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[SECTION 1] – GENERAL OVERVIEW AND PRELIMINARY MATTERS
 basic element of criminal and regulatory offences are the prohibited act and the required fault
element
 punishment depends on the exercise of sentencing discretion
 most crimes reported don’t result in charges
 most charges are resolved without a trial; they are plea-bargained with the accused pleading
guilty
 minority of cases go to trial; and of these an even smaller minority are appealed
 appeal courts interpret the criminal code and apply the Canadian Charter of Rights and Freedoms
 most prisoners generally have less education and employment history than other Canadians; most
are male
 aboriginal are 24% of those in provincial institutions for sentences less than 2 years, and 18% of
those serving more those in federal prisons for sentences over 2 years; but they are only 4% of
the population
 parliament creates and offence through legislature – Police enforces it – Prosecutor lays charges –
Defence counsel for the accused (plea bargains and guilty pleas) – Pre-trial detention and bail –
preliminary inquiry – jury selection – trial judge – sentencing (community sanctions) – corrections
(parole boards)
 all phases must be procedurally fair, otherwise accused can seek remedy for violation of Charter
rights
 criminal process starts with decision of legislature to make certain conduct illegal
 criminal law is enforced by police who respond to the decisions of crime victims to report crimes;
sometimes they proactively investigate crime themselves
 if the accused is charged, then the trial process begins
 trial process is governed by Charter rights (e.g.; right not to be denied reasonable bail without
just cause, right to be tried in reasonable time)
 police and courts have to comply with the accused’s Charter rights, otherwise the trial can be
diverted from the issue of guilt or innocence to one of the accused seeking and getting a
Charter remedy
 prosecutor/Crown will decide what charges are to be laid, if any
 if charges are laid, the accused will get a lawyer
 there can be a pre-trial detention, a preliminary inquiry, and then a trial
 since most cases the accused pleads guilty, a lot of times, the judge only has to engage in
sentencing
 if accused is convicted, judge sentences the accused
 accused can appeal
 offence and available defences have to ensure morally innocent are not punished
 crown has to prove beyond reasonable doubt (not just that it is probable or likely) that the
accused committed the prohibited act with the required fault element – and in order to get a
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conviction, all elements of the offence have to be proven beyond a reasonable doubt and any
defence that the accused may use that would excuse or justify the commission of the offense
has to be rebutted
 judge has wide discretion to punish according to offender’s degree of responsibility, in
accordance with what will best deter, rehabilitate, or incapacitate the accused; deter
otherwise from committing the same crime; and provide reparation victims and the
community for the crime
 the Charter causes courts to be concerned with factual guilt, as well as accused’s legal rights in the
investigation and trial process
 guarantees presumption of innocence; especially through section 7 – right to life, liberty, and
security of the person, and the right to not be deprived thereof, except in accordance with the
principles of fundamental justice
 concerned about ensuring that morally innocent are not convicted
 charter rights can also be limited by section 1 – reasonable and proportionate limits on the
charter rights
 charter has limited effect on legislatures being able to define what is illegal – but such an offence
must be justified under section 1 of the charter
 courts can declare a criminal law or regulatory offence invalid if it results in an unjustified
violation of a Charter right, and that can’t be justified under section 1
 charter rights of the accused have to be weighed against the rights of the victim, of speciality
groups (affected by the accused/crime), and of the community
1. The Sources of Criminal Law
 the constitution – includes division of power and the Canadian Charter of Rights and Freedoms
 statues – most criminal offences are created by the Criminal Code
 judicial decisions (judge made common law) – insofar as interpreting statutes and the Constitution
 common law can’t be used to create offences because it lacks clarity and certainty
 common law offences aren’t allowed, but common law defences can be created by the courts
 common law can also influence the way statutory offences are interpreted
 section 9 – no person shall be convicted or discharged of an offence at common law
 Frey v. Fedoruk – [1950] SCR 517 – SCC – Kerwin J. – peeping tom
 Facts: Frey was looking into a lighted window of Fedoruk’s house, Fedoruk caught and detained
him, and then arrested (without a warrant) by a policeman who was called in; Frey claimed for
damages for false imprisonment, trial judge dismissed,
 Issue: Court of Appeal confirmed dismissal on the basis that he was guilty of a criminal offence at
common law and the arrest was justified – appeal filed by Frey
 Held: appeal of dismissal for damages and false imprisonment allowed, Frey’s conduct did not
amount to any criminal offence known to the law;
 acts likely to cause a breach of the peace are not, in and of themselves, criminal
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 it is for parliament (not courts) to decide which conduct is to be treated as criminal
 section 8 (3) – common principles continue to apply to the extent that they are not inconsistent with
the code, or have not been altered by parliament
 R v. Jobidon – [1991] 2 SCR 714 – SCC – La Forest, L’Heureux-Dube, Gonthier, Cory, Iacobucci JJ. –
illustration of common law influence on reach of statutory provisions – fist fight death
 Facts: victim and accused got into a fist fight, was broken up, accused waited outside to continue
the fight; accused hit victim in head with fist so hard that he was knocked backwards, accused
kept hitting him and victim went limp and died; at trial found not guilty of manslaughter, and
since victim has consented to ‘fair fight’ it negated assault (section 265); Court of Appeal set
aside appeal and substituted guilty verdict for charge of manslaughter
 Issue: since section 265 sets out that one can’t commit assault if the other person consents to
the application of force, then can common law restrict or limit the legal effectiveness of consent
 Held: appeal to have appeal court’s conviction overturned should be dismissed
 common law generates body of law to illuminate meanings of the requirements of an offence,
and thus place certain limitations on the legal effectiveness thereof in the criminal law
 by limiting consent to application of a certain type of force and not beyond that, court was right
2. The Power to Create Criminal Offences and Rules of Criminal Procedure
[pg 7]
 criminal law is enacted by the federal parliament (vis-a-vis the Criminal Code); these are criminal
offences
 most offences are regulatory and can be enacted by federal parliament, provinces, or municipalities
 primary purpose of regulatory offences is to deter risky behaviour and prevent harm before it
happens – rather than punish intrinsically wrongful and harmful behaviour
 whether criminal or regulatory, law has to be in line with the constitution and the charter, otherwise
it may be invalid because it violates a charter right (unless it can be justified under section 1 as a
reasonable limit on the said right) or goes against the constitution
(a) Constitutional Division of Powers Introduced
 criminal laws have to be consistent with the supreme law of the constitution
 in 1982, the Canadian Charter of Rights and Freedoms was added to the constitution, and it restrains
the state’s ability to enact and apply criminal laws by recognizing various rights
 so even if a law was enacted for a valid and legitimate purpose, it still can’t violate charter right
 government can justify the law under section 1 as a reasonable limit, that it has been enacted for
an important purpose, that there is no other reasonable manner to fulfill that purpose except
through the violation of the accused rights, and that the good the law achieves outweighs the
harm to the charter right
 since incarceration effects life, liberty and security of the person, which is a protected right under
section 7 of the Charter, any law contrary thereto has to be justified under section 1 (reasonable
limit)
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 both federal and provincial governments can create non-criminal (i.e.; regulatory) offences, and use
jail time to enforce them
 only federal government can create criminal offences or true crimes
 provinces have jurisdiction over the administration of justice within the province
 but the procedure during criminal hearings is governed by the federal rules and the common law
 in deciding whether an offence is within federal or provincial jurisdiction, the courts are concerned
with the law’s primary purpose
 when the government relies on its criminal law power, it must emphasize the use of prohibitions
and punishments, as opposed to other forms of regulations like licensing and inspections
 a provincial offence or municipal by-law will be unconstitutional if its prime purpose is to punish
behaviour as criminal
 provincial offences are constitutional provided their dominant purpose is to regulate some matter
within areas of provincial jurisdiction
 provinces have jurisdiction over those sentenced to less than two years imprisonment; federal
government administers penitentiaries for those sentenced to longer periods
 most cases are resolved in provincial courts (magistrate’s courts)
 R v. Malmo-Levine – [2003] SCC 74 – SCC – McLachlin C.J., Gonthier, Iacobucci, Major, Bastarache,
Binnie JJ. – criminalization of marijuana possession unconstitutional
 Facts: police entered a club and seized over 300 grams of marijuana; M was charged with
possession for the purposes of trafficking; M wanted to call in evidence in support of a
constitutional challenge, but the trial judge refused; M was convicted; Court of Appeal upheld the
conviction
 Issues: the laws against marijuana possession are unconstitutional
 Held: appeal from conviction should be dismissed
 marijuana is a drug that causes alteration of the mental functions, and protection therefrom
through criminalization is a policy choice within the legislative scope of parliament
 if a criminal law is arbitrary or irrational it will infringe section 7, but since it’s in the state’s
interest to avoid harm to its citizens, the prohibition on marijuana is neither arbitrary nor
irrational
 parliament has to demonstrate the injurious or undesirable effect from which it seeks to
safeguard the public; the risk or harm caused to society by the prohibited conduct must outweigh
the harm that may result from the enforcement of the law in question
 for a law to be classified as a criminal law it must:
 valid criminal law purpose backed by prohibition and penalty
 a law designed to promote public peace, safety, order, health, etc
 some legitimate public purpose must underlie the prohibition – including protection of
vulnerable groups from self-inflicted harm
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 control of a psychoactive drug raises issues of public health and safety for both the user as well as
those affected by that user’s conduct, and so it is the proper subject matter for the exercise of
the criminal law
 parliament must not only find legislative authority to enact laws vis-a-vis the constitution, but
also must exercise that authority subject to the individual rights and freedoms guaranteed by the
charter
(b) The Canadian Charter of Rights and Freedoms
 the charter was added to the constitution in 1982
 it imposes limits on the jurisdiction of all governments and has greatly impacted the criminal justice
system (from investigation of crime to the punishment of offenders, in short: criminal law and
procedure)
 if police or prosecutor violate the accused’s legal rights, courts are prepared to exclude evidence
or terminate the case regardless of whether the accused is factually guilty of the crime charged
 section 1 acts as a saving section that allows the rights guaranteed to be infringed upon within
reasonable justification
 it’s not just the accused whose charter rights have to be considered; victim’s rights and the rights of
speciality and/or vulnerable groups such as women, children, and minorities, also have to be
weighed in
 parliament and provincial legislature have been more active than the courts in protecting the
interests of victims of crime
 but generally speaking the charter doesn’t provide any explicit rights for victims or other
vulnerable groups – these have to be protected under the guise of section 7 (right to life, liberty,
and security of the person), and section 15 (equality before and under the law and equal
protection and benefit of the law)
 the charter has had relatively little impact on sentencing and punishment – since most issues to do
with the charter infringement are raised before the verdict is pronounced
 the charter’s largest impact has been on constitutional procedural protections
 it can be used by courts to invalidate offences that have been created by the parliament
 it can be used by courts to strike down rules of criminal procedure
 courts can stay proceedings where the investigation and/or procedure of the trial is contrary to the
charter
 courts can strike down laws passed by parliament if they are contrary to the charter
 R v. Heywood – [1994] 3 SCR 761 – SCC – Lamer C.J., Sopinka, Cory, Iacobucci, Major JJ. – illustration
of criminal offence being struck down – pedophile with camera near parks
 Facts: Heywood had earlier convictions of sexual assault involving children; as such, he wasn’t
allowed to loiter near playgrounds, school yards, public parks as per section 179(1)(b) of the
code; on two occasions, when he was near a park with a telephoto lens camera, he was stopped
and questioned; the second time he was arrested he was convicted at trial because although the
restrictions put upon him infringed section 7 and 11(d) of the charter, they were justified under
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section 1; the Court of Appeal quashed the conviction saying that it unjustifiably breached
section 7 and 11(d)
 Issues: does section 179(1)(b) of the code infringe section 7 (right to life, liberty, and security of
the person) 11(d) (right to be presumed innocent), 12 (right not to be subjected to cruel and
unusual treatment or punishment), 9 (right not to be arbitrarily detained or imprisoned), and
11(h) (right not to be punished for the same offence if already found guilty and punished
therefor) of the charter, and if so, are those infringements justifiable under section 1
 Held: appeal by Crown for overturning quashed conviction should be dismissed
 section 179(1)(b) violated section 7 without justification under section 1
 although restrictions on past offenders are necessary for the purposes of protecting the public
and don’t’ infringe the principles of fundamental justice, the restrictions as set out in section
179(1)(b) do so far more than is necessary to accomplish the said purposes – it applies without
prior notice, to too many places, to too many people, and for an indefinite period of time with no
possibility of review
 it infringes the life, liberty, security of a person in a manner that is unnecessarily broad, and goes
beyond what is necessary to accomplish the governmental objective – the section is overly broad
 R v. Oakes – [1986] 1 SCR 103 – SCC – Dickson C.J., Chouinard, Lamer, Wilson, Le Dain JJ. – example
of rule of criminal procedure being struck down – unlawful possession of narcotics
 Facts: Oakes was charged with unlawful possession of narcotics for the purposes of trafficking;
trial judge convicted only of unlawful possession; he then brought a motion stating that section 8
of the Narcotic Control Act provides that if the court finds accused in possession of narcotic, the
accused is presumed to be in possession for the purposes of trafficking, and that he must be
convicted as such unless the accused can establish to the contrary; Court of Appeals found this
reverse onus unconstitutional against section 11(d) right to be presumed innocent; crown
appealed to SCC
 Issues: does section 8 of the Narcotic Control Act violate section 11(d) of the Charter
 Held: the appeal by the crown should be dismissed and the constitutional question as to whether
the section violates the charter answered in the affirmative
 on proof of possession, the presumption that it was for the purposes of trafficking is mandatory;
and unless the accused can rebut this mandatory presumption, he will be found guilty
 the right to be presumed innocent until proven guilty (i.e.; section 11(d)) requires that:
 the accused be proven guilty beyond a reasonable doubt
 the state bear the burden of such a proof
 the prosecution be carried out in accordance with lawful procedure and fairness
 requiring an accused to disprove a presumed element of an offence violated the presumption of
innocence (section 11(d))
 justification under section 1 not found either
 the charter can also be used as an important interpretive tool
 even if it isn’t used to strike down a provision, its constitutional values influence the way the statue is
interpreted
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 R v. Labaye – [2005] SCJ 83 – SCC – McLachlin C.J., Major, Binnie, Deschamps, Fish, Abella, Charron JJ.
– strong dissenting judgment – bawdy house/sex club/group sex
 Facts: Labaye operated a club for the purposes of permitting couples and single people to meet
each other for group sex; only members were allowed – there was a system of interview to
permit new members, a membership fee, doorman at the door to make sure only members
entered; group sex took place in a private (marked) and under lock apartment belonging to the
accused; Labaye was convicted at trial with the judge finding that his apartment fell within the
meaning of public place and that such behaviour was anti-social and caused a social harm
because it was degrading and dehumanizing; Court of Appeals upheld the conviction; Labaye
appealed
 Issues: were fundamental rights of individuals/society harmed by the activity at the club
 Held: the appeal should be allowed and the conviction set aside
 in order for the crown to prove that some conduct is indecent criminal conduct, it must prove
that:
 by the virtue of its nature, the conduct causes harm or presents a risk of harm to society by:
 confronting members of the public with conduct that interferes with their autonomy and
liberty;
 predisposing others to anti social behaviour; or
 physically or psychologically harms people involved in the conduct
 the harm or risk of harm is incompatible with the proper functioning of society
 the autonomy of individuals or society was not effected; only those who were inclined to such
tendencies participated through memberships, and no one was pressured to engage in sexual
activity
(c) Rules of Practice
[pg 28]
 section 482 of the code permits court to create rules of practice to govern the administrative
mechanics of practice in criminal courts
 R v. Gundy – [2008] OJ 1410 – Ontario Court of Appeals – illustration on court’s power to create rules
of practice
 Criminal Proceedings Rules
 Rules of the Ontario Court of Justice in Criminal Proceedings
3. The Classification of Offences
 criminal offences are generally either indictable offences (more serious offences that are prosecuted
in superior courts) or summary conviction offences (less serious offences that are prosecuted in
lower courts)
 they can also be a hybrid in the sense that the prosecutor can choose to treat the offence as
either indictable or summary
 indictable offences don’t have a statute of limitations; summary conviction offences are time-barred
by six months after the completion of the offence
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 indictable offences can carry sentences of imprisonment exceeding two years; summary conviction
offences are generally maxed out at six months and/or fine for sentencing (unless parliament
prescribes a higher maximum)
 appeals for indictable offences are heard in the court of appeal; appeals for summary offences are
heard by the superior court of the province
 the statute that creates the offence designates the offence as either indictable or summary
 the classification has important implications for penalties available and for procedure to be used
(including mode of trial – i.e.; in lower court by judge alone, or in superior court by judge or by judge
and jury)
 the classification can also affect the scope of police powers
 the only mode of trial for summary conviction offences is the lower court – the court of criminal
jurisdiction
 in indictable cases, the accused can choose to have a trial by superior court judge and jury, but
superior court judge alone, or by provincial court judge
 however, there are a number of situations in which the accused must be tried in one of those
listed and doesn’t have a choice
 and in some cases, even if there is a choice of election, the crown can compel a jury trial
_____________________________________________________________________________
4. Interpreting Criminal Provisions
 criminal law, in order to comply with the charter and be constitutional has to be fixed and
predetermined because in order to be convicted of a criminal or regulatory offence, a person must
do something that is prohibited by valid statute or regulation, and that an act or omission must, at
the time it was committed, have been illegal under the law in order for the principles of fundamental
justice not to be violated
(a) Definitions
 section 2 contains definitions that apply throughout the code
 the code is divided into parts, and at the beginning f each part, there will be a definitions section that
applies to that part
 sometimes definitions are found in and around the relevant section to be interpreted
(b) Strict Construction
 historically, statutes were interpreted strictly in favour of the accused insofar as any doubts or
ambiguity in the matter of interpretation; this is a means of ensuring that the criminal law is fixed
and predetermined
 if someone is to be punished, they should know that some act of parliament requires it in express
terms, and not by implications – which is why any ambiguity in interpreting the statues is given to
benefit the accused
 the seriousness of imposing criminal penalties demands that reasonable doubts be resolved in
favour of the accused
 R v. Pare – [1987] 2 SCR 618 – SCC – sexually assaulting and then murdering little boy
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 Facts: Pare murdered a young boy two minutes after indecently assaulting him; at trial jury found
him guilty of first degree murder section 214(5)(b) (“when death is caused ... while committing an
offence under section 156); Court of Appeal substituted verdict of second degree murder; Crown
appealed
 Issues: whether accused murdered the child “while committing” the indecent assault
 Held: Crown’s appeal of first degree murder verdict should be allowed
 “while” committing, as per section 214(5)(b) don’t’ require the murder and offence (under
section 156) to take place simultaneously; that they form part of one continuous sequence of
events forming a single transaction qualifies as “while committing”
 the strict construction principle still applies but has been modified by the purposive interpretation
(c) Purposive Interpretation
 the language that is used in the act in question is interpreted in harmony with the statute as a whole
so as to best accomplish the purpose thereof
 purposive approach acknowledges the limitations of grammatical/dictionary-based interpretation
and seeks to look at the broader purpose of the statute in question
 the two approaches are reconciled by allowing for the strict interpretation in favour of the accused
applies if, after taking into account the purposive interpretation of the statute, there remain any
ambiguities
 the strict construction is applied if there are reasonable ambiguities in the law after it has been
interpreted in a purposive manner
 R.v. Russel –(2001)2 S.C.R 804
 Supreme Court went beyond Pare to hold that first – degree murder can be committed even if
the underlying offence was committed against a third a third party and not the person murdered.
 All that is necessary was that the killing was “closely connected, temporally and casually, with an
enumerated offence
 As long as the connection exists, however, it is immaterial that the victim of the killing and the
victim of the enumerated offence are not the same.
(d) French/English
[pg 44]
 federal laws are passed in both official languages; each version has equal authority; any ambiguities
in one language can be clarified by the other
 R. v. Mac, [2002] 1 S.C.R. 856
The Criminal Code is a bilingual statute of which both the English and French versions are
equally authoritative. In his Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327, PierreAndré Côté reminds us that statutory interpretation of bilingual enactments begins with a search for
the shared meaning between the two versions. Where the words of one version may raise an
ambiguity, courts should first look to the other official language version to determine whether its
meaning is plain and unequivocal.
In this case, any ambiguity arising from the English version is resolved by the clear and unambiguous
language of the French version of s. 369(b). There is therefore no need to resort to further rules of
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statutory interpretation, such as those invoked by the Court of Appeal.
Section 369(b) and s. 342.01(1)(d), as noted by Doherty J.A., are related provisions. They must be read
together. The French version of s. 342.01(1)(d) uses the word “modifié” for the English word
“adapted”. In contrast, in s. 369(b), the word “adapté” is used together with the English expression
“adapted”. This makes clear that, in the first case, “adapted” means altered or modified, while in the
second case it does not. Thus the common meaning of “adapted/adapté” in s. 369(b) is “suitable for”.
Consequently, we allow the appeal, set aside the judgment of the Ontario Court of Appeal and restore
the decision of the trial judge. The matter is remitted to the Ontario Court of Appeal with regard to the
appeal of sentence.
 R v. Collins.- (1987) 1 SCR 265
Para 43…The second reason is based on the language of s. 24(2). Indeed, while both the English text of s.
24(2) and Rothman use the words "would bring the administration of justice into disrepute", the French
versions are very different. The French text of s. 24(2) provides "est susceptible de déconsidérer
l'administration de la justice", which I would translate as "could bring the administration of justice into
disrepute". This is suppportive of a somewhat lower threshold than the English text. As Dickson J. (as he
then was) wrote in Hunter v. Southam Inc., supra, at p. 157:
Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a
purposive one, before it is possible to assess the reasonableness or unreasonableness of the
impact of a search or of a statute authorizing a search, it is first necessary to specify the
purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to
protect.
 As one of the purposes of s. 24(2) is to protect the right to a fair trial, I would favour the interpretation of s.
24(2) which better protects that right, the less onerous French text. Most courts which have considered the
issue have also come to this conclusion (see Gibson, supra, at pp. 63 and 234‑ 35). Section 24(2) should
thus be read as "the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings could bring the administration of justice into
disrepute". This is a less onerous test than Rothman, where the French translation of the test in our reports,
"ternirait l'image de la justice", clearly indicates that the resort to the word "would" in the test "would
bring the administration of justice into disrepute" means just that.
(e) The Charter
 the charter has an important influence on the way statutory provisions are interpreted in order to
ensure their constitutional validity
 R v. Labaye – [2005] 3 SCR 728 – SCC – McLachlin C.J., Major, Binnie, Deschamps, Fish, Abella,
Charron JJ. – strong dissenting judgment – bawdy house/sex club/group sex
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 Facts: Labaye operated a club for the purposes of permitting couples and single people to meet
each other for group sex; only members were allowed – there was a system of interview to
permit new members, a membership fee, doorman at the door to make sure only members
entered; group sex took place in a private (marked) and under lock apartment belonging to the
accused; Labaye was convicted at trial with the judge finding that his apartment fell within the
meaning of public place and that such behaviour was anti-social and caused a social harm
because it was degrading and dehumanizing; Court of Appeals upheld the conviction; Labaye
appealed
 Issues: were fundamental rights of individuals/society harmed by the activity at the club
 Held: the appeal should be allowed and the conviction set aside
 the autonomy of individuals or society was not effected; only those who were inclined to such
tendencies participated through memberships, and no one was pressured to engage in sexual
activity ad
 Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) – [2004] 1 SCR
76 – SCC – McLachlin C.J., Gonthier, Iacobucci, Major, Bastarache, LeBel JJ. – right to discipline
 Facts: section 43 justifies reasonable use of force by parents and teachers to correct the children
in their care; the Foundation said it violated section 7 (life, liberty, security of the person), 12
(right not to be subject to cruel and unusual punishment), and 15(1) (equality before and under
the law and equal protection and benefit thereof); trial judge rejected the contention; Court of
Appeal confirmed rejection
 Issues: does section 43 violate section 7, 12, and 15(1)
 Held: the appeal by the foundation should be dismissed
 section 43 does not violate section 7 of the charter; it affects children’s security of the person,
but it does not offend the principles of fundamental justice as it is not unduly vague or
overbroad; it sets boundaries in that the force has to be for educative or corrective purposes
 it doesn’t violate section 12 because the conduct permitted doesn’t involve cruel and unusual
treatment or punishment by the state; and even in the sense of by the parents/teachers, it
permits only reasonable corrective force
 it doesn’t discriminate contrary to section 15(1); abusive and harmful conduct is not sanctioned
by the section; children need guidance and discipline to protect them from harm and to
encourage healthy social behaviour
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[SECTION 2] – THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENCE
 each crime has required elements that must be present before a conviction is possible; and all
elements thereof must be present at the same time; the crown has to prove beyond a reasonable
doubt that the accused committed the prohibited act and did so with the required fault element
 the actus reus (physical element) of the offence – the act or omission that is prohibited by the
legislation
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 the act that must be performed or omission that is proscribed, the circumstances or
conditions in which the act must occur, and any consequence that must be caused by the act;
and
 the mens rea (mental element) of the offence – the fault element
 mental elements are normally the actual (i.e.; subjective) state of mind of the accused
 but the use of the objective mens rea (i.e.; what a reasonable person in the position of the
accused would have known or foreseen) is becoming more common
 the general requirement is that the accused have the necessary mens rea at the same time as the
actus reus occurred
5. The Actus Reus
[pg 2]
 every offence prescribes a prohibited act or omission that depends on how the legislature words the
offence
 how the courts interpret the wording of the offence also plays a role
 legislature doesn’t just have the option to describe an act/action that is done/taken, it can also
prohibit conduct as an omission or failure to take the necessary action
 the definition of the act can’t be vague or overbroad; it has to be able to have given fair notice to the
accused
 especially since ignorance of the law is not an excuse to a criminal offence – ignorance of the law
is no excuse principle tends to punish those who have formed a mistaken belief about the legality
of their actions, whereas a person who has made a mistake about the facts may not be treated as
harshly
 but where the mistake of law is the only defence available to the accused, then the offence
should be classified as an absolute liability offence for which imprisonment cannot be
imposed
 colour of right defence is a limited incursion of the principle of ignorance of the law is not an
excuse; it generally relates to mistaken belief by the accused that he had a personal
right/entitlement to the property that he is said to have committed an offence against
 where the law or regulation that has been violated has not been officially published, then
ignorance of the law is not an excuse cannot be said to be in play as it would be impossible for
a person to comply with a law that has not been made available to the public
 sometimes the law intervenes even before the accused has committed the criminal act required for a
complete crime
 section 24 states that anyone, having the intent to commit an offence, who does or omits
anything beyond mere preparation, is guilty of attempting to commit that offence (regardless of
whether it was possible to actually commit the offence or not)
 in some cases, the activity that is preparatory to complete the crime is defined as a complete
crime
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 laws can be struck down under section 7 of the charter if they are vague or overbroad and as such
don’t provide fair notice of what is prohibited so that citizens can determine beforehand what
conduct is illegal
 actus reus of an offence is matter of statutory interpretation – in line with the ideal that one should
not be punished except in accordance with fixed, predetermined law; and so nobody can be
convicted of an offence at common law (i.e.; judge made law) with the exception of contempt of
court
 the crown has to prove beyond a reasonable doubt that the accused committed the prohibited act
(actus reus)
 sometimes, when determining that the accused has committed the act, it is necessary to determine if
he caused some prohibited result
 there is an emerging principle that involuntary actions may not constitute the required actus reus,
especially in cases where there is no fault element
(a) Acts and Statutory Conditions
 the act must be the act of the accused ; it must be committed under the circumstances or conditions
specified
 criminal law is society’s most severe sanction and should be applied with restraint so that the law
does not lightly brand a person as a criminal or with the stigma of a criminal offence
 the conduct in question should constitute a marked departure from the standard of care expected of
a reasonable person
 reasonableness is also used to keep up with society’s changing mores
 the actus reus of a particular offence is defined with the need for restraint in the criminal law
 because it is impossible to draft laws that precisely describe every foreseeable offense that may
arise, statutes have to cover a variety of situations; so it is up to the judge to interpret those laws to a
certain extent and decide whether that law applies to the facts of a certain case
 the actual meaning of an act comes into fruition by taking the statute in light of judicial decisions
and/or interpretations (i.e.; court’s jurisprudence) thereto
 the concept of de minimis non curat lex recognizes that the law should not punish mere trifle; it
allows for an acquittal of a person even if he is technically guilty of the actus reus and the mens rea
 Bhatnager v. Canada (Minister of Employment and Immigration) – [1990] SCJ 62 – SCC – contempt
of court criminal offence or not
 Facts: appellants found guilty of contempt of court for disobeying an order requiring them to
direct the officials to produce a file by a specified date
 Issues: can appellants be convicted for contempt of court
 Held: appeal should be allowed
 contempt of court is a criminal offence in character, and so it has to be proved by the party
alleging contempt beyond a reasonable doubt
 R v. J.D. – [2002] OJ 4916 – Ontario Court of Appeal – being let into his friend’s house, counting as
forcible entry
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 Facts: JD fled to VB’s house after being approached by cops; he was let into the house and tried
to go out the back door but was unable to; cops were let in and they arrested JD; trial judge
found that forcible entry didn’t require actual use of force as long as there was a breach of peace
 Issues: was there a forcible entry
 Held: conviction set aside, acquittal entered
 forcible entry occurred only where the entry interfered with the peaceable possession of a
property; a known person walking in the front door and straight through to the back does not
have such an intention
 R. v. Gunning, [2005] 1 S.C.R. 627
The accused fatally shot C, a person unknown to the accused who had entered his home uninvited during
a party. The accused denied that he intended to kill C. Although his memory was sketchy due to his
consumption of alcohol, he testified that C had assaulted him and refused to leave his house after they
had argued. He claimed that he was scared, so he took out and loaded the shotgun to intimidate C into
leaving. He testified that the gun discharged accidentally. The focus of the trial was on whether the
shooting was intentional or accidental. The trial judge, however, instructed the jury that the offence of
careless use of a firearm had been made out and he refused to instruct the jury on defence of property.
Later in his charge, he purported to correct the impugned instruction on careless use of a firearm. The
accused was convicted of second degree murder. The Court of Appeal upheld the conviction.
Held: The appeal should be allowed. The conviction should be set aside and a new trial ordered.
The trial judge erred in instructing the jury that the Crown had proven the “unlawful act” necessary to
prove murder or manslaughter and his recharge did not cure the error. It is a basic principle of law that
the jury is to decide whether an offence has been proven on the facts. The judge is entitled to give an
opinion on a question of fact but not a direction. A trial judge has no duty or entitlement to direct a
verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential foundation
does not detract from this principle. In this case, if the jury was satisfied that the accused intended to kill
C, the unlawful act that caused the death would be the shooting itself and the accused would be guilty of
murder. If the Crown failed to prove an intent to kill, the accused would be guilty of manslaughter only
if he was guilty of the unlawful act of careless use of a firearm. If the jury had a reasonable doubt on this
question, he was entitled to an acquittal. In finding that the accused’s use of the firearm was careless
within the meaning of s. 86 of the Criminal Code, and an unlawful act that caused the death of C, the
trial judge encroached on the exclusive domain of the jury. That issue, together with the question of
intent to kill, were central in this trial. It was incumbent upon the trial judge to instruct the jury on the
law in respect of the careless use of a firearm, including any defences that arose on the evidence, and to
leave for the jury the application of the law to the facts. [5] [21‑ 22] [35]
The trial judge also erred in failing to instruct the jury on the defence of house or
property under s. 41 of the Criminal Code. The accused advanced the defence in respect of his use of the
firearm prior and up to what he alleged to have been an accidental shooting. On the evidence, this
defence raised a real issue for the jury to decide, but the jurors were never told that a person is entitled at
law to forcibly remove a trespasser from his home, so long as he uses no more force than necessary.
They were directed, as a matter of law, that the accused’s conduct before the shooting was the unlawful
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act of careless use of a firearm. The trial judge effectively determined the merits of the defence, a matter
that was for the jury to resolve. [6] [22] [37‑ 38]
In view of the fact that the jury was not properly instructed in respect of matters
fundamental to the defence, reliance cannot be placed on the verdict to conclude that there is no
reasonable possibility that the verdict would have been different without these errors. [7]

(b) Acts must be “Voluntary” or “Willed”
 the act described by the offence must be voluntary in the sense that it must be the willed act of the
accused – unless physical motion is wilful, it is not fair to call it an act of the accused
 for the most part the issue of whether the accused committed the actus reus is distinct from whether
he had the required fault element doesn’t create issues – he must have voluntarily committed the
offence to be convicted of it
 the actus reus has its own mental element, that the act must be voluntary act of the accused
 voluntariness is a fundamental principle of criminal law and of justice under section 7
 people should only be punished if they acted as autonomously and freely choosing agents
 R v. King (1962), 133 C.C.C.1- where having been given drugs at the dentist office which then led to
impaired driving, the court refused to convict because the impairment was caused by involuntarily
consuming the drug and “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. Hundal (1993), 79 C.C.C.97 (SCC) – involuntary conduct that would accompany a heart attack, an
epileptic seizure, a detached retina, or bee sting would prevent the crown from proving the actus
reus of dangerous driving.
(c) The “Act” of Possession
 the divide between actus reus and mens rea is not always a solid one
Possession” is defined in s 4(3): A person has something in his “possession” where
(a) He has it in PERSONAL POSSESSION (i.e. manual possession); OR KNOWINGLY has it in the
actual possession or custody of ANOTHER PERSON (i.e. constructive possession); OR
KNOWINGLY has it in any place, whether or not that place belongs to or is occupied by him, for
the use or benefit of himself or another person (i.e. constructive possession)
(b) Where ONE OF TWO PERSONS, with the knowledge and consent of the rest, has anything in
his custody or possession, it shall be deemed to be in the custody of each and ALL OF THEM (i.e.
joint possession)
 Note that s2 of the Controlled Drug Substances Act adopts this definition of possession
 This s creates 3 types of possession: personal possession; constructive possession and joint
possession.
 section 2(1) Controlled Drugs and Substances Act: possession as per section 4(3) Criminal Code
 R v. York – [2005] BCJ 250 – BC Court of Appeal –
shows an ex. Of mental element req’d for actus reus
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FACTS:
 Two trailers containing furniture shipments were stolen from a yard controlled by PCE Ltd –
shipments total value exceeded 28,000
 The appellant received a telephone call from Mr. Shannon
 Mr. Shannon told him that there was "a bunch of stuff" in the warehouse
 He asked the appellant if he had put it there. The appellant replied that he had not.
 They then drove to the warehouse where the appellant noted that there was a trailer backed
up into one of the bay doors with no tractor unit hooked to it.
 When they entered the warehouse, the appellant said he was surprised to see a lot of furniture
and lumber and that he did not know where they came from.
 He telephoned Mark Rogers, the manager, and asked him if he knew anything about the goods
in the warehouse. Mr. Rogers told the appellant that he knew about the goods but refused to
disclose where they came from.
 At that time, the appellant realized that the goods were probably stolen.
 He said he did not think through what he was going to do regarding the goods; he simply
wanted to get rid of them.
 The appellant then borrowed a truck, hooked up the trailer and dropped it off at a location on
Carpenter Street, not far from the warehouse, and he was arrested.
ISSUE:
 Whether the TJ erred in finding that the evidence established beyond a reasonable doubt that
the Appellant possessed the necessary Mens Rea for the offence of possession of stolen
property
REASONING:
 The appellant testified. He knew the goods were stolen.
 He also exercised physical control over the goods.
 However, there was no evidence that he had any intention to deprive the rightful owner of the
stolen goods, which is an essential requirement for possession in law
 A brief handling of stolen goods with full knowledge of their character solely for the purpose of
getting rid of them does not constitute possession, for example
 This is because conduct may be characterized as criminal only where the Crown proves the
existence of a blameworthy state of mind.
HELD: The judge convicted the appellant on the grounds that the appellant knew that the goods were
stolen, and that he exercised physical control over them without notifying the police or the rightful
owners.
 The blameworthiness of this conduct fell short of that req’d for a conviction for a crime of
dishonesty. Appeal allowed
COMMENT: Note how the “act” of possession has a mental element; so sometimes the actus reus and
mens rea are not distinct.
 R v. Marshall – [1969]3 C.C.C 149 (Alta.CA) – Alberta Supreme Court, Appellate Division – road trip
possession
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 Facts: went to Vancouver with a friend and two others in the friend’s car; on the way back he
found out there was marijuana in the car; they were stopped by cops and threw the weed out of
the car; they returned to the spot they had thrown out the weed; Marshall did not participate in
any of this; he said he didn’t leave the car upon finding out because he had no other way of
getting home; trial judge convicted jointly for unlawful possession of a narcotic for the purposes
of trafficking
 Issues: was Marshall in possession of the marijuana
 Held: conviction of Marshall should be set aside
 Marshall had knowledge of the marijuana; but did not have control over it, nor did he consent to
it
 mere acquiescence is not sufficient to connote consent; there must be something of an active
nature, some kind of control upon which the consent of the accused must operate in order for it
to be effective
 where the association, interest, or participation of the accused cannot reasonably be regarded as
an exercise of a power or right to some measure of control over the object, possession cannot be
construed
 the knowledge and consent required for the statutory provision to apply cannot exist without the
existence of some measure of control over the object
 power to consent must include power to refuse
R v. Terrence [1983] SCC
²joint possession -knowledge and consent is required for the requisite act of possession.
Facts
: Respondent was picked up by his friend in a car who told him that it was his brother-inlaw's car. OPP detected the µstolen car¶ and a car chase ensued because they noticed stolen plates
on the car. Terrence was charged with unlawful possession of a car over $200.00. Question was
whether he knowingly obtained a stolen vehicle which would make it an indictable offence.
Section 21 of the CC defines the meaning of µparties¶ to an offence²it involves the question of
µcommon intention¶. Here, there was no suggestion that the respondent took part in the actual
theft of the car, nor was there anything to support a finding of common intention in relation to
the offence of µpossession¶.
Issue
: The question for the SCC in this case related to the true meaning attached to the word
³possession´, for the purposes of sec. 3(4)(b) of the CC. The Act states: ³«where one of two or
more persons, with the knowledge and consent of the rest, has anything in his custody or
possession, it shall be deemed to be in the custody and possession of each and all of them.´
Held
: Terrance did not have control of the car. In this decision, the SCC affirmed the ONCA¶s
finding that a measure of control over the illegal/stolen articles must be exercised in order to give
rise to joint possession or constructive possession ± on the facts, there was no direct evidence in
this case that showed that Terrence had any control over the vehicle At para 25, Justice Roach:
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µ³Knowledge and consent´ which is an integral element of joint possession in s. 5(2) must be
related to and read with the definition of ³possession´ in the previous s. 5(1)(b). It follows that
³knowledge and consent´ cannot exist without the co-existence of some measure of control over
the subject-matter. If there is the power to consent there is equally the power to refuse and vice
versa. They each signify the existence of some power or authority which is here called control,
without which the need for their exercise could not arise or be invoked. I agree with the CA that
a constituent and essential element of possession under s. 3(4) (b) of the CC is a measure of
control on the part of the person deemed to be in possession by that provision of the CC.´ The
court did, however, draw up a number of examples where they might find control in such a case.
They cited the example of ³control of destination´, where Terrence guided/suggested/ordered the
driver to go to a certain place. They also cited the example of ³handing over stolen license
plates´. The thrust of their argument centered mainly on some form of control being exercised by
the accused. Thus, the formula is ± knowledge + consent = requisite act Knowledge and consent
can be further expanded, especially when read in relation with possession. It follows that knowledge and
consent cannot exist without the co-existence of some measure of control over the subject matter. If
there is power to consent, there is equally the power to refuse, and vice versa.

R v. Morelli, 2010 SCC 8 …( for possession of electronic data)
 On September 5, 2002, a computer technician arrived unannounced at the accused’s house to install
a high‑ speed Internet connection the accused had ordered. The accused lived with his wife and two
children, aged three and seven, but was alone that day with his younger daughter. When the
technician opened the accused’s Web browser, he noticed several links to both adult and child
pornography sites in the taskbar’s “favourites” list, including two that were labelled “Lolita Porn”
and “Lolita XXX”. He also saw a legal pornographic image, but he could not remember afterwards
if it was on the browser’s home page or on the computer desktop. In the room, he noticed home
videos and, on a tripod, a webcam that was connected to a videotape recorder and was pointed at the
toys and at the child. Unable to finish his work on that day, the technician returned the following
morning and noted that everything had been “cleaned up”: the child’s toys had been placed in a box,
the videotapes could no longer be seen, the webcam was pointed at the computer user’s chair and the
computer hard drive had been “formatted”. In November, concerned with the child’s safety, the
technician reported what he had seen to a social worker, who contacted the RCMP. The technician
made a statement to Cst. O in January 8, 2003. After the interview, O consulted Cpl. B from the
RCMP’s Technological Crime Unit, who he knew had experience investigating crimes involving
computers and technological devices. B stated that these types of offenders were habitual and would
continue their computer practices with child pornography and that this information would remain
inside the hard drive of the computer. O also spoke to Cst. H who, he had been told by a Crown
attorney, had experience investigating child exploitation offences. H informed O that these
offenders treasured collections on their computers and liked to store them and create backups. O
also verified whether an active Internet connection was still being provided to the accused’s
residence. He then drafted an information to obtain a search warrant (“ITO”) and, on January 10, a
warrant was issued pursuant to s. 487 of the Criminal Code to search the accused’s computer.
Pornographic pictures involving children were found on the computer and the accused was charged
with possession of child pornography contrary to s. 163.1(4) of the Criminal Code. At trial, he
unsuccessfully challenged the validity of the search warrant under s. 8 of the Canadian Charter of
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Rights and Freedoms. The trial judge convicted the accused and the majority of the Court of Appeal
upheld the conviction.

Held (Deschamps, Charron and Rothstein JJ. dissenting): The appeal should be allowed. The
accused’s conviction is quashed and an acquittal is entered.

Per McLachlin C.J. and Binnie, Fish and Abella JJ.: The ITO is limited to allegations of possession
of child pornography contrary to s. 163.1(4) of the Criminal Code and does not involve allegations
of accessing child pornography pursuant to s. 163.1(4.1). Merely viewing in a Web browser an
illegal image stored in a remote location on the Internet does not establish the level of control
necessary to find possession. Neither does creating a “favourite” or an “icon” on one’s computer. In
order to commit the offence of possession, as opposed to the offence of accessing of child
pornography, one must knowingly acquire the underlying data files and store them in a place under
one’s control. It is the underlying data file that is the stable “object” that can be transferred, stored,
and possessed. The automatic caching of a file to the hard drive does not, without more, constitute
possession. While the cached file might be in a “place” over which the computer user has control, in
order to establish possession it must be shown that the file was knowingly stored and retained
through the cache. An ITO seeking a warrant to search for evidence of possession, rather than
accessing, must therefore provide reasonable grounds to believe that the alleged offender possesses
(or has possessed) digital files of an illegal image, and that evidence of that possession will be found
in the place to be searched at the time the warrant is sought. Here, the search and seizure of the
accused’s computer infringed his right under s. 8 of the Charter. Even when corrected and amplified
on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find
adequate grounds for the search. The ITO did not allege the distinct and separate offence of
accessing child pornography and, stripped of its defects and deficiencies, all that really remained
were two Internet links, seen four months earlier in the “Favourites” menu of a Web browser on a
computer that was subsequently formatted, deleting both links. The prior presence of the two
“Lolita” links supports a reasonable inference that the accused browsed a Web site that contained
explicit images of females under the age of 18, but this does not suffice to establish possession.

The misleading passages in the ITO that suggested that the technician had actually viewed illegal
pornography on the computer, rather than suspiciously labelled “favourites”, must be excised. That
pornographic images of children were actually seen on the computer is an entirely false claim. Aside
from false statements, the ITO in several places gave an incomplete and misleading account of the
facts, in contravention of the informant’s duty to make full and frank disclosure of all material
information. The ITO does not mention, as the voir dire revealed, that the two “favourites” were
“just scattered through the favourites” among additional links pointing to “regular adult material”.
The failure to mention these facts creates a misleading impression. Once it is understood that the
suspicious “Favourites” were in fact exceptions, found together with much more material that was
undisputedly legal, the inference that the accused possessed illegal images becomes significantly less
compelling. Furthermore, the descriptions of the webcam and its placement are juxtaposed
immediately alongside the descriptions of the suspicious “Favourites” and the technician’s claims
that he had “observed ‘Lolita Porn’”, clearly suggesting that the accused might have been making
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(and possessing) his own illegal pornography. The ITO, however, did not include a number of
additional facts known to the police. First, the three‑ year‑ old child mentioned, but not identified,
in the ITO was in fact the accused’s daughter. Second, the ITO stated that the accused was alone in
the house with the girl, but failed to mention that his wife lived with them. Third, the ITO also
failed to mention that the child was fully clothed, that there was no evidence of abuse, that the
computer room had a child gate and appeared to double as a playroom for the child, and that the
child was playing with the scattered toys in the middle of the room when the technician arrived.
While the reviewing judge found no deliberate attempt to mislead, it is nonetheless evident that the
police officer’s selective presentation of the facts painted a less objective and more villainous picture
than the picture that would have emerged had he disclosed all the material information available to
him at the time. It seems much more plausible that the accused was simply using the VCR and
webcam to videotape his young daughter at play for posterity’s sake, rather than for any purpose
connected to child pornography.


To conclude that evidence of possession would be found four months after the hard drive was
erased, one must accept either that the accused had made external copies of illegal images present in
the computer before formatting its hard drive or that he acquired additional illegal images after the
formatting. While the ITO seeks to establish inferences based on the likely behaviour of the accused
on the basis of generalizations made by B and H about the propensities of certain “types of
offenders” to hoard and copy illegal images, the ITO does not establish either the veracity of the
generalization about the alleged “type of offender”, or that the accused is in fact the “type” to which
the generalization might have applied. The ITO contains no evidentiary material in this regard apart
from the bald assertion of the two police officers and there is virtually nothing to describe, let alone
establish, the expertise of the officers. Moreover, the class of persons to whom specific proclivities
are attributed is defined so loosely as to bear no real significance. There is no reason to believe, on
the basis of the information in the ITO as amplified, that all child pornography offenders engage in
hoarding, storing, sorting, and categorizing activity. To permit reliance on broad generalizations
about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu
of evidence. It is not the role of courts to establish by judicial fiat broad generalizations regarding
the “proclivities” of certain “types” of people, including offenders. Matters of this sort are best left
to be established by the Crown, according to the relevant standard — in this case, reasonable
grounds for belief. Here, two suspiciously labelled links in the “Favourites” do not suffice to
characterize a person as an habitual child pornography offender of the type that seeks out and hoards
illegal images. The fact that the bulk of the pornographic material that the technician observed at the
accused’s house was legal adult pornography suggests that the accused did not have a “pronounced”
interest in child pornography.
The presence of the webcam, which was functioning as a camcorder recording to a VCR, has only a
tenuous relation to the crime alleged. While it may be true that the accused was adept at recording
videotapes and storing the tapes for future use — as is nearly everyone who owns a camcorder —
this says nothing about his propensity to store a different kind of image (child pornography), in a
different medium (a computer, as opposed to videotape), acquired in a different manner
(downloading, as opposed to filming). To draw an inference that he is of the type to hoard illegal
images is to speculate impermissibly. Nor does the accused’s conduct after the technician’s visit
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support the conclusion that he was the sort of person to seek out and hoard child pornography. The
accused might well have tidied up the room and formatted his computer simply to avoid further
embarrassment from having an outsider see the disorderly state of his home and the evidence of his
consumption of pornography on his computer. The accused’s conduct might raise suspicions but, as
a matter of law, mere suspicion is no substitute for reasonable grounds.

The evidence obtained as a result of the illegal search should be excluded under s. 24(2) of the
Charter. When the three relevant factors are balanced, admitting the illegally obtained evidence in
this case would bring the administration of justice into disrepute. The trial judge found no deliberate
attempt to mislead and no deliberate misconduct on the part of the officer who swore the ITO, but
the repute of the administration of justice would nonetheless be significantly eroded, particularly in
the long term, if criminal trials were permitted to proceed on the strength of evidence obtained from
the most private “place” in the home on the basis of misleading, inaccurate, and incomplete ITOs
upon which a search warrant was issued. The public must have confidence that invasions of privacy
are justified, in advance, by a genuine showing of probable cause.
 R v. Pham – [2005] OJ 5127 – Ontario Court of Appeal – roommates with possession of drugs
 Facts: Pham’s neighbour had witnessed several occasions of suspicious behaviour involving
money and plastic bags with white stuff; Pham was heard and seen at some of these occasions;
during a raid when Pham wasn’t home, police found drugs in plain sight and in close proximity to
Pham’s possessions; Pham claimed they were the roommate’s drugs; Pham was found guilty of
possession
 Issues: was Pham in possession of the drugs
 Held: Pham’s appeal from conviction dismissed, the evidence gave the conviction ample support
(d) Consent as an Element of the Actus Reus
[pg 15]
 the absence of consent by the victim is an important actus reus condition, that must be present for
the offence to occur
 there can be no implied consent – the trier of fact may only come to one of two conclusions, that
there was consent, or that there was no consent
 consent especially plays a big role in sexual assault offences
 the existence of consent for the purposes of defining the actus reus of sexual assault depends on the
subjective perception of the victim as opposed to any external and/or objective standards of law
 R. v. Ewanchuk – consent isn’t tied to objective and external legal standards of what society will
accept as consent, but to the complainant’s subjective (even if idiosyncratic) perceptions
 parliament has defined what is meant by consent in other sections of the code – cannot consent to
own death, a child’s ‘consent’ is not valid in abduction cases
 R v. Jobidon – [1991] 2 SCR 714 – SCC – La Forest, L’Heureux-Dube, Gonthier, Cory, Iacobucci JJ. –
fist fight death
 Facts: victim and accused got into a fist fight, was broken up, accused waited outside to continue
the fight; accused hit victim in head with fist so hard that he was knocked backwards, accused
kept hitting him and victim went limp and died; at trial found not guilty of manslaughter, and
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since victim has consented to ‘fair fight’ it negated assault (section 265); Court of Appeal set
aside appeal and substituted guilty verdict for charge of manslaughter
 Issue: since section 265 sets out that one can’t commit assault if the other person consents to
the application of force; does victim’s consent negate accountability of the accused
 Held: appeal to have appeal court’s conviction overturned should be dismissed
 victim’s consent did not extend to a continuation of the fight once he had lost consciousness
 by limiting consent to application of a certain type of force and not beyond that, court was right
 a person cannot consent to an assault that intentionally causes serious hurt in the course of a fist
fight or brawl
 R v. J.A. – [2011] SCC 28 – SCC – McLachlin C.J., Deschamps, Abella, Charron, Rothstein, Cromwell JJ.
– consensual asphyxiation sexual activity
 Facts: long term partners engaging in consensual asphyxiation play; female blacked out and
when she came to, a dildo was being inserted into her anus; she claimed she had not consented
to the sexual activity while she was unconscious; trial judge convicted the accused of sexual
assault; court of appeal set aside the conviction; crown appeals to dismissal of charges
 Issues: can sexual acts be performed on an unconscious person if that person consented
beforehand
 Held: conviction of the accused was restored
 parliament has laid out legislation in such a way that it views consent as the product of a
conscious mind – one that can not only give consent, but also revoke it
 consent requires a conscious, operating mind, capable of granting, revoking, or withholding
consent to each and every act as it occurs
 in sexual assault cases, it is not sufficient to believe there is consent, reasonable steps also have
to be taken to ascertain consent, especially to the activity in question – and this is an impossibility
if the person is unconscious – and thus unable to exercise their right to consent to the activity
 advance consent to acts taking place during unconsciousness is not in harmony with the
provisions of the code and the underlying policies thereof
 R v. Cuerrier – [1998] 2 SCR 371 – SCC – Cory, Major, Bastarache, Binnie JJ. – HIV disclosure
 Facts: Cuerrier knew he had HIV and that he had to inform all prospective partners thereof and
use condoms every time; he had consensual unprotected sex – but without informing the women
of the same; women claimed they wouldn’t have consented had they known; trial and appeal
court acquitted
 Issues: was there consent
 Held: new trial should be ordered
 consent provisions in sexual assault cases are based in the protection of people’s personal
autonomy to decide under which conditions they will agree to be touched
 without disclosure, there can’t be true consent – the consent can’t simply be to have sex, but
rather to have sex with a partner who is HIV positive
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 the actions of the accused must be assessed objectively to determine whether a reasonable
person would find them to be dishonest
 the consent was vitiated by fraud of such a nature that its nature is attached to a risk of serious
harm if consent is based on that fraud (i.e.; due to the accused failure to disclose his HIV status;
the dishonest behaviour was related to obtaining (consent for) unprotected sex)
R. v. Mabior, 2010 MBCA 93 …..(this case is under appeal to Supreme Court)
1
The accused appeals his conviction on six counts of aggravated sexual assault and on
one count each of invitation to sexual touching and sexual interference. He was sentenced to a total
of 14 years’ incarceration.
2
While these six women consented to having sexual intercourse with the accused, they
testified that they would not have done so if they had known he was HIV-positive. The Supreme
Court of Canada held in R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, that the failure
to disclose one’s HIV-positive status, where this creates a significant risk of serious bodily harm to
the complainant, constitutes fraud and invalidates any consent to the sexual activity. Consequently,
whether the fraud is sufficient to vitiate consent depends on the degree of risk created by the
accused’s conduct.
3
The principal issue on the appeal is whether the trial judge erred in her application of
the test of “significant risk of serious bodily harm” to the particular facts of this case.
4
For the reasons detailed below, I have found that she did so err. The law with respect
to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of
Canada in Cuerrier, attaches criminal liability to the failure to disclose one’s positive HIV status
only when there is a “significant risk of serious bodily harm.” That determination will vary
depending on the scientific and medical evidence adduced in each particular case. In this case, the
scientific evidence indicated that either the careful use of a condom or effective antiretroviral
therapy which reduced viral loads to an undetectable level could potentially reduce the level of risk
to below the legal test of “significant risk.”
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(e) Causation
 A criminal offence prohibits a consequence or result; it’s necessary to determine if the accused’s
action have actually caused the prohibited consequence or result
 The crown must prove beyond a reasonable doubt that accused caused the prohibited consequence
to occur
 A person can be held liable for causing a consequence even if the consequences are caused in part by
the victim’s peculiar (even if unknown/unforeseeable) vulnerabilities – the ‘think skull’ rule; the
principle is that the accused take the victim as he found him
 The accused acts don’t have to be the sole operative cause of the prohibited consequence
 Although the criminal code doesn’t’ comprehensively codify all causation issues, sometimes
parliament prescribes the level of causation for a crime
 Section 222(1) provides that a person commits homicide when, directly or indirectly, by any
means, he or she causes the death of a human being
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 If the accused set off a chain of events that ended in the person’s death, even though the immediate
cause of death was not at the accused’s hands, the courts have concluded that the accused caused
such a death
 The accused actions don't have to be the sole cause of death, but a significant contributing cause
thereof
 The actions of the accused have to be so connected to the death that they can be said to have
had a significant causal effect that continued up to the time of the accused’s death without
having been interrupted by an intervening effect
 But there may be times when intervening factors make it so that the accused’s actions are no
longer the significant cause of death
 R.v. Smithers, (1978) 1 S.C.R 506
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
1. 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.
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.
▪ The "thin skull" rule applies in criminal law as in tort law.
 R v. Menezes – [2002] OJ 551 – Ontario Superior Court of Justice – car race death
 Facts: incited victim into car race; there came a turn in the road where victim lost control and
was killed; Menezes slowed down when he came near the dangerous turn
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 Issues: because of his co-participation in the dangerous activity, was accused criminally
responsible
 Held: found not guilty of criminal negligence causing death, but guilty of dangerous driving
 accused’s conduct showed marked departure from standard expected of a reasonably prudent
driver; the driving was dangerous but not criminally negligent
 accused slowed down nearing the turn, – victim should have been aware of that given the race
situation – this amounts to intervening event in the causation of the consequences that occurred
 there are two stages to causations: factual causation and legal/imputable causation
 R v. Williams – [2003] SCC 41 – SCC – HIV discovered after sexual relationship began
 Facts: man had sex with woman knowing he was HIV-positive, but he found out about the HIV in
November and they had been sexually involved since June; she became infected, but it is
unknown when
 Issues: was the accused liable for infecting the victim
Held: To constitute a crime, the actus reus and the mens rea or intent must, at some
point, coincide. Here, however, before November 15, 1991, there was an endangerment but no intent;
after November 15, 1991, there was an intent but at the very least a reasonable doubt about the existence
of any endangerment.
The focus of the crime of aggravated assault is on the nature of the consequences rather than on the
nature of the assault. The same act of sexual assault by an HIV-positive accused would undoubtedly
injure or put at risk many potential partners but if, because of a complainant’s particular circumstances,
there is a reasonable doubt that the complainant was put in harm’s way by the assault charged, there is
no aggravated assault. In this case, there was a reasonable doubt that the life of the complainant was
capable of being endangered after November 15, 1991 by re-exposure to a virus that she had likely
already acquired.
There is nothing in the evidence to suggest that the complainant, believing rightly or wrongly that she
was HIV-free, consented to unprotected sexual intercourse with an HIV-positive partner. At all relevant
times, the complainant believed that both she and W were HIV-free.
W stands properly convicted of attempted aggravated assault. The crime of attempt requires the Crown
to establish the mens rea to commit the crime in question. The intent to commit the crime of aggravated
assault is established for the period after November 15, 1991. As to the actus reus, failure to prove
endangerment of life was fatal to the prosecution in this case of aggravated assault but it is not fatal to a
conviction for attempted aggravated assault. Clearly, W took more than preparatory steps. He did
everything he could to achieve the infection of the complainant by repeated acts of unprotected
intercourse for approximately one year between November 15, 1991 and November 1992, when the
relationship ended. The reasonable doubt about the timing of her actual infection was unknown to both
partners. These facts, established in the evidence, are sufficient to prove the attempt.
(NOTE: ***** a person can be guilty of attempted crime even though the commission of the completed
offence may be impossible******)
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 R v. Nette – [2001] 3 SCR 488 –SCC –elderly victim robbed and left hog tied in her room with a
ligature around her neck and left for dead—leading decision on the std. for causation in criminal
offences, including all homicide cases.
 Facts: elderly victim was robbed and left bound with a garment around her head and neck; she
died for asphyxiation; accused admitted to an undercover officer that he had robbed and killed
the widow. At trial the judge instructed the jury on causation issues in order to find if the
accused was accountable for manslaughter, first degree murder, or second degree murder; jury
in trial found accused guilty of second degree murder; court of appeal upheld the verdict.
 Issues: appeal on the basis of the test of causation for second degree murder
 Held: accused’s appeal should be dismissed; jury’s verdict of second degree murder is upheld
 responsibility for causing a consequence must be determined both in fact and in law
 factual causation is about how the victim came to death, in a medical, mechanical, or physical
sense, and the accused’s contribution thereto
 legal causation concerns with the accused’s responsibility in law and is informed by legal
considerations such as the wording of the offence and the principles of interpretations thereof
 can the consequence fairly be said to be imputable to the accused
 the cause should be (phrased as) ‘significantly contributing’ (rather than ‘not trivial’ or ‘not
insignificant’) to the consequence/result in question
 the fact that the accused actions may not have caused death in a different person does not
negate causation
 the fact that other factors might have contributed to the result may or may not be legally
significant depending on whether these other (independent) factors, occurring before or after
the act or omission of the accused, legally severs the link that ties the accused to the result in
question
 R v Reid: demonstrates the need in some contexts to consider whether intervening events have
broken the chain of causation………

…para 88.. “Similarly, consider the situation where A strikes B and leaves him unconscious
under a tree where later a branch falls killing the man by its own weight. Or A strikes B and the
blow renders B unconscious. Other people carry B to a nearby clinic but on route they tumble
down an open well where B drowns; or they are waylaid by a gang of thieves and in the ensuing
robbery B is stabbed to death; or upon arrival at the hospital for treatment B contracts
streptococcus, flesh eating disease from which he dies within days. These are all examples where
the law would recognize a supervening cause, an interrupting exculpatory event. The intervening
acts break the chain of causation. They interrupt the original infliction of injury. Some other act
or event has intervened before death. The question for the jury is whether the initial injury can still
be viewed as a significant contributing cause of the victim’s death. Such situations ought to have
been mentioned to illustrate for the jury the notion of intervening cause in law so that the jury
might then go on to decide as a matter of fact whether such had occurred in this case.”
 R v. Talbot……
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 Peoples v Lewis , 57 P.470 …. An accused who shot a person who then cut his own throat was still
held to have caused the persons death.
 R v. Green (1988), 43 CCC 413….. An accused who shot a person who hv already been grievously
shot by another person was still held to have caused the victims death.
 These cases indicate that while the accused’s actions do not have to be the sole cause of death,
there may be situations where the chain of causation will be broken so that the accused’s actions
are no longer the significant cause of the death. For e.g the accused would not be responsible for
causing a person’s death if he or she assaulted a victim , leaving the victim unconscious, but the
victim was then killed by a subsequent and independent fire or building collapse.
 ----------------------------------------------------------------------------------------------------------------------(f) Omissions
 offences don’t’ always require a positive action, they can be committed by a failure to act or
omission to act
 in order to be guilty by omission, the accused must be placed under a legal duty to act and the
omission in question must be a failure to fulfill that legal duty to act
 omission insofar as a legal duty is important because although the law prohibits harmful conduct,
it doesn’t require socially desirable conduct
 only binding and intentional commitments will suffice to make an accused criminally liable for
failing to act
 Examples where omission is an offence are:
 donating blood that the accused knew was infected with HIV… R v. Thornton (1993), 82 C.C.C 530.
 Not to use reasonable care in handling explosives……Ss. 79-80 CC.
 To disobey a court order..S. 127
 To fail to assist a peace officer when requested..S 129 (b)
 To abandon a child…s 218
 Not to obtain assistance in child birth..S 242
 To fail to stop when yr vehicle is involved in a accident…..S 252
 To neglect animals….S 446
 To fail to take steps to protect holes in ice or open excavations..S 263
 To fail to take reasonable steps to protect persons under you in their work or task..S 217.1
 R v. Moore – [1979] 1 SCR 195 – SCC – Curiam, Martland, Ritchie, Spence, Pigeon, Beetz JJ. –
 Facts: went through an intersection against a red light; was stopped by a cop and asked for
identification; refused to give name and address; charged with obstructing a peace officer in
execution of his duty; trial judge said there was no evidence of obstruction and acquitted; appeal
court reversed verdict and ordered new trial
 Issues: in not identifying himself, did the accused omit to do what he was legally bound to do
 Held: accused’s appeal of the reversal of the acquittal should be dismissed
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 the officer in requesting the identification of the accused was carrying out his duty of enforcing
the law; and a failure to identify himself constituted an obstruction to the officer being able to
perform his duties
 R v. Peterson – [2005] OJ 4450 – Ontario Court of Appeal – duty to provide necessities of life for
father
FACTS: Dennis Peterson was convicted of failing to provide the necessaries of life to his father, Arnold
Peterson, thereby endangering Arnold’s life (s 215).
 D lived with father A (84 yrs old) in messed up house.
 A wasn’t being looked after properly (food, clothes, housing); he fell sick many times etc
REASONING: Elements of s 215(1)(c) and s 215(2) (i.e. the relevant ss of the charge)
 s 215(1)(c): A duty to provide the necessaries of life arises when: “one person is under the
other’s charge, is unable to withdraw from that charge, and is unable to provide himself or
herself with necessaries of life.
 The phrase “necessaries of life” includes not only food, shelter, care, and medical attention
necessary to sustain life but also appears to include protection of the person from harm
 s215(2): Subs 215(2) imposes liability on an objective basis.
 The offence is made out by conduct showing a marked departure from the conduct of a
reasonably prudent person having the charge of another in circumstances where it is
objectively foreseeable that failure to provide necessaries of life would risk danger to life or
permanent endangerment of the health of the person under the charge of the other, without
lawful excuse
 For sub (2), the personal characteristics of the accused, falling short of capacity to appreciate
the risk, are not a relevant consideration.
 The objective basis of liability includes an assessment of whether the person in charge could
have acted other than as he or she did.
 The words “without lawful excuse” in s215(2) provide a defence and serve to prevent the
punishment of the morally innocent.
 The obligation to provide necessaries is not absolute and may be excused, for example, where
there is financial inability
The Meaning of “Under his charge”
 First, the relationship of the parties to each other is among the factors to consider in
determining whether a person is in the charge of another.
 The dependency of the parent under a disability on an independent adult child is justified not
only by their past course of dealing in which the parent supported the child but also by their
relationship to one another in which an element of trust will usually be present
 Second, the word “charge” is not unknown to the criminal law in other contexts involving
adults.
 In the impaired driving context, the court characterized having “care, charge or control” of a
vehicle as requiring “a kind of domination as in the master-servant relationship and as in the
parent-child or teacher-beginner relationship”
 Used in these contexts the word “charge” connotes, among other things, the duty or
responsibility of taking care of a person or thing
 In assessing whether one person is in the charge of another, the relative positions of the parties
and their ability to understand and appreciate their circumstances is a factor to consider.
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
A parent who is not in full possession of his/her faculties may not appreciate that he or she
cannot provide himself w/ the necessaries of life and may not have the capacity to understand
that he/she is in an unsafe or unhealthy environment that is likely to cause permanent injury
 The evidence to the TJ indicated that the appellant was in charge of his father, and that the
father was unable to withdraw from his son’s charge
HELD: Appeal dismissed; TJ’s findings stand
R v. Browne – [1997] OJ 2025 – Ontario Court of Appeal –
FACTS: The appellant, Dexter Browne, was charged with criminal negligence causing the death of
Audrey Greiner by failing "to render assistance to [her] by failing to take her immediately to the
hospital after undertaking to render such assistance
 A and B (drug dealers) were friends. A swallowed a plastic bag containing crack cocaine to
avoid its detection by police after being stopped.
 A began shaking and sweating in B’s room.
 B made a statement (at 2 am) which the TJ found to be an “undertaking” pursuant to s217 (he
said he was “going to take A to the hospital”).
 A arrived at 3:10 am dead at hospital by taxi. The TJ held that using a taxi instead of 911
constituted a “wanton and reckless disregard” for A’s life, contrary to s219 (criminal negligence)
ISSUE: Whether the TJ erred in concluding that the appellant had caused Audrey Greiner's death by
breaching a legal duty arising from an "undertaking" w/in the meaning of s217 of the CC to take her
to the hospital
 Only if the appellant can be found to have given an undertaking-giving rise to a legal duty under
s217 can he be found criminally negligent for "omitting to do anything that it is his duty to do"
w/in the meaning of s219 of the Code.
REASONING:
 Given serious penal consequences of being convicted of causing death by criminal negligence,
the relevant “undertaking” must have been made with binding intent
 The evidence doesn’t disclose any undertaking of a binding nature; the words “I’ll take you to a
hospital” hardly constitute an undertaking creating a legal duty under s217
______________________________________________________________________________
6. Subjective Mens Rea
 there is generally a distinction made between subjective and objective fault elements
 subjective mens rea focuses on the actual state of mind of the accused (at the time that the criminal
act was committed)
 courts will take into account evidence presented as to the accused’s diminished intelligence
 what someone knows or thinks or wants is personal to him unless it is communicated, so it has to
be viewed circumstantially – including the inference a person generally intends the natural
consequences of his actions
 the law will assume that the accused knew the elements of the offence unless a defence of
‘mistake of fact’ can be made out
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 the objective fault element doesn’t depend on the accused’s own state of mind, but on what a
reasonable person in the circumstances would have known or done
 some argue that in order to be fair to the accused, the reasonable person should be endowed
with the characteristics of the accused that affect the accused’s ability to appreciate the criminal
act and consequences brought about as a result thereof
 crown has to prove that accused’s behaviour was a marked departure from that of a reasonable
person
 for some serious crimes (i.e.; murder, attempted murder, war crimes), the principles of fundamental
justice (section 7) require that the crown prove that the accused subjectively knew that the
prohibited result was likely to occur (the supreme court has ruled that it is not required for most
other crimes) – i.e.; for such offences, subjective knowledge of the actus reus is a constitutional
requirement
 the court has said that objective fault is constitutionally sufficient for less serious crimes
 the considerations relevant in determining the constitutional requirements of mens rea (R v.
Creighton)
 the stigma attached to and the penalties available for the offence in question
 whether the punishment is proportionate to the moral blameworthiness of the offender
 the notion that those that cause harm intentionally must be punished more severely than those
that cause harm unintentionally
 various provisions in the code describe the relative states of mind required for that provision with
words
 if a provision specifies the relevant state of mind required for the offence (e.g.; intentionally,
knowingly, recklessly, negligently) then only that state of mind will suffice in order to procure a
conviction
 for those offences not specifying mental state, the courts have to infer what type of fault element is
required
 in order to explain the fault element of a criminal offence it is necessary to specify:
 the circumstances and consequences to which the fault element is directed – including the
relation to the actus reus of the offence
 typically mens rea is concerned with the results of the prohibited actus reus – e.g.; can’t
be guilty of assaulting a police officer unless the accused had the mens rea for assault and
the subjective knowledge that the person is an officer
 the courts have stopped short of declaring that people cannot be punished for the result
of their actions in the absence of a fault for those results
 the precise fault element required
 e.g.; not just that the mens rea for murder is subjective, but that the mens rea for murder
requires at least subjective knowledge that the victim would die
 many offences require more than one mental state to exist – e.g.; knowledge and intent
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 though not in all instances, but traditionally it is required that the fault element occur at the same
time as the commission of the prohibited act and that it relate to all parts of the prohibited act
(simultaneous principle)
 in murder cases, courts have been prepared to hold the accused guilty if the mental element was
present at any point of time during the transition that resulted in death (R v. Meli, R v. Cooper)
 parliament has deemed the fault of becoming extremely intoxicated to be sufficient for a
conviction of violent offences
 offences (especially regulatory) based on negligence are also a departure from the principle that
fault occur at the same time as the act – but the purpose of these offences is to prevent harm
before it occurs, so the departure from the simultaneous principle if necessary to achieve this
goal
 section 7 of the charter prevents the conviction of the morally innocent, which is why the courts
have been reluctant to constitutionalize subjective mens rea for all but the most serious crimes and
has relied on common law presumptions in favour of subjective mens rea in relation to all aspects of
the actus reus
 the defences of mistake of fact and intoxication depend on the fault element of the offence being
absent
 for specific intent offences, evidence that the accused was intoxicated can raise reasonable doubt
as to the required mental state
 but the court has clarified that the issue is the accused’s actual intent, not his capacity for the
intent
 if subjective awareness of a prohibited circumstance is required, and the accused honestly, but
not necessarily reasonably, believed the circumstances not to exist, then crown won’t be able to
establish fault; but where the fault element requires that a reasonable person would have
recognized the circumstances or risk, then the mistake of fact must be honest and reasonable
 mistake of fact will not be an issue in case of absolute liability offences
 courts were initially reluctant to accept mistake of fact defences; then they tended to accept
it if it was honest and reasonable
 with the rise of cases requiring some form of subjective mens rea, courts began to recognize
that an accused can have an honest, though not reasonable belief in the state of the
circumstances, making his actions innocent
 section 229(b) relates to transferred intent – whereby (in the case of causing death) the mens rea of
intentionally or knowingly causing death to one person is transferred to the death of the victim if in
carrying out the actus reus of causing death the actual/intended person leads to the death of the
victim even if the accused did not mean to cause the death or bodily harm to the victim and did so by
accident or mistake
 applies in the context of other offences, too
 there are important practical differences among the various forms of subjective mens rea: a person
may not have intent, but may have knowledge; a person may not have had the subjective knowledge,
but may be guilty of subjective recklessness or wilful blindness with regards to the result
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[pg 36]
 some offences require a mens rea that extends beyond the commission of the actus reus – e.g.;
attempted crimes – such offences can be referred to as ulterior intent offences because they require
an intent beyond the actus reus that is committed
 otherwise, generally speaking, the accused must have the very intention required by the relevant
provision
 the highest form of men rea is that which requires the accused to act with the intent or purpose to
achieve the prohibited result, or to wilfully pursue such a result – this high level of mens rea is used
relatively infrequently
 parliament will generally have to specifically words such as ‘with intent’ to require this high level
 the more marginal the accused’s involvement to the criminal offence, the higher the form of
subjective mens rea required – this is because there is a difference between guilty intent and
guilty knowledge (e.g.; cases where the accused knowingly engages in the prohibited conduct,
but does so for another purpose, such as to avoid harm)
 regardless, knowledge that something is very certain to occur, however, may be equated with
an intent or purpose – as intent and purpose shouldn’t be confused with motive and desire
 (R v. Buzzanga) as a general rule, a person who foresees that a consequence is certain from
an act which he does to achieve some other purpose, intends that result anyway
 a requirement that the accused wilfully achieve a prohibited result, such as purpose or intent,
imposes a high degree of subjective mens rea
 wilfully (as opposed to negligently or recklessly) if a relatively high level of mens rea stresses
intention in relation to the achievement of a purpose
 criminal law doesn’t require proof of a motive for a crime, so the argument that the accused had not
motive (or had an innocent motive) will not exonerate him if he has otherwise committed the crime
with guilty intent
 the mental element (mens rea) with which the court is concerned relates to intent (the exercise
of a free will to use particular means to produce a particular result) rather than with motive (that
which precedes and induces the exercise of the will); generally speaking, the mental element of a
crime involves no reference to motive (R v. Lewis) although motive can be difficult to distinguish
from intent
 good motive is no defence to intentional crimes – but it may be relevant to in sentencing
 R v. Vandergraaf (Man. C.A.) – [1994] MJ 503 – Manitoba Court of Appeal – throwing jar at hockey
rink
 Facts: threw a jar towards hockey rink ice in frustration over game; it hit the victim; trial judge
found intent to apply force in a general sense, which did happen, and convicted the accused
 Issues: did the accused intend to apply force in a general sense and cause the injury
 Held: appeal allowed and acquittal entered
 accused intended to throw object, but not to make contact with the victim with it; his conduct
was foolish and negligent, but the assault was not intended and he was not guilty
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 R v. Murray – [2000] OJ 2182 – Ontario Superior Court of Justice – Gravely J. – Bernardo lawyer
withheld tapes
 Facts: Bernardo’s lawyer, on Bernardo’s written instructions, attended at the Bernardo home
and removed videotapes that had significant evidence on it; the tapes weren’t handed over for
almost a year and a half later; Murray faced charge of attempt to obstruct justice by concealing
the tapes;
 Issues: by withholding the videotapes, did Murray intend to obstruct justice, and thus was the
withholding (since he did finally hand them over) equal to attempt to obstruct justice
 Held: found not guilty: Murray’s concealment had the tendency to obstruct justice; he knew that
permanently suppressing the tapes would, in fact, be an obstruction of justice; he may not have
intended to permanently suppress the tapes; he may have believed he had no obligation to
disclose the tapes before trial; there are reasonable doubts raised as to Murray’s intention to
obstruct justice
 “attempt” has its own mental element; “wilful attempt” suggests a double mens rea
 attempting to obstruct justice is construed as the doing of an act which has a tendency to
prefer or obstruct the course of justice
 wilfully, then, constitutes the mens rea – that is the act is done for the purpose of obstructing
the course of justice
 the actus reus issue is whether accused’s action in secreting the videotapes had a tendency to
obstruct the course of justice
 secreting the tapes had the tendency to obstruct the police in their duty to investigate Bernardo’s
crimes; it also influenced the way the new counsel for Bernardo approached the defence; it also
had the potential of depriving the jury of admissible evidence; in short, the concealment of the
tapes had the potential to infect all aspects of the criminal justice system
 although there is no obligation to help the police in an investigation, but taking positive steps to
conceal evidence is unlawful – Murray’s discussions about the tapes with Bernardo would be
covered, but not the actual tapes themselves, under the attorney-client privilege
 solicitor can retain evidence for examination and testing, but only for a reasonable time
 Murray knew it was unlawful to suppress the tapes, so then it can be inferred that by doing so, he
intended to obstruct the course of justice
 any argument towards attorney-client privilege fails because it is communication between the
two, and not evidence, that is protected under this doctrine
 there is no duty to hand over all evidence to the crown; just that it cannot be permanently
suppressed
 Murray stated he had planned to use the tapes in his defence case for Bernardo, and thus to
introduce them into evidence at such a time
 accused intended to hold the Bernardo tapes, but not for the purposes of obstructing justice
 R v. J.S.R. – [2008] ONCA 544 – Ontario Court of Appeal – Jane Creba
 Facts: shootout between three to five shooters broke out; three bystanders were wounded; Jane
Creba was fatally wounded; after a preliminary inquiry, the judge ordered the accused to stand
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trial on all accounts; the accused appealed the committal for trial on the murder charges; this was
granted by the motion judge on the basis that there was no evidence on which a jury, properly
instructed, could convict the accused, but was satisfied that there was evidence upon which a
jury could convict on the charge of manslaughter; the accused appealed that order as well on the
basis that the motion judge erred in holding that there was evidence upon which a jury could
conclude that the accused caused the victim’s death and so he could not be ordered to stand trial
for the manslaughter charge either; the court quashed the committal for trial on charges of
second degree murder; crown appealed
 Issues: was there evidence that the accused had the intention for second degree murder
 Held: crown appeal allowed, committal for trial on second degree murder restored; accused’s
appeal dismissed
 there was evidence upon which a reasonable trier of fact could make the finding that the
accused’s conduct, if proved, would meet the mental element required to justify the stigma of a
conviction of the charges laid out, that he intended to shoot into the crowd with the intent to kill
a human being (albeit those who he intended to kill – i.e.; those with whom he engaged in the
shootout – were not killed)
(b) Subjective Mens Rea with Objective Features
 some criminal offences use standards to define criminal conduct (e.g.; some assaults are sexual,
others are not; some acts are dishonest, others are not)
 it isn’t sensible to require that the accused have a subjective appreciation that the relevant criminal
standard has been violated before a conviction can be made out
 the broad distinction between the subjective and objective fault elements is that the subjective fault
element requires the accused subjectively having he required guilty knowledge in relation to the
specified consequences, and the objective fault element requires only that a reasonable person in
the accused’s position would have had the required guilty knowledge (or would have acted
differently)
 since people are usually able to foresee the consequences of their acts, in general, it’s reasonable to
assume that the accused also foresaw the probably consequences of his actions – and that if he still
went ahead and acted so as to bring about those consequences, then he intended them
 in many instances, the trier of facts must consider the evidence presented in the case so as to reveal
any peculiarities pertaining to the accused, and thusly acquit the accused if the evidence raises a
reasonable doubt that the accused, with all of his frailties, had the required subjective mental
element
 subjective mens rea operates to protect those who, due to impaired reasoning or thought processes,
do not recognize (and thus intend to bring about) consequences that would be obvious to the
reasonable person
 the purpose is to prevent the conviction of the morally innocent
 the exact difference between subjective and objective fault element will depend on the level of
subjective or objective mens rea required by the provision pertaining to the conduct in question, or
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in the case where the provision is silent on the topic, the mens rea required by common law in
relation to the conduct in question
 it is not necessary that a particular offence be completely subjective or objective – the mere fact that
most criminal offences require some subjective component does not mean that every element of
that offence requires such a state of mind
 and yet other offences (e.g.; sexual assault, and regulatory offences) provide that the accused’s
subjective belief is not a defence, it requires only the test of the reasonable person (i.e.; an objective
fault element)
 R v. Theroux – [1993] 2 SCR 5 – SCC – LaForest, Gonthier, Cory, McLachlin, Lamer, Sopinka,
L’Heureux-Dube JJ. – construction deposit fraud
 Facts: accused was the directing mind of a company; charged with fraud; entered into
agreements with individuals for the purchase of residences; deposits were taken on the basis of
false representation that the deposits were insured; there was no insurance; company became
insolvent; project wasn’t completed; most depositors lost their money; trial judge found accused,
as the directing mind of the company, was responsible for the misrepresentations – he knew the
deposits weren’t ensured, but he sincerely believed the project would go through; the trial judge
found that the offence of fraud was made out
 Issues: did accused’s honest belief that the project would be completed negate the mens rea of
the fraud
 Held: trial courts conviction affirmed
 the actus reus of fraud is determined objectively, by reference to what a reasonable person
would consider to be a dishonest act; the mens rea of the fraud is established by proof of the
subjective knowledge of the prohibited act having the possibility of depriving another of his
interests, or at least putting those interests at risk
 where the conduct and the knowledge are established, the accused is guilty regardless of
whether he actually intended that deprivation or was reckless to the deprivation occurring
 R v. Chase – [1987] 2 SCR 293 – SCC –
 Facts: entered victim’s home without permission; grabbed her breasts; tried to grab genitals, but
did not succeed; trial court convicted for sexual assault; court of appeal said that because there
was no contact with the genitals, the conviction for sexual assault should be set aside, and
convicted for assault instead
 Issues: did the conduct qualify for sexual assault
 Held: the appeal by the crown should be allowed
 sexual assault is committed in circumstances of a sexual nature whereby the sexual integrity of
the victim is violated – there was ample evidence before the trial judge for finding sexual assault
 the test to be applied in sexual assault cases is an objective one, in that to the reasonable
observer was there a sexual context to the assault; as such, the offense is one requiring a general
intent only
(c) Recklessness
[pg 62a]
 recklessness is a lower form of mens rea than intent, purpose, wilfulness, or knowledge
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 a person acts recklessly if he becomes aware of the risk, but still persists despite the risk – someone
who sees the risk and who takes the chance anyway
 recklessness requires the accused to act in spite of actually and personally foreseeing the risk that, if
goes through with the conduct, the prohibited consequence will be brought about
 it differs from negligence in that the accused doesn’t foresee the risk, but a reasonable person
would have recognized the risk
 recklessness will apply where the provision creates a consequence, but does not prescribe some
more limited form of mens rea
 the general mens rea required which suffices for most crimes where no mental element is mentioned
in the provision is either the intentional or reckless bringing about of the result which the law seeks
to prevent
 recklessness requires only subjective awareness of the risk of the prohibited act, as opposed to
knowledge of the likelihood of the prohibited act
 R v. Theroux – [1993] 2 SCR 5 – SCC – LaForest, Gonthier, Cory, McLachlin, Lamer, Sopinka,
L’Heureux-Dube JJ. – construction deposit fraud
 Facts: accused was the directing mind of a company; charged with fraud; entered into
agreements with individuals for the purchase of residences; deposits were taken on the basis of
false representation that the deposits were insured; there was no insurance; company became
insolvent; project wasn’t completed; most depositors lost their money; trial judge found accused,
as the directing mind of the company, was responsible for the misrepresentations – he knew the
deposits weren’t insured, but he sincerely believed the project would go through; the trial judge
found that the offence of fraud was made
 Issues: did accused’s act recklessly in handling the depositors’ funds
 Held: trial courts conviction affirmed
 if the victim’s interests are put at risk, even if the accused believes that the conduct is not wrong
or that no one will actually be caused harm, recklessness can be made out
 Regina v. Buzzanga and Durocher – 25 OR (2d) 705 – Ontario Court of Appeal – promoting hatred
against francophones
 Facts: charged with wilfully promoting hatred against an identifiable group by making statement
in handbills; francophones (which the accused identified with) were trying to get a French
language school built; the school board opposed the same; accused printed handbills but said it
was intended to be satire, in order to create a furor that would compel the government to act,
not with any intention to promote hatred; trial judge said ‘wilful’ meant intentional as oppose to
accidental and convicted; court of appeal ordered a new trial
 Issues: although they did not intend to promote hatred, did the accused recklessly do so
 Held: the trial judge erred in holding that wilfully means only intentional as opposed to
accidental
 wilfully may sometimes include recklessness as well as intention – the accused’s foresight that a
consequence is highly probably, as opposed to substantially certain, is not the same as intention;
but, generally, a person who foresees a consequence is probable or certain if an act carried out in
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order to achieve some other purpose, can be said to intend that consequence (even if regretfully)
in order to achieve his ultimate purpose
 what the accused intended or foresaw must be determined on a consideration of all the
circumstances, including their own evidence, as to what their state of mind or intention was – as
a general rule, a person who foresees that a consequence is certain from an act which he does to
achieve some other purpose, intends that result anyway
 R v. Vinokurov – [2001] AJ 612 – Alberta Court of Appeal – stolen goods sold to pawn shop
 Facts: accused was manager of a pawnshop; received stolen property from a customer; the
denied knowing that the items were stolen; he said he completed the paperwork and made
inquiries with his mother (who was the owner of the store) to determine whether he should
purchase the merchandise; the person who sold him the good was actually a released convict
who showed his parole card as identification (and was selling several watches and silverware type
goods)
 Issues: application of recklessness and wilful blindness with regards to stolen property
 Held: appeal dismissed, conviction affirmed
 wilful blindness is imputed knowledge, whereas recklessness is something less than that – wilful
blindness will suffice because it is the equivalent of actual knowledge, recklessness is not and,
accordingly ,is insufficient
 negligence is tested by the objective standard of the reasonable man; recklessness, to form a part
of criminal mens rea, must have an element of the subjective – it is found in the attitude of one
who, aware that there is danger that the conduct could bring about the result prohibited,
nevertheless persists, despite the risk; it is the conduct of one who sees the risk and who takes
the chance
 recklessness involves knowledge of a danger or risk and persistence in the course of action
anyway; wilful blindness arises where a person who has become aware of the need for some
inquiry does not do so because he does not wish to know the truth, preferring to remain ignorant
 recklessness is being conscious of the risk and proceeding in the face of it; wilful blindness is the
accused deliberately failing to inquire when he knows there is a reason for inquiry
 recklessness presupposes knowledge of the likelihood of the prohibited consequences; it has an
element of subjectiveness
 wilful blindness is narrower than recklessness; recklessness may include wilful blindness, but not
vice-versa
(d) Knowledge
 knowledge is a slightly lower form of subjective mens rea than intent or purpose
 a person may have guilty knowledge without necessarily desiring or having the motive (or even
intention
 the accused must generally know that the conditions of the actus reus exist – e.g.; can’t be convicted
of assaulting an officer if it wasn’t known that the victim was an officer
 knowledge is usually also essential in possession (i.e.; of narcotics) cases
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 generally, it’s unrealistic to except the crown to prove what the accused actually knows, it is
presumed that the accused knew of the relevant conditions, unless the accused presents a mistake of
fact defence
 knowledge is a subjective form of mens rea and a person who claims to ignore what a reasonable
person would know runs the risk of being found guilty – but still, the ultimate issue is the particular
accused’s actual knowledge, not what a reasonable person would know
 some provisions deem knowledge when the accused fails to take reasonable steps to determine
actual facts
 knowledge has two components:
 belief – which is relevant to the determination of subjective mens rea
 truth – an objective fact that is required to establish the actus reus (not the mens rea)
 R v. Ewanchuk – [1999] 1 SCR 330 – SCC – Lamer C.J., Cory, Iacobucci, Major, Bastarache, Binnie JJ. –
interview in a van leading to sexual assault
 Facts: victim was interviewed for a job in the accused’s van; she was hesitant, so left the van door
open; accused told her to come to trailer to see some of his work; she left the door open, but he
closed it (she thought he locked it, though he didn’t); accused touched victim several times
(getting more intimate each time) even though she kept saying no; victim said if she complied at
all it was out of fear and that the accused knew the same; trial judge acquitted based on implied
consent; court of appeal upheld acquittal
 Issues: was there consent; if not, did accused have knowledge thereof
 Held: appeal from acquittal by trial and appeal court should be allowed
 conviction for sexual assault requires that the accused committed the actus reus, and that he had
the necessary mens rea – the actus reus is unwanted sexual touching; the mens rea is the
intention to do so, knowing of lack of consent of the person being touched
 the absence of consent is purely subjective and determined by reference to the complainants
subjective internal state towards the touching at the time the touching occurred
 the trier of facts can either conclude that there was consent or that there wasn’t – no third
option, including no option of ‘implied consent’
 the trial judge erred when he concluded there was implied consent (as there can be no such
conclusion)
 consent must be freely given; even if the victim consent, but does so by reason of force, fear,
threat, fraud, then it is deemed to be an absence of consent – even if the fear is unreasonable
 the accused knew the victim was not consenting (at each encounter) – there was no consent,
since none was given, and the accused knew this – and he did not take any reasonable steps to
ascertain that she was consenting
 R v. Levigne – [2010] 2 SCR 3 – SCC –
 Facts: accused chatted for sexual purposes online with (an undercover officer pretending to be) a
13-year-old; he kept saying he wanted to have oral sex with the teen; they arranged to meet and
the accused was arrested and charged with luring a child; accused said he didn’t take any steps to
ensure the boy was an adult, but that he thought it was an adult pretending to be a boy because
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the profile had said he was 18 – even though he kept saying he was 13; trial judge acquitted
saying it was possible the accused believed he was dealing with an adult pretending to be a 13year-old; court of appeal overturned acquittal
 Issues: did the accused know that the other person was not underage
 Held: appeal by accused should be dismissed
 where it has been represented that the person with whom the accused is communicating is
underage, then the accused is presumed to have believed that the other person is underage –
unless there is evidence to the contrary that the accused took reasonable steps to learn the real
age of the other person
(e) Wilful Blindness
 wilful blindness is related to but distinct from recklessness – while recklessness involves knowledge
of a danger or risk and persistence in a course of conduct that creates the risk that the prohibited
result will occur, wilful blindness arises when a person who has become aware of the need for some
inquiry declines to make the inquiry because he does not want to know the truth, preferring to
remain ignorant
 where the accused is deliberately ignorant as a result of blinding himself to reality, the law presume
knowledge
 in order to be equated with knowledge, wilful blindness should require more than suspicion but
rather knowledge
 it’s not that the accused should have known, or should have normally known, but that the
circumstances were such that he was, in fact, suspicious and deliberately refrained from making the
inquiries so as to remain ignorant from the truth
 it is a subjective state of mind requiring that the accused actually sees the risk of a fact, but then
wilfully avoids confirmation so as to be able to deny knowledge
 wilful blindness can substitute for actual knowledge when knowledge is a component of the mens
rea of an offence
 R v. Currie – [1975] OJ 432 – Ontario Supreme Court – Court of Appeal – forged endorsement cheque
cashed
 Facts: accused present a cheque payable to Edward Gerada, with EG’s supposed endorsement on
the back of the cheque; it had actually been stolen, and the endorsement forged; when EG, who
was expecting the cheque reported to the police that he hadn’t gotten it, they arrested the
accused; accused said a man had come up to him asking him to cash the cheque for a fee; trial
judge didn’t reject this evidence but still registered a conviction saying that the accused was
wilfully blind as to the forged nature of the cheque; he should have made enquiries into the
cheque and he deliberately/knowingly neglected to do so, thereby making himself wilfully blind
to the situation; accused appealed
 Issues: was the accused wilfully blind in his behaviour
 Held: the appeal should be allowed, the conviction quashed, and an acquittal entered
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 the trial judge erred as to the doctrine of wilful blindness in applying it to this case – if a party has
his suspicion aroused but then deliberately omits to make further enquiries because he wishes to
remain ignorant, then he is deemed to have knowledge
 R v. Vinokurov – [2001] AJ 612 – Alberta Court of Appeal – stolen goods sold to pawn shop
 Facts: accused was manager of a pawnshop; received stolen property from a customer; the
denied knowing that the items were stolen; he said he completed the paperwork and made
inquiries with his mother (who was the owner of the store) to determine whether he should
purchase the merchandise; the person who sold him the good was actually a released convict
who showed his parole card as identification (and was selling several watches and silverware type
goods)
 Issues: application of recklessness and wilful blindness with regards to stolen property
 Held: appeal dismissed, conviction affirmed
 wilful blindness is fulfilled if a party’s suspicions are aroused, but then he deliberately does not
make any further enquiries in order to remain ignorant – he has knowledge, which he purposely
omits to turn into certain knowledge
 it is almost a case where he actually knew – he suspected the fact, realized it was probable,
but stopped short from confirming the same so as to deny knowledge
 he shuts his eyes to the (suspected) fact
 wilful blindness is imputed knowledge, whereas recklessness is something less than that – wilful
blindness will suffice because it is the equivalent of actual knowledge, recklessness is not and,
accordingly ,is insufficient
 recklessness involves knowledge of a danger or risk and persistence in the course of action
anyway; wilful blindness arises where a person who has become aware of the need for some
inquiry does not do so because he does not wish to know the truth, preferring to remain ignorant
 recklessness is being conscious of the risk and proceeding in the face of it; wilful blindness is the
accused deliberately failing to inquire when he knows there is a reason for inquiry
 wilful blindness is narrower than recklessness; recklessness may include wilful blindness, but not
vice-versa
 the test for wilful blindness is not objective; it’s not enough that the person ought to have
suspected, but that he did in fact suspect and refrained from confirming or denying that suspicion
 the elements for the test of wilful blindness: suspicion actually aroused – deliberately, but –
omits to make further inquiries – because he wishes to remain ignorant; actually suspects a fact,
and – realizes it’s probable – but then refrains from obtaining final confirmation – because he
wishes to be able to deny knowledge
 R v. Briscoe – [2010] SCC 13 – SCC – helped lure victim who was later raped and killed by another
 Facts: accused was charged jointly for kidnapping, aggravated sexual assault, and first degree
murder; he, Laboucan, and others lured victims into their car; L had said he wanted to find
someone to kill; accused rove them to a secluded area, and stood by and watched as victim was
raped and murdered; trial judge said accused didn’t know of L’s intention to commit each of
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those crimes and acquitted; court of appeal said trial judge erred in failing to consider accused’s
wilful blindness and overturned acquittal
 Issues: was the accused wilfully blind to the rape and murder
 Held: accused appeal from appeal court’s setting aside of the acquittal is dismissed
 it wasn’t required that the accused desired that the offences be successfully committed
 though he didn’t do the raping and murdering, in order to have the intention to assist in the
offence, he had to have known that the main perpetrator intended to commit the crimes, though
not precisely how
 the aider doesn’t have to have the same mens rea as the actual killer, but that he had the
knowledge of the killer’s intentions and acted with the intention to assist the killer, then if the
aider makes himself wilfully blind, knowledge can be substituted if his suspicion was aroused to
the point where there was a need for further inquiries, but deliberate choice not to make those
inquiries
 accused own statements suggest that he had strong, well-founded suspicion that someone
would be killed that night, and that he might have been wilfully blind to the kidnapping and
sexual assault
 wilful blindness can substitute for actual knowledge when knowledge is a component of the mens
rea of an offence
7. Objective Mens Rea and True Crimes
[pg 92]
 true crimes are criminal offences; as opposed to public welfare offences
 negligence is judged objectively according to what a reasonable person would know or understand,
or how a reasonable person would act
 some have argued that personalizing the reasonable person with the frailties and qualities of the
accused will make the objective standard more or less the subjective standard; but still, some
form of the accused’s personal traits have to be wound in with the reasonable person for the
principles of fundamental justice not to be violated and a morally innocent not to be punished
the
 the court has said that only personal characteristics of the accused that are relevant insofar as
the reasonable person is concerned would be those that establish an incapacity to appreciate the
nature and quality of the prohibited conduct and consequences (R v. Creighton)
 generally, the accused age or level of education or gender or experience or other such factors
that are not so extreme as to create such an incapacity will not be considered for the
reasonable person
 although the accused must live up to the standard of a reasonable person, that standard of
conduct could be determined on the basis of the accused’s own perception of the circumstances
– then the issue becomes whether the reasonable person in the same circumstances would have
been aware of the risk of the prohibited act
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 the purpose of examining these factors is not to determine that the accused had the subjective
mens rea, but rather to determine whether the accused conduct marked a departure from the
standards of the reasonable person
 criminal law responds to an ‘evil’ mind, and though careless people may be dangerous, they cannot
necessarily be said to be evil, which is why criminal law is not comfortable with objective fault – but
gradually the law has come to accept objective fault for some offences
 for some crimes, the consequences need not be brought about by negligence; it is enough of the
accused commits the offence, and the prohibited consequence was objectively foreseeable
 not just unreasonable conduct or simple negligence, but conduct that marks a departure from that of
the reasonable person is required when applying the standard of negligence to the criminal context
 the court has recognized that this marked departure standard is required under section 7 of the
charter (R v. Beatty)
 this is because when objective standards of fault are used for criminal offences, something more
than mere or simple negligence should be required
 for negligence, a marked departure from reasonable conduct is the standard
 for criminal negligence, a marked and significant departure from reasonable conduct is the
standard
 a strict liability offence requires the crown to prove the prohibited act beyond a reasonable doubt,
but then allows the accused to prove due diligence or absence of negligence on a balance of
probabilities – strict liability offences are part way between absolute liability and full mens rea
offences
 the blameworthiness of a strict liability is generally negligence; the crown doesn’t have to prove
negligence, instead, the accused can establish that he was not negligent
 these are generally regulatory offences – and regulatory offences are designed to encourage people
and corporations to take appropriate safeguards to avoid harmful results
 the reasonableness of the accused’s conduct is determined on the basis of the circumstances that a
reasonable person would have seen, and not what the accused actually perceived
 thus any mistake of fact would have to be reasonable and honest
 the burden to prove that the accused took reasonable steps is not unfair as the alternative is
absolute liability, whereby no defence is allowed at all – also, the accused, as participant in the
regulated activity, is in the best position to prove due diligence since he possesses the required
information to prove that he was not negligent and whether he exercised reasonable care
 due diligence requires more than passivity from the accused
 R v. Martineau – [1990] 2 SCR 633 – SCC – Dickson C.J., Lamer C.J., Wilson, Gonthier, Cory JJ. murder while committing robbery
 Facts: accused and friend set out armed knowing they were going to commit a crime; accused
thought it would only be break and enter; friend shot and killed two people after robbing them
and their house; accused was convicted of second degree murder; court of appeal held section
213(a) (crime committed during the execution of a predicate crime) of the code was inconsistent
with section 7 of the charter
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 Issues: was section 7 of the charter infringed
 Held: the appeal should be dismissed
 principles of fundamental justice require that conviction for murder be based on proof beyond
reasonable doubt of the subjective foresight of death – objective foreseeability of death is a
constitutional minimum for the definition of murder
 and the common law presumption is against convicting a person of a true crime without proof of
intent or recklessness
 in order for section 213(a) to apply, the offender must: cause death; cause death while
committing (or attempting) one of the specific intent crimes listed; intentionally inflict bodily
harm while committing one of the said offences; do so purposefully in order to carry out the
crime or allow for escape; the death must ensue from the bodily harm intentionally inflicted
 if these tests are met then no charter violation of section 7 takes place – the accused must
specifically intend to (and actually) commit the offence, and must specifically intend to (an
actually) inflict bodily harm while commit that offence
 R v. Creighton – [1993] 3 SCR 3 – SCC – L’Heureux-Dube, Gonthier, Cory, McLachlin JJ. – cocaine
death
 Facts: accused, another, and victim shared large quantity of alcohol and cocaine at victim’s
apartment; at one point accused injected victim with cocaine, and as a result, she went into
cardiac arrest; accused and the other tried to resuscitate her; when they couldn’t, the other
wanted to call emergency, but accused intimidated him not to; he cleaned the apartment of
fingerprints and left the victim to die; the other later called emergency but the victim had already
died; accused charged with manslaughter, but that since it was while trafficking drugs (when he
injected her), it fell under section 222(5)(a) (causing death by means of an unlawful act); accused
was convicted; court of appeal upheld conviction
 Issues: was there a section 7 charter violation by applying section 222(5)(a) of the code
 Held: the appeal should be dismissed, the section does not violate the charter
 test for mens rea of manslaughter while committing an unlawful act is objective foreseeability of
the risk of bodily harm that is not trivial – foreseeability of risk of death is not required
 that it is called manslaughter indicates that the killing is less blameworthy than murder
 the issue is what a reasonable prudent person would have done in the circumstances; in cases of
penal negligence, the first question is if the actus reus is established, in that the negligence
constituted a marked departure from the standards of the reasonable person in the
circumstances of the case, then the question is whether the mens rea is established
 it needs to be established that a reasonable person (endowed with the accused particular
capacities) in the same circumstances would have been aware that the likely consequences of his
unlawful conduct would create the risk of harm
 R v. Beatty – [2008] SCJ 5 – SCC – Bastarache, Deschamps, Abella, Charron, Rothstein JJ. – truck
driver fell asleep at the wheel
 Facts: charged with dangerous operation of motor vehicle causing death; his truck suddenly
crossed the divider into oncoming traffic; he had been driving properly prior to the accident with
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no evidence of speeding or vehicle failure or intoxicants; accused said he didn’t know what
happened, that he must have fallen asleep; trial judge acquitted on the basis that the few
seconds where he suddenly fell asleep did not support a marked departure from the standard of
care of a reasonably prudent driver; court of appeal found there was marked departure and set
aside acquittals and ordered new trials; accused appealed
 Issues: what constitutes marked departure from reasonable conduct
 Held: appeal allowed, acquittal restored
 required mens rea for negligent driving could only be found when there was a marked departure
from the standard of care expected of a reasonable person in the circumstances of the accused
 in this case there was no evidence of any deliberate intention to create a danger for other drivers
– there was a momentary lapse of attention, and that momentary act of negligence was
insufficient to support a finding of marked departure from the standard of care of a reasonably
prudent driver
 R v. DeSousa – [1992] 2 SCR 944 – SCC –
 Facts: accused was involved in a fight and a bystander was injured when a bottle thrown by him
broke against the wall; accused was charged with unlawfully causing bodily harm (section 269); at
outset of trial, accused claimed section 269 infringed section 7; trial judge granted the motion
and quashed the case; court of appeal overturned;
 Issues: in creating a criminal responsibility for causing bodily harm by way of unlawful conduct,
does section 269 contravene section 7 of the charter
 Held: section 269 does not violate section 7, the appeal should be dismissed
 in punishing unforeseen consequences, the law is not punishing the morally innocent, but rather
those who cause injury through avoidable unlawful action (i.e.; through negligence)
8. Regulatory Offences
 most offences are not criminal offences but rather regulatory offences and can be created by any
level of government – the punishment is usually fines, but may include imprisonment
 the primary purpose of regulatory offences is to deter risky behaviour and prevent harm before it
happens rather than to punish intrinsically wrongful and harmful behaviour – they emphasize the
protection of the public from the risk of harm and the regulatory interests of the modern state, as
opposed to the punishment of inherently wrongful and harmful conduct
 regulatory offences can be full mens rea offences just as true crimes are, but that required mens rea
has to be indicated by the legislature – otherwise they are presumed to be strict liability offences
(offences that can be committed by simple, non-penal negligence, with the accused bearing the
burden of proving an absence of negligence to avoid conviction)
 some regulatory offences operate as absolute liability offences that are committed whenever the
actus reus is proved
 an absolute liability offence requires the crown to prove the commission of a prohibited at beyond a
reasonable doubt, but does not require proof of a fault element
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 some argue that absolute liability offences can punish the morally innocent – but since these are
usually regulatory offences that don’t carry the same stigma as criminal offences
 although they offend the principles of fundamental justice, absolute liability offences will not
violate section 7 of the charter unless they threaten the accused’s right to life, liberty, and
security of the person
 in order to comply with the principles of fundamental justice, where there is an absolute
liability offence, imprisonment cannot be imposed – and that, generally, they be applied to
corporations the whom the principles of life, liberty, or the security of the person do not
apply
 a strict liability offence requires the crown to prove the prohibited act beyond a reasonable doubt,
but then allows the accused to prove due diligence or absence of negligence on a balance of
probabilities – strict liability offences are part way between absolute liability and full mens rea
offences
 the blameworthiness of a strict liability is generally negligence; the crown doesn’t have to prove
negligence, instead, the accused can establish that he was not negligent
 these are generally regulatory offences – and regulatory offences are designed to encourage people
and corporations to take appropriate safeguards to avoid harmful results
 the burden to prove that the accused took reasonable steps is not unfair as the alternative is
absolute liability, whereby no defence is allowed at all – also, the accused, as participant in the
regulated activity, is in the best position to prove due diligence since he possesses the required
information to prove that he was not negligent and whether he exercised reasonable care
 due diligence requires more than passivity from the accused
 vicarious liability occurs when the acts and faults of another person are attributed to the accused for
the purposes of determining liability – outside of civil law, (i.e.; in criminal law), courts tend to resist
this doctrine on the basis that criminal law regards a person as responsible for his own crimes only
 the principles of fundamental justice don’t recognize ascribing one person’s state of mind to
another
 an offence that bases the accused’s liability on the acts and faults of another may be found to be
an absolute liability offence that punishes an accused without fault
 R v. Sault Ste Marie (City) – [1978] 2 SCR 1299 – SCC – city hired out garbage disposal, caused
pollution
 Facts: city entered into an agreement with a company for disposal of garbage; material was
dumped and submerged into springs that lined the sides of the site of the disposal; pollution
resulted and company was convicted; city was also charged; trial judge dismissed charge against
city saying they had nothing to do with actual operations; on appeal by new trial, the judge found
that offence was of strict liability and convicted the city; divisional court set aside the charge
saying required mens rea was not found; court of appeal agreed that mens rea was required and
ordered a new trial
 Issues: should the city be held accountable, and should the crown have to prove beyond a
reasonable doubt
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 Held: appeal and cross-appeal should be dismissed
 while regulatory offences would be presumed to be offences of strict liability, they could also
require proof of fault if the legislature specifically provided for fault elements in the provision
 the correct approach in public welfare offences is to relieve the crown of the burden of proving
mens rea – though crown must prove that the prohibited act was committed
 (led the way for most regulatory offences to be interpreted as strict liability offences that require
the crown to prove the prohibited act, but then presume the existence of negligence unless the
accused can establish a defence of due diligence on a balance of probabilities)
 R v. Chapin – [1979] 2 SCR 121 – SCC – duck hunting in protected area
 Facts: accused went hunting with a friend on property on which her husband was part owner;
they got in position and got two ducks; conservation officer in the area had heard the shots and
investigated and found grain/bait laid out for the ducks (which was accepted that accused did not
know about), and arrested accused on charge of unlawfully hunting for migratory birds within
one-quarter mile of bait; justice of peace dismissed saying act was innocent due to reasonable
mistake of fact; county court allowed appeal on basis that offence was absolute liability offence;
court of appeal reversed on ground that mens rea is an ingredient of the offence charged; crown
appealed
 Issues: was this an offence requiring mens rea or an absolute liability offence
 Held: appeal should be dismissed
 the offence wasn’t a true offence, but rather a public welfare offense and not subject to full
mens rea, but rather fall into the category of strict liability and the accused may absolve himself
on proof that he took all care that a reasonable person would have in the circumstances
 Reference re Motor Vehicle Act (British Columbia) S 94(2) – [1985] 2 SCR 486 – imprisonment for
driving without a valid license
 Facts: BC Motor Vehicle Act provided for minimum periods of imprisonment for driving without a
valid driver’s licence or a suspended licence, and the offence was one of absolute liability as per
section 94(2) the act; court of appeal found the section to be of no force and effect as it was
inconsistent with section 7 of the charter; that decision was appealed
 Issues: is section 94(2) violate of section 7
 Held: the appeal should be dismissed
 absolute liability (in and of itself) does not offend section 7 of the charter unless it has the
potential to deprive life, liberty, or security of the person – the combination of imprisonment and
absolute liability violated section 7 (unless qualified by section 1)
 generally, no imprisonment may be imposed for an absolute liability offence, and an offence
punishable by imprisonment cannot be an absolute liability offence
 R v. Concoil Thermal Corp – 52 CR (3d) 188 – Supreme Court of Ontario – Court of Appeal –
occupational health and safety – machine guarding – cutting blade guard removed – whether foot
pedal constitutes ‘other device that prevents access to the moving part’ – interpretation of Regulation
under Occupational Health and Safety Act – Ont. Reg. 692, sx 28
 R v. Raham – [2010] OJ 1091 – Ontario Court of Appeal – stunt driving at 51 km over limit
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 Facts: accused was 51 km over speed limit; instead of charging with speeding, officer charged
with stunt driving which was punishable by fine, imprisonment, or both; accused argued that it
was absolute liability offence violating section 7 of the charter; justice of peace said it was strict
liability and convicted accused; in appeal, judge said it was absolute liability and acquitted; appeal
by crown
 Issues: was it a charge of strict liability or absolute liability
 Held: appeal allowed, acquittal set aside, new trial ordered
 appeal judge erred in holding that stunt driving was absolute liability offence and that due
diligence was not available thereto
 the offence was public welfare offence, and as such a strict liability offence - an absolute liability
offence cannot have imprisonment as a potential punishment (and would thus be of no force and
effect), but a strict liability offence can
 Levis (City) v. Tetreault and 2629-4490 Quebec Inc. – [2006] SCJ 12 – SCC  Facts: respondent company and respondent Tetreault are charged with operating a motor
vehicle without having paid either required registration fees, or fees to renew the driver’s license;
respondent raised defence of due diligence; superior court accepted the defence and acquitted;
court of appeal dismissed city’s appeal; city appealed to supreme court
 Issues: was there a defence of due diligence available and made out
 Held: appeals should be allowed
 although defences can be raised in strict liability cases, the court dismissed those defences in this
case
 the concept of due diligence is based on a citizen’s duty to take action to find out what his
obligations are; passive ignorance is not a valid defence – due diligence requires an active and
reasonable attempt to prevent the commission of the prohibited act
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[SECTION 3] – EXTENSIONS OF CRIMINAL LIABILITY
 provisions governing attempts and parties to a crime impose sanctions on those who don’t actually
commit the complete crime – there is a relatively high level of mens rea required for attempts and
parties
 the relatively high level of mens rea required generally limits these provisions to those who act
with guilty intent or knowledge
 the provisions for attempted crimes and participation in crimes apply to all criminal offences
constituting an important extensions of criminal liability
 society is justified in intervening and punishing people for their criminal intent or fault and
participation in crimes even if they do not commit the complete criminal act
9. Aiding and Abetting
 it’s not only a person who actually performs the actus reus (principle offender) who can be convicted
of the offence, so can those who aid (physically support or give some assistance in the commission of
the crime) or abet (encourage, instigate, promote, or procure the crime to be committed) the
accused to commit the offence
 a person who omits to do anything for the purposes noted above may be charged as a party
 the terms aiding and abetting are generally used together, though they are distinct
 in some cases, a person who aids and abets one offence can be convicted of an offence he did not
intent to aid or abet, provided that other offence was a foreseeable outcome of the offence he did
intend to aid or abet
 a person who either aids or abets an offence is a party to that offence and is generally guilty of the
same offence as the principle offender; and the crown doesn’t have to specify whether the accused is
guilty as the principal offender or as an aider and abettor
 however, limited participation in the crime may be a mitigating factor in sentencing
 section 21(1) parties to an offence – provides that everyone is a party to an offence who actually
commits it, or does or omits to do anything for the purpose of aiding any person to commit it, or
abets any person in committing it
 to be convicted as an aider or abettor the accused must not only assist step principal, but also intend
to do so (recklessness notwithstanding)
 section 21(1)(b) and (c) provides that those who assist the person committing the actual criminal
offence through aiding or abetting are guilty as parties of the same criminal offence as the person
who actually commits the crime – the actus reus includes the acts of assistance and encouragement,
but not mere presence, but the crown must also prove mens rea that the accused intentionally and
knowingly aided or abetted the offence
 that the accused acted or omitted to do anything for the purposes of aiding another person to
commit an offence
 it isn’t necessary that the aider or abettor know all the details of the crime committed; but that he
was aware of the types of crime to be committed and knew the circumstances necessary to do so will
suffice
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 the courts have indicated that an accused who forms an unlawful purpose doesn’t necessarily
have to desire it – that he act with the purpose of aiding and form an intention in common to
carry out an unlawful purpose should not be equated with either desire or motive – the mens rea
for aiding is not susceptible to being negated by duress (R v. Hibbert in reversal of R v. Paquette)
 the broad definitions of the prohibited act is counterbalanced by a requirement for high level of
mens rea
 the mens rea of aiding an offence requires the same intent necessary for the completed crime and
not just of attempt – the accused must have the fault element of the particular offence and must also
intend to aid and abet the commission of the particular offence (recklessness will not suffice)
 section 21(2) common intention – enlarges the scope of who is party to an offence beyond those
who knowingly aid or abet by providing that an accused who form an intention in common to
carry out an unlawful purpose with an accomplice is responsible for crimes that the accused
knew, or ought to have known, would be probable consequence of carrying out their common
purpose – in practice, this applied when the principal commits a crime beyond that which the
parties had intended to aid and abet, but that is still in the foreseeability of the original crime
intended
 the two fault elements required are that there be a formation of the common unlawful
purpose (the issue is the intent to carry out the purpose and not the desire and/or motive to
do so) ; and that there was either subjective knowledge or objective foresight that the
offence in question would be a probable consequence of carrying out the common purpose
 R v. Dunlop – [1979] 2 SCR 881 – SCC – Laskin C.J., Spence, Dickson, Estey JJ. – gang rape at
motorcycle club
 Facts: victim gang raped; she identified the accused as two of the men who attacked her;
accused denied saying they were present (delivering beer to the location) while the act was
happening and left after a few minutes; the accused were twice tried and convicted on charge of
rape
 Issues: do the accused’s’ actions amount to common intention
 Held: the appeals should be allowed
 the trial judge erred in charging with section 21(2) common intention when there was no
evidence that there was any common intention with those involved with the gang rape of the
victim
 a person is not guilty of aiding or abetting a rape merely because he is present at the scene and
does nothing to prevent it; one cannot be properly convicted of aiding and abetting in the
commission of acts which he does not know may be or are intended; also, if there is no evidence
of encouragement, then presence alone will not suffice to render him liable as an aider and
abettor – he is not, as a matter of law, an accomplice
 however, prior knowledge that the crime was going to be committed, or preventing the
victim from escaping or receiving assistance, can be submitted as evidence that presence at
the scene can be equated with aiding and abetting
 this is in line with criminal law’s reluctance to penalize omissions
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 accused did not render aid, assistance, or encouragement to the rape
 R v. Logan – [1990] 2 SCR 731 – SCC – Dickson C.J., Lamer C.J., Wilson, Gonthier, Cory JJ. – one
accomplice shooting and wounding a person while collectively carrying out a robbery
 Facts: during one of several robberies, a person was shot and injured; accused had boasted
about being involved in planning robberies; accused did not do the shooting, and denied there
was intention to shoot or that there had been any discussion with regards to using guns; trial
judge instructed jury that it was found that accused knew or ought to have known that someone
would probably shot with the intention of killing; trial court convicted for attempted murder;
court of appeal substituted conviction for robbery;
 Issues: did the accused have the required mens rea for attempted murder committed by an
accomplice
 Held: the appeal should be dismissed
 if a certain minimum degree of mens rea is required in order to convict for an offence, then that
minimum degree of mens rea is also required to convict a party to that offence – this encourages
people who participate to ensure that their accomplices don’t commit offences beyond their
planned unlawful purposes, making them more responsible for the actions of their accomplices
 although the ‘ought to have known’ principle may apply in other cases, in the case of murder and
attempted murder, where section 7 requires subjective (not objective) foresight of the
consequence, ‘ought to have known’ violates the principles of fundamental justice
 R v. Briscoe – [2010] SCC 13 – SCC – helped lure victim who was later raped and killed by another
 Facts: accused was charged jointly for kidnapping, aggravated sexual assault, and first degree
murder; he, Laboucan, and others lured victims into their car; L had said he wanted to find
someone to kill; accused rove them to a secluded area, and stood by and watched as victim was
raped and murdered; trial judge said accused didn’t know of L’s intention to commit each of
those crimes and acquitted; court of appeal said trial judge erred in failing to consider accused’s
wilful blindness and overturned acquittal
 Issues: was the accused party to the rape and murder
 Held: accused appeal from appeal court’s setting aside of the acquittal is dismissed
 the mens rea for section 21(1)(b) requires intent and knowledge – crown must prove that the
accused intended to assist the principal in the commission of the offence (it isn’t required that
the accused desired that the offences be successfully committed); in order to have the intent to
assist in the commission of the offence, the aider must know that he principal intends to commit
the crime (though not precisely how)
 though he didn’t do the raping and murdering, in order to have the intention to assist in the
offence, he had to have known that the main perpetrator intended to commit the crimes
 the aider doesn’t have to have the same mens rea as the actual killer, but that he had the
knowledge of the killer’s intentions and acted with the intention to assist the killer, he can said to
have aided and abetted
 accused own statements suggest that he had strong, well-founded suspicion that someone
would be killed that night, so he can be said to have the mens rea
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[pg 2]
 counsel includes procure, solicit, or incite
 a person who counsels or solicits the commission of a crime or is part of an agreement to commit a
crime may also be guilty of the crime of counselling or conspiracy, even if the complete crime was
never committed
 impossibility will not be a defence to counselling because society is intervening primarily to punish
criminal intent, not the completed crime
 section 464 where a person attempts to solicit another to commit a crime, and the second person is
unwilling to do so, that first person cannot be convicted of conspiracy, but rather the appropriate
charge would be counselling a crime that is not committed
 the person counselled doesn’t actually have to act on the solicitation or actually have any intention
to do so
 that the accused actively induced or advocated (and not just merely described) the commission of an
offence is sufficient actus reus
 if a person counselled does carry out the crime, then the person who counselled is guilty as a
party to the offence that is eventually committed
 subjective knowledge of the crime counselled and an actual intent (by the accused, not necessarily
the person being counselled) that the crime be performed – accused must intend the commission of
the offence, recklessness that it will be carried out is not sufficient
 mens rea of counselling includes not only an intent to commit the offence, but also knowingly
counselling a crime while aware o the unjustified risk that the offence may likely be committed as a
result of the counselling
 there should be an intent to commit the completed offence – because if the accused is being
punished merely for the intent, then the intent should be shown to be to commit the complete
offence
 section 22 whereby intentionally counselling an offence that is committed a person becomes party to
the offence and is punished as if he had committed the compete offence – and to every offence that
the other commits in consequence of the counselling that the person who counselled knew or ought
to have known was likely to be committed in consequence of the counselling (section 22(2))
 that the accused counselled (procured, solicited, incited) a crime, and that the crime was then
committed by the person counselled is the actus reus – it need not be committed in the same way as
was counselled, or even the same crime that was counselled, but it must be reasonably foreseeable
from the counselling
 however, in the case of murder, the minimal fault element of subjective foresight of death should
be met, otherwise section 7 of the charter will be violated in extending the liability to the person
who counselled
 section 22 requires less fault than section 464 because it constitutes a form of participation in the
completed crime, whereas counselling under section 464 is a form of inchoate liability that applies
when the crime counselled has not been committed
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 R v. Hamilton – [2005] 2 SCR 432 – SCC – McLachlin C.J., Bastarache, Binnie, LeBel, Deschamps, Fish
JJ. – sold software to generate credit card numbers
 Facts: accused sent teaser email for software that would enable the purchaser to general “valid”
credit card numbers; he made several sales; he was charged with counselling offences that were
not committed (including fraud); trial judge accepted evidence that accused was not actually
aware of the software’s workings and acquitted because the mens rea wasn’t proven; court of
appeal upheld
 Issues: did the accused have the mens rea for counselling fraud
 Held: appeal allowed on the basis of counselling fraud
 the actus reus of counselling is the deliberate encouragement or inducement of commission of an
offence – regardless of whether the person being counselled is actually persuaded to commit the
offence
 the mens rea consists of nothing less than an accompanying intent (or disregard) of the risk of the
offence counselled being committed – that he either knew it would be committed, or was aware
of the unjustified risk that it was likely to be committed
 the mens rea of counselling is generally made out from the actus reus of counselling
 it is not just that the accused know that there is a risk of the offence being committed, but that
there is a risk of the offence is likely to be committed (which is a higher standard than reckless
awareness of the possibility that an offence might be committed)
11. Attempts
 not all crimes need to be complete before an offence arises – the criminal law intervenes even
before the accused has committed the criminal act required for a completed crime – there is liability
for attempting to commit an offence
 section 24 prohibits attempts to commit criminal offences; a person who goes beyond mere
preparation can be convicted of attempt, even if the act does not amount to a moral wrong or social
mischief, and even if it might have been impossible for the complete crime to ever occur – but the
attempt is subject to less punishment than the actual crime
 section 24(1) impossibility will not be a defence to attempt because society is intervening primarily
to punish criminal intent, not the completed crime – it’s the fact that the accused had the mens rea
for the completed crime, took steps beyond mere preparation to complete the crime, and was
thwarted by circumstances over which he had no control
 that is, fact that an offence is legally impossible in the factual circumstances is no defence to an
attempt charge because it is the intent that is being punished and the intent is still there – but
trying to commit an act you believe is an offence when it is not actually an offence does not
amount to an offence
 there’s a bit of uncertainty insofar as determining when an accused’s actions will have gone beyond
mere preparation and whether an intent to commit the complete offence is required for all crimes –
since attempt provisions are driven by concerns about intent and not by social harm, the intent to
commit the complete offence should be established for all attempted crimes
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 the crown has to prove beyond a reasonable doubt that he accused had gone beyond mere
preparation to commit the offence
 because the actus reus will not include the completed crime, the mens rea is the most important
element of attempted crimes – the criminal element of the offence of attempt may lie solely in the
intent
 an intent to commit an offence is interpreted as the specific intent to commit the completed
offence
 but it must be the specified intent (and not knowledge) – e.g.; that the accused had knowledge that
the victim is likely to die is not sufficient mens rea for attempted murder, but rather that the accused
intended to kill the victim
 attempt requires a specific intent to carry out the crime even if the completed offence requires a
lesser intent
 the essence of attempt is the accused’s clear intent to commit the completed offence, so
recklessness or knowledge should not be made a basis for punishment for attempts
 an intent to commit the complete crime is required for attempt, whereas the knowledge or even
recklessness will be sufficient mens rea for most complete crimes
 section 24(2) states that it is a question of law whether an act or omission is not mere preparation to
commit the offence – each case must be determined on its own facts
 the distinction between preparation and attempt is a qualitative one, involving the relationship
between the nature and the quality of the act in question and the nature of the complete offence –
consideration must be given to the proximity of the act in question to what would have been the
completed offence, in terms of time, location, and the steps under the control of the accused
remaining to be accomplished
 however, a more remote the actus reus will be accepted if the intent is clear
 though an act beyond mere preparation is required, the emphasis for attempt is on the accused’s
intent – as such, abandonment (of completing the offence) may raise a reasonable doubt about
whether there is intent
 Section 23 provides a separate offence for receiving, comforting, or assisting a person (beyond
merely failing to inform the authorities about the person’s whereabouts) that is known to have been
a party to an offence for the purpose of enabling that person to escape is not a party to an offence,
but is punished under section 463 as if he had been guilty of an attempt of the crime that the person
assisted committed (even if the person that was assisted is not convicted of an offence)
 R v. Ancio – [1984] 1 SCR 225 – SCC – Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson JJ. –
estranged husband breaks in with sawed off shotgun
 Facts: respondent wanted to speak with his estranged wife and broke into her apartment
building with a sawed off shotgun; wife’s boyfriend went to investigate and threw a chair at
accused when he saw him; the gun went off but missed the boyfriend; trial judge found accused
had broken in with the intent to use the gun; court of appeal overturned conviction and ordered
new trial
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 Issues: is the mens rea of attempted murder limited to intention to cause death or to cause
bodily harm knowing it is likely to cause death, or whether it extends to the intention to do some
action that constitutes murder
 Held: the appeal should be dismissed
 the relevant mens rea for attempts may lie solely in the intent – the specific intent to obtain the
prohibited result
 the intent to commit the completed offence is the basic element of the offence of attempt
 the crime of intent developed as, and remains an offence separate from the completed offence –
although the actus reus and mens rea both still have to be proven, the mens rea is the more
important element
 R v. Deutsch – [1986] 2 SCR 2 – SCC – Beetz, McIntyre, Wilson, LeDain JJ. – interviewing for assistant,
telling them they needed to be able to have sex with clients
 Facts: accused placed an ad for an assistant;; undercover cop went in as applicant and recorded
interview; accused indicated that assistant would be expected to have sex with clients and
potential clients; and that for doing so, she could get as much as $100,000 annually; he did not
offer employment to the applicants; trial judge acquitted the counts of attempt to procure
female person to become a prostitute, and attempt to procure a female person to have illicit
intercourse with another person; court of appeal dismissed the appeal from acquittal on first
count, but allowed appeal with respect to the second count and ordered a new trial; accused
appealed
 Issues: did the accused’s acts constitute an attempt to procure rather than mere preparation
 Held: appeal should be dismissed
 the distinction between preparation and attempt has to be made out on the facts of a particular
case
 the distinction between preparation and attempt is a qualitative one, involving the relationship
between the nature and the quality of the act in question and the nature of the complete offence
– consideration must be given to the proximity of the act in question to what would have been
the completed offence, in terms of time, location, and the steps under the control of the accused
remaining to be accomplished
 however, a more remote the actus reus will be accepted if the intent is clear
 an act does not lose its quality as the actus reus of attempt because further acts were required or
because a significant period of time may have elapsed before the completion of the offence
 when the attempt proceeds far enough to constitute a crime – the distinction between
preparation and attempt is a qualitative one, involving the relationship between the nature and
the quality of the act in question and the nature of the complete offence
 by holding out large financial awards in the interview, the accused had gone beyond mere
preparation, even though no formal job offer was made and the ‘prostitution’ would happen in
the future (all that was left to do was make a formal offer of employment)
 R v. Dery – [2006] SCJ 53 – SCC – attempt to conspire
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 Facts: charged with conspiring to commit theft and posses stolen liquor; trial judge found no
agreement had been established an acquitted of conspiracy, but finding the actions more than
mere preparatory to conspire, judge convicted them of attempting to conspire; court of appeal
affirmed conviction; accused appealed
 Issues: was there attempt to conspire
 Held: appeal allowed; conviction should be set aside and acquittal entered
 an attempt to conspire to commit an offence is not an offence under the law
 conspiracy is essentially a crime of intention, so it is difficult to have the intent to intend
something
 an attempt to conspire amounts, at best, to a risk that a risk will materialize
12. Corporate and Association Liability
 corporations can’t claim section 7 charter rights as they have no rights to life, liberty, or security o
the person
 corporations are liable for the acts of their agents for strict and absolute liability offences – since
these offences require only actus reus, mens rea is not ascribed to the corporations, and corporate
liability provisions don’t apply to regulatory offences
 a corporation is convicted for performing a regulated activity without a license or for failing to take
specified safety precautions not because such non-compliance must be denounced and punished,
but because it frustrates the regulatory ambitions of the modern state and creates a danger of harm
 until recently, only the fault of the directing mind of the corporation could be attributed to the
corporation for the purposes of establishing its criminal liability – which made it difficult to hold
corporations criminally accountable
 at the end of 2003, through Bill C-45, parliament introduced new statutory provisions for corporate
criminal liability – there were extensive reforms designed to make it easier to convict and punish
corporations and other organizations for criminal offences
 earlier, the directing mind (restricted to those who had enough power to establish corporate
policy) was replaced with the concept of a corporate senior officer, including those who are
responsible for managing an important aspect of the organization’s activities – and it can be more
than one person
 courts weren’t just allowed to simply fine corporations, but also place them on probation in an
attempt to ensure that the offences were not repeated
 it provided for separate provisions for determining organizational liability for criminal offences of
negligence and for criminal offences of subjective fault
 it applied to corporations, public bodies, body corporate, societies, companies firms,
partnerships, trade unions, and municipalities – all of these entities are not natural persons who
enjoy section 7 protection
 also applies to less formal associations that are created for a common purpose, have an
operational structure, and hold themselves out to the public as an association
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 the prohibited act (actus reus) must be committed by one or more of the organization’s
representatives – including directors, partners, employees, and also agents ad contractors
 the mens rea for the offence must be found in a senior officer of the organization – a
representative who plays an important role in the establishment of the organization’s policies or
is responsible for managing an important aspect of the organization’s activities
 this concept is limited to managers and not mere employees
 section 22.1 applies to objective fault (negligence) offences where an organization is charged – as
per section 22.1 offences where an organization is charged) a marked departure from a standard
of reasonable care is required for organizational fault for negligence offences to be found
 section 22.1(a) requires that the representatives of the organization commit the prohibited
act
 they have to be acting in the scope of their authority
 multiple representatives of the organization may cumulatively be held responsible for the
commission of the prohibited act – section 22.1(a)(ii)
 section 22.1(b) requires that senior officers of the organization have the fault of departing
markedly from the standard of care that could reasonably be expected to prevent a
representative from being party to the offence
 thought it’s not that the senior officer necessarily know that the representative was
committing the offence
 this suggests that organizations should establish systems designed to prevent their
representatives from committing offences based on negligence
 multiple senior officers can have the fault element for the commission of the prohibited act
 criminal offences under section 22.1 must be based on a marked departure from the standard
of care and the crown must prove beyond a reasonable doubt that senior officers had this
fault whereas it is the accused corporation who must demonstrate that it took all reasonable
steps to prevent the prohibited act from occurring when the offence is a regulatory offence of
strict liability or simple negligence
 section 22.2 applies to subjective mens rea offences charged against an organization – section
22.2 applies to organizational liability for all criminal offences other than those based on
negligence – where there is a subjective intent offence
 the section contemplates subjective intent offences being committed by senior officers acting
on their own within the scope of their authority; senior officers directing representatives so
that they commit the offence; or senior officers knowing that representatives are or will
commit offences but failing to take all reasonable measures to stop them from doing so
 where the officer is a party to the offence, it must be that he was acting within the scope
of his authority and have the intent to at least benefit the organization in part
 the senior officer doesn’t necessarily have to be the person who actually commits the
offence, all that is required is that he be a party to the offence
 the section is also attracted when the officer directs other representatives to so that they
commit an offence, as long as it is within the scope of the officer’s authority, directing
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them in such a way so as to direct them in such a manner that they commit the prohibited
act or omission
 the officer must have the mental state required to be a party to the offence
 when a senior officer knows that a representative of the organization is, or is about to, be
a party to the offence, but fails to take all reasonable measures to stop that
representative from being a party to the offense, the corporation can be held liable
 this is more in line with regulatory offences and not criminal offences – related to the
defence of due diligence
 it doesn’t contemplate fault based on collective or aggregate fault of multiple senior officers
 instead of holding corporations vicariously liable for the mens rea offences of their employees, courts
identified the corporation with a senior official and attributed the fault element of that person to the
corporation for the purposes of determining the corporation’s liability for an offence
 as such ,the corporation is only liable for what is done by the directing mind and will of the
corporation so that the corporation has primary, not vicarious liability for the acts and minds of
an official who is a directing mind of the corporation
 a corporation can’t insulate itself from the crimes committed by a directing mind by claiming
ignorance
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[SECTION 4] – SELECT CRIMINAL DEFENCES
 even if the crown proves that he accused committed the prohibited act having the required fault
element, the accused may still avoid conviction by raising a relevant defence
 mistake of fact and intoxication aren’t defences, but rather conditions that can raise a doubt as to
the mental element
 other defences may excuse or justify the conduct, even if the fault element was present
 specific intent offences require complicated mental processes that go beyond the immediate
commission of the act (i.e.; offences that require premeditation) – general intent offences only
require that the accused had fault in relation to the commission of the immediate act
 most defences put forth will have to pass the air of reality test before the jury is instructed on them
(i.e.; that there is evidence upon which a properly instructed jury could find that the accused acted
involuntarily on a balance of probabilities) – the judge shouldn’t actually weight the evidence or
judge its credibility (he should leave that to the jury), he should just see whether there has been any
evidence presented upon which a reasonable trier of fact, properly instructed, could conclude that
the defence was established
 many defences require the accused to have acted in a reasonable fashion – the criminal law generally
excuses crimes committed in response to threats and dire circumstances only if a reasonable person
in the accused’s circumstances would have committed the crime
 unlike with objective fault elements, the trend is to consider the accused’s own experiences and
characteristics when applying the objective standard to defences such as provocation, self
defence, duress, and necessity – this provides a more generous defence that is sensitive to the
particular experiences and frailties of the accused (but blurs the line between objective and
subjective standards)
 a person acts in a morally involuntary manner if any reasonable person in the same circumstances
with eh same characteristics would have committed the offence; and to convict such a person (one
who acts in a morally involuntary manner because of external pressures) offends section 7 of the
charter
 restrictions on a defence may violate the principles of fundamental justice protected under section 7
except where the defence is inconsistent with the very purpose of the offence (e.g.; intoxication
cannot be a defence for impaired driving)
13. Mental Disorder
[pg 2]
 accused has to establish the defence on a balance of probabilities
 the rules governing the insanity defence are derived from the 1843 decision of the House of Lords in
the M’Naghten Case (House of Lords) – the insanity defence is available if it was clearly proved that,
at the time of committing the act, the accused was labouring under such a defect of reason, from
disease of the mind, so as to not know the nature and quality of the act he was doing, or if he did
know it, that he did not know that what he was doing was wrong
 the rules were embodied in the code in 1892 with some variations – replacing “know” in the
verdict with “appreciate” the nature and quality of the act
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 in 1992 the insanity defence was renamed the mental disorder defence – and a verdict of not
guilty by reason of insanity was renamed not criminally responsible by reason of mental disorder
 applies to accused who commit criminal acts, but who cannot be found criminally responsible
because their mental processes were impaired – the verdict isn’t a pure acquittal, but rather a verdict
of not criminally responsible on account of mental disorder (what used to be called not guilty by
reason of insanity)
 although the person won’t be convicted if the defence is proved, they may be detained and
examined to protect the public from a significant threat of danger
 section 16(1) applies to those who, because of a mental disorder, can’t appreciate the physical
consequences of the prohibited act they commit, or know that it is legally or morally wrong
 the courts have not extended the defence to those incapable of appreciating the emotional or
penal consequences of their actions – even if the same was caused by a mental disorder
 the ability to appreciate the nature and quality of an act involves more than knowledge or
recognition that the act is being committed; it includes the capacity to measure and foresee the
consequences of the conduct
 appreciation of the nature and quality of the act does not import a requirement that the act be
accompanied by appropriate feelings about the act or the
 inability to appreciate the penal consequences of an act does not qualify either
 an accused would have an insanity defence only if a mental disorder prevented him from
appreciating the physical, as opposed to the moral, consequences of the act
 mental disorder defence applies to an accused who, at the time the offence was committed, suffered
from a mental disorder – however, it’s possible that that person will continue to suffer from that
condition at the time of trial and thereby be found unfit to stand trial
 it can also be the case that a person who was sane at the time of the offence, might subsequently
suffer a mental disorder that would make him unfit to stand trial
 section 672.23(1) allows the court on its own motion, or an application from either party, to
determine if an accused is fit to be tried
 a person is generally presumed to be fit to stand trial, and unfitness has to be proven on a
balance of probabilities
 the judge can choose to postpone the hearing for whether someone is unfit to stand trial until
after the crown has made its case (since it is possible that the crown may not be able to prove its
case at all) and make a decision if and when the accused has been found not to be entitled to an
acquittal or a discharge
 if the accused is found not fit to stand trial, the crown has to establish a prima facie case every
two years until the accused is either fit for trial or is acquitted because the case cannot be
established prima facie
 in a case where an accused is not likely to ever become fit to stand trial, but also does not pose a
significant threat to the safety of the public, the court can enter a stay of proceedings so as to not
violate section 7 of the charter
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 the focus is on the accused’s capacity for rational choice about the particular criminal act at the time
the act was committed, not his general intellectual ability to know right from wrong
 a person is presumed not to suffer form a mental disorder so as to exempt him from criminal
responsibility, and the party who raises this issue must prove it on a balance of probabilities (section
16(2) and 16(3))
 this may violate section 11(d) of the Charter because it allows the conviction of an accused in
spite of a reasonable doubt as to the guilt of the accused by way of a factor essential for guilt
(i.e.; sanity), but it is justified under section 1 due to the difficulties the crown would have in
proving beyond a reasonable doubt that an accused was sane (R v. Chaulk)
 if the accused is detained because he is unfit to stand trial, or because at the end of the trial he was
found not criminally responsible on account of mental disorder, then a review board of a judge and
two mental health professionals is required to hold a disposition hearing so as to absolutely
discharge the accused absolutely if he is not a significant threat to the safety of the public
 if an absolute discharge isn’t warranted, then under section 672.54 the review board should
impose the least restrictive conditions on the accused that would still be compatible with public
safety
 detention and/or conditions are subject to yearly reviews by the review board
 in order for the defence to apply, the accused must suffer from a disease of the mind, or a mental
disorder
 if the accused doesn’t suffer from a mental disorder, then it’s not enough that he is unable to
appreciate the nature and quality of an act or to know that it is wrong
 and the disorder suffered from must be severe enough to render the person incapable of
appreciating the nature and quality of the act or to know that it is wrong
 the danger of recurrence is a key policy factor in determining whether a particular condition qualifies
as a disease of the mind; however, an absence of recurrence doesn’t necessarily exclude the finding
of mental disorder
 recurrence is also a concern with need to protect public safety and to treat and rehabilitate the
accused
 comparing how the accused reacted with how a normal person would have acted in similar
circumstances is motivated by concerns about public safety
 the existence of a continuing danger or an internal cause are factors that suggest the accused may
have a mental disorder – their absence doesn’t mean an accused wont’ be classified as having a
disease of the mind
 transitory states will not qualify as a disease of the mind, but chronic conditions may - because those
who are subject to a one-time mental disturbance caused by a blow to the head or an extreme
trauma because of external factors should not be subject to the same type of detention or conditions
as a person who ‘regularly’ suffer from mental disturbance
 in such cases (i.e. cases of transient mental disturbance), the disassociate state is not likely to
recur
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 insofar as organic conditions (e.g.; diabetes, epilepsy) that produces the disassociative state, the
focus should be on whether the cause of the state, and the state itself is likely to recur and present a
continuing danger – the ultimate question is whether the public requires protection through
detention or conditions imposed
 though someone may not be able to avail the mental disorder defence, it could be the case that the
issues raised for the defence can raise doubts about some forms of mens rea – as such, the evidence
put forth for the mental disorder should not be disregarded if the defence of insanity fails
 R v. Cooper – [1980] 1 SCR 1149 – SCC – Laskin C.J., Dickson, Beetz, Estey, McIntyre JJ. – definition of
mental disorder, and the significance of the concept of “appreciates” has been modified by Parks –
mental out-patient having killed mental in-patient at a hospital
 Facts: accused was out-patient at psychiatric hospital, victim in-patient; accused tried to have sex
with her after a party at the hospital; but then choked her to death; defence of insanity wasn’t
raised, but evidence was called in to establish that he did not have the capacity to form the
intention to kill; expert witness said he didn’t think accused was suffering from disease of the
mind; trial judge charged jury with issue of insanity; jury found him guilty; court of appeal
dismissed appeal; appealed again to supreme court
 Issues: did the accused appreciate his actions, and thus have the capacity to form the intention
to kill
 Held: the appeal should be allowed
 in order for the accused to be able to appreciate the nature of his conduct, it is more than that he
know (i.e.; have a cognition) thereof
 disease of the mind is an illness, disorder or abnormal condition that impairs the mind and its
functioning, excluding however, self-induced states caused by alcohol or drugs, as well as
transitory mental states such as hysteria or concussion because those subject to a one-time
mental disturbance caused by a blow to the head or an extreme trauma because of external
factors should not be subject to the same type of detention or conditions as a person who
‘regularly’ suffer from mental disturbance
 R v. Kjeldson – [1981] 2 SCR 617 – SCC – how the defence applies to sociopathic or psychopathic
offenders
 Facts: accused’s only defence was insanity; evidence revealed he was a psychopath, who was
indifferent to, but understood the physical nature and consequences of his acts; trial judge
instructed jury that psychopathy could be a disease of the mind, and on the meaning of the word
“appreciate” for the section 16 defence; jury convicted; court of appeal dismissed appeal;
accused appealed to supreme court
 Issues: how does “appreciate” apply to psychopaths
 Held: the appeal should be dismissed
 a person appreciates the nature and quality of an act if he knows what he is doing and is aware of
the physical consequences will result from his acts
 R v Oommen – [1994] 2 SCR 507 – SCC – edifies about the meaning of “wrong” – killed victim because
he thought victim was conspiring with others to destroy (and kill) him
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 Facts: accused killed friend who was sleeping in his apartment; apparently no motive; he had
been suffering from paranoia for a number of years; at the time of the killing, his paranoia was
fixed on conspiracy to destroy him; this delusion combined with his belief that victim was one of
the conspirators, made him kill the victim to prevent victim from killing him; raised insanity
defence; expert witness testified that accused had capacity to distinguish right from wrong, but
the night of the murder deprived him of the capacity and made him believe the killing was
necessary/justified; trial judge rejected insanity and saying there was general capacity to know
right from wrong; court of appeal allowed appeal and ordered new trial; crown appealed
 Issues: does general capability to know right from wrong override deprived capability at time of
offence
 Held: crown’s appeal should be dismissed
 the insanity defence would not apply to a psychopath or a person following a deviant moral code
if such a person is capable of knowing that his or her acts are wrong in the eyes of society, and
despite such knowledge, chooses to commit them anyway
 it isn’t just the ability to know right from wrong, but also the ability to apply that knowledge to
the offence
 if at the time of the act, a mental disorder deprived him of that ability, then section 16(1) may
apply
 R v. Parks – [1992] 2 SCR 871 – SCC – LaForest, L’Heureux-Dube, Gonthier JJ. – sleepwalking murder
 Facts: accused attacked parents-in-law, killing one; he drove to their house to do so; after the
incident, drove to a police station and told them what he had done; had history of deep sleep and
trouble walking up, as well as several family members suffered from sleepwalking issues; claimed
he was sleepwalking and presented defence of automatism; was charged with first degree
murder ,and attempted murder; trial jury acquitted; judge acquitted of attempted murder; court
of appeal upheld; crown appealed
 Issues: should sleepwalking be classified as non-insane automatism (and thus lead to acquittal),
or a disease of the mind (insane automatism), and thus lead to the verdict of not guilty by reason
of insanity
 Held: the appeal should be dismissed
 disease of the mind is a legal concept, so medical opinion cannot be relied on blindly – a
condition likely to present recurring danger should be treated as insanity and/or a condition
stemming from the internal make-up of the accused, rather than external factors, should lead
to a finding of insanity
 the distinction between internal and external causes is blurred during sleep because one who is
awake has different perceptions than one who is asleep
 sleepwalking is not a disease of the mind, so that a person rendered unconscious by this
conditioned is entitled to a complete acquittal, rather than possible detention as a person found
not guilty by reason of insanity – though the condition might fall within the broad contours of an
illness of abnormal conditions that impairs the human mind, it will not necessarily be classified as
a disease of the mind
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14. Voluntary Acts “Negativing” the Actus Reus and Automatism
 generally, a person who commits a prohibited act while asleep or having a seizure will not have the
required fault element – voluntariness is a major requirement for the actus reus
 generally, the actus reus has its own mental element – that the actus must be the voluntary at of the
accused
 people should only be punished if they act as autonomous and freely choosing agents
 automatism is a legal term that refers to unconscious or involuntary behaviour – though a person is
capable of action, he is not conscious of what he is doing (the mind does not go with what is being
done)
 reserved to those unusual cases where there appears to be some disconnect between the actions of
the accused and his conscious will
 applies to accused who commit criminal acts, but who cannot be found criminally responsible
because their mental processes were impaired resulting in involuntary behaviour
 automatism refers to involuntary behaviour that may cast a doubt on the fault element (or even the
actus reus, in some cases) of an offence
 automatism is related to the mental disorder defence because both involve conditions in which the
accused cannot be held criminally responsible for his or her actions owing to a lack of mental
capacity – however, if the automatism is caused by a mental disorder, the accused will be held not
criminally responsible by reason of mental disorder – and can be subject to detention in order to
protect the public from the threat of danger
 if the automatism is caused by a factor that is not mental disorder, the accused can be acquitted
 automatism has to be established on a balance of probabilities
 most cases of automatism will be classified as caused by mental disorder (unless accused can
prove otherwise on a balance of probabilities) in an attempt to maximize the protection of the
public
 when deciding on cases of automatism caused by emotional blows, courts have said that an accused
would only have a defence of non-insane automatism if he went into an automatic state because of
an extraordinary event – an event that might reasonably be presumed to effect the average normal
person in a similar manner – otherwise, if the automatism is proved, it would be insane automatism
(R v. Rabey)
 with organic conditions like epilepsy, diabetes, sleepwalking, etc., these internal causes may explain
why the accused acted in an involuntary manner, however they are just one factor, and not in and of
themselves the finally say, in determining whether the accused should be classified as having a
mental disorder
 in the case of automatism produced solely by drunkenness, only the defence of drunkenness, which
is limited to crimes of specific intent, will be left to the jury
 R v. Swaby – [2001] OJ 2390 – Ontario Court of Appeal – occupying a car with an unregistered
weapon
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 Facts: cops stopped accused’s car in which W was a passenger; W ran into nearby backyard;
accused drove off; police found an unregistered gun in the backyard; accused testified that he
had no knowledge of the gun, and that he drove to and stopped the car where W told him to,
driving off after W ran from the car, that he only learned of the gun after they were arrested;
accused was convicted of being an occupant of a vehicle knowing there was a restricted weapon;
he appealed
 Issues: did the accused act voluntarily when occupying the car with an unregistered weapon
 Held: appeal allowed, conviction set aside, new trial ordered
 crown had to prove that the occupancy of the car and the knowledge of the weapon coincided so
as to amount to voluntary conduct by the accused – however, one can’t be immediately guilty
upon knowledge (especially when taking into consideration that the occupancy happened to be
in a moving car); the conduct of the driver following the knowledge that counts
 R v. Parks – [1992] 2 SCR 871 – SCC – LaForest, L’Heureux-Dube, Gonthier JJ. – sleepwalking murder
 Facts: accused attacked parents-in-law, killing one; he drove to their house to do so; after the
incident, drove to a police station and told them what he had done; had history of deep sleep and
trouble walking up, as well as several family members suffered from sleepwalking issues; claimed
he was sleepwalking and presented defence of automatism; was charged with first degree
murder ,and attempted murder; trial jury acquitted; judge acquitted of attempted murder; court
of appeal upheld; crown appealed
 Issues: should sleepwalking be classified as non-insane automatism (and thus lead to acquittal),
or a disease of the mind (insane automatism), and thus give rise to the verdict of not guilty by
reason of insanity
 Held: the appeal should be dismissed
 the judge erred in not instructed the jury on the defence of insanity because there was
uncontradicted evidence that sleepwalking is not a neurological, psychiatric, or other illness, but
rather a sleep disorder from which there is no medical treatment
 an involuntary act, including one committed in an automatistic state entitles an accused to an
acquittal – unless the automatistic state stems from a disease of the mind that has rendered the
accused insane
 R v. Stone – [1999] 2 SCR 290 – SCC – L’Heureux-Dube, Gonthier, Cory, McLachlin, Bastarache JJ. –
stabbing wife 47 times after a ‘whooshing’ feeling
 Facts: accused stabbed wife 47 times; claimed it was in automatistic state brought on by her
insulting him; he said he felt a ‘whoosh’ sensation wash over didn’t know what happened until he
saw his wife lying dead; he disposed of the body, cleaned up, drove home, left a note for his
daughter, went to a hotel, collected a debt, sold a car, and flew to Mexico; he returned to Canada
six weeks later to surrender; he claimed insane automatism, non-insane automatism, lack of
intent, and provocation; trial judge found air of reality to insane automatism and accordingly
instructed jury; accused was found guilty of manslaughter; court of appeal upheld; accused
appealed to supreme court
 Issues: was the judge justified in not instructing the jury on the defence
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 Held: accused’s appeal from conviction should be dismissed
 judge is justified in not instructing jury on the defence because there was no evidence upon
which a properly instructed jury could find that the accused acting involuntarily on a balance of
probabilities
 if there is a continuing danger of recurrence, a public safety approach should be taken
 when determining automatism, it may be that the accused may not necessarily be unconscious,
but that his consciousness is so impaired that he has no voluntary control over his actions
 automatism will be presumed to be caused by mental disorder unless the accused can establish
otherwise
 subject to the mental disorder defence, an accused should be acquitted if he a acted in an
involuntary manner
 R v. Fontaine – [2004] 1 SCR 702 – SCC – paranoid mechanic killed co-worker
 Facts: accused received a call from R saying that they were coming to get him; he later heard
from a co-worker that the victim had been offered a contract to kill him; one night he thought he
saw R outside his home, and called his co-worker over; they smoked marijuana; accused thought
he heard something breaking in and fired shots; he saw the victim at his work the next day and
shot and killed him; pleaded mental disorder automatism; experts gave evidence; judge refused
to put defence to the jury; accused was convicted; appeal court quashed the conviction and
ordered a new trial; crown appealed
 Issues: should the defence of mental disorder automatism been put the jury
 Held: crown’s appeal should be dismissed
 judge erred in not putting the defence of mental disorder automatism to the jury
 judge simply decides whether the evidence upon which a properly instructed jury could
reasonably decide the issue, he does not evaluate the quality, weight, or reliability thereof – that
is for the jury to do
15. Simple Intoxication
 the rules governing the intoxication defence are derived from the 1920 House of Lords’ decision in
D.P.P. v Beard whereby: intoxication can be a ground for insanity if it produced a disease of the
mind; that evidence of drunkenness should be taken into consideration in order to determine
whether he had intent; the presumption that a man intents the natural consequences of his acts is
not rebutted if the drunkenness fell short of a proved incapacity to form the intent necessary to
constitute the crime (i.e. it merely affected his mind so that he was more readily gave way to some
violent passion
 this case helped to establish the distinction between crimes of specific and general intent
 specific intent offences – intention as applied to acts done with the specific and ulterior motive
and intention of furthering or achieving an illegal object
 these acts are the product of preconception and deliberate steps taken towards an illegal goal
 general intent – intention as applied to acts done to achieve an immediate end
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 these acts are done intentionally, and not in the sense that they are done by accident, or
through honest mistake
 generally, if an accused’s voluntary intoxication prevents a conviction for a specific intent offence,
the accused will normally still be convicted of a less serious general intent offence
 applies to accused who commit criminal acts, but who cannot be found criminally responsible
because their mental processes were impaired
 intoxication isn’t a defence, but rather a condition that can raise a doubt as to the mental element –
it doesn’t operate as a justification or excuse for criminal conduct
 it operates only if proof of the intoxication helps create a reasonable doubt over whether the
accused formed the relevant mens rea
 is limited to specific intent offences (i.e.; offences that require an ulterior objective beyond the
immediate act)
 it hasn’t been admissible with general intent offences – i.e.; offences that require proof only of an
intent to perform the immediate act)
 courts have said that this defence for specific intent crimes violates the charter by requiring a
reasonable doubt about the accused’s capacity to form the intent rather than the actual formation of
the intent
 accused must establish that there is an air of reality that justifies instructing the trier of facts about
the defence
 the court has stated that if an accused, of his own volition, takes a substance which causes him to
cast off the restraints of reason and consciousness, then no wrong is done by holding him answerable
for an injury he may do or cause while in that condition (R v. Majewski)
 the recklessness of becoming drunk is deemed to be sufficient to supply the fault for the
commission of the general intent offense
 if an accused is to be held at fault for a general intent offence for voluntarily becoming intoxicated,
then it is only fair that he should not be convicted if the intoxication was not the accused’s fault
 R v. King where having been given drugs at the dentist office which then led to impaired driving,
the court refused to convict saying he became impaired through no act of his own will and could
not reasonably be expected to have known that his ability was impaired or might thereafter
become impaired
 if the accused voluntarily consumed a substance that he knew (or did not actually subjectively have
that knowledge, but ought to have known) was an intoxicant, then the King defence will not apply
 section 273.2(a)(i) provides that an accused’s belief in consent to sexual activity is not a defence
where it arose from the accused’s self-induced intoxication
 the accused may be prevented from arguing that his subjective perceptions were impaired by
alcohol
 the judge and jury would be required to determine what the accused’s perceptions would be had
he not been intoxicated
Khyaati Singh
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 following Beard, courts had held that the issue is whether evidence of drunkenness raised a
reasonable doubt as to the accused’s capacity to form a specific intent (and not, as is generally the
case with mens rea, whether he had the intent)
 since then this line of thinking has been held to violate section 7 –the evidence of intoxication not
raising a reasonable doubt as to the capacity to form the specific intent, doesn’t automatically
lead to the conclusion that the capacity was actually exercised and the required intent was there
(R v Robinson)
 now judges can still instruct the jury to consider the accused’s capacity to from the intent, but the
judge also has to ensure that the jury understands that the issue is whether the evidence of
intoxication raised a reasonable doubt as to the accused’s intent, and not his capacity to form the
intent
 there are four different ways in which intoxication can operate as a defence:
 the evidence can raise a reasonable doubt as to whether the accused had the intent required for
a specific intent offence
 the (rare) defence of involuntary intoxication
 the Daviault defence of extreme intoxication for general intent offences (that don’t include an
element of assault or interference with the bodily integrity of another person)
 the Daviault defence to a violent general intent offence – but in response to this, parliament
enacted section 33.1 to give support to the rule that the fault of becoming extremely intoxicated
be substituted for the fault of committing the general intent crime of violence, even though the
accused may have acted involuntarily at the time of the offence
 R v. Bernard – [1988] 2 SCR 833 – SCC – Beetz, McIntyre JJ. – drunkenness leading to forcing victim
to have sex
 Facts: forced victim to have sex by attacking her – while drunk; charged with sexual assault
causing bodily harm; found guilty by judge and jury; court of appeal dismissed;
 Issues: should the evidence of self-induced intoxication be considered by the trier of fact to
determine wither there was reasonable doubt about the mens rea required for the offence
 Held: appeal should be dismissed
 the offences of rape and sexual assault causing bodily harm are crimes of general intent for which
intoxication would not be relevant
 people accused of violent general intent offences cannot use voluntary drunkenness as a defence
 drunkenness is not really a defence to a criminal offence – it may apply in a specific intent offence
whereby the accused lacked the capacity to form the specific intent required to commit such a
crime, but it doesn’t apply to offences of general intent
 section 7 (that the morally innocent should not be punished) is not violated when an accused
who has voluntarily consumed drugs or alcohol cannot use drunkenness as a defence of
involuntariness of his acts
 R v. Robinson – [1996] 1 SCR 683 – SCC – Lamer C.J., LaForest, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci, Major JJ. – killed victim who said something to offend him while they were drinking
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 Facts: killed a man but claimed to have acted without intent because he was intoxicated; had
been drinking with the victim and some friends; killing occurred when victim said something to
offend him; judge instructed jury on provocation, self defence, and intoxication; jury convicted;
court of appeal allowed appeal;
 Issues: how should juries be instructed regarding evidence of intoxication
 Held: appeal should be dismissed
 before the trial judge is required by law to charge the jury on intoxication, he must be satisfied
that the effect of the intoxication was such that it might have impaired the accused’s foresight of
the consequences sufficiently to raise a reasonable doubt
 for offences of specific intent, evidence of intoxication should no longer be subject to a rule
requiring that it be considered only if intoxication attains such a degree that it deprives the
accused of the capacity to form the specific intent – evidence of intoxication can be considered
with all other evidence in determining whether the accused actually had the specific intent
required to constitute the offence
 R v. Daviault – [1994] 3 SCR 63 – SCC – L'Heureux-Dube, Cory, McLachlin, Iacobucci JJ. – got so
extremely drunk he blacked out and sexually assaulted victim (extreme intoxication case)
 Facts: elderly victim confined to wheelchair, asked accused to bring some alcohol; she drank a
glass and fell asleep; when she awoke, accused appeared, and sexually assaulted her; victim later
discovered the bottle of alcohol was empty; trial judge found accused had drank the rest of the
bottle, and that he had also been drinking beforehand at a bar; he testified he recalled brining
alcohol to victim and having a glass with her, but that between then and when he woke up naked
in the victim’s bed, he had no idea what happened; expert witness said a person of the
hypothesized blood alcohol level might suffer a blackout, lose contact with reality, and the brain
would disassociate from normal functioning; trial judge found the act had been committed as
described, but acquitted on basis of reasonable doubt as to accused possessing minimal intent
necessary to commit offence of sexual assault; court of appeal allowed crown’s appeal and
ordered verdict of guilty be entered holding that self-induced intoxication resulting in
automatism is not available as a defence to a general intent offence; accused appealed
 Issues: is extreme intoxication due to self-induced intoxication resulting in automatism is
available as a defence to a general intent offence
 Held: appeal should be allowed and a new trial ordered
 the mental aspect of an offense is an integral part of crime and to eliminate it would be to
deprive the accused of fundamental justice
 the necessary mental element of the intention to commit the assault cannot be substituted by
the intention to become drunk – the voluntary act of becoming intoxicated cannot be substituted
for the voluntary action involved in sexual assault
 extreme intoxication akin to insanity or automatism describes a person so severely intoxicated
that he is incapable of forming even the minimal intent required of a general intent offence
 a person in a state of automatism cannot perform a voluntary willed act, and someone in an
extreme state of intoxication akin to automatism must also be deprived of that ability
Khyaati Singh
16. Extreme Intoxication
Criminal Law
Page 69 of 148
[pg 27]
 the defence of extreme intoxication was created in Daviault by way of the charter
 the rule before this, in R v. Leary, held that becoming intoxicated could supply the mens rea for
general intent offences, but it was vulnerable under the charter because:
 it departed from the requirement that the mens rea occur at the same time as the actus reus
 it transferred the fault of becoming intoxicated with the fault for the particular offence,
violating the presumption of innocence
 it would allow the conviction of a person who was so severely intoxicated that he acted
involuntarily or without the intent required for the offence – it converted the general intent
offence into an absolute liability offence by excluding he evidence of intoxication and not
considering the potentially crucial factor in determining whether the accused had the
required mens rea (R v. Bernard)
 the defence in Daviault applies only if the accused is extremely intoxicated, and is laid out as such
that it could in rare cases be a defence to general intent offences such as assault or sexual assault
whereby the minimal intent required for a general intent offence could not be inferred from the
commission of the prohibited act because the very voluntariness or consciousness of that act may
be put in question by the extreme intoxication of the accused
 extreme intoxication is distinct from simple intoxication because unlike simple intoxication, where
extreme intoxication applies, it can operate as a defence to any offence (general or specific)
 the theory is that a person can become intoxicated enough that his mind may cease to operate
sufficiently to make conscious choices relating to his actions
 parliament enacted section 33.1 to eradicate the Daviault defence in the case of sexual and violent
offences – however, subject to charter challenges, extreme intoxication can only be used for other
kinds of offences
 section 33.1 doesn’t abolish the defence of simple intoxication, it only limits it
 accused must establish extreme intoxication leading to involuntary behaviour on a balance of
probabilities
 this doesn’t violate the presumption of section 11(d), but rather is justified because it’s only the
accused who can give evidence as to the amount of alcohol consumed and its effect upon him
 expert evidence would be required to confirm that the accused was probably in a state akin to
automatism or insanity as a result of his drinking
 this defence is controversial because it may lead to the complete acquittal of an accused who
commits a crime after voluntarily becoming intoxicated
 courts have expressed concern that convicting in cases where the accused is so extremely
intoxicated that he is in a state akin to automatism (and thus acts in an involuntary manner),
would result in convicting someone who is morally innocent
 parliament enacted sections 33.1 to 33.3 whereby becoming extremely intoxicated is not a defence
to general intent offences that involve assaults or other interferences with bodily integrity
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 because the fault of voluntarily becoming so intoxicated is sufficient to convict a person of a
general intent offence that involves violence – the marked departure from the reasonable
conduct by becoming extremely intoxicated in the first place can be substituted for the voluntary
and conscious behaviour and fault required to convict a person of general intent offences
 but courts have found that it violates the presumption of innocence but substituting the fault of
becoming extremely intoxicated for the fault of committing the offence – thereby allowing the
conviction of a person who commits a crime in an involuntary manner
 R v. Daviault – [1994] 3 SCR 63 – SCC – L'Heureux-Dube, Cory, McLachlin, Iacobucci JJ. – got so
extremely drunk he blacked out and sexually assaulted victim (extreme intoxication case)
 Facts: elderly victim confined to wheelchair, asked accused to bring some alcohol; she drank a
glass and fell asleep; when she awoke, accused appeared, and sexually assaulted her; victim later
discovered the bottle of alcohol was empty; trial judge found accused had drank the rest of the
bottle, and that he had also been drinking beforehand at a bar; he testified he recalled brining
alcohol to victim and having a glass with her, but that between then and when he woke up naked
in the victim’s bed, he had no idea what happened; expert witness said a person of the
hypothesized blood alcohol level might suffer a blackout, lose intact with reality, and the brain
would disassociate from normal functioning; trial judge found the act had been committed as
described, but acquitted on basis of reasonable doubt as to accused possessing minimal intent
necessary to commit offence of sexual assault; court of appeal allowed crown’s appeal and
ordered verdict of guilty be entered holding that self-induced intoxication resulting in
automatism is not available as a defence to a general intent offence; accused appealed
 Issues: is extreme intoxication due to self-induced intoxication resulting in automatism is
available as a defence to a general intent offence
 Held: appeal should be allowed and a new trial ordered
 the mental aspect of an offense is an integral part of crime and to eliminate it would be to
deprive the accused of fundamental justice
 the necessary mental element of the intention to commit the assault cannot be substituted by
the intention to become drunk – the voluntary act of becoming intoxicated cannot be substituted
for the voluntary action involved in sexual assault
 extreme intoxication akin to insanity or automatism describes a person so severely intoxicated
that he is incapable of forming even the minimal intent required of a general intent offence
 a person in a state of automatism cannot perform a voluntary willed act, and someone in an
extreme state of intoxication akin to automatism must also be deprived of that ability
 recognized the defence of extreme intoxication akin to automatism – whereby the accused was
deprived of the voluntary and conscious behaviour necessary for the general intent offence
 section 33.1 attempts to eliminate this Daviault defence with respect to violent offences
 it will only be on rare occasions that evidence of such an extreme state of intoxication can be
advanced and perhaps only on still rarer occasions is it likely to be successful
17. Defence of the Person
Khyaati Singh
Criminal Law
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 unlike mistake of fact or intoxication, this defence is not derived from the fault element of the
offence and can apply even if the accused voluntarily committed the actus reus and had the mens
rea required for the offence – if proved, the defence operates as a compete defence that results in
acquittal
 arises under circumstances where a person is subjected to an external danger and commits an act
that would otherwise be criminal as a way of avoiding the harm the danger presents
 the accused must have acted reasonably in response to the external pressures (i.e.; violence or
threats of violence from the victim)
 using a modified objective standard (that the reasonable person be endowed with the relevant
characteristics and experiences of the accused so as to assess the significance of the threat or
insult)
 applies those who defend themselves may have a defence of self defence, even though they
intentionally kill or harm the attacker
 self defence is a defence that justifies conduct and leads to full acquittal - because those who commit
a crime in reasonable response to serious threats of harm by third parties may have a defence of
duress even if they commit the crime with the required metal fault
 the accused must not only subjectively have believed that he was being threatened and that the
actions taken in self defence were necessary, but there must also have been a reasonable basis for
such beliefs
 the defence doesn’t necessarily disprove mens rea – although evidence relating to the defence might
be relevant to proving the mental element of some crimes
 the defence must be disproved by the crown as part of its burden to prove guilt beyond a reasonable
doubt
 the accused’s state of mind at the time of the offence must be examined, and the accused (not the
victim) should be given the benefit of the doubt
 there are four types of statutory defences – all of them apply where the accused is being unlawfully
assaulted, or reasonably believes he is about to be
 section 34(1) self defence against unprovoked assault – applies where the accused does not
provoke the assault, and defends against it without intending to cause death or grievous bodily
harm (whether the same is caused or not)
 it is only available to an innocent victim, and not even one who engages in consensual fights
 unlawful assaults include not only the application of force, but also the attempts or threats to
apply force
 an actual assault isn’t a prerequisite for self defence, it’s enough that the accused reasonably
believed in the circumstances that he was being, or was about to be, unlawfully assaulted
 the use of force by the accused is justified if it was not intended to cause death or grievous
bodily harm (although the same might actually occur while defending oneself – the crucial
point is that it wasn’t intended), and was no more than necessary to enable the accused to
defend himself
Khyaati Singh
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 section 34(2) extent of justification – applies regardless of whether the accused provoked the
assault, and defends against it intending to cause death or grievous bodily harm
 section 34(2) is broader than section 34(1), and applies even in cases in which the accused
was the one who provoked the assault, and intended to cause death or grievous bodily harm,
but the accused must believe on reasonable grounds that he could not otherwise be
preserved from death or grievous bodily harm without resorting do self defence – also, there
is no requirement that the force used be proportionate to the assault that was defended
against
 the accused must have a subjective belief as to all three elements and a reasonable
(objective) basis for such a belief – the apprehension must be a reasonable one and the belief
must be based upon reasonable and probably grounds (R v. Reilly) – that is, the jury is to be
guided by the accused’s subjective beliefs, so long as there exists an objectively verifiable
basis for his perceptions
 an accused can qualify for the elf defence claim even though he was in fact not being
unlawfully assaulted (R v. Petel) – the mistake as to the existence of the assault must be a
reasonable one; but the issue isn’t what an outsider would have reasonably perceived,
but what the accused reasonably believed, given the situation and experience (R v.
Lavallee)
 in determining the reasonableness of the belief, the jury could consider prior threats and
violence between the accused and the victim
 the jury should not be instructed on this defence if there is no air of reality to the accused’s
claim that there was a reasonable apprehension of death or grievous bodily harm, and that he
reasonably believed he had no alternative but to act in self defence
 section 35 self defence in case of aggression – applies where the accused provoked the assault –
(but in light of section 34(2), whereby an accused who acts as an aggressor can qualify for self
defence, this section becomes redundant)
 restricted to those who, without justification, assault another or provoke an assault – though
it is required under this section that the accused not have intended to cause death or
grievous bodily harm, and that he retreat as much as possible before the need for self
defence arises
 applies to those accused who are the initial aggressor and do not cause death or grievous
bodily harm
 this does not apply to those accused who, initiate or provoke the assault with the intent to
cause death or grievous bodily harm
 section 37 refers to the use of necessary force to defend oneself or anyone under one’s
protection – it operates as a general defence that is broad enough to include other defences (but,
if the other defences apply, then courts tend not to use this section)
 it can be used to an accused who uses fore to protect himself or another person, and who
intends to cause death or grievous bodily harm (provided that the force was necessary and
not excessive)
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Criminal Law
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 the basic elements of all self defence claims are the accused’s apprehension of harm and the
accused’s perception of the force required to avoid the threatened harm – the defence is concerned
with both the subjective perception and the (objective) reasonableness of those perceptions
 the jury should be instructed to consider a reasonable person with any of the characteristics and
experiences that are relevant to the accused’s ability to perceive harm and to respond thereto – at
the same time there still must be reasonable basis for the perceptions
 though one factor that cannot be considered in is intoxications (R v. Reilly) in determining
whether he reasonably apprehended harm
 though the defence requires proportionality (in that the force used in self defence be no more than is
necessary), it’s not insisted that the proportionality be measured with nicety or a duty to retreat
 where a killing has resulted from the excessive use of force in self defence, the accused loses the
justification provided under section 34 (R v. Faid) – the accused is criminally responsible for any
excess of force
 while acting in protection of property (section 38) and dwelling house (section 41), an accused may
be able to use the defence of self defence
 R v. Pintar – [1996] OJ 3451 – Ontario Court of Appeal – the relationship between section 34(1) and
(2) – victim was killed when he confronted accused regarding accused’s affair with victim’s wife
 Facts: accused killed R and G after struggle with rifle; he had had an affair with R’s wife; R used to
abuse his wife; R threatened to kill accused on several occasions; R and G went to accused’s
house and began fighting with him, with R telling him he was going to kill him; accused got his
rifle and confronted R and G; they came towards accused, threatening him and his family;
accused claimed self defence; judge charged jury that they couldn’t consider R’s original
unprovoked assault on accused; jury convicted accused of manslaughter;
 Issues: was the jury properly charged with the evidence for self defence
 Held: appeal allowed and new trial ordered
 the judge erred in not allowing the jury the option of considering the conduct of the victims as an
ongoing continuum of assault
 R v. Cinous – [2002] 2 SCR 3 – each of the defences as both subjective and objective component that
needs to be satisfied – accused killed criminal accomplice
 Facts: had been involved in criminal activity with M and Y; when he decided to leave the
operation, he heard rumours that they wanted to kill him; they came to his house one morning
asking him to participate in theft and the accused agreed to meet them in the evening; accused
testified that when M and Y arrived, they kept whispering to each other, and Y kept placing his
hand inside his coat (raising the accused’s suspicions that they were armed), then when they all
got into a van to carry out the theft, M and Y on gloves of a type that were associated with
situations of bloodshed; accused said he was certain he was going to be killed; he pulled into a
well lit gas station that was well populated, opened the back door, and shot M in the back of the
head; he said he didn’t call the police because he’d spent his whole life running from the police;
trial judge put defence of self defence to the jury; jury found accused guilty of second agree
Khyaati Singh
Criminal Law
Page 74 of 148
murder; court of appeal held the defence wasn’t properly explained to the jury and overturned
the conviction, ordering a new trial; crown appealed
 Issues: was the defence of self defence put properly to the jury
 Held: appeal should be allowed and conviction restored
 the defence may not be put to the jury in a case in which an accused has an alternative other
than killing the person who he believes threatens him
 there was no air of reality to the defence put forth, and so the jury should not have even been
instructed about the defence
 although the jury may reasonably come to the conclusion that the accused reasonably
apprehended an assault and death or grievous bodily harm, it could not have reasonably
concluded that the accused reasonably believed he had no alternatives but killing the person
 R v. Lavallee – [1990] 1 SCR 852 – SCC – Dickson C.J., Lamer, Wilson, L’Heureux-Dube, Gonthier,
McLachlin JJ. – the defence as applied to battered women – embraced the modified objective
standard approach – battered woman killed her husband
 Facts: battered woman was in an abusive relationship; she shot her common law partner in the
back of the head as he left the room after an argument in which he had physically abused her;
she was fearful for her life, and he taunted her that either she kill him or he would get her; expert
witness explained her ongoing terror and inability to escape the relationship put her life in danger
and that he felt the shooting was the act of a woman who sincerely believed she’d be killed that
night; jury acquitted the accused; court of appeal overturned the acquittal; appeal to supreme
court
 Issues: was the defence of self defence made out
 Held: the appeal should be allowed
 self defence is not only justified in response to an immediate threat of harm
 the particular experiences and circumstances that he accused faced should be considered in
determining whether the accused acted reasonably
 there is no legal requirement that the accused wait until she faced an imminent attach from the
victim in order to defend her person
 there is no requirement that the accused retreat in order to qualify for the section 34(2) defence
18. Necessity
[pg 40]
 necessity isn’t a codified defence – rather it is a common law defence and was first recognized in R v.
Perka
 the court, in that case, restricted necessity to circumstances of imminent risk where the action
was taken to , avoid a direct and immediate peril, where the act was morally involuntary as
measured on the basis of society’s expectations of appropriate and normal resistance to
pressure, and where it was clear that there was no reasonable legal alternative to avoid the peril
 it was first recognized in R v. Perka where drug smugglers were forced to come into shore because of
a storm
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 unlike mistake of fact or intoxication, this defence is not derived from the fault element of the
offence and can apply even if the accused voluntarily committed the actus reus and had the mens
rea required for the offence – if proved, the defence operates as a compete defence that results in
acquittal
 arises under circumstances where a person is subjected to an external danger and commits an act
that would otherwise be criminal as a way of avoiding the harm the danger presents
 the accused must have acted reasonably in response to the external pressures (i.e.; dire
circumstances of peril)
 using a modified objective standard (that the reasonable person be endowed with the relevant
characteristics and experiences of the accused so as to assess the significance of the threat or
insult))
 those who have a valid defence of duress and necessity act in a morally involuntary manner because
in the dire circumstances it was impossible for them to comply with the law as there was no safe and
lawful avenue of escape
 the requirements of proportionality between the harm avoided and the harm inflicted should be
determined on a purely objective standard
 the defence doesn’t necessarily disprove mens rea – although evidence relating to the defence might
be relevant to proving the mental element of some crimes
 the defence must be disproved by the crown as part of its burden to prove guilt beyond a reasonable
doubt
 the accused’s state of mind at the time of the offence must be examined, and the accused (not the
victim) should be given the benefit of the doubt
 a morally involuntary response to an immediate peril to life or health is required for a necessity
defence
 the defence will not apply if the necessitous situation was foreseeable to the reasonable observer
 necessity as an excuse only applies when the accused has no realistic choice but to violate the law
 there are three elements of necessity:
 imminent peril and danger (modified objective standard) – the requirement of the threat being
imminent is not restricted to it being immediate (R v. Ruzic), though it must be on the verge of
transpiring and virtually certain to occur – and where the situation of peril clearly should have
been foreseen and avoided, one cannot reasonably claim any immediate peril (R v. Latimer)
 no legal way out or safe avenue of escape (modified objective standard) – if there is a reasonable
legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one
 proportionality required between harm inflicted an harm avoided (pure objective standard) –
there should be proportionality between the harm sought to e avoided and the harm committed
– even if the requirements for urgency and no legal way out are met, proportionality must be
assured; infliction of a greater harm to allow the aversion of a lesser evil cannot be excused (R v.
Perka)
 though the harm avoided doesn’t necessarily have to unquestionably outweigh the harm
inflicted (R v. Latimer)
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 R v. Latimer – [2001] 1 SCR 3 – SCC – father killed disabled daughter
 Facts: father killed his severely physically and mentally disabled daughter when she required
another (painful) surgery; after learning that doctors wished to perform another surgery, which
he perceived as mutilation, he decided to take his daughter’s life; she died from carbon monoxide
poisoning (he put her in the truck with a hose running the exhaust into the vehicle); found guilty
of second-degree murder; court of appeal upheld the conviction; supreme court ordered new
trial; during second trial, defence of necessity was asked to be considered; judge found it was not
made out; found guilty at second trial; court of appeal affirmed; appealed to supreme court again
 Issues: was the defence of necessity made out
 Held: the appeal by the accused should be dismissed
 a modified objective standard (i.e.; a reasonable person endowed with the characteristics of the
accused) should be applied in determining whether the accused faced an imminent harm and had
no safe avenue of escape or legal way out
 however, the requirements of proportionality between the harm avoided and the harm
inflicted should be determined on a purely objective standard
 there are three elements of necessity: the requirement of imminent peril or danger (modified
objective standard); the requirement of no reasonable legal alternative (modified objective
standard); the requirement of proportionality between the harm inflicted and the harm avoided
(pure objective standard)
 the air of reality test, whereby there must be evidence relating to each part of the offence,
and that the evidence must be of such a nature that a properly instructed jury acting
reasonably could acquit the accused, was not made out in this case
 there was no reasonable basis for Latimer’s belief in imminence in part because there was no
evidence of imminent peril
 if there was a reasonable legal alternative to breaking the law, there is no necessity, even if that
alternative may be demanding, sad, unappealing
 killing a person is completely disproportionate to non-life-threatening suffering
19. Duress
 like necessity, duress occurs when an accused commits a crime in response to external pressure by a
third party
 the defence of duress is available under section 17 (compulsion by threats) of the criminal code and
the common law – the code presents a limited defence, but he common law (and the charter) have
been used to extend its application; it applies when an accused commits a crime in a morally
involuntary response to threats where there is no safe avenue of escape
 earlier, section 17 applied when the threat was of immediate death or bodily harm and made by
a person who was present when the offence was committed
 however, the courts held that such requirements violated section 7 of the charter by denying
the defence to those who have no realistic choice but to commit the offence and thus act in a
amorally involuntary manner (R v. Ruzic)
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 the court has not yet ruled on whether the remaining parts of section 17 (namely that it does not
apply to offences such as murder, attempted murder, robbery, unlawfully causing bodily harm,
and arson) violate the charter
 section 17 requires only that the accused subjectively believe that the threats will be carried out and
does not require a reasonable basis for such a belief – so, even an unreasonable belief by the
accused about threats of death and bodily harm may be a sufficient basis for the statutory defence of
duress – it also doesn’t require that the accused have no safe avenue of escape or that there be
proportionality between the harm threatened and the harm caused by the accused
 section 17 also doesn't apply where the accused was a party to a conspiracy whereby he became
subject to compulsion – those who voluntarily associate with a criminal organization should be
denied the common law defence of duress (R v. Li); however, so as to avoid violating section 7, the
focus should be on whether the accused had any realistic choice but to commit the offence at the
time it was committed and not on the prior acts or associations of the accused
 defence of duress is applied on a modified objective standard
 unlike mistake of fact or intoxication, this defence is not derived from the fault element of the
offence and can apply even if the accused voluntarily committed the actus reus and had the mens
rea required for the offence – if proved, the defence operates as a compete defence that results in
acquittal
 arises under circumstances where a person is subjected to an external danger and commits an act
that would otherwise be criminal as a way of avoiding the harm the danger presents
 the accused must have acted reasonably in response to the external pressures (i.e.; threat of serious
harm from a third party)
 using a modified objective standard (that the reasonable person be endowed with the relevant
characteristics and experiences of the accused so as to assess the significance of the threat or
insult))
 those who commit a crime in reasonable response to serious threats of harm by third parties may
have a defence of duress even if they commit the crime with the required metal fault – they have a
valid defence of duress and necessity act in a morally involuntary manner because in the dire
circumstances it was impossible for them to comply with the law as there was no safe and lawful
avenue of escape
 the requirement in section 17 that an accused only has a duress defence if he faced immediate death
or bodily harm from a person who is present when the crime is omitted is in violation of section 7
because it could result in the punishment of a person who responded reasonably and in a morally
involuntary fashion to threats from which there was no safe avenue of escape
 the focus shouldn’t be on the immediacy of the threat, but rather on whether there was any safe
avenue of escape in the eyes of a reasonable person similarly situated
 self defence is a defence that justifies conduct and leads to full acquittal - because those who commit
a crime in reasonable response to serious threats of harm by third parties may have a defence of
duress even if they commit the crime with the required metal fault
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 the defence doesn’t necessarily disprove mens rea – although evidence relating to the defence might
be relevant to proving the mental element of some crimes
 the defence must be disproved by the crown as part of its burden to prove guilt beyond a reasonable
doubt
 the accused’s state of mind at the time of the offence must be examined, and the accused (not the
victim) should be given the benefit of the doubt
 the common law defence of duress has overridden the unconstitutional limitations of the codified
defence of duress under section 17 through decisions such as Ruzic, namely:
 the imminent threat of death or bodily harm no longer needs to be immediate by a person
present when the offence was committed
 still, it will not apply to people who had a safe avenue of escape (i.e.; had a realistic choice), as
according to the reasonable person in the accused’s circumstances
 there may be call for proportionality of the offence to the harm avoided
 duress will not negate the mens rea required to be party to an offence, or of the offence itself in
some cases – instead, the duress faced by the accused may explain his motives and desires (but not
raise reasonable doubt about, or negate his intent) (R v. Paquette)
 R v. Hibbert – [1995] 2 SCR 973 – SCC – accused took shooter to victim’s house
 Facts: accused took B to see C and C was shot by B (C survived); as party to the offence, accused
was charged with attempted murder; he testified that he had run into B who told him he was
armed and ordered him to take him to C’s place; he refused and B punched him several times; he
feared for his life and thought B would shoot him if he didn’t take him to see C and that he had
no opportunity to run away; B got in an altercation with C and then shot him; accused said he
pleaded with B not to shoot C, but C testified that wasn’t so; B drove away from the scene with
the accused, and told him that he would kill him if he went to the police; the next morning
accused turned himself in; trial judge ordered jury that if accused became party to the offence
due to threats of death or grievous bodily harm, then he must be found not guilty, but that if a
safe avenue of escape existed, then common law defence of duress cannot be found; accused
was acquitted of attempted murder, but was convicted of aggravated assault; court of appeal
upheld the conviction; appeal to supreme court
 Issues: did the accused have the defence of duress
 Held: the appeal should be allowed and a new trial ordered
 the judge erred in not informing the jury that even if the accused possessed the requisite mens
rea, his conduct could be excused by operation of the common law defence of duress
 that a person who commits a criminal act does so as a result of threats of death or bodily harm
can, in some cases, be relevant to the question of whether he possessed the mens rea necessary
to commit that offence
 the mental states specified in section 21(1)(b) and 21(2) (i.e.; conspiracy/party to offence) are
not negated by duress – however, mens rea doesn’t equate motive or desire; it may be that he
conduct can be excused due to duress (R v. Paquette)
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 if he had the opportunity to escape safely from the situation of duress (applied through a
modified objective standard), then the defence cannot be applied
 it is appropriate to employ an objective standard that takes into account the particular
circumstances of the accused, including his ability to perceive the existence of alternative courses
of action
 the appropriate objective standard to be employed when judging whether there was a safe
avenue of escape is the modified objective standard whereby the reasonable person has to be
endowed with the particular circumstances and human frailties of the accused (although a purely
objective standard should be applied to the proportionality of the offence)
 R v. Ruzic – [2001] 1 SCR 687 – SCC – imported heroin due to threats to her mother
 Facts: charged with importing heroin; lived in Belgrade with her mother; someone threatened
and assaulted her, and threatened to kill her mother if she didn’t do so; she didn’t seek police
help because she believed the police in Belgrade were corrupt; her duress claim was against the
immediacy requirement of section 17; she challenged the constitutionality of section 17 under
section 7 and was acquitted; court of appeal dismissed crown’s appeal; crown appealed to
supreme court
 Issues:
 Held: the appeal should be dismissed
 moral involuntariness doesn’t negate the actus reus or mens rea of an offence, but it deserves
protection under section 7 of the charger as only voluntary conduct should attract the penalty
and stigma of criminal liability, and committing an offence due to having no realistic choice is not
the product of a free will unhindered by external constraints – therefore, section 17 breaches
section 7 of the charter
 it is not necessary that the threats must be of immediate death or harm from a person who is
present at the time of the offence – otherwise it could result in the conviction of a person who
has no other reasonable choice but to commit the crime, even if the threats are not imminent
 requiring of immediacy and presence of the person who presented the threat to the accused
violates section 7 of the charter because it could result in the punishment of a person who
committed a crime in a morally involuntary manner
 the focus shouldn’t be on the immediacy of the threat, but rather on whether there was any safe
avenue of escape in the eyes of a reasonable person similarly situated
 the threats can be directed against the accused or a third party, and they need not be express,
but can be reasonably implied from the circumstances
20. Provocation
 the defence of provocation applies solely to the offence of murder – though it is only a partial
defence, reducing the conviction of murder to manslaughter where its elements are met
 with regards to other defences:
 if provocation results in automatism that can be explained with reference to the accused’s
internal emotional make-up, then the defence would be mental disorder automatism
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 if the provocation could be explained on the basis of extraordinary external factors such as
seeing a loved one killed or harmed, the defence might be non-mental disorder automatism
leading to a complete acquittal
 section 232 states that provocation requires: a wrongful act or insult that would deprive an ordinary
person of self control; and the accused must act on it on the sudden and before there is time for his
passion to cool
 the modified objective standard is used for the ordinary person
 the section focuses on whether the reasonable person in the circumstances would have lost
control when faced with the provocation, not whether he would have done what the accused did,
as such, proportionality is not required for the defence of provocation
 the defence neither justifies nor excuses the act of homicide, but provides that an accused is less
blameable because he acted on the passion aroused by the provocation
 section 232(3) states that there is no provocation when the accused has incited the victim to commit
the act or insult claimed to be the provocation – also, the victim cannot be said to have provoked the
accused by doing something that the victim had the legal right to do
 legal right has been defined as something which is sanctioned by law as distinct from something
which a person may do without incurring legal liability
 the accused must have acted reasonably in response to the provocation
 using a modified objective standard (that the reasonable person be endowed with the relevant
characteristics and experiences of the accused so as to assess the significance of the threat or
insult))
 both the insult and the act of retaliation must be the sudden; the provocation should be sudden and
unexpected, it cannot be a manifestation of a grudge or a foreseeable response to something that he
accused had initiated
 acting when actually being confronted with the information is negated if there was prior
knowledge thereof (R v. Tripodi)
 in R v. Thibert, because the deceased’s taunts were sudden and uttered just before the accused
shot the victim, sudden provocation was still found even though the accused has taken the
initiative, has produced a confrontation with the victim, and had prior knowledge of the victim’s
relationship with his wife
 the provocation must, generally, come from the victim; this rule can be overlooked, however,
when the victim participated with a third part, or when the accused makes a reasonable mistake
that the victim was involved in the provocation (R v. Hansford)
 the provocation must be sudden, and additionally, the accused must act before there was time for
this passions to cool – this is looked at subjectively to the accused
 section 232(2) also requires that the provocation be of such a nature as to deprive an ordinary
person of self control – the modified objective standard is employed here because society cannot
excuse violence solely on the basis of the accused’s subjective and perhaps idiosyncratic perceptions
and reactions to ordinary stresses and strains of modern life, at the same time taking into
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consideration that there are some factors of the accused’s characteristics and experience that give
relevance to the provocation/insult (R v. Hill)
 cultural background can only be considered if necessary to determine the gravity of the insult (R
v. Ly)
 the defence doesn’t necessarily disprove mens rea – although evidence relating to the defence might
be relevant to proving the mental element of some crimes
 the defence must be disproved by the crown as part of its burden to prove guilt beyond a reasonable
doubt
 the accused’s state of mind at the time of the offence must be examined, and the accused (not the
victim) should be given the benefit of the doubt
 Thibert
 the reasonable person considered should be endowed with the accused’s characteristics so as to
give the insult (provocation) it’s proper significance
 the deceased did not have a legal right to tell the accused to shoot him while holding onto the
accused’s wife - legal right is something which is sanctioned by law as distinct from something
which a person may do without incurring legal liability
 because the deceased’s taunts were sudden and uttered just before the accused shot the victim,
sudden provocation was still found even though the accused has taken the initiative, has
produced a confrontation with the victim, and had prior knowledge of the victim’s relationship
with his wife
 the ‘ordinary person’ should share with the accused such factors as would give the act or insult in
question a special significance and have experienced the same series of acts or insults as those
experienced by the accused – including past acts and insults exchanged between the accused and
the deceased may be relevant to determine the gravity of the final act or insult
 R v. Tran – [2010] 3 SCR 350 – SCC – accused killed estranged wife’s boyfriend
 Facts: accused’s estranged wife was involved with another man; accused went to the wife’s
home uninvited and saw her in bed with her boyfriend; the attacked them both, stabbing him to
death; trial judge found provocation and acquitted of murder, convicted of manslaughter instead;
court substituted conviction for second degree murder; accused appealed
 Issues: whether estranged wife’s relationship with another man after separating from accused
amounted to insult sufficient to deprive the accused of power of self control
 Held: the appeal should be dismissed
 there was no air of reality to the defence of provocation – the discovery of his estranged wife’s
involvement with another man is not an insult within the meaning of section 232, and nor was
there anything sudden about his discovery of the two of them together that he could be said to
be reasonably unprepared for
 once it is established that the wrongful act or insult was sufficient to deprive an ordinary person
of the power of self control, the inquiry turns to the subjective element whether the accused
acted in response to the provocation and on the sudden before there was time for his passion to
cool
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 the ordinary person standard is informed by the contemporary norms of behaviour and should be
modified to include the particular characteristics and experience of the accused that give
relevance to the provocation
 the accused must have killed because he was provoked, and not simply because the provocation
existed
 the requirement of suddenness serves to distinguish a response taken in vengeance from one
that was provoked – both the provocation and the reaction to it must be sudden
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[SECTION 5] – THE CRIMINAL CHARGE
21. Laying the Charge
 when an information is laid before a justice, it means that, for the most part, the system has stopped
trying to discover who committed an offence, and will, from that point forward, be focused on
proving the guilt of the particular person named in the information
 offences are charged when an information is sworn, received, and approved by a judicial officer
(section 504)
 under section 504, the justice performs the ministerial (i.e.; administrative) non-discretionary
function of receiving the information 0- he has no discretion over whether to receive the
information
 the judge can take discretionary and judicial action under section 507 – whereby the justice
must consider the substance of the informant’s allegations and exercise his discretion as to
whether it is appropriate to take any action or to require the accused person to answer the
charges
 an information can be sworn by any person who has reasonable grounds to believe that an offence
has been committed
 no one is to be considered to be an accused without a charge
 public prosecution begins when an information is laid by a public officer
 an information must be in writing and under oath, and it must allege the commission of an offence
by an identifiable person; it must also include the allegations that affirm (the details o the offence so
as to lay out that the offence was carried out under) the territorial jurisdiction of the justice before
whom it is laid
 the informant has to declare in the information that he has reasonable grounds to believe that an
offence has been committed, though they need not be based on personal knowledge, and can be
through reports he has received – but he personally has to hold the belief that the offence was
committed as sworn
 the justice should personally consider and agree that there are indeed reasonable grounds to believe
that an offence was committed by the person to be charged – however, at this point, the informant
doesn’t have to prove the allegations, nor does the justice have to make any judgments as to the
sufficiency of the case
 at this point the justice endorses the information, marking the moment at which a charge is
formally laid and the person named in the information because an accused person before the
court
 if the justice is not satisfied that the information discloses reasonable grounds to believe that an
offence has been committed, then he can refuse to endorse the information; however the informant
can then seek a summons or a warrant from a different justice based on the information
 when an accused is tried by a provincial court the information is the relevant document – when he is
not tried by a provincial court judge, an indictment is prepared (it is usually prepared following a
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preliminary inquiry and can include any charges on which the person was ordered to stand trial, or
any charges founded on the facts disclosed at the preliminary inquiry)
 section 577 allows for direct indictments which permit the crown to prefer an indictment, in effect
overriding procedures the accused would otherwise be entitled to benefit from, with the personal
written consent of the attorney general or the deputy attorney general
 whether a trial proceed by information or indictment, that document (i.e.; the information or the
indictment) sets out the case the accused has to meet at trial; that document is fundamental in that
it informs the accused of the charge or charges he must meet
 most criminal cases are public prosecution conducted by agents of the attorney general – however,
anyone can commence a prosecution by laying an information (the system even allows for private
prosecutions when a public prosecutor has decided not to lay any charges – but this is not a private
action between parties, but rather an action taken on by a prosecutor who is not an agent of the
attorney general who is allowed, under the criminal law, to prosecute in the place of the attorney
general)
 the attorney general is the chief barrister and solicitor for the government – there is one in the
federal government and in each of the provincial governments – and it is generally attorneys legally
authorized by him that act on his behalf in public prosecutions
 section 2 of the code requires that in some offence the attorney general must consent to the
prosecution in order to ensure a critical examination of the case before the charges are laid –
offences that are likely to be highly sensitive to the public, or otherwise require rigorous
consideration of the public interest
 the prosecutor has discretion over whether to: proceed by direct indictment; make the accused have
a jury trial; take over private prosecution; proceed y indictable or summary conviction proceedings in
the case of hybrid offences; withdraw any charges; consent to adjournment; launch an appeal
 the court will not challenge these decisions in the absence of gross abuse or ill-will
 private prosecutions may be any prosecutor who is not an agent of the attorney general
 generally, a person can only be held liable under Canadian criminal law for an offence that he
commits within Canadian territorial limits (section 6(2)) – however if the offence is committed
abroad but has a real and substantial connection not Canada, it falls within Canada’s territorial
jurisdiction
 the charter is unlikely to have much influence on investigative techniques employed abroad as
foreign officials can’t be expected to comply with Canadian standards, and so their failure to do
so doesn’t give rise to charter violations
 however, having jurisdiction requires more than just that the offence occurred in Canada
 no province can assert jurisdiction over an offence wholly committed in another province (section
478); but prosecution can be conducted in any province in which an element of the alleged offence
occurred (R v. Bigelow)
 people who commit offences don’t always stay in the judicial district in which the offence was
committed; such a person may be transferred to the judicial district in which the offence is alleged to
have been committed – though he can enter a guilty plea there, an accused cannot be tried in the
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place where he is found (if it is not the place where the offence was committed) because the
evidence is not there
 a change of venue, from the place that has jurisdiction over the case, may be ordered if the applicant
can identify a convincing reason to suggest that the trial would be unfair or prejudicial if it continued
where its jurisdiction lies (R v. Charest)
22. The Significance of the Charge
 a trial isn’t an inquiry into whether an accused has committed an offence; it is to determine whether
the crown can prove beyond a reasonable doubt the allegations that have been laid out
 the accused can be convicted for the offence charged, and for any offences that are included in the
charge
 R v. G.R. – [2005] SCJ 45 – McLachlin C.J., Major, Binnie, Fish, Charron
 Facts: charged with incest; at trial daughter was asked if accused had put his penis into her vulva,
she answered in the negative, and that she wasn’t sure if he was trying to because she couldn’t
see what he was doing; physical examination revealed there had been penetration, but it couldn’t
be determined if it was by a finger, an object, or a penis; accused denied having touched his
daughter in a sexual manner; he was convicted of attempted incest; at appeal, crown conceded
there was insufficient proof as to the attempted incest, but argued that accused should be
convicted of sexual interference and sexual assault; court of appeal acquitted accused of incest
charges, and held that sexual interference and sexual assault were not included offences of
incest; crown appealed
 Issues: whether sexual interference and sexual assault are included in the offence of incest
 Held: the appeal should be dismissed
 the same set of facts can give rise to different charges, so it is fundamental that an accused know
the charges he is expected to defend
 the accused must only be called upon to meet the charges put forward by the prosecution
 incest may or may not be consensual and may or may not be with a person under the age of 14,
but sexual assault is very much concerned with consent, and sexual interference with a victim
under the age of 14
 since sexual interference and sexual assault are not, ipso facto, included in the charge of incest,
the accused cannot be convicted of those charges at this trial
23. The Validity of the Charge
 an indictment can contain any number of counts; each count can cover a single transaction (though,
single transaction is given a broad interpretation)
 if the charged could have been jointly charged in a single indictment, with the accused’s consent, it is
possible to hold a trial on one or more indictment simultaneously
 section 589 prevents any charge from being joined with murder (unless the other offences arise out
of the same transaction, or the accused consents to the joinder)
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 section 591(3) allows a trial judge to order an indictment to be severed so as to send some counts or
some co-accused to a separate trial – the court may do so where the interests of justice so require
 it is in society’s best interest in avoiding a multiplicity of proceedings, so counts will usually be held
together; the onus is on the accused to show on a balance of probabilities that the trials should be
separated
 factors to consider when severing counts: factual and legal nexus between the counts; complexity of
the evidence; whether similar evidence will be introduced; whether accused wishes to testify on
some counts but not others
 evidence admitted for one isn’t automatically admissible for other counts in a single trial
 similar considerations arise in deciding whether to sever multiple accused from the same indictment
and hold separate trials – though the practical goal of avoiding multiple proceedings favours not
holding separate trials for the same facts unless it is necessary
 the general rule is that accused who allegedly committed the crime together should be tried together
 however, where it is in the interest of justice, the trial judge has the discretion to sever the trials
(section 591(3)) – the court should consider whether the co-accused will have antagonistic defences;
the possibility of inconsistent verdicts; that evidence admissible against one accused may not be
against another accused
 section 581 sets out some rules for the statement that is to be contained in a count, that the accused
committed an indictable offence, so as to give the accused notice of the offence that he is charged
with and has to defend – the absence of details doesn’t automatically render the account
insufficient; however the crown is required to prove all the details in the count, even if they were
extraneous or unnecessary details
 what to do in the face of a defective charge depends on the nature of the defect – especially because
the accused’s interests are clarity and sufficient notice in a trial on the merits, which in turn depends
on clarity and sufficient detail in the charge
 the accused is entitled to be reasonably informed of the transaction alleged against him, thus
giving him the possibility of a full defence and fair trial (R v. Cote and as required by section 581)
 if an indictment is so flawed that it is an absolute nullity, the trial judge has no jurisdiction to hear the
matter, and the charge must be quashed – but here the crown can lay a new information and not
violate the double jeopardy rule (thereby giving the accused the remedy of greater clarity in the new
charge)
 a charge might be flawed, but not so that it is a nullity, in which case the trial judge is to amend the
charge
 if the charge contains an error, then section 601 governs amendments to a defective count
 in deciding the sufficiently of a count, the indictment must lift the charge from the general to the
particular (R v. Brodie) – though courts have generally favoured that alleged procedural defects
should only rarely prevent a trial
 insufficiently is an error egregious enough that the charge must be quashed (R v. Moore);
however, courts tend to take a more laxed view of insufficiency, whereby a charge could have
been clearer or that an amendment might be appropriate
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 in order for insufficiency to have any greater impact, the count must be so badly drawn up that it
doesn’t give the accused notice of the charge – and this standard is hardly met
 unless time is an essential part of the offence charged, and the accused is not misled or prejudiced by
any variations in time that arises, then time is not required to be stated with exact precision – and
therefor, the time of the offence, even if it stated in the count, doesn’t usually need to be proven
 time could be of the essence when the accused was entitled to do something during a specific
time, and that action is essential to the offence being charged
 as per section 581(2) charges can be laid by simply repeating the language of the code section that
applies to the offence being charged
 a duplicitous count, in effect, gives the accused too much information; it charges the accused with
committing two different offences and is objectionable because the ambiguity prevents the accused
from knowing the defence to be met – the rule of duplicity limits a count to a single legal issue
 section 590(2)(b) allows an accused to apply to have a count that is double or multifarious amended
or divided into two or more separate counts – only the trial judge has the discretion to divide a count
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[SECTION 6] – THE ADVERSARIAL PROCEEDING
 the charter plays an important role in the criminal trial process by ensuring that it is conducted in a
fair manner
 section 7 provides the basic guarantee that everyone has the right to life, liberty, and security of the
person, and that these rights can only be violated in accordance with the principles of fundamental
justice
24. The Adversarial Process
 a trial is the opportunity for the crown to prove beyond a reasonable doubt the allegations in the
charge
 section 606 sets out the please available to an accused charged with an offence
 guilty –an admission of performing the actus reus of the offence, accompanied by the necessary
mens rea; in essence it is a waiver of the right to trial
 the guilty plea has to be unequivocal, where the accused intends to admit all the elements of
the offence; if the accused wants to plead guilty with explanations, or a conditional plea, then
the court should refuse to enter it and enter a not guilty plea instead
 not guilty – a claim of innocence; which in turn amounts to a demand that the crown prove all the
elements of the offence and disprove any defences that may exist
 autrefois acquit; autrefois convict; and pardon – these are special pleas amounting to the claim
that he matter the accused is being charged upon has already been dealt with, that he accused
has previously been acquitted, convicted, or pardoned for the offence in question
 if an accused refuses to plead, then the court enters a plea of not guilty
 if an accused absconds during trial, the court can issue a warrant for his arrest and adjourn the trial,
or continue the trial without the accused provided the accused’s defence counsel continues to act for
him
 the crown presents its case first and can modify the trial strategy as the case develops (he doesn’t
have to call every witness that he indicated would be called upon in the opening statement, the
purpose of which is to outline the evidence that will be called upon during the trial) – though any
variations can be highlighted by the defence in the accused closing statements so as to draw an
inference in his favour
 after the opening statement, the crown is required to present the evidence proving the charge
against the accused – the evidence is to be recorded, it is taken under oath, in the presence of the
accused, and the accused is entitled to cross-examine the crown witnesses
 if it chooses to do so, the defence presents its case at the close of the crown’s case – however, if it is
evident that the crown was unable to prove some element of the offence, then the accused can
apply for a directed verdict whereby (if the judge and/or jury agree that the crown hasn’t been able
to prove its case beyond a reasonable doubt), an acquittal is entered without the defence having to
resort to presenting its case
 the test for the directed verdict is the air of reality test; that is, whether or not a reasonable jury,
properly instructed, could return with a verdict of guilty – if not, then an acquittal should be
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entered; and if it could, then the accused should be committed to trial (and be given a chance to
provide a defence)
 the directed verdict can be granted on the charge laid out, but the trial must be allowed to
proceed in order to determine if the accused is guilty of an included offence (R v. Titus)
 if a directed verdict isn’t granted, then the accused is entitled to make a full answer and defence to
the charge
 defence can call witnesses that the crown decided not to call – the accused doesn’t necessarily have
to testify on the stand (this is consistent with the right to silence and presumption of innocence)
 once the defence has called all of its evidence, the trial moves to closing arguments – for the most
part, the crown cannot reopen its case, but in rare cases it may be allowed by the judge provided it
doesn’t prejudice the accused in having making its defence (because of the principle that the accused
is entitled to know the full case to meet, and so the crown should have presented the case to be met
before the defence made its case)
 the evidence upon which the crown wishes to reopen its case must be new evidence (i.e.; that it
could not have been foreseen by the crown while it was initially making its case)
 the crown may also rebut the defence’s evidence where the defence raises some new matter or
defence which the crown has had no opportunity to deal with and which the crown could not
reasonably have anticipated (i.e.; matters that the crown is reasonably surprised to find in issue) (R v.
Krause)
 the accused can further make full answer and defence in case that the crown has rebutted
 in rare circumstances, the defence might be able to reopen its case and present some evidence not
presented after the final arguments (or even after a verdict has been delivered) – though this is very
rare
 after all the evidence is presented, the final submissions (closing arguments) are made – if the
defence has called evidence, then it closes first; if the defence has not called evidence, then the
crown argues first (in some circumstances, if the accused’s right to fair trial and to make full answer
and defence are violated by the crown’s closing statement, then the defence can be granted the right
to reply to the crown’s address)
 the judge addresses the jury last – and if the argument was improper in any way, then the judge can
instruct the jury to ignore such improper aspects of an argument
 once both counsel have finished their arguments, and there is a jury, the judge will give them
instructions (i.e.; he will charge the jury) in order to simplify the case, and he must leave the jury with
sufficient understanding of the facts and the legal issues – he can confer with both counsel
beforehand with regards to what matters should be explained to the jury (section 650.1) – and
afterwards whether they felt if any part of the charge to the jury was unclear, in which case the judge
can re-charge the jury
 the charge to the jury is the last thing said to the jury before they commence their deliberations – it
should review the facts, the prosecution’s theory of the case, the accused’s theory of the case, and
the defences which arise (all the defences that arise, whether the accused raised them or not – R v.
Faid), and the procedure to be followed by the jury in its deliberations (R v Pan)
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 if the jury has raised questions during their deliberation because they have forgotten or
misunderstood the initial instructions by the judge, the judge may re-charge them after conferring
with both counsel – even if the instructions were already given in the initial charge, they must be
repeated an clarified in the re-charge
(a) The Presumption of Innocence and the Ultimate Standard of Proof
 the accused is presumed to be innocent, a fundamental right guaranteed by section 11(d) of the
charter,
 therefore the crown must prove the guilt of the accused, by proving all the elements of the offence,
beyond a reasonable doubt in order to get a conviction
 R v. Lifchus – [1997] 3 SCR 320 – SCC – Lamer C.J., Sopinka, Cory, McLachlin, Iacobucci, Major JJ. –
the meaning of proof beyond reasonable doubt – stock broker convicted of fraud
 Facts: the accused was convicted of fraud; trial judge told the jury in her charge on the burden of
proof that “proof beyond a reasonable doubt”, the words ‘doubt’ and ‘reasonable’ are ordinary
everyday words that the jury understands; accused appealed; court of appeal ordered a new trial;
crown appealed
 Issues: did the judge err in instructing the jury on the meaning of the expression proof beyond a
reasonable doubt
 Held: the appeal should be dismissed
 the judge erred in explaining the standard of proof fully and properly to the jury
 the jury has to be provided with an explanation of the expression “reasonable doubt” – it
comprised of ordinary words used in everyday speech, but it has a specific meaning in the legal
context
 proof beyond a reasonable doubt is intertwined with the presumption of innocence – it isn’t
proof to an absolute certainty, but is doubt based on reason and common sense that is logically
derived from the evidence presented, or the absence of evidence; the burden of proof rests on
the crown to prove the elements of an offence beyond a reasonable doubt, and not the accused
 the reasonable doubt is not to be adjudged with the same standard of proof that is applied in
everyday life
 only after the jury has been properly instructed about what beyond a reasonable doubt is, the
jurors are to be instructed that they can convict if they are certain or sure that the accused is
guilty
 R v. J.H.S. – [2008] SCJ 30 – SCC – sexual assault of stepdaughter
 Facts: accused was charged with sexual assault of his stepdaughter; he was tried before judge
and jury; accused and victim were main witnesses(she alleged he had abused her over a number
of years, he denied all the allegations); the issue was whether the alleged events ever happened;
judge charged jury on credibility of the witnesses an instructed them that it wasn’t a choice
between the two versions of the events; jury convicted; court of appeal set aside the conviction
and ordered a new trial because the jury wasn’t clearly instructed by the judge that the lack of
credibility on the part of the accused didn’t equate to proof of his guilty beyond a reasonable
doubt; appeal by the crown
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 Issues: was the jury instructed properly as to reasonable doubt and credibility of witnesses
 Held: appeal allowed, conviction restored
 when read as a whole, the charge did not leave the jury with any doubts as to the correct burden
and standard of proof to apply – the judge explained that the accused had to be given the benefit
of the doubt should any reasonable doubt arise; the judge also told the jury that they couldn’t
simply choose between the witnesses’ testimony, that they had to consider all the evidence
when determining reasonable doubt
 the charge was sufficient
(b) Other Burdens
 the crown has to prove all elements of the offence charged beyond a reasonable doubt
 the evidential burden (with regards to the standard of proof for each party) requires that:
 the crown must prove its case beyond a reasonable doubt – otherwise: during the preliminary
hearing the accused can request the inquiry judge to determine whether there is a case to
answer at all; or during the trial the accused and request a directed verdict because the crown
was unable to prove all the elements of the offence beyond a reasonable doubt
 the accused must show that the defence presented has an air of reality to it (i.e.; the evidence of
the defence is such that a judge or jury, properly instructed, if the evidence of the defence is
believed, can acquit based on the said evidence – and if it does, the judge must then weigh the
defence presented, or instruct the jury to do so in light of the law that applies thereto (R v.
Cinous and R v. Fontaine))
 presumptions are rules of law that direct judges and jury to assume that a fact is true (known as a
presumed fact) in a case where the crown proves that another fact is true (known as a basic fact) –
unless the accused can rebut the presumed fact with the evidential burden of air of reality
 mandatory presumption can be rebutted by the accused by raising a reasonable doubt about
whether the presumed fact follows from the basic fact; when a mandatory presumption is rebutted,
the presumed fact falls back into issue, and must be proved by the crown beyond a reasonable doubt
(without relying on the presumption)
 presumptions are, prima facie, contrary to the charter and must be saved by section 1 thereof
 R v. Arcuri – [2001] SCJ 52 – SCC – weighing of crown evidence and accused evidence during
preliminary inquiry to determine if the accused should be committed to trial
 Facts: accused charged with first degree murder; at the preliminary inquiry, the crown’s case was
entirely circumstantial; the testimony of the witnesses the accused called was arguably
exculpatory; the judge rejected the accused’s contention that he must weight he evidence and
committed the accused for trial for second degree murder; the certiorari application by the
accused was dismissed; the court of appeal affirmed the dismissible; accused then appealed to
the supreme court
 Issues: in determining whether the evidence was sufficient to commit the accused to trial, did
the preliminary inquiry judge err in refusing to weigh the crown’s evidence against the allegedly
exculpatory direct evidence of the accused
 Held: the appeal should be dismissed
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 the question to be asked, under section 548, is whether there is any evidence upon which a
reasonable jury properly instructed could return a verdict of guilty
 when the crown produces circumstantial evidence, the judge must engage in a limited weighing
of the whole of the evidence (i.e.; any crown and any defence evidence produced) to determine
whether a reasonable jury properly instructed could return a verdict of guilty – it is not, at this
point, the judge’s duty to adjudge the credibility or reliability of the evidence
 R v. Cinous – [2002] 2 SCR 3 – each of the defences as both subjective and objective component that
needs to be satisfied – accused killed criminal accomplice
 Facts: had been involved in criminal activity with M and Y; when he decided to leave the
operation, he heard rumours that they wanted to kill him; they came to his house one morning
asking him to participate in theft and the accused agreed to meet them in the evening; accused
testified that when M and Y arrived, they kept whispering to each other, and Y kept placing his
hand inside his coat (raising the accused’s suspicions that they were armed), then when they all
got into a van to carry out the theft, M and Y on gloves of a type that were associated with
situations of bloodshed; accused said he was certain he was going to be killed; he pulled into a
well lit gas station that was well populated, opened the back door, and shot M in the back of the
head; he said he didn’t call the police because he’d spent his whole life running from the police;
trial judge put defence of self defence to the jury; jury found accused guilty of second agree
murder; court of appeal held the defence wasn’t properly explained to the jury and overturned
the conviction, ordering a new trial; crown appealed
 Issues: was the defence of self defence put properly to the jury
 Held: appeal should be allowed and conviction restored
 a defence should be put to the jury, if and only if, there is evidential foundation for it – and as
such, he also had a duty to keep from the jury the defences that lack an evidential foundation or
air of reality
 in deciding whether the evidence has an air of reality, the judge takes the evidence produces
as being true, and on that assumption, determines whether a reasonable jury, properly
instructed, would acquit the accused – the judge does not, himself weigh the credibility of the
evidence, that is reserved for the jury to undertake
 R v. Fontaine – [2004] 1 SCR 702 – SCC – paranoid mechanic killed co-worker
 Facts: accused received a call from R saying that they were coming to get him; he later heard
from a co-worker that the victim had been offered a contract to kill him; one night he thought he
saw R outside his home, and called his co-worker over; they smoked marijuana; accused thought
he heard something breaking in and fired shots; he saw the victim at his work the next day and
shot and killed him; pleaded mental disorder automatism; experts gave evidence; judge refused
to put defence to the jury; accused was convicted; appeal court quashed the conviction and
ordered a new trial; crown appealed
 Issues: should the defence of mental disorder automatism been put the jury
 Held: crown’s appeal should be dismissed
 judge erred in not putting the defence of mental disorder automatism to the jury
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 judge simply decides whether the evidence upon which a properly instructed jury could
reasonably decide the issue, he does not evaluate the quality, weight, or reliability thereof – that
is for the jury to do
 R v. Oakes – [1986] 1 SCR 103 – SCC – Dickson C.J., Chouinard, Lamer, Wilson, Le Dain JJ. – example
of rule of criminal procedure being struck down – unlawful possession of narcotics
 Facts: Oakes was charged with unlawful possession of narcotics for the purposes of trafficking;
trial judge convicted only of unlawful possession; he then brought a motion stating that section 8
of the Narcotic Control Act provides that if the court finds accused in possession of narcotic, the
accused is presumed to be in possession for the purposes of trafficking, and that he must be
convicted as such unless the accused can establish to the contrary; Court of Appeals found this
reverse onus unconstitutional against section 11(d) right to be presumed innocent; crown
appealed to SCC
 Issues: does section 8 of the Narcotic Control Act violate section 11(d) of the Charter
 Held: the appeal by the crown should be dismissed and the constitutional question as to whether
the section violates the charter answered in the affirmative
 on proof of possession, the presumption that it was for the purposes of trafficking is mandatory;
and unless the accused can rebut this mandatory presumption, he will be found guilty
 the right to be presumed innocent until proven guilty (i.e.; section 11(d)) requires that:
 the accused be proven guilty beyond a reasonable doubt
 the state bear the burden of such a proof
 the prosecution be carried out in accordance with lawful procedure and fairness
 requiring an accused to disprove a presumed element of an offence violated the presumption of
innocence (section 11(d))
 justification under section 1 not found either
(c) The Neutral Impartial Trier
[pg 16]
 another important component of the system is the neutral, impartial trier of law (to make legal
decisions), and a neutral, impartial trier of fact (to make factual findings at the end of the trial)
 when a trial is by judge alone, he is both the trier of law and the trier of fact; where there is a jury,
the judge is the trier of law (responsible for all the legal and procedural decisions), and the jury the
trier of fact (making the factual decisions and rendering the holding)
 since sentencing is a question of law, it is done by the judge – the jury should, for all intents and
purposes, not be told of the possible sentences so as to avoid any biases created therefrom
 a judge has discretion over the trial proceedings – including the ability to curtail cross-examination,
prevent irrelevant or harassing questions, and ask questions of the witnesses himself
 but these powers must be carried out cautiously so as to not violate the accused’s right to a fair
trial – the test isn’t whether the accused was actually prejudiced, but rather whether a
reasonable person would consider that the accused had not had a fair trial (R v. Valley)
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 a witness under the age of eighteen, or with a mental or physical disability can be allowed to have a
support person of their choice nearly while testifying provided it doesn’t interfere with the
administration of justice
 similarly, such witnesses may be allowed to testify from outside the courtroom or from behind a
screen to be able to prevent the witness from seeing the accused (so as to avoid a face-to-face
confrontation between the witness and the accused)
 the judge can exclude some or all members of the public from all or part of the trial where it is in the
interest of public morals and the maintenance of order or proper administration of justice including
ensuring the interest of witness under the age of majority in sexual assault trials and of justice
system participants (i.e.; the witnesses, the jurors, the prosecutors, the police officers)
 although such a ban violates the freedom of the press, it is saved under section 1 of the charter – as
such in some circumstances, the judge can order publication bans; such bans are seen as exceptional
since they prevent the public knowledge of the court proceedings and are in conflict with the open
court principle, but are necessary in some cases
 the judge must inform any witnesses under the age of eighteen or any victims of sexual offences
of their right to make such an application – under section 486.4 the judge is required to place a
publication ban in effect if such an application is made – under section 486.5 the ban is
discretionary, whereby the judge has to weigh factors like the accused’s right to fair trial, the risk
of having the witness/victim’s identity disclosed, the freedom of expression and freedom of press
 in rare cases, the crown may ask for a publication ban (as with cases what involve undercover
investigation, and as such the police officer who was undercover as well as the techniques he
used to gather the information may be exposed (R v. Mentuck), and releasing such information
may be harmful for future investigations)
 the Youth Criminal Justice Act also bans the publication of some information
 judges have the power to hold people in contempt of court under section 9 of the code
 it can be brought on by insolence to the court, refusal to answer questions while under oath, etc.
 the object is to punish contempt so as to maintain the dignity of the court and ensure a fair trail
 a trial judge can declare a mistrial at virtually any point in the proceedings (from jury selection stage
(R v. McAnespie) to the post-conviction but pre-sentence stage (R v. MacDonald))
 inappropriate publicity, errors during jury selection, improper comments by the crown during
opening statements of closing submissions, inadmissible evidence being given to the jury – but the
judge should first try to remedy whatever prejudice has arisen through other means (e.g.;
adjournment, reopening the case, instructing the jury to ignore the submission or information that
they should not have heard) than a mistrial
 a mistrial can also be declared if the jury is unable to agree on a verdict (section 653)
 R v. Gunning – [2005] SCJ 25 – SCC – shot and killed an uninvited stranger at his party
 Facts: accused shot and killed C, a stranger who had entered his home uninvited during a party;
he denied that he intended to kill C; he testified that his memory was sketchy because had drank
some alcohol, but that C had assaulted him, refused to leave, and they had argued; the said he
was scared, so he took out his gun to intimidate C and the gun discharge accidently; the focus of
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the trial was whether the shooting was accidental or intentional; the trial judge instructed the
jury on the offence of careless use of firearm and refused to instruct het jury on the defence of
property – but later in the charge he tried to correct the instruction on the careless use of
firearm; accused was convicted of second degree murder; court of appeal upheld
 Issues: did trial judge exceed his proper function by directing the jury that the offence of careless
use of firearm had been made out an by failing to instruct the jury on the defence of property
 Held: the appeal should be allowed, the conviction set aside and a new trial ordered
 the trial judge erred in initially instructing the jury that, and his re-charge did not cure the error –
the jury should have been the one to decide whether the offence had been proven on the facts or
not; the judge could have given his opinion, but not a direction
 he had no entitlement to direct a verdict or to keep a defence from the jury a defence – he
should have instructed the jury on the law, and left for the jury the application of the law to the
facts; instead, he determined the merits of the defence, a matter that was for the jury to resolve
 the jury was not properly instructed, although a properly instructed may have still returned a
guilty verdict, it cannot be said that they may not have also been able to return a verdict of not
guilty had they been properly instructed
 R v. Hamilton – [2004] OJ 3252 – Ontario Court of Appeal – poor black women given conditional
sentences
 Facts: accused and another pleaded guilty to importing cocaine (they were unrelated cases, but
on joint sentencing hearing); they were both single black women with young children and limited
financial resources; sentence; accused was sentenced to 20 months with partial house arrest in
the first year and a curfew for the remainder; other was sentenced to two years less a day with
partial house arrest in the first 15 months and a curfew for the remainder; the trial judge
concluded that they were victims of systematic racial and gender bias which led to their
circumstances, making them vulnerable to those who seek cocaine couriers, and this mitigated
the sentences they received; crown sought leave to appeal and appealed sentences
 Issues: did the judge err in his sentencing
 Held: the sentences were unfit leave to appeal granted; (though appeal of sentence dismissed as
it was in interest of the administration of justice to allow them to complete their conditional
sentences)
 the judge made use of statistical information without the assistance of a properly qualified
witness, drawing conclusion that sentencing practise, as applied to those who imported cocaine
,reflected systematic, social, racial, and gender bias against poor black women
 his holding that such bias justified the imposition of the conditional sentence was a reversible
error
(d) The Role of the Prosecutor
 the prosecutor is an advocate, but also a quasi-judicial officer whereby he cannot act solely as an
advocate, but must also make decisions in the interest of justice and the larger public interest,
including the interest of the accused
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 when engaged as a prosecutor, the lawyer’s prime duty is not to seek a conviction, but to present all
the available credible evidence relevant to the alleged crime so that justice may be done through a
fair trial upon the merits
 when acting as a prosecutor, a lawyer shall act for the public and the administration of justice
resolutely and honourably within the limits of the law while treating the tribunal with candour,
fairness, courtesy, and respect
 R v. Cook – [1997] 1 SCR 1113 – SCC – assaulted two people, only one called to stand
 Facts: accused charged with assault causing bodily harm on a male victim and two counts of
sexual assault on a female victim after an incident at the woman’s apartment; jury found him
guilty of the first charge but was unable to reach a verdict with the respect of the other two
counts; the male victim didn’t testify; the crown called the woman to the stand, and her evidence
of assault was supported by DNA evidence and other evidence; no objection was raised at the
trial as to the victim’s not testifying and the accused declined to all any evidence; appeal court
overturned the conviction; crown appealed
 Issues: whether the crown has a mandatory duty to call certain witnesses
 Held: the appeal should be allowed (there is no duty resting upon the crown to call a given
witness)
 the crown has discretion with regards to the trial process – but it has to be careful because the
discretion isn’t absolute, and might result in an abuse of the process
 part of this discretion includes a choice of which witnesses to call - not all witnesses have to be
called by the prosecution (even if they have relevant testimony)
 since the crown has to disclose relevant information it possesses with regards to witnesses
testimonies, even if they are not called, the defence still knows what evidence the witness is
likely to provide, and can himself call on the witness (further, the judge can also call a witness
himself)
 Proulx v. Quebec (Attorney General) – [2001] SCJ 65 – McLachlin C.J., Iacobucci, Major, Binnie JJ. –
defamation suit against public prosecutor
 Facts: prosecutor initially determined there was insufficient grounds and unreliable identification
evidence to charge the accused with murder; five years later, accused launched a defamation
claim against investigators and prosecutors and a retired police investigator; the prosecutor then
sought the police investigator to the team and reopened the case; at trail, the jury found the
appellant guilty; court of appeal overturned; the accused then brought an action for damages for
malicious prosecution against the attorney general of Quebec; the superior court found the
attorney general liable; court of appeal allowed the appeal and dismissed the action; appeal to
the supreme court
 Issues: whether crown immunity for prosecutorial misconduct should be lifted
 Held: the appeal by the accused should be allowed
 prosecutors have discretion and decision-making authority to carry out their functions, however
they are not above the law
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 there are four requirements that must be established on a balance of probabilities in an action in
damages based on prosecutorial misconduct and those requirements are satisfied here (R v.
Nelles)
 a prosecutor doesn’t need to be convinced beyond a reasonable doubt of an accused’s person’s
guilt before bringing charges, but there has to be sufficient evidence to ground a reasonable
belief that a conviction could properly be obtained – in this case, it must have been clear to the
prosecutor that he evidence could not properly have resulted in a conviction
 in this case, the prosecutor appears to have missed a private interest (defence of the defamation
suit the accused had launched) along with the public interest of the prosecution – prosecutors
acting in good faith will have their immunity intact, but in this case the mixed motives of the
prosecutor amounted to malice
 Krieger v. Law Society of Alberta – [2002] SCJ 45 – SCC – crown prosecutor not disclosing result of
DNA test
 Facts: K was assigned to prosecute an accused charged with murder; prior to the preliminary
inquiry, he received the results of DNA test that implicated a person different than the accused;
the told the accused’s counsel that the results of the test would not be available in time for the
preliminary inquiry; the defence found out about the test results at the preliminary inquiry; K was
removed from the case and the accused complained to the law society; K said the law society had
no jurisdiction over a crown prosecutor; K’s application was dismissed by the Court of the
Queen’s Bench and it found him guilty; the court of appeal overturned the decision; appeal to
supreme court
 Issues: whether law society has jurisdiction over crown prosecutor
 Held: the appeal should be allowed and the trial judgement restored
 the federal government has jurisdiction over criminal law and procedure and the provinces have
jurisdiction over the administration of justice, including the regulation of lawyers and reviews of
alleged breaches of ethics
 the rules of the law society are not intended to interfere with the proper exercise of prosecutors
and their prosecutorial discretion
 a decision made by the crown prosecutor within the authority delegated to him is not subject to
interference; however, crown prosecutors are subject to the law society’s code of professional
ethics and conduct since they are members of the law society, and in the case of professional
misconduct (which is distinct from prosecutorial discretion), the law society can step in and
regulate
(e) The Role of the Defence
[pg 38]
 the defence counsel is an officer of the court and must be respectful and honest with the court
 he must not attempt to mislead the court as to the state of the law
 he is obliged to at solely in the interest of the accused, advising the accused on the implications of,
and propriety of pleading guilty, securing advantage of all procedural and constitutional protections
available to the accused that are not properly waived; and if the accused pleads not guilty, then
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preparing the case fully, challenging the sufficiency of the prosecutorial evidence, and advancing all
defences that properly arise
 when defending an accused, the lawyer’s duty is to protect the client as far as possible from being
convicted except upon legal evidence sufficient to support a conviction for the offence charge – he
must take particular care to be accurate, candid, and comprehensive in presenting the client’s case
so as to ensure that the court is not misled
(*)(The Role of the Lawyer as Advocate – Defence and/or Prosecution)
[pg 47 & pg 57]
 when acting as an advocate, the lawyer must treat the court or tribunal with courtesy and respect
and must represent the client resolutely, honourably and within the limits of the law
 it is in a lawyer’s own interest to carefully manage the establishment of a solicitor and client
relationship, even where one hasn’t been formally established (e.g.; through consultation only)
 the law society can take disciplinary action for professional misconduct (which is the conduct in a
lawyer’s professional capacity that ends to bring discredit upon the legal profession) – but it may also
do so when the conduct in a lawyer’s private life will reflect adversely upon the integrity of the
profession and the administration of justice, and will be likely to impair the client’s trust in the lawyer
 as a member of the legal profession, a lawyer is held out as knowledgeable, skilled, and capable in
the practice of law; accordingly, the client is entitled to assume that the lawyer has the ability and
capacity to deal adequately with legal matters to be undertaken on the client’s behalf
 a lawyer should not undertake a matter without honestly feeling competent to handle it or being
able to become competent without undue delay, risk, or expense to the client – the lawyer must also
recognize that a particular task my require seeking advice from or collaborating with experts in other
non-legal fields (as well as, perhaps, within the legal field itself), and inform the client likewise
 the lawyer fails to meet standards of professional competence if there are deficiencies in: his
knowledge, skill, or judgement; his attention to the interest of the clients; the records, systems, or
procedures of his professional business; other aspects of his professional business whereby the
deficiencies give rise to a reasonable apprehension that the quality of service to clients may be
adversely affected
 incompetent professional practice may give rise to disciplinary action by the law society
 when advising clients, the lawyer shall be honest and candid; giving advice that is open, undisguised,
and clearly discloses what the lawyer honestly thinks about the merits and probable results
 a lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is
possible to do so on a reasonable basis, and shall discourage the client from commencing useless
legal proceedings
 a lawyer shall hold in strict confidence all information concerning the business and affairs of the
clients acquired in the course of the professional relationship
 generally the lawyer shouldn’t disclose having been consulted or retained by a particular person
about a particular matter (including with his spouse or family, even if the client isn’t named or
identified) unless the nature of the matter requires such a discloser
 where he has to disclose such information to partners or non-legal staff, he should not disclose
more information than is required
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 a lawyer shall not withdraw from representation of a client except for good cause and upon notice to
the client appropriate in the circumstances – a client has the right to terminate the lawyer-client
relationship at will, but he lawyer doesn’t enjoy the same freedom; however where there has been a
serious loss of confidence between the lawyer and the client, the lawyer may withdraw
 while acting as an advocate, a lawyer shall represent the client resolutely and honourable within the
limits of the law while treating the tribunal with candour, fairness, courtesy, and respect; but in an
adversary proceeding, his function as an advocate is openly and necessarily partisan and he is not
obliged (except as required by law) to assist an adversary or advance matters derogatory to his
client’s case
 unless the client instructs otherwise, the lawyer for an accused may discuss with the prosecutor the
possible disposition of the case and enter into an agreement with the prosecutor about a guilty plea
– however, it is in the public interest that the proper administration of justice should not be
sacrificed in the interest of expediency
 a lawyer shouldn’t express personal opinions or beliefs or assert as a fact anything that is properly
subject to legal proof, cross-examination, or challenge
 a lawyer who is a witness in proceedings shall not appear as an advocate in any appeal from the
decisions of those proceedings
 a lawyer should observe the rules regarding to the communication with witnesses giving evidence
 a lawyer shall not communicate with anyone that the lawyer knows to be a member of the jury panel
for a trial in which he is acting as an advocate; and except as permitted by law, a lawyer shall not
communicate with or cause another to communicate with any members of the jury
 a lawyer should take care not to weaken or destroy public confidence in legal institutions or
authorities
 a lawyer shall encourage public respect for and try to improve the administration of justice, not just
in his professional capacity, but also due to his position in the community
 a lawyer may advocate legislative or administrative changes on behalf of a client even if he doesn’t
personally agree with them; but the lawyer who purports to act in the public interest should espouse
only those changes that he conscientiously believes in to be in the public interest
 where a lawyer acts as a mediator, he shall ensure that the parties understand that he is not acting
as a lawyer for either party, but rather as a mediator is acting to assist the parties to resolve the
matters in issue and that the communications therein will not be covered by the solicitor-client
privilege – also, as a mediator he can provide legal information, but not give legal advice
 a lawyer shall not give an undertaking that cannot be fulfilled, and shall fulfill every undertaking given
 a lawyer shall not communicate information to the media or make public statements about a matter
before a tribunal if the lawyer knows or ought to know that the information or statement will have a
substantial likelihood of materially prejudicing a party’s right to fair trial or hearing
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[SECTION 7] – GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION
 the fundamental rights guaranteed by the charter made it so that the courts becomes concerned
with the manner in which the police investigate crime by recognizing the following right:
 section 24(2) – a violation of any of these rights can result in the exclusion of relevant evidence from
the trial if its admission will bring the administration of justice into disrepute
 section 8 – rights to be secure against unreasonable search and seizure
 this provision protects all reasonable expectations of privacy, and such expectations are not
sacrificed simply because an accused was committing an offense – but what constitutes a
reasonable expectation of privacy depends on the context – e.g.; businesses operating in a
regulated field have less expectations of privacy over their business records
 where there is a reasonable expectation of privacy, the state must generally obtain prior judicial
authorization to authorize a search and seizure – unless the person consents to a search
 however, where there is imminent danger that evidence will be destroyed or someone will be
harmed, police need not wait to obtain a warrant
 if police are conducting a reasonable search incident to arrest now warrant is necessary
 when prior authorization for a search and seizure is sought, it should be granted only if there are
reasonable and probable grounds established on oath to believe that an offence has been
committed and that the search will reveal evidence of the offence (Canada v. Southam Inc.)
 parliament has enacted laws to grant warrants and authorize warrantless searches in exigent
circumstances
 courts have been reluctant to exclude evidence if the police acted in good faith; the seriousness
of the charter violation will be balanced against the harm to the repute of the administration of
justice caused by the exclusion of evidence
 section 9 – rights not to be arbitrarily detained or imprisoned
 the court has said that a person can be briefly detained if there are reasonable grounds to
suspect that he is connected to a particular crime and the detention is reasonably necessary (R v.
Mann)
 a person can be detained for valid reasons such as ensuring his appearance in court or preventing
the continuation of a crime
 a detained person has a right under section 10(c) to seek habeas corpus, and to be released if the
detention is not lawful
 under section 11(e), a detainee has the right not to be denied reasonable bail without just cause
 section 10(a) – rights to be informed of the reason for arrest or detention
 the accused must be informed promptly of the reason for detention or arrest; this doesn’t
require an explicit warning if the matter being investigated was obvious (R v. Evans)
 if there is more than one offence for which the accused is being held, he must be informed of all
of them
 section 10(b) – right to retain and instruct counsel without delay
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 those who are subject to arrest or detention have the right to retain and instruct counsel without
delay, and a right to be informed of that right
 detention includes not only physical constraint, but also the assumption of control over a person
by a demand with significant legal consequence, and psychological compulsion in the form of a
reasonable perception of lack of freedom of choice
 upon arrest or detention, the police must inform the detainee not only that he can consult a
lawyer, but also about the availability of publicly funded legal aid for those who cannot afford a
lawyer (and duty counsel who can provide temporary legal advice regardless of the detainee’s
financial status)
 once a detainee asks to speak to a lawyer, the police must facilitate access to counsel, and they
cannot elicit evidence from the detainee – they must refrain from doing so until he has had
reasonable opportunity to contact counsel
 the detainee should be allowed to consult a lawyer of his choice in privacy
 the detainee must exercise the right to counsel with diligence (R v. Smith) ; if he has been given a
reasonable opportunity to consult counsel, questioning by the police may resume without again
informing him of the right to counsel or providing another reasonable opportunity to consult
counsel (R v. Hebert)
 the accused’s right to counsel can be subject to informed and voluntary waiver
 before the charter, courts were reluctant to recognize a defence of entrapment
 six years after Estey J.’s dissent in R v. Amato, the supreme court recognized the defence of
entrapment (R v. Mack)
 entrapment occurs if the state offers a person an opportunity to commit a crime without
reasonable suspicion that the person was engaged in criminal activity, or while not engaged in a
bona fide inquiry into crime in a high crime area
 even if there is a reasonable suspicion or a bona fide inquiry, entrapment will also occur if the
state goes beyond providing the accused with an opportunity to commit a crime and actually
induces the commission thereof – doing so brings the administration of justice into disrepute as it
induces an average person to have committed a crime
 an entrapment defence is not attracted when the accused is entrapped into committing a crime
by private individuals not acting for the state
25. Police Powers
 police officers are independent of the crown, though they will seek legal advice from the crown
 the powers of the police are constrained by the law, and can be derived from statue, common law, or
by implication from statute and common law – the primary source of police powers is the criminal
code (it creates powers for the police to directly enforce the law, as well as a great number of powers
aimed at investigation crime, such as warrants and wiretap provisions)
 police powers are also limited by the charter – though the courts have to balance police powers in an
attempt to ensure respect for the accused’s liberty and other rights, while not undermining the
effectiveness of police investigations and law enforcement
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 section 487 creates the general search warrant provision allowing a justice to issue a warrant
authorizing the search of a building, receptacle or place, and the seizure of evidence found therein –
a justice will typically issue a warrant under this section if he is satisfied that the search will produce
evidence with respect to the commission of an offence
 section 487.11 allows a police officer to exercise the powers associated with search warrants
(section 487(1)) and tracking devices (section 492.1) without a warrant if the conditions are such that
it is impractical to get a warrant due to the exigent circumstances
 section 25.1 permits officers to, under certain circumstances, perform acts that would otherwise, for
an ordinary person, constitute a crime – to break the law in the course of their investigation
 historical common law powers of the police include the power to search incident to an arrest
(confirmed in Cloutier v. Langlois), in order to prevent the destruction of any evidence that might be
in the immediate control of the accused;, or to enter a private dwelling in hot pursuit of a person
fleeing arrest (otherwise the warrantless entry would likely, prima facie, violate the charter)
 when determining if the police power in question will be supported under common law, (i.e.;
whether the court will support the police power in question) the test is: does the conduct fall within
the general scope of any duty imposed by statute or recognized at common law; and does the
conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers
associated with the duty (R v. Waterfield)
 however, a distinction should be made between police duties and police powers (R v. Waterfield)
– albeit the duties of officers are very broad
 prior to the charter, there was no real basis to exclude evidence; as long as it was reliable, the means
by which it was obtained didn’t really matter
 section 24(2) of the charter allows, in some cases, for the exclusion of evidence – but the accused
has to establish the breach of a charter right in order to avail of this section – where there is no
charter violation found, the pre-charter position applies, and evidence, however begotten, will be
admitted (so, in some cases, there are no consequences for police acting without statutory or
common law authority provided they don’t violate any of the accused’s charter rights)
 cooperation by a suspect is effectively another source of police power (e.g.; although the officer has
no power to compel a person questioned to answer, if the suspect so chooses, his answers are
admissible if it can be proved that he statements were voluntary (R v. Esposito))
 however, there are limits to the consent (e.g.; where an accused agreed to give a DNA sample for
the investigation of one offence, using it for the purposes of an offence other than that which
was consented to, will not be accepted by the courts (R v. Borden) – however, if there were no
limits attached to the sample provided, then there is no reasonable expectation of privacy in the
sample, and the police may use it in any way they please (R v. Arp)
 furthermore, that consent is real from the start may be an issue since most people are unaware
that they can refuse to comply with a request from the police, and so when they cooperate, they
cannot really automatically be considered to have consented
 consent, even if voluntarily given, can be revoked (R v. Thomas)
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 the decision to grant or withhold a warrant requires the balancing of the interest of the individual to
be free from intrusions of the state, and of the state to intrude on the privacy of the individuals for
the purpose of law enforcement (Baron v. Canada) – in some cases, the public’s interest in being left
alone by the government must give way to the government’s interest in intruding on the individual’s
privacy in order to advance its goals, notably those of law enforcement (Hunter v. Southam)
 over the years, the state’s statutory ability to intrude on the individual has become greater – but the
requirements of accountability, openness, and the acknowledgement of the rights to privacy are still
there
 the intention of section 8 of the charter is to protect individuals from unjustified state intrusion upon
their privacy – an investigative technique will not count as a search only where it doesn’t intrude on
a reasonable expectation of privacy; similarly, no seizure has occurred if the accused’s reasonable
expectation of privacy was not infringed
 but there is a distinction between evidence that is seized, and evidence that is merely found
 general search warrant provisions are found in section 487 – the warrant must be issued by a justice
(someone who is neutral and impartial – in accordance with Hunter v. Southam); the justice must
make sure that some particular person is charged with the responsibility for the search (it’s not that
someone not named in the warrant can’t participate, or that everyone named in the warrant must
participate, but there must be some person responsible for the way the search is carried out to allow
for accountability (R v. Strachan)); the power to search under section 487 is limited to a building, a
receptacle, or a place, including he are surrounding a building (this authority does not allow a
warrant to be issued to search a person (R v. Legere)); and the justice must be satisfied of more than
the possibility (i.e.; that there are reasonable and probable grounds) that evidence will be found (not
just based on suspicion alone) (R v. Pastro)
 the information used to issue the warrant must be legally gathered; otherwise the evidence obtained
through the use of such a warrant is likely to be excluded as per section 24(2)
 the types of things for which search warrants may be issued are: anything on or in respect of which
an offence has been committed; anything that will provide evidence regarding an offence or the
location of a person suspected of committing an offence; anything reasonably believed to be
intended to be used to commit an offence for which the person could be arrested without warrant;
or offence related property (i.e.; property that has been or will be used in committing an indictable
offence)
 the police can’t just say that they believe evidence will be found, but rather they must inform the
issuing justice with some reasonable degree of precision, what evidence will be found, so that the
person whose property is searched is sufficiently informed of the reason for the search
 section 489 allows the police who are searching under a warrant to seize items not mentioned in
the warrant if they believe on reasonable grounds that they were obtained by, or were used in, or
afford evidence concerning an offence
 traditionally, statutory powers did not allow search of the person (so as to not affect a person’s
bodily integrity); however, recent amendments to the code have authorized searches that have
exactly that effect
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 although, generally, the requirements are the same as for a warrant to search a pace, the
application can’t be made to a justice of the peace; the judge issuing the warrant must believe
that doing so is in the best interests of the administration of justice
 it has been held that the samples taken and the results of analysis should not be used for any
other purpose than the investigation of the designated offense meeting the warrant
requirements (section 487.09(1) and (2))
 other search warrants (e.g.; wire taps, blood samples) generally share the basic characteristics of
section 487, that a warrant can only be issued of a justice is satisfied b y information on oath that
there are reasonable and probable grounds on which to authorize the particular intervention sought
 although there is no appeal from the issuance of a warrant (even if there is an issue as to whether
the search violated section 8) (R v. Meltzer), it is possible to challenge the issuance of a warrant –
but this may be an idle exercise as it doesn’t result in the return of the items seized or their exclusion
as evidence (R v. Zevallos)
 however, section 24(2) could be applied to exclude the evidence – but this can only be done at
trial
 in review, when the application is made at trial, however, the court can quash a warrant based on
either the inadequacy of the material remaining after some information (i.e.; information that was
advertently or fraudulently erroneous) is excised, or based on behaviour of the police that
intentionally misled or otherwise subverted the process of prior authorization
 and where a warrant is quashed, the search that ensued is determined to have been conducted
on a warrantless basis
 warrantless searches are, prima facie, unreasonable under section 8 (Hunter v. Southam); as such,
every warrantless search must be consistent with the minimum charter standards (as set out in R v.
Collins); so the two questions to be answered are whether a reasonable expectation of privacy exists
in order to invoke the section 8 defence, (and whether the search was an unreasonable intrusion on
that right to privacy (R v. Edwards)), and whether the (R v.) Collins criteria are met
 the main intent of section 8 seems to be to be related with the issue of privacy; which is why the
definitions of both search and seizure amount to asking whether there has been an infringement
on a reasonable expectation/entitlement of privacy, the standards of privacy a person can expect
to enjoy in a free and democratic society (R v. Wong)
 the right to privacy is contextual; it can be reduced in some circumstances, but enhanced in
others – similarly, there are circumstances in which the state’s interest can outweigh the
individual’s interests (e.g.; search incident to arrest is justified not because a person arrested has
lesser expectation of privacy, but because the immediate interest of the state in protecting the
security of the arresting officer and others increases at the point of arrest (R v. Caslake))
 the task in assessing a warrantless search is to balance the privacy interest of the accused against
the investigative interests of the state
 the privacy interests alleged must be that of the accused person; one cannot object to an
unreasonable invasion of another’s privacy (R v. Edwards)
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 there are three types of privacy that a person can reasonably expect: personal privacy, which
generally attracts the highest level of protection; territorial privacy that relates to searches of
places (a person typically has the greatest degree of privacy in a home, less in a vehicle, and less
still in a prison); informational privacy (i.e.; the biographical core of personal information that
individuals in a free and democratic society would wish to maintain and control from
dissemination to the state)
 the standard for finding that a person has no reasonable expectation of privacy should remain
high because when treated as an initial step, it removes any need to engage in a balancing of
interests; to say that a person has a reasonable expectation of privacy is not to say that that
person is immune from search – it just means that his interests must be weight against those of
the state in deciding whether a particular search is reasonable
 once it has been determined that an individual has a reasonable expectation of privacy, the issue
becomes whether the search itself is reasonable
 since warrantless searches are prima facie unreasonable (Hunter v. Southam), the court developed a
three-part test for answering that question in R v. Collins: is the search authorized by law; is the law
itself reasonable; was the manner in which the search was carried out reasonable
 since police derive their authority from statute, common law, and consent, all three are relevant
in determining if a warrantless search is reasonable
 section 487.11 allows warrantless searches in exigent circumstances (what matters is the
impracticability of obtaining a warrant in the particular case (i.e.; where there is an imminent
danger of the loss, removal, destruction, or disappearance of the evidence if the search or
seizure is delayed (R v. Grant))
 a great variety of individual provisions in various statutes allow for investigative techniques
that meet the definition of a search
 the goal of search and seizure law is to protect a reasonable expectation of privacy, primarily by
preventing unreasonable searches before they take place – generally, greater privacy should be
expected with regards to one’s person rather than place (however, although searches of a place
generally require a warrant, searches of the person are more often authorized on a warrantless,
common law basis – and searches of the person are assessed for validity after the fact)
 when police have validly arrested a person, they are entitled, within some limits, to search that
person
 search incident to arrest does not require that the police have reasonable grounds for the search;
it simply flows from the fact that the accused was arrested
 the search is not justified because of a reduced expectation of privacy on the part of the arrested
person, but rather because the police have an increased need to gain control of the things or
information following an arrest, which outweighs the individual’s interest in privacy
 a search incident to arrest extends not only to the accused personally, but also to the
surrounding area
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 the power to search incident to arrest depends essentially on three questions: was the arrest
lawful; was the search truly incidental to that arrest; was the search conducted in a reasonable
manner?
 the search must also be undertaken to achieve some valid purpose connected to the arrest – not
only must a valid purpose objectively exist, but the officer must also subjectively have made an
individualized decision to conduct the search for that purpose (i.e.; safety of the police and the
public; protecting evidence from destruction at the hands of the arrestee or others; and
discovering evidence that can be used at the arrestee’s trial (R v. Caslake)
 since evidence such as an accused’s DNA or dental impressions, is not in danger of being
destroyed or altered, bodily samples cannot be seized as an incident of an arrest
 the search must be related to the arrest (e.g.; an accused that is known to have a history of drug
offences cannot be searched for drugs if the actual arrest is for a traffic violation (R v. Golden)
 in R v. Mann, the court created a common law power to search during an investigative detention
– the scope of a search incident to investigative detention is more limited than a search incident
to arrest because it is limited to concerns of officer or public safety
 exigent circumstances can be relevant to whether a warrantless search is permitted; they are not,
ipso facto, justification for the search itself, but rather for proceeding without a warrant (as the
exigent circumstances made it impracticable to obtain a warrant)
 a warrantless search will also be authorized if the suspect consented to the search – however, the
question of whether the consent was valid, and the extent of the consent may arise
(acquiescence and compliance signal only a failure to object, they do not constitute consent (R v.
Wills) since most often people don’t know that they have the right to deny an officer’s request,
and so they feel they have no option but to consent); furthermore, since consent acts as a waiver
of charter rights, the standard for finding waiver is set high (R v. Clarkson)
 the test is R v. Wills is: that there was consent; that the giver of the consent has the authority to
give it; that it was voluntary; that the giver of the consent was aware of the nature of the police
conduct to which he was consenting; that the giver of the consent was aware of his right to
refuse consent; and that he giver of the consent was aware of the consequences of giving the
consent
 the question whether the law itself is reasonable tends to be subsumed into the question of whether
the search was authorized by law
 if a search power exists, it can be found that the actual search was unreasonable because of the
manner (i.e.; the physical way) in which it was conducted – generally, the more intrusive the nature
of the search, the greater the constraints on the way in which it can be reasonably performed (R v.
Golden)
 on some occasions, the state’s primary interest in conducting a search won’t be to prosecute a
criminal offence, but rather to enforce the rules of some regulated activity – effective regulation may
require surprise inspections or the examination of records, and therefore, the court has held that
people engaged in regulated activities have a lower expectation of privacy in relation to those
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activities, and as such, searches and seizures that do not comply with the Hunter v. Southam
standard, may nonetheless be reasonable in these cases
 special concerns come into play when warrants are issued for the search of media offices; in that
event, the guarantee of freedom of press in section 2(b) become relevant
 section 487.01 provides for warrants to perform investigative techniques that are not covered by the
other provisions of the code – it essentially fills in the gaps left by section 487 and other warrant
provisions
 section 487.01 creates a warrant to use any device or investigative technique or procedure or do
anything described in the warrant that would, if not authorized, constitute an unreasonable search
and seizure
 section 487.01(1)(a) allows an application based not just on reasonable ground s to believe that an
offence has been committed, but on the basis that an offence will be committed – in essence making
it an anticipatory search warrant
 a warrant under section 487.01 can only be issued by a judge or a justice (not by a justice of the
peace); the judge can attach conditions to ensure that any search or seizure authorized by the
warrant is reasonable in the circumstances; and the judge must be satisfied that it is in the interest of
the administration of justice to issue the warrant – the ability to attach conditions has the potential
to provide for sufficient balancing of individual freedom against the investigative needs of the state
 section 10 gives various rights on arrest or detention – detention can include not only those
situations where the police have an actual legal power to compel a person to remain, but also some
situations of ‘psychological detention’ in which no such power exists, yet the person complies with
the police demand nonetheless
 an accused can be detained despite an absence of physical restraint (R v. Schmautz)
 the court has recognized the concept of psychological detention because most people don’t know
whether they are, in fact, compelled to comply with police requests or not; and so, cooperation
can’t always be seen as truly voluntary (R v. Therens)
 answering questions cannot be seen as a waiver of the right to counsel (R v. Manninen); because
of the intimidating nature of police action, and uncertainty as to the extent of police powers,
compliance in such circumstances cannot be regarded as voluntary in any meaningful sense (R v.
Dedman)
 however, for the proper functioning of society and of police to be able to carry out their duties, it
is preferable for people to generally comply with police requests – such a preference would not
be encouraged by removing charter protections from those who do follow such requests
 the primary purpose of granting charter rights on detention (particularly the right to counsel) is to
protect the detainee from possible self-incrimination (R v. Bartle)
 some powers of detention exist by statute (e.g.; breathalyser demands; customs checks); detentions
that are only created by common law are controversial (whereby the court uses the Waterfield test
(that the police were acting in the general course of their duties, and that the actions that they took
were not an unjustifiable use of powers associated with those duties) to create new common law
police powers
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 R v. Simpson suggested that a power of investigative detention existed on some occasions if the
detaining officer had some articulable cause for detention; similarly, in R v. Mann, the court decided
that police can sometimes detain individuals for investigative detention, but that the detention must
be viewed as reasonably necessary on an objective view of the totality of the circumstances (the
overall reasonableness of the decision to detain, however, must further be assessed against all of the
circumstances, most notably the extent to which the interference with individual liberty is necessary
to perform the officer’s duty, the liberty interfered with, and the nature and extent of that
interference, in order to meet the Waterfield test)
 police can’t detain a person because they are suspicious in some general way, rather they must be
suspicious of a particular person because of some suspected connection to a particular rime already
known to them – the suspicion must be specific to the accused
 subsequent to Mann, the court has relied on the Waterfield test to create another police power of
detention (roadblocks) – although the police had no statutory authority to do so, they were
authorized at common law (R v. Clayton)
 R v. Grant – [2009] SCC 32 – SCC – young back guy stopped by three cops
 Facts: the officers, two (W and F in plainclothes and an unmarked car, were patrolling near an
area with history of student assaults, robberies, and drug offences; the accused, a young black
man, came to the attention of the W and F; they suggested to G (the third officer) that he have a
chat with the accused; G did so while standing directly in the path of the accused; after some
time, W and F approached and identified themselves as cops and stood behind G, obstructing the
way forward; they asked the accused if he had anything he shouldn’t, he said some weed and a
weapon; the officers arrested and searched the accused, seizing the weed and the weapon; they
advised him of his right to counsel and took him to the station; at trial the accused alleged
violations of section 8, 9, and 10(b); trial judge found no charter breach and convicted the
accused; court of appeal said that detention had come into place during the conversation with G
(before the incriminating statements were made) and that it was arbitrary and so in breach of
section 9, nevertheless that the gun should be admitted into evidence; appeal to supreme court
 Issues: were the accused section 9 and 10 rights violated
 Held: appeal should be dismissed
 detention under sections 9 and 10 refers to a suspension of the individual’s liberty interest by a
physical or psychological restrain – psychological detention is established when a (modified)
reasonable person would conclude by reason of the state conduct that he had no choice but to
comply
 the accused was detained within the meaning of sections 9 and 10 before being asked the
questions that led him to disclose his possession of the firearm
 the encounter took on the character of an interrogation, going from general neighbourhood
policing to a situation where the police had effectively taken control over the accused and were
attempting to elicit incriminating information from him – even though G’s questioning was
respectful, the encounter was intimidating as the power balance was exacerbated by the
accused’s youth and inexperience
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 the right to counsel arises upon detention, and in failing to do so, the evidence of the firearm was
obtained in a manner that breached the accused’s rights under the charter
 exclusion of evidence, under section 24(2), in the case of a breach of charter rights is not aimed
at punishing the police or providing compensation to the accused, but rather at systematic
concerns and the repute of the justice system – the decision has to consider the effect of
admitting the evidence on society’s confidence in the justice system and society’s interest in the
adjudication of the case on its merits (whether the truth-seeking function of the criminal trial
process would be better served by admission of the evidence or by its exclusion)
 although the gun was discovered as a result of the accused’s statements taken in breach of the
charter, the charter-infringing police conduct was neither deliberate nor egregious, and there
seems to be no evidence of racial profiling or discriminatory police practices
 the officers went too far in detaining the accused and asking him questions, but the point at
which an encounter becomes a detention isn’t always clear, and the officers’ mistake was an
understandable one
 the trial judge was correct in this assessment that the admission of the gun would not bring the
administration of justice into disrepute
 R v. Suberu – [2009] 2 SCR 460 – SCC – cop tells suspect not to get into van and then gets info to
arrest
 Facts: constable R responded to a call about two male suspects attempting to use a stolen credit
card at a store; when he got to the store, another officer was talking to the employee and a male
customer; S walked by R and said “he did it, not me”; R followed S outside and told him to wait as
S was getting into the driver’s seat of a minivan; R received more information by radio including
the description and licence plate of the van that was used by two men who had used a stolen
credit card earlier that day; it matched the van S got into; at this point R decided he had
reasonable and probable grounds to arrest S of fraud; he advised S of the same and told him
about his right to counsel; at trial, S claimed his section 10(b) rights had been infringed because
he was detained as soon as R told him to wait, and that R’s failure to tell him of his section 10(b)
rights at that point was a charter violation; trial judge dismissed S’s application; court of appeal
upheld; appeal by S to supreme court
 Issues: were the accused’s charter rights violated when he was detained
 Held: the appeal should be dismissed
 the police duty to inform an individual of his section 10(b) right is attracted at the outset of an
investigative detention because of concerns about self-incrimination and the interference with
liberty
 the words “without delay” in section 10(b) must be interpreted as immediately; however,
reasonable limitation as to the immediacy is justified under section 1 where there is concern for
officer/public safety
 however, since not all interaction with the police amounts to a detention, even when a person is
under investigation for criminal activity, is asked questions, or is physically delayed by contact
with the police, the police can wait a short period of time in order to determine whether anything
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but a very brief detention (i.e.; investigative detention) is necessary, and thus the charter rights
are invoked
 investigative detentions are intended to be of brief duration, and informing the person of the
right to counsel would necessarily lengthen that time
 though S was momentarily delayed when R asked to speak to him, he was not subjected to
physical or psychological restrain so as to amount to detention within the meaning of the charter
– he didn’t testify, and the evidence did not support his contention that his freedom to choose to
cooperate was removed – it was only when R received the additional information and
determined that he could not let S leave that the detention was crystallized and section 10 was
attracted (and it was at this point that R promptly and properly informed S of his rights to
counsel)
 sections 25.1 to 25.4 permit police officers to break the law – not that it authorizes such actions,
rather that such actions are justified (as defences under the protection of persons administrating
and enforcing the law)
 these provisions were a legislative response to a supreme court decision regarding police undercover
work in R v. Campbell and protect particular officers from criminal liability in particular situations
 the provisions allow the federal or provincial minister responsible for police to designate certain
officers, and such officers so designated are justified in committing an act or omission that would
otherwise constitute an offence provided that: the officer is investigating an offence or criminal
activity; and that if the breaking of that law, in that officer’s judgment, is a reasonable choice
 designations for this purpose are not made in relation to a particular investigation, but rather with
regard to the particular officer (e.g.; such provisions are used to cover the actions of undercover
officers)
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[SECTION 8] – GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED
26. Securing Jurisdiction over the Accused and Interim Release
 a court must not only have jurisdiction over the matter of an offence, but also the accused – and this
is done if the accused is within the territorial limits of the court’s jurisdiction or has otherwise been
lawfully ordered to appear before the court
 thanks to section 485, jurisdiction over an offence is not lost simply because a judge fails to exercise
jurisdiction at any particular time or fails to comply with any provisions respecting adjournments or
remands – jurisdiction is not lost over an accused because of non-appearance
 the court has no jurisdiction over diplomats; persons under the age of twelve as they are presumed
to be incapable of crime
 indictable offences are generally not barred by time limitations
 summary conviction matters only fall into the jurisdiction of the court within six months following the
completion of the offence
 because offences cannot be passed retroactively, a court has no jurisdiction to try a charge that was
not actually an offence when it occurred
 the police have specified powers to arrest individuals – so do non-police officers
 arrest is one of the ways of compelling a person’s appearance n court – but the charter guarantees
particular rights on arrest or detention, and so constitutional rights are also relevant to arrests
 arrest (i.e.; taking physical control over the subject) is to be used as a last resort when other, less
intrusive measures available for ensuring the good conduct and attendance before the criminal
justice process (such as appearance notice, promise to appear, summons) are not practical or
desirable
 when a person is arrested, he must be released or given a bail hearing where it will be decided
whether he should be released absolutely, released subject to conditions, or held in custody pending
trial
 arrest powers are most important in the context of apprehending a person believed to have
committed a crime – but there must be a balance between legitimate state interest in prosecuting
crime (where a person is required to answer a criminal charge, and thus to appear in court) and
individual freedom (Western democratic principles hold that the state should not interfere with the
liberty of individuals without good reason, and no more than is necessary)
 arrest is a continuous act, starting with the moment of custody and extending until the person is
either released from custody or brought before a justice and detained
 a warrant can only be issued after an information that sets out the reasonable grounds to believe
that a person has committed an offence is laid before a justice; where a justice is satisfied that a case
for doing so is made out, he can issue a summons or warrant requiring the accused to attend before
a justice to answer the charge
 the peace officer to whom the warrant is issued must be within the territorial jurisdiction of the
person who issues it; a warrant from a justice or a provincial court judge can be executed anywhere
in the province in which is it issued; in the case of fresh pursuit, a warrant can be executed anywhere
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in Canada; a warrant issued in one jurisdiction can be endorsed by a justice of another jurisdiction
and become executable there if the accused is believed to be in that other jurisdiction
 the warrant must name or describe the accused, set out briefly the offence that the accused is
charged with, and order that the accused be brought before a justice to be dealt with according to
law
 as per section 29 anyone who arrests a person has to give that person notice of the process (or
warrant) under which the arrest is made, and the reason for the arrest – furthermore, section 10(a)
of the charter creates the right to be informed promptly on arrest of the reasons therefor, giving the
accused sufficient information to decide whether to submit to the arrest and to make an informed
choice about the right to counsel
 warrantless arrests are governed by section 494 and 495 which create a number of arrest powers
available to anyone (section 494(1)), to property owners (section 494(2)) and to peace officers
(section 495(1)) – anyone who is not a peace officer and makes an arrest is required to deliver that
arrested person as soon as reasonably possible or practicable under all the circumstances (R v.
Cunningham)
 some arrest powers are limited to indictable offences (including hybrid offences); others to criminal
offences (indictable or summary)
 the ‘finds committing’ standard requires that the person arresting actually have witnessed the
commission of the offence
 the ‘reasonable grounds to believe’ standard requires the person performing the arrest subjectively
believes that the person has committed the offence, and that the belief is objectively justifiable –
more than a mere suspicion is necessary, but the police are not required to have a prima facie case
before arresting (an objectively unreasonable arrest should not be allowed simply because of the
officer’s personal belief; similarly, even if reasonable grounds for arrest exist on an objective basis,
the arrest is improper if the officer didn’t have the necessary subjective belief
 section 494(1) gives the arrest power to anyone and are the most limited; anyone may arrest a
person whom he finds committing an indictable offence – alternatively, anyone may perform an
arrest if he believes, on reasonable grounds, that some person has committed a criminal offence and
is escaping and being freshly pursued by some other person with the authority to arrest
 section 494(2) creates an arrest power for property owners; anyone who owns or is in lawful
possession of property can arrest not only for indictable offences, but also for any criminal offences
they find being committed on or in relation to their (real or personal) property
 section 495(1)(a) permits a peace officer to arrest anyone who has committed an indictable offence
or who, on reasonable grounds, he believes had committed or is about to commit an indictable
offence; section 495(1)(b) permits a peace office to arrest anyone he (actually) finds committing a
criminal offence; section 495(1)(c) permits a peace officer to arrest a person if he reasonably believes
that a warrant exists for that person’s arrest
 section 495(2) permits an officer to arrest because he believes on reasonable grounds that an arrest
is the only way to establish the identity of the person, or secure or preserve evidence of or relating to
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the offence, or prevent the continuation or repetition of the offence or the commission of another
offence, or because he reasonably believes that the person will not attend court unless arrested
 the major goal of section 10(a) is to allow an accused to know why he is being arrested in order to
decide whether to submit to the arrest – an officer who attempts to arrest without authority is
committing an assault, and the person would have the right to resist the arrest; however, if the
officer actually had the power to arrest, then the person resisting would be guilty of either resisting
arrest or assaulting an officer in the execution of his duty
 the majority of arrest powers are intended to compel the appearance of the accused (balancing state
concerns with respect for the accused’s liberty interests); an accused who evades service of
summons, doesn’t appear for fingerprinting, or violates a release condition can have an arrest
warrant issued against him
 section 25(1) permits anyone making a lawful arrest in using as much reasonable force as necessary
to do so
 force likely to cause death or grievous bodily harm is only permitted when, even if there is a warrant,
a warrantless arrest would be allowed, the person has taken flight to avoid arrest, the person using
the force believes on reasonable grounds that it is necessary for the purpose of protecting himself or
some other person from imminent or future death or grievous bodily harm, or the flight of the
person cannot be prevented in a less violent manner (section 26)
 anyone arresting the wrong person under a warrant is not criminally responsible, provided he
believed in good faith and on reasonable grounds that he was arresting the correct person (section
28)
 officers are required to obtain specific authorization on an arrest warrant if they wish to enter a
dwelling house in order to effect the arrest – however, an officer can enter without a warrant in
exigent circumstances where there are reasonable grounds to believe the person is in the house, and
conditions to obtain a warrant exist, but he circumstances make it so that it is impractical to actually
obtain the warrant
 in the case of hot pursuit, there is a common law exception to warrantless entries; and it is justifiable
even under the charter (R v. Feeny)
 if the arresting officer or the officer in charge don’t release an accused ,then as per section 503 the
arrested person must be taken in front of a justice of the peace without unreasonable delay (and
within 24 hours) to consider the issue of release (the standard is without unreasonable delay, the
outside limit is 24 hours)
 if an accused doesn’t know the reason for the arrest, then he is not obliged to submit to it (R v.
Evans); so section 10(a) provides that an accused is to be informed promptly of the reasons for the
arrest
 the accused has to be given the opportunity to be informed of his rights and obligations and be able
to obtain advice on exercising those rights and fulfilling those obligations (i.e.; right to counsel under
section 10(b)), hence why it is so important to inform him of the reasons for arrest, so that he know
the extent of his jeopardy
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 a ‘standard caution’ (equivalent of Miranda rights) is read to the accused so as to instruct the
accused as clearly as possible about his rights upon arrest (including right to counsel, access to duty
counsel); these informational aspects of the section 10(b) right arise in every arrest
 when an arrested person has expressed a wish to speak to counsel, he has to be provided with a
reasonable opportunity to do so, unless there is a situation of urgency in which case the obligation
may be temporarily postponed (R v. Manninen); including the right to do so in private (R v. Playford)
with the counsel of his choice (R v. Ross)
 when an arrested person has requested counsel, the police must hold off from questioning and
eliciting evidence from the accused until he has had a reasonable opportunity to contact his counsel
 these implementational duties don’t arise for every accused, they can be waived, and can be lost
through a lack of reasonable diligence; (i.e.; they only arise when the accused has actually indicated a
wish to speak to counsel; an accused, if he has full knowledge of the right he is giving up, can waive
the same; if the arrested person is not reasonably diligent in the exercise of his rights, then the duties
can be lost, whereby the arrested person still has his rights intact, but the police are no longer
obliged to hold off their investigation)
 a person who has been arrested and has already spoken with counsel may then be questioned by
police; even if he indicates that he doesn’t want to speak with the police, it doesn’t impose a duty on
the police to stop their questioning – the accused isn’t required to answer questions ,but that doesn’t
mean the police are required not to ask them (R v. Singh)
 the code provides powers to the police to require an accused to attend court through some type of
written demand or to arrest the person (preference is given to not arresting, and if possible,
appearance should b sought without arrest and detention) – a police officer’s decision that an
accused should be made to attend court is never sufficient in and of itself; it is always necessary for
some judicial officer to confirm that decision
 if an officer decides that a person should be prosecuted, there are ways to compel that person to
attend court before an information is laid and he is actually charged: warrantless arrest, appearance
notice, promise to appear, or recognizance – the least restrictive method should be used, and the
more restrictive only when there is a good reason to arrest (i.e.; ensure appearance in court,
establish identity, secure evidence, or prevent further offences)
 an appearance notice directs the person to whom it is issued to appear in court at a specified
date, time, place; failure to comply therewith is an offence
 a promise to appear is a written promise by the accuse to attend court at a specified date, time;
failure to comply therewith is an offence
 a recognizance is a written acknowledgement of a debt which would be forfeited upon failure to
appear in court
 before that first appearance, an information must be laid before a justice; if the justice doesn’t
believe there are reasonable grounds to endorse the information, he will cancel the appearance
or promise or recognizance previously ordered; if the justice does endorse the information, he
can either confirm the appearance/promise/recognizance, or cancel it and issue a summons or
warrant for arrest
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 when an information is laid before trying to approach the accused, and the justice endorses the
charge, he will issue either a summons (or a warrant for arrest where there are reasonable grounds
to believe that a warrant is necessary in the interest of the public)
 judicial interim release (i.e.; bail) is a statutory preference for interfering with liberty as little as
necessary – that an accused should be released pending trial and with as few restrictions as possible;
and so, an accused must be brought to justice without unreasonable delay, so as to guarantee a
speedy consideration of release, and that he justice shall order the accused released on an
undertaking without conditions (unless the crown can show cause as to why something more
restrictive is justified)
 section 515(2) sets out that, in order to ensure that the accused attends court or to ensure the
safety of the community while the accused is on release, these restrictions imposed on an
accused as conditions of release can be: undertaking with conditions or recognizance (without
surety, without deposit; with surety; without surety, but with deposit; with surety, with deposit)
 the crown may show cause as to why the accused should remain in custody until trial: (section
515(10)(a)) to ensure the accused’s attendance in court; (section 515(10)(b)) that it is necessary
to do so for the prosecution or the safety of the pubic (including victims and witnesses); (section
515(10)(c)) on any other just cause being shown where the detention is necessary in order to
maintain confidence in the administration of justice
 for the offences listed in section 515(6) the justice must detain the accused unless the accused
can show cause not to do so (e.g.; when the accused isn’t ordinarily residing in Canada); or in
some cases, order release, but with conditions that he accused has the reverse onus of showing
cause that the why the conditions shouldn’t be imposed (e.g.; when the offence charged was
committed while he was already out on bail; the offence charged was a criminal organization,
terrorism, or national security offence; the offence is related to failing to attend court; the
offence was punishable by life imprisonment)
 for the offences listed in section 469, the justice has no authority to release the accused and
must order the accused detained to be dealt with according to het law (but under section 522, a
judge of the superior court is authorized to release such a person, but the onus is on the accused
to show cause thereto)
 an accused who has, or is about to violate any condition of the interim release can be arrested, with
or without a warrant
 R v. Hall – [2002] SCJ 65 – SCC – brutal murder leads to denial of bail for confidence in administration
of justice
 Facts: woman was found brutally murdered causing public concern and fear that a killer was at
large; based on compelling evidence linking the accused to the crime, he was charged with first
degree murder; he applied for bail; bail judge denied bail under section 515(10)(c) in order to
maintain confidence in the administration of justice; the superior court dismissed the challenge
to the constitutionality of section 515(10)(c); court of appeal affirmed the decision; appeal to
supreme court
 Issues: whether bail judge erred by denying bail on the basis of 515(10)(c)
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 Held: the appeal should be dismissed
 section 11(e) of the charter guarantees a right not to be denied reasonable bail without just
cause and the presumption of innocence
 denial of bail to maintain the confidence in the administration of justice (as per section
515(10)(c)) complies with section 11(e) of the charter because a judge can only deny bail if he is
satisfied that a reasonable member of the community would be satisfied that the denial of bail is
necessary to maintain the confidence in the administration of justice – the provision strikes a
balance between the rights of the accused with the need to maintain justice in the community

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[SECTION 9] – GETTING READY FOR TRIAL
 the charter plays an important role in the criminal trial process by ensuring that the trial is conducted
in a fair manner
 the broad guarantee that everyone has a right to life, liberty, and security of the person, and that the
same can only be taken away in accordance with the principles of fundamental justice effects all
aspects of the criminal process
 under section 11(b), the crown is required to provide a trial in a reasonable time; otherwise the
accused can be entitled to a stay of proceedings (R v. Askov) – it also depends on whether the
accused has waived his rights by consenting to the delay, whether he has suffered prejudice because
of the delay, the length of the delay, and the explanation for the delay
 courts can order that evidence heard at bail hearings or preliminary enquiries not be published until
after a trial in order to protect the accused’s right to a fair trial; there should be a balance between
the public’s right to freedom of expression and the accused’s right to fair trial
 section 11(d) provides that the accused has the right to be presumed innocent until proven guilty
according to law in a fair and public hearing by an independent and impartial tribunal – the crown is
required to prove guilt beyond reasonable doubt as to all aspects of an offence in order to get a
conviction
 under section 11(c), an accused cannot be compelled to testify in his own trial
 except in a perjury trial, under section 13, evidence that an accused gives as a witness in another trial
cannot be used to incriminate him (unless the crown can show that it could have been discovered
without forcing he accused to participate in the other trial giving evidence so as to his own selfincrimination)
27. Disclosure
 a key right of the accused, and an important obligation of the crown is to make full disclosure of all
information, save what is clearly irrelevant or privileged, gathered by or made known to the police
during the investigation, to the accused before the accused is called upon to elect his mode of trial
 the accused can also seek third party records (i.e.; relevant documents that are not part of the
investigation, and are under the control of persons other than the prosecution and police)
 the information of the investigation which are in the possession of the crown aren’t the property of
the crown for use in securing a conviction, but rather are the property of the public to be used to
ensure that justice is done – although the defence has no obligation to assist the prosecution
 the crown can decide what evidence is relevant and can delay disclosure for legitimate reasons (e.g.;
protecting informers)
 disclosure is necessary to protect the accused’s right to make full answer and defence - section 7 has
been interpreted to provide the accused with a right to make full answer and defence in response to
the criminal charge laid against him, including through cross-examination of the crown’s evidence
and witnesses, as well as being able to call his own evidence and witnesses
 R v. Stinchcombe concluded that an accused person has the right to disclosure of the crown’s case
under section 7 of the charter (before this point, there was no effective right thereto)
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 the crown has a legal duty to disclose all relevant information to the defence
 information should not be withheld if there is a reasonable possibility that this will impair the right of
the accuse to make full answer and defence
 all relevant information must be disclosed, both that which the crown intends to introduce into
evidence and that which it does not; whether the evidence is inculpatory or exculpatory; whether the
evidence is credible or not is for the trial judge to decide after hearing it
 relevance is assessed in relation to the charge itself and to the reasonably possible defences
 the information of the investigation which are in the possession of the crown aren’t the property of
the crown for use in securing a conviction, but rather are the property of the public to be used to
ensure that justice is done – although the defence has no obligation to assist the prosecution
 disclosure should be done prior to election of method of trial or plea
 the duty to disclose is triggered whenever there is a reasonable possibility of the information being
useful to the accused in making a full answer and defence (R v. Dixon)
 the obligation not disclose is a continuing one; the crown must disclose any additional information it
receives
 the crown need not disclose what is clearly irrelevant (R v. Stinchcombe)
 the need to complete an investigation may justify the crown in delaying some disclosure
 the crown’s discretion with regards to disclosure can be reviewed by the trial judge if the defence
counsel disagrees with the way in which it has been exercised
 the right of an accused to full disclosure is part of the right to make full answer and defence, as such,
it isn’t itself a constitutionally protected right; therefor, although the crown has an obligation not
disclose, a simple breach of the accused’s right to disclosure doesn’t, in and of itself, constitute a
charter violation (R v. O’Connor)
 later cases (R v. Carosella, R v. La) have stated that disclosure is an independent right guaranteed
by section 7, and not merely an aspect of the right to full answer and defence – but R v. La also
showed that where the crown can satisfactorily explain the failure to disclose, then the breach of
the right to disclosure becomes less important (unless the accused can show some prejudice
suffered thereby)
 R v. Dixon undid the main effects of Carosella, whereby it was held that the right to disclosure is
only a component of the right to make full answer and defence
 R v. Taillefer states that infringement of the right to disclosure is not always an infringement of
the right to make full answer and defence – to determine whether there was an infringement of
the right o make full answer and defence, the accused will have to show that there was a
reasonable possibility that the failure to disclose affected the outcome of the trial (the evidence,
including the undisclosed evidenced, has to be considered overall, not each piece of undisclosed
evidence individually on its own) or the overall fairness of the trial process (the reasonable
possibility thereof)
 the test is: was the accused’s right to disclosure breached; if so, did that breach violate the accused’s
right to make full answer and defence; if so, what remedy should be granted
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 the defence counsel can’t just assume that all relevant information has been disclosed; its obligation
to be duly diligent in pursuing disclosure is ongoing throughout the trial process
 the obligation to disclose isn’t absolute, so the crown can justify non-disclosure in circumstances
where the public interest in non-disclosure outweighs the accused’s interest in disclosure (Michaud
v. Quebec Attorney General)
 the right to disclosure is also subject to rules of privilege (R v. Stinchcombe)
 the identity of police informers is entitled to the highest level of protection in order to protect
the individuals concerned, as well as to preserve the investigative method – this right will
generally only have to give way to the accused’s right to disclosure if the accused has no other
way to prove his innocence
 solicitor-client privilege protects the ability of an accused person to gain legal advice in
confidence – this right will generally only have to give way to the accused’s right to disclosure if
the accused has no other way to prove his innocence
 with regards to third party records, although a complainant has a privacy interest in counselling
(e.g.; psychiatric, medical, etc.) records, they are not automatically subject to the same kind of
blanket protection as informer or client-solicitor privilege; claims by an accused for access to such
records are governed by sections 278.1 to 278.91 in response to R v. O’Connor
 these records are usually not in the hands of the crown, but rather with a psychiatrist, doctor,
counsellor, so it is actually the production (and not the disclosure) of these documents that is
in question – third parties have no obligation to assist the defence, and the records are not
part of the case (of the crown) that the accused has to meet
 the onus is on the accused to persuade the judge to examine the third party records; then, if
he decides to do so, having looked at the records, the judge must decide whether to release
the same, or some parts thereof, to the accused
 the rights of the accused to make full answer and defence have to be weighed against the
third party’s privacy interest
 section 278.2(2) applies these principles to such counselling records in the hands of the crown
as well
 R v. Stinchcombe – [1991] 3 SCR 326 – SCC – crown didn’t disclose content of statements to defence
 Facts: the accused, a lawyer was charged with breach of trust, theft, and fraud; his former
secretary gave evidence favourable to the defence at the preliminary hearing; after the
preliminary inquiry, but prior to trial, she was interviewed by the police, and her statement was
recorded; during trial, she was interviewed by the police again, and her written statement taken;
defence was informed of the statements, but not the content; request for disclosure was refused;
crown decided not to call witness during trial; defence sought an order to call the witness and to
disclose the contents of the statement; the trial judge dismissed the application; the trial
continued and the accused was convicted of breach of trust and fraud; the court of appeal
affirmed; appeal to supreme court
 Issues: whether the crown is obliged to disclose the statements
 Held: the appeal by the accused should be allowed and a new trial ordered
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 the crown has a legal duty to disclose all relevant information to the defence
 information should not be withheld if there is a reasonable possibility that this will impair the
right of the accuse to make full answer and defence
 all relevant information must be disclosed, both that which the crown intends to introduce into
evidence and that which it does not; whether the evidence is inculpatory or exculpatory; whether
the evidence is credible or not is for the trial judge to decide after hearing it
 relevance is assessed in relation to the charge itself and to the reasonably possible defences
 the information of the investigation which are in the possession of the crown aren’t the property
of the crown for use in securing a conviction, but rather are the property of the public to be used
to ensure that justice is done – although the defence has no obligation to assist the prosecution
 the crown was not justified in refusing disclosure
 R v. McNeil – [2009] SCC 3 – SCC – disclosure of witness’s (arresting officer) misconduct documents
 Facts: accused was convicted on multiple drug charges; arresting officer was the main witness;
before sentencing, accused found out arresting officer had been involved in drug-related
misconduct, had internal hearings with the department, as well as criminal charges; at
preliminary hearing at the court of appeal, accused sought production of all documents relating
to arresting officer’s misconduct saying he needed it to assist him in preparing an application to
introduce fresh evidence on his appeal; court of appeal ordered the documents to be produced;
subsequently, the arresting officer pleaded guilty to one of the charges that were brought against
him, and that evidence was admitted on the accused’s appeal; the accused’s convictions were set
aside and the crown did not re-prosecute him; the issue of the production of the evidence was
rendered moot and the accused withdrew his participation in the appeal; the court, nevertheless,
heard the appeal despite its mootness
 Issues: do the rules governing third party disclosure apply
 Held: the appeal is allowed and the order in the court below is set aside
 under the Stinchcombe regime, the crown’s disclosure obligation extends only to material
relating to the accused’s case in the possession or control of the crown
 there is also a necessary and collar obligation on the police to disclose to the crown all the
material it has pertaining to its investigation of the accused – and the police is, although separate
from the crown, an extension of the crown, and as such not a third party from whom the records
are sought
 records relating to misconduct by the officers involved in the investigation of the accused,
misconduct that is either related to the accused’s investigation, or can reasonably impact the
case against the accused, falls within the scope of first party disclosure that the crown is under
 (R v. O’Connor) with third party disclosure issues, the person seeking production of the
documents in the possession of a third party has to satisfy the court that the documents are likely
relevant to the proceedings; and if the court agrees, once those documents are produced for
inspection by the court, the court can determine whether production of those documents should
be provided for the party applying
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 once the court has inspected the third party records and ascertained that they are relevant to
the accused’s case (that they pertain to an issue at trial), then the Stinchcombe regime
applies, of determining and balancing the interest of whether the disclosure for the purpose
of making full answer and defence will outweigh the privacy interest held by the third party in
the material
28. Preliminary Inquiries
[pg 22]
 before an accused is tried for an indictable offence, a preliminary hearing may be held at the request
of the accused (the prosecution can also request it) – there is no entitlement to an preliminary hear
in summary conviction matters; in the absence of a request, the accused is simply committed to
stand trail
 at the preliminary inquiry, the judge must determine whether the crown has presented a prima facie
case – one of the central functions of a preliminary hearing is to serve as a screening mechanism for
unmeritorious prosecutions; however, that determination will only be made with regards to the
issues and/or evidence specified beforehand (on issues not in question, it will be presumed that the
crown has a sufficient case)
 if the crown has been able to prove a prima facie case, the accused is committed to stand trial
 if the crown hasn’t done so, the accused is discharged – however, this is not the same as an
acquittal; the prosecution can, in the case of a discharge at the preliminary hearing, try again (but
not unless important new evidence is uncovered)
 the attorney general can either bypass the preliminary hearing all together, or despite a
discharge therein, lay a direct indictment against the accused
 the possibility of having a preliminary inquiry depends on the classification of the offence (i.e.; is it
one that falls within the absolute jurisdiction of a provincial court judge, meaning that a justice has
no authority to hold a preliminary hearing), and second on the election of the accused as to the
mode of trial
 the scope of the inquiry is defined by section 535; whereby the scope is not strictly limited to the
offences as charged in the information, but can extend to any indictable offences disclosed by the
evidence, provided that it arises from the same transaction – and the judge can commit the accused
to stand trial for any or all of the offences mentioned or any or all of the offences that may arise as
disclosed by the evidence
 section 601 gives the judge broad powers to amend the charge in the information at the
preliminary hearing as well so that he can amend the information to ensure that the charges
conform with the evidence
 the judge at the preliminary inquiry has to powers to order the severance of accused or counts
 if multiple accused are charged in a single information, each is entitled to make a request for
preliminary inquiry; such an inquiry must be held in respect of all the accused and each of them is
entitled to participate (they don’t all have to agree on the same points to be brought up before the
judge, meaning that any and all issues that any or all of them wish to address will be heard at the
preliminary inquiry)
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 a court conducting a preliminary inquiry has no jurisdiction to grant constitutional remedies
 evidence at a preliminary inquiry is taken under oath and recorded, and it must comply with the
principles and rules of admissibility that apply at trial; however, the judge has no authority to call
witnesses or force the parties to produce certain witnesses, or to determine the constitutional
admissibility of the evidence
 the defence is entitled to cross-examine the prosecution witnesses at the preliminary hearing on any
matter that could lead to the conclusion that the prosecution evidence is insufficient, as well as in a
manner that might be useful in the trial should the preliminary inquiry hold the accused committed
to trial (even if that happens to be outside the scope of the preliminary inquiry itself); but, as per
section 537(1.1), the judge has the power to stop any part of the cross-examination that is abusive,
too repetitive, or otherwise inappropriate
 however, the judge has no jurisdiction to order the prosecution to call a witness, or to call a
witness himself; all he can do is ask the prosecutor to consent to call a witness for the purpose of
cross-examination by the accused – so there is some lack of surety as to whether the crossexamination of witnesses at the preliminary hearing is an entitlement or is available to be
requested to do so
 although there is no obligation on the accused to make a disclosure of its case at the preliminary
hearing, the defence is entitled to call evidence on behalf of the accused, however, since the
preliminary inquiry is not a trial, and cannot lead to a judgement of acquittal, it is comparatively rare
that the accused is discharged at the preliminary inquiry solely on the basis of evidence called by the
defence
 as with all other aspects of the criminal procedure, the preliminary inquiry proceedings are open,
unless there is some specific basis for an exception; section 537(1)(h) gives the judge discretion to
exclude public from the court; typically, the preliminary inquiry is subject to publican bans so as to
ensure the fairness of any subsequent trials (according to section 539, the power to order the ban is
discretionary when requested by the prosecution, and mandatory when sought by the accused)
 section 548 directs the judge at the preliminary inquiry to commit the accused for trial on any
indictable offence if the evidence in support of that charge is sufficient, and that if the evidence is
not sufficient, then the accused be discharged in respect of any charge
 the test of sufficiency is the air of reality test (i.e.; whether a reasonable jury, properly instructed,
could find the charge proved beyond a reasonable doubt – R v. Shephard) – it is not for the judge
at this point to assess the weight or credibility of the evidence, but rather that if the evidence
were to be believed by the judge or jury at trial, would it be sufficient
 if it occurred in respect to the same events (i.e.; in the course of the same transaction), then the
accused can also be committed to stand trial for an offence or charge not mentioned in the initial
information
 there is no procedure set out in the code for appealing the decision at a preliminary hearing, and so,
none is possible – however, there can be a certiorari review (i.e.; judicial review of an inferior court)
that will only be granted if the judge has fallen into jurisdictional error
 R v. Arcuri – [2001] SCJ 52 – SCC
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 Facts: accused was charged with first degree under; at the preliminary inquiry, the crown’s case
was entirely circumstantial; and the accused called two witnesses whose testimony was
exculpatory; the judge rejected the accused’s contention that the must weight he evidence;
instead, he viewed the evidence as a whole and committed the accused to trial for second degree
murder; the accused filed a certiorari application that was dismissed; the court of appeal affirmed
the dismissal;
 Issues: did the preliminary inquiry judge, in determining whether the evidence was sufficient to
commit the accused to trial, err in refusing to weigh the prosecution’s evidence against the
accused’s evidence
 Held: the appeal should be dismissed
 the justice should undertake a limited weighing of the evidence, including any defence evidence,
to determine whether a reasonable trier of fact could return a finding of guilt; as such, he is not
entitled to draw any inference from the evidence or assess the reliability or credibility thereof
 under section 548, the judge is required to question whether there is any evidence upon which a
reasonable jury properly instructed could return a verdict of guilty
 where the evidence of the crown is circumstantial, then there is limited weighing of the evidence
that the judge needs to engage in; however, he does not draw inferences from the facts
presented or assess credibility thereof – instead, his task is to determine whether, if the crown’s
evidence is believed, would it be reasonable for a properly instructed jury to infer guilt
 i.e.; it is an assessment of the reasonableness of the inferences to be drawn from the
circumstantial evidence
 the judge in this case did not err in arriving at the result to commit the accused to trial
29. The Jury Trial
 an accused who faces five years of imprisonment or more has the right to trial by jury (section 11(f))
 the jury consists of 12 citizens representing a cross-sample of the public in the place where the case
is tried
 each province has a jury act that sets out the rules by which the jury array is summoned to the court
including matters such as qualifications and disqualifications for being a juror, sources from whence
prospective jurors are to be selected, and compensation for their services
 a juror typically must be of the age of majority, a resident (of that province), and a Canadian
citizen
 disqualifications are generally based on two justifications: that the potential juror would face a
conflict in serving on the jury; or that what the juror does in everyday life is more important than,
or for some other reason justifies a general exemption from, serving on a jury
 once the jury array has been assembled, the code governs the remaining selection procedures
 it is possible for the crown or the defence to challenge the jury array itself
 if the array is accepted, then the procedure of selection begins; the jurors’ names are pulled
randomly (section 631), and this continues until, after excluding jurors that are pulled in the order
they are pulled, twelve jurors are selected
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 the methods of exclusion are: exemption, challenge for cause, and peremptory challenge
 a juror an ask to be exempted, and the judge is to decide whether such a request should be
granted
 section 632 allows a trial judge to excuse jurors based on personal interest in the matter to be
tried, or relationship with the judge or any of the parties, counsel, or witnesses (jurors who
are excluded at this stage are excluded because their non-indifference is rather obvious that
the consent of the counsel to the exclusion of the juror can be presumed, otherwise, the issue
of lack of indifference should be handled by way of challenge for cause procedures); and
personal hardship or other reasonable cause (though this is typically done before ht individual
juror’s names are randomly pulled)
 the parties can then make challenges for cause that remain after any exemptions are granted - in
selecting the jury, the crown and the defence can challenge prospective jurors on various causes,
including that the said person is not indifferent (i.e.; has a bias towards or against one side or the
other)
 section 638 sets out the ground upon which a juror may be challenged for cause; although
both defence and crown are entitle to an unlimited number o challenged for cause, the
grounds on which those challenges can be made, however, are strictly set out
 section 638(1)(f) allows a challenge on the basis that a juror is not indifferent between the
parties (i.e. is not impartial between the parties, or is prejudiced against one party)
 in order to exercise their challenge for cause rights, the parties wishing to challenge must first
satisfy the judge that there is some reason to doubt the juror’s indifference, and if the judge
allows it, the party may question the juror with regards to the same
 the juror can have: an interest prejudice (where he has a direct interest in (relationship to
one of the parties or a witness of) the trial); a specific prejudice which consists of attitudes of
beliefs about ht particular case; generic prejudice which consists of stereotypical attitudes
towards the accused the victim, the witnesses, or the nature of the crime; and conformity
prejudice, whereby a juror might feel influenced by strong community feelings about an
expected outcome
 R v. Williams, R v. Parks, R v. Wilson, R v. Koh – have all led to the findings that now allow
for challenge for cause by an accused belonging to any visible minority without further
empirical evidence of the bias
 an unsuccessful challenge for cause does not prevent a peremptory challenge from being used –
and typically, this is what happens in the case of an unsuccessful challenge
 under section 634, peremptory challenges allow the accused or the crown to dismiss a
potential juror without explanation, however they are limited in number
 it allows a party to challenge without showing any cause at all
 the jury deliberates in secret and must agree unanimously to a verdict; if they cannot agree, they are
a hung jury, and a new trial may be held
 section 471 mandates jury trials as the norm, but section 558 says that an accused can elect not to
have a jury, except in the offences listed under section 469, (however, section 473 permits that even
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the case of section 469 offences, if the accused elects not to have a jury, he can do so with the
attorney general’s consent); and under section 568, if the offence is punishable by more than five
years, then the judge can compel a jury trial even if the accused does not want a jury
30. Pre-Trial Motions
 in trials, there are usually preliminary legal issues to be resolved before the trial gets under way;
these are usually dealt with by the trial judge – in the case of jury trials, it is better to resolve such
issues either before the jury is selected, or in the absence of the jury
 section 625.1 permits pre-hearing conferences to consider matters that, to promote a fair and
expeditious trial, would be better decided before the start of the proceedings, and other similar
matters, and to make arrangements for decisions on such matters; they provide an opportunity for
the parties and the court to see whether an agreement can be reached on issues that will expedite
the trial – such conferences are mandatory in the case of jury trial (section 625.1(2))
 however, unlike pre-trial motions, these pre-hearing conferences do not bind either the crown or
the defence to a particular position, as they are not intended to determine matters – the parties
can change strategy despite representations made at the pre-hearing conference
 trials are held in the area in which the offence occurred so as to serve the interests of both the
accused and the community; however it is possible for either the crown or the defence to apply to
change the venue in which the trial will be held in accordance with section 599
 generally, the pre-trial publicity having made it too difficult for an accused to obtain a fair trial
without the change of venue is what is the grounds for allowing the same
 this remedy is a discretionary one and a change of venue will not be granted if the source of
prejudice is the information to come out at trial, rather than any pre-trial publicity
 where the accused applies for the change of venue, he must show that the change is needed
 another motion that can be made on a pre-trial basis is concern over the fitness of the accused to
stand trial – this issue looks at whether the accused suffers from a mental disorder
 everyone is presumed to be fit to stand trial under section 672.22; unfit to stand trial requires
that the accused suffers from a mental disorder, and that he is unable on that account to conduct
a defence at any stage of the proceedings before the verdict is rendered, or to instruct counsel,
and is unable to understand the nature of the proceedings or the possible consequences of the
proceedings, or communicate with counsel
 the court, having jurisdiction over the accused, can order a fitness hearing on its own motion, or
on an application by one of the parties (the party so applying has the burden of proving the lack
of fitness on a balance of probabilities)
 the judge must first consider whether there are reasonable grounds to decide whether the
accused is unfit to stand trial; and if so, then the actual question of fitness is decided
 many different charter motions can be brought up throughout the trial, but the two that are most
relevant at the pre-trial stage are:
 trial within a reasonable time – section 11(b) guarantees any person charged with an offence the
right to be tired within a reasonable time
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 R v. Smith, R v. Askov, and R v. Morin developed the test for deciding section 11(b) claims –
the court noted that some delay is inevitable, but the question is at what point does the delay
become unreasonable – to determine that question, four general considerations must be
weighed
 the length of the delay – in essence this helps to determine whether there is a delay so as
to require explanation
 waiver of time periods – the accused cannot agree to certain delay and then later
complain of it
 the reasons for the delay – including:
 inherent time requirements other case – complex cases take more time than simple
ones, a case with a preliminary inquiry will take longer than one without, there are
many factors that are inherently part of the time requirements of a case; as such,
courts need to develop guidelines locally for similar type cases
 actions of the accused – actions of the accused can contribute to the delay, and even if
such actions are taken in good faith, they contribute to the total time duration and
must be taken into account when assessing if the delay was unreasonable
 actions of the crown – the same is true of actions of the crown; even if the actions that
create the delay are reasonable, it is not a justification to explain away the delay that
is otherwise unreasonable
 limits on institutional resources – the weight to be given to resources limitations must
be assessed in light of the fact that the government has constitutional obligations to
commit sufficient resources to prevent unreasonable delay
 other reasons for the delay – that cannot be attributed to either the defence or the
crown
 prejudice to the accused – section 11(b) protects against various forms of prejudice such
as threats to security of the person (by seeking to minimize the anxiety, concern and
stigma of exposure to criminal proceedings), to liberty (which results from pre-trial
incarceration and restrictive bail conditions), and to the right to a fair trial (is protected by
attempting to ensure that proceedings take place while evidence is available and fresh)
 the burden of proof that there was a delay (and thus a charter violation) rests on the accused
– and if the same is proved, then the burden shifts to the crown to explain the delay
 abuse of process and fair trial rights – most motions for abuse of process will not be brought on a
pre-trial basis (e.g.; entrapment will depend on the evidence that emerges at trial), but it can be
available pre-trial if the case can be shown to be tainted to such a degree that to allow it to
proceed would tarnish the integrity of the court (R v. Conway)
 abuse of process requires that the proceedings are oppressive or vexatious and that they
violate the fundamental principles of justice underlying the community’s sense of fair play
and decency
 fair trial right motions can be brought on the basis that it will be impossible to empanel an
impartial jury (due to pre-trial publicity)
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[SECTION 10] – THE TRIAL VERDICT
31. Jury Trials
 where there has been a jury trial, the judge will charge the jury on the relevant law and the jury will
retire to deliberate, returning with a general verdict (i.e.; a verdict delivered without reasons) – if
there is a conviction, the judge will conduct a sentencing hearing and impose the sentence
 once the jury begins its deliberations it is sequestered (isolated so as to keep from it any potential
sources of information); the jury is left alone until it has reached a verdict, or until it is apparent that
it will not be able to do so as the verdict must be unanimous – in the case the jury is unable to reach
unanimity, section 653 permits the judge to discharge the jury and order a new trial
 the jury isn’t completely isolated, it can initiate contact with the judge as to any inquires or questions
it has
 in the case of questions/inquiries brought to the judge by the jury, the judge is to read it in open
court in presence of the parties, and give counsel an opportunity to make submissions as to how to
deal with the question, and then answer the question for the jury in an open court, in the presence
of the parties
 if the jury is actually seeking additional evidence, the rule is that this is simply not allowed; no
additional information that did not come out at trial can be given to the jury once they have begun
deliberating
 in the absence of any requests that necessitate some response, the jury is to be left unhindered to
perform its function without communications from others
 where it seems the jury is deadlocked, although the judge can discharge the jury under section 653
and order a new trial, the judge will usually first call the jury and urge them to reach a verdict
 at this point, however, the judge shouldn’t express an opinion on the facts (even though that was
permissible in the original charge); rather, it should focus on the process of deliberation itself,
and encourage the jury to listen to and consider one another’s views
 no pressure should be placed on the jury and no factors that are extraneous to the task of
reaching a verdict should be introduced, and no deadline should be imposed
 once the jury has finished deliberations, it announces its verdict by way of the jury foreman
 once a jury has been discharged, neither it nor the trial judge has any further authority to act
 section 649 makes it an offence for anyone present in the jury room to disclose any information
about the jury’s deliberations – this promotes candour in discussions and lets the jury consider all
possibilities without fear of later recrimination from the public and to protect jurors from
harassment, censure, and reprisals; it also promotes finality
32. Judicial Verdicts
[pg 6]
 where there has been a judge alone trial, the judge will render the verdict
 conviction or acquittal, the judge is obliged to give reasons for his decision – although there is no
general duty to give reasons in every case, R v. Sheppard made clear that the failure to do so (or the
failure to do so adequately) can be an error of law giving rise t o a ground for appeal
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 and adequate appeal should let the losing party know why he or she has lost, and interested
members of the public can satisfy themselves that justice has been done (R v. Sheppard)
 additionally, the trial judge shouldn’t be able to prevent a meaningful appeal by failing to explain
the reasons behind the verdict – as such, it can be an error of law to provide insufficient reasons
 R v. Sheppard laid down the general guidelines as to a judge’s duty to give reasons:
 the delivery of reasoned decisions is part of the judge’s accountability in passing a decision
 an accused person shouldn’t be left in doubt about why a conviction has been entered
 the lawyers for the parties may require reasons to assist them in considering a potential
appeal
 reasons help to clarify the court’s decisions as to (and thus the common law stand on)
troublesome principles of unsettled law
 the duty to give reasons also applies to acquittals – whereas a conviction requires
 if the accused is convicted, the judge will conduct a sentencing hearing
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[SECTION 11] – SENTENCING
 most accused plead guilty to some charge and proceed directly to sentencing without a trial; a
significant number of people who do go to trail are convicted of some offence and are thereby
subject to sentencing
 judges have significant sentencing discretion because they are guided only by general principles in
the code and (infrequently used) high maximum penalties – however, they can’t craft exemptions
(even under the charter) from mandatory sentences
 the fundamental principle of sentencing as per section 718.1 is that a sentence must be
proportionate to the gravity of the offence and the degree of responsibility of the offender (that the
punishment should fit the crime, and that an offender shouldn’t be treated more harshly than the
crime warrants)
 besides the sentence fitting the crime, other purposes of sentencing include: deterring others
from committing crimes; deterring the particular offender from reoffending; incapacitating the
particular offender from committing more/other crimes; rehabilitating the particular offender;
providing reparation for harm done to victims and/or the community; denouncing unlawful
conduct; separate offenders from society, where necessary; promote a sense of responsibility in
the offender, and acknowledgement of the harm done to the victim and the community
 section 718.2(b) requires that a sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances
 section 718.2(d) and (e) codify the principle of restraint in punishments by instructing the judge
not to deprive the offender of liberty if a less restrictive sanction may be appropriate in the
circumstances, and to consider all available sanctions other than imprisonment that are
reasonable in the circumstances
 as such, judges can impose punishments of imprisonment, community service orders, discharges
with conditions in the form of probation orders, fines, and restitution orders
 the charter places restrictions on the state’s ability to punish people for offences (e.g.; section 12
prohibits grossly disproportionate punishments (i.e.; it prohibits cruel and unusual punishment);
section 11(h) provides protection against double jeopardy) – however, punishment that is
disproportionate for the particular offender, but which may be necessary to deter others, may be
justified under section 1 of the charter
 it is up to parliament to employ mandatory sentencing, and the courts must follow the same
when a mandatory (i.e.; minimum) sentence is provided by statute, even to the most sympathetic
and least blameworthy person who nonetheless committed the criminal act with the required
fault element – however, a mandatory sentence that is considered grossly disproportionate and
cruel and unusual (either in the particular case or on the basis of reasonable hypothetical case),
that cannot be saved by section 1, will have to be struck down as it applies to all offenders, and
not just for that specific case
 courts consider a wide range of aggravating and mitigating factors in connection with the particular
crime and the offender – aggravating: his degree of participation in the crime; planning and
deliberation; breach of trust; use of violence and weapons; harm to victims; that he crime was
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motivated by bias, prejudice or hate, involved spousal or child abuse, or an abuse of position of trust
or authority; prior convictions – mitigating: good character, youth, old age, ill health; remorse; early
guilty plea; provocation – aggravating or mitigating, depending on the circumstances and the
purposes of punishment that are stressed: alcohol and drugs; social status; prospects of
rehabilitation an future danger; goals of the general deterrence and denunciation policies
 alternative measures allow an accused who accepts responsibility for a crime to engage in supervised
activities in the community without a formal determination of guilt or innocence at trial, hover there
must be sufficient evidence to proceed with the charge, and the accused must accept responsibility
for the offence charged and voluntarily agree to the alternative manures
31. General Principles of Sentencing
 the main principles of criminal justice with regards to punishment are: deterrence, reformation,
retribution, reparation
 section 718 says that the objectives are denunciation, deterrence, separation of offenders from
society, rehabilitation of offenders, and acknowledgement of and reparations for the harm they have
done
 this section combines concerns about proportionality by its reference to just sanctions with
concerns about the future through its concern for promoting a peaceful and safe society
 retribution alone doesn’t determine punishment, and other legitimate purposes such as
deterrence, rehabilitation, and the protection of society should be considered; the relative
importance of these multiple factors will vary with the rime, the circumstances of the offender,
and the needs of the community
 there is a difference between general deterrence (which is concerned with the effect of
punishment in deterring others from committing similar offences – courts consider general
deterrence as a factor in crimes like drunk driving, sexual assault, and domestic violence, where
there is widespread concern about the prevalence of such crimes and a desire to change human
behaviour, and section 718(b) recognizes this principle), and specific deterrence (which is
concerned with the effect of punishment in deterring the particular offender from committing
subsequent crimes – including incapacitation or rehabilitation of the offender, if that is the only
way to prevent him from committing future crimes; greater consideration is given to the
individual his record, and attitude, his motivation, and his reformation and rehabilitation)
 section 718(d) provides that one of the objectives of sentencing is to assist in rehabilitating
offenders – sections 718.2(d) and (e) encourage courts not to deprive offenders of their liberty or
to imprison them, when less restrictive sanctions are appropriate and reasonable in the
circumstances (and rehabilitation is unlikely to occur while the offender is incarcerated (R v.
Preston))
 the idea is to reduce reliance on incarceration and advance the restorative principles of
sentencing, crime generally effects three parties: the victim, the community, and the offender restorative approach seeks to remedy the adverse effects of crime in a manner that addresses
the needs of all parties involved (R v. Proulx): section 718(e) provides that one of the purposes
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of sentencing is to provide reparations for harm done to victims or to the community; section
718(f) provides that another purpose of sentencing is to promote a sense of responsibility in
offenders, and acknowledgement of the harm done to victims and to the community
 section 718.01 – sentences for offences against children (i.e.; those under the age of eighteen), the
court shall give primary consideration to the objectives of denunciation and deterrence of such
conduct
 section 718.1 states the fundamental principle that a sentence must be proportionate to the gravity
of the offence and the degree of responsibility of the offender
 proportionality is a retributive concept that focuses on the offender’s conduct as opposed to
concerns about future effects of the punishment on the offender or others - it restrains
punishment to ensure the imposition of a just and appropriate punishment, and nothing more
 this principle contemplates not only that punishment be proportionate to the crime committed,
but also to the responsibility or blameworthiness of the offender – i.e.; the judges have to pay
attention to the offender’s actual conduct so that he person who acted reluctantly does not get
the same punishment as the person who planned and executed the robbery
 denunciation is a retributive concept that focuses on the past, with the emphasis on expressing
society’s disapproval of the crime committed as opposed to judging the culpability of the particular
offender
 the objective being that a sentence should also communicate society’s condemnation of the
offence – representing a symbolic, collective statement that the offender’s conduct should be
punished for encroaching society’s basic code of values as laid out through the criminal law
 section 718.2 provides that a sentence should be increased or reduced to account for aggravating or
mitigating circumstances, that a sentence should be similar to other sentences imposed in similar
circumstances, that the least restrictive sanctions should be identified and that available sanctions
other than imprisonment should be considered
 R v. Nasogaluak – [2010] SCJ 6 – SCC – officers use violence against uncooperative drunk driver
 Facts: RCMP got a tip about drunk driver; there was high-speed pursuit, after which accused
stopped the car and swung his feet out; officer ordered him to put his feet back in the car,
accused refused; another officer grabbed him and punched him in the head; when accused
reached out, he was punched a second time, pulled from the car, and wrestled to the ground; he
was punched a third time and pinned face down; when he refused to offer up his hands to be
handcuffed, an officer punched him in the back, breaking his ribs and puncturing one of his lungs;
accused then gave breath sample that placed him over the limit; he entered a guilty plea of
impaired driving, and flight from police; at sentencing, judge found police actions constituted a
violation of charter rights and hat the third punch and the punch to the back were unwarranted
and thus excessive; as a remedy for the charter breaches, the accused was given a reduced
sentence (below what is prescribed in the code for that offence); court of appeal agreed to the
excessive use of force and as such the sentence should be reduced, but that a sentence falling
below a statutorily mandated minimum could not be ordered; crown appealed the use of the
sentence reduction as a remedy for a charter breach
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 Issues: was the court right in ordering the reduced sentence
 Held: appeal dismissed
 court of appeal didn’t err in upholding trial judge’s finding of excessive force
 officers’ use of force amounted to violation of the accused’s section 7 rights
 the sentencing judge committed no error of law in choosing to take this conduct into
consideration towards reduced sentence
 the court is able to consider not only the actions of the offender, but also of the state actors;
however, the sentencing judge has to exercise his discretion within the parameters of the statute
 therefor, although the conduct led to reduction of sentence, the sentencing judge erred in
ordering a sentence that fell below the statutory minimum of the code
 R v. C.A.M. – [1996] 1 SCR 500 – SCC – cumulative sentence for accused who sexually, physically,
emotionally abused his kids over several years
 Facts: accused pleaded guilty to several counts of sexual assault, incest, and assault with a
weapon (uncontested sexual, physical, and emotional abuse inflicted upon his children over a
number of years); none of the offences carried a penalty of life imprisonment; trial judge,
remarking that the offences were egregious as any he had ever dealt with, sentenced the accused
to a cumulative 25 years’ imprisonment (with some sentences running consecutively, and others
concurrently); the court of appeal reduced the sentence to 18 years and 8 months; the court
concluded that where life imprisonment is not available as a penalty, the totality principle
requires that absent special circumstances, the cumulative sentence should be limited to a term
of 20 years; crown appealed
 Issues: did the sentencing judge err in ordering the 25 years cumulatively
 Held: appeal should be allowed, and the sentence of 25 years’ imprisonment restored
 the code sets maximum terms in accordance with the severity of each crime, however it is silent
on whether there is an upper limited on non-life terms of imprisonment (whether as a single
sentence, or as a sentence for consecutive terms of multiple offences) – however, the cumulative
sentence rendered shouldn’t exceed the overall culpability of the offender
 R v. Priest – [1996] OJ 3369 – Ontario Court of Appeal – youthful first time offender sentenced to one
year
 Facts: 19 year old accused with no priors and another broke into a convenience store and stole
goods worth $2,700; owner went to accused’s home and confronted him; accused admitted what
he had done and returned the items; at trial, he wasn’t represented by counsel, and pled guilty to
break, enter, and theft; crown recommended a sentence of 30-60 days; trial judge sentenced for
one year as a deterrence for others due to prevalence of break and enter in the community;
 Issues: did the judge err in imposing such a sentence
 Held: appeal allowed and sentence varied to time served (which was five weeks), plus one year
probation
 the prevalence of crime in the community should be taken into consideration when imposing a
sentence, however this can’t be the main concern; the sentence should have regard to particular
offence and the offender
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 accused was a youthful, first time offender; the sentence should have been tailored to the
individual’s circumstances, and not as a warning to others; the sentence was not proportional to
the gravity of the offence and the offender
 R v. Boucher – [2004] OJ 2689 – estranged husband tried to kill his wife
 Facts: accused was 53 with no priors; convicted of attempting to murder and two counts of
threatening his estranged wife; he drove to her home while drunk; she attempted to get away in
her car but was followed; she testified that he drove his car into hers and caused it to spin; his car
then drove into a ditch; he called a family members and told them that he had tried to kill her
and himself; he testified that he only intended to talk to her; trial judge sentenced him to two
years less a day (in addition to the 28 months credit for time served), followed by a 2 year
probation; accused appealed
 Issues: was the sentence fit
 Held: appeal allowed
 the sentence was unfit
(a) Procedure
 in most cases, the accused pleads guilty to an offence, meaning there is no formal determination of
whether the crown can prove its case beyond a reasonable doubt; and the trial process moved
directly to the sentencing stage – a trial judge is not bound by any matter of law to determine if there
is a factual basis for the guilty plea, and if it is truly voluntary and unequivocal
 an early plea can be an important mitigating factor in sentencing; it indicates remorse and saves the
victim and the state the cost of a trial
 regardless of guilty plea entered or guilt found through trial, the crown can (either on its own, or as a
joint submission) make submissions making suggestions as to sentencing – however, the trial judge is
not bound by the same and is free to exercise his own sentencing discretion
 sentencing judges can call the production of evidence and compel the attendance of witnesses at
sentencing hearings
 judges are required to provide reasons for their sentences (section 726.2)
 victim impact statements and reports by probation officers can be introduced as evidence in the
sentencing hearing
 unless a sentence has been fixed by law, both the accused and the crown can appeal the sentence
ordered
 the court of appeal can also intervene if the sentence is unfit and is a marked and substantial
departure from the sentences imposed for similar offenders committing similar crimes
 section 720 – sentencing proceedings
 section 721 – report by probation officer
 section 722 – victim impact statement
 section 723 – submission of facts, evidence, witnesses at sentencing hearings
 R v. Bremner – [2000] BCJ 1096 – British Columbia Court of Appeal – abused sea cadets in the
60’s/70’s
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 Facts: accused was convicted of indecent assault of sea cadets between the ages of 13 to 16; at
the time of offences, he was in his early 20’s and an officer of a quasi-naval organization; he had,
since the offences, married and had two grown sons, stable employment, and no criminal record;
a psychologist reported that he was a very low risk of sexual recidivism; the complainants
provided victim impact statements, and the same included material that was not properly put
before the court; the victim impact statements were clearly vengeful in their tone, and they
asked for harsh sentences to be imposed on the accused, sentences that were not available for
the crime under the code; trial judge found accused was not a pedophile; trial judge focused on
denunciation, general deterrence, and restitution; he was sentenced to four concurrent
sentences, resulting in 18 months of incarceration (the trial judge said the message of general
deterrence would not be sent to the community if he was allowed to serve the sentence at
home)
 Issues: did the sentence judge err in his sentence order
 Held: appeal allowed
 the judge placed too much emphasis on the victim impact statements; the victims shouldn’t have
suggested the sentence to be imposed, as revenge is not a proper consideration for sentencing
 R v. Cromwell – [2005] NSJ 428 – Nova Scotia Court of Appeal –
 Facts: while driving drunk, accused caused an accident that injured 4 people; he was released on
bail an failed to appear for court; he was then arrested on warrant; he had an untreated
substance abuse problems and showed no signs of improvement; the sentencing judge
considered a joint submission for conditional sentence but found it wouldn’t represent adequate
deterrence, denunciation, and protection of the public; he sentenced accuse to 5 months
imprisonment, one year probation, two year driving prohibition, and DNA sample
 Issues: did the sentence judge err in his sentence order
 Held: appeal dismissed
 the joint submission was outside the range for the particular offence and the particular offender;
it did not meet the requirements for general or specific deterrence, nor denunciation, nor did it
adequately protect the public
(b) Incarceration
 section 732 – intermittent sentencing
 section 743 – when convicted of an indictable offence for which no punishment is specifically
provided is liable to imprisonment for a term not exceeding five years
 section 743.1 – anyone sentenced to life or two or more years will serve the imprisonment in a
penitentiary; anyone sentenced to a term less than two years, shall serve it in a prison or other place
of confinement, other than a penitentiary, within the province in which he is convicted
 section 745 – sentence of life imprisonment
 section 718.3(4) – cumulative punishments
(c) Conditional Sentence of Imprisonment
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 if a court imposes a sentence of imprisonment of less than two years, under section 742.1, and it is
satisfied that doing so would not endanger the safety of the community and or be inconsistent with
the fundamental purpose of sentencing, it can order that the sentence be served in the community
 the conditional sentence can’t be longer than the actual term of imprisonment
 where the principles of denunciation and deterrence are important, imprisonment may be required
regardless of whether the conditional sentencing may have been applicable
 it differs from probation in that where probation is primarily a rehabilitative sentencing tool,
conditional sentencing is both punitive and rehabilitative
 section 742.1 – imposing of conditional sentences; the four criteria to be considered are: the
offender must be convicted of an offence that is not punishable by a minimum term of
imprisonment; the court must impose a term of imprisonment of less than two years; the safety of
the community would not be endangered by the offender serving the sentence in the community; a
conditional sentence would be consistent with the fundamental purpose and principles of sentencing
as set out in sections 718 through 718.2
 section 742.3 – conditions of conditional sentences – compulsory conditions: keep the peace and be
of good behaviour; appear before the court when required to do so; report to a supervisor; remain
within the jurisdiction of the court; notify the court or the supervisor in advance of any change of
name, address, and promptly of any change of employment or occupation
 section 742.6 – breach of condition of the conditional sentence
 section 742.7 – if imprisoned for a new offence, the running of the conditional sentence is suspended
during the time of imprisonment for that other offence, and resumes upon the release from prison
 R v. Proulx – [2000] 1 SCR 61 – SCC – young and new driver killed and injured while drinking and
driving and ended up in a coma himself
 Facts: accused had only 7 weeks of experience as a licensed driver; he decided to drive his
friends home, even though he had been drinking and he knew his car wasn’t mechanically sound;
he drove erratically and aggressively, weaving in and out of traffic; he was trying to pass another
car, and drove into oncoming traffic; he side-swiped a first car, and crashed into a second one,
seriously injuring the driver and killing a passenger in his own car; he was in a coma for some
time, but recovered; he entered guilty pleas to one count of dangerous driving causing death, and
one count of dangers driving causing bodily harm; he was sentenced to 8 months; sentencing
judge did not allow a conditional sentence to be served in the community as it wouldn’t be
appropriate because it would be inconsistent with the objectives of denunciation and general
deterrence; court of appeal allowed the appeal and substituted a conditional sentence for the jail
term; crown appealed
 Issues: should the sentencing judge have allowed a conditional sentence
 Held: appeal should be allowed
 offences with a mandatory minimum sentence of imprisonment are excluded from conditional
sentencing
 it’s not that a condition sentence cant’ provide significant denunciation and deterrence (as a
general matter, the more serious the offence, the longer and more onerous the conditional
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sentence should be); however, there are some circumstances where the need for denunciation or
deterrence is so pressing that incarceration will be the only suitable way in which to express
society’s condemnation of the offender’s conduct or to deter similar conduct in the future
 where objectives such as denunciation and deterrence are pressing, incarceration will be a
preferable sanction to conditional sentencing
 sentencing judges have a wide discretion in the choice of appropriate sentences; absent an error
in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a
court of appeal should only intervene to vary a sentence imposed at trial if it was demonstrably
unfit
 in this case, even if incarceration wasn’t necessary to deter the accused from similar future
conduct or for his rehabilitation, it was necessary to send a strong message to denounce the
conduct and deter others from engaging in similar conduct
(d) Probation and Community Service
 after convicting an accused, the court can suspend sentence and make a probation order
 probation orders can be made even though the accused’s sentence would normally have been more
than two years
 probations orders can also be entered after absolute or conditional discharges
 it differs from conditional sentencing in that where probation is primarily a rehabilitative sentencing
tool, conditional sentencing is both punitive and rehabilitative
 section 731 provides that courts make probation orders having regard to the age and character of
the offender, the nature of the offence, and the circumstances surrounding its commission
 section 732.1 – compulsory conditions are that the offender keep the peace and be of good
behaviour, appear before the court, and notify the court of changes of address or employment
 section 732.2 – the coming into force of the order and the duration and limit on term of order
 section 733.1 – failure to comply with the probation order
 R v. Ziatas – [1973] OJ 726 – Ontario Supreme Court – Court of Appeal – court of appeal overturned
an unnecessary condition of probation
 Facts: accused pled guilty to a charge of assault with intent to resist arrest; judge imposed a fine
of $150 and placed him on probation for one year; one of the terms of the probation order was
that he should not operate a motor vehicle for the period of one year; defence argued that court
had no power to require such a condition be placed on the accused
 Issues: was the condition on the probation order just
 Held: appeal allowed and the condition is struck out of the probation order
 the judge proceeded upon a wrong principle, in as much as he imposed the term of probation as
an additional punishment to be imposed on the accused, whereas his only power was to impose
such reasonable conditions as he considered desirable for securing the good conduct of the
accused and for preventing the repetition by him of the same offence or the commission of other
offences
(e) Fines
 fines are commonly used in addition to, or as an alternative to, imprisonment
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 if fines are not paid, an offender may be imprisoned
 there are no limits to fines (except $5,000 in the case of summary offences for individuals and
$100,000 for companies/organizations)
 provinces can allow a fine option program to allow offenders who can’t pay a fine to work it off
(section 736)
 section 734(2) provides that a court should only order fines when it is satisfied that an offender will
be able to pay the fine, or to work the fine off – this is so that it isn’t impossible for a person of
limited means to pay a fine, but also so a small fine doesn’t become a trivial thing to an accused of
greater means
 section 734 – power of the court to impose fines
(f) Discharge
[pg 43]
 when the accused is charged with an offence that is not subject to imprisonment for fourteen years
or life, and that does not carry a minimum sentence, the court can order an absolute or conditional
discharge if it considers the same to be in the best interest of the accused and not contrary to the
public interest
 if the conditions of a conditional discharge are breached, the offender may be sentenced for the
original offence as well as the crime of breaching the probation order
 section 730 – conditional and absolute discharge
 R v. Fallofield – [1973] BCJ 559 – British Columbia Court of Appeal –
 Facts: accused pled guilty to knowingly being in unlawful possession of some pieces of carpet of
a total value of less than $200; he was a corporal in the Army, aged 26, married, and had no
previous record; he was supplementing his income by moonlighting with a moving company; he
was delivering fridges to a new apartment building and took from the premises some left-over
pieces of carpeting; the officer who investigated the matter said that the accused turned over the
pieces he had and said that he thought they were scraps; the officer also testified that the
accused was friendly and cooperative, that that it was more that he had acted foolishly than he
was a thief; an officer from the army testified that the accused was a good worker and
conscientious man; the defence applied for a conditional discharge under section 662.1(1) of the
(then) criminal code; the trial judge declined to grant the discharge (on the basis that he didn’t
think the offence was a case of strict liability or that it was a case where the offence being
omitted was unintentional or unavoidable) and convicted the accused, sentencing him to a fine of
$100, and 30 days in prison if he defaulted on the fine; accused appealed
 Issues: did the judge err in refusing to grant an absolute or a conditional discharge
 Held: appeal should be allowed and discharge granted
 the trial judge erred in proceeding on the wrong principle as there was nothing in the language of
the section that limited its application, and a discretion which is unfettered by law shouldn’t be
fettered by judicial interpretation thereof
 the court must be satisfied that to do so is in the best interest of the accused – and that it is not
necessary to enter a conviction against him in order to deter him from future offences or to
rehabilitate him
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 his good character, lack of prior convictions should be taken into consideration
 further, the court can grant a discharge only if it is of the opinion that to do so is not contrary to
the interest of the public – in the deterrence of others
(g) Recognizance Orders
 section 810 – the recognizance order, with or without sureties, is to keep the peace and be of good
behaviour, and to bring about the overall good conduct of the defendant
 section 810.(1) an information can be laid before a justice by or on behalf of any person who
fears on reasonable grounds that another person will cause personal injury to him or his spouse
or common law partner or his child, or will damage his property
 section 810.01 – applies where a person who fears on reasonable grounds that another person will
commit and offence under section 423.1, a criminal organization offence, or a terrorism offence,
may, with the consent of the attorney general, lay an information before a provincial court judge
 section 810.1 – permits the court to impose a recognizance on any person likely to commit any one
of a number of listed sexual offences against a child under the age of 14 an to prohibit that person
for up to one year from engaging in activities or attending places (a public park, public swimming
area, daycare centre, school ground, or playground) where children under 14 are likely to be present
 the recognizance can be imposed even if the person has not committed an offence and has no
previous criminal record so long as the court is satisfied that the informant has reasonable
grounds for the fear
 section 810.2 – where the fear is of serious personal injury offence
 section 811 – in the case of breach of the recognizance
 R v. Budreo – [2000] OJ 72 – Ontario Court of Appeal –
 Facts: the accused is a pedophile with a long record of sexual offences against young boys; when
he was released from prison after serving a sentence for three convictions of sexual assault,
within three days of the release, the crown sought a recognizance under section 810.1; the
accused brought an application to prohibit the judge from holding the hearing and asked the
section to be declared unconstitutional; the judge concluded that the section was constitutional;
the accused appealed and was supported by the Canadian Civil Liberties Association; he argued
again that section 810.1 violated the charter in that it deprived him of his liberty by creating a
status offence, by being impermissibly broad, and by being impermissibly vague
 Issues: did the judge err in ordering the recognizance order
 Held: appeal dismissed, leave to appeal to SCC refused
 the crown acknowledged that it sought a recognizance under section 810.1 not because the
accused had done anything wrong since his release, but because of his psychiatric reports
between 1963 and 1993, his criminal record, numerous hospital and parole board reports, and a
conversation with the appellant’s treating psychiatrist who considered him a high-risk pedophile
if he didn’t take a certain medicine
 although, admittedly, section 810.1 does violate section 7 of the charter by limiting or preventing
him from going many places that others can freely go, it is still not as serious an intrusion as
detention or imprisonment
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 section 810.1 doesn’t create an offence (or a status offence); its purpose is not to punish crime
but to prevent crime from happening – further, it doesn’t look at a person’s status, but rather to
a persons’ present risk of future dangerousness
 the extent of restrictions, lack of a requirement of a previous criminal record don’t make section
810.1 overbroad; sufficient procedural safeguards are in place that to not make section 810.1
overbroad
 the threshold for declaring a law void for vagueness is appropriately high, and section 810.1
doesn’t pass that threshold
 the various provisions of the code strike the appropriate balance between the public interest in
the protection of children and the liberty interest of the accused
(h) Restitution
 section 738 allows judges to order restitution for property damage, pecuniary damage arising from
offences involving bodily harm, and reasonable and readily ascertainable expenses when a spouse
and children move from an offender’s household in cases involving bodily harm or the threat thereof
to the spouse or children
 although restitutions orders are not to be used as a substitute for the civil process, in appropriate
cases, the compensation order provides a useful and effective tool in the sentencing procedure that
can help rehabilitate the accused, provide benefits for the victim, and benefit society by reducing the
use of imprisonment
 restitution orders are generally enforced as civil judgments, thereby making them difficult to enforce
– although reparation to victims is now recognized as a purpose of sentencing, judges have limited
instruments with which to pursue the same
 section 739 – restitution to persons acting in good faith
 section 741.2 – civil remedies not affected – a civil remedy is not affected by reason that an order for
restitution under section 738 or section 739 has been made
(i) Victim Surcharges
 section 737(1) – subject to subsection (5), an offender who is convicted or discharged under section
730 of an offence shall pay a victim surcharge, in addition to any other punishment imposed on him
 section 737(5) – when the offender establishes to the satisfaction of the court that undue
hardship to him or his dependents would result from payment of the victim surcharge, the court
may, on an application of the offender, make an order exempting him from the application of
subsection (1)
(j) Sentencing Aboriginal Offenders
 section 718.2(e) instructs judges to consider all available sanctions other than imprisonment that are
reasonable in the circumstances for all offenders, but with particular attention to the circumstances
of Aboriginal offenders
 this provision is designed to remedy the over-incarceration of Aboriginal people and requires judges
to pay attention to the unique circumstances of Aboriginal offenders, including systemic
discrimination
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 R v. Gladue – [1999] 1 SCR 688 – SCC – Aboriginal woman who stabbed her common-law husband to
death
 Facts: the accused (and Aboriginal) woman, pled guilty to manslaughter for killing for commonlaw husband; they had been celebrating her birthday and were drinking; she thought he was
having an affair with her sister, and when his sister left followed by him, she told her friend that
“he’s going to get it this time”; she found him and her sister at her sister’s house and thought
they had had sex; when the accused and the victim returned to their home, they had a fight; she
confronted him about the cheating, and he insulted her; he then left the home and she ran after
him with a knife and stabbed him in the chest; at the sentencing, the judge took into account
several mitigating factors; he noted that there were no special circumstances arising from her
Aboriginal status to be taken into consideration since they both lived in an urban area off-reserve
and weren’t within the Aboriginal community as such; court of appeal dismissed the accused’s
appeal of her sentence; she appealed to supreme court
 Issues: should the accused’s Aboriginal status have been taken into consideration
 Held: the appeal should be dismissed
 section 718.2(e) requires a judge to take an accused’s Aboriginal status into account, especially
because of the over-representation of Aboriginals in prisons; however, it is not the sole factor to
be taken into consideration when determining the sentence, it must be considered along with
other factors relevant to the offence
 the section isn’t automatically applicable in all cases involving Aboriginals; especially since it can’t
be said that Aboriginal peoples don’t believe in the importance of deterrence, denunciation, and
separation
 the section applies to all Aboriginal people, wherever they reside (on or off reserve, large city or
rural area), so the judge may have erred in applying such a principle when deciding whether to
apply the section to this case
 however, such an error is not sufficient to justify allowing the appeal (the offence was a
particularly serious one - the more violent and serious the offence, the more likely it will be
that an Aboriginal offender will receive the same sentence as a non-Aboriginal offender
(k) Punishment of Organizations
 section 718.21 – the court should take into consideration: any advantage gained by the organization
as a result of the offence; the degree of planning involved in carrying out the offence; the duration,
and complexity of the offence; whether the organization tried to conceal its assets or convert them
in order to show that it is not able to pay the fine or restitution; the impact that a sentence would
have on the economy/employees; the cost to public authorities of the investigation and prosecution
of the offence; whether it has been convicted of similar offences previously; any measures the
organization has taken in order to reduce the likelihood of it committing any subsequent offences
 section 735 – fines on organizations
(l) Parole
 an offender is eligible for full parole after having served 1/3 of the sentence, with some exceptions
 he is eligible for statutory release after serving 2/3 of the sentence, with some exceptions
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 offenders may also be eligible for day parole after serving 1/6 of the sentence, with some exceptions
 however, for the sake of denunciation, the sentencing judge can order that a person convicted of
sexual or violent offence, and who is subject to two years or more imprisonment, shall not be eligible
for parole until either 1/2 of the sentence or 10 years (whichever is less) has been served (section
743.6)
 in some cases, offenders can be denied statutory release because of concern about their danger if
released
 some prisoners can be held to the expiry of their sentence
 in some cases, because of the lack of any priors, and the nature of their offence, some offenders may
be eligible for accelerated parole review
 parole boards can take into consideration the crime committed, victim impact, and the offender’s
sense of responsibility for the crime
 parole boards are primarily concerned about the offender’s rehabilitation and reintegration into
society, as well as the danger of future crime, so frequently, parole boards don’t grant parole
 section 743.6 – power of the court to delay parole
 R v. Zinck – [2003] SCJ 5 – SCC – stabbed and killed neighbour, given delayed parole
 Facts: accused shot and killed neighbour; he pled guilty to manslaughter; trial judge sentenced
him to 12-year term of imprisonment and ordered that the parole eligibility be delayed for six
years under section 743.6; court of appeal upheld; appeal to supreme court
 Issues: was the trial judge right to order the delayed parole
 Held: appeal should be dismissed
 delaying parole can be a significant component of a sentence in the case of offences falling within
the scope of section 743.6
 delayed parole is a decision that must be used in a manner that is fair to the offender
 the sentencing judge must determine the appropriate punishment for the crime, and then (taking
into consideration factors of general and specific deterrence, as well as denunciation) exercise his
power to delay parole when necessary
 section 743.6 should not be applied in a routine manner, without necessity, it should be invoked
only on the basis of demonstrated need
 prosecution has the burden of establishing that additional punishment by way of delayed parole
is required – however, the crown has no obligation to give the offender written notice that
delayed parole will be applied for, fairness only requires that the offender be clearly informed
that the application is being made
 if delayed parole is ordered, the offender must be provided with the reasons as to why it is made
 in this case, the judge didn’t err in his application of section 743.6, and so his order to delay
parole was justified; he also gave reasons for the same (albeit not extensive ones), and reviewed
all relevant facts, particularly the gratuitousness of the crime and the need to protect the public
 the objectives of deterrence and denunciation could not be justified without delaying parole
eligibility
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 the crown made its submission for delayed parole at the sentencing hearing; the defence was
given sufficient opportunity to respond, but failed to do so
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[SECTION 12] – APPEALS AND REVIEW
34. Appeals of Final Decisions and Judicial Review of Interim decisions
 the final verdicts laid out by judges can be appealed – interim decisions cannot be
 however, interim decisions can be subject of judicial review applications where jurisdictional
errors occur
 one can’t wait until the end of the trial to review interim decisions (e.g.; preliminary inquiry results;
publication bans; access to third party records) because the damage sought to be prevented may
have already occurred
 rights of appeal are entirely under the statutes – however, remedies such as certiorari can be
brought in some cases; section 40 of the Supreme Court Act, whereby appeals reach the supreme
court without having been considered by any court of appeal (R v. Brown) can be used in cases
where an appeal of an interlocutory order is in issue (e.g.; when a third party challenges an order for
production of privileged communications)
 there are separate rules for appeals of indictable offences and summary conviction offences –
different rights of appeal are given to the prosecution and the defence in indictable offence appeals;
appeal rights are essentially parallel for summary conviction offence appeals
 section 675(1)(a) says that a person can appeal a conviction based on: a question of law alone; a
question of fact (with the leave of the court of appeal to do so); inference of fact; a mixed question of
law and fact; any ground of appeal that appears to the court of appeal to be sufficient ground of
appeal
 section 675 sets out the bases upon which an appeal can be made; section 686(1)(a) sets out the
filters that restrict the grounds upon which an appeal can be granted:
 the verdict is unreasonable or cannot be supported by the evidence
 the judgement of the trial court was a wrong decision on a question of law
 there was a miscarriage of justice
 appeals will not necessary be granted simply because an error is shown; rather, only an error that
results in an unreasonable verdict, or a miscarriage of justice will be sufficient grounds for appeal
 demonstrating a wrong decision on a question of law will lead to a successful appeal – however, a
question of law for the jurisdictional purposes of deciding whether a ground of appeal exists is
not the same as a question of law for the purposes of deciding whether the appeal should be
granted
 even if an appeal meets the conditions of section 686(1)(a), it still may not be granted because
section 686(1)(b) further narrows the grounds upon which an appeal may succeed by setting out
the grounds upon which the court of appeal can dismiss an appeal
 errors in law that cause no substantial wrong, do not create a miscarriage of justice, or are
mere procedural irregularities, will not lead to a successful appeal by the accused
 if a full appeal is granted under section 686(1)(a), the court of appeal quashes the conviction; it an
then either acquit the accused, or order a new trial
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 if the appeal is dismissed on the basis that the accused was properly convicted on at least some
part, then the appeal court can substitute a verdict, affirm the sentence, impose a new sentence,
or remit the matter back to trial for re-sentencing (sections 686(2) and (3))
 a court of appeal can deal with issues other than whether the accused was convicted or acquitted; it
can hear appeals relating to findings that the accused was unfit to stand trial, was not criminally
responsible by reason of metal disorder, special verdicts (sections 686(1)(c) and (d))
 the court of appeal can vary a sentence imposed on an accused (section 687)
 when the issue is purely one of question of law, the standard of review is the correctness thereof;
the appellate court can substitute its opinion for that of the trial court
 when the issue is question of fact, because trial judges are presumed to be competent an able to
decide cases justly and fairly, allowing an appeal would undermine that presumption as well as the
public’s confidence in the trial process, also, the trial judges hear the testimony given and are
exposed to all the evidence, so they are familiar with the case as a whole, as such, their expertise
should be respected; therefor, the findings of the fact by a trial judge will only be overturned where
there is a palpable and overriding error
 inference of fact are held to the same standards of review as findings of fact
 questions of mixed law and fact may at times be reduced to a question of law, in which the standard
of correctness would apply; however, when it can’t be deduced to a question of law, the higher
standard of review, whereby a trial judge’s interpretation of the evidence should only be overturned
in the case of palpable and overriding error, should apply
 unreasonable verdict appeals are guided by section 686(1)(a)(i)
 the basic standard for assessing whether a verdict is unreasonable is whether the verdict is one that
a properly instructed jury acting judicially could reasonably have rendered (R v. Yebes) – it involves
the court of appeal to engage in some weighing of the evidence and just simply considering the
question of the sufficiency thereof (R v. Biniaris); but the court of appeal can’t substitute its view for
that of the trier of fact, rather it must ask whether the trier of facts could reasonably have reached
the same conclusion on the evidence before it (R v. Burns)
 in the case of a trial with judge alone, because the judge will have given reasons as to his
decision, the court of appeal can take those reasons into consideration in assessing the
reasonableness of the verdict; and if flaw in the evaluation of the evidence, or in the analysis
thereof, is found by the appellate court, then the appellate court can justify the reversal of the
verdict based on the mis-assessment by the trial court (R v. Beudry)
 when the verdict is found to be unreasonable and was delivered at trial by a jury, because juries
do not give reasons (and cannot reveal the details concerning their deliberations), if the verdict
was a result of an incorrect charge to the jury, then it falls in the category of an error of law, and
the appeal based accordingly
 however, if the jury was charged correctly, and the verdict is found to be unreasonable, then it
can be said that the jury was not acting judicially (i.e.; dispassionately, applying the law, and
adjudicating on the basis of the record and nothing else)
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 section 686(1)(a)(ii) permits an appeal to be granted in the case of a wrong decision on a question of
law; section 686(1)(a)(iii) permits an appeal based on a miscarriage of justice
 there is no requirement that the verdict was not supportable on the evidence for either of the
sections to apply (R v. Lohrer)
 an error in law is any decision that was an erroneous interpretation or application of the law; the
error by itself need not have led to any unfairness of prejudice (R v. Khan)
 a miscarriage of justice can be either substantive or procedural
 section 686(1)(b)(iii) allows an appeal court to dismiss an appeal despite an error of law provided
that no substantial wrong or miscarriage of justice has occurred (that is, that there is a reasonable
possibility that the verdict would have been different had the error not been made) (R v. Khan)
 it may be the case that the error is harmless in itself (in which case it wouldn’t have been capable
of causing prejudice to the accused)
 or it may be the case that the evidence against the accused is so overwhelming, that even if the
appeal was granted and a new trial ordered, the result would inevitably be the same – meaning
that he error itself might not have been incapable of causing prejudice, but that such a prejudice
would have no genuine impact on the resulting verdict of the trial (not just that the result could
or ought to be the same, but that it inevitably or invariably will be the same)
 section 686(1)(b)(iv) allows an appeal court to dismiss an appeal on the basis that the trial court had
jurisdiction over the class of offence, and the court of appeal is of the opinion that the appellant
suffered no prejudice thereby – that is, the section allows appeals based on technicalities to be
dismissed provided there is no harm to the accused’s interest in doing so
 that is, this section applies only to a narrow range of procedural irregularities creating a
jurisdictional error that cannot be classified as a pure error of law
 however, where the trial court had no jurisdiction over the class of offence to begin with, the
section does not apply
 crown appeals can be brought under section 676, however these rights are narrower than the rights
of the accused in the case of a conviction – the crown can’t appeal on the basis that an acquittal was
unreasonable or could not be supported on the evidence
 section 676(1)(a) allows crown appeal on any ground of appeal that involves a question of law
alone; further, the crown has a heavy onus in satisfying the court that the verdict would not
necessarily have been the same had the errors not occurred
 although the right of the crown to appeal an acquittal doesn’t violate the charter (R v. Graveline
and R v. Morgentaler), an acquittal shouldn’t be overturned lightly
 the court of appeal can only grant an appeal from an acquittal (either through entering a
conviction (imposing sentence, or remitting the matter to the trial court of sentencing) or by
ordering a new trial) in trial by judge alone; however, if the trial was by judge and jury, then the
court of appeal can only order a new trial (section 686(4))
 under section 683, a court of appeal can order exhibits or other items produced, hear witnesses, or
admit an examination of a witness, and refer questions to a special commissioner – it can also amend
the indictment where the accused has not been misled or prejudiced
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Criminal Law
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 it is possible for evidence to be introduced ion appeal that was not before the trial court; but this is
done in a constrained manner – the guidelines for the same have been put down in R v. Palmer:
 it should not be introduced if it could have been adduced at trial by due diligence (this is to avoid
reassessment in hindsight of a strategic decision made at trial)
 it must be relevant to the issue in the trial
 it must be reliable (i.e.; reasonably capable of belief)
 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 results
 it must have been capable of admission at the initial trial
 when the trial procedure itself is the issue of the appeal, then the strict Palmer criteria do not apply
 the code doesn’t set out a procedure for appealing the decision to commit or discharge at the
preliminary inquiry, and so no appeal is possible – as such, a review of such a decision can only be
made on the basis of an action for certiorari (which will only be granted if the judge has fallen into
jurisdictional error)
 the crown, although can seek a certiorari application, has a simpler option of direct indictment
despite the discharge as per section 577
 therefor, most certiorari applications involve an accused seeking review of a decision to commit
 R v. Lutoslawski – [2010] 3 SCR 60 – SCC – trial court acquitted; court of appeal convicted; supreme
court
 Facts: accused was acquitted at trial; court of appeal overturned and convicted; accused
appealed to supreme court
 Issues: did the court of appeal err in substituting a conviction instead of ordering a new trial
 Held: the court of appeal reached the proper conclusion; appeal by accused is dismissed
 as found by the court of appeal, the trial judge misdirected himself on the question of law
 the crown proved beyond a reasonable doubt that the touching of the victims occurred in
circumstanced of a sexual nature so as to compromise the sexual integrity of the victims
 section 686(4)(b)(ii) permits and appellate court on appeal from a judge alone to enter a verdict
of guilty with respect of the offence of which, in its opinion, the accused should have been found
guilty but for the error in law
 the crown established that an error of law was committed at trial, and that but for that error, the
accused would necessarily have been convicted
 the court of appeal
 indictable offences are appealed to the court of appeal for the province; generally, summary
conviction appeals are taken to the province’s superior court of criminal jurisdiction that is not the
court of appeal
 under section 813 a defendant can appeal a conviction or order made against him, and the crown
can appeal an order that stays proceedings on an information or dismisses an information;
additionally both parties can appeal sentences, verdicts of not criminally responsible, and fitness to
stand trial decisions
Khyaati Singh
Criminal Law
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 section 822(1) incorporates most of sections 683 to 689 of the code (i.e.; the sections noted above
that are applicable to indictable offences)
 sections 691 to 695 create a right to appeal decisions of a court of appeal regarding indictable
offences to the supreme court
 an appeal to the supreme court can only be based on a question of law, no other ground of appeal is
permitted
 as a class, in the case of court of appeal decisions being appealed, the question of whether a court of
appeal ahs properly applied section 686(1)(a)(i) (that the trial decision was unreasonable or could
not be supported by the evidence), or section 686(1)(b)(iii) (that there was no substantial wrong or
miscarriage of justice in the trial judge’s findings), or section 686(1)(b)(iv) (procedural irregularities)
is a question of law; as such, it is therefor possible to bring an appeal to the supreme court based on
whether the court of appeal ought to have allowed the appeal
 for the most part, appeals (by the crown, or by an accused who was convicted at trial and appeal) are
permitted are: where a judge of the court of appeal dissents on a question of law; or when the
supreme court gives leave to appeal a question of law
 however, if an accused was acquitted at trial, but convicted on appeal, he can appeal on any
question of law, whether there was a dissent in the court of appeal or not