscious. The accused appealed.
The Ontario Court of Appeal, LaForme, J.A., dissenting, allowed the appeal, set aside the
conviction and dismissed the charges. The majority held that the trial judge erred in finding
as a fact that the complainant did not consent in advance to the sexual activity that occurred
while she was unconscious. Further, the trial judge erred in reaching the broad conclusion
that a person could not legally consent in advance to sexual activity expected to occur while
unconscious. The Crown appealed.
Issues: Can a person legally consent in advance to sexual activity expected to occur while
unconscious.
Whether consent for the purpose of sexual assault requires an active mind during the sexual
activity in question.
Decision: Appeal allowed.
Reasons: The Supreme Court of Canada, Fish, J., dissenting (Binnie and LeBel, JJ.,
concurring), allowed the appeal and restored the accused’s sexual assault conviction. The
majority held that the Criminal Code defined consent as requiring a conscious, operating
mind throughout the sexual activity. The Code made it clear that an individual had to be
conscious throughout the sexual activity in order to provide the requisite consent. The court
rejected the suggestion that a complainant’s consent could be given in advance, and remained
operative unless and until it was subsequently revoked.
Ratio: Consent for the purpose of sexual assault requires an active mind during the sexual
activity in question.
Parliament has defined consent in a way that requires the complainant to be conscious
throughout the sexual activity in question.
Parliament’s definition of consent does not extend to advance consent to sexual acts
committed while the complainant is unconscious.
The legislation requires ongoing, conscious consent to ensure that women and men are not the
victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are
capable of asking their partners to stop at any point.
There is no substitute for the complainant’s actual consent to the sexual activity at the time it
occurred. It is not sufficient for the accused to have believed the complainant was consenting:
he must also take reasonable steps to ascertain consent, and must believe that the complainant
communicated her consent to engage in the sexual activity in question. This is impossible if
the complainant is unconscious.
Professor- Parliament intended for a person to have an “active mind” during the sexual activity
in question. Consent in advance is not a defence, as a person must be able to withdraw their
consent during the sexual activity in question. The rule only applies to consent in cases of
sexual assault.
R v. Mabior- failure to disclose HIV is fraud (vitiates consent).
(Headnote)
Facts: The accused was charged with aggravated sexual assault involving nine complainants.
The Crown claimed that the accused failed to disclose his HIV-positive status to the
complainants before having sex with them. None of the complainants contracted HIV. The
accused claimed that his duty to disclose his condition did not arise since the risk of
transmission was low or negligible at the time and there was no significant risk of bodily harm
to the complainants.
At trial, he was convicted of six counts and acquitted on three. The trial judge concluded that
using a condom during intercourse when viral loads are undetectable does not place a sexual
partner at significant risk of serious bodily harm. The decision was appealed to the Manitoba
Court of Appeal, which came to a different conclusion. That court found that either low viral
loads or condom use could negate significant risk. As a result, they decided that Mr. Mabior
could only be convicted on two counts. The Crown appealed the acquittals on the other four
counts to the Supreme Court of Canada.
Issue: Was there a duty to disclose HIV?
Held: Appellate decision overturned for 3 of the 4 counts.
Reasons: The Supreme Court concluded that Mr. Mabior should be convicted of three of the
four counts that he was acquitted of at the Court of Appeal. In doing so, the Court revisited the
test set out in the Cuerrier decision, saying that, “A person may be found guilty of aggravated
sexual assault under s. 273 of the Criminal Code if he fails to disclose HIV-positive status
before intercourse and there is a realistic possibility that HIV will be transmitted."
The Court convicted on three counts because, although he had a low viral load when he had
intercourse with three sexual partners, he did not use a condom. The Court concluded that low
viral load with no condom use meets the test for “a realistic possibility of transmission of HIV”
and he was, therefore, convicted on those counts. In the case of the fourth sexual partner, Mr.
Mabior was not convicted because he did use a condom and his viral load was low. The Court
concluded, “the combination of a low viral load – as opposed to an undetectable viral load –
and of condom use negates a realistic possibility of transmission, on the evidence in this case.”
Ratio: Failure to disclose may amount to fraud where the complainant would not have
consented had he/she known the accused was HIV-positive and where sexual contact posed a
significant risk of or causes actual serious bodily harm.
If there is no realistic possibility of transmission, failure to disclose will not constitute fraud
vitiating consent to sex.
To obtain conviction, Crown must show beyond a reasonable doubt:
1. A dishonest act (falsehood or failure to disclose HIV) and,
2. Deprivation (denying the victim knowledge which would have caused him/her to refuse
sex that exposed him/her to significant risk or serious bodily harm)
Professor- Failure to disclose HIV-positive status to a sexual partner may vitiate consent
to sexual relations where the complainant would not have consented had he or she known
the accused's HIV status and where sexual contact creates a significant risk of serious
bodily harm.
24th October- Tuesday
MENS REA-SUBJECTIVE AND OBJECTIVE MENS REA
Part 1- Intention, knowledge, willful blindness, and recklessnessSUBJECTIVE
R v. ADH- presumption of subjective fault required
Pg- 452-454
Facts: A. gave birth in a public washroom not knowing that she was pregnant. She thought the
baby was dead upon birth, so left it in the toilet. Child was in fact alive, she was charged with
unlawfully abandoning a child under 10yrs old, thereby endangering his life contrary to sec.
218. Trial judge found actus reus, but could not find the subjective element of the mens rea,
and dismissed charges. Court of Appeal agreed.
Issue: What is the necessary mental element necessary for proving mens rea for particular
offence (in this case, unlawfully abandoning a child, thereby endangering his life). Subjective
or objective?
Decision: Acquittal was correct.
Ratio: There is a presumption of subjective mental element unless there is express language
to the contrary by the parliament; the mental element must be analyzed based on the context,
text, purpose of the provision.
R v. Tennant and Naccarato- objective only evidence for subjective
Pg- 455
Ratio: Where liability is imposed on a subjective basis, what a reasonable man ought to have
anticipated is merely evidence from which a conclusion may be drawn that the accused
anticipated the same consequences. On the other hand, where the test is objective, what a
reasonable man should have anticipated constitutes the basis of liability.
R v. Steane- Intention confused with motive. Specific intention to
be proved beyond a reasonable doubt.
Pg- 458-460
Facts: The appellant was a British radio announcer who was living in Germany during WWII.
With his family under threat he was forced to broadcast on the radio for the Nazis. After the
war, when he returned to Britain, he was charged with "doing acts likely to help the enemy
with the intent to assist the enemy". He was convicted at trial which he appealed.
Issue: Were Steane’s acts done with the intention of assisting the enemy?
Decision: Appeal allowed.
Reasons: The court holds that this is a very clear decision. The specific form of intention that
is required for conviction is explained in the crime itself, and this must be respected. Normally,
merely the intent to broadcast would have sufficed this crime, however the wording requires
there to be intent to assist the enemy for a conviction. There was obviously no intent to assist
the enemy here; he was forced and threatened into doing it. Therefore, the crime is not proven
and the defendant must be acquitted. There can be no presumption that merely doing the action
implied his intent to help the enemy.
Ratio: If a crime includes a specific intention in its wording, this must be proven beyond a
reasonable doubt in order for a conviction to be entered - you cannot presume this specific
intention from the prohibited action; it must be proved beyond a reasonable doubt.
Professor- Considers the meaning of “intent.” Person’s intent can be inferred from the normal
consequences of his act. Discusses confusion between “motive” and intent” – here, British
actor’s actions in aiding Nazi Germany were not done with intention of aiding the enemy.
R v. Hibbert- ‘purpose’ means intention. Mens rea usually not
negated by duress.
Pg- 460-464
Facts: On November 25, 1991, Cohen, a friend of the appellant, was shot four times in the
lobby of his apartment building. The appellant had called for his friend Cohen to come
downstairs from his apartment at which point another man, Bailey, shot Cohen four times when
he came downstairs. Hibbert contends that he only acted the way he did (in calling Cohen
downstairs) because Bailey threatened him and therefore the defence of duress should apply.
Hibbert was acquitted of attempted murder at trial but convicted of aggravated assault; his
appeal on the conviction was dismissed by the Court of Appeal, but his sentence was reduced.
Issue: Does an action performed under duress remove the element of mens rea?
Whether accused persons are foreclosed from recourse to the defence if they failed to avail
themselves of a ‘safe avenue of escape’ from the situation of coercion when such a safe avenue
was available?
Decision: Appeal allowed, new trial ordered with corrected jury instructions.
Reasons: The court says that it is important to note that threats can have an effect on one's
mental state, however this does not necessarily mean that someone who commits the actus reus
of an offence does not possess the necessary mens rea required for conviction. This will depend
on what the required mens rea of the offence is, and the facts of the case.
The trial judge charged the jury that duress negated the mens rea of an offence, and was more
than just an excuse, which was a mistake of law. While duress can apply as a defence and
negate mens rea in extreme circumstances (desiring bank robbers to succeed so that your family
would be freed from captivity, for example) and result in an acquittal, the circumstances of this
case do not allow for this negation. Hibbert clearly knew what he was doing and he knew that
he might cause Cohen's death.
Ratio: Purpose means ‘intention’.
Duress may be used as a defence either to negate mens rea (very rare) or as an excuse-based
defence under s. 17 or the common law defence of duress; the defence can always apply, but
whether or not the coercion will mean that the mens rea is not present will depend on the
particular charge and facts of the case.
The common law defence only requires you to determine if the accused had a "reasonable legal
alternative" using a modified objective test. The question of whether or not a safe avenue of
escape existed is to be determine 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.
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 or she 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. Situations
where duress will operate to ‘negate’ mens rea will be exceptional because the types of mental
states that are capable of being negated by duress are not often found in the definition of
criminal offences.
PROFESSOR IN PPT
R. v. Hibbert, [1995] 2 SCR 973
In his charge, the trial judge told the jury that "if [the accused] joined in the common plot to
shoot [C], under threats of death or grievous bodily harm, that would negative his having a
common intention with [B] to shoot [C], and you must find [the accused] not guilty". He added
that "the accused [could] not rely on [the common law defence of duress] if a safe avenue of
escape exist[ed], which . . . is a matter for you to find when you consider the evidence". The
accused was acquitted of the charge of attempted murder, but was convicted of the included
offence of aggravated assault.
The Court of Appeal upheld the conviction.
Issue for SCC: Mental state in context of threats, meaning of ”purpose.”
R v. Buzzanga and Durocher- ‘Wilfully’ means intention to
commit offence as opposed to recklessness.
Pg- 464-465 and short one on 454
1st case- The accused’s testimony, if he gives evidence as to what was in his mind, is important
material to be weighed with the other evidence in determining whether the necessary intent has
been established. Where the accused testified as to what was in his mind and the jury “thought
he might be telling the truth”, they would “have the best evidence available on what was in his
own mind.”
2nd case- Facts: The two appellants were trying to get the attention of French Canadians living
in their area to take charge in a political debate regarding a French language school in their
area, and to encourage them to fight for it. They circulated a pamphlet that was supposedly
written by anti-French bigots to stir people to action, although they had written it themselves.
They were charged under the now s.319(2) with inciting hatred against an identifiable group
and convicted at trial.
Issue: What does ‘Willfully’ mean?
Were the fault elements of the offence present in this case – did the defendants intend to
promote hatred of the French Canadians?
Decision: Appeal allowed, new trial ordered.
Reasons: In this case it is clear that while the defendants might reasonably have been able to
see the consequences of their acts (i.e., making French people feel discriminated against), it is
clear that this was not their intent. They clearly had the intention of rallying support for the
school in mind at the time of the offence, and therefore they cannot have had the necessary
mens rea to be convicted for this offence.
Next, the judge looks at the fault elements. The section of the Code says that one must
"willfully" promote hatred in order to be convicted. Does this mean willfully communicating
the statements? No, it means willfully promoting the hatred. What does "willfully" mean? To
answer this, he looks at many sources, and determines that it generally means intending to
cause an outcome, or recklessly causing the outcome. Recklessly denotes a state of mind where
the party foresees that his actions may cause the prohibited result, but proceeds anyway.
However, the defence argues that the term "recklessly" is included in some sections of the
Code, but not this one, so it cannot be used. Thus, all that can apply is proving that the
defendants intended to cause the outcome.
He then attempts to define "intention". Some say that it must include direct intention, or
"desire", while others say that only indirect intention, or foreseeing that the outcome is certain,
but not necessarily desiring the outcome. The court accepts that both are legitimate definitions
of intention. The difference between indirect intention and recklessness is that you must be
certain that the outcome will result in indirect intention, but in recklessness you only need to
realize that the result may occur.
On balance, Martin finds that the trial judge misunderstood "willfully" and focused on the
intentional nature of the defendant's conduct in distributing the pamphlets, but not in desiring
the outcome. In the result, a new trial is ordered.
Ratio: Courts will endeavor to infer the state of mind of an accused using objective methods.
An accused's evidence of their state of mind at the time of the offence is accepted, but it is not
always conclusive as sometimes it is not believable, or there is stronger evidence to the
contrary.
Mens rea is required to prove all criminal offences unless the section expressly states that it is
not required.
In general, mens rea is satisfied as long as the outcome was intended or achieved through
recklessness, however, including the term "willfully" implies that recklessness will not suffice
to prove the necessary mens rea, unless recklessness is also mentioned in the provision.
PROFESSOR IN PPT
R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369
Accused charged with willfully promoting hatred against francophones
At trial found guilty. The trial Judge in his reasons stated that "wilful" in s. 281.2(2) means
"intentional as opposed to accidental" and that "the accused themselves testified they wished
to create controversy, furor and an uproar. What better way of describing active dislike,
detestation, enmity or ill will. The motives of the accused may or may not be laudable. The
means chosen by the accused was the wilful promotion of hatred."
On appeal to Court of Appeal by the accused from their conviction, the central issue to consider
was the state of mind of the accused, foreseeability of consequences and intention, within the
context of the meaning of “willfully.”
Professor- Meaning of “willfully” considered. Conscious person who foresees a consequence
of his act is certain or very likely - to result from his act intends the consequence. This applies
even if the act was done in order to achieve some other purpose. General mens rea that is
required when no mental element is mentioned in wording of office is the intentional or reckless
bringing about of the result which the law seeks to prevent.
R v. Theroux- accused’s honest belief doesn’t matter if he’s aware
of the consequences. It doesn’t negate mens rea.
Pg- 466-470
Facts: Théroux was a businessman involved in developing a new subdivision. He took deposits
from people towards building a house in the subdivision and told them that their deposits were
insured. He even had posters about the insurance on the wall in his office. Unfortunately, the
deposits were not insured and he knew this, however, he honestly believed that the project
would be completed and therefore that the deposits would be safe. The project was not finished
as his company went bankrupt. Many people completely lost their deposits. He was convicted
of fraud under s. 380(1) of the Criminal Code and his appeal was dismissed by the Quebec
Court of Appeal.
Issue: Does the fact than an individual honestly believed there was no risk and money was not
in danger negate the necessary mens rea of a charge of fraud under s. 380(1) of the Code?
Decision: Appeal dismissed.
Reasons: McLachlin, writing for the majority, delivers a very clear outline of the offence of
fraud for the majority. She states that it is clear that the defendant committed the two actus reus
elements of the offence: dishonest act and deprivation. The dishonest act is proved by proof of
deceit, which is clear in this case as he knew that there was no insurance. The deprivation is
proved because there was a risk of deprivation of the depositors’ funds caused by the deceit.
However, the mens rea issue is trickier. Generally, to prove mens rea the Crown must prove
that the defendant subjectively understood the consequences of the act and committed the
actions anyway. This does not mean that the defendant’s subjective view of whether these
outcomes were morally wrong or not is of any consideration. If you know that you will kill
someone, but think that killing is permitted, you can still be charged with murder. The question
is whether one subjectively understands that their actions could result in a prohibited outcome.
The mens rea for fraud consists of the subjective awareness that one was undertaking a
prohibited act that could cause deprivation in the sense of depriving another party of property,
or putting that property at risk. The fact that the defendant didn’t think that the deprivation
would occur does not matter. McLachlin also says that recklessness will result in this criminal
responsibility.
When someone deceives another, they should not be able to escape conviction just because
they didn’t think that the deceit would result in loss, even though they realized that it could.
The defendant satisfied the actus reus and mens rea necessary for conviction in this case. He
knew his statement to be false, and it can be inferred that he knew that he was placing the
depositors' money at risk.
Ratio: To prove mens rea for fraud, the Crown must prove that the defendant subjectively was
aware that their actions could lead to a prohibited outcome; their view of the morality of this
outcome is irrelevant.
The mens rea for fraud requires the subjective awareness that you are putting others' property
at risk.
The actus reus for fraud has two elements: a dishonest act, and the dishonest act must cause
deprivation.
Professor- Mens rea does not relate to the accused's intention. They are not saved from liability
if they genuinely believe they did nothing wrong. The question for proving mens rea is whether
the person appreciated that certain consequences could stem from their acts. The Crown does
not need to know the precise intent of the accused - sometimes their state of mind can be
inferred the act itself or the surrounding circumstances.
R v. Briscoe- willful blindness satisfies knowledge when
knowledge is mens rea of offence.
Pg- 470-471
Courtepatte, a 13‑ year‑ old girl, and a young friend were lured into a car on the false promise
of being taken to a party. Briscoe drove the group (Laboucan and three youths) to a secluded
golf course. Laboucan had said earlier in the day that he would like to find someone to kill and
Courtepatte was chosen as the victim. On their arrival, Briscoe opened the trunk and, at
Laboucan's request, handed him some pliers. One of the youths hit Courtepatte from behind
with a wrench. For a moment, Briscoe held on to Courtepatte and angrily told her to be quiet
or shut up. Briscoe then stood by and watched as Courtepatte was brutally raped and murdered.
All five persons involved were charged with kidnapping, aggravated assault and first-degree
murder and the two adults, Briscoe was acquitted. The trial judge found that the actus reus for
being a party to the offences was proven, but not the mens rea because Briscoe did not have
the requisite knowledge that Laboucan intended to commit the crimes. The Court of Appeal
overturned the acquittals and ordered a new trial, holding that the trial judge erred in law by
failing to consider wilful blindness. Court of appeal ordered a new trial and now an appeal to
the Supreme Court is made.
Issue: What is required to make a finding of willful blindness?
Was the accused party to the sexual assault and murder?
Decision: Appeal dismissed.
Reasons: Charron, writing for the court, rejected the argument brought forward by the
appellant that willful blindness was but a heightened form of recklessness. Wilful blindness is
best understood as "deliberate ignorance" as it connotes "an actual process of suppression a
suspicion". From the statements made to police by Briscoe where he is quoted "That's what I
seen. And I was like ahh fuck I don't wanna know" it is clear that there was a deliberate
suppression of questioning and a strong suspicion that someone was to be killed.
Evidence in this case, “cried out for an analysis of willful blindness.”
Ratio: Willful blindness is an active process of suppressing a suspicion.
Willful blindness substitutes for actual knowledge when knowledge is a required component
of the mens rea of the offence.
Professor- When knowledge is important constituent of the mens rea, as in first degree murder,
wilful blindness can substitute for actual knowledge. If the accused sees the need for further
inquiries, but deliberately chooses not to make those inquiries, mens rea for the offence may
be proven.
R v. Sansregret- when willful blindness, mistake of fact doesn’t
apply.
Pg- 471-472
Facts: Sansregret and the complainant lived together. Their relationship had been violent:
“slappings” or “roughing up” in his description, “blows” in hers. On September 23, 1982, the
complainant ended their relationship. A few days later Sansregret attacked the complainant
with a file-like object. The complainant managed to calm him down by holding out hope of
some sort of reconciliation and engaging in intercourse. On October 15, 1982, Sansregret again
broke into the complainant’s house where he picked up a butcher knife and entered the
complainant’s bedroom. The complainant, fearful for her life, again tried to calm him down by
pretending that there was some hope of reconciliation. They engaged in intercourse shortly
later, but the complainant stated that she engaged in intercourse only to prevent further
violence. She later filed charges against the appellant for rape.
Sansregret was acquitted at trial as the judge found that he had mistakenly believed she had
consented and under the ruling in Pappajohn the trial judge felt she had no choice but to uphold
stare decisis. The Court of Appeal overturned that ruling finding there was not an air of reality
about the mistaken belief in consent, and Sansregret appealed to the Supreme Court.
Issue: Is willful blindness relevant to a mistake of fact in consent in a sexual assault charge?
Decision: Appeal dismissed.
Reasons: McIntyre, writing for the majority, entered a conviction on the basis that even if the
accused was not subjectively aware that there was no consent, he was willfully blind to the lack
of consent. The culpability of willful blindness is the accused’s refusal to inquire whether the
complainant was consenting, when he was aware of the need for some inquiry, but decided not
to inquire because he did not want to know the truth. Because the appellant was willfully blind
to the consent of the complainant, the defense of mistake of fact cannot apply.
Ratio: The defense of mistake of fact does not apply in a sexual assault case where the accused
was willfully blind to the lack of consent.
The culpability in recklessness is justified by consciousness of the risk and by proceeding in
the face of it, while in willfull blindness it is justified by the accused’s fault in deliberately
failing to inquire when he knows there is reason for inquiry. (IMP)
Professor- Defines willful blindness for mens rea: “Did the accused shut his eyes because he
knew or strongly suspected that looking would fix him with knowledge?” Here, did the
accused have an honest belief that the woman was consenting to sex? No, accused was willfully
blind to the circumstances. Where an accused is deliberately ignorant as a result of blinding
himself to reality, the law presumes knowledge (willful blindness), and their belief in another
state of facts is irrelevant.
PROFESSOR IN PPT
R. v. Sansregret, [1985] 1 SCR 570
At trial, the judge found not only that the complainant consented to intercourse solely because
of fear engendered by appellant's threats but also that the appellant honestly believed that the
consent to intercourse was freely and genuinely given.
The trial judge acquitted the appellant. On appeal, the Court of Appeal set aside the acquittal
and entered a conviction for rape.
SCC considered relationship of recklessness to willful blindness.
Part 2- Objective Knowledge, Criminal and Penal NegligenceOBJECTIVE
R v. Hundal- modified objective test for driving.
Pg- 472-473
Facts: Hundal was driving his overloaded dump truck towards an intersection. There were
several witnesses who said that he ran a red light. He is charged with "dangerous driving
causing death" under s. 233 (now s. 249) of the Criminal Code.
Issue: What is the mens rea required to prove the offense of dangerous driving?
Whether there is a subjective element in the requisite mens rea which must be established by
the Crown in order to prove the offence of dangerous driving described in then s. 233 (now s.
249) of the Criminal Code.- NO
Decision: Appeal dismissed.
Reasons: To determine this issue the court must interpret s. 249 of the Code. They modify the
objective test to allow subjective standards to be brought in as a consideration. They say that
overall it is an objective standard of fault that is required. The court looks at the wording of the
section and determine that it implies an objective standard. They also look at the nature of
driving and determine that it is not required of the court to determine that the individual had
the specific knowledge required – if you have the mental capacity to drive, and the license to
do it, then you have to meet the standard of not driving dangerously. What you are thinking
does not seem to matter in this case.
This is a purposive approach – what is the activity? How is it regulated? They also look at the
nature of the activity of driving – it is almost a reflexive activity, as drivers have trouble stating
what their specific intent was at any point while driving. Therefore, proof of subjective fault
becomes almost impossible. They also look to statistics to say that the objective test is required
because it will be easier to get convictions, which will result in deterrence for potential future
dangerous drivers.
The offence at issue should be assessed objectively within the context of all the surrounding
events - "The trier of fact must be satisfied that the conduct amounted to a marked departure
from the standard of care that a reasonable person would observe in the accused's situation."
Ratio: The test for the required mens rea of dangerous driving is a modified objective test you must take all of the surrounding circumstances (the events surrounding the incident) into
consideration in order to determine if the accused committed a "marked departure" from what
a reasonable person in the same circumstances would have done.
Professor- In general, the Supreme Court of Canada has accepted objective fault as an
appropriate basis for imposing criminal liability in most cases. The distinction between
subjective and objective standards of fault is easy to state, hard to apply in practice. In
subjective mens rea analysis, question is whether accused given his personality, situation and
circumstances, actually intended, knew or foresaw the consequences and/or circumstances as
the case may be. Whether he "could" "ought" or "should" have foreseen or whether a reasonable
person would have foreseen knew or foresaw the consequences and/or circumstances is the
relevant criterion of liability for objective fault.
R v. Creighton- Three-part test for manslaughter. Objective
foresight of harm, not death.
Pg- 474-479
Facts: Creighton, an experienced drug user, administered cocaine to a willing woman who
subsequently died. He refused to contact the authorities when she stopped breathing after taking
the drug, but his friend eventually did. He was charged with manslaughter by criminal
negligence.
Issue: Is the mens rea required for manslaughter subjective or objective?
If it is objective, how much weight should be given to the personal characteristics of the
accused?
Is the objective standard contrary to s. 7 of the Charter?
Decision: Appeal dismissed.
Reasons: Lamer gives the minority decision. He states that there is no general constitutional
principle that states that crimes need subjective mens rea. He says that only specific heinous
crimes that carry with them a certain stigma require subjective mens rea. Although
manslaughter involves the killing of a person, it does not involve intentional killing and
therefore is not as stigmatic as murder. He says that the Charter requires a minimum of
objective mens rea. He also goes on to say that the test for manslaughter is an objective test.
However, a mere objective test would violate s. 7, therefore it needs to be a modified objective
test that takes the specific circumstances of the individual into considerable note. He says that
you must consider the capacities of the individual in determining whether they were able to
live up to the objective reasonable standard, and then alter the standard accordingly if they
were not. (NOT IMP.)
McLachlin agrees that the test is objective, and that only objective mens rea is required for
manslaughter. However, she disagrees with the alterations to the objective standard that Lamer
attempts to make. She finds that the common law requirement of "objective foreseeability of
the risk of bodily harm" is constitutional. Lamer disagreed and stated that you needed to have
objective foreseeability of harm causing death. For him foreseeability of simply bodily harm
is unconstitutional. According to McLachlin, to do this would require the courts to abandon
the thin skull test and require the Crown to prove too much in order to get a conviction for
manslaughter. She states that manslaughter is treated to be much less blameworthy than
murder, and that this must be considered.
McLachlin completely disagrees with Lamer's additions to the objective test, and states that
they essentially make it a subjective test. She says that the reasonable standard should not be
concerned with "frailties" of the accused's character, and that public policy demands a single,
uniform legal standard to be identified. The standard is what a reasonable prudent person would
have understood in the circumstances. In the end, she sets out a three-part test that must be
satisfied for a conviction in manslaughter:
Establish actus reus – the activity (negligence) must constitute a marked departure from the
standards of the reasonable person in all the circumstances of the case.
Establish mens rea – the activity must have been done while there was objective foresight of
harm (not death) that can be inferred from the facts. The standard is of the reasonable person
in the circumstances of the accused.
Establish capacity – given the personal characteristics of the accused, were they capable of
appreciating the risk of harm flowing from their conduct?
Ratio: Objective mens rea is in line with the Charter, and is all that is required for a conviction
in manslaughter.
The objective standard is whether a reasonable person in the circumstances would have
foreseen the risk of harm from their actions. If this is satisfied, then the necessary mens rea has
been proven. You should not incorporate personal characteristics into the reasonable standard,
as it has to be an unchanging standard that is easy to understand. Only if an accused lacked the
capacity to understand the risk flowing from their actions can they be excused.
Three-part test that must be satisfied for a conviction in manslaughter:
Establish actus reus – the activity must constitute a marked departure of the care of a
reasonable person in the circumstances of the case
Establish mens rea – the activity must have been done while there was objective foresight of
harm (not death) that can be inferred from the facts. The standard is of the reasonable person
in the circumstances of the accused.
Establish capacity – given the personal characteristics of the accused, were they capable of
appreciating the risk of harm flowing from their conduct?
Professor- For true crimes (i.e. murder, manslaughter, etc.), an accused cannot be convicted of
an objective fault offence without possessing the requisite capacity to appreciate the risk
flowing from the conduct. The burden will be on the accused, however, to raise a reasonable
doubt about capacity during the trial process. Absent evidence of incapacity, the mens rea of
objective foresight of risking harm can be inferred from the facts. It is important not to confuse
personal characteristics with context. The reasonable person must be put into the situation the
accused was in.
R v. Beatty- ‘marked departure’ needed for negligent driving.
Pg- 480-490
Facts: B charged with dangerous driving causing death under s.249(4). Truck crossed solid
centre line and killed 3 people. Prior to this B was driving properly. B doesn’t know what
happened, he must have lost consciousness or fallen asleep.
Dangerous Driving, s.249 – Contextualized objective standard
→ AR: persons driving is objectively dangerous
→ MR: marked departure from the standard of care that reasonable person in circumstances
would observe
Issue: Does s.249 require a marked departure or simple negligence standard?
Whether there was 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?
Decision: B did not meet the high level of MR required - it was only a few seconds and that
does not constitute negligence in this case
Reasons: The burden is on the accused to raise a reasonable doubt about whether a reasonable
person in the accused position would appreciate the risk he has created.
Hundal - It is only where there is a marked departure from the norm that objectively dangerous
conduct demonstrates sufficient blameworthiness to support a finding of penal liability.
→ Personal attributes such as age and experience are not relevant – incapacity to appreciate
the risk or incapacity to avoid creating it is relevant
Ratio: A modified objective test for negligent driving is a marked departure, in the
circumstances the accused knew at the time, not taking into account personal characteristics,
unless incapacity to appreciate the risk.
A modified objective test is the appropriate test to determine the requisite mens rea for
negligence based criminal offences
A momentary lapse of attention is not a “marked departure” from the reasonable person
standard.
Professor- Look at particular offence (in this case dangerous driving causing death) – does it
require a marked departure from standard of care of a reasonable person or simple negligence
standard? A modified objective test for negligent driving is a marked departure standard, in the
circumstances the accused knew at the time, not considering personal characteristics, unless
incapacity to appreciate the risk. A modified objective test is the appropriate test to determine
the requisite mens rea for negligence based criminal offences.
R v. Roy- error in judgement not marked departure.
Pg- 490-492
Facts: R. driving back from work with passenger. Visibility limited due to fog, unpaved road
they were on was steep, snow-covered, slippery. R. stopped, proceeded onto highway directly
into path of oncoming tractor-trailer. R.’s passenger killed, R. survived, but lost memory of
circumstances and surrounding events. R. convicted of dangerous driving causing death, and
appeal to CA was dismissed.
Issue: Do the driver’s actions constitute penal negligence? What impact should
context/personal characteristics have?
Did the trial judge apply incorrect legal principles when he addressed the fault component of
the offence? - Yes
If he applied incorrect legal principles, was his error harmless in the circumstances? - Not
harmless
If the judge erred and the error was not harmless so that the appeal must be allowed, should the
Court order a new trial or direct an acquittal?
Holding: Acquittal given.
Reasoning: (Cromwell J.)- Dangerous driving causing death is a serious criminal offence
punishable by up to 14yrs in prison; consists of two elements
1. Prohibited conduct: operating vehicle in dangerous way causing death.
2. Degree of Fault: marked departure from standard of care that reasonable person would
observe in the circumstances (Beatty)
Fault factor is to ensure that only those deserving of the stigma of criminal conviction are
punished. How to determine whether the fault (mens rea) is present?
1.In light of all relevant evidence, would reasonable person have foreseen risk and taken steps
to avoid it if possible?
2.Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked
departure from the standard of care expected of a reasonable person in the accused’s
circumstances?
* Distinction between a mere departure (which can ground civil liability) and the marked
departure (necessary for criminal liability) is a matter of degree and must be identified by the
trier of fact.
·Personal attributes will only be relevant if they go to capacity to appreciate or to avoid the
risk.
Application: trial judge erred in simply inferring from the fact that R. committed a dangerous
act while driving that his conduct displayed a marked departure.
Ratio: Distinction between a mere departure (which can ground civil liability) and the marked
departure (necessary for criminal liability) is a matter of degree and must be identified by the
trier of fact.
Personal attributes will only be relevant if they go to capacity to appreciate or to avoid the risk.
A single error in judgement like in this case is not marked departure from the standard of care
expected of a reasonable person in the accused’s circumstances.
Professor- There was no evidence to support the finding that accused was aware of the risk he
was creating and deliberately chose to run that risk, and fault could not be inferred from the
fact that the driving was, objectively viewed, dangerous. The record here discloses a single
and momentary error in judgment with tragic consequences. Since the record did not provide
evidence on which a properly instructed trier of fact, acting reasonably, could have concluded
that accused’s standard of care was a marked departure from that expected of a reasonable
person in the circumstances, accused was acquitted.
31st October- Tuesday
MENS REA
Part 3- Constitutional Considerations
R. v Finta- subjective test for mens rea for war crimes and crimes
against humanity.
Pg-496-499
Facts: Finta charged with 8000 counts of unlawful confinement, robbery, and manslaughter,
during a war that constituted War crimes and Crimes against humanity – s.7(3.71)
Issue: Whether the mens rea for war crimes and crimes against humanity is to proved
objectively or subjectively?
Analysis: Actus Reus is Inhumane act= inhuman, uncivilized, not humane, destitute of
compassion for suffering.
→ Inhumanity means some kind of treatment that is unnecessarily harsh in the
circumstances.
→ The standard is viewed objectively – if in the time of war, it would shock the conscious of
people.
Mens Rea- To be proved that the accused was aware of or wilfully blind to the circumstances
that would bring his or her actions added dimension of cruelty.
Ratio: The requisite mental elements of a war crime or crime against humanity should be based
on a subjective test. It is not necessary that the person should know their actions are inhumane.
It is enough if they are aware of the circumstances which would bring their acts within the
definition of war crimes or crimes against humanity.
Professor- Considers war crimes and Crimes against Humanity. Was conduct sufficiently
blameworthy to merit the punishment and stigma that will ensue upon conviction for that
offence (i.e. war crimes). Mental elements of a war crime or crime against humanity should
be based on a subjective test. In this case accused was either aware of or wilfully blind to
circumstances, leading to added dimension of cruelty or inhumane acts. Standard of inhumane
act is viewed objectively (i.e. “shock conscience” of people).
R. v Martineau- murder requires subjective foresight of death
headnote
Facts: Martineau and a friend were out with weapons (a pellet gun and a rifle), and they knew
that they were going to commit a crime. Martineau thought that they were only going to commit
a "Break and Enter". They broke into a trailer, robbed the occupants at which time Martineau's
accomplice shot and killed the husband and wife living there. Martineau is charged under s.
230(a) of the Criminal Code which states that homicide is murder if it is committed during a
break and enter and a death ensues when a person means to cause bodily harm to commit the
crime or get away, even if he doesn’t want to kill the person, or think that it is likely that they
will die. Martineau was convicted at trial; the conviction was quashed upon appeal which the
Crown appealed to the Supreme Court.
Issue: Does a charge of murder require intent and is it subjective or objective intent that is
required?
Decision: Appeal dismissed.
Reasons: Lamer, following his decision in R v Vaillancourt, again states that he believes that
all murders should require subjective intent, as it is the most heinous and punished crime, and
therefore this high threshold should be set, saying "a conviction for murder cannot rest on
anything less than proof beyond a reasonable doubt of subjective foresight of death." He
decides that this section, as well as the rest of s.230 should be deemed contrary to the Charter
and casts significant doubt on the validity of any felony murder sections of the Code.
Dissent: L'Heureux-Dubé, writing a lone dissenting opinion, believes that there was in fact
objective foresight in this case, particularly with the second killing, and therefore that the
conviction should be reinstated. She also states that policy considerations in the legislation
indicates that crimes such as those listed in s. 230 should be considered murder as a deterrent.
She thinks that requiring only objective foresight is not contrary to the principles of
fundamental justice.
Sopinka agrees with Lamer that s.230(a) should be struck down as contrary to the Charter.
However, he does not agree that all instances of murder must require subjective intent to be
proven in order to obtain a conviction, as the scope of this case is not wide enough to justify
such a far-reaching policy decision (leaning on the ideas of judicial restraint).
Ratio: Section 230(a) of the Criminal Code is contrary to the Charter.
A person cannot be convicted of murder without proof of subjective foresight of death.
Professor- Section of Criminal Code was struck down by the courts because it stated culpable
homicide as murder where a person causes the death of a human being while committing or
attempting to commit a range of listed offences, whether or not the person means to cause
death or whether or not or he or she knows that death is likely to ensue. The principles of
fundamental justice require, because of the special nature of the stigma attached to a
conviction for murder, that the mens rea of intention to cause death or of intention to cause
bodily harm that they know will likely cause death.
R. v DeSouza- less stigma, then objective mens rea
headnote
Facts: Shortly before midnight, during a New Year party in Toronto on December 31, 1987, a
fight broke out. Several people started throwing bottles including Joao DeSousa who threw a
bottle that ricocheted off the wall and hit Teresa Santos in the forearm causing serious harm.
DeSousa was charged with unlawfully causing bodily harm contrary to s.269 of the Criminal
Code.
Issue: Whether s.269 of the Criminal Code violated the s.7 of the Charter as it potentially
allowed for prison sentences for "Absolute Liability" offences (which was deemed
unconstitutional in Re B.C. Motor Vehicle Act).
Held: Justice Sopinka, writing for the Court, held that s.269 did not violate s.7.
Reasoning: The charge itself is broken down into two separate requirements. First, there
must be an underlying offence (the "unlawful act") with a valid mens rea requirement. This
includes provincial and federal offences, criminal or otherwise, but precludes any absolute
liability offences. Secondly, the "unlawful act" must be at least "objectively dangerous" so
that a reasonable person would realize that the act created a risk of bodily harm. Due to the
lack of stigma or any sort of significant prison sentence attached to the offence it did not
warrant a higher "subjective fault" requirement (R. v. Martineau).
The Court dismissed the argument that the offence would punish the morally innocent by not
requiring proof of intention to bring about the consequences. Instead the offence aims to
prevent objectively dangerous acts (this justification was elaborated on in R. v. Creighton).
Ratio: Professor- Supreme Court discussion of particular provisions of the criminal code and
what Parliament’s intention in enacting them. In this case, due to the lack of stigma or any
sort of significant prison sentence attached to the offence it did not warrant a higher
"subjective fault" requirement. The Court dismissed the argument that the offence would
punish the morally innocent by not requiring proof of intention to bring about the
consequences. Instead the offence aims to prevent objectively dangerous acts (i.e. acts that a
“reasonable person” would realize created risk of bodily harm).
MENS REA
Part 4- Absolute and Strict Liability
Beaver v The Queen- was not a public welfare offence.
Pg-408-413
Facts: Beaver sold drugs to an undercover police officer, thinking the package was actually
sugar of milk. The package actually contained heroin, but his (now deceased) brother was
carrying it. They were working jointly. They accused were found guilty for sale and
possession of drugs. Now this appeal.
Issue: Can the necessity of mens rea be excluded for the possession of drugs? NO
Is he responsible for selling drugs? YES
Whether mistake of fact is a valid defence? YES
Reasoning: (1) Is this a public welfare offence case?-In Hobbs v Winchester Corp, the
subject matter of the statute was to prevent the sale of unsound meat to the public, which can
be regarded as public welfare offence case. However, a statute addressing the possession and
trafficking of drugs can hardly be compared to the statutes about meat. Ans: NO
(2) Wording of s.17 excludes the need for mens rea?- The crown claims that because section
4(1)(d) of the act does not include words such as “unless he prove that the drug was in his
possession without his knowledge” like section 15, the Parliament intended that lack of
knowledge be no defence. However, there is a minimal imprisonment attached to s. 4(1)(d).
There is no other offence in the criminal code for which a sentence of imprisonment is
mandatory which excludes the necessity of mens rea. Also, if someone went to the store to
buy baking soda, and the seller actually hands him heroin, it is difficult to believe that the
parliament would have wanted that honest buyer to be held responsible. Ans: NO
(3) Responsible for selling drugs?- Jointly Sold a substance represented or held out by them
to be heroin. Ans: YES
(4) Possession or dealing in Narcotics was a truly criminal offence and not a public welfare
offence.
Dissent: FAUTEUX (dissent)- not important
Parliament was clear that it wanted to crack down on possession of drugs to protect society at
large from the dangers of drug trafficking. This is evident throughout the provision, with its
severity. “The subject-matter, the purpose and the scope of the act are such that to subject its
provisions to the narrow construction suggested by the appellant would defeat the object of
the act.”
Ratio: Statutory interpretation of the intention of parliament will help determine if mens rea
is necessary to show criminal liability. The words of the statute must be clear and admit no
other interpretation is mens rea is to be excluded by the parliament.
When parliament is not clear about strict liability (whether Mens Rea is necessary), the courts
will presume that Mens Rea is necessary to be shown.
Professor- For crimes involving possession of a narcotic, Crown must prove the accused had
physical control of the prohibited substance with subjective knowledge that the substance was
prohibited. An honest but mistaken believe may serve to negate required mens rea for this
offence.
R v Pierce Fisheries Ltd- mens rea not required public interest
case.
Pg-413-415
Facts: Accused was charged with having undersized lobsters in its possession. On that day,
they brought back 50/60K lbs of lobster and 26 lobsters were found to be undersized.
Issue: Can they be found criminally responsible for having undersized lobsters without
knowing of the existence of these?
Holding: YES
Reasoning: RITCHIE (majority)
Regulations around fisheries are intended to protect lobsters from depletion, hence serving a
general public interest. It is not an offence similar to the ones found in the code, hence it is not
a new crime added to the criminal law, and hence it need not have mens rea. Also, the language
of the regulation doesn’t contain words such as ‘knowingly’, ‘wilfully’, ‘with intent’ etc. and
thus, does not lead to believe that intent or knowledge are necessary to find liability.
Dissent: CARTWRIGHT (dissent)
Beaver states that to be found criminally responsible for possession, you must have knowledge
of that possession. This is the essence of criminal possession. Hence, accused cannot be found
guilty.
Ratio: Statute which criminalizes behaviour for the general public interest can be excluded
from showing mens rea.
Professor- Regulatory offence, differs from criminal code offense. Issue was whether
fisherman could be found responsible for having undersized lobsters without knowing of the
existence of these lobsters. Yes, because regulations around fisheries are intended to protect
lobsters from depletion, hence serving a general public interest. It is not an offence similar to
the ones found in the criminal code, and does require mens rea. Also, the wording offence does
not lead to believe that intent or knowledge are necessary to find liability.
R. v Sault Ste. Marie(IMPORTANT) - strict liability introduced.
Pg-418-424
Facts: Sault Ste. Marie was responsible for the disposal of garbage in their city. They entered
into an agreement with a third party to dispose of garbage in a particular area. This party created
a landfill that leaked into the nearby river causing pollution. S. 32(1) of the Ontario Water
Resources Act (now s. 30(1)) stated that every person or municipality that discharged, deposits
or causes or permits the discharge or deposit of pollution into water is liable under summary
conviction at the first offence for a fine of not more than $5000, and on subsequent offences of
a fine not more than $10,000 or to imprisonment for less than a year. The charge was dismissed
at trial as the judge held that the city was not itself responsible for the disposal operations, but
a conviction was entered at trial on the basis of strict liability under the Act.
Issue: What is a public welfare offence and is it a strict liability offence?
Reasons: Dickson, writing for a unanimous court, goes through all of the reasons for and
against public welfare offences in other jurisdictions and comes to the conclusion that they are
to have a lesser fault requirement than true crime offences (those in the Code). However, when
they are serious and have the risk of hefty fines or imprisonment the defendant should not be
absolutely liable; they should have the chance to excuse themselves if they can show, on a
balance of probabilities, that they lived up to reasonable standards in the situation. He defines
three types of offences:
True crimes: offences that require mens rea. Words like intentionally, wilfully, etc.
Offences of strict liability: offences in which there is no necessity for the Crown to prove the
existence of mens rea but the defendant can get off by proving that they acted reasonably in
the circumstances. Public welfare offences tend to fall in this category, as they are not in the
Code, but have the risk of large fines or imprisonment associated with them.
Offences of absolute liability – The Crown does not need to prove mens rea, and the defendant
has no chance to exculpate himself by showing he was acting reasonably. These are generally
only offences with very minor fines as punishment.
He goes on to state that another reason why specific offences fall under the latter two headings
are because they are created in provincial statutes. Provinces have no control over criminal law
under the Constitution Act therefore they cannot be "true crimes".
Ratio: There are three different types of offences: true crimes, strict liability offences, and
absolute liability offences.
The defence available to the accused in a strict liability offences is that he acted with due
diligence and took all reasonable steps.
Offences that are created in provincial statutes can only be absolute or strict liability offences,
because provinces have no jurisdiction to enact criminal law.
In general, public welfare offences are strict liability offences.
Professor- Landmark case. Supreme Court recognized three categories of offences: True
Crimes, Strict Liability, Absolute Liability. True crimes are in criminal code. As for other two:
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 will be primary
considerations in determining whether the offence is absolute or strict liability.
Reference re Section 94(2) of the B.C. Motor Vehicle Act- no
imprisonment in absolute liability offences.
Pg-425-430
Facts: Section 94(2) of the Motor Vehicle Act stated that a person who drives a motor vehicle
on a highway while license is suspended is guilty of an absolute liability offence, and is liable
to a fine between $300 and $2,000, and imprisonment between a week and six months (on the
first offence). The government is arguing that this does not violate s.7 of the Charter.
The Court of Appeal ruled that this violated section 7 of the Charter because absolute liability
offences cannot have mandatory prison sentences. Having mandatory prison sentences for
crimes that have no defence violates the principles of fundamental justice and the right to be
presumed innocent. However, they did not answer whether or not merely having imprisonment
available as an option for an absolute offence was contrary to s.7.
Issue: Can absolute liability offences have imprisonment available as a punishment?
Decision: Appeal dismissed; the section violates s.7 of the Charter and is of no force and effect.
Reasons: Lamer, writing for the majority, states that even having imprisonment available as a
punishment for an absolute liability offence always violates s.7 of the Charter, and renders the
section of the legislation of no force or effect unless it is justified by s.1. He states that the
principles of fundamental justice rest not just in the procedural context, but also in our rights.
The combination of imprisonment and absolute liability always violates s.7 and must be saved
by s.1 in order for it to remain valid. However, doesn’t mean that all absolute offences violate
s.7 - only the ones with imprisonment available as a punishment.
Lamer does not find that this section is saved by s.1, as it does not "minimally impair" the
impugned right (this judgment is pre-Oakes). In her concurring judgment, Wilson talks more
about the objectives of imprisonment, and how they are not served by imprisoning people
without a chance to defend themselves.
Ratio: Absolute liability offences that have imprisonment available as a punishment violate s.7
of the Charter.
Imprisonment without a chance of defence is contrary to the principles of fundamental justice.
Professor- In terms of quasi criminal offences, some level of fault required prior to accused
losing his/her liberty. Decided after Charter came into effect, ruled that Absolute Liability
offences that include possibility of imprisonment violate Section 7 of the Charter. Long
discussion of fundamental justice principles and Charter.
R. v. Wholesale Travel Group Inc.- if due diligence defence
available, regulatory offences don’t violate s. 7 of charter.
Pg-432-441
Facts: Wholesale Travel was charged with false advertising under s.36(1) ((now s.60)(2)) of
the Competition Act. They stated that they were offering vacation packages "at wholesale
prices" when in fact they were charging more to customers than they had to pay for the
vacations. The statutory punishments for the offence were a fine of up to $25,000 and five
years in prison. There were also lengthy statutory defences defined, which included exculpating
oneself by showing that they acted reasonably in the circumstances. Wholesale Travel appeals
on an order for trial from the Court of Appeal.
Issue: Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the
Charter?
Decision: Appeal Dismissed.
Reasons: Cory J reaffirms the decision of R v Sault Ste. Marie. This is obviously a strict
liability offence for all of the reasons set out in the previous case. Therefore, the Crown does
not need to prove mens rea in order to get a conviction; however, the defendant can be acquitted
if they can show that they acted reasonably in the circumstances (among the other things
required for the statutory defence).
The Court unanimously held that that the "timely retraction" provisions of s. 37.3(2)(c) and (d)
of the Act did infringe s.7 and could not be saved under s.1. (NI)
The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2)
was constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin,
Stevenson, and Iacobucci) held that the reverse onus infringed s. 11(d) of the Charter.
However, only four of the seven held that it could not be saved under s.1. Since the
remaining two judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate
s.11(d), a majority was had by those that argued a reversal of onus was constitutionally
justifiable by a 5 to 4 margin. (NI)
Ratio: Public welfare offences are generally strict liability offences, meaning that the Crown
does not need to prove mens rea, but the defendant can be acquitted if they prove that they
acted reasonably in the circumstances.
If the offence has a statutory defence that is similar to this requirement then it falls under the
heading of strict liability offences, and the Crown does not need to prove mens rea for a
conviction.
Corporations can challenge the constitutional validity of sections of the Code or other statutes
even if the sections that are infringed deal with the rights of individuals. Laws that are found
to be unconstitutional do not apply to anyone – including corporations.
Professor- Offences for which the mens rea is not necessary (i.e. regulatory offences) do not
violate s. 7 of the Charter when a due diligence defence is available.
2ndth November- Thursday
EXTENSIONS OF CRIMINAL LIABILITYPart 1- Parties, Counseling and Accessory after the fact.
Modes of Participation
R v. Thatcher-no need for unanimity as to mode of participation.
Pg-527-530
Facts: Appellant was arrested and charged with causing the death of his ex‑ wife. On January
21, 1983, appellant's ex‑ wife was ferociously beaten and then shot to death. At trial, the Crown
led direct and circumstantial evidence to prove that the appellant had personally murdered his
ex‑ wife or, alternatively, that he aided or abetted the killer and was therefore guilty as a party
to the offence pursuant to s. 21 of the Criminal Code. The bulk of the evidence tendered by the
Crown was consistent with either theory. In defense, appellant adduced alibi evidence and
denied any involvement in the killing.
In his charge, the trial judge instructed the jurors that the appellant could be found guilty of
murder if they were satisfied beyond a reasonable doubt that he was the principal offender or
a party to the offence under s. 21 of the Code. He was convicted of first degree murder and his
appeal was dismissed by the Saskatchewan Court of Appeal and now appeals to the Supreme
Court.
Held: The appeal should be dismissed.
Ratio: Section 21(1) of the Criminal Code is designed to make the difference between aiding
and abetting and personally committing an offence legally irrelevant. 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 and not some separate
distinct offence. There is no need for the Crown to specify in the charge the nature of an
accused's participation in the 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.
Professor- 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 as such, 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. In this
case, there was very strong evidence connecting appellant with the crime.
Aiding And Abetting
R. v. Greyeyes- assisting to get drugs is aid and abetting.
Pg- 537-541
Facts: During an undercover operation Greyeyes introduced an undercover agent to a seller,
slid the money under the locked door and handed the cocaine to the agent and was given $10
for his trouble. Greyeyes was charged with trafficking in cocaine and with breaching an
undertaking contrary to s145(3)(a) of the Code but was acquitted on both counts on the basis
the Crown failed to prove he trafficked within the meaning of s4(1) of the Narcotic Control
Act and that he had not aided or abetted the vendor and was therefore not a party to the offence
as contemplated by s 21 of the Code. He was convicted on appeal and he further appealed to
the Supreme Court.
Issues: Has Greyeyes acted as a someone aiding and abetting, or as a purchaser?
Decision: Appeal dismissed and conviction for trafficking upheld. Without his assistance, the
purchase would never have taken place.
Reasons: Clearly the appellant acted in such a way that he aided with the traffic - it would have
been impossible had he not been around. Hence, the actus reus is fulfilled. Greyeyes acted as
agent and while acting as agent aided and abetted the unidentified seller in committing the
offence and thus became a party to the offence of trafficking. Mens Rea was there as appellant
no doubt knew what he was doing, and that he was assisting in an illegal transaction. He
intended to facilitate the sale of narcotics and is culpable for intention.
Aid: s.21(1)(b): to assist or help the actor.
Abet: s. 21(1)(c): includes encouraging, instigating, promoting or procuring the crime to be
committed.
Ratio: Crown must prove that the accused intended the consequences that flowed from his aid
to the principal offender and need not show that he desired or approved the consequences.
(same for professor)
R v. Briscoe- willful blindness satisfies knowledge when
knowledge is mens rea of offence.
Pg- 542-546
Courtepatte, a 13‑ year‑ old girl, and a young friend were lured into a car on the false promise
of being taken to a party. Briscoe drove the group (Laboucan and three youths) to a secluded
golf course. Laboucan had said earlier in the day that he would like to find someone to kill and
Courtepatte was chosen as the victim. On their arrival, Briscoe opened the trunk and, at
Laboucan's request, handed him some pliers. One of the youths hit Courtepatte from behind
with a wrench. For a moment, Briscoe held on to Courtepatte and angrily told her to be quiet
or shut up. Briscoe then stood by and watched as Courtepatte was brutally raped and murdered.
All five persons involved were charged with kidnapping, aggravated assault and first-degree
murder and the two adults, Briscoe was acquitted. The trial judge found that the actus reus for
being a party to the offences was proven, but not the mens rea because Briscoe did not have
the requisite knowledge that Laboucan intended to commit the crimes. The Court of Appeal
overturned the acquittals and ordered a new trial, holding that the trial judge erred in law by
failing to consider wilful blindness. Court of appeal ordered a new trial and now an appeal to
the Supreme Court is made.
Issue: What is required to make a finding of willful blindness?
Was the accused party to the sexual assault and murder?
Decision: Appeal dismissed.
Reasons: Charron, writing for the court, rejected the argument brought forward by the
appellant that wilful blindness was but a heightened form of recklessness. Wilful blindness is
best understood as "deliberate ignorance" as it connotes "an actual process of suppression a
suspicion". From the statements made to police by Briscoe where he is quoted "That's what I
seen. And I was like ahh fuck I don't wanna know" it is clear that there was a deliberate
supression of questioning and a strong suspicion that someone was to be killed.
Ratio: Willful blindness is an active process of suppressing a suspicion.
Willful blindness substitutes for actual knowledge when knowledge is a required component
of the mens rea of the offence.
Professor- Requirements of willful blindness and being arty to sexual assault and murder
discussed. Court rejected the argument that willful blindness was just a heightened form of
recklessness. Willful blindness is best understood as "deliberate ignorance" as it connotes "an
actual process of suppressing a suspicion". Proved that accused did suppress a strong suspicion
that someone was to be killed.
Dunlop and Sylvester v. The Queen- Mere presence without
knowledge of offence is not sufficient for a third party to be
culpable.
Pg- 546-552
Facts: A gang rape of the complainant occurred late at night in an isolated area, the site of a
former dump, where members of a motorcycle club were having a party. Some eighteen men
had intercourse with the complainant while she was being held by two other members of the
group. She identified Dunlop and Sylvester as two of the men who attacked her but they denied
the charge. They testified that they had attended a meeting of the club at the dump earlier in
the evening in question, and later were present in a beverage room where the complainant and
a friend were spending some time. Still later, the accused delivered a quantity of beer at the
dump. Dunlop saw a female having intercourse; with whom he believed to be a member of the
motorcycle club. After three minutes, he and his co-accused left.
Issue: Is mere presence sufficient to find aiding and abetting?
Decision: Appeals allowed, acquittals entered.
Reasons: 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. In the case at bar 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. (professor)
A person cannot properly be convicted of aiding and abetting in the commission of acts which
he does not know 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.
Ratio: Mere presence is not sufficient for a third party to be culpable. A finding of aiding and
abetting requires some knowledge of the crime to be committed and some positive act or
omission which aids or abets the offence.
Common IntentionR v. Kirkness- death by suffocation and not sexual assault.
Pg- 553-558
Facts: The appellant and a friend named Snowbird agreed to break and enter, but Snowbird
committed murder and sexual assault as well. The Appellant asked the accused to not strangle
the victim, but otherwise did not prevent or dissociate himself from the crime.
Snowbird sexually assaulted and killed the eighty-three year old woman who lived there.
Appellant was told to leave the room when the assault began and remained across the hall while
the assault was occurring. He placed a chair against the outside door of the house and occupied
himself with stealing various things from the house. Snowbird dragged his unconscious victim
into the hallway and began to choke her. Appellant asked him "not to do that because he
(Snowbird) was going to kill her." Snowbird then suffocated the victim.
Snowbird was convicted of first degree murder. Appellant was acquitted, but the Court of
Appeal set aside the verdict and directed a new trial on the charge of manslaughter.
Decision: The Supreme Court allowed the acquittal of murder.
Reasons: Cory J, writing for the majority said, “The appellant, when he formed an intent in
common with Snowbird to carry out the break and enter, did not know before entering that
Snowbird would either commit a sexual assault or kill the victim. Appellant was not a party to
the suffocation and, indeed, put Snowbird on "timely notice" that he was acting on his own.
The single transaction principle was not applicable short of evidence linking the appellant and
the sexual assault to the suffocation.” There was no evidence that the appellant knew or had
reason to believe that death was likely to result from the sexual assault.
Ratio: There has to be substantial knowledge of the consequences. Kirkness was not a party to
the suffocation. There was no evidence that appellant knew or had any reason to believe that
death was likely to result from sexual assault.
R v. Gauthier- defence of abandonment.
Pg- 558-560
Facts: Accused had entered into a pact with her husband to murder their children and commit
suicide. The accused after supplying her husband with pills to kill their children, communicated
to him that they should not go through with their plan. She was convicted of aiding and abetting
in the murder of her three children. She appealed.
Issue: Whether there is sufficient evidence of abandonment.
Decision: Appeal dismissed.
Ratio: A defence of abandonment can be raised if the evidence shows1. That there was an intention to abandon or withdraw from the unlawful purpose.
2. That there was timely communication of the intention to abandon the common purpose to
those who desire to continue in it.
3. The communication, verbal or otherwise, must be unequivocal notice upon those who
wished to continue.
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.
The appellant supplied her spouse with intoxicants to cause their children’s deaths. She had to
do more to neutralize the effects of her participation or to prevent the commission of the
offence. Eg. Hiding or destroying the medication she had purchased.
Therefore, she was guilty as the defence of abandonment did not meet the air of reality test.
Accessory after Fact
R v. Duong- Wilful blindness satisfies knowledge for accessory
after fact case.
Ratio- Wilful blindness can fulfil the mens rea requirement for section 23.
Professor- For party to murder offence, issue was whether it required proof that accused knew
or was wilfully blind to the fact that principal offender committed a murder or just that an
unlawful act was committed. Where the Crown proves the existence of a fact in issue and
knowledge of that fact is a component of the mens rea of the crime charged, wilful blindness as
to the existence of the fact is sufficient to establish a culpable state.
EXTENSIONS OF CRIMINAL LIABILITY- Attempts and
Conspiracies
Part 2- Attempts and Conspiracies
Actus Reus of Attempt
R v. Cline- Actus reus of attempt is more than mere preparationPg- 571-772
Facts: Cline approached a young boy and asked him to help carry his suitcase, and told the
boy that he would give him money for his help. The boy refused. This happened again a few
months later. At trial evidence came out that the accused had done this several times before in
the exact same style, and that on some occasions he managed to get the boys to help him and
then he performed "indecent acts". He was charged with indecent assault and convicted at trial.
Issue: Can you be charged with an offence (in this case indecent assault) even if you did not
actually get to complete the offence, but were trying to?
Decision: Appeal allowed; conviction quashed, new conviction for attempt to commit indecent
assault entered.
Ratio: Laidlaw, writing for the majority, states that Cline cannot be guilty of indecent assault
here because he did not actually assault the young boy. However, the evidence shows a definite
pattern of conduct that was meant to lead to assault. Therefore, the evidence establishes that
the accused attempted to commit the offence.
He continues to find that criminal intention alone is enough to establish a criminal attempt.
Although there must still be both mens rea and actus reus, in attempt it is the mens rea that is
of primary importance. The actus reus must be more than a preparation to commit the crime;
it must be an actual attempt to commit the crime that has not succeeded for whatever reason.
He then lays out six factors dealing with attempt:
1. There must be both mens rea and actus reus, but the criminality of the misconduct lies
primarily in the intention;
2. Evidence of similar acts done by the accused before the offence with which he is
charged, and also afterwards if such acts are not too remote in time, is admissible to
establish a pattern of conduct from which the court may properly find mens rea.
3. The Crown can raise this evidence without waiting for a specific defence;
4. It is not essential that the actus reus is a crime, tort, or even a moral wrong;
5. The actus reus must be more than a mere preparation to commit a crime; and
6. When the preparation to commit a crime is fully complete, the next action performed to
further the attempt to commit the crime satisfies the actus reus.
In the case at bar it is clear that the accused's actions amounted to intent and not mere
preparation.
Ratio too: You can be found guilty of attempting to commit a crime if you did not actually
commit the crime. You must have had the necessary mens rea, and have acted to attempt to
commit the crime.
The actus reus must be more than a mere preparation; however, it does not need to be a crime
in itself, or even a moral wrongdoing.
Deutsch v. The Queen- Actus reus more than mere preparation
and distinction between attempt preparation and is qualitative.
Pg- 574-575
Facts: Deutsch ran a company, and put an advertisement in the paper looking for "secretarysales assistants to the sales executive". When women came in to interview, he told them that
they would have to have sexual intercourse with clients if it was required to secure a contract.
However, this could result in bonuses of up to $100,000 a year. An undercover police officer
went in for an interview and had the same experience. No one was hired under the ad. Deutsch
was charged with attempting to procure females for illicit intercourse with other persons
contrary to s.195(1)(a) of the Code (now s.212). He was acquitted at trial. He appealed.
Issue: What constitutes "mere preparation"?
Decision: Appeal dismissed.
Reasons: Le Dain, writing for the majority, states that the issue in this case is if there was the
necessary intent; were the accused's actions enough to lead to a conviction for intent, or were
they merely preparatory actions? He agrees with Martin in the Court of Appeal that the holding
out of large financial rewards for the applicants was capable of satisfying the actus reus of an
attempt to procure the women to have illicit sexual intercourse contrary to s.212. The actus
reus for attempt must be some step towards the actual commission of the crime that goes
beyond mere acts of preparation. In this case the actual crime could not be committed until
one of the women actually had sex with another person; however, his offering financial rewards
was a step in attempting to make this action occur.
Ratio: The actus reus for attempt must be some step towards the actual commission of the
crime that goes beyond mere acts of preparation.
The distinction between preparation and attempt is qualitative and dependent on the relative
proximity of the nature and quality of the act in question (in time, location and between the
acts under the control of the accused remaining to be accomplished) and the nature of the
completed offence. Professor in class- it means how close is the act to its completion.
Professor- Facts in this case involved accused mentioning that job applicants would have to
have sex with clients when required. He was charged with attempting to procure females for
unlawful intercourse. Issue before Court was what constitutes more than mere “preparation”
i.e. going to an actual attempt.
Mens Rea of attempt
R v. Ancio- Mens rea for attempted murder is the specific intent
to kill.
Pg- 576-577
Facts: Ancio, wanting to speak with his estranged wife, broke into an apartment building with
a loaded sawed-off shotgun. Kurely, the man with whom his wife had been living, went to
investigate the sound of breaking glass and threw the chair he was carrying at Ancio when he
saw him climbing the stairs. The gun discharged, missing Kurely, and a struggle followed. The
trial judge found Ancio had broken into the apartment building with the intent to use the
shotgun to force his wife to leave and convicted him of attempted murder. The Court of Appeal
overturned that conviction and ordered a new trial. Crown appealed to Supreme Court.
Issue: Is the mens rea in attempted murder limited to an intention to cause death or to cause
bodily harm knowing it to be likely to cause death, or is the mens rea required extended to the
intention to do some action constituting murder (argued by crown) , i.e. intent to do that which
will, if death is caused, constitute the commission of murder.
Decision: Appeal dismissed.
Reasons: McIntyre, writing for the majority, held that the mens rea for attempted murder is
the specific intent to kill and a mental state falling short of that level, while it might lead to
conviction for other offences, cannot lead to a conviction for an attempt. The completed offence
of murder involves killing and any intention to complete that offence must include the intention
to kill.
The crime of attempt developed as, and remains, an offence separate and distinct from murder.
While the Crown must still prove both mens rea and actus reus, the mens rea is the more
important element. The intent to commit the desired offence is a basic element of the offence of
attempt, and indeed, may be the sole criminal element in the offence given that an attempt may
be complete without completion of the offence intended.
Ratio: For attempted murder, nothing short of intent to kill will suffice for the mens rea of that
offence.
The mens rea required for section 24 (attempt) is the mens rea required for the complete
offence. (not ratio for this case but important point)
R v. Logan- Minimum Mens rea for attempted murder is
subjective foresight of death.
Pg- 577-579
Facts: The accused was charged with robbery of a Beckers store, also attempted murder.
Issue: What is the constitutionally required minimum mens rea for attempted murder? Whether
section 21 infringed section 7 rights.
Decision: Appeal dismissed as not guilty of attempted murder and only guilty of robbery.
Reasons: Lamer C.J. holds that attempted murder is one of those crimes that s.7 of the Charter
requires that a subjective standard of guilt be established. The requisite Mens Rea of attempted
murder is a constitutional requirement reason being primarily that the stigma is great.
The stigma associated with a conviction for attempted murder is the same as it is for murder.
The attempted murderer is no less a killer than a murderer: he may be lucky—the ambulance
arrived early, or some other fortuitous circumstance—but he has the same killer instinct.
The Mens Rea of attempted murder cannot without restricting s. 7 of the Charter, require of
the accused less of a mental element than that required of a murderer ,i.e., subjective foresight
of the consequences. The Parliament include objective foreseeability as being sufficient for a
conviction without restricting s. 7 of the Charter
Ratio: Minimum Mens Rea for attempted murder requires subjective foresight of death
(consequences).
Professor- Dealt with words “known or ought to have known” in some provisions of Criminal
Code relating to murder and attempted murder. Mens rea for attempted murder could not,
without restricting S. 7 of Charter, require less than the subjective foresight of accused, which
was the mental element required of a murderer under criminal code. On charges where
subjective foresight is a constitutional requirement (murder and attempted murder), the
objective component of some criminal code offences (i.e. those parts including the wording
“ought to have known”) is not justified.
Attempt (Impossibility)
United States of America v. Dynar- Legal impossibility is not a
defence but only imaginary crimes are a defence.
Pg- 580-588
Facts: Dynar was attempting to launder money. He communicated with people in the United
States who were going to bring money across the border for him to launder and return to them.
However, the other party that he was dealing with was actually an undercover FBI officer. The
money that the officer was offering Dynar to launder was not actually the proceeds of a crime.
Therefore, it was technically impossible for Dynar to commit the crime of money laundering
because this requires dealing with money that is a benefit of a crime. The US Government
wants Dynar extradited to the US to stand trial. The accused was ordered extradited at trial, but
this was overturned at appeal.
Issue: Can you be convicted for attempt to commit a crime even if it was factually impossible
to commit the crime that you were attempting to commit?
Decision: Appeal allowed; extradition ordered.
Reasons: Dynar can only be extradited if it is determined that his conduct could lead to a
conviction in Canadian law. Therefore, the question is if the impossibility defence frees him
from liability for his attempt as well.
Cory and Iacobucci, writing for the majority, find that his actions would have led to criminal
attempt in Canadian law, and therefore he must be extradited. They state that s.24 is clear: you
can be convicted for attempt if you have the intent to commit the crime and you have performed
some act in furtherance of the attempt that is more than a mere preparation. It is clear here
that the accused had made the attempt to commit the crime. He was only thwarted by
circumstances that were completely out of his control.
There are three kinds of impossibility identified by the court:
Type I - impossibility due to inadequate means (e.g. trying to shoot a person from beyond the
range of a weapon);
Type II - factual impossibility (e.g. shooting a person who you think is asleep in bed, but they
have already died of natural causes);
Type III - legal impossibility (e.g. smuggling what you believe to be heroin when it is actually
sugar).
Dynar argues that the crime he was trying to commit was a "legal impossibility" and not a
"factual impossibility", and therefore that he cannot be convicted. Cory and Iacobucci hold that
a mistaken belief cannot be eliminated from the description of a person's mental state simply
because it is mistaken. A person who believes they are committing a crime has the mens rea of
a criminal. They do agree that there would be a difference if the accused thought that what he
was attempting to do was a crime when it in fact was not .i.e. imaginary crime. Therefore, they
conclude that only attempts to commit "imaginary crimes", and not impossible crimes, will bar
a conviction for attempt.
Major, in the dissent, says that it cannot be a criminal attempt to attempt to do something that,
if completed, could not result in a conviction under Canadian law (i.e. a "legal impossibility").
He say that this results in some of the elements of the offence not being present. Money
laundering cannot be committed without the proceeds of crime being present; the accused
cannot know what he is laundering are the proceeds of a crime if they are not the proceeds of
a crime! In the result, you cannot be convicted for attempting to commit a crime that was
impossible to commit. (NOT IMPORTANT)
Ratio: One can still be convicted for attempt even if their actions, if carried out, could not
possibly have led to a crime; all that is required is the intent to commit the crime and actions
attempting to further this intent (i.e. legal impossibility is not a defence).
Professor- stands for proposition that an accused can still be convicted for an attempt even if
their actions, if carried out, could not possibly have led to a crime. All that is required is the
intent to commit the crime and actions attempting to further this intent (i.e. legal impossibility
is not a defence).
Conspiracy
United States of America v. Dynar
Pg- 595-600
Two part test for conspiracy:The crown has to prove1. Beyond all reasonable doubt, the existence of a conspiracy and,
2. Considering all the evidence, is the accused guilty beyond reasonable doubt of being a
member of the conspiracy.
Actus reus of conspiracy is the agreement. There need not be an overt act.
Mens rea- intention to put the common design into effect.
Crown is required to prove a meeting of the minds with regard to a common design to do
something unlawful.
Legal Impossibility is not a defence to conspiracy.
WEEK 10
7 November- Tuesday
HOMICIDE
th
Manslaughter
R v. Creighton- mens rea objective for manslaughter.
Pg- 695-697
Facts: Creighton, an experienced drug user, administered cocaine to a willing woman who
subsequently died. He refused to contact the authorities when she stopped breathing after taking
the drug, but his friend eventually did. He was charged with manslaughter by criminal
negligence.
Issue: Is the mens rea required for manslaughter subjective or objective?
If it is objective, how much weight should be given to the personal characteristics of the
accused?
Is the objective standard contrary to s. 7 of the Charter?
Decision: Appeal dismissed.
Reasons: Lamer gives the minority decision. He states that there is no general constitutional
principle that states that crimes need subjective mens rea. He says that only specific heinous
crimes that carry with them a certain stigma require subjective mens rea. Although
manslaughter involves the killing of a person, it does not involve intentional killing and
therefore is not as stigmatic as murder. He says that the Charter requires a minimum of
objective mens rea. He also goes on to say that the test for manslaughter is an objective test.
However, a mere objective test would violate s. 7, therefore it needs to be a modified objective
test that takes the specific circumstances of the individual into considerable note. He says that
you must consider the capacities of the individual in determining whether they were able to
live up to the objective reasonable standard, and then alter the standard accordingly if they
were not. (NOT IMP.)
McLachlin agrees that the test is objective, and that only objective mens rea is required for
manslaughter. However, she disagrees with the alterations to the objective standard that Lamer
attempts to make. She finds that the common law requirement of "objective foreseeability of
the risk of bodily harm" is constitutional. Lamer disagreed and stated that you needed to have
objective foreseeability of harm causing death. For him foreseeability of simply bodily harm
is unconstitutional. According to McLachlin, to do this would require the courts to abandon
the thin skull test and require the Crown too prove to much in order to get a conviction for
manslaughter. She states that manslaughter is treated to be much less blameworthy than
murder, and that this must be considered.
McLachlin completely disagrees with Lamer's additions to the objective test, and states that
they essentially make it a subjective test. She says that the reasonable standard should not be
concerned with "frailties" of the accused's character, and that public policy demands a single,
uniform legal standard to be identified. The standard is what a reasonable prudent person
would have understood in the circumstances. In the end she sets out a three-part test that must
be satisfied for a conviction in manslaughter:
Establish actus reus – the activity (negligence) must constitute a marked departure from the
standards of the reasonable person in all the circumstances of the case.
Establish mens rea – the activity must have been done while there was objective foresight of
harm (not death) that can be inferred from the facts. The standard is of the reasonable person
in the circumstances of the accused.
Establish capacity – given the personal characteristics of the accused, were they capable of
appreciating the risk of harm flowing from their conduct?
Ratio: Objective mens rea is in line with the Charter, and is all that is required for a conviction
in manslaughter.
Only objective mens rea is required for manslaughter. Common law requirement of "objective
foreseeability of the risk of bodily harm" is constitutional. The standard is what a reasonable
prudent person would have understood in the circumstances – therefore situations of greater
danger will require a greater expertise in the standard of care. –(professor)
The objective standard is whether a reasonable person in the circumstances would have
foreseen the risk of harm from their actions. If this is satisfied, then the necessary mens rea has
been proven. You should not incorporate personal characteristics into the reasonable standard,
as it has to be an unchanging standard that is easy to understand. Only if an accused lacked the
capacity to understand the risk flowing from their actions can they be excused.
Three-part test that must be satisfied for a conviction in manslaughter:
Establish actus reus – the activity must constitute a marked departure of the care of a
reasonable person in the circumstances of the case
Establish mens rea – the activity must have been done while there was objective foresight of
harm (not death) that can be inferred from the facts. The standard is of the reasonable person
in the circumstances of the accused.
Establish capacity – given the personal characteristics of the accused, were they capable of
appreciating the risk of harm flowing from their conduct?
Second Degree MurderR v. Cooper- mens rea is subjective intent to cause bodily harm
and subjective knowledge that the bodily harm is likely to result
in death.
Pg- 700-703
Facts: Cooper was convicted pursuant to s. 212(a)(ii) of the Criminal Code (now s. 229).
During an argument Cooper grabbed the victim by the throat. She died of manual strangulation
but the accused testified that he had no recollection of causing her death. The accused had
consumed a considerable amount of alcohol prior to the murder and he argued that he did not
have the required mens rea to commit the murder or that he did not foresee that grabbing the
victim by the throat would cause her death. He testified to remembering strangling the victim,
but had no recollection after that until he awoke to find the victim dead. The trial judge
instructed the jury that, once the accused had formed the intent to cause the victim bodily harm,
which he knew would likely cause her death, he need not be aware of what he was doing at the
moment she actually died. The Court of Appeal held that the trial judge had not adequately
explained the intent required for murder to the jury. Crown appealed.
Issue: What is the nature of the intent required to find for a conviction for murder?
Decision: Appeal allowed, original conviction restored.
Reasons: In order to convict under s. 212(a)(ii), there must be a subjective intent to cause
bodily harm and subjective knowledge that the bodily harm is likely to result in death. The
Court holds that the distinction between s. 212(a)(i) and (ii) is only a "slight relaxation"; the
recklessness requirement requires that the individual not only foresee a danger of death, but a
likelihood of death flowing from the bodily harm that he is occasioning the victim. At some
point the illegal act or actus reus must coincide with the intent. The requisite mens rea need
not continue throughout the commission of the wrongful act, but it is sufficient that the intent
and the act coincide at some point. It was open to the jury to infer that the accused intended to
cause the victim bodily harm when he seized her by the throat and that he knew that
strangulation was likely to result in death. The trial judge's charge with respect to the requisite
mens rea and the accused's intoxication contained no errors that would justify a new trial.
Ratio: For a conviction of murder under s. 229(a)(ii) of the Criminal Code the individual must
foresee not only a danger of death, but a likelihood.
The requisite mens rea need not continue throughout the commission of the wrongful act, but
it is sufficient that the intent and the act coincide at some point.
Mens rea- In order to convict under s. 212(a)(ii), there must be a subjective intent to cause
bodily harm and subjective knowledge that the bodily harm is likely to result in death.
Cite Faeghan or whatever too.
Professor- Issue was nature of intent required to find conviction for murder. In order to convict
for murder, there must be a subjective intent to cause bodily harm and subjective knowledge
that the bodily harm is likely to result in death. With recklessness, it requires that the individual
not only foresee a danger of death, but a likelihood. Also, at some point the illegal act or actus
reus must coincide with the intent. Fagan v Metropolitan principle applicable in Canada.
First Degree Murder
R v. More- deliberate means ‘not impulsive’.
The accused was depressed.
Ordered a retrial and quashed conviction.
Ratio: Planned and deliberate means considered and not impulsive.
Professor- A "deliberate" murder is not impulsive. It must be a considered act. The word
"deliberate", as used in in this offence means "considered not impulsive". It cannot simply
mean "intentional" for that is the prerequisite for murder, and the subsection is creating an
additional ingredient as a condition of capital murder. On the facts of this case and the evidence
as to what happened at the moment of the shooting, it was open to the jury to take the view that
the act of the appellant was impulsive rather than considered and therefore was not deliberate.
R v. Collins- knowledge that victim is police officer to be proved.
Pg- 729-732
Facts: Accused charged with first degree murder for killing a police officer, who was on duty
and in uniform at local mall.
Accused argued that s. 214(4)(a), now s. 231(4) which makes killing of police officer
irrespective of planning and deliberation a first-degree murder is unconstitutional as it infringes
on his s.7 Charter rights because he can be charged with 1st degree murder without Crown
having to prove planning and deliberation.
Issue: Does s. 214(4)(a), now s. 231(4) infringe on s. 7 of the Charter making it
unconstitutional?
Decision: No s. 231(4) does not infringe on s. 7. Appeal dismissed
Reasons: The court ruled that s. 214 (now s. 231) of the CC does not set out the element of the
offence of murder. That was done in ss. 212 & 213 (now ss. 229 & 230). It held that the effect
of s. 214/231 was to classify the offence of murder once it has been found. S. 214/231 is
subservient to ss. 212&213/229&230; it classifies for sentencing purposes the offences as
either first or second-degree murder. The importance of the distinction between first and
second-degree murder is that first degree murder carries a mandatory life sentence without
eligibility for parole for 25 years. S. 231 is more concerned with ensuring specific sentencing
of individual who kill police officials, rather than the facts that would deem the crime 1st/2nd
degree murder.
The distinction between first and second degree murder in s. 214 is not based upon intent; it is
based upon:
(1) the presence of planning and deliberation (s. 212(2));
(2) the identity of the victim (s. 214(4)), or
(3) the nature of the offence being committed at the time of the murder (s. 214(5)
(professor)
Thus, Crown needs to prove that accused had subjective knowledge/knew that his victim was
a police officer. In this case, it was proved.
Ratio: The onus is on the crown to prove that the accused knew that the victim was a police
officer who was acting in the course of his duty and accordingly, provisions of section
214(4)(a) do not contravene section 7 of the Charter.
If the person is convicted of first degree murder even when he/she didn’t know that the victim
was a police officer acting in the course of his duty, then it violates section 7 of the Charter.
R v. Russell- in ‘while committing’, victims need not be same
Pg- 733-737
Facts: S. 231(5): “While Committing”
The events took place at the home of S with whom the accused was romantically involved. The
accused threatened her with a knife, allegedly sexually assaulted her, and tied her up in the
bedroom. He then left S and went to the basement where, a few minutes later, he stabbed S’s
tenant to death.
The preliminary inquiry judge held that the accused could be committed to trial for first degree
murder, rather than second degree murder, on the basis of s. 231(5) of the Criminal Code,
which states that murder is first degree if the accused caused the death of another person while
committing an offence enumerated under that provision, in this case, forcible confinement.
The committal was quashed on certiorari (a writ or order by which a higher court reviews a
decision of a lower court), and a committal for second degree murder was substituted on the
theory that s. 231(5) requires the victim of the murder and the victim of the enumerated offence
to be the same person.
The Court of Appeal restored the preliminary inquiry judge’s order committing the accused to
trial for first degree murder. The court held that, even if the preliminary inquiry judge had erred
in his interpretation of s. 231(5), the error constituted an error within his jurisdiction and
accordingly was not reviewable on certiorari.
Issue: Can “while committing” in s. 231(5) be construed in a way that it applies even when
the victim of the murder and the victim of the enumerated offence are not the same?
Decision: Yes, it can be construed that way. Appeal dismissed.
Reasons: The “while committing” requirement is an essential condition to the application of
s. 231(5), however, s. 231(6.1) suggests that the use of the phrase “while committing or
attempting to commit” does not itself create a same-victim requirement.
That Parliament did not explicitly incorporate a restriction as it did in the scope of s. 231(5)
suggests that it intended “while committing or attempting to commit” to apply even where the
victim of the murder and the victim of the enumerated offence are not the same.
Ratio: “While committing” in s. 231(5) can be construed in a way that it applies even when
the victim of the murder and the victim of the enumerated offence are not the same.
Wording of offence does not create a “same victim” requirement.
The accused commits a murder ‘while committing or attempting to commit’ an enumerated
offence only if there is a close temporal and casual connection between the murder and the
enumerated offence. Once that is established, it doesn’t matter if victim is the same or not.
9th November- Thursday
DEFENCES
Provocation
R v. Hill- no need to direct jury for age and sex.
Pg- 755-759
Facts: Hill was convicted of second degree murder for a fatal stabbing. He was sixteen when
the incident occurred and testified that he had reacted to the victim's uninvited homosexual
advances. He relied on the defences of provocation and self-defence. The Court of Appeal
ordered a new trial because the trial judge failed to charge the jury that the objective "ordinary
person" standard for the defence of provocation had to take account of the age and sex of the
accused.
Issue: Whether Court of Appeal erred in law in holding that the trial judge erred in law with
respect to the elements of the objective test relevant to the defence of provocation in failing to
direct the jury that the ‘ordinary person’ within the meaning of that term in s. 215(2) was an
‘ordinary person of the same age and sex as the accused.
How is the objective test for the provocation defence to be formulated and to what extent are
characteristics peculiar to the individual accused to be taken into account?
Decision: No it did not. Appeal allowed.
Reasons: Jury need not be instructed, it is assumed that these characteristics are part of the
objective standard.
There are three sequential questions inherent in s.232(2) of criminal code(1) Would an ordinary person be deprived of self-control by the act or insult?
(2) Did the accused in fact act in response to those “provocative” acts; in short, was he or she
provoked by them whether or not an ordinary person would have been?
(3) Was the accused response sudden and before there was time for passion to cool?
Wilson, in the dissent, noted this about the legal position of children:
If the legal system is to reflect accurately the view of children as being in the developmental
stages en route to full functioning capacity as adults, the standard against which children’s
actions are measured must be such as can logically culminate in the objective standard of the
ordinary person upon their arrival at full adulthood. (Not Important)
Ratio: There must be a cut-off point where children become treated as "reasonable persons",
and that they must approach this point incrementally. (Not Important)
No need to specifically intruct jury to take into consideration the age and sex of provoked in
determining objective standard, as they will instinctively do so.
The age and sex of the accused are important considerations in the objective branch of the test.
The jury should assess (need not be directed) what an ordinary person would have done if
subjected to the same circumstances as the accused.
Professor- Defines the ordinary or reasonable person - under the objective test the reasonable
person has a normal temperament and level of self-control and is not exceptionally excitable,
pugnacious or in a state of drunkenness. It also talks about particular characteristics –
characteristics that are not peculiar or idiosyncratic – that can be ascribed to an ordinary person
without subverting the logic of the objective test.
R v. Thibert- objective and subjective elements of provocation.
Pg- 759-767
Facts: The accused shot his wife’s lover after an exchange where he was taunted. The deceased
had held the accused’s wife in front of him as a target and said, ‘come on and shoot me’. The
trial judge put the defence of provocation to the jury without specifying that it was the burden
of the Crown to disprove provocation. The accused was found guilty of second degree murder.
The Court of Appeal in a majority decision dismissed the accused's appeal, holding that the
trial judge erred in leaving the defence of provocation with the jury but that this error did not
prejudice the accused.
Issue: Whether the Trial Judge was correct in leaving the defence of provocation with the jury.
Whether there was any evidence upon which a reasonable jury acting judicially and properly
instructed could find that there had been provocation.
Decision: Appeal of the accused allowed.
Reasons: Objective Test- The deceased was having an affair with the accused’s wife. At the
time of the shooting the accused was distraught and had not slept for 34 hours. He wanted to
talk to his wife in private but the deceased held his wife and moved her back and forth while
he taunted the accused to shoot him.
Given the history between the two, the deceased’s actions were taunting and insulting.
An ordinary man, faced with the breakup of his marriage, who wanted to talk to his wife in
private, would have been provoked by the deceased’s actions so as to cause the accused to lose
his self-control.
Subjective Test- The confrontation with the deceased was unexpected; the accused had actually
tried to avoid meeting the deceased.
It was extremely important to the accused to talk to his wife in private, away from the deceased;
the deceased would not give them privacy and instead taunted the accused and said “come on
shoot me”.
The jury could have concluded that the defence of provocation was applicable
Legal Right- The deceased’s conduct was not sanctioned by any legal right
Ratio: The judge must leave the defence of provocation to the jury when1) There is some evidence to suggest the insult would cause the ordinary person to be
deprived of self-control. (objective element)
2) There is some evidence showing the accused was actually deprived of his self-control
by the insult. (subjective element)
If this threshold is met (ie. if some objective and subjective element is satisfied) the defence
may be left with the jury.
Objective: The wrongful act or insult must be one which could, in light of the past history of
the relationship between the accused and the deceased, deprive an ordinary person of the
same age and sex, and sharing with the accused such other factors as would give the act or
insult in question a special significance, of the power of self-control. (said by professor too)
Subjective: The background and history of the relationship between the accused and the
deceased should be taken into consideration, particularly if it reveals a long history of insults,
levelled at the accused by the deceased.
Even if the insults induced a desire for revenge, as long as immediately before the last insult
the accused did not intend to kill, the defence of provocation is applicable.
Professor- With the objective test, it is proper to consider the background of the relationship
between the deceased and accused, including earlier insults which culminated in the final
provocative actions or words. The "ordinary person" must be of the same age and sex, and
share with the accused such other factors as would give the act or insult in question a special
significance, and must have experienced the same series of acts or insults as those experienced
by the accused.
R v. Tran- discovery not insult.
headnote
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 trial judge acquitted the accused of murder, but convicted him of
manslaughter. The Court of Appeal allowed the Crown’s appeal and substituted a conviction
for second degree murder.
Issue: Was the standard of provocation met?
Decision: Appeal dismissed. Standard not met.
Ratio: There was no air of reality to the defence of provocation in this case. The conduct at
issue does not amount to an “insult” within the meaning of s. 232 of the Criminal Code, as the
accused alleges, nor does it meet the requirement of suddenness. The discovery of his estranged
wife’s involvement with another man is not an “insult” within the meaning of s. 232 of the
Criminal Code. The accused’s view of his estranged wife’s sexual involvement with another
man after the couple had separated — found at trial to be the insult — cannot in law be
sufficient to excuse a loss of control in the form of a homicidal rage and constitute an excuse
for the ordinary person of whatever personal circumstances or background. Furthermore, there
was nothing sudden about the accused’s discovery and it cannot be said that it struck upon a
mind unprepared for it.
You don’t individualise it (add stuff) Particular characteristics that are not
peculiar/idiosyncratic can be ascribed to an ordinary person without subverting the logic of the
objective test of provocation (ex. sex, age, race) (NOT SURE)
Ratio too: The accused must have a justifiable sense of being wrong. Add more
Professor- The "ordinary person" standard 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. The proper approach is one that
takes into account some, but not all, of the individual characteristics of the accused. Personal
circumstances may be relevant to determining whether the accused was in fact provoked (the
subjective element), but they do not shift the ordinary person standard to suit the individual
accused. There is an important distinction between contextualizing the objective standard,
which is necessary and proper, and individualizing it, which would only serve to defeat its
purpose.
R v. Mayuran- scolding is not provocation
Headnote
Facts: The accused was convicted of second degree murder in the death of her sister‑ in‑ law
who had been stabbed 45 times. Two members of the accused’s family testified that the accused
confessed to killing the victim because the victim had ridiculed her about her learning ability
and her level of education. The accused denied having committed or having confessed to the
murder, and offered an account of the day’s events that conflicted with the rest of the family’s
testimony. The family’s story was corroborated by an independent witness, by receipts and by
cellular phone records. The accused’s clothing was found in a bucket of bloody water in the
bathroom, her blood was mixed with the blood of the victim on the blade of a knife said to be
the murder weapon, her DNA was on the knife’s handle, and cuts she suffered were said to be
consistent with an injury caused while stabbing someone. On appeal, a majority of the Quebec
Court of Appeal set aside the conviction and ordered a new trial. In its view, the trial judge
ought to have put the defence of provocation to the jury based on the accused’s alleged
confession to killing the victim because she had been ridiculed by her.
Issue: Is there an air of reality to the accused’s provocation defence?
Decision: Appeal allowed. Conviction restored.
Ratio: Provocation requires that there be a wrongful act/insult of such a nature that it is
sufficient to deprive an ordinary person of the power of self-control and that the accused act
on that insult before there was time for her passion to cool.
Objective element- Wrongful act or insult that is sufficient to deprive an ordinary person of the
power of self-control. Evidence must be capable of giving rise to a reasonable doubt that
ordinary person in accused’s circumstances would be deprived of self-control when hearing
insults about her level of education.
A properly instructed jury could not conclude that an ordinary person in the circumstances
would be deprived of self-control when ‘scolded’ about her level of education sufficient to
stab a person 45 times in a responsive rage. It has no air of reality. Therefore, no duty on the
trial judge to instruct the jury on the defence.
Ratio too: Professor- Court held that there is no air of reality to the proposition that an
ordinary person in the accused's circumstances would be deprived of self - control when
scolded about her level of education by her sister –in- law.
Self Defence
R v. Cinous- 3 elements both subjective and objective. AIR OF
REALITY TEST.
Pg- 889-896
Facts: C was involved in criminal underworld. C was with X and Y and said he knew they
were planning on killing him. He was travelling with them in a car. C went in to store. When
came back saw an opportunity and shot X and Y.
Issue: Is there an air of reality to the defence of self-defence?
Decision: Appeal allowed. The defence lacked an air of reality.
Reasons: Elements of self-defence under old section1. Unlawful assault, (C has this, both objective and subjective)
2. Reasonable apprehension of harm and death, and (C has this both objective and subjective)
3. Reasonable apprehension of no alternative to not be hurt or killed (this is where it fails, on
the objective part)
It is not enough for an accused to establish a subjective conviction that he had no choice but to
shoot. The accused must be able to point to a reasonable ground for that belief. The belief he
had no option but to kill must be objectively reasonable.
For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed
on reasonable grounds that his own safety and survival depended on killing the victim at that
moment
Ratio: Air of reality means whether there is evidence on record upon which a properly
instructed jury acting reasonably could acquit.
Each of the three elements of self-defence under section 34(2) have to stand both the test of
subjectivity and objectivity. There must be some evidence (both objective and subjective
components) on all 3 elements of the defence of self-defence to give it to the jury
When doing air of reality test for self-defence, it must be done both objectively and
subjectively. Therefore, you would be looking at the 3 elements from the test 2 times (objective
and subjective).
Professor- While a trial judge has a duty to put to the jury any defence for which there is an air
of reality, the judge also has a duty not to put defences for which there is no air of reality. A
defence possesses an air of reality if a properly instructed jury acting reasonably could acquit
the accused on the basis of the defence. In applying the air of reality test, a trial judge considers:
o the totality of the evidence, and
o assumes the evidence relied upon by the accused to be true.
The evidential foundation can be indicated by evidence emanating from the examination-inchief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can
also rest upon the factual circumstances of the case or from any other evidential source on the
record. There is no requirement that the evidence be adduced by the accused. This requires an
assessment of whether the evidence relied upon is reasonably capable of supporting the
inferences required for the defence to succeed.
R v. Lavallee- expert evidence admissible for self defence. Danger
may not be imminent.
Pg- 903-912
Facts: Lavallee and her common law partner Rust (the victim) had an abusive relationship,
however she kept coming back. On the night of the killing, there was a party at their house.
Rust hit her and told her that she was going to "get it" when all the guests left. He threatened
to harm her, saying "either you kill me or I'll get you". During the altercation Rust slapped her,
pushed her and hit her twice on the head. At some point during the altercation he handed
Lavallee a gun, which she first fired through a screen. Lavallee contemplated shooting herself,
however when Rust turned around to leave the room she shot him in the back of the head. She
was charged with murder. A psychiatrist gave expert evidence at trial describing her state of
mind, and that she felt as though she was "trapped" and that she would have been killed if she
did not kill him. The jury acquitted her at trial, but this was overturned at the Court of Appeal
who ordered a new trial. Lavallee appealed this order to the Supreme Court.
Issue: Can expert evidence be used in a claim of self-defence, and if so, to what extent?
Decision: Appeal allowed, acquittal restored.
Reasons: The jury's acquittal seems to have heavily relied upon Dr. Shane's (the psychiatrist's)
assessment of the appellant and his (Dr. Shane’s) testimony. He stated that she felt as though
she was trapped, and that she felt as if she would be killed if she did not act first. However, the
appeal court stated that this evidence was not admissible because it swayed the jury and did
not elaborate on the facts but merely provided an opinion.
Wilson, writing for a unanimous court, vehemently disagrees. After going into the history of
spousal abuse and the effects that it has on the women who are abused, she held that expert
evidence is very much admissible and helpful in establishing the necessary elements were
present for s.34(2) to provide a defence. This section requires the accused to have reasonably
believed that she was in danger, and that she had no other option to stop it other than causing
death or grievous harm.
The Court holds that expert evidence is very helpful in determining how a reasonable person
would have acted in the situation. It allows the jury to understand the situation that the woman
was in and what she was thinking. In this case, it helps them realize that despite the fact that
she shot him while he was walking away, she still thought that her life was in serious danger.
She believed that he was going to kill her later on that night if she did not act first. This expert
testimony helps prove that the defence was not too far removed temporally, or too violent to
have been reasonable in the circumstances. Therefore, the trial judge did not err in allowing
Dr. Shane's testimony to be used as evidence available to the jury.
Ratio: Self-defence applies even when you are not directly or immediately in harm.
Expert testimony can be very helpful in claims of self-defence as it helps the jury/judge
understand the condition that the accused was in when they acted and allows for an objective
determination if their actions were reasonable in the circumstances.
Actions that claim to be in self-defence but are too temporally removed or violent in the
circumstances to be considered reasonable will not satisfy the s.34(2) requirements to be a
defence.
Professor- Deals with evidence to support self-defence. Criminal code provisions do not
actually stipulate that the accused apprehend imminent danger before acting in self-defence.
There is an assumption that it is inherently unreasonable to apprehend death or grievous bodily
harm unless and until the physical assault is actually in progress, at which point the victim can
reasonably gauge the requisite amount of force needed to repel the attack and act accordingly.
The issue is not what an outsider would have reasonably perceived but what the accused
reasonably perceived given her situation and experience. Expert evidence can assist in
analyzing these factors and could also explain, for example, why the accused could not flee.
R v. Pétel- past experience is relevant for self defence.
Pg- 912-914
Facts: P charged with 2nd degree murder. P wanted E to leave house, but E kept going there
and dealing drugs. P, after having some drugs, shot at E. R lunged at her so she shot R. R
died. E lived.
Issue: Was trial judge correct that only those acts that had taken place on the evening of the
crime were relevant to determining the reasonableness? – NO
Decision: Affirmed order for a new trial.
Reasons: The threats by E during the time he lived with P are relevant in determining whether
the respondent had a reasonable apprehension of danger and reasonable belief in the need to
kill E.
The question to ask is not ‘was the accused unlawfully assaulted?’ but is “did the accused
reasonable believe, in the circumstances, that she was being unlawfully assaulted?’
Ratio: Past experience can be relevant when assessing whether someone is a serious threat to
you or not.
There is no requirement that the danger be imminent.
Expert evidence is admissible.
The question to ask is not ‘was the accused unlawfully assaulted?’ but is “did the accused
reasonable believe, in the circumstances, that she was being unlawfully assaulted?’
The issue is not what an outsider would have reasonably perceived but what the accused
reasonably perceived, given her situation and her experience.
Professor- The issue is not whether the accused was, in fact, unlawfully assaulted but rather
whether she reasonably believed in the circumstances that she was being unlawfully assaulted.
The imminence of apprehended danger is only one factor that the jury should weigh in
determining whether the accused had a reasonable apprehension of danger and a reasonable
belief that she could not extricate herself otherwise than by killing the attacker.
WEEK 11
14th November- Tuesday
DEFENCES
Mental Disorder
R v. Whittle- Fitness to stand trial.
Pg- 794-795
Ratio: The fact that an accused is not criminally responsible within the meaning of section 16,
does not mean that he or she is unfit to stand trial. They are not exempt from being tried.
The issue of fitness can be raised by the accused, the court or the crown.
Section 2- “Unfit to stand trial” means unable on account of mental disorder to conduct a
defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do
so, and, in particular, unable on account of mental disorder to
(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel.
The test for fitness to stand trial is quite different from the definition of mental disorder in
section 16. It is predicated on the existence of a mental disorder and focusses on the ability to
instruct counsel and conduct a defence. It requires limited cognitive capacity to understand the
process and to communicate with counsel.
Professor said- unfit to stand trial means ‘no capacity to understand why they are in the court
room’ or ‘not able to understand what they are charged with’ or ‘not able to communicate
effectively with the lawyer’. If the judge is satisfied that any of these is true, the court passes
assessment order. There is an assumption that every person is fit to stand trial.
Proof is on a balance of probabilities.
Section 678.22
Professor- The issue of fitness can be raised by the accused, the Crown or the court. The
accused is presumed to be fit and must otherwise be found unfit on the balance of probabilities.
According to R. v. Taylor, the standard for fitness is the "limited capacity test", which requires
that the accused has the capacity to understand that (a) he/she is being tried in a court of law
and may be subject to punishment, and (b) the ability to get the gist of testimony adduced at
trial. Taylor rejected the proposition that a fit accused must have the "analytical capacity" to
make choices in his/her best interest. The court held that the limited capacity test balances the
objectives of the fitness rule with the constitutional rights of the accused to choose his / her
defence, and to be tried within a reasonable time. The test in Taylor was acknowledged by the
Supreme Court of Canada in R. v. Whittle.
R v. Swain- Crown in 2 situations can raise the mental disorder
defence.
Pg- 795-798
Issue: Can the Crown raise evidence of insanity over and above the accused’s wishes and if so
does this interfere with the accused’s control over his or her own defence?
Reasons: Professor- The objective Common Law rule, which allows the Crown in some cases
to raise evidence of insanity over and above the accused’s wishes is twofold:
1) To avoid the conviction of an accused who may not be responsible on account of
insanity (now called only mental disorder. For the exam, use the word mental disorder),
but who refuses to adduce cogent evidence that he was insane
2) The protection of the public from presently dangerous persons requiring
hospitalization
The dual objectives discussed above could be met without unnecessarily limiting Charter rights
if the existing common law rule were replaced with a rule that would allow the Crown to raise
independently the issue of insanity only after the trier of fact had concluded that the accused
was otherwise guilty of the offence charged.
Such a rule would safeguard an accused’s right to control his or her defence and would achieve
both the objective of avoiding the conviction of a person who was insane at the time of the
offence and the objective of protecting the public from a person who may be presently
dangerous. The accused would still have the option of raising evidence of insanity at any time
during the trial. Where an accused chooses to raise evidence, which puts his or her mental
capacity for intent into question, the Crown can raise the issue. In these circumstances, the
Crown's ability to raise evidence of insanity is not inconsistent with the accused's right to
control the conduct of his or her defence because the very issue has been raised by the accused's
conduct of his or her defence
Ratio: Two situations where crown can raise the defence of insanity:
1) During trial, where an accused chooses to raise evidence which puts his or her mental
capacity for intent into question, the Crown can raise the defence.
2) After trial, Crown can raise independently the issue of insanity only after the trier of
fact had concluded that the accused was otherwise guilty of the offence charged.
The accused would still have the option of raising evidence of insanity at any time during
the trial. The accused can also raise the defence after the judge has found him guilty but
before conviction. Evidence as to mental disorder if not proven, can still be used as an
evidence of mens rea.
R v. Chaulk- The burden of proving insanity is on the accused
and meaning of wrong.
Pg- 798-800
Facts: Chaulk and Morrissette, aged 15 and 16 respectively, broke into an individual's house,
plundered it of valuables and then stabbed and bludgeoned him to death. Evidence was adduced
at trial that the pair were psychotic and thought that they were going to rule the world - killing
the victim did not matter as he was a "loser". They knew that it was contrary to the law to kill
people, but they thought that they were above the law. They were convicted by a jury and an
appeal was unanimously dismissed.
Issue: Is the reverse onus provision of s.16(4) of the Code inconsistent with s.11(d) of the
Charter?
What is the meaning of "wrong" in s.16(1) of the Criminal Code?
Decision: Appeal allowed, new trial ordered.
Reasons: Lamer, writing for the majority, explained that there is a presumption of criminal
capacity for an adult. A claim of insanity undermines the voluntariness of either the actus reus
or the mens rea. It can also provide an excuse to criminal conduct, where intention is present;
the focus is on incapacity to form a mental element – a mentally disordered person does not
have the capacity to distinguish between right and wrong.
Lamer holds that "wrong" means more than legally wrong or knowing the law of the land; it
also means morally wrong. The test requires that the defence establish that due to the mental
illness, the accused could not appreciate that his conduct: "conformed to normal and reasonable
standards of society", "breaches a standard of moral conduct" and "would be condemned".
In the case at bar, Lamer finds that the individuals, due to their megalomania, may have been
unable to appreciate the moral wrongness of their actions, and thus the mental disorder defence
applies. As a result, a new trial is ordered.
On the meaning of the word "wrong", McLachlin disagreed with the majority. She raises the
concern that the application of a moral standard might be too vague. The jury is left to speculate
about whether the mental illness affected the defendant's ability to appreciate an abstract moral
code. The issue is complicated further by the facts that society does not agree on standards of
morality. Where an accused euthanizes someone (such as Latimer) and believes that it is right
– can that person then "hide behind" a mental disorder defence to get absolved of criminal
responsibility? McLachlin suggests that "wrong" should be interpreted simple as "what one
ought not to do". (DISSENT)
Ratio: The "wrong" that an accused must be unable to appreciate for their condition to be
deemed a mental disorder is the moral wrongness of their action.
Section 16(4) violates section 11(d) of the charter but stands the Oakes test. The burden of
proof is therefore on the accused to prove insanity.
Professor- Incapacity of the mind to appreciate the consequences of an act is ‘physical
consequences’ of the act and not ‘legal consequences’. Eg. Knowing that killing is illegal but
the person may think that they are killing a person who is a devil.
Professor- Defence of mental disorder, burden is on accused to prove on balance of
probabilities. Decision deals with meaning of “appreciating”, “knowing” and “wrong.”
Appreciation of the nature and quality of the act refers to an incapacity by reason of disease of
the mind to appreciate the physical consequences of the act. Thus, an accused could not rely
on this branch of the insanity defence where he was aware that he was killing the victim and
knew that killing was a crime, although he believed that the victim was "Satan" and that in
killing the deceased he was acting on divine orders. On the other hand, an accused, who by
reason of disease of the mind was acting under such a delusion, would be entitled to a finding
of insanity on the basis that he did not know the act was wrong in view of the expanded
definition given the term "wrong.” The term "wrong" in subsec. (2) means "morally wrong"
and not simply "legally wrong". The court must determine whether the accused, because of a
disease of the mind, was rendered incapable of knowing that the act committed was something
that he ought not to have done. Thus, the inquiry cannot terminate with the discovery that the
accused knew that the act was contrary to the formal law. A person may know that the act was
contrary to law and yet, by reason of a disease of the mind, be incapable of knowing that the
act is morally wrong in the circumstances according to the moral standards of society.
R v. Oommen- didn’t know it was wrong in the ‘circumstances’
Pg- 824-830
Facts: Accused suffered from a paranoid delusion and believed that the woman he repeatedly
shot was part of a conspiracy that was coming into his house to kill him. Trial Judge held that
the accused was not entitled to the mental disorder defence because he had the capacity to
know that society in general would regard his acts as wrong even though ‘subjectively the
accused did not believe his acts to be wrong’ and ‘he believed that he had no choice to do
anything but what he did’
Issue: What is meant by the phrase “knowing that the act was wrong” in s. 16(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?
Whether his delusion exempted the accused from criminal responsibility under s. 16(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.
Held: Appeal dismissed, new trial ordered
Reasons: Doctor testified at trial that a person suffering from this mental disorder would
know killing was wrong, but that his delusion would cause him to believe that killing was
justified under the circumstances. We are not here concerned with the psychopath or the
person who follows a personal and deviant code of right and wrong. The accused here viewed
his act as right, which is different from the psychopath or person following their own moral
code. Such a person is capable of knowing that his or her acts are wrong in the eyes of
society and despite such knowledge, they choose to commit the acts
There was evidence that the accused honestly felt that he was under imminent danger of
being killed by his victim if he did not kill her first, and that for this reason, he believed that
the act of killing her was justified. This delusion would have deprived the accused of the
ability to know that his act was wrong; in his eyes, it was right.
Ratio: The inquiry focuses not on general capacity to know right from wrong, but rather on
the ability to know that a particular act was wrong in the circumstances. The accused must
possess the intellectual ability to know right from wrong in an abstract sense, but must also
possess the ability to apply that knowledge in a rational way to the alleged criminal act (in
those circumstances).
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.
Professor- Issue was whether accused’s delusion exempted him from criminal responsibility
on the ground that he lacked the capacity to know right and wrong at time of alleged act.
Inquiry focuses not on general capacity to know right from wrong, but rather on the ability to
know that a particular act was wrong in the circumstances. Inquiry focuses whether the
accused lacks the capacity to rationally decide whether the act is right or wrong and therefore
to make a rational choice about whether to do it or not.
Cooper v. The Queen- Mental disorder is disease of the mind.
Unable to know that it’s wrong or appreciate nature of the act.
This case deals with psychopathy.
Pg- 805-806
Facts: Cooper, a man described as a "little slow", was an outpatient at a psychiatric hospital.
At a dance at a local church organized for patients of the hospital he took a woman aside, kissed
her, and then strangled her to death because, as he later testified, he was afraid that she would
tell on him. At trial the defence of insanity (now mental disorder) was not raised (at the time
Cooper would have been ordered into an institution for life if this defense was accepted), but
Cooper rather relied on the negation of mens rea in the offence. He also had expert testimony
from a forensic psychiatrist saying that he would not have been able to understand the
consequences of his actions or form the mens rea. Despite this, the trial judge charged the jury
with s.16, although the charge was very poor. Cooper was convicted at trial and his appeal was
rejected by the Court of Appeal.
Issue: What is the proper interpretation of s.16 of the Criminal Code?
When should a judge charge a jury about the mental disorder defence?
Is expert evidence determinative? (it’s NOT)
Decision: Appeal allowed, new trial ordered.
Ratio: Professor- Elements of the mental disorder exemption:
1) the Crown must prove beyond a reasonable doubt that the accused committed the crime
and would be convicted;
2) the accused must show that their condition falls under a "disease of the mind";
3) the condition must have caused the accused to not have the capacity to appreciate either
the "nature and quality" of the act or to know that it is wrong;
4) the legal consequence is not an acquittal, but a special verdict of "no criminal
responsibility" under s.672.34.
Expert testimony that someone has or does not have a disease of the mind is extremely helpful
and almost necessary, but not determinative; whether or not someone suffers from a "disease
of the mind" is a legal question and can only be determined by the finder of fact - the judge or
jury. Although the expert testimony is helpful in making the decision, it is not the only factor.
If there is an air of reality that the accused suffered from a disease of the mind then it should
go to the jury. "Diseases of the mind" must impair the human mind in its functioning excluding
self-induced states caused by alcohol or drugs as well as transitory mental states such as
hysteria or concussion (i.e.) it must be continuing.
The test is that that he must have had the mental capacity to foresee the consequences of his
violent conduct. He knew that what he was doing was wrong, but the question is whether he
had the mental capacity to measure and foresee the consequences of the violent conduct. He
knew that there was a problem, but he might not have been able to appreciate the consequences
of it. As the charge to the jury on this point was not sufficiently clear to allow them to act
properly as finders of fact, a new trial is required.
Ratio too:
The elements of the mental disorder exemption:

the Crown must prove beyond a reasonable doubt that the accused committed the
crime and would be convicted;

the accused must show that their condition falls under a "disease of the mind";

the condition must have caused the accused to not have the capacity to appreciate
either the "nature and quality" of the act or to know that it is wrong; (IMP)

Expert testimony that someone has or does not have a "disease of the mind" is not
determinative; it is a question that is to be answered by the finder of fact. (IMP)

"Diseases of the mind" must impair the human mind in its functioning; this excludes
cases of self-induced incapacity such as through drugs or alcohol, and does not include
transitory states such as hysteria. (IMP) (even professor said this)
R v. Bouchard-Lebrun- intoxication not a defence. Sec. 33.1
applies.
Pg- 807-814
Facts: B brutally assaulted two individuals while he was in a psychotic condition caused by
drugs he had taken a few hours earlier. As a result of these incidents, B was charged with
aggravated assault. The trial judge convicted B on the basis that all the elements of s. 33.1 of
the Criminal Code (“Cr. C.”), which provides that self-induced intoxication cannot be a
defence to an offence against the bodily integrity of another person, had been proven beyond a
reasonable doubt. B then tried unsuccessfully on appeal to obtain a verdict of not criminally
responsible on account of mental disorder under s. 16 Cr. C. The Court of Appeal held
that s. 33.1 Cr. C. applied in this case.
Issue: Whether the psychosis resulted from a “mental disorder” within the meaning
of s. 16 Cr. C.
Decision: The appeal should be dismissed.
Reasons: A court must consider 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 the defence of self‑ induced intoxication under s. 33.1 Cr. C. is
applicable if it is appropriate to do so on the facts of the case. Intoxication and insanity are
two distinct legal concepts.
An accused who wishes to successfully raise the insanity defence must meet the
requirements of a two‑ stage statutory test. The 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. The
second stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental
disorder. At this stage, it must be determined whether, owing to his or her mental condition,
the accused was incapable of knowing that the act or omission was wrong. In the instant case,
it is not in dispute that B was incapable of distinguishing right from wrong at the material time.
Therefore, the only issue in this appeal is whether the psychosis resulted from a “mental
disorder” within the meaning of s. 16 Cr. C.
Toxic psychosis does not always result from a “mental disorder”. In Stone,
Bastarache J. proposed an approach for distinguishing toxic psychoses that result from mental
disorders from those that do not. This approach is structured around two analytical tools,
namely the internal cause factor and the continuing danger factor.
The internal cause factor, the first of the analytical tools, involves comparing the
accused with a normal person. The comparison between the accused and a normal person will
be objective and may be based on the psychiatric evidence. The more the psychiatric evidence
suggests that a normal person, that is, a person suffering from no disease of the mind, is
susceptible to such a state, the more justified the courts will be in finding that the trigger is
external. Such a finding would exclude the condition of the accused from the scope of s. 16
Cr. C. The reverse also holds true.
In this case, the application of the first factor suggests that the drug-taking is an
external cause. It seems likely that the reaction of a normal person to taking drugs would
indeed be to develop toxic psychosis. This strongly suggests that B was not suffering from a
mental disorder at the time he committed the impugned acts. And the rapid appearance of
psychotic symptoms generally indicates that B’s delusions can be attributed to an external
factor. In addition, the psychotic symptoms B experienced began to diminish shortly after he
took the drugs and continued to do so until disappearing completely. The Court of Appeal held
that the disappearance of the symptoms showed that the symptoms of toxic psychosis coincided
with the duration of B’s intoxication. It could thus say that B suffered from no disease of the
mind before committing the crimes and once the effects of his drug-taking had passed. There
is no valid reason to depart from this conclusion.
The second analytical tool, the continuing danger factor, is directly related to the
need to ensure public safety. In this case, there is no evidence indicating that B’s mental
condition is inherently dangerous in any way. Provided that B 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.
In this context, B was not suffering from a “mental disorder” for the purposes of s. 16 Cr. C.
at the time he committed the assault.
The foregoing conclusion leads to the question whether s. 33.1 Cr. C. is applicable. This
provision applies where three conditions are met:
(1) the accused was intoxicated at the material time;
(2) the intoxication was self‑ induced; and
(3) the accused departed from the standard of reasonable care generally recognized in
Canadian society by interfering or threatening to interfere with the bodily integrity of another
person.
Where these three things are proved, it is not a defence that the accused lacked the general
intent or the voluntariness required to commit the offence. Section 33.1 Cr. C. therefore
applies to any mental condition that is a direct extension of a state of intoxication.
Ratio: A 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.
Professor- Does a self-induced state of mental incapacity fall under criminal code as a mental
disorder defence? Outlines 2 stage test for mental disorder defence (formerly insanity): 1.
Was the accused suffering from a mental disorder in the legal sense at the time of the alleged
events? 2. Was the accused, owing to their mental condition, incapable of knowing that the act
or omission committed was wrong? In this case, no self-induced intoxication falls under
criminal code which prevents self-induced intoxication from being used as a defence against
bodily integrity of another person.
Automatism
R v. Rabey- stress in life is not external cause leading to
automatism.
Headnote
Facts: The accused, a University of Toronto student was charged with assault causing bodily
harm when they violently assaulted a female student with a rock after she told him that he was
just a friend. Accused argued that he was in a state of automatism when he committed the
assault. The Crown argued that if the accused was in such a state, it should be classified as a
mental disorder. Accused was acquitted at trial with Trial Judge finding that the insanity
defence should not apply. Crown appealed to ONCA where it was held that a psychological
blow like that received by the accused could not ground a defence of non-mental disorder
automatism. Accused appealed to SCC.
Decision: Appeal dismissed
Reasoning: Central question in deciding case of automatism is whether the accused is suffering
from a disease of the mind – question of law for the judge or jury. There must be an external
factor. Emotional stress suffered cannot be said to be an external factor producing the
automatism. It must be considered as having its source primarily in the psychological or
emotional makeup of the accused. Here, the accused’s infatuation with the woman had created
an abnormal condition in his mind under the influence of which he acted unnaturally and
violently to an imagined slight to which a normal person would not have reacted in the same
manner.
Psychosis occurred in a single isolated event. Must be wary of policy concerns that automatism
will allow a person who committed a violent act to be acquitted on the basis of a psychological
blow. Defence should be available whenever there is evidence of unconsciousness throughout
the commission of the crime that cannot be attributed to fault or negligence on his part.
(DISSENT)
Ratio: The ordinary stresses and disappointments of life which are the common lot of mankind
do not constitute an external cause constituting an explanation for a malfunctioning of the mind
which takes it out of the category of a disease of the mind.
Professor- Stands for proposition that ordinary stresses and disappointments of life that are
common to most people do not constitute an external cause constituting an explanation for a
malfunctioning of the mind. Central question in deciding application of automatism defence
is whether the accused is suffering from a “disease of the mind” Defines somewhat the meaning
of “disease of the mind” - term "disease of the mind" is a legal concept and it is therefore a
question of law for the trial Judge what mental conditions are included within the term as is the
question whether there is any evidence that the accused suffered from an abnormal mental
condition comprehended by that term. Any malfunctioning of the mind, or mental disturbance
having its source primarily in some subjective condition or weakness internal to the accused
(whether fully understood or not), may be a disease of the mind if it prevents the accused from
knowing what he is doing, but transient disturbances of consciousness due to certain specific
external factors do not fall within the concept. In particular, the ordinary stresses and
disappointments of life, though they may bring about malfunctioning of the mind such as a
dissociative state, do not constitute an external cause constituting an explanation for a
malfunctioning of the mind which takes it out of the category of a disease of the mind and
could not form the basis of a defence of non-insane automatism
R v. Parks (important)- Automatism is absolute acquittal and
Sleepwalking is automatism.
Pg- 831-833
Facts: Parks attacked his parents-in-law when he was sleepwalking. He drove 23 kilometers
to their house when he was sleepwalking and stabbed them in their sleep with a kitchen knife.
His mother-in-law died, and his father-in-law was seriously injured. He did not remember any
of the actions and there was no reasonable motive for the murder. Parks did not have any mental
conditions, although several members of his family had sleep problems. Parks had been
working long hours at work and had recently been charged with a theft from his employer. He
was acquitted both at trial and at the Court of Appeal.
Issue: Does sleepwalking constitute non-insane automatism or it is a "disease of the mind"
under s.16 of the Criminal Code?
Decision: Appeal dismissed.
Reasons: Lamer held that the expert evidence showed that Parks was indeed sleepwalking at
the time of the attack, that sleepwalking is not a neurological disorder, and that there is no
medical treatment for sleepwalking aside from good health.
La Forest went into detail analyzing automatism. In determining whether or not automatism
springs from a disease of the mind one should look to determine if it is caused by internal (in
the mind) or external factors. One should also consider whether the condition is continuing.
Although these are not determinative, a finding that automatism is internal and continuing
suggests a disease of the mind. In this case there was no evidence of a recurrence of
sleepwalking causing a similar outcome. Again, La Forest states that whether or not something
is a disease of the mind is a legal question – although expert evidence helps, it is not
determinative.
There is also non-insane automatism, which is where the automatism is caused by external
factors, it is not continual, and is not linked to any disease of the mind. This applies as a
complete defence resulting in the disposition of an acquittal. Although some critics are against
applying this defence to sleepwalking, La Forest states that it cannot lead to an opening of the
floodgates because it is so rare, and that it must be done to uphold the principles of
voluntariness required for a conviction.
Once the defendant raises automatism as a defence the burden is on the Crown to show that the
acts were voluntary. They can also prove that the actions were the result of "insane"
automatism.
Ratio: Automatism works as a defence and results in an absolute acquittal.
Once the defendant raises automatism as a defence the burden is on the Crown to prove
voluntariness, or alternatively to prove "insane" automatism which results in a non-criminal
responsibility verdict but may result in an alternative disposition under s.672.54.
Professor- Sleepwalking or somnambulism is not a disease of the mind within the meaning of
this section. The accused's faculties of reason, memory and understanding are impaired while
in such a state but this impairment was not shown to be the result of any disorder or abnormal
condition, but rather the result of the natural, normal condition of sleep. Thus, an accused who
commits an offence in such state is entitled to be acquitted on the basis of non-mental disorder
automatism.
R v. Stone- burden on accused. 2 step test for establishing
automatism.
Pg- 833-845
Facts: Stone was driving to see his two sons from a previous marriage with his wife. She did
not want him to see them and as a result of her reticence he was only able to visit with them
for 15 minutes. On the drive back his wife continued to berate him, telling him he was a loser,
that he was terrible in bed, that he had a small penis, and that she was going to go to the police
with trumped up assault charges. He pulled the car over and put his head down. He testified
that he blacked out and felt a "woosh" go through his body. When he came to, he had stabbed
her 47 times with a hunting knife that he kept in the car. He hid her body in his truck's tool
chest, picked up a six pack, drove home, left a note for his daughter, and took off to Mexico.
After a few weeks in Mexico he decided to return to Canada and turn himself in.
In his defence, Stone pleaded insane automatism, non-insane automatism, lack of intent, and
in the alternative, provocation. The judge allowed for a defence of insane automatism which
was presented to the jury. The jury convicted him of manslaughter and sentenced him to seven
years. The verdict was upheld by the Court of Appeal.
Issue: Should the defense of non-insane automatism have been left to the jury?
Decision: Appeal dismissed.
Reasons: There was significant evidence given by psychiatrists for the Crown and the defence.
They both agreed that Stone's situation sounded like he had a condition induced by the words
that put him in an "dissociative state", and that if this were true he would have been unable to
control his actions, however, there is no way to prove that this happened beyond his testimony.
Bastarache, writing for the majority (a 5-4 split), clearly differentiates between insane and noninsane automatism. Insane automatism results from a disease of the mind, and is completely
covered by s.16. If it is successfully proven then a special verdict will be entered. On the other
hand, non-insane automatism does not stem from a disease of the mind and, if successful,
results in an acquittal of the defendant. He says that "true" automatism does not result from a
disease of the mind; when that happens, it is a mental disorder.
Bastarache then sets out the TEST for establishing automatism. First, the accused needs to
establish a proper basis for the defence of automatism on a balance of probabilities (STEP 1).
This burden shift violates s.11(d) of the Charter, but is saved by s.1. In law, there is a
presumption of voluntariness. In order to establish this burden, the accused must give expert
evidence to go along with their claim of automatism.
If this burden is met, the judge must then decide whether mental disorder or non-mental
disorder automatism should be left to the jury (STEP 2). The judge must decide whether there
is a "disease of the mind" present (INTERNAL CAUSE AND CONTINUING DANGER
THEORY). If one is present, then a special verdict will be entered as per s.16. If none is present,
then only the defence of non-disorder automatism can be left to the jury. The question will then
be if the accused acted involuntary on a balance of probabilities – if he did, then he is acquitted.
When charging the jury about automatism, the judge must be careful to emphasize the
importance of voluntariness in criminal convictions, and concerns about the repute of the
administration of justice associated with the defence of automatism.
In the case at bar, the trial judge did not err in not charging the jury about automatism because
the accused did not establish evidence on a balance of probabilities that would lead to the
defence being accepted.
Ratio: A claim of the defence of automatism has two steps: (Professor same)
1. The accused must establish, on a balance of probabilities, that there is sufficient
evidence (if believed) to make the defence operate. In order to do this the accused must
have expert evidence to go along with his or her testimony. If this is not met, then the
defence fails.
2. The judge must decide if there is a disease of the mind. If there is, then a special verdict
is entered and normal s.16 procedures are followed. If there is not, then the question
must be left to the jury if the accused acted involuntarily. If he did, then he is acquitted.
16th November- Thursday
DEFENCES
Intoxication- Leary Rule(basis)
DDP v. Beard- intoxication considered for specific intent offences.
Pg- 850-852
Facts: The appellant whilst intoxicated raped a 13-year-old girl and put his hand over her
mouth to stop her from screaming. She died of suffocation.
Ratio: Lord Birkenhead LC:
"Under the law of England as it prevailed until early in the 19th century voluntary drunkenness
was never an excuse for criminal misconduct; and indeed the classic authorities broadly assert
that voluntary drunkenness must be considered rather an aggravation than a defence. This view
was in terms based upon the principle that a man who by his own voluntary act debauches and
destroys his will power shall be no better situated in regard to criminal acts than a sober man.
Where a specific intent is an essential element in the offence, evidence of a state of drunkenness
rendering the accused incapable of forming such an intent should be taken into consideration
in order to determine whether he had in fact formed the intent necessary to constitute the
particular crime. If he was so drunk that he was incapable of forming the intent required he
could not be convicted of a crime which was committed only if the intent was proved. ... In a
charge of murder based upon intention to kill or to do grievous bodily harm, if the jury are
satisfied that the accused was, by reason of his drunken condition, incapable of forming the
intent to kill or to do grievous bodily harm ... he cannot be convicted of murder. But
nevertheless, unlawful homicide has been committed by the accused, and consequently he is
guilty of unlawful homicide without malice aforethought, and that is manslaughter.
Conclusions drawn by the judge under three heads1. Insanity, whether produced by drunkenness or otherwise, is a defence to the crime
charged. The insane person cannot be convicted of a crime, but, upon a verdict of
insanity, is ordered to be detained during His Majesty’s pleasure. The law takes no
notice of the cause of insanity. If actual insanity in fact supervenes, as the result of
alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity
induced by any other cause.
2. 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. (Professor’s ratio)
3. Evidence of drunkenness fall short of a proved incapacity in the accused to form the
intent necessary to constitute the crime, and merely establishing that his mind was
affected by drink so that he more readily gave way to some violent passion, does not
rebut the presumption that a man intends the natural consequences of his acts.
(EXTRA- for specific intent offences, both conduct and consequences are intended. For
general intent offences, only the conduct is intended.)
Professor- Where a specific intent is an essential element in the offence, evidence of a
state of drunkenness rendering the accused incapable of forming such an intent should
be taken into consideration in order to determine whether he had in fact formed the
intent necessary to constitute the particular crime.
R v. George- specific intent and general intent. Common assault is
general intent.
Pg- 854-858
Facts: On February 8th, 1959, George tried to sell a fur to Mr. Avergis but the man declined.
Late the same night, when the defendant was very drunk, he came back to the house and
assaulted the man, stealing $22. He was charged with robbery under s.288 of the Criminal Code
(now s.343). The accused stated that he was very drunk and did not remember much about the
incident, but he did remember hitting someone, and remembered the house being the same one
that he had been in earlier that day, and indeed it was the same one.
Issue: Should the courts substitute the offence of common assault?
Are charges divisible?
Does drunkenness negate mens rea?
Decision: Appeal allowed, charge of common assault found, sentenced to time served.
Reasons: The majority (with Locke J dissenting) states that the trial judge first erred by not
considering whether or not to divide the charge of robbery into the theft and assault. They cite
s.569 of the Code (now s.590(3)), which states that any charge for an indictable offence can be
divided if the facts include another offence that is punishable by indictment or summary
conviction. Therefore, the trial judge should have considered the charge of common assault.
The court then considered how the respondent's drunkenness affects the charges. The court
agrees with the trial judge that the intoxication prevented the defendant from forming the
specific intent required for the original charge (robbery). However, unless intoxicated to the
point of insanity the accused could still form the intention to strike the man (and the charge of
assault only requiring that the defendant have applied force intentionally). The court then enters
a conviction for common assault. They say that the difference between specific intention and
regular mens rea is important in cases involving intoxication.
Ratio: When a case with a charge for an indictable offence contains facts that lead to a
commission of another crime (whether punishable by indictment or summary conviction) the
charge may be divided (s.590(3)).
Intoxication often makes it impossible for a person to form the specific intention in crimes,
however only intoxication to the point of insanity will negate mens rea altogether in cases
involving only general intent.
R v. Bernard- Sexual assault is general intent crime.
Pg- 858-866
Facts: The accused forced the complainant to have sexual intercourse with him, and committed
a further assault on her. The accused raised the defence of drunkenness. Evidence on record
suggested that the accused was able to walk, talk, and use objects such as a record player. The
drunkenness claim was only based on the accused’s testimony.
Issues: Whether the offence of sexual assault causing bodily harm is an offence of specific or
general intent; and whether self-induced drunkenness can be used as a defence to general
intent offences.
Decision: The court held that sexual assault is a crime of general intention.
Ratio: Drunkenness can be used as a defence where it affects an accused’s capacity to form
specific intent but it cannot be used as a defence to crimes of general intent. This principle
rests on good policy considerations and includes the propositions that the minimum (general)
intent could be substituted for evidence of intoxication.
Thus, the defence of intoxication is not available for sexual assault which is a crime of
general intent.
R v. King- Involuntary intoxication.
Facts: King was charged with impaired driving. He went to the dentist's office to have teeth
pulled and was given sodium pentathol, an anesthetic. He was warned not to drive but he said
he didn’t hear the warning. He got in his car, drove, and caused an accident. King said he did
not know anything about the drug that he was on. He was convicted at trial; the conviction was
quashed upon appeal and the Crown appealed to the Supreme Court.
Issue: Was he voluntarily under the influence? Did he willingly drive under influence?
Decision: Appeal dismissed, appellate court judgment upheld.
Reasons: The trial court judge stated that the prohibition to driving while impaired by drugs is
express, and that King's defence that the act was involuntary was not a defence for this section
of the Code. However, the Court of Appeal disagreed and stated that no fault can be imputed
to the accused, as the act was involuntary.
Ritchie, writing for the court, stated that there can be no actus reus unless it is the result of a
willing mind at liberty to make a definite choice or decision. In other words, there must be
willpower to do an act for the actor to be convicted. There must be an act proceeding from a
free will that brings about the mental conditions necessary to satisfy s.253, which did not occur
here.
Ratio: There can be no actus reus unless it is the result of a willing mind at liberty to make a
definite choice or decision. The accused can never be convicted for involuntary intoxication.
R v. Daviault- extreme voluntary intoxication resembling
automatism is defence to general intent crimes. Controversial but
still applies.
Pg- 867-873
Facts: Daviault, an alcoholic, delivered a bottle of brandy to a 65-year-old woman in a
wheelchair. She had one drink and fell asleep. Daviault, who had already had seven or eight
beers during the day, drank the rest of the 40-ounce bottle of brandy. This put him at a level of
intoxication that would lead to coma or death in most people. He sexually assaulted the woman;
however, he was so drunk that he did not remember any of it. Expert evidence was adduced at
trial stating that a blood alcohol level as high as Daviault's could have resulted in an episode
of "l'amnésie-automatisme", also known as a blackout. Daviault was acquitted at trial, as the
judge held he was so intoxicated that he was unable to form the mens rea of the offence, but
the Court of Appeal substituted a conviction.
Issue: Does voluntary intoxication to a point that closely resembles automatism act as a
defence for crimes of general intent?
Decision: Appeal allowed, new trial ordered
Reasons: Prior to this case it was established (in Leary v The Queen) that voluntary
intoxication acts as a defence in crimes requiring specific intent because it precludes the
voluntariness and intent required to commit the crime. However, no decision has been made
for crimes requiring only general intent since the Charter. In England this has been strictly
denied; however in Australia and New Zealand it is allowed and unqualified.
REASONS: Cory, writing for the majority, finds that voluntary intoxication can act as a
defence in crimes of general intent only if the intoxication was such that the person was in a
state of automatism. Allowing people to be convicted even though they were acting
autonomously violates s.7 and s.11(d) of the Charter. Allowing convictions in these cases the
court would essentially be substituting the intent to get drunk for the intent to commit the crime,
which is unfair. Mens rea and voluntariness are two of the most important aspects of any crime,
therefore, any reasonable doubt concerning them should act as a defence. They (judges) are
very clear when they state that this only operates in cases of extreme intoxication resulting in
autonomous actions – it does not apply when the defendant was just drunk.
The majority also holds that the burden is on the claimant to establish that they were drunk to
the requisite extent on a balance of probabilities (similar to automatism). This prima facie
violates the Charter, but it is saved by s.1. Presenting this evidence will "undoubtedly require"
the testimony of an expert.
Sopinka, in the dissent, argues that denying this defence is not contrary to the Charter. He does
not think that voluntariness to commit the actus reus of an offence is a principle of fundamental
justice. He states that automatism does not apply in cases where the accused has brought the
state on by his or her own fault. He holds that although the distinction between general and
specific intent crimes is illogical for some things, it makes sense for this – therefore the Leary
rule applies and the defence of drunkenness does not apply in cases of general intent.
Ratio: If an accused is intoxicated to the extent that they have no control over their action and
they are acting autonomously then they cannot form the necessary mens rea to commit crimes,
or be said to act voluntarily; thus, being this intoxicated is a defence to crimes requiring both
general and specific intent.
The burden of proof is on the accused to prove this on a balance of probabilities.
(section 33.1 came after Daviault)
Professor- Voluntary intoxication can act as a defence in crimes of general intent only if the
intoxication was such that the person was in a state of automatism. Only operates in cases of
extreme intoxication resulting in autonomous actions – it does not apply when the defendant
was just drunk. The burden is on the claimant to establish that they were drunk to the requisite
extent on a balance of probabilities. If an accused is intoxicated to the extent that they have no
control over their action and they are acting autonomously then they cannot form the necessary
mens rea to commit crimes, or be said to act voluntarily.
Duress
R v. Ruzic- immediacy and presence under s. 17 violate s. 7.
Pg- 932-938
Facts: Ruzic was a 21 year old woman from Belgrade, Yugoslavia. A street thug approached
her while she was walking her dog in Belgrade and threatened to kill her mother if Ruzic did
not do as he asked. He knew everything about her, although she didn't know who he was. She
was provided with a false Austrian passport and had three packages of heroin strapped to her
body and was told to fly to Toronto and deliver the heroin to a restaurant. She was arrested
upon arriving in Canada and was charged with possession of a false passport and importing
narcotics. At trial, she successfully challenged the constitutionality of s.17 of the Code and
raised the common law defence of duress and was acquitted. The Crown's appeal was
dismissed.
Issue: Do the immediacy and presence requirements of s.17 of the Criminal Code infringe s.7
of the Charter?- YES
Does the common law defence of duress require immediacy and/or presence? - NO
Is it a principal of fundamental justice that only morally voluntary conduct can attract criminal
liability?
Decision: Appeal dismissed.
Reasons: LeBel, writing for a unanimous court, holds that as Ruzic is the primary actor s.17
does apply to her. However, she has a problem because the person who made the threats is
halfway around the world. She argues that the requirement that the threat be immediate and
present is too limited and that it violates s.7 of the Charter. She argues that she is still acting
involuntarily despite the fact that the person making the threat is so far away. The court accepts
this, and says that moral voluntariness is a principle of fundamental justice protected under s.7;
it is required for criminal liability. The court therefore states that s.17 is unconstitutional in part
because of this violation, but they do not specifically address which parts are unconstitutional.
LeBel then lays out the common law rules for duress, which state that the threat only has to be
made to yourself or someone else (not included in s.17). It does not talk about the threat needing
to be immediate. It also requires no easy route of legal escape but does require a close temporal
connection between the threat and the harm. They say that she meets these requirements,
despite the fact that it seems like she had lots of ways out, and the appeal is dismissed.
The violation of section 7 by the immediacy and presence requirements of section 17 can be
saved under section 1 of the charter.
Ratio: The immediacy and presence requirements of s.17 are unconstitutional, however it is
unclear what parts, if any, of s.17 remain constitutional.
The common law rules for duress do not have an immediacy requirement but they require a
close temporal connection between the threat and the harm.
It is a principal of fundamental justice that only voluntary conduct – behaviour that is the
product of a free will and controlled body, unhindered by external constraints – should attract
the penalty and stigma of criminal liability.
Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is
a principle, which, similarly to physical involuntariness, deserves protection under s. 7 of the
Charter.
Professor - The common law rules for duress do not have an immediacy requirement (i.e.
unlike statutory provisions, ruled unconstitutional because they require threat to be immediate
and present threat) but they require a close temporal connection between the threat and the
harm. The common law rule for duress states that the threat can be made to accused or someone
else. Elements to consider in proving duress include:
o threat of death or bodily harm
o reasonable belief that threat will be carried out o no safe avenue of escape
o no safe avenue of escape
o close temporal connection
o proportionality
o participation in a conspiracy or criminal association
(EXTRA- Duress is available to any defence except murder)
R v. Hibbert- test for duress, i.e. 3 principles.
Pg- 953-958
Facts: On November 25, 1991, Cohen, a friend of the appellant, was shot four times in the
lobby of his apartment building. The appellant had called for his friend Cohen to come
downstairs from his apartment at which point another man, Bailey, shot Cohen four times when
he came downstairs. Hibbert contends that he only acted the way he did (in calling Cohen
downstairs) because Bailey threatened him and therefore the defence of duress should apply.
Hibbert was acquitted of attempted murder at trial but convicted of aggravated assault; his
appeal on the conviction was dismissed by the Court of Appeal, but his sentence was reduced.
Issue: Does an action performed under duress remove the element of mens rea?
When does s.17 of the Criminal Code apply?
When does the common law defence of duress apply?
Whether accused persons are foreclosed from recourse to the defence if they failed to avail
themselves of a ‘safe avenue of escape’ from the situation of coercion when such a safe avenue
was available?
Decision: Appeal allowed, new trial ordered with corrected jury instructions.
Reasons: Lamer, writing for a unanimous court, says that although he is bound by R v
Creighton, there is a significant distinction between that case and the case at bar – it is a defence
that is concerned here, so the ruling in Creighton that unmodified objective tests must be used
in respect to homicide does not stand. He deems that a modified objective test is more
appropriate for an excuse-based defence. The particular test to be employed is one that takes
into account particular circumstances and human frailties, however he makes no reference to
the circumstantial frailties in this case. (NI)
The court says that it is important to note that threats can have an effect on one's mental state,
however this does not necessarily mean that someone who commits the actus reus of an offence
does not possess the necessary mens rea required for conviction. This will depend on what the
required mens rea of the offence is, and the facts of the case.
In the circumstances of the case, it is only the common law defence of duress that applies to
Hibbert as he was not the principal actor. Section 17 only applies to principal actors in crimes;
the common law applies to secondary actors and abettors. The "no legal way out" requirement
in defence of duress only asks if there is a "reasonable legal alternative" determined using a
modified objective test. In the case at bar, a reasonable person in Hibbert's shoes would not
have thought that he had any reasonable alternatives.
The trial judge charged the jury that duress negated the mens rea of an offence, and was more
than just an excuse, which was a mistake of law. While duress can apply as a defence and
negate mens rea in extreme circumstances (desiring bank robbers to succeed so that your family
would be freed from captivity, for example) and result in an acquittal, the circumstances of this
case do not allow for this negation. Hibbert clearly knew what he was doing and he knew that
he might cause Cohen's death.
Ratio: Section 17 only applies to principal actors in crimes; the common law defence of duress
applies to secondary actors.
Duress may be used as a defence either to negate mens rea (very rare) or as an excuse-based
defence under s. 17 or the common law defence of duress; the defence can always apply, but
whether or not the coercion will mean that the mens rea is not present will depend on the
particular charge and facts of the case.
The common law defence only requires you to determine if the accused had a "reasonable legal
alternative" using a modified objective test. The question of whether or not a safe avenue of
escape existed is to be determine 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.
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 or she 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. Situations
where duress will operate to ‘negate’ mens rea will be exceptional because the types of mental
states that are capable of being negated by duress are not often found in the definition of
criminal offences. (JUST COMMON LAW DURESS FOR EXAM)
Professor for Ruzic case- Three principles have to be there for the defence to apply (test)1st principle- there has to be a threat of death or serious bodily harm.
2nd principle- objective standard of no safe avenue of escape or no reasonable opportunity to
render the threat inoperative.
3rd principle- proportionality between the threat and the criminal act.
Professor- An accused cannot rely on the common law defence of duress if he or she had an
opportunity to safely extricate him or herself from the situation of duress. The rationale for
this rule is simply that in such circumstances the condition of ‘normative involuntariness’ that
provides the theoretical basis for both the defences of duress and necessity is absent. 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. In general, a person who performs an action in response to a threat will know what he
or she is doing, and will be aware of the probable consequences of his or her actions. The
similarities between the defences of duress and necessity are so great that consistency and logic
requires that they be understood as based on the same juristic principles.
Necessity
Perka v. The Queen- Test for necessity.
Pg- 966-971
Facts: The appellants were drug smugglers taking marijuana from Colombia to Alaska when
their ship encountered troubles off the coast of Vancouver Island. They were forced to unload
the cargo and set up camp on the shore as the ship was going to sink. They were arrested by
Canadian authorities and charged with importing and trafficking drugs. They stated that they
never intended to bring the drugs into Canada and tried to employ the defence of necessity:
they had to come ashore to prevent their death. They were acquitted at trial, but the Court of
Appeal ordered a new trial which was appealed to the Supreme Court.
Issue: Is the defence of necessity a justification or an excuse?
What is the test for necessity?
Decision: Appeal dismissed, new trial ordered with a proper charge to the jury.
Reasons: Dickson, writing for the majority, states that it is a longstanding principle that
someone in situations that make it unrealistic and unjust to attach liability cannot be convicted
of crimes committed in the circumstances. The Crown does not challenge the claim that there
is a common law defence of necessity. However, they object to the trial judge charging the jury
concerning necessity based on the facts of this case and to him placing the burden of proof of
the defence on the Crown, rather than the accused.
The Court says that necessity does not justify what someone has done as being lawful, they
just excuse them from punishment when the circumstances are taken into consideration.
Dickson then sets out how the defence works. The burden of proof is always on the Crown to
disprove necessity once it is raised. For it to apply:
1. there must be an emergency involving clear and imminent peril when compliance with
the law is demonstrably impossible (Morgentaler case), to be determined using a
modified objective test, placing a reasonable person in the claimant's shoes;
2. there must be no reasonable legal alternative to what is performed, also determined
using a modified objective test; and
3. one must look at the proportionality of the illegal act compared to the harm avoided
using a standard objective test, as allowing for subjective input would make the criminal
law inconsistent.
Dickson goes on to say that it does not matter if you were engaged in illegal or negligent
activity when the necessity arose – all that matters is that you were in a state of emergency.
Further, there needs to be an "air of reality" in all three steps of the test for a judge to charge
the jury about the defence of necessity. Once it is raised, the Crown must disprove the evidence
of necessity. You need to have proof of all three steps in order to succeed.
Ratio: Professor- To successfully use the common law excuse of necessity there must be three
elements:
1. an emergency: clear and imminent peril - proven using a modified objective test;
2. no reasonable legal alternative - proven using a modified objective test; and
3. the illegal act must be proportional to the harm avoided - proven using a standard
objective test
The burden is on the Crown to disprove these elements if necessity is raised.
The criterion is moral involuntariness of the wrongful action.
Necessity does not justify what someone has done as being lawful, they just excuse them from
punishment when the circumstances are taken into consideration.
R v. Latimer- air of reality for all three aspects of necessity.
Facts: Tracy, Latimer's daughter, was 12 years old and had very severe cerebral palsy and was
constantly in pain. She was to have an operation that would reduce the pain, but it was going
to inflict a lot of pain in the process. Rather than put his daughter through continued pain,
Latimer killed her by putting her in his truck and blocking the tailpipe where she died of carbon
monoxide poisoning. Latimer denied it at first saying she had died in her sleep, but eventually
confessed. He said that he had considered more inhumane ways to kill her, and decided that
this was the best. Latimer was convicted of second-degree murder at trial and his appeal was
dismissed.
Issue: When must the defence of necessity be charged to a jury?
Decision: Appeal dismissed.
Reasons: The court states that the defence of necessity does not apply here because there was
no air of reality in respect to any of the three necessary elements for necessity. Tracy was not
in immediate peril as there was no indication that she was going to die any time soon and
Latimer had no reason to believe that there was. There were obviously lots of legal alternatives
to killing her. The proportionality test fails because killing someone is more serious then them
being put through pain (although this raises the question of whether death is ever better than
pain). Generally, in cases of necessity it is the accused that is in an emergency and going to
suffer if they do not act illegally, not someone else who is in the "emergency" while the accused
faces no risk.
Latimer also argued that having second-degree murder impose a mandatory life sentence
amounted to "cruel and unusual punishment" in this case, and that he should receive a
constitutional exemption from the minimum sentence. This argument is rejected because he
cannot show that the sentence is "grossly disproportionate" to the punishment for the most
serious crime known to man – murder.
Ratio: To charge a jury with respect to the defence of necessity there must be an air of reality
for all three aspects of necessity.
WEEK 12
21st November- Tuesday
SENTENCING
Sentencing aboriginal offenders
R v. Gladue- s. 718.2(e) of the code
Pg- 110-118
Facts: Gladue was accused of second-degree murder after she killed her fiancée with a large
knife that penetrated the victim's heart. The appellant pled guilty to the lesser charge of
manslaughter. The two had been arguing about infidelity and insulting one another when the
incident occurred. Both of the parties were drunk at the time. Both parties were Aboriginals.
The trial judge sentenced her to three years’ imprisonment. She appealed on sentence
unsuccessfully to the Court of Appeal and continued her appeal to the Supreme Court.
Issue: Is s.718.2(e) remedial in nature or simply a codification of existing sentencing
principles- YES it’s remedial in nature and not the latter.
Were the new sentencing provisions in s.718.2(e) of the Code given ample consideration?
Is aboriginal status applicable even though the person’s not living with the community.
Decision: Appeal dismissed.
Reasons: Cory and Iacobucci delivered the judgment of the court. They first looked at how the
trial judge arrived at the three-year sentence. Gladue had already started rehabilitation, and it
seemed that she did not need to be deterred from acting like this in the future. She had also
already apologized to the victim's family, so providing reparations for the family and
community were not a large issue. She also acknowledged her wrong, so responsibility had
already been shown. This is the main reasoning why the sentence was only for three years when
it could have been up to life imprisonment.
Gladue claimed that s.718.2(e) of the Code had not been considered in deciding the sentence.
This was the first time that this new provision of the Code was interpreted by the courts. Gladue
did not come from an Aboriginal community; however, she still claims that this provision
applies to her. Although the Court accepted the Court of Appeal's decision, they had more to
say about the specific provision. They determined that restorative justice is very important and
that this applies to Gladue even though she does not live on a reservation because the bigger
problem is the disproportionate number of Aboriginals in jail. However, they also say that
restorative justice isn’t the only thing that needs to be considered when sentencing Aboriginals
and that some crimes are serious enough to deserve traditional punishment. They say that
allowing a new trial solely on the basis of her Aboriginal status would not be in the public
interest.
Ratio: Restorative justice must be given particular consideration when dealing with Aboriginal
offenders; however, it is not the only thing to be considered in these cases, as the traditional
punitive measures must also be weighed with the facts of the case.
Section 718.2(e) of the Code applies to Aboriginals in general, not just those who live in
aboriginal communities/ reserve.
When sentencing an Aboriginal offender, the court must consider:
i)
ii)
the unique systemic or background factors which have played a part in bringing the
offender before the court; and
the types of sentencing procedures and sanctions which may be appropriate in the
circumstances for the offender because of his or her particular Aboriginal heritage
or connection.
Sec.718.2(e) is remedial in nature and not simply a codification of existing sentencing
principles. It’s not that the principles have been existing since always, but they are restructured
keeping in light the aboriginals.
The intent of 718.2(e) is to reduce incarceration.
Summary For exam- page 1015 of the book- para 93 (IMP)
Professor- deals w S. 718.2(e) of Criminal Code. Paragraph (e) is not simply a codification of
existing jurisprudence. Its purpose is to ameliorate the serious problem of overrepresentation
of aboriginal people in prison, and to encourage sentencing judges to have recourse to a
restorative approach to sentencing. It directs sentencing judges to undertake the sentencing of
aboriginal offenders individually, but also differently, because the circumstances of aboriginal
people are unique. The judge must therefore consider the unique systemic or background
factors that may have played a part in bringing the offender before the court and the types of
sentencing procedures and sanctions that may be appropriate in the circumstances because of
the offender's heritage or connection. While judges may take judicial notice of the broad
systemic and background factors and the priority given to restorative justice, the court should
be provided with case-specific information by counsel or in the pre-sentence report. Whether
the offender resides on a reserve, in a rural or an urban area, the judge must be made aware of
alternatives to incarceration that exist whether inside or outside the aboriginal community. This
paragraph should not, however, be taken as a means of automatically reducing the prison
sentence of aboriginal offenders. The sentence imposed will depend upon all the factors that
must be taken into account in each individual case. It is unreasonable to assume that aboriginal
people themselves do not believe in the importance of the objectives of denunciation,
deterrence and separation. Generally, the more violent and serious the offence the more likely
it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals
will be close to each other or the same. Gladue factors include:
o Effects of the residential school system. o Experience in the child welfare or adoption system.
o Effects of the dislocation and dispossession of Aboriginal peoples. o Family or community
history of suicide, substance abuse and/or victimization. o Loss of, or struggle with,
cultural/spiritual identity. o Level or lack of formal education. o Poverty and poor living
conditions. o Exposure to/membership in, Aboriginal street gangs
Sentence variation for collateral consequences
R v. Pham- sentence varied to allow appeal against removal.
Headnote
Facts: The accused, a non-citizen, was convicted of two drugs-related offences. In light of a
joint submission by the Crown and defence counsel, the sentencing judge imposed a sentence
of two years’ imprisonment. Under the Immigration and Refugee Protection Act , a non-citizen
sentenced to a term of imprisonment of at least two years loses the right to appeal a removal
order against him or her. In the present case, neither party had raised the issue of the collateral
consequences of a two-year sentence on the accused’s immigration status before the sentencing
judge. The majority of the Court of Appeal dismissed the appeal and refused to vary the
sentence.
Held: The appeal should be allowed and the sentence of imprisonment reduced to two years
less a day.
Reasons: A sentencing judge may exercise his or her discretion to take collateral
immigration consequences into account, provided that the sentence ultimately imposed is
proportionate to the gravity of the offence and the degree of responsibility of the offender. The
significance of collateral immigration consequences will depend on the facts of the
case. However, it remains that they are but one of the relevant factors that a sentencing judge
may take into account in determining an appropriate sentence. Those consequences must not
be allowed to skew the process either in favour of or against deportation. Further, it remains
open to the sentencing judge to conclude that even a minimal reduction of a sentence would
render it inappropriate in light of the gravity of the offence and the degree of responsibility of
the offender.
An appellate court has the authority to vary a sentence if the sentencing judge was not aware
of the collateral immigration consequences, or if counsel had failed to advise the judge on this
issue. Where the matter was not raised before the sentencing judge and where the Crown does
not give its consent to the appeal, some evidence should be adduced for consideration by the
Court of Appeal. In the case at bar, the sentencing judge was unaware of the sentence’s
collateral immigration consequences and the Crown had conceded that sentence should be
reduced by one day. It was wrong for the Court of Appeal to refuse the sentence reduction
based solely on the fact that the accused had a prior criminal record or on its belief that the
accused had abused the hospitality that had been afforded to him by Canada. It is therefore
appropriate to grant the variation of the sentence from two years to two years less a day.
Ratio: A sentencing judge may exercise his or her discretion to take collateral immigration
consequences into account, provided that the sentence ultimately imposed is proportionate to
the gravity of the offence and the degree of responsibility of the offender.
An appellate court has the authority to vary a sentence if the sentencing judge was not aware
of the collateral immigration consequences, or if counsel had failed to advise the judge on this
issue.
Case for proportionality principle.
Professor- The central issue of the case is whether a sentence otherwise falling within the range
of fit sentences can be varied by an appellate court on the basis that the offender would face
collateral consequences under the Immigration and Refugee Protection Act? In this case the
Court noted that the closer the varied sentence is to the range of appropriate sentences, the
more probable it is that the reduced sentence will remain proportionate and thus reasonable. In
addition, the principle of individualization informs the sentencing process, which should
consider any relevant aggravating, mitigating and personal circumstances. The parity principle
requires that a sentence be like those imposed on similar offenders for similar offences in
similar circumstances. Court also noted the importance of rehabilitation in sentencing.
Discretion of the judge
R v. M(CA)- proportionality (length of sentencing and seriousness
of wrongdoing)
Facts: Accused plead guilty to sexual assault charges, incest and sexual assault with
weapon. Trial judge gave 25 years/appeal reduced it to 18 yrs 8 months – said should be a
ceiling. (suggested a 20 year max ceiling for non-life sentences)
Issue(s): Is there a legal ceiling on fixed term sentences under the Criminal Code? – NO
Decision:It was reasonable for the judge to conclude that in this instance it required 25 years.
There is no legal ceiling on fixed terms sentences, up to discretion of the courts.
Analysis: Retribution – appropriate punishment, which properly reflects the moral
culpability of offender – reflect moral blameworthiness of offender.
Code offers no guidance when determining a sentence beyond 14 years but not at far as life
imprisonment. Circumstances where more then 14 year but less then life:
→ Offender convicted of single act that carries max life, judge believes life is no warranted
by facts, but entitled to sentence beyond 14.
→ Offender is convicted of a number of distinct counts in relation to a single offence, or in
relation to a set of different offences – judge can sentence consecutively or concurrently.
Totality principle (IMP) – a judge who orders an offender to serve consecutive sentence for
multiple offences must ensure that the cumulative sentence rendered does not exceed the
overall culpability of the offender.
→ Just and appropriate under the circumstance.
→ Must reflect proportionality.
Ratio: Sentence = just and appropriate punishment, which is proportional to the overall moral
culpability of the offender.
→ Must be some connection between length and wrongdoing - proportionality
→ Purpose – deterrence, denunciation, retribution, protection of society
⇒ Retribution must be proportional to the offence
Totality principle (IMP) – a judge who orders an offender to serve consecutive sentence for
multiple offences must ensure that the cumulative sentence rendered does not exceed the
overall culpability of the offender.
→ Just and appropriate under the circumstance.
→ Must reflect proportionality.
There is no legal ceiling on fixed terms sentences, up to discretion of the courts. It is within
the DISCRETION of the judge. (IMP)
Professor- Sentence must be a fair and appropriate punishment. Needs to be proportional to
the overall moral culpability of the offender. Analysis of sentencing looks at connection
between length of sentencing and degree/seriousness of wrongdoing (i.e. proportionality). The
fundamental nature of the proportionality principle arises out of the general principle in our
law that criminal liability can only be imposed on persons who possess a morally culpable state
of mind.
Constitutional Considerations
R v. Smith (Edward Dewey)- minimum mandatory sentence
violates sec. 12 of charter if grossly disproportionate. (drug
trafficking)
Pg- 1026-1028
Facts: S.5 of the Narcotic Control Act – (1) no person shall import into Canada or export
from Canada any narcotic. – any person who violates it is indictable of an offence to
imprisonment of no less then 7 yrs. S returned to Canada with cocaine hidden on his
person/sentenced to 8 yrs in prison. (2) imposes minimum mandatory sentence for the
offence under sec. (1).
Issue: Whether the mandatory minimum sentence of s.5(2) is contrary to, infringes, or denies
the rights and guarantees contained in the Charter and particularly s 12?
If so, can it be justified in a free and democratic society under s.1?
Holding: Mandatory minimum violates s.12 of Charter, is not saved by s.1 of Charter
Reasons: s.12 of the Charter, which guarantees each and every one of us that we shall not be
subject to any cruel and unusual treatment or punishment.
→ Whether the punishment prescribed is so grossly disproportionate as to outrage standards
of decency.
⇒ Test: grossly disproportionate – aimed at punishments more then merely excessive.
Assessing grossly disproportionate court must consider – factors:
→ Gravity of offence.
→ Personal characteristics of the offender.
→ Particular circumstance of the case.
Court should not consider general deterrence when assessing whether the sentence is grossly
disproportionate to the accused.
Ratio: Mandatory minimum sentences, except for murder and high treason, should not be
used.
S.12 of the Charter will only be infringed where the sentence is so unfit having regard to the
offence and the offender as to be grossly disproportionate.
Assessing grossly disproportionate court must consider – factors:
→ Gravity of offence.
→ Personal characteristics of the offender.
→ Particular circumstance of the case.
Court should not consider general deterrence when assessing whether the sentence is grossly
disproportionate to the accused.
Professor- Mandatory minimum sentence for drug trafficking ruled unconstitutional (violated
S. 12). Court noted such mandatory minimum sentences appropriate for most serious crimes,
including murder and high treason.
R v. Latimer (done under necessity too)- no violation of section 12.
Pg- 1029-1031
The mandatory minimum sentence for second degree murder in this case does not amount to
cruel and unusual punishment within the meaning of s. 12 of the Canadian Charter of Rights
and Freedoms . In applying s. 12 , the gravity of the offence, as well as the particular
circumstances of the offender and the offence, must be considered. Here, the minimum
mandatory sentence is not grossly disproportionate. Murder is the most serious crime known
to law. Even if the gravity of second degree murder is reduced in comparison to first degree
murder, it is an offence accompanied by an extremely high degree of criminal culpability. In
this case the gravest possible consequences resulted from an act of the most serious and morally
blameworthy intentionality. In considering the characteristics of the offender and the
particular circumstances of the offence, any aggravating circumstances must be weighed
against any mitigating circumstances. On the one hand, due consideration must be given
to the accused’s initial attempts to conceal his actions, his lack of remorse, his position of trust,
the significant degree of planning and premeditation, and T’s extreme vulnerability. On the
other hand, the accused’s good character and standing in the community, his tortured anxiety
about T’s well-being, and his laudable perseverance as a caring and involved parent must be
taken into account. Considered together the personal characteristics and particular
circumstances of this case do not displace the serious gravity of this offence. Finally, this
sentence is consistent with a number of valid penological goals and sentencing
principles. Although in this case the sentencing principles of rehabilitation, specific deterrence
and protection are not triggered for consideration, the mandatory minimum sentence plays an
important role in denouncing murder. Since there is no violation of the accused’s s. 12 right,
there is no basis for granting a constitutional exemption.
Ratio: Minimum mandatory imprisonment for a murder (1st degree or a 2nd degree) is not a
violation of sect. 12 of the Charter.
R v Ferguson- judge’s discretion is important and minimum
sentence doesn’t automatically violate section 12.
Headnote
Facts: During an altercation with a detainee held in a cell at an RCMP detachment, the accused,
an RCMP officer, shot and killed the detainee. The accused was charged with second-degree
murder but was convicted by a jury of the lesser offence of manslaughter. Notwithstanding
the mandatory minimum sentence of four years imposed by s. 236 (a) of the Criminal Code for
manslaughter with a firearm, the trial judge imposed a conditional sentence of two years less a
day. He granted the accused a constitutional exemption from the four-year sentence because,
on the circumstances of this case, he found that the minimum mandatory sentence constituted
cruel and unusual punishment in violation of s. 12 of the Canadian Charter of Rights and
Freedoms . The majority of the Court of Appeal overturned that sentence and held that the
mandatory minimum must be imposed.
Issue: Whether the facts of the case are such that a four-year minimum mandatory sentence
would be grossly disproportionate.
Decision: Appeal dismissed. There is no basis for concluding that the four‑ year minimum
sentence prescribed by Parliament amounts to cruel and unusual punishment on the facts of
this case. In the absence of any s. 12 violation, the trial judge’s proper course in the
circumstances was to apply the four‑ year minimum sentence.
The first issue tackled by the SCC was whether the four-year mandatory minimum sentence
was cruel and unusual in Constable Ferguson’s specific case.
In any event, a constitutional exemption is not an appropriate remedy for a s. 12 violation. If
the law imposing a minimum sentence is found to be unconstitutional on the facts of a particular
case, it should be declared inconsistent with the Charter and hence of no force or effect
under s. 52 of the Constitution Act, 1982 .
Ratio: Minimum sentence is not an automatic violation of section 12 of the charter.
Judge’s discretion is important.
R v. Nur- mandatory minimum sentence for loaded firearm
reasonable.
Ratio: Minimum mandatory sentence doesn’t violate section 12 of the charter.
When a mandatory minimum sentencing provision is challenged under s. 12 , two questions
arise. The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly
disproportionate sentence) on the particular individual before the court. If the answer is no,
the second question is whether the provision’s reasonably foreseeable applications would
impose cruel and unusual punishment on other offenders.
Professor- Mandatory minimum sentence for unlicensed possession of a loaded firearm
found to be reasonable. Court commented on hypothetical scenarios where such mandatory
sentences for a firearms infraction could violate S. 12 of Charter.
23rd November- Thursday
WRONGFUL CONVICTIONS
Causes of wrongful convictions1. Unreliability of eyewitnesses’ evidence.
2. Too much reliance on scientific evidence. Sometimes it is fallible.
3. Traditional attitudes of the criminal justice system towards visible minorities (Imp. for the
syllabus)
4. Poor defence counsel. Page 230- In the Marshall case, Marshall’s counsel disregarded his
instructions. Even though he said that he did not commit the offence, the counsel didn’t believe
him.
5. Crown prosecutor. Page 234. Professor Edmond said that your standard should be higher
when your client is an aboriginal.
6. Responsibility of judges- page 236. The judges are supposed to excuse themselves in any
case if they believe they’ll be unable to judge impartially.
R v. Marshall- 2 cases 1972 and 1983
The wrongful conviction of Donald Marshall, Jr. was no mistake. Instead, it was a perfect
storm, a series of deliberate and wrongful acts, errors in law, misjudgements and
inadequacies, mired in incompetence and racial discrimination.
The Incident
On the night of May 28, 1971, Sandy Seale, a 17‐year‐old teen, was fatally stabbed in
Wentworth Park in Sydney, Nova Scotia. Donald Marshall, Jr., also 17, was in the park that
night and witnessed the stabbing. The murder of Seale was committed by Roy Ebsary, a
drunken 59‐year‐old man who was in Wentworth Park with James (Jimmy) MacNeil. Ebsary
had a reputation for being violent and unpredictable, and had been previously convicted for a
weapons charge involving a knife. However, on June 4, 1971, after a brief investigation by
the Sydney Police Department, Marshall was charged with murdering Seale.
The Investigation
Four Sydney police officers responded to the scene of the stabbing. They did not cordon off
the crime scene, search the area or question any witnesses. After Seale was taken to hospital,
none of the officers remained at the scene to preserve it. Once the Sergeant of Detectives
began his investigation, he developed a theory that Marshall stabbed Seale; he sought
evidence to support this theory, discounting Marshall’s description. Unsatisfied with the
version of events offered by two teenage witnesses—one of whom was on probation, while
the other had mental health issues—police reinterviewed the 14‐ and 16‐year‐old boys, using
oppressive questioning tactics and coerced untrue statements that formed the basis for
charging Marshall.
The Trial
Leading up to Marshall’s trial—heard over just three days in November 1971—the Crown
prosecutor did not interview the teen witnesses who gave contradictory statements, nor did he
inform Marshall’s defence counsel of the inconsistencies. Marshall’s defence counsel failed
to request disclosure from the Crown, interview the Crown witnesses or conduct an
independent investigation. Further, the judge hearing the trial made several errors in law,
including misinterpreting key evidence and legislation. Marshall was convicted and
sentenced to life in prison.
Evidence of a Wrongful Conviction
Ten days after Marshall’s conviction, MacNeil told the Sydney Police that he saw Ebsary
stab Seale. The RCMP then began an investigation but it was limited to administering a
polygraph test on MacNeil and talking to the Sergeant who conducted the original
investigation. The RCMP did not acquire the Sydney Police file and did no further interviews
before concluding that Marshall stabbed Seale.
Neither the Sydney Police nor the RCMP informed Marshall’s defence counsel or the Crown
prosecutor handling Marshall’s appeal that MacNeil had come forward with new information.
As a result, MacNeil’s statement was not considered in Marshall’s appeal. Also, his defence
counsel failed to raise the trial judge’s fundamental errors of law as issues at the appeal,
instead focusing on the jury instruction. Marshall’s appeal was dismissed at the Nova Scotia
Court of Appeal.
In 1974, Ebsary’s daughter told the Sydney Police that she saw her father washing what
appeared to be blood from his knife on the night Seale was murdered. The police told her the
case was closed and they did not share this new information. In 1981, Marshall learned in jail
that Ebsary had admitted to killing Seale, so his new lawyer asked police to reopen the case.
The RCMP reinvestigation in 1982 also had its defects. By this time, Marshall had been in
jail for 11 years. The officers pressured Marshall during an interview to “tell them a story
they could believe or they would leave and never return.” As a result, he told them Seale was
stabbed in the course of an attempted robbery—an involuntary and false admission that
would later be used against him.
The Reference
As a result of the RCMP reinvestigation, Marshall’s case was referred to the Nova Scotia
Court of Appeal for reconsideration. Rather than considering why Marshall was wrongfully
convicted, the court focused solely on whether or not he was guilty. The panel ruled that
Marshall was not guilty, but blamed him for his conviction on the basis of his untruths, rather
than the numerous failings of the criminal justice system and the parties involved. Both the
reference panel and the Crown went to great lengths to assert that Marshall’s misfortune was
not a miscarriage of justice, and that the system was not at fault for Marshall’s conviction.
This view negatively impacted Marshall’s compensation negotiations with the Attorney
General, and ultimately reduced the compensation he received.
The Outcome
In 1985, after three trials, Ebsary was convicted of manslaughter for the murder of Seale. He
was initially sentenced to three years’ imprisonment, which was reduced to one year by the
Court of Appeal in 1986. Also in 1986, the Government of Nova Scotia appointed a Royal
Commission to investigate Marshall’s wrongful conviction and make recommendations to the
Governor in Council. After extensive hearings, interviews, research and consultation, the
Royal Commission made a number of recommendations under the following headings:
1. Righting the Wrong: Dealing with the Wrongfully Convicted 2. Visible Minorities and the
Criminal Justice System 3. Nova Scotia Micmac and the Criminal Justice System 4. Blacks
and the Criminal Justice System 5. Administration of Criminal Justice 6. Police and Policing1
RATIO: Marshall’s circumstances as an aboriginal person were not recognised. The two cases
deal with what not to do in a trial. Every agency i.e., crown counsel, defence counsel, police,
etc. didn’t act impartially and diligently in the case. Even Marshall perjured himself.
Professor- R v Marshall (Two excerpts of decisions in text - trial and appeal) - led to reforms
of procedures relating to wrongful convictions, see Public Inquiry into the Administration of
Justice and Aboriginal People and ME Turpel, “On the Question of Adapting the Canadian
Criminal Justice System for Aboriginal Peoples: Don’t Fence Me In”
OTHER TOPIC except from the case- Don’t fence me in- Turpel’s 7 elements on question of
adaptation1.
2.
3.
4.
5.
6.
7.
crime as against the state
adversarial system
formal written offences/ defence
professional class
juries- should be adaptive
impartialty
punishment
2, Aboriginal(not sure) system
page 258 (former offences and defences something)
4. professional class
APPEALS- only headnotes of cases
Palmer v. The Queen- fresh evidence
The criteria for the admission of fresh evidence
1. In an appeal, the evidence should generally not be admitted if, by due diligence, it could
have been adduced at trial provided that this general principle will not be applied as
strictly in a criminal case as in civil cases.
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially
decisive issue in the trial.
3. The evidence must be credible in the sense that it is reasonably capable of belief, and
4. It must be such that if believed it could reasonably, when taken with the other evidence
adduced at trial, be expected to have affected the result.
Housen v. Nikolaisen- Standards of review. Deference to trial
court and principles.
‘The trial judge has sat through the entire case and his ultimate judgment reflects this total
familiarity with the evidence. The insight gained by the trial judge who has lived with the case
for several days, weeks or even months may be far deeper than that of the Court of Appeal
whose view of the case is much more limited and narrow, often being shaped and distorted by
the various orders or rulings being challenged.’
Since an appeal is not a re-trial of a case, consideration must be given to the standard of review
applicable to questions that arise on appeal. The standard of review on pure questions of law
is one of correctness, and an appellate court is thus free to replace the opinion of the trial
judge with its own.
The standard of review for findings of fact is such that they cannot be reversed unless the trial
judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen.
The reasons for deferring to a trial judge’s findings of fact can be grouped into three basic
principles:
First, given the scarcity of judicial resources, setting limits on the scope of judicial review in
turn limits the number, length and cost of appeals.
Secondly, the principle of deference promotes the autonomy and integrity of the trial
proceedings.
Finally, this principle recognizes the expertise of trial judges and their advantageous position
to make factual findings, owing to their extensive exposure to the evidence and the benefit of
hearing the testimony viva voce.
Questions of mixed fact and law involve the application of a legal standard to a set of facts.
Where the question of mixed fact and law at issue is a finding of negligence, it should be
deferred to by appellate courts, in the absence of a legal or palpable and overriding error.
Requiring a standard of “palpable and overriding error” for findings of negligence made by
either a trial judge or a jury reinforces the proper relationship between the appellate and trial
court levels and accords with the established standard of review applicable to a finding of
negligence by a jury. Where the issue on appeal involves the trial judge’s interpretation of the
evidence as a whole, it should not be overturned absent palpable and overriding error. A
determination of whether or not the standard of care was met by the defendant involves the
application of a legal standard to a set of facts, a question of mixed fact and law, and is thus
subject to a standard of palpable and overriding error, unless it is clear that the trial judge
made some extricable error in principle with respect to the characterization of the standard or
its application, in which case the error may amount to an error of law, subject to a standard
of correctness.
PROFESSOR
Ratio- principles applicable to findings of fact of the trial judge and the decisions made on that
basis1. There has to be a palpable and overriding error to interfere with a trial judge’s findingsPalpable- means that error which can be plainly seen
Overriding- means that error that changes the decision.
2. Deference
3. Expertise of the judges
R v. Walker- importance of reasons for appeal.
After a night of drinking, the accused shot and killed his common law spouse and was charged
with second degree murder. At his trial before a judge alone, the trial judge acquitted the
accused of murder but convicted him of manslaughter. In reaching his decision, the trial judge
noted evidence of intoxication and accident, and indicated that he was not satisfied beyond a
reasonable doubt that the accused either meant to cause his spouse’s death or meant to cause
her bodily harm which he knew was likely to cause death. The majority of the Court of Appeal
set aside the acquittal and ordered a new trial on the charge of second degree murder. In the
majority’s view, the trial judge’s reasons did not make it clear whether the acquittal was based
on the evidence of the accused’s intoxication, or on the evidence of his having accidentally
shot his spouse or on some combination of the two. This inadequacy was such as to preclude
meaningful appellate review of the correctness of the trial decision. The dissenting judge held
that the reasons were sufficient to permit an assessment of the acquittal based on the
intoxication defence.
Held: The appeal should be allowed and the acquittal on the murder charge
restored. The conviction on the charge of manslaughter was not appealed and is maintained.
Sheppard recognized a duty to give adequate reasons on a number of broad policy
grounds, and it is apparent that these grounds apply as much to acquittals as to convictions. The
Crown and the police, no less than the accused and the public generally, have a legitimate
interest in knowing the reasons for the unsuccessful outcome. However, an appellate court is
not given the power to intervene simply because it thinks the trial court did a poor job of
expressing itself. Reasons are sufficient if they are responsive to the case’s live issues and the
parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they
respond to the substance of what was in issue. Whether the perceived deficiencies in the trial
judge’s reasons undermined the exercise of the Crown’s right of appeal must be assessed in
light of the limited nature of this right.
The adequacy of reasons must also be assessed in light of the fact an accused
benefits from the presumption of innocence. A conviction requires the prosecution to establish
each of the factual elements of the offence beyond a reasonable doubt. An acquittal, on the
other hand, can rest simply on the absence of proof. This difference does not excuse a trial
judge from failure to provide intelligible reasons for an acquittal, but it necessarily informs an
assessment of whether the reasons are so deficient as to preclude effective appellate review.
Here, the trial judge adequately explained his reasons for the acquittal on the
second degree murder charge. He did not find that the consumption of alcohol prevented the
accused from forming the requisite intent for murder. Rather, on a fair reading of his reasons
as a whole, his reasonable doubt as to intent was raised by what he considered to be the real
possibility that the shooting was the result of an accident in which the accused’s alcohol
consumption played a significant role. While the trial judge’s reasons, delivered orally, fell
well short of the ideal, they were not so inadequate that the Crown’s limited right of appeal
was impaired.
PROFESSOR
Ratio: The most potent element for any murder case is the presence of mens rea. Once
reasonable doubt as to mens rea is present, it is not unreasonable to advance multiple reasons
for it not being present.
R v. R.E.M- reasons importance
The complainant testified to 11 incidents of sexual assault by the accused over a
period of years when she was between the ages of 9 and 17. The accused testified. He admitted
to having sexual intercourse with the complainant, but claimed that the relationship only
became sexual after she was 15 and that the intercourse was consensual. The age for minor
consent at the time was 14.
The trial judge found the complainant to be a credible witness and accepted most
of her evidence, while rejecting some portions that had been contradicted by other
evidence. He discussed the reasons for these conclusions in some detail, noting that the
complainant was a child at the time of most of the incidents, and that they had occurred a long
time before. Some errors in her evidence were understandable, he concluded. The trial judge
largely disbelieved the accused’s evidence, although he found that on some points, it was not
challenged. Again he gave reasons, although less extensive than he had in the case of the
complainant’s evidence. In the end, the trial judge convicted the accused on three counts.
The Court of Appeal set aside the convictions on two of the three counts. It found
the trial judge’s reasons to be deficient on the grounds that the trial judge: (i) did not clearly
explain which of the offences were proved by which of the 11 incidents; (ii) failed to mention
some of the accused’s evidence; (iii) failed to make general comments about the accused’s
evidence; (iv) failed to reconcile his generally positive findings on the complainant’s evidence
with the rejection of some of her evidence; and (v) failed to explain why he rejected the
accused’s plausible denial of the charges.
Held: The appeal should be allowed and the verdicts of guilty restored.
A trial judge’s reasons serve three main functions: to explain the decision to the
parties, to provide public accountability and to permit effective appellate review. Proceeding
with deference, the appellate court is to ensure that, read in the context of the record as a
whole, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central
issues before the court.
The three offences of which the accused was convicted found support in the
evidence as to a number of the incidents. This gives rise to a reasonable inference that the trial
judge accepted some or all of this evidence and grounded the convictions on that
evidence. While reasons drawing a precise link between each count on which the accused was
found guilty and the particular evidence that the trial judge accepted in support of that count
might have been desirable, this omission did not render the reasons deficient. [63]
Nor did the trial judge’s failure to mention some of the accused’s evidence render
the reasons for judgment deficient. A trial judge is not obliged to discuss all of the evidence
on any given point, provided the reasons show that he or she grappled with the substance of
the live issues on the trial. It is clear from the reasons that the trial judge considered the
accused’s evidence carefully, and indeed accepted it on some points. In these circumstances,
failure to mention some aspects of his evidence does not constitute error. This also applies to
the fact that the trial judge failed to make general comments about the accused’s evidence. As
helpful as it might be in a given case, a trial judge is not required to summarize specific findings
on credibility by issuing a general statement as to “overall” credibility. It is enough that the
trial judge has demonstrated a recognition, where applicable, that the witness’s credibility was
a live issue. [64]
The trial judge’s alleged failure to reconcile his generally positive findings on the
complainant’s evidence with the rejection of some of her evidence did not render the reasons
deficient. It is open to the trier of fact to accept some of the evidence of a witness, while
rejecting other evidence of the same witness. The trial judge explained that the fact that many
of the incidents testified to happened many years before and the fact that the complainant was
a child at the time might well explain certain inconsistencies. In fact, he did explain why he
rejected some of her evidence. [65]
Finally, the trial judge’s failure to explain why he rejected the accused’s plausible
denial of the charges provides no ground for finding the reasons deficient. The trial judge’s
reasons made it clear that in general, where the complainant’s evidence and the accused’s
evidence conflicted, he accepted the evidence of the complainant. This explains why he
rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence,
finding her generally truthful and “a very credible witness”, and concluding that her testimony
on specific events was “not seriously challenged”. It followed of necessity that he rejected the
accused’s evidence where it conflicted with evidence of the complainant that he accepted. No
further explanation for rejecting the accused’s evidence was required. In this context, the
convictions themselves raise a reasonable inference that the accused’s denial of the charges
failed to raise a reasonable doubt. [66]
It may have been desirable for the trial judge to explain certain matters more
fully. However, the question is whether the reasons, considered in the context of the record
and the live issues at trial, failed to disclose a logical connection between the evidence and the
verdict sufficient to permit meaningful appeal. The central issue at trial was credibility. It is
clear that the trial judge accepted all or sufficient of the complainant’s ample evidence as to
the incidents, and was not left with a reasonable doubt on the whole of the evidence or from
the contradictory evidence of the accused. From this he concluded that the accused’s guilt had
been established beyond a reasonable doubt. When the record is considered as a whole, the
basis for the verdict is evident. [67]
Instead of looking for this basis, the Court of Appeal focussed on omitted details
and proceeded from a sceptical perspective. Having concluded that the accused’s denial was
plausible, it proceeded to examine the case from that perspective, asking whether the reasons
disclosed that the trial judge had properly applied the reasonable doubt standard. In doing
so, it ignored the trial judge’s unique position to see and hear witnesses, and instead
substituted its own assessment of credibility for the trial judge’s view by impugning the reasons
for judgment for not explaining why a reasonable doubt was not raised.
Ratio:
PROFESSOR- what the trial judge needs to put into reasons.
Reasons have to serve 2 purposes- ‘what’ is the decision and ‘why’
A trial judge’s reasons serve three main functions: to explain the decision to the
parties, to provide public accountability and to permit effective appellate review. Proceeding
with deference, the appellate court is to ensure that, read in the context of the record as a
whole, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central
issues before the court.
FOR THE EXAM
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Fact pattern (70)- (IMP) You are arguing from the crown for fact pattern. You have to
rebut the defence.
Short questions- (30)
o One similar to actus reus mens rea/ regulatory offences exercises we did
o Purpose of test or outlining legal factors.
o One question on regulatory offence. You’ll be given an offence and the
definition, what it entails and punishment.
Pattern for short question- set up parts.
Not a mini essay for mens rea and actus reus.
Intro and mini essay thing for other questions.
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Important thingso Focus more on specific intent offences than general offences mentioned on
study sheet.
o Attempts 2 imp.- attempt to cause bodily harm or murder.
One short question is on sentencing. (for sure)
No appeals questions for fact pattern.
If you have to mention contemporaneity, mention it before mens rea.
Focus on aboriginal law. The guest speaker.
Legal causation.
Actus reus will be more clear than the mens rea.
FACT Pattern (IMPORTANT)
1st question- Prima Facie case
2nd question- Defence. Rebut the defence. Why’s it not a defence. Elements. Eg. Self defence,
provocation, duress.
3rd question- sentencing (case law and characteristics of the offender). Recommend a sentence.
Aggravating and mitigating circumstances.
For sentencing, you’ll be given a provision regarding punishment. You need to focus on the
principles.