The Final Exam will be on Friday, December 8th, 2017 at 9am.
Please consult the exam schedule to confirm the time and room number.
Also, please ensure that you have obtained your exam code prior to the exam.
The Final Exam will consist of two parts.
Part 1 will a fact pattern question.
The question(s) will ask you to read the fact pattern and
apply law that we have covered so far to the facts.
Only subject matter covered after the mid-term is examinable on Part 1.
Part 2 will consist of a choice of 2 out of 4 short answer questions,
which may cover material from the entire course.
The topics below are pulled from the syllabus.
I would suggest that you use this sheet as a study guide with
your lecture notes and cases/text sections listed in the syllabus.
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General Reminder – For the Crown to establish a “Prima Facie case” means that
the Crown must establish each of the elements necessary to prove the offence.
The presentation of a prima facie case doesn’t include analysis of the credibility of
evidence or any possible defenses to that evidence. It just means that, if the Crown’s
evidence is sufficient, it would establish the necessary elements of the offense.
Actus Reus
Actus reus
Part I: Voluntariness and contemporaneity
RBCS: 333-39 and 395-405
• R. v. King, [1962] SCR 746 – Actus reus in context of medication side effects;
fact dependent – in this case difference was that reasonable doubt existed as to
whether he knew effects of medication when getting into car and driving. His
choice was a not the result of a mind that was “at liberty to make a definite
choice.”
• R. v. Ruzic, [2001] 1 SCR 687 – voluntariness predates Charter, can overlap
with actus reus/mens rea analysis.
• Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439 – 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
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imposed). Fact dependent, in this case facts proved that act was continuing.
R. v. Miller, [1982] 2 All ER 386 – “an unintentional act followed by an intentional
omission to rectify that act or its consequences can be regarded in toto as an
intentional act.” – fact dependent analysis requires applying “reality and
common sense.”
R. v. Cooper, [1993] 1 SCR 146 - “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.
R. v. Williams [2003] SCC 41 - 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 II: Act and omissions
RBCS: 339–354
• R. v. Thornton, (1991), 3 CR (4th) 381 – Talks about common law duty to refrain
from conduct which one foresees could cause serious harm to another person.
Objective test for mens rea, here the accused should not have knowingly
donated HIV+ blood.
Part III: Consequences and causation
RBCS: 359-394
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R. v. Winning (1973), 12 CCC (2d) 449 – 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. The Queen, [1978] 1 SCR 506 – Sufficient evidence that accused
act’s caused victim’s death. 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.
R. v. Harbottle, [1993] 3 SCR 306 - 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
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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, [2001] 3 SCR 488 - 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, 2012 SCC 24 - 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.
Part IV: Consent
Criminal Code, section 265(3)
• R. v. J.A., 2011 SCC 28 [headnote] – Issue on appeal was whether consent for
the purpose of sexual assault requires an active mind during the sexual activity
in question. Majority held, yes, Parliament intended for a person to have an
“active mind” during the sexual activity in question. Consent in advance is not a
defense, 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, 2012 SCC 47 [headnote] - 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.
Mens Rea
General Intent vs. Specific Intent cheat sheet
The difference between general intent and specific intent:
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General intent – the defendant intended the conduct
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Specific intent – the defendant intended the conduct and the result
Specific intent crime - the mens rea will typically be written into the statute. Intentional
and knowledge based crimes are considered specific intent crimes. Here is a (not
exhaustive) list of specific intent crimes:
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Murder
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Attempt
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Conspiracy
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Solicitation (under modern statutes)
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Larceny
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False Imprisonment
General intent crimes typically include crimes that are based on the defendant being
reckless or negligence. Here is a (non-exhaustive) list of general intent crimes:
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Manslaughter
2
Negligent Homicide
3
Solicitation (however, it is treated like a specific intent crime and modern
statutes define it as a specific intent crime)
4
Arson
5
Rape
Intention, knowledge, willful blindness, and recklessness
RBCS: 445–472
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R. v. ADH, 2013 SCC 28 - 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). Presumption that parliament intends crimes
to have a subjective fault element absent language to the contrary.
R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 – 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. Steane, [1947] 1 KB 997 – 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
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Nazi Germany were not done with intention of aiding the enemy.
R. v. Hibbert, [1995] 2 SCR 973 - 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. (Defence as defence discussed below).
R v. Théroux, [1993] 2 SCR 5 - 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, 2010 SCC 13 - 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, [1985] 1 SCR 570 – 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.
Part II: Objective knowledge, criminal and penal negligence
RBCS: 472-492
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R. v. Hundal, [1993] 1 SCR 867 - 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.
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R. v. Creighton, [1993] 3 SCR 3 – 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, 2008 SCC 5 – 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, 2010 SCC 26 - 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.
Constitutional considerations
Section 7 of Charter - Section 7 has had a major impact on establishing fault levels for
various offences, both criminal and quasi-criminal.
For most “true” criminal offences, a "meaningful” fault requirement needed.
Section 7 requirements can be met with an objective fault component.
There’s an exception for most serious offences of murder, attempted murder, and
crimes against humanity – for these, you need at least a “subjective foresight of death”
to establish the fault requirement.
RBCS: 492-499; headnotes of
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R. v. Finta, [1994] 1 S.C.R. 701 – Considers war crimes, 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
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subjective test. In this case accused was either aware of or willfully 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, [1990] 2 SCR 633 [headnote] – 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, [1992] 2 SCR 944 [headnote] - 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).
Strict and absolute liability
Strict Liability: In Canada, regulatory offences prima facie assumed to be strict liability,
unless other stated. Specific statutes can indicate application (or not) of strict liability to
an offence. Purposes:
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Enforce social behaviour without the stigma of a “true” criminal conviction
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Accused can raise the defence of due diligence.
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Prevention of harm, situation where society wants to maximize deterrent value
of offense (again without stigma of a "true” criminal conviction)
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Can include prison sentences
Absolute Liability: In Canada, defined by SCC in R. v. City of Sault Ste-Marie, as an
offence "where it is not open to the accused to exculpate himself by showing that he
was free of fault."
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Fairly rare not seen often
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Distinction from strict liability offence - accused can raise the defence of due
diligence
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mens rea offences (i.e. “true” criminal offences) Crown prosecutor has to prove
that accused had required state of mind.
In determining whether an offence attracts absolute liability, Canadian courts look at:
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The overall regulatory pattern;
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The subject matter of the legislation;
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The importance of the penalty; and
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The precision of the language used in the statute.
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Absolute liability offences cannot include any possibility of imprisonment
RBCS: 407-443
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Beaver v. The Queen, [1957] SCR 531 - 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., [1971] SCR 5 – 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, [1978] 2 SCR 1299 – 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, [1985] 2 SCR 486 - 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
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Charter. Long discussion of fundamental justice principles and Charter.
R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154 - 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.
Criminal Liability
Parties, Counseling, and Accessory After the Fact
RBCS: 525-530, 536-560, 566-570
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R. v. Thatcher, [1987] 1 SCR 652 - 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.
R. v. Greyeyes, [1997] 2 S.C.R. 825 – Issue was whether accused was an
aider/abettor of trafficking offence or purchaser of drugs. 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. In
this case, conviction for trafficking upheld.
R. v. Briscoe, [2010] 1 SCR 411 – 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 v. Sylvester v. The Queen, [1979] 2 SCR 881 – Can presence at
commission of offence alone be sufficient to find aiding and abetting. Could
held that it 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 this case, there
was no evidence that while the crime was being committed either of the
accused rendered aid, assistance, or encouragement to the rape of the
complainant; no evidence of any positive act or omission to facilitate the
unlawful purpose. Accused were acquitted.
R. v. Duong (1988), 124 CCC (3d) 392 (OCA) – For party to murder offence,
issue was whether it required proof that accused knew or was willfully 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 of the crime charged - willful
blindness as to the existence of the fact is sufficient to establish a culpable state
of mind
Attempts, Conspiracies, Homicide
Attempts and Conspiracies
RBCS: 571-588 and 595-600
Sections 24 and 465 of the Criminal Code
• R. v. Cline (1956), 115 CCC 18- Issue was whether someone can be charged
with an offence (in this case indecent assault) even if that offence wasn’t
completed? Court found that in this case accused could not be found guilty of
indecent assault because he did not actually assault the young boy. However,
there was sufficient evidence to find accused guilty of Attempt to Commit
Indecent assault offence. Several factors laid out with proving an attempt
offence where the offence in question is in doubt – both mens reus and actus
reus required, actus reus must be more than mere preparation.
• Deutsch v. The Queen, [1986] 2 SCR 2 – 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.
• R. v. Ancio, [1984] 1 SCR 225 - 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 as defined by Criminal Code? In summary, for
attempted murder, nothing short of intent to kill will suffice for the mens rea of
that offence. 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.
• R. v. Logan, [1990] 2 SCR 731 – 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
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parts including the wording “ought to have known”) is not justified.
United States of America v. Dynar, [1997] 2 SCR 462 – 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).
Homicide
RBCS 693-698, 700-703, 726-737
Sections 222, 224, 226, 229, 231, 234, 235 of the Criminal Code
• R v Creighton, [1993] 3 SCR 3 – see above also. 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. In the end, she sets out a 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.
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
• R v. Cooper, [1993] 1 SCR 146 – 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.
• R v. More, [1963] SCR 522 - 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 (1989), 48 CCC (3d) 343 - The distinction between first and second
degree murder in criminal code is not based upon intent; it is based upon:
(1) the presence of planning and deliberation;
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(2) the identity of the victim, or
(3) the nature of the offence being committed at the time of the murder
R v. Russell, 2001 SCC 53 – Meaning of “while committing” in context of first
degree murder charge while committing another specified offence in criminal
code. Issue was whether “while committing” in offence wording 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? Court held yes, wording of offence does
not create a “same victim” requirement.
Defences
Provocation:
RBCS: 749-768
Criminal Code section 232
R. v. Hill, [1986] 1 SCR 313 - Defines the ordinary or reasonable person - under the
objective test the reasonable person has a normal temperament and level of selfcontrol 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, [1996] 1 SCR 37 – 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, 2010 SCC 58 [headnote] - 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, 2012 SCC 31 [headnote] – 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-inlaw
Self Defence:
RBCS: 883-916
Criminal Code section 34
• R. v. Cinous, 2002 SCC 29 - 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-in-chief 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, [1990] 1 SCR 852 – 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, [1994] 1 SCR 3 - 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.
Mental Disorder
RBCS: 791-800, 804-813, 831-845:
Criminal Code sections 2 and 16
• R. v. Whittle [1994] 2 SCR 914 - The issue of fitness can be raised by the
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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, [1991] 1 SCR 933 – Issue was whether the Crown can raise
evidence of insanity against defendant’s wishes? Yes, based on objective
common law rule: To avoid the conviction of an accused who may not be
responsible on account of insanity, but who refuses to adduce cogent evidence
that he was insane, and; The protection of the public from presently dangerous
persons requiring hospitalization.
R. v. Chaulk, [1990] 3 SCR 1303 – 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, [1994] 2 SCR 507 – 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, [1980] 1 SCR 1149 - Outlines the elements of the mental
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disorder exemption. 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; the legal consequence is not an
acquittal, but a special verdict of "no criminal responsibility." Expert testimony
that someone has or does not have a "disease of the mind" is extremely helpful
and almost necessary, but it is not determinative; it is a question that is to be
answered by the finder of fact. "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.
R. v. Bouchard-Lebrun, 2011 SCC 58 – 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 selfinduced intoxication falls under criminal code which prevents self-induced
intoxication from being used as a defence against bodily integrity of another
person.
Automatism:
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R v Rabey, SCC 1980 [headnote] – 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
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automatism.
R. v. Parks, [1992] 2 SCR 871 – Sleepwalking case. 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, [1999] 2 SCR 290 - claim of the defence of automatism has two
steps:
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.
The judge must decide if there is a disease of the mind. If there is, then a
special verdict is entered of not criminally responsible by reason of mental
disorder. 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.
Intoxication
RBCS: 849-876, 932-938, 953-958, 966-981
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Criminal Code section 33.1
DDP v Beard, [1920] AC 479 - 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. Bernard, [1988] 2 SCR 833 –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. Defence of intoxication not available for
sexual assault.
R. v. Daviault, [1994] 3 SCR 63 - 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:
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R. v. Ruzic, 2001 SCC 24 - 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 close temporal connection
o proportionality
o participation in a conspiracy or criminal association
R. v. Hibbert, [1995] 2 SCR 973 - 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:
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Perka v. The Queen, [1984] 2 SCR 232 - Common law defence of necessity has
three elements:
o an emergency: clear and imminent peril - proven using a modified
objective test;
o no reasonable legal alternative, proven using a modified objective test;
and
o 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.
R. v. Latimer, 2001 SCC 1 – to charge a jury with respect to necessity defence
there has to be an “air of reality” for all three aspects of necessity defence.
Sentencing, Indigenous People and Criminal Justice System
Overview of sentencing & indigenous offenders
RBCS: 1009-1035
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R v. M. (C.A.), [1996] 1 S.C.R. 500 - 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.
R. v. Nur, 2015 SCC 15 – 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.
R. v. Pham, 2013 SCC 15 - 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.
R. v. Gladue, [1999] 1 S.C.R. 688 – 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
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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
R. v. Smith, [1987] 1 S.C.R. 1045 – 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.
Criminal Code sections 718, 718.01, 718.1, 718.2, 718.3, 719, 742
• General principles and process of sentencing
• Jail and conditional sentences of imprisonment; fines and probation
• Discharges, absolute and conditional
Wrongful convictions, court dynamics and racism
RBCS: 223-261
• 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”