Case Summaries
The Sources of Criminal Law
Frey v Fedoruk et al, [1950] S.C.R 517
Appellant was chased, caught and detained by respondent, F, after he had been seen on F’s property
looking into a lighted side window of the house where a woman was preparing for bed. Fray attempted
to get away but was caught and brought back to the house by F, holding a butcher knife. A policeman,
the other respondent, was called and, after some investigation arrested the appellant without warrant.
On a charge that he “unlawfully did act in a manner likely to cause a breach of the peace by peeping…”
appellant was convicted by a Police Magistrate by acquitted by the Court of Appeal.
His Claim for damages for malicious prosecution and for false imprisonment was dismissed by the trial
judge and this was affirmed by a majority in the Court of Appeal on the ground that appellant had been
guilty of a criminal offence at common law and therefore that there had been justification for the arrest
without warrant. This appeal to the Court is concerned only with the claim for false imprisonment.
Court of Appeal agreed that a bare trespass not amounting to a breach of the peace is not a criminal
offence. It was not an office which either a police officer or private individual might arrest without
warrant under s.656 o4 647 of the CC> Section 30 authorizes a peace office to arrest without warrant
only if he, on reasonable and probable grounds, believes that an offence for which the offender may eb
arrested without warrant has been committed. Since no criminal offence was committed, subsection s1
of s. 648: a peace officer may arrest without warrant any one who he finds, committing any criminal
offence. The police officer had not found the appellant committing any offence.
Held: Appellant’s conduct did not amount to any criminal offence known to the law. Therefore,
respondents have failed to satisfy the onus placed upon them to justify the imprisonment under ss.30,
648 or 650 of the Criminal Code.
Held also: Section 30 CC authorizes a peace officer to arrest without warrant only if he, on reasonable
and probable grounds believes that an offence for which the offender may be arrested without warrant
has been committed, but not if he erroneously concludes that the facts amount to an offence, when, as
a matter of law, they do not.
Held further: Conduct, not otherwise criminal and not falling within any category of offences defined by
the criminal law, does not become criminal because a natural and probable result thereof will be to
provoke others to violent retributive action; acts likely to cause a breach of the peace are not in
themselves criminal merely because they have this tendency. IT is for Parliament and not for the Courts
to decide if any course of conduct, which has not been up to the present regarded as criminal, is not to
be so regarded.
Examples:
1. The speaking of insulting words unaccompanied by any threat of violence undoubtedly may and
sometimes produce violent retributive action, but is not criminal.
2. Adultery has, in many recorded cases, when unexpectedly discovered, resulted in homicide; but,
except where expressly made so by Stature, adultery is not a crime.
Per Kerwin J.: The appellant, by “peeping”, did not commit a breach of the peace. If he had, it is not an
offence for which either a police constable or a private individual might arrest without warrant under ss.
648 or 647 of the Criminal Code. Section 30, 648 and 650 afford no assistance to either respondents
since no criminal offence was committed.
APPEAL from the justment of the Court of Appeal for BC affirming, Robertson JA. Dissenting, the
dismissal by the trail judge of an action for false imprisonment and malicious prosecution.
R. Jobidon [1991] 2 S.C.R 714
The accused was charged with manslaughter, through the offence of assault, following a fist fight. The
fight started in a bar. The victim had been prevailing when the owner separated them and told the
accused to leave. He left and waited outside in the parking lot. When the victim came out, a crowd of
people gathered around them to see the fight, While both men stood facing each other, the accused
struct the victim with his fist, hitting him with great force on the head, knocking him backwards onto the
hood of a car. The accused continued forward and, in a brief flurry, struck the victim repeatedly on the
head. The victim rolled off the hood and lay limp. He was taken to the hospital where he died.
At trial, the accused was found not guilty of manslaughter. The judge held that the victim’s consent to a
“fair fight” negated assult, and held further that the accused had not been criminally negligent. The
Court of Appeal set aside the acquittal and substituted a guilty verdict on the charge of manslaughter.
This appeal raisies the issue as to whether absence of consent is an element which must be proved by
the Crown in all cases of assult under s. 265 of the Criminal Code or whether there are common law
limitations which restrict or nefare the legal effectiveness of consent in certain types of cases. A
secondary issue is whether the accused could be convicted of manslaughter on a basis other than that of
an unlawful act of assault.
Held: Appeal should be dismissed.
S.265 set out a general rule that one cannot commit assault if the other person agrees to the application
of force. However, while s 265 states that all forms of addault, including assault causing bodily hamr,a re
covered by the general rule, it does not define the situation or forms of conduct or eventual
consequences which the law will recognize as being valid objects of consent for the purpose of the
offence. The common law has generated a body of law to illuminate the meaning of consent and to
place certain limitations on its lefal effectiveness in crim law. IT has also set limits on the tyoes of
harmful actions to which one can validly consent, and which can shelter as assailant from the sanctions
of the crim law. S. 8 of the CC indicates that common law principles continue to apply to the extent that
they are not inconsistent with the CC or any ofjer Act of Parliament and have not been altered by them.
In particular, s. 8(3) of the CC expressly provides that exculpatory defences continue to operate to
exclude criminal liability.
Limits on consent to assault have lomg been recognized by courts. Although there is not clear position in
the modern Canadian common law, when one takes into account the jurisprudence, when one keeps
sight of the common law’s persistence to limit the legal effectiveness of consent to a fist fight, and when
one understands that s265 has always incorporated that persistence, the scale tips heavily against the
validity of one person’s consent to the infliction of bodily injury in a fight. The relevant common law
policy considerations also support that conclusion. It is not in the public interest that adults should
willingly cause harm to one another without good reason. There is no social value in fist fights or street
brawls.
These activities may even lead to serious breaches of the public peace.
Here, the victim;s consent to a fair fight did not preclude commission of the offence of assault under
s265 of the CC. The limitation demanded by s265 vitiates consent between adults intentionally to apply
force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.
This is the extent of the limit which the common law requires in the factual curcumstances of this
appeal. This formulation will not affect the validity or effectiveness of freely given consent to rough
sporting activities carried out according to the rules of the game, medical or surgical treatment, or
dangerous exhibitions by qualified stuntment.
The provisions of the CC have not ousted the common law limitations on consent. First, Parliament, by
setting out factors that may vituate consent in s265(3) of the CC, did not intend to replace any common
law rules that might have negated the legal effectiveness of consent to an act which would otherwise
constitute assault. The history of our criminal law reveals that codification did nit replace common law
principles of criminal responsibility, but in fact reflected them. That history also reveals that limtiations
on consent based on public policy existed before the codification of Canada’s criminal law and that they
have not been ousted by statutory revisions and amendments made to the CC. Even if it could be
concluded that s265(3) negated the applicability of common law rules which describe when consent to
assault will be vitiated for involunariness or defects in the will underlying the apparent consent, it would
not follow that those amendements erased limitations based on public policy. Parliament, if it had so
intended, would have stated that intention. Section 8(3) of the CC strongly suggests preservation of the
common law approach to consent in assault. Second, by specifying in s265(2) that s265 is to apply to all
forms of assault, Parliament did not intend to eliminate the common law prescription of objects or
forms of conduct to which legally effective consent may not be given. Rather, Parliament sought to
ensure that the basic elements of the offence of sexual assault in ss. 265(1) (a) to (c), the cirumstances
listed in s265(3) for vitiating consent due to a coerced or misinformed volition, and the required state of
mind for raising a defence in s265(4), would be applied without exception, irrespective of the peculiar
form of assault.
While a fist fight constitutes a situation in which the concept and term "assault" fit quite naturally,
criminal negligence is less well tailored to that kind of situation. In a fist fight, there is an obvious
intention to apply force to the other person. This conscious regard for some level of harmful
consequence to the physical integrity of another person distinguishes assault from criminal negligence,
where there is actually a disregard for the likely impact of one's conduct on the other's physical safety.
Per Sopinka and Stevenson JJ.: Consent cannot be read out of the offence: it is a fundamental element
of many criminal offences, including assault, and the statutory provision creating the offence of assault
explicitly provides for the element of consent. The victim's consent, while it cannot transform a crime
into lawful conduct, is a vital element in determining what conduct constitutes a crime. The absence of
consent is an essential ingredient of the actus reus and is often confused with the defence of honest
belief in consent which relates not to the actus reus of the offence but to the mens rea or mind state of
the accused. An honest belief that there was consent may constitute a defence even though there was
no consent.
Parliament extended the principle that an absence of consent is necessary to all assaults, except murder,
in order to make the criminal law more certain. Section 265 was neither to outlaw consensual fighting
nor to allow it if the trial judge thought it socially useful in the circumstances. Rather, s. 265 makes the
absence of consent a requirement in the offence and restricts that consent to situations where force has
been intentionally applied and where the victim has clearly and effectively consented free of coercion
and misrepresentation. The scope of consent to an assault must be closely scrutinized. The trial judge
must decide whether that consent applied to the activity which is the subject of the charge instead of
evaluating the utility of the activity. The more serious the assault, the more difficult it should be to
establish consent.
The absence of consent cannot be swept away by a robust application of judge-made policy. Use of the
common law to eliminate an element of the offence that is required by statute is more than
interpretation and is contrary to the letter and spirit of s. 9(a) which provides that no person should be
convicted of an offence at the common law.
Given the danger inherent in the violent activity in this case, the scope of the consent required careful
scrutiny. The trial judge found that the victim's consent did not extend to a continuation of the fight
once he had lost consciousness. The accused, by continuing to pummel the victim after he knew the
victim was unconscious, knowingly acted beyond the ambit of the victim's consent. Given the finding
that the accused committed an assault and given that the victim died as a result of that unlawful act, the
accused is guilty of manslaughter under ss. 222(5)(a) and 234 of the Criminal Code.
The Power to Create Criminal Offenses and Rules of Criminal Procedure
R. Malmo-Levine, 2003 SCC 74 at paras 73-79
The federal criminal law is “plenary in power” (complete power over a particular area with no
limitations) and has been broadly construed.
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not
enacted in a vaccum, we can properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. The effect may be in relation to social, economic or political
intersts; and the legislation has had in mind to suppress the evil or to safeguard the interest threatened.
In the present case the “evil or injurious or undesirable effect” is the harm attributed to the non-medical
use of marijuana.
For a law to be classified as a criminal law, it must possess three prerequisites: a valid criminal law
purpose backed by a prohibition and a penalty. The criminal power extends to those laws that are
designed to promote public peace, safety, order, health or other legitimate public purpose. In RJRMacDonald Inc. v Canada (1995), it was helf that some legitimate public purpose must underlie the
prohibition. In Labatt Breweries, in holding that a health hazard may ground a criminal prohibition, the
court stated that the potential purposes of the criminal law rather broadly as including “public peace,
order, security, health and morality.” Of course Parliament cannot use its authority improperly, e.g
colourability, to invade areas of provincial competence.
The purpose of the NCA (Narcotic Control Act) fits within the criminal law powoer, which includes the
protection of vulnerable groups. See Mogentaler, in which s.251 of the CC prohibiting abortions except
in therapeutic situations was held to have a valid objective, namely protecting the life and health of
pregnant women, although it failed the s. 1 test on other grounds. On somewhat related issues arising
under the Charter, the protection of vulnerable groups has also been upheld under s. 1 as a valid federal
objective of the exercise of the criminal law power. In R. v Sharpe [2001], the court upheld s 163.1(4) of
the CC prohibiting the possession of child pornography, noting that the prevention of harm threatening
vulnerable members of society is a vlid limit on freedom of expression.
Legislation proscribing obscenity is a valid objecting which justifies some encroachment on the right to
freedom of expression. Emphasis on the impact of the exploitation of women and children, depicted in
publications and films, which can in certain cirumstances, lead to abject and servile victimization. The
restrictions on free speech imposed by the hate speech provision in the CC was a justifiable limit under
s1 because of potential attacks on minorities.
The control of a psychoactive drug that causes alteration of mental function clearly raises issues of
public health and safety, both fir the user as well as well as for those in the vroader society affected by
his or her conduct. The use a weed is therefore a proper subject matter for the exercise of the criminal
law power. IF there is a reasoned apprehension of harm Parliement is entitled to act, and in our view
Parliament is also entitled to act on reasoned apprehension of harm even if one some points the jury is
still out. In light of the concurrent findings of “harm” in the courts below, we therefore confirm that the
NCA in general, and that the scheduling of weed in particular, properly fall within Parliament’s legislative
competence under s91(27) of the CA 1867.
Prior to the enactment of the Charter in 1982, that finding, which validates the exercise of the criminal
law power, would have ended the appellants’ challenge. Now, of course, Parliament must not only find
legislative authority within the CA 1867, but it must exercise the authority subject to the individual
rights and freedoms guaranteed by the Charter.
Canada (Attorney General) v Bedford, 2013
Bedford, Lebovitch and Scott, current and former protitittes, brought an application seeking
declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C-46, which criminalize various
activities related to prostitution, infringe their rights under s. 7 of the Charter: s. 210 makes it an offence
to keep or be in a bawdy-house; s. 212(1)(j) prohibits living on the avails of prostitution; and, s. 213(1)(c)
prohibits communicating in public for the purposes of prostitution. They argued that these restrictions
on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing
certain safety measures — such as hiring security guards or “screening” potential clients — that could
protect them from violence. B, L and S also alleged that s. 213(1)(c) infringes the freedom of expression
guarantee under s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.
The Ontario Superior Court of Justice granted the application, declaring, without suspension, that each
of the impugned Criminal Code provisions violated the Charter and could not be saved by s. 1. The
Ontario Court of Appeal agreed s. 210 was unconstitutional and struck the word “prostitution” from the
definition of “common bawdy-house” as it applies to s. 210, however it suspended the declaration of
invalidity for 12 months. The court declared that s. 212(1)(j) was an unjustifiable violation of s. 7,
ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution
applies only to those who do so “in circumstances of exploitation”. It further held the communicating
prohibition under:
s. 213(1)(c) did not violate either s. 2(b) or s. 7. The Attorneys General appeal from the declaration that
ss. 210 and 212(1)(j) of the Code are unconstitutional. B, L and S cross-appeal on the constitutionality of
s. 213(1)(c) and in respect of the s. 210 remedy.
Held: The appeals should be dismissed and the cross-appeal allowed. Sections 210, as it relates to
prostitution, and ss. 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the
Charter. The word “prostitution” is struck from the definition of “common bawdy-house” in s. 197(1) of
the Criminal Code as it applies to s. 210 only. The declaration of invalidity should be suspended for one
year.
The three impugned provisions, primarily concerned with preventing public nuisance as well as the
exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by
depriving them of security of the person in a manner that is not in accordance with the principles of
fundamental justice. It is not necessary to determine whether this Court should depart from or revisit its
conclusion in the Prostitution Reference that s. 213(1)(c) does not violate s. 2(b) since it is possible to
resolve this case entirely on s. 7 grounds.
The common law principle of stare decisis is subordinate to the Constitution and cannot require a court
to uphold a law which is unconstitutional. However, a lower court is not entitled to ignore binding
precedent, and the threshold for revisiting a matter is not an easy one to reach. The threshold is met
when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. In
this case, the application judge was entitled to rule on the new legal issues of whether the laws in
question violated the security of the person interests under s. 7, as the majority decision of this Court in
the Prostitution Reference was based on the s. 7 physical liberty interest alone. Furthermore, the
principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the
permissibility of indirect criminalization. The principles raised in this case — arbitrariness, overbreadth,
and gross disproportionality — have, to a large extent, developed only in the last 20 years. The
application judge was not, however, entitled to decide the question of whether the communication
provision is a justified limit on freedom of expression. That issue was decided in the Prostitution
Reference and was binding on her.
The application judge’s findings on social and legislative facts are entitled to deference. The standard of
review for findings of fact — whether adjudicative, social, or legislative — remains palpable and
overriding error.
The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7.
The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly
adopted by the application judge. The prohibitions all heighten the risks the applicants face in
prostitution — itself a legal activity. They do not merely impose conditions on how prostitutes operate.
They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people
engaged in a risky — but legal — activity from taking steps to protect themselves from the risks. That
causal connection is not negated by the actions of third-party johns and pimps, or prostitutes’ so-called
choice to engage in prostitution. While some prostitutes may fit the description of persons who freely
choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes
have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps
and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not
diminish the role of the state in making a prostitute more vulnerable to that violence.
The applicants have also established that the deprivation of their security of the person is not in
accordance with the principles of fundamental justice: principles that attempt to capture basic values
underpinning our constitutional order. This case concerns the basic values against arbitrariness (where
there is no connection between the effect and the object of the law), overbreadth (where the law goes
too far and interferes with some conduct that bears no connection to its objective), and gross
disproportionality (where the effect of the law is grossly disproportionate to the state’s objective).
These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for
both is whether there is no connection between the law’s effect and its objective. All three principles
compare the rights infringement caused by the law with the objective of the law, not with the law’s
effectiveness; they do not look to how well the law achieves its object, or to how much of the
population the law benefits or is negatively impacted. The analysis is qualitative, not quantitative. The
question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law
that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is
sufficient to establish a breach of s. 7.
Applying these principles to the impugned provisions, the negative impact of the bawdy-house
prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective
of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being
prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly
disproportionate to the deterrence of community disruption. Parliament has the power to regulate
against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose
of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic,
exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails
of prostitution without distinguishing between those who exploit prostitutes and those who could
increase the safety and security of prostitutes, for example, legitimate drivers, managers, or
bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or
receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of
preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad.
Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution
for its own sake, but to take prostitution off the streets and out of public view in order to prevent the
nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of
street prostitutes, who are prevented by the communicating prohibition from screening potential clients
for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of
nuisance caused by street prostitution.
While the Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be
justified under s. 1, some of their arguments under s. 7 are properly addressed at this stage of the
analysis. In particular, they attempt to justify the living on the avails provision on the basis that it must
be drafted broadly in order to capture all exploitative relationships. However, the law not only catches
drivers and bodyguards, who may actually be pimps, but it also catches clearly non-exploitative
relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not
minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes
from taking measures that would increase their safety, and possibly save their lives, outweighed by the
law’s positive effect of protecting prostitutes from exploitative relationships. The impugned laws are not
saved by s. 1.
Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is
precluded from imposing limits on where and how prostitution may be conducted, as long as it does so
in a way that does not infringe the constitutional rights of prostitutes. The regulation of prostitution is a
complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new
approach, reflecting different elements of the existing regime. Considering all the interests at stake, the
declaration of invalidity should be suspended for one year.
R v Oakes [1986] 1 SCR 103
Respondent was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary
to s. 4(2) of the Narcotic Control Act, but was convicted only of unlawful possession. After the trial judge
made a finding that it was beyond a reasonable doubt that respondent was in possession of a narcotic,
respondent brought a motion challenging the constitutional validity of s. 8 of the Narcotic Control Act.
That section provides that if the Court finds the accused in possession of a narcotic, the accused is
presumed to be in possession for the purpose of trafficking and that, absent the accused's establishing
the contrary, he must be convicted of trafficking. The Ontario Court of Appeal, on an appeal brought by
the Crown, found that this provision constituted a "reverse onus" clause and held it to be
unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the
Canadian Charter of Rights and Freedoms. The Crown appealed and a constitutional question was stated
as to whether s. 8 of the Narcotic Control
Act violated s. 11(d) of the Charter and was therefore of no force and effect. Inherent in this question,
given a finding that s. 11(d) of the Charter had been violated, was the issue of whether or not s. 8 of the
Narcotic Control Act was a reasonable limit prescribed by law and demonstrably justified in a free and
democratic society for the purpose of s. 1 of the Charter.
Held: The appeal should be dismissed and the constitutional question answered in the affirmative.
Per Dickson C.J. and Chouinard, Lamer, Wilson and Le Dain JJ.: Pursuant to s. 8 of the Narcotic Control
Act, the accused, upon a finding beyond a reasonable doubt of possession of a narcotic, has the legal
burden of proving on a balance of probabilities that he was not in possession of the narcotic for the
purpose of trafficking. On proof of possession, a mandatory presumption arises against the accused that
he intended to traffic and the accused will be found guilty unless he can rebut this presumption on a
balance of probabilities.
The presumption of innocence lies at the very heart of the criminal law and is protected expressly by s.
11(d) of the Charter and inferentially by the s. 7 right to life, liberty and security of the person. This
presumption has enjoyed longstanding recognition at common law and has gained widespread
acceptance as evidenced from its inclusion in major international human rights documents. In light of
these sources, the right to be presumed innocent until proven guilty requires, at a minimum, that: (1) an
individual be proven guilty beyond a reasonable doubt; (2) the State must bear the burden of proof; and
(3) criminal prosecutions must be carried out in accordance with lawful procedures and fairness.
A provision which requires an accused to disprove on a balance of probabilities the existence of a
presumed fact, which is an important element of the offence in question, violates the presumption of
innocence in s. 11(d). The fact that the standard required on rebuttal is only a balance of probabilities
does not render a reverse onus clause constitutional.
Section 8 of the Narcotic Control Act infringes the presumption of innocence in s. 11(d) of
the Charter by requiring the accused to prove he is not guilty of trafficking once the basic fact of
possession is proven.
The rational connection test -- the potential for a rational connection between the basic fact and the
presumed fact to justify a reverse onus provision -- does not apply to the interpretation of s. 11(d). A
basic fact may rationally tend to prove a presumed fact, but still not prove its existence beyond a
reasonable doubt, which is an important aspect of the presumption of innocence. The appropriate stage
for invoking the rational connection test is under s. 1 of the Charter.
Section 1 of the Charter has two functions: First, it guarantees the rights and freedoms set out in the
provisions which follow it; and second, it states explicitly the exclusive justificatory criteria (outside of s.
33 of the Constitutional Act, 1982) against which limitations on those rights and freedoms may be
measured.
The onus of proving that a limitation on any Charter right is reasonable and demonstrably justified in a
free and democratic society rests upon the party seeking to uphold the limitation. Limits on
constitutionally guaranteed rights are clearly exceptions to the general guarantee. The presumption is
that Charter rights are guaranteed unless the party invoking s. 1 can bring itself within the exceptional
criteria justifying their being limited.
The standard of proof under s. 1 is a preponderance of probabilities. Proof beyond a reasonable doubt
would be unduly onerous on the party seeking to limit the right because concepts such as
"reasonableness", "justifiability", and "free and democratic society" are not amenable to such a
standard. Nevertheless, the preponderance of probability test must be applied rigorously.
Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in
a free and democratic society. First, the objective to be served by the measures limiting a Charter right
must be sufficiently important to warrant overriding a constitutionally protected right or freedom. The
standard must be high to ensure that trivial objectives or those discordant with the principles of a free
and democratic society do not gain protection. At a minimum, an objective must relate to societal
concerns which are pressing and substantial in a free and democratic society before it can be
characterized as sufficiently important. Second, the party invoking s. 1 must show the means to be
reasonable and demonstrably justified. This involves a form of proportionality test involving three
important components. To begin, the measures must be fair and not arbitrary, carefully designed to
achieve the objective in question and rationally connected to that objective. In addition, the means
should impair the right in question as little as possible. Lastly, there must be a proportionality between
the effects of the limiting measure and the objective
-- the more severe the deleterious effects of a measure, the more important the objective must be.
Parliament's concern that drug trafficking be decreased was substantial and pressing. Its objective of
protecting society from the grave ills of drug trafficking was self-evident, for the purposes of s. 1, and
could potentially in certain cases warrant the overriding of a constitutionally protected right. There was,
however, no rational connection between the basic fact of possession and the presumed fact of
possession for the purpose of trafficking. The possession of a small or negligible quantity of narcotics
would not support the inference of trafficking.
Per Estey and McIntyre JJ.: Concurred in the reasons of Dickson C.J. with respect to the relationship
between s. 11(d) and s. 1 of the Charter but the reasons of Martin J.A. in the court below were adopted
for the disposition of all other issues.
R v Labaye 2005 SCC 80
The accused was charged with keeping a common bawdy-house for the practice of acts of indecency
under s. 210(1) of the Criminal Code. The accused operated a club in Montréal the purpose of which was
to permit couples and single people to meet each other for group sex. Only members and their guests
were admitted to the club. Prospective members were interviewed to ensure that they were aware of
the nature of the activities of the club. Members paid an annual membership fee. A doorman manned
the main door of the club, to ensure that only members and their guests entered. The club had three
floors. The first floor was occupied by a bar, the second a salon, and the third the “apartment” of the
accused. Two doors separated the third floor apartment from the rest of the club. One was marked
“Privé” and the other was locked with a numeric key pad. Members of the club were supplied with the
appropriate code and permitted to gain access to the third floor apartment. This was the only place
where group sex took place. Entry to the club and participation in the activities were voluntary. At trial,
the accused was convicted. The trial judge found that the accused’s apartment fell within the meaning
of “public place”, as defined in s. 197(1) of the Criminal Code. She also found social harm in the fact that
sexual exchanges took place in the presence of other members of the club. She concluded that this
conduct was indecent under the Criminal Code because it was degrading and dehumanizing, was
calculated to induce anti-social behaviour in its disregard for moral values, and raised the risk of sexually
transmitted diseases. A majority of the Quebec Court of Appeal upheld the accused’s conviction.
Held (Bastarache and LeBel JJ. dissenting): The appeal should be allowed and the accused’s conviction
set aside.
Per McLachlin C.J. and Major, Binnie, Deschamps, Fish, Abella and Charron JJ.: In order to establish
indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements
have been met. The first is that by its nature the conduct at issue causes harm or presents a significant
risk of harm to individuals or society in a way that undermines or threatens to undermine a value
reflected in and thus formally endorsed through the Constitution or similar fundamental laws by
(a) confronting members of the public with conduct that significantly interferes with their autonomy and
liberty, (b) predisposing others to anti-social behaviour, or (c) physically or psychologically harming
persons involved in the conduct. The categories of harm capable of satisfying the first branch of the
inquiry are not closed. The second requirement is that the harm or risk of harm is of a degree that is
incompatible with the proper functioning of society. This two-branch test must be applied objectively
and on the basis of evidence. [62]
In this case, the accused must be acquitted. The autonomy and liberty of members of the public was not
affected by unwanted confrontation with the sexual conduct in question. On the evidence, only those
already disposed to this sort of sexual activity were allowed to participate and watch. There is also no
evidence of anti-social acts or attitudes toward women, or for that matter men. No one was pressured
to have sex, paid for sex, or treated as a mere sexual object for the gratification of others. The fact that
the club is a commercial establishment does not in itself render the sexual activities taking place there
commercial in nature. The membership fee buys access to a club where members can meet and engage
in consensual activities with other individuals who have similar sexual interests. Finally, with respect to
the third type of harm, the only possible danger to participants on the evidence was the risk of catching
a sexually transmitted disease. However, this must be discounted as a factor because it is conceptually
and causally unrelated to indecency. Since the Crown failed to establish the first requirement to prove
indecent criminal conduct, it is unnecessary to proceed to the second branch of the test. If one did,
there seems to be no evidence that the degree of alleged harm rose to the level of incompatibility with
the proper functioning of society. [66-71]
Per Bastarache and LeBel JJ. (dissenting): The application of the appropriate test leads to the conclusion
that the impugned acts were indecent and that the accused’s establishment was a common bawdyhouse within the meaning of s. 210(1) of the Criminal Code. [76]
The new approach to indecency proposed by the majority is neither desirable nor workable. Not only
does it constitute an unwarranted break with the most important principles of our past decisions
regarding indecency, but it also replaces the community standard of tolerance with a harm-based test.
Whether or not serious social harm is sustained has never been the determinative test for indecency.
Moreover, when the standard of tolerance is established on the basis of the three categories of harm, it
becomes impossible to take into account the multitude of situations that could exceed the threshold for
indecency. This new harm-based approach also strips of all relevance the social values that the Canadian
community as a whole believes should be protected. The existence of harm is not a prerequisite for
exercising the state’s power to criminalize certain conduct: the existence of fundamental social and
ethical considerations is sufficient. Lastly, in the context of an offence under s. 210(1) of
the Criminal Code, it is not absolutely necessary to consider the harm done to society. [75] [98-104]
[115]
To determine whether acts are indecent, it is preferable to continue applying the original test for
indecency, which focusses on a contextual analysis of the impugned acts and incorporates the concept
of harm as a significant, but not determinative, factor to consider in establishing the applicable level of
tolerance. Whether or not harm is sustained is merely one of several indicators or contextual factors
that make it possible to gauge the degree of tolerance of the Canadian community. Although a certain
degree of subjectivity is inherent in the establishment of the standard of tolerance because of the
judge’s role as interpreter of the community’s minimum standards regarding sex, the analysis remains
objective as long as the judge ignores his or her personal convictions and instead tries to determine the
nature of the social consensus. [76] [134]
The question that must therefore be asked in the case at bar is as follows: “Do the impugned acts offend
the standard of tolerance of the contemporary Canadian community, having regard to the place and
context in which they occurred?” The following contextual factors may be considered in determining the
standard of tolerance: (1) the private or public nature of the place; (2) the type of participants and the
composition of the audience; (3) the nature of the warning given regarding the acts;
(4) the measures taken to limit access to the place; (5) the commercial nature of the place and the acts;
(6) the purpose of the acts; (7) the conduct of the participants; and (8) harm suffered by the
participants. Regarding this last factor, attention must be paid to the risk of physical or psychological
harm. This approach permits the risk of spreading sexually transmitted diseases to be taken into
account. Finally, the consent of the participants or the fact that those present are informed adults is not
in itself a determinative factor. A consensual sexual act that is totally acceptable in one situation may be
indecent if it is performed in another context. It is the tolerance of the general public that counts, not
the tolerance of the participants or spectators. [81] [122] [131-132]
In the case at bar, the impugned sexual acts were very explicit acts, and the place where the acts were
performed was a public establishment. Although advertised as a private club, the accused’s club was a
place to which the public had ready access “by invitation, express or implied”, within the meaning of s.
197(1) of the Criminal Code. All that was necessary was to pay the requested fee after a cursory
interview that was quite superficial, or to be the guest of a club member. What is more, the measures
taken by the club to control access did not adequately limit the public’s access to a place where very
explicit sexual acts were performed. The establishment’s operations are also indicative of the
commercial nature of the activities that took place there. Sexual acts could be performed on the third
level of the establishment only after a mandatory commercial transaction between the participants and
the owner of the establishment, since everyone had to pay a fee to become a member. The participants
essentially purchased sexual services provided by other participants. In the instant case, it is even
possible to conclude that a form of social harm has been sustained that results from the failure to meet
the minimum standards of public morality.
Finally, even though the participants were informed adults whose actions were consensual and
voluntary and who presumably shared the philosophy of partner swapping, this characteristic of the
participants is not relevant under s. 210(1) of the Criminal Code other than to demonstrate the
existence of demeaning or dehumanizing acts. Considered in context, the explicit sexual acts performed
in the accused’s establishment clearly offended the Canadian community standard of tolerance. The
community does not tolerate the performance of acts of this nature in a place of business to which the
public has easy access. The acts were therefore indecent. The public and commercial dimensions of the
sexual practices in issue would lead to the conclusion that those practices were indecent even if there
were no harm. [137-141] [145-148] [151-153]
Interpreting Criminal Provisions
R v Jobidon – See Above
R v. Sundman, 2022 SCC 31
The Supreme Court finds an accused person guilty of first degree murder for chasing and then killing a
man who escaped from a moving truck. In 2015, Darren Sundman and two accomplices killed a rival
drug dealer. It happened as all four men were riding in a truck outside Prince George, British Columbia.
Mr. Sundman started hitting the victim with a handgun while the truck was traveling so fast that the
victim could not escape the truck. But when the truck slowed down to make a turn, the victim jumped
out and tried to run away. Mr. Sundman and the two accomplices chased after the victim on foot. Mr.
Sundman shot the victim several times, stopping him from being able to run any farther.
One of the accomplices then said “I got him, boss”, before shooting the victim at close range, killing him
almost instantly. Even though Mr. Sundman did not fire the fatal shot, he and the two accomplices had
an intent to kill the victim, and so they were each charged with first degree murder.
First degree murder usually means the murder was both planned and deliberate. That is, the accused
person intended to kill someone and prepared it or thought it out ahead of time. But an unplanned
murder can also be in the first degree when the accused person killed the victim while committing
another serious offence, such as sexual assault or kidnapping. In this case, the Crown argued that the
murder was planned and deliberate, or that Mr. Sundman and his accomplices had forcibly confined the
victim when they killed him. Forcible confinement is when someone unlawfully keeps another person
trapped or detained against their will.
At trial, the judge acquitted Mr. Sundman of first degree murder, but convicted him of second degree
murder. The judge found that because the killing was not planned, and because the victim managed to
escape his confinement when he jumped out of the truck, this could not be first degree murder.
The Crown appealed the verdict to British Columbia’s Court of Appeal. It overturned the trial judge’s
decision and convicted Mr. Sundman of first degree murder. It said the victim could still be considered
“confined” after jumping out of the truck because he was being chased. Mr. Sundman appealed to the
Supreme Court of Canada.
The Supreme Court has upheld Mr. Sundman’s conviction for first degree murder. Confinement does not
always mean being physically restrained. Writing for a unanimous Supreme Court, Justice Mahmud
Jamal said that, “as a matter of law and common sense”, the victim’s “brief escape” from the truck does
not change the seriousness of Mr. Sundman’s crime. “On any sensible view,” he wrote, Mr. Sundman’s
“moral blameworthiness cannot be considered to be lower” simply because the victim “managed to
jump from a moving truck and was running for his life when he was executed just moments later”.
Forcible or unlawful confinement involves depriving a person of their liberty so that they cannot move
about the way they want to. The Supreme Court has clarified that confinement does not mean a person
has to be restricted to a particular place. The person also does not need to be physically restrained.
Restraint can be enforced through violence, fear, intimidation, or through psychological means or other
methods. In this case, the victim was forcibly or unlawfully confined inside the truck, because it was
moving so fast. When the victim escaped from the truck and ran, he was still forcibly or unlawfully
confined even though he was no longer physically restrained. He could not move about the way he
wanted to, because Mr. Sundman and his accomplices chased him on foot while shooting at him with
their guns. The Supreme Court concluded that the murder happened while the victim was still unlawfully
confined, even when outside the truck. The confinement and the murder did not have to happen at the
exact same time.
The Supreme Court also said if a murder occurs during another serious offence, like confinement,
treating it as first degree murder does not mean that the confinement and the killing needed to happen
exactly at the same time. The test is whether the confinement and the murder were part of the same
transaction or interaction, or if they represented a single continuous sequence of events.
In this case, the Supreme Court found that Mr. Sundman and his accomplices murdered the victim
“while committing” the offence of unlawful confinement, because the two crimes happened in a single
transaction between the victim and his killers. The confinement and the murder were close in time, and
they involved a situation of continuous or ongoing domination over the victim that began in the truck,
continued when the victim briefly escaped, and ended when he was killed. As for the accomplices, one
was convicted of second degree murder and the other was convicted of manslaughter. Those verdicts
were not appealed to the Supreme Court.
R v. Mac [2002] 1. S.C.R 856
Sole issue in the appeal concerns the proper interpretation of the word “adapted” in s.369(b) CC. The
issue is resolved bt referring to the French language version of the CC which was not argued in the
courts below. 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 at the other official language version to determine whether its meaning is plain and
unequivocal.
The Actus Reus
R. v D(J) 2002 CanLII 16805
Court to interpret s. 72(1) of the CC. This section creates a longstanding, but seldom prosecuted, offence
of forcibly entry. Appellant was charged with break and enter, assault and forcible entry. Appeal of the
conviction.
The appellant knew the people who lived in the house and asked that the boy pretend he lived there.
The Appellant is friends with the daughters of the woman who owns the owns. The trial judge observed
that s72(1) did not require the actual use of force upon entry. However, he did not have permission to
eb there, and was being pursued by the police. Satisfied that the circumstances fall within s72(1) of the
CC and that it is a situation where there should be a reasonable apprehension of a breach of the peace
and there will be a guilty finding.
Court applied statutory interpretation of the word ‘enters’.
The appellant’s entry into the residence was not accompanied by any force, violence, or threat of force
or violence. He had been in the resence before and was allowed inot the residence by a person who had
authority to grant him entry. The appellant was not a trespasser as long as he was not asked to leave by
the owner. On these facts, there is no basis for concluding that the appellant took possession of the
residence when he entered it in the sense that he interfered in any way with the peaceable possession
of the residence by the owner the family,
There is no evidence that the appellant entered the home was such as to create any possibility that his
entry or presence in the residence would be reisted by anyone thereby resulting in a breach of the
peace of a reasonable apprehension of a breach of the peace. There was a possibility og a breach o fthe
peace, if the police entered the house in pursuit of the appellant and he resisted any attempt to remove
him. Had that breach of the peave eventuated, it would not have instead have been the consequences
of events that occurred after his entry and unrelated to owners’ continued peaceable possession of the
property.
Appeal allowed.
R v. York (2005)
The appellant leased a warehouse property in order to establish a storage and trucking business. 4
people had a set of keys to the premises. Two trailers containing furniture were stolen from a yard
controlled by Pacific Coast Express Limited. The trailers ended up at the appellant’s property and he
realized they were probably stolen. York moved the trailer from the property and was stopped by the
police after doing so.
Personal possession is established where an accused person exercises physical control over a prohibited
object with ful knowledge of its character, however, brief the physical contact may be, and where there
is some evidence to show the accused person took custody of the object willingly with intentto deal with
it in some prohibited manner. The judge convicted the appellant on the grounds that the appellant lnew
that the good were stolen, and that he exercised physical control over them without notifying the police
or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction
for the crime of dishonesty. THe appellant’s conduct was inconsistence with any intention to retain or
dealwith the goods.
In this case, the appellant was charged with having in his possession property knowing that it was
obtained by the commission in Canada of an offence punishable by indictment. Intent is an essential
ingredient of both the offences of theft and possession of stolen property. 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. As well, it appears
the judge found the appellant's explanations regarding his discovery of the goods to be reasonable. The
judge said that he had a reasonable doubt that the appellant "was aware of the theft or of the presence
of the stolen property in his warehouse". He then went on to say that the appellant provided an
innocent explanation. With respect, the judge made an error in law when he stated that:
While the presence of the reasonable doubt must necessarily result in Mr. York's acquittal on Count 1, it
does not, in my opinion, lead to an acquittal on the other counts. The evidence of Mr. York, even if I
were to accept it as true rather than as merely raising a reasonable doubt, renders him guilty of the
offence of possession of stolen property as charged in Counts 2 through 5 inclusive, for the reasons I will
now set out.
Clearly, the presence of a reasonable doubt would result in an acquittal on all counts. As well, the judge
made a reversible error when he stated, "even if I were to accept it as true rather than as merely raising
a reasonable doubt, renders him guilty of the offence". For if the judge found the explanation to be true,
then the appellant must be acquitted.
R v. Terrence [1983] 1 S.C.R 357
Respondent, the passenger in a stolen car, was charged with its possession contrary to s. 313 of
the Criminal Code. At trial, respondent’s testimony—(1) that he had accepted an invitation from one of
his friends to go for a ride in his “brother-in-law’s car” and (2) that he did not know the car to be stolen
property—was not contradicted by any direct evidence. The judge disbelieved him, however, and
proceeded on the assumption that the respondent’s knowledge of the stolen character of the vehicle
was a proven fact and found him guilty. The Court of Appeal quashed the conviction holding that some
evidence of control on the accused’s part was necessary to establish possession under s. 3(4)(b). This
appeal is to determine whether the word “possession” used in s. 3(4)(b) of the Code imports control as
essential element.
Held: The appeal should be dismissed.
A measure of control on the part of the person deemed to be in possession is a constituent and essential
element of possession under s. 3(4)(b) of the Criminal Code. The “knowledge and consent” required
cannot exist without some measure of control over the subject-matter.
R v. Morelli 2010 SCC 8
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 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 (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 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.
Per Deschamps, Charron and Rothstein JJ. (dissenting): A specific intention to deal with the object in a
particular manner is not an element of the offence of possession of child
pornography. Sections 4(3) and163.1(4) of the Criminal Code indicate that possession of child
pornography is criminal in and of itself, irrespective of the use to which the accused intends to put the
prohibited material. The requisite mens reawill be established at trial if it is shown that the accused
willingly took or maintained control of the object with full knowledge of its character. The accused does
not need to have control in a place belonging to him or her, such as his or her hard drive. The provision
simply requires the material to be “in any place” for the use or benefit of the accused. Therefore, even if
an accused does not actually download offending material, possession is established if the accused has
control over the material for his or her use or benefit or for that of someone else. When applying for a
search warrant, it is sufficient that there be credible evidence to support a reasonable belief that the
search will provide evidence of commission of the offence.
Although the ITO could have been more elaborate in many respects, the omissions the accused
complains of do not support a conclusion that the ITO was so deficient that it did not provide the
authorizing judge with a sufficiently credible factual basis. The information concerning the presence of
the child, the toys, and the webcam was necessary to convey to the authorizing judge the technician’s
concerns about the safety of the child. From this perspective, the facts that the accused was the child’s
father and that he resided with his wife, which were not mentioned in the ITO, were not determinative
since, in the technician’s mind, what was at stake was the safety of a child. The references in the ITO to
the removal of child pornography from the accused’s computer cannot be characterized as false. Viewed
in context, there is no question that what had, according to the technician, been removed from the
computer were the links in the “favourites” list to child pornography. Therefore the authorizing judge
must have understood this to be the case. Since there is no indication that the allegations or references
were meant to mislead or were so lacking in informational context, they should not be expunged from
the ITO.
It was neither inappropriate nor erroneous to rely on the information provided by officers B and H about
the propensity of child pornography offenders to collect and hoard such materials. This propensity,
which seems to be notorious, has been accepted in numerous child pornography cases as part of the
factual backdrop giving rise to reasonable grounds for issuing search warrants. While more contextual
information on both the subject matter and the source would have made it easier to understand and
assess the officers’ statements, there is no indication that they were not qualified or that there was any
intention to mislead. Consequently, it was open to the reviewing judge to receive evidence which
amplified the information and conclude that the authorizing judge was provided with sufficient
evidence. The positions the officers held in their respective forces were also enough to support a
conclusion that their statements had sufficient probative value to be included in the ITO. Lastly, the
officers did not state that the accused was a habitual child pornography offender. The conversations
between O and the other
officers took place several months after the technician’s visits, and they related to what material might
be found in the computer and whether material would still be found there despite the time elapsed
between the visits and the swearing of the ITO. These are facts that O had to put before the authorizing
judge.
Although there was a four-month delay between the technician’s visits and the swearing of the ITO, it
was reasonable for the authorizing judge to conclude that the accused still had the computer in question
in his residence and that any “child pornography” was still in the house. There was adequate
information in the ITO about the storage of the materials, and no reason to presume that the accused
would have changed his computer after the visits and no indication that the computer was in any way in
need of being replaced. It was therefore appropriate for O to rely on common sense and on the ongoing
subscription to an Internet connection to support his allegation that the computer was still in the
accused’s residence.
The police officers’ statements concerning the proclivity of child pornography users to save and collect
such material could also serve as a basis for concluding that it was reasonable to believe that, if the
accused was this type of offender, evidence of the offence would still be found in the computer after
four months.
In this case, the facts alleged in the ITO, as amplified at the voir dire, were sufficient for the reviewing
judge to conclude that there was a basis for the authorizing judge’s decision to issue the warrant. The
facts that there were several links to both adult and child pornography in the “favourites” list and that a
“graphic” pornographic image was prominently displayed on the computer justified the authorizing
judge’s drawing the reasonable inference that the accused had a conspicuous interest in this type of
material.
The position of the camera and the fact that it was connected to a videotape recorder at the time of the
technician’s first visit, together with the presence of both labelled and unlabelled videotapes, showed
that he was interested in reproducing images, accumulating such material, and keeping it for his future
use. The accused’s desire not to arouse suspicion with respect to his reproduction of images or his
computer practices could reasonably be inferred from his actions after being informed that the
technician needed to return. There was a credibly based probability that the accused was in the habit of
reproducing and saving images and had a propensity to pornography, and more specifically to child
pornography. While the police officers’ statements could not be used to demonstrate that he was a type
of person who was likely to be in possession of child pornography, given that there is credible
independent evidence of this, they do shed light on the implications of that evidence. In these
circumstances, the statements that child pornography offenders are collectors could only make it more
likely that evidence of the possession of prohibited material would still exist at the time the ITO was
drafted.
R v. J.A 2011 SCC 28
One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long-term
partner K.D. and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious
for “less than three minutes”. She testified that she consented to J.A. choking her, and understood that
she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation,
and that she had lost consciousness before. When K.D. regained consciousness, her hands were tied
behind her back, and J.A. was inserting a dildo into her anus. K.D. gave conflicting testimony about
whether this was the first time J.A. had inserted a dildo into her anus. J.A. removed the dildo ten
seconds after she regained consciousness. The two then had vaginal intercourse. When they finished,
J.A. cut K.D.’s hands loose.
K.D. made a complaint to the police two months later and stated that while she consented to the
choking, she had not consented to the sexual activity that had occurred. She later recanted her
allegation, claiming that she made the complaint because J.A. threatened to seek sole custody of their
young son. The trial judge convicted J.A. of sexual assault. A majority of the Court of Appeal allowed the
appeal, set aside the conviction and dismissed the charges against J.A.
Held (Binnie, LeBel and Fish JJ. dissenting): The appeal should be allowed and the respondent’s
conviction for sexual assault restored.
Per McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell JJ.: The issue to resolve in
this appeal is whether a person can perform sexual acts on an unconscious person if the person
consented to those acts in advance of being rendered unconscious. Parliament has defined consent in a
way that requires the complainant to be conscious throughout the sexual activity in question.
Parliament’s definition of consent does not extend to advance consent to sexual acts committed while
the complainant is unconscious. The legislation requires ongoing, conscious consent to ensure that
women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in
sexual activity are capable of asking their partners to stop at any point.
This definition of consent is in harmony with the provisions of the Criminal Code and their underlying
policies and is also consistent with the tenor of the jurisprudence of this Court. The jurisprudence has
consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking
or withholding consent to each and every sexual act. The jurisprudence also establishes that there is no
substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not
sufficient for the accused to have believed the complainant was consenting: he must also take
reasonable steps to ascertain consent, and must believe that the complainant communicated her
consent to engage in the sexual activity in question. This is impossible if the complainant is unconscious.
The argument that advance consent equals actual consent because the complainant cannot change her
mind after being rendered unconscious runs contrary to this Court’s conclusion in R. v. Ewanchuk, 1999
CanLII 711 (SCC), [1999] 1 S.C.R. 330, that the only relevant period for ascertaining whether the
complainant consented under the Criminal Code is while the touching is occurring. When the
complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity
that occurs. Finding that such a person is consenting would effectively negate the right of the
complainant to change her mind at any point in the sexual encounter.
In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it
would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so
would undermine Parliament’s choice. This concept of consent produces just results in the vast majority
of cases and has proved to be of great value in combating stereotypes that have historically existed. In
the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to
sexual assault is Parliament, should it deem this necessary.
Per Binnie, LeBel and Fish JJ. (dissenting): It is a fundamental principle of the law governing sexual
assault in Canada that no means “no” and only yes means “yes”. In this case, K.D. said yes, not no. She
engaged with J.A. in sexual activity to which she had freely consented in advance, while conscious. To
convict J.A. of sexual assault in these circumstances is unwarranted as a matter of statutory
interpretation, prior decisions of the Court, or considerations of policy. And it is wrong on the facts of
this case.
The provisions of the Criminal Code regarding consent to sexual contact and the case law were intended
to protect women against abuse by others. They aim to safeguard and enhance the sexual autonomy of
women, and not to make choices for them.
It is a well-established principle that the complainant’s genuine consent precludes a finding of sexual
assault. There is nothing in the Criminal Code that indicates that Parliament has considered or adopted a
statutory exception to this principle which would vitiate consent to unconscious sexual activity. Indeed,
the wording of s. 273.1(2)(e) of the Criminal Code suggests that the complainant’s consent can be given
in advance, as it was in this case, and remains operative unless and until it is subsequently revoked.
Upon regaining consciousness, K.D. did not revoke her prior consent to the sexual conduct in issue —
which was then still ongoing. And it has not been suggested that she had earlier revoked her consent by
words or conduct, or even in her own mind.
A person cannot, while unconscious, consent or revoke consent. However, it hardly follows that
consenting adults cannot, as a matter of law, willingly and consciously agree to engage in a sexual
practice involving transitory unconsciousness — on the ground that, during the brief period of that
consensually induced mental state, they will be unable to consent to doing what they have already
consented to do. There is no factual or legal basis for holding that the complainant’s prior consent,
otherwise operative throughout, was temporarily rendered inoperative during the few minutes of her
voluntary unconsciousness. It was not suspended by the fact that she had rendered herself incapable of
revoking the consent she had chosen, freely and consciously, not to revoke either immediately before or
immediately after the brief interval of her unconsciousness. The complainant’s prior consent to the
activity in question constituted a valid consent only to the contemplated activity. In the absence of any
evidence that J.A.’s conduct exceeded the scope of the complainant’s consent, or caused her bodily
harm that would vitiate her consent at common law, there is no basis in the provisions of the Criminal
Codefor concluding that the complainant’s consent in fact was not a valid consent in law.
R v. Mabior 2012 SCC 47
M was charged with nine counts of aggravated sexual assault based on his failure to disclose his HIVpositive status to nine complainants before having sex with them (ss. 265(3)(c) and 273 Cr. C.).
None of the complainants contracted HIV. The trial judge convicted him on six of the counts and
acquitted him on the other three, on the basis that sexual intercourse using a condom when viral loads
are undetectable does not place a sexual partner at “significant risk of serious bodily harm”, as required
by Cuerrier. The Court of Appeal varied the decision, holding that either low viral loads or condom use
could negate significant risk. This reduced to two the counts on which M could be convicted, and the
Court of Appeal entered acquittals on the four remaining counts. The Crown appealed the acquittals.
Held: The appeal should be allowed in part and the convictions in respect of the complaints by S.H.,
D.C.S. and D.H. should be restored. The appeal should be dismissed in respect of the complaint by K.G.
This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating
consent to sexual relations under s. 265(3)(c) Cr. C. Because HIV poses a risk of serious bodily harm, the
operative offence is one of aggravated sexual assault (s. 273 Cr. C.). To obtain a conviction
under ss. 265(3)(c) and 273, the Crown must show, beyond a reasonable doubt, that the complainant’s
consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. The test boils
down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and
(2) deprivation (denying the complainant knowledge which would have caused him or her to refuse
sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose
may amount to fraud where the complainant would not have consented had he or she known the
accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious
bodily harm.
Two main criticisms of the Cuerrier test have been advanced: first, that it is uncertain, failing to draw a
clear line between criminal and non-criminal conduct, and second, that it either overextends the
criminal law or confines it too closely — the problem of breadth. While it may be difficult to apply,
the Cuerrier approach is in principle valid. It carves out an appropriate area for the criminal law — one
restricted to “significant risk of serious bodily harm”. The test’s approach to consent accepts the wisdom
of the common law that not every deception that leads to sexual intercourse should be criminalized,
while still according consent meaningful scope.
The Cuerrier requirement of “significant risk of serious bodily harm” should be read as requiring
disclosure of HIV status if there is a realistic possibility of transmission of HIV. This view is supported by
the common law and statutory history of fraud vitiating consent to sexual relations, and is in line
with Charter values of autonomy and equality that respect the interest of a person to choose whether to
consent to sex with a particular person or not. It also gives adequate weight to the nature of the harm
involved in HIV transmission, and avoids setting the bar for criminal conviction too high or too low. If
there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not
constitute fraud vitiating consent to sexual relations under s. 265(3)(c).
The evidence adduced in this case leads to the conclusion that, as a general matter, a realistic possibility
of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was
low and (ii) condom protection was used. This general proposition does not preclude the common law
from adapting to future advances in treatment and to circumstances where risk factors other than those
considered in this case are at play.
Here, the four complainants all consented to sexual intercourse with M, and testified that they would
not have had sex with him had they known he was HIV-positive. M had intercourse by vaginal
penetration with the four complainants, during which he ejaculated. At the time of intercourse with the
complainants S.H., D.C.S. and D.H., M had a low viral load but did not use a condom. Consequently,
those convictions should be maintained. As regards K.G., the record shows that M’s viral load was low.
When combined with condom protection, this did not expose K.G. to a significant risk of serious bodily
harm. This conviction must accordingly be reversed.
R. v. Nette, [2001] 3 S.C.R. 488
A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed with a
garment around her head and neck. Sometime during the next 48 hours, she died from asphyxiation.
During an RCMP undercover operation, the accused told a police officer that he had been involved in the
robbery and death. The accused was charged with first degree murder under s. 231(5) of the Criminal
Code -- murder while committing the offence of unlawful confinement -- and tried before a judge and
jury. At trial, he claimed that he had fabricated the admission. He testified that he had gone alone to the
victim’s house only with intent to break and enter, that the back door to the house was open as though
someone already had broken into the home, and that he left after finding the victim already dead in her
bedroom. The trial judge charged the jury on manslaughter, second degree murder and first degree
murder under s. 231(5) of the Code. In response to a request from the jury that he clarify the elements
of first degree murder and the “substantial cause” test, the trial judge essentially reiterated his charge.
Overall, he charged that the standard of causation for manslaughter and second degree murder was
that the accused’s actions must have been “more than a trivial cause” of the victim’s death while, for
first degree murder under s. 231(5), the accused’s actions also must have been a “substantial cause” of
her death. On two occasions, however, once in the main charge and once in the re-charge, he described
the standard of causation for second degree murder as “the slight or trivial cause necessary to find
second degree murder” instead of “more than a trivial cause”. The jury found the accused guilty of
second degree murder and the Court of Appeal upheld that verdict. The only ground of appeal both
before the Court of Appeal and this Court concerned the test of causation applicable to second degree
murder.
Held: The appeal should be dismissed. The jury’s verdict of second degree murder is upheld.
Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Responsibility for causing a result, in this case death,
must be determined both in fact and in law. Factual causation concerns how the victim came to death in
a medical, mechanical, or physical sense and the accused’s contribution. Legal causation concerns the
accused’s responsibility in law and is informed by legal considerations such as the wording of the
offence and principles of interpretation. These considerations reflect fundamental principles of criminal
justice.
The inquiry to find legal causation can be expressed as determining whether the result can fairly be said
to be imputable to the accused. Although the jury does not engage in a two-part analysis of causation,
the charge to the jury should convey the requisite degree of factual and legal causation. The starting
point is usually the unlawful act itself. It will rarely be necessary to charge the jury on the standard of
causation if the requisite mental element for the offence exists because the mens rea requirement
usually resolves concerns about causation. The law of causation is in large part judicially developed but
it is also expressed in the Criminal Code. Where a factual situation does not fall within a statutory rule of
causation, the criminal common law applies. The civil law of causation is of limited assistance in
elucidating the criminal standard of causation.
It is not appropriate in jury charges to formulate a separate causation test for second degree murder.
The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. The
standard, however, need not be expressed as “a contributing cause of death, outside the de
minimisrange”. The concept of causation and the terminology used to express that concept are distinct.
Latin expressions or the formulation of the test in the negative are not useful means of conveying an
abstract idea. It is preferable to use positive terms such as “significant contributing cause” rather than
“not a trivial cause” or “not insignificant”. Also, because causation issues are case-specific and factdriven, trial judges should have discretion to choose terminology relevant to the circumstances of the
case. In the case of first degree murder under s. 231(5) of the Code, a jury must also consider the
additional Harbottle “a substantial causation” standard but only after finding the accused guilty of
murder. This standard, which indicates a higher degree of legal causation, comes into play at the stage
of deciding whether the accused’s degree of blameworthiness warrants the increased penalty and
stigma of first degree murder. Such a high degree of blameworthiness would only be established where
the actions of the accused were found to be an essential, substantial and integral part of the killing of
the victim.
The Harbottle standard stresses the increased degree of participation required before an accused may
be convicted of first degree murder under s. 231(5).
The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal
conclusion that there were multiple operative causes of death. In a homicide trial, the question is not
who or what caused the victim’s death but whether the accused caused the death. The fact that other
persons or factors may have contributed to the result may or may not be legally significant in the trial of
the one accused charged with the offence. It will be significant, and exculpatory, if independent factors,
occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the
prohibited result. This case involves neither multiple causes nor intervening causes nor a thin-skull
victim so it was unnecessary to instruct the jury on the law of causation beyond stating the need to find
that the accused caused the victim’s death. However, in relation to the charge of first degree murder
under s. 231(5) of the Code, it was necessary for the trial judge to instruct the jury in accordance with
Harbottle.
The trial judge accurately stated the correct standard of causation for second degree murder. Although,
on two occasions, he misspoke in describing the appropriate test, by contrasting the high standard of
causation for first degree murder with “the slight or trivial cause necessary to find second degree
murder”, these errors would not have caused the jury to believe that the applicable standard of
causation for second degree murder was lower than the Smithers standard of “more than a trivial
cause”. Given that the jury found the accused guilty of second degree murder, it must be concluded that
the jury found that the accused had the requisite intent for the offence of murder, namely subjective
foresight of death. The jury’s conclusion with respect to intent could not have been affected by the
instructions on causation. No reasonable jury could have had any doubt about whether the accused’s
actions constituted a significant, operative cause of the victim’s death. Whatever the jury’s reasons for
acquitting the accused of first degree murder, the jury’s verdict of second degree murder is
unimpeachable.
Per McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ.: The test for causation for culpable
homicide set out in Smithers should not be changed from “a contributing cause of death, outside the de
minimis range” into “a significant contributing cause”. The current language is the correct formulation
and should be used to express the standard of causation to the jury for all homicide offences. To avoid a
Latin expression, an appropriate version would be “a contributing cause [of death] that is not trivial or
insignificant”. The terms “not trivial” and “not insignificant” accurately express a standard that has
withstood the test of time as an authoritative test of causation. There is no legitimate reasons to
reformulate it.
There is a meaningful difference between “a contributing cause [of death] that is not trivial or
insignificant” and a “significant contributing cause”. The suggested change in terminology drastically
changes the substance of the causation test and ignores the reason for using a double negative. A
“significant contributing cause” standard calls for a more direct causal relationship than the “not
insignificant” or “not trivial” test, thus raising the threshold of causation for culpable homicide from
where it currently stands.
The word “significant” implies an elevated contribution and is not equivalent to “not insignificant”. It is
crucial to use exact language because language is the medium through which law finds expression and
language is an outward sign of our legal reasoning. Trial judges should continue to use the current
language of “a contributing cause [of death] that is not trivial or insignificant” for all homicide offences.
R v Williams [2003] 2 SCR 134
The complainant and W had an 18-month relationship beginning in June 1991. On November 15, 1991,
W learned that he had recently tested positive for HIV. The complainant tested negative shortly
thereafter. W kept the complainant in the dark about his HIV condition as well as the fact that he had
been tested. Although W was given counselling on at least three different occasions by two doctors and
a nurse about HIV, its transmission, safer practices and his duty to disclose his HIV status to sexual
partners, he continued to practise unprotected sex with the complainant. It was accepted that the
complainant would never knowingly have had sex with an HIV-positive person. The relationship ended in
November 1992 and she tested positive for HIV in April 1994. W has conceded that he infected the
complainant with HIV. Similarly, the Crown has conceded that it is quite possible that W infected the
complainant before learning of his positive status. At trial, W was convicted of aggravated assault and
common nuisance. The Court of Appeal upheld the conviction for common nuisance but allowed the
appeal against the conviction for aggravated assault, substituting therefor a conviction for attempted
aggravated assault.
Held: The appeal should be dismissed.
Where, as here, the Crown alleges an offence predicated on an aggravating consequence, it must prove
the consequence beyond a reasonable doubt. An accused who fails to disclose his HIV-positive status
cannot be convicted of an aggravated assault endangering life in circumstances where the complainant
could already have been HIV-positive. In such circumstances, however, W was properly convicted of
attempted aggravated assault.
While W acted with a shocking level of recklessness and selfishness, the Crown could not show that
sexual activity after November 15, 1991 harmed the complainant, or even exposed her to a significant
risk of harm, because at that point she was possibly, and perhaps likely, already HIV-positive. W’s
acquittal on the charge of aggravated assault must therefore be affirmed. The mens rea of the offence
had been proven beyond a reasonable doubt, but the Crown was unable to prove an essential element
of the actus reus, namely that W’s sexual conduct, after learning that he had tested positive for HIV,
risked endangering the complainant’s life. The medical evidence indicates that a single act of
unprotected vaginal intercourse carries a significant risk of HIV transmission. It was therefore at least
doubtful that the complainant was free of HIV infection on November 15, 1991 when W first discovered,
then decided to conceal, his HIV status. The complainant tested negative for HIV shortly thereafter,
although the expert evidence was that at that date she may well have been infected with HIV but not
yet had time to develop the antibodies that would disclose her condition in the test.
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.
R v Maybin 2012 SCC 24
Late at night, in a busy bar, the accused brothers, T and M, repeatedly punched the victim in the face
and head. T eventually struck a blow that rendered the victim unconscious. Arriving on the scene within
seconds, a bar bouncer then struck the victim in the head. The medical evidence was inconclusive about
which blows caused death. As a result, the trial judge acquitted the accused brothers and the bouncer.
The Court of Appeal was unanimous that the accused’s assaults were factually a contributing cause of
death — “but for” their actions, the victim would not have died. Furthermore, the majority of the Court
of Appeal concluded that the risk of harm caused by the intervening actor could have been reasonably
foreseeable to the accused. The dissenting judge did not agree that the accused could have reasonably
foreseen the conduct of the intervening actor, and also concluded that the intentional act of a third
party (bouncer) acting independently severed legal causation. The appeal was allowed, the acquittals
were set aside and a new trial was ordered.
Held: The appeal should be dismissed.
Courts have used a number of analytical approaches to determine when an intervening act absolves the
accused of legal responsibility for manslaughter. For example, both the “reasonable foreseeability” and
the “intentional, independent act” approach may be useful in assessing legal causation depending on
the specific factual matrix. These approaches grapple with the issue of the moral connection between
the accused’s acts and the death; they acknowledge that an intervening act that is reasonably
foreseeable to the accused may well not break the chain of causation, and that an independent and
intentional act by a third party may in some cases make it unfair to hold the accused responsible. These
approaches may be useful tools depending upon the factual context. However, the analysis must focus
on first principles and recognize that these tools are analytical aids and do not alter the standard of legal
causation or substitute new tests. Even in cases where it is alleged that an intervening act has
interrupted the chain of legal causation, the causation test remains whether the dangerous and
unlawful acts of the accused are a significant contributing cause of the victim’s death.
The reasonable foreseeability approach questions whether it is fair to attribute the resulting death to
the initial actor and posits that an accused who undertakes a dangerous act, and in so doing contributes
to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death.
The time to assess reasonable foreseeability is at the time of the initial unlawful act, rather than at the
time of the intervening act as it is too restrictive to require that the precise details of the event be
objectively foreseeable. It is the general nature of the intervening acts and the accompanying risk of
harm that needs to be reasonably foreseeable. The intervening acts and the ensuing non-trivial harm
must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed
reasonably from the conduct of the accused. If so, then the accused’s actions may remain a significant
contributing cause of death.
Whether an intervening act is independent is sometimes framed as a question of whether the
intervening act is a response to the acts of the accused. In other words, did the act of the accused
merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the
accused trigger or provoke the action of the intervening party? If the intervening act is a direct response
or is directly linked to the accused’s actions, and does not by its nature overwhelm the original actions,
then the accused cannot be said to be morally innocent of the death.
In this case, it was open to the trial judge to conclude that it was reasonably foreseeable that the fight
would escalate and other patrons would join or seek to end the fight or that the bouncers would use
force to seek to gain control of the situation. Further, it was open to the trial judge to find that the
bouncer’s act was closely connected in time, place, circumstance, nature and effect with the accused’s
acts and the effects of the accused’s actions were still subsisting and not spent at the time the bouncer
acted. Therefore, based upon the trial judge’s findings of fact, it was open to him to conclude that the
general nature of the intervening act and the accompanying risk of harm were reasonably foreseeable;
and that the act was in direct response to the accused’s unlawful actions. The judge could have
concluded that the bouncer’s assault did not necessarily constitute an intervening act that severed the
link between the accused’s conduct and the victim’s death, such that it would absolve them of moral
and legal responsibility. The trial judge could have found that the accused’s actions remained a
significant contributing cause of the death.
Subjective Mens Rea
R v Hibbert [1995] 2 SCR 973
C, a close friend of the accused, was shot by B, a drug dealer. At the time of the incident, B was
accompanied by the accused. C survived the shooting and, as a party to the offence, the accused was
charged with attempted murder. At trial, the accused testified that on the night of the shooting he had
accidentally run into B, who indicated to him that he was armed with a handgun and ordered the
accused to take him to C's apartment. When the accused refused, B punched him in the face several
times. The accused stated that he feared for his life and believed that B would shoot him if he did not
cooperate with him. B drove the accused to a telephone booth where the accused, following B's orders,
called C to ask him to meet him in the lobby of C's apartment building in twenty minutes. Shortly
thereafter, the accused called C from the intercom outside the lobby and asked him to "come down".
Before leaving his apartment C unlocked the building front door. B and the accused went into the lobby
and, when C arrived, he was grabbed by B. After some discussion, B pushed C away and shot him. The
accused stated that he had repeatedly pleaded with B not to shoot C. C, however, testified that during
the incident the accused said nothing and made no effort to intervene. After the shooting, B drove the
accused away from the scene of the shooting. According to the accused's testimony, B then threatened
to kill him if he went to the police. The next morning the accused turned himself in. Under crossexamination, he declared that he believed that he had had no opportunity to run away or warn C
without being shot. In his charge, the trial judge told the jury that "if [the accused] joined in the
common plot to shoot [C], under threats of death or grievous bodily harm, that would negative his
having a common intention with [B] to shoot [C], and you must find [the accused] not guilty". He added
that "the accused [could] not rely on [the common law defence of duress] if a safe avenue of escape
exist[ed], which . . . is a matter for you to find when you consider the evidence". The accused was
acquitted of the charge of attempted murder, but was convicted of the included offence of aggravated
assault. The Court of Appeal upheld the conviction.
Held: The appeal should be allowed and a new trial ordered.
The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm
can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to
commit an offence. Whether or not this is so will depend, among other things, on the structure of the
particular offence in question -- that is, on whether or not the mental state specified by Parliament in its
definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing
on the existence of mens rea. If the offence is one where the presence of duress is of potential
relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when
arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state
required for liability.
A person who commits a criminal act under threats of death or bodily harm may also be able to invoke
an excuse-based defence (either the statutory defence set out in s. 17 of the Criminal Code or the
common law defence of duress, depending on whether the accused is charged as a principal or as a
party). This is so regardless of whether or not the offence at issue is one where the presence of coercion
also has a bearing on the existence of mens rea.
The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated"
by duress. This conclusion is based on an interpretation of the particular terms of the two
provisions. Section 21(1)(b), which imposes criminal liability as a party on anyone who "does or omits to
do anything for the purpose of aiding any person to commit" an offence, does not require that the
accused actively view the commission of the offence he is aiding as desirable in and of itself.
Parliament's use of the term "purpose" in s. 21(1)(b) is essentially synonymous with "intention" and
does not incorporate the notion of "desire" into the mental state for party liability. This interpretation,
which best reflects the legislative intent underlying s. 21(1)(b), is in accord with the common law
principles governing party liability, and avoids the absurdity that would flow from the equation of
"purpose" with "desire".
As well, under s. 21(2), which provides that "persons [who] form an intention in common to carry out an
unlawful purpose and to assist each other therein" are liable for criminal offences committed by the
principal that are foreseeable and probable consequences of "carrying out the common purpose", the
accused's subjective view as to the desirability of the commission of the offence is not relevant. The
expression "intention in common" in s. 21(2) means only that the party and the principal must have in
mind the same unlawful purpose. The expression does not connote a mutuality of motives and desires
between them. A person would thus fall within the ambit of s. 21(2) if he intended to assist in the
commission of the same offence envisioned by the principal, regardless of the fact that their intention
might be due solely to the principal's threats. The comments in Paquette on the relation between duress
and mens rea in the context of s. 21(2) can therefore no longer be considered the law in Canada. While
it is not open to persons charged under ss. 21(1)(b) and 21(2) to argue that because their acts were
coerced by threats they lacked the requisite mens rea, such persons may seek to have their conduct
excused through the operation of the common law defence of duress.
An accused person cannot rely on the common law defence of duress if he had an opportunity to
extricate himself safely from the situation of duress. The rationale for the "safe avenue of escape" rule is
simply that, in such circumstances, the condition of "normative involuntariness" that provides the
theoretical basis for the defences of both duress and necessity is absent. Indeed, if the accused had the
chance to take action that would have allowed him to avoid committing an offence, it cannot be said
that he had no real choice when deciding whether or not to break the law. Furthermore, the internal
logic of the excuse-based defence, which has theoretical underpinnings directly analogous to those that
support the defence of necessity, suggests that the question of whether or not a safe avenue of escape
existed is to be determined according to an objective standard. When considering the perceptions of a
"reasonable person", however, the personal circumstances of the accused are relevant and important,
and should be taken into account.
The trial judge's charge to the jury contained several errors. First, the reference to the relevant mental
state in this case as being a "common intention" to carry out an unlawful purpose was incorrect, since
what was at issue here was s. 21(1)(b), as opposed to s. 21(2). Second, the trial judge's instruction that
the mens rea for party liability under s. 21(1)(b) could be "negated" by duress was also incorrect. Thirdly,
and most importantly, the jury was not told that even if the accused possessed the requisite mens rea
his conduct could be excused by operation of the common law defence of duress, if the jurors were of
the view that the necessary conditions for this defence's application were present. Since it cannot be
said that the errors in the charge relating to the nature of the defence of duress necessarily had no
effect on the verdict, a new trial should be ordered. It should be noted, however, that the trial judge did
not err in instructing the jury that the accused could not rely on the defence of duress if the Crown
established that he had failed to avail himself of a safe avenue of escape. Furthermore, while the trial
judge should have instructed the jury that the existence of such an avenue was to be determined
objectively, taking into account the personal circumstances of the accused, on the particular facts of this
case his failure to do so did not affect the jury's decision, since there was no indication, on the facts, that
any of the accused's personal attributes or frailties rendered him unable to identify any safe avenues of
escape that would have been apparent to a reasonable person of ordinary capacities and abilities.
Regina v Buzzanga and Durocher 1979 CanLII 1927
The accused were charged with wilfully promoting hatred against an identifiable group, namely, the
French Canadian public in Essex County, by communicating statements contained in copies of a certain
handbill, contrary to s. 281.2(2) (enacted R.S.C. 1970, c. 11 (1st Supp.), s. 1) of the Criminal Code. The
charge arose out of attempts by the francophone minority in the county to have the school board build
a French-language secondary school. The accused closely identified with the French Canadian minority.
There was a great deal of opposition to the building of the high school, one of the leading opponents
being the chairman of a ratepayers association. The controversy heightened at the time of the school
board elections following which a majority of members elected opposed the building of the school. The
accused were disappointed and at this time had printed up the handbill in question which they had
distributed by two boys. The handbill, entitled "Wake Up Canadians Your Future Is At Stake!", contained
statements such as "You are subsidizing separatism whether in Quebec or Essex County", "Who will rid
us of this subversive group if not ourselves?" and "The British solved this problem once before with the
Acadians, what are we waiting for ...?". The accused testified that the francophone community seemed
"fed up" with the high school issue and apathetic and they considered that while economics was said to
be the reason for not building the school they considered that the real reason was prejudice. The
accused testified that the purpose of the handbill was to show the prejudice towards French Canadians
and expose the truth. They hoped the handbill would be a catalyst that would bring a quick solution to
the problem. They intended the pamphlet as a satire, to create a furor that would compel the
Government to act. They both denied any intention to promote hatred. While the pamphlet did not bear
anyone's name it had been ordered by one of the accused using the name of the chairman of the
ratepayers association. The trial Judge in his reasons stated that "wilful" in s. 281.2(2) means
"intentional as opposed to accidental" and that "the accused themselves testified they wished to create
controversy, furor and an uproar. What better way of describing active dislike, detestation, enmity or ill
will. The motives of the accused may or may not be laudable. The means chosen by the accused was the
wilful promotion of hatred." On appeal by the accused from their conviction, held, the appeal should be
allowed and a new trial ordered.
While the word "wilfully" may sometimes include recklessness as well as intention when used in criminal
legislation, in the context of s. 281.2(2) it means with the intention of promoting hatred, and does not
include recklessness. This conclusion follows from the arrangement of the legislation dealing with the
incitement of hatred. Thus s. 281.2(1), which prohibits the incitement of hatred in a public place where
such incitement is likely to lead to a breach of the peace, does not contain the word "wilfully" yet that
section being included in the Criminal Code must be taken to import the necessity of mens rea. The
general mens rea which is required where no mental element is mentioned in the definition of the crime
is either the intentional or reckless bringing about of the result which the law seeks to prevent. The
insertion of the word "wilfully" in s. 281.2(2) was not necessary to import mens rea since that
requirement would be implied in any event because of the serious nature of the offence. The
statements proscribed in s. 281.2(2) do not pose such an immediate threat to public order as those
falling under s. 281.2(1), and it is therefore reasonable to assume that Parliament intended to limit the
offence under s. 281.2(2) to the intentional promotion of hatred. The issue in this case then was what
mental attitude must be established to constitute an intention to promote hatred.
An accused's foresight that a consequence is highly probable, as opposed to substantially certain, is not
the same as an intention to bring it about. However, as a general rule, a person who foresees that a
consequence is certain or substantially certain to result from an act that he does in order to achieve
some other purpose intends that consequence. The person's foresight of the certainty or moral certainty
of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as
to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate
purpose.
In this case then the accused wilfully promoted hatred if (a) their conscious purpose in distributing the
handbill was to promote hatred against the French Canadian community, or (b) they foresaw that the
promotion of hatred against that group was certain or morally certain to result from the distribution of
the pamphlet, but distributed it as a means of achieving their purpose of having the high school built.
The trial Judge erred in holding that "wilfully" means only "intentional as opposed to accidental" and
this error inevitably caused him to focus on the intentional nature of the accused's conduct rather than
on the question whether they actually intended to produce the consequence of promoting hatred. 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. While in some cases the
inference from the circumstances that the necessary intent existed may be so strong as to compel
rejection of the accused's denial that he intended the prohibited consequence, in this case the trial
Judge did not reject the accused's evidence and in fact erred in equating their admitted intention to
create controversy, furor or uproar with an intention to promote hatred. If the accused intentionally
promoted hatred against the French Canadian community as a means of obtaining the school then the
offence was proven, but the accused's evidence, if believed, did not inevitably lead to that conclusion. It
was misdirection for the trial Judge to fail to give appropriate consideration to the accused's evidence
on the issue of intent.
R v Theroux [1993] 2 SCR 5
The accused, the directing mind of a company involved in residential construction, was charged with
fraud. The company entered into agreements with a number of individuals for the purchase of
residences. The contracts were made and the deposits taken on the basis of a false representation by
the company that the deposits were insured. The representation was made orally and backed up by a
certificate of participation in the insurance program. In addition, a brochure describing the program was
distributed to most of the depositors. In fact, the company never paid the premiums due on a first
application for participation in the insurance program and a second application was never completed.
The company became insolvent, the project was not completed and most of the depositors lost their
money. The trial judge found that the accused, as directing mind of the company, was responsible for
the misrepresentations. The accused knew at the time that the deposits were not guaranteed but
nevertheless made misrepresentations to induce potential home purchasers to sign a contract and give
a deposit. The trial judge also found that the accused sincerely believed that the residential project
would be completed and hence that the deposits would not be lost. The accused was convicted of fraud
pursuant to s. 380(1)(a) of the Criminal Code and the Court of Appeal upheld the conviction. The issue in
this appeal is whether the fact that the accused honestly believed that the project would be completed
negates the mens rea of the offence of fraud.
Held: The appeal should be dismissed.
Per La Forest, Gonthier, Cory and McLachlin JJ.: The actus reus of fraud is established by proof of a
prohibited act, be it an act of deceit, falsehood or other fraudulent means, and by proof of deprivation
caused by the prohibited act (which may consist in actual loss or the placing of the victim's pecuniary
interests at risk). Just as what constitutes a falsehood or a deceitful act for the purpose of the actus reus
is judged on the objective facts, the actus reus of fraud by "other fraudulent means" is determined
objectively, by reference to what a reasonable person would consider to be a dishonest act.
Correspondingly, the mens rea of fraud is established by proof of subjective knowledge of the prohibited
act, and by proof of subjective knowledge that the performance of the prohibited act could have as a
consequence the deprivation of another (which deprivation may consist in knowledge that the victim's
pecuniary interests are put at risk). In certain cases, the subjective knowledge of the risk of deprivation
may be inferred from the act itself, barring some explanation casting doubt on such inference. Where
the conduct and knowledge required by these definitions are established, the accused is guilty whether
he actually intended the deprivation or was reckless as to whether it would occur. The accused's belief
that the conduct is not wrong or that no one will in the end be hurt affords no defence to a charge of
fraud.
While the scope of the offence may encompass a broad range of dishonest commercial dealings, the
proposed definition of mens rea will not catch conduct which does not warrant criminalization. Only the
deliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property
of others at risk will constitute fraud. The requirement of intentional fraudulent action excludes mere
negligent misrepresentation, or sharp business practice.
In this case, it is clear from the trial judge's findings that the offence of fraud is made out.
The actus reus is established: the accused committed deliberate falsehoods which caused or gave rise to
deprivation. First, the depositors did not get the insurance protection they were told they would get
and, second, the money they gave to the accused's company was put at risk, a risk which in most cases
materialized. The mens rea too is established: the accused told the depositors that they had insurance
protection when he knew this to be false. By this act he was knowingly depriving the depositors of
something they thought they had, namely insurance protection. It may also be inferred from his
knowledge that insurance protection was not in place that the accused knew that he was subjecting the
depositors' money to risk. The fact that he sincerely believed that the houses would be built, and that
the deposits would not be lost, was no defence to the crime.
Per Lamer C.J. and Sopinka J.: Subject to the following reservations, McLachlin J.'s analysis of the law of
fraud was generally agreed with. First, while the accused's belief that an act is honest will not avail if it is
objectively dishonest as determined by reasonable persons, it is critical to distinguish this from the
accused's belief in facts that, if true, would deprive the act of its dishonest character.
Secondly, mens reais not typically concerned with the consequences of the prohibited actus reus.
The actus reus often includes the consequences, and, frequently, more serious offences are
distinguished from less serious offences by the consequences without any additional mental element.
Thirdly, the general proposition that "[r]ecklessness presupposes knowledge of the likelihood of the
prohibited consequences" is applicable in the case of fraud but not necessarily for other offences.
In this case, the trial judge's finding that the accused deliberately lied to his customers determines both
the actus reus and mens rea of deceit. If the sole issue were whether the accused's conduct created a
risk that the depositors might be deprived of their deposits by reason of the non-completion of the
project, the appeal should be allowed. Where the risk of deprivation is dependent on some future event
not happening but the accused honestly believes that the future event will happen and there will be no
deprivation, a trial judge who accepts this evidence should acquit. Here, the trial judge found there was
no insurance in place, however, and therefore even if the project were eventually completed, there
would have been a deprivation or risk thereof during the uninsured period. The trial judge, having made
all the findings of fact which constitute a deprivation, ought to have found that this element had been
made out. Failure to make such a determination would be an error of law and would entitle this Court to
affirm the conviction and dispose of the case on this basis.
R v Chase [1987] 2 SCR 293
Respondent was convicted of sexual assault contrary to s. 246.1(1)(a) of the Criminal Code. He entered
the home of the complainant, a fifteen-year-old girl, without invitation, seized her around the shoulders
and arms and grabbed her breasts. When she fought back, he said: "Come on dear, don't hit me, I know
you want it." She testified at trial that he tried to grab her "private" but did not succeed. On appeal, the
Court of Appeal expressed the view that the modifier "sexual" in the new offence of sexual assault
should be taken to refer to parts of the body, particularly the genitalia. Because there was no contact
with the complainant's genitals, the conviction at trial was set aside and a conviction for common
assault substituted. The only question arising in this appeal is that of the definition of the offence of
sexual assault.
Held: The appeal should be allowed.
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal
Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim
is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual
nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or
carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature
of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all
other circumstances surrounding the conduct, including threats which may or may not be accompanied
by force, will be relevant. The accused's intent or purpose as well as his motive, if such motive is sexual
gratification, may also be factors in considering whether the conduct is sexual. Implicit in this view of
sexual assault is the notion that the offence is one requiring a general intent only. In the present case,
there was ample evidence before the trial judge upon which he could find that sexual assault was
committed. Viewed objectively in the light of all the circumstances, it is clear that the conduct of the
respondent in grabbing the complainant's breasts constituted an assault of a sexual nature.
R v Ewanchuk [1999] 1 SCR 330
The complainant, a 17-year-old woman, was interviewed by the accused for a job in his van. She left the
van door open as she was hesitant about discussing the job offer in his vehicle. The interview was
conducted in a polite, business-like fashion. After the interview, the accused invited the complainant to
see some of his work which was in the trailer behind the van. The complainant purposely left the trailer
door open but the accused closed it in a way which made the complainant think that he had locked it.
There was no evidence whether the door was actually locked. The complainant stated that she became
frightened at this point. The accused initiated a number of incidents involving touching, each
progressively more intimate than the previous, notwithstanding the fact that the complainant plainly
said “no” on each occasion. He stopped his advances on each occasion when she said “no” but persisted
shortly after with an even more serious advance. Any compliance by the complainant was done out of
fear and the conversation that occurred between them clearly indicated that the accused knew that the
complainant was afraid and certainly not a willing participant. The trial judge acquitted the accused of
sexual assault relying on the defence of implied consent and the Court of Appeal upheld that acquittal.
At issue here are whether the trial judge erred in his understanding of consent in sexual assault and
whether his conclusion that the defence of “implied consent” exists in Canadian law was correct.
Held: The appeal should be allowed.
Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.: If the trial judge misdirected
himself as to the legal meaning or definition of consent, then his conclusion is one of law, and is
reviewable. It properly falls to this Court to determine whether the trial judge erred in his understanding
of consent in sexual assault, and to determine whether his conclusion that the defence of “implied
consent” exists in Canadian law was correct.
A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the
accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is
unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or
wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual
nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is
sufficient for the Crown to prove that the accused’s actions were voluntary. The Crown need not prove
that the accused had any mens rea with respect to the sexual nature of his behaviour. The absence of
consent, however, is purely subjective and determined by reference to the complainant’s subjective
internal state of mind towards the touching, at the time it occurred. While the complainant’s testimony
is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier
of fact in light of all the evidence. It is open to the accused to claim that the complainant’s words and
actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her
mind, did not want the sexual touching to take place. If, however, the trial judge believes the
complainant that she did not consent, the Crown has discharged its obligation to prove the absence of
consent. The accused’s perception of the complainant’s state of mind is not relevant and only becomes
so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the
inquiry.
The trier of fact may only come to one of two conclusions: the complainant either consented or did not.
There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent,
no matter how strongly her conduct may contradict that claim, the absence of consent is established
and the third component of the actus reus of sexual assault is proven. No defence of implied consent to
sexual assault exists in Canadian law. Here, the trial judge accepted the complainant’s testimony that
she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt
about consent, described by him as “implied consent”. This conclusion was an error.
To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or
her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into
question what factors prompted her apparent consent. Section 265(3) of the Criminal Code enumerates
a series of conditions -- including submission by reason of force, fear, threats, fraud or the exercise of
authority -- under which the law will deem an absence of consent in assault cases, notwithstanding the
complainant’s ostensible consent or participation. In a situation where the trier of fact finds that the
complainant did not want to be touched sexually and made her decision to permit or participate in the
sexual assault activity as a result of an honestly held fear, the law deems an absence of consent and the
third component of the actus reus of sexual assault is established. The complainant’s fear need not be
reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the
plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the
credibility of the complainant’s claim that she consented out of fear, the approach is subjective. If, as in
this case, the complainant’s testimony establishes the absence of consent beyond a reasonable doubt,
the actus reus analysis is complete, and the trial judge should have turned his attention to the accused’s
perception of the encounter and the question of whether the accused possessed the requisite mens rea.
The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being
reckless of or wilfully blind to, a lack of consent on the part of the person touched.
The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief
in consent. The defence of mistake is simply a denial of mens rea. It does not impose any burden of
proof upon the accused. The accused need not testify in order to raise the issue. Support for the
defence may stem from any of the evidence before the Court, including the Crown’s case-in-chief and
the testimony of the complainant. However, as a practical matter, this defence will usually arise in the
evidence called by the accused.
Consent is an integral component of the mens rea, but considered from the perspective of the accused.
In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed
that the complainant communicated consent to engage in the sexual activity in question. A belief by the
accused that the complainant, in her own mind, wanted him to touch her but did not express that
desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind
provides no defence.
There is a difference in the concept of “consent” as it relates to the state of mind of the complainant visà- vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For
the purposes of the actus reus “consent” means that the complainant in her mind wanted the sexual
touching to take place. In the context of mens rea -- specifically for the purposes of the honest but
mistaken belief in consent -- “consent” means that the complainant had affirmatively communicated by
words or conduct her agreement to engage in sexual activity with the accused. The two parts of the
analysis must be kept separate.
Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea
of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the
Criminal Code.
The accused’s putting consent into issue is synonymous with an assertion of an honest belief in consent.
If his belief is found to be mistaken, then honesty of that belief must be considered. As an initial step the
trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so,
then the question which must be answered by the trier of fact is whether the accused honestly believed
that the complainant had communicated consent. Any other belief, however honestly held, is not a
defence. Moreover, to be honest the accused’s belief cannot be reckless, willfully blind or tainted by an
awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. If at any point the complainant
has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to
point to some evidence from which he could honestly believe consent to have been re-established
before he resumed his advances. If this evidence raises a reasonable doubt as to the accused’s mens
rea, the charge is not proven.
Here, the accused knew that the complainant was not consenting before each encounter. The trial judge
ought to have considered whether anything occurred between the communication of non-consent and
the subsequent sexual touching which the accused could honestly have believed constituted consent.
The trial record conclusively establishes that the accused’s persistent and increasingly serious advances
constituted a sexual assault for which he had no defence. But for his errors of law, the trial judge would
necessarily have found the accused guilty. Since a new trial would not be in the interests of justice, this
Court can properly exercise its discretion under s. 686(4) of the Code and enter a conviction.
Whether the accused took reasonable steps to ascertain that the complainant was consenting is a
question of fact to be determined by the trier of fact only after the air of reality test has been met.
Given the way the trial and appeal were argued, s. 273.2(b) did not have to be considered.
Per L’Heureux-Dubé and Gonthier JJ.: Agreement was expressed generally with the reasons of Major J.
on most issues.
Canada is a party to the Convention on the Elimination of All Forms of Discrimination against Women,
which requires respect for and observance of the human rights of women. Violence against women is as
much a matter of equality as it is an offence against human dignity and a violation of human rights.
These human rights are protected by ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and
their violation constitutes an offence under the assault provisions of s. 265 and under the more specific
sexual assault provisions of ss. 271, 272 and 273 of the Criminal Code.
This case is not about consent, since none was given. It is about myths and stereotypes. The trial judge
believed the complainant and accepted her testimony that she was afraid and he acknowledged her
unwillingness to engage in any sexual activity. However, he gave no legal effect to his conclusion that
the complainant submitted to sexual activity out of fear that the accused would apply force to her. The
application of s. 265(3) requires an entirely subjective test. As irrational as a complainant’s motive might
be, if she subjectively felt fear, it must lead to a legal finding of absence of consent.
The question of implied consent should not have arisen. The trial judge’s conclusion that the
complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental
error given that he found the complainant credible, and accepted her evidence that she said “no” on
three occasions and was afraid. This error does not derive from the findings of fact but from mythical
assumptions. It denies women’s sexual autonomy and implies that women are in a state of constant
consent to sexual activity.
The majority of the Court of Appeal also relied on inappropriate myths and stereotypes. Complainants
should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose
impartiality is not compromised by these biased assumptions.
The findings necessary to support a verdict of guilty on the charge of sexual assault were made. In
particular, there was no evidence that would give an air of reality to a defence of honest but mistaken
belief in consent for any of the sexual activity which took place in this case. Section 273.2(b) precludes
an
accused from raising that defence if he did not take reasonable steps in the circumstances known to him
at the time to ascertain that the complainant was consenting. The position that the nature of the
defence of honest but mistaken belief does not need to be based on reasonable grounds as long as it is
honestly held has been modified by the enactment of s. 273.2(b), which introduced the “reasonable
steps” requirement.
Finally, on the facts as found at trial, s. 273.1(2)(d) also applies to this case and could not be ignored by
the trial judge.
R v Barton 2019 SCC 33
The accused was charged with first degree murder in the death of an Indigenous woman and sex
worker, who was found dead in the bathroom of the accused’s hotel room. The cause of death was
determined to be loss of blood due to an 11 cm wound in her vaginal wall. The Crown’s theory was that
during the course of commercial sexual activities while the deceased was incapacitated by alcohol, the
accused cut the inside of her vagina with a sharp object with intent to seriously harm or kill her.
Alternatively, the Crown took the position that if the accused did not murder the deceased, he
committed the lesser and included offence of unlawful act manslaughter, by causing her death in the
course of a sexual assault.
The accused, however, maintained his innocence. He testified that he and the deceased engaged in
similar consensual sexual activity on both the night leading up to her death and the previous night, and
that on both occasions, he penetrated her vagina with his fingers and thrusted repeatedly. He claimed
that she started to bleed unexpectedly on the second night, bringing the sexual activity to a halt, and he
awoke the next morning to find her dead in the bathtub. He then left the hotel in a panic, returned,
called 911, and fabricated different versions of a false story. Although he admitted that he caused her
death, he claimed that it was a non-culpable accident. He denied using a sharp object and asserted that
the deceased consented to the sexual activities in question — or at least he honestly believed that she
did.
In its opening address to the jury, the Crown referred to the deceased as a prostitute and explained that
she and the accused struck up a working relationship on the night before her death. In addition, without
having submitted an application under ss. 276.1(1) and 276.1(2) of the Criminal Codeto adduce evidence
of the deceased’s prior sexual activity, the accused testified at length about his previous sexual activity
with the deceased. The Crown did not object, nor did the trial judge order a separate hearing to
consider the admissibility and permissible uses of this evidence. The jury acquitted the accused. The
Court of Appeal allowed the Crown’s appeal, set aside the accused’s acquittal, and ordered a new trial
on first degree murder.
Held (Wagner C.J. and Abella and Karakatsanis JJ. dissenting in part): The appeal should be allowed in
part and a new trial on unlawful act manslaughter ordered.
Per Moldaver, Côté, Brown and Rowe JJ.: The trial judge erred in failing to comply with the mandatory
requirements set out in s. 276 of the Criminal Code. That error had ripple effects, most acutely in the
instructions on the defence of honest but mistaken belief in communicated consent, upon which the
accused relied. In particular, non-compliance with the s. 276 regime translated into a failure to expose
and properly address misleading evidence and mistakes of law arising from the accused’s defence. This
resulted in a reversible error warranting a new trial. However, the new trial should be restricted to the
offence of unlawful act manslaughter, as it has not been demonstrated that the acquittal on murder was
tainted by reversible error.
A.
Section 276 and Prior Sexual Activity Evidence
Section 276 of the Criminal Code governs the admissibility of evidence about a complainant’s prior
sexual activities and the uses to which that evidence may be put. The animating purposes behind the s.
276 regime are to protect the integrity of the trial by excluding irrelevant and misleading evidence,
protect the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting
the security and privacy of complainants. Section 276(1) provides that in proceedings in respect of
certain listed offences, evidence of a complainant’s prior sexual activity is not admissible to support an
inference that, by reason of the sexual nature of that activity, the complainant is more likely to have
consented to the sexual activity in question or is less worthy of belief. This section is categorical in
nature and applies irrespective of which party led the evidence. Section 276(2) provides that evidence of
the complainant’s prior sexual activity adduced by or on behalf of the accused is presumptively
inadmissible unless, after certain procedures have been followed, the trial judge rules to the contrary.
The s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some connection
to the offence charged, even if no listed offence was particularized in the charging document. Crown-led
prior sexual activity evidence is subject to the common law principles articulated in R. v. Seaboyer, 1991
CanLII 76 (SCC), [1991] 2 S.C.R. 577.
B.
Defence of Honest but Mistaken Belief in Communicated Consent
An accused may respond to a charge of sexual assault by relying on the defence of honest but mistaken
belief in communicated consent. Consent is defined in s. 273.1(1) of the Criminal Code as the voluntary
agreement of the complainant to engage in the sexual activity in question. For purposes of the actus
reus, consent means that the complainant in her mind wanted the sexual touching to take place. At this
stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of
that state of mind is irrelevant. For purposes of the mens rea, and specifically for the purposes of the
defence of honest but mistaken belief in communicated consent, consent means that the complainant
had affirmatively communicated by words or conduct her agreement to engage in the sexual activity
with the accused. Hence, the focus at this stage shifts to the mental state of the accused, and the
question becomes whether the accused honestly believed the complainant effectively said “yes”
through her words and actions.
While the jurisprudence has consistently referred to the relevant defence as being premised on an
honest but mistaken belief in consent, it is clear that in order to make out this defence, the accused
must have an honest but mistaken belief that the complainant actually communicated consent, whether
by words or conduct. It is therefore appropriate to refine the judicial lexicon and refer to the defence
more accurately as an “honest but mistaken belief in communicated consent”. This refinement is
intended to focus all justice system participants on the crucial question of communication of consent
and avoid inadvertently straying into the forbidden territory of assumed or implied consent. In seeking
to rely on the complainant’s prior sexual activities in support of a defence of honest but mistaken belief
in communicated consent, the accused must be able to explain how and why that evidence informed his
honest but mistaken belief that the complainant communicated consent to the sexual activity in
question at the time it occurred. The accused cannot rest his defence on the false logic that the
complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have
consented to the sexual activity in question, and on this basis he believed that she consented.
Honest but mistaken belief in communicated consent is a mistake of fact defence, which operates where
the accused mistakenly perceived facts that negate, or raise a reasonable doubt about, the fault
element of the offence. By contrast, as a general rule, mistakes of law offer no excuse. Therefore, to the
extent an accused’s defence of honest but mistaken belief in communicated consent rests on a mistake
of law — including what counts as consent from a legal perspective — rather than a mistake of fact, the
defence is of no avail. For example, it is an error of law — not fact — to assume that unless and until a
woman says “no”, she has implicitly given her consent to any and all sexual activity. Implied consent,
which rests on the assumption that unless a woman protests or resists, she should be deemed to
consent, has no place in Canadian law. In addition, a belief that the complainant gave broad advance
consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is also
premised on a mistake of law, not fact. As a further example, an accused’s belief that the complainant’s
prior sexual activities, by reason of their sexual nature, made it more likely that she was consenting to
the sexual activity in question is again a mistake of law.
The availability of the defence of honest but mistaken belief in communicated consent is not unlimited.
The reasonable steps requirement under s. 273.2(b) of the Criminal Code imposes a precondition to this
defence. This requirement, which rejects the outmoded idea that women can be taken to be consenting
unless they say “no”, has both objective and subjective dimensions: the accused must take steps to
ascertain consent that are objectively reasonable, and the reasonableness of those steps must be
assessed in light of the circumstances known to the accused at the time. The reasonable steps inquiry is
highly fact-specific. Trial judges and juries should take a purposive approach, keeping in mind that the
reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity
with the communication of consent. Trial judges and juries should also be guided by the need to protect
and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Steps based on rape
myths or stereotypical assumptions about women and consent cannot constitute reasonable steps.
The concept of reasonable steps to ascertain consent under s. 273.2(b) of the Criminal Codemust be
distinguished from the concept of reasonable grounds to support an honest belief in consent
under s. 265(4). Where the accused is charged with some form of assault, the presence or absence of
reasonable grounds is simply a factor to be considered in assessing the honesty of the accused’s
asserted belief in consent in accordance with s. 265(4). By contrast, where the accused is charged with a
sexual offence under ss. 271, 272, or 273, a failure to take reasonable steps is fatal to the defence of
honest but mistaken belief in communicated consent by virtue of s. 273.2(b). In the context of a charge
under ss. 271, 272, or 273 where the accused asserts an honest but mistaken belief in communicated
consent, if either there is no evidence upon which the trier of fact could find that the accused took
reasonable steps to ascertain consent or the Crown proves beyond a reasonable doubt that the accused
failed to take reasonable steps to ascertain consent, then there would be no reason to consider the
presence or absence of reasonable grounds to support an honest belief in consent under s. 265(4), since
the accused would be legally barred from raising the defence due to the operation of s. 273.2(b).
An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent
must first demonstrate that there is an air of reality to the defence. If there is no evidence upon which
the trier of fact could find that the accused took reasonable steps to ascertain consent, then the defence
of honest but mistaken belief in communicated consent has no air of reality and must not be left with
the jury. By contrast, if there is an air of reality to the defence of honest but mistaken belief in
communicated consent, including the reasonable steps requirement, then the defence should be left
with the jury. The onus would then shift to the Crown to negative the defence, which could be achieved
by proving beyond a reasonable doubt that the accused failed to take reasonable steps. Where the
Crown does not prove beyond a reasonable doubt that the accused failed to take reasonable steps, that
does not lead automatically to an acquittal. In those circumstances, the trial judge should instruct the
jury that they are required, as a matter of law, to go on to consider whether the Crown has nonetheless
proven beyond a reasonable doubt that the accused did not have an honest but mistaken belief in
communicated consent. This requirement flows from the fact that the defence is ultimately one of an
honest but mistaken belief in communicated consent, not one of reasonable steps. Ultimately, if the
Crown fails to disprove the defence beyond a reasonable doubt, then the accused would be entitled to
an acquittal.
C.
Application
(1)
Applicability of the Section 276 Regime
In this case, while the Crown did not object to the accused’s testimony about the deceased’s prior sexual
activity, its failure to do so was not fatal. The ultimate responsibility for enforcing compliance with the
mandatory s. 276 regime lies squarely with the trial judge, not with the Crown. It is also plain that the
proceeding implicated an offence listed in s. 276(1) because the offence charged in this case, first
degree murder, was premised on sexual assault with a weapon, which is an offence listed in s. 276(1). It
follows that the s. 276 regime was engaged. Furthermore, the limited information conveyed in the
Crown’s opening address did not exclude the application of s. 276(2) to the accused’s detailed testimony
about the deceased’s sexual activity on the night before her death, which went well beyond the basic
narrative recounted by the Crown. Therefore, before adducing evidence of the deceased’s sexual
activity on the night before her death, the procedural requirements under s. 276 should have been
observed, and if any of the evidence was deemed admissible, a careful limiting instruction by the trial
judge was essential to instruct the jury on the permissible and impermissible uses of that evidence.
(2)
Instructions on the Defence of Honest but Mistaken Belief in Communicated Consent
At trial, the accused relied on the defence of honest but mistaken belief in communicated consent, and
his testimony about the deceased’s prior sexual activities featured prominently in his defence. The trial
judge erred by failing to inoculate the jury against mistakes of law masquerading as mistakes of fact, as
the accused’s defence raised the spectre of several mistakes of law: a belief that the absence of signs of
disagreement could be substituted for affirmative communication of consent; a belief that prior similar
sexual activities between the accused and the deceased, the deceased’s status as a sex worker, or the
accused’s own speculation about what was going through the deceased’s mind could be substituted for
communicated consent to the sexual activity in question at the time; a belief that the deceased could
give broad advance consent to whatever the accused wanted to do to her; and the inference that the
deceased’s past sexual activities, by reason of their sexual nature, may make it more likely that she
consented to the sexual activity in question. It was incumbent on the trial judge to caution the jury
against acting on these mistakes of law. The absence of such an instruction had an immediate impact on
the defence of honest but mistaken belief in communicated consent, as it allowed the defence to
proceed while these mistakes of law were left unaddressed, thereby leaving the jurors without the
necessary tools to engage in a proper analysis. This error was inextricably linked to the failure to hold a
s. 276 hearing, which would have subjected the admissibility and permissible uses of the evidence of the
deceased’s prior sexual history to rigorous scrutiny and assisted in filtering out the mistakes of law
raised by the accused’s defence.
(3)
Instructions on Motive
Where motive does not form an essential element of the offence, the necessity of charging a jury on the
subject depends upon the course of the trial and the nature and probative value of the evidence
adduced. In this case, motive was a relevant consideration bearing upon whether the accused intended
to seriously harm or kill the deceased, which would go to the fault element for murder. However, the
Crown led no evidence of motive. Since there was neither a proven motive nor a proven absence of
motive, it fell within the trial judge’s substantial discretion to charge on motive. Further, the charge was
not so unbalanced as to amount to misdirection.
(4)
Instructions on the Objective Fault Element of Unlawful Act Manslaughter
The fault element of unlawful act manslaughter consists of objective foreseeability of the risk of bodily
harm which is neither trivial nor transitory, in the context of a dangerous act. At trial, the defence
conceded that the act in question was dangerous, and the Crown accepted that it would be appropriate
to instruct the jury that if they were satisfied that the accused committed an unlawful act, then it was
implicit that the act was dangerous. In addition, the Crown agreed to the request of the defence that the
language of objectively foreseeable bodily harm be removed from the charge. On appeal, the Crown
reversed its position, arguing that the instructions on dangerousness were deficient and the trial judge’s
failure to refer to the objective fault element of unlawful act manslaughter unfairly minimized its expert
evidence. The Court of Appeal accepted the Crown’s position on appeal. However, it should not have
done so, as the Crown had to live with the decision it made at trial.
(5)
Instructions on After-the-Fact Conduct
In light of procedural fairness concerns — namely, the Crown’s limited right to appeal an acquittal and
the requirements that must be observed by appellate courts when raising new issues — the Court of
Appeal should not have ordered a new trial on the issue of after-the-fact conduct evidence. The Crown
was actively involved in drafting the jury charge, and at no point did it request a specific instruction
directing the jury to consider the accused’s after-the-fact conduct in assessing his credibility. Further,
although the Court of Appeal notified the parties at the outset of the hearing that it would raise new
issues, it did not specify the precise nature of those issues or indicate whether one or more could result
in the accused’s acquittal being set aside. It also allowed the Crown to advance certain arguments on
after-the-fact conduct for the first time in reply submissions, and at the end of the hearing the court
indicated that there was no need for further written argument. Lastly, though it is not necessary to
finally decide the issue, there is reason to be skeptical of the Crown’s argument that the trial judge’s
instructions on after-the-fact conduct were so defective as to amount to reversible error. When read
fairly and as a whole, the trial judge’s charge on after-the-fact conduct adequately, albeit imperfectly,
conveyed to the jury that they could consider the accused’s after-the-fact conduct in assessing guilt and
equipped them to do so.
(6)
Instructions on the Defence of Accident
The term “accident” is used to signal one or both of the following: (1) that the act in question was
involuntary (i.e., non-volitional), thereby negating the actus reus of the offence; or (2) that the accused
did not have the requisite mens rea. In assessing whether a claim of “accident” may
negate mens rea in any particular case, it is obviously essential to consider what the relevant mens rea
requirement is in the first place. In carrying out this inquiry, it must be kept in mind that mens rea
requirements vary and include, for example: (1) a subjective intention to bring about a prohibited
consequence; (2) a subjective awareness of prohibited circumstances; and (3) objective fault. Where the
offence charged requires proof of subjective intent to bring about a particular consequence, the claim
that the accused did not intend to bring about that consequence, making it a mere accident, is legally
relevant, as it could negate the mens rea required for a conviction. By contrast, where the offence only
requires a subjective awareness of particular circumstances, an accused’s claim that the consequences
of his act were unintentional and unexpected, making those consequences a mere accident, is naturally
of no assistance. Finally, if the offence requires proof of objective fault — for instance, that the
prohibited consequence was objectively foreseeable — then a claim of accident could negate that fault
element if the prohibited consequence was such a chance occurrence that the trier of fact is left in a
state of reasonable doubt as to whether, objectively, it was foreseeable. To avoid confusion in future
cases, trial judges should focus on the questions of voluntariness and/or negation of mens rea, as
appropriate, when instructing jurors on the so-called “defence” of “accident”.
(7)
Instructions Addressing Prejudice Against Indigenous Women and Girls in Sexual Assault Cases
There is no denying that Indigenous people — in particular Indigenous women, girls, and sex workers —
have endured serious injustices, including high rates of sexual violence. Furthermore, the Court has
acknowledged on several occasions the detrimental effects of widespread racism against Indigenous
people within our criminal justice system. With this in mind, our criminal justice system and all
participants within it should take reasonable steps to address systemic biases, prejudices, and
stereotypes against Indigenous women and sex workers. As an additional safeguard going forward, in
sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well
advised to provide an express instruction aimed at countering prejudice against Indigenous women and
girls. However, any such instruction must not privilege the rights of the complainant over those of the
accused. The objective would be to identify specific biases, prejudices, and stereotypes that may
reasonably be expected to arise in the particular case and attempt to remove them from the jury’s
deliberative process in a fair, balanced way, without prejudicing the accused.
(8)
New Trial
Applying the test set out in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, a new trial on unlawful act
manslaughter is warranted. The failure to implement the s. 276 regime carried a significant risk that the
jury would, whether consciously or unconsciously, engage in impermissible forms of reasoning on the
central questions of whether the deceased subjectively consented to the sexual activity in question and,
if not, whether the accused honestly but mistakenly believed she communicated her consent to that
sexual activity at the time it occurred. The trial judge’s failure to implement
the s. 276regime was exacerbated by, and was inseparable from, the failure to caution the jury against
mistakes of law masquerading as mistakes of fact when considering the defence of honest but mistaken
belief in communicated consent. It can reasonably be thought that the trial judge’s errors had a material
bearing on the accused’s acquittal for unlawful act manslaughter, and therefore a new trial should be
ordered on that offence.
However, a new trial on first degree murder is not warranted. The Crown’s case on first degree murder
turned primarily on its expert evidence that the deceased’s fatal wound was a cut. Evidently, the jury
was not persuaded. Moreover, the Crown provided no plausible explanation for how the jury could have
used prior sexual activity evidence to improperly reason its way through the first degree murder charge.
Furthermore, the Crown acknowledged in the court below that the only ground of appeal implicating
the murder charge was the motive issue. However, the motive instructions were not tainted by
reversible error. Finally, there was a simple and obvious explanation for why the jury unanimously
acquitted the accused of murder that does not require the Court to speculate about the potential
influence of conscious or unconscious bias: the Crown’s theory simply did not hold up under scrutiny.
Per Wagner C.J. and Abella and Karakatsanis JJ. (dissenting in part): Section 276 makes evidence of a
complainant’s prior sexual activity inadmissible unless the accused complies with the criteria and
procedures set out in ss. 276, 276.1 and 276.2. In this case, the trial judge permitted the accused to lead
such evidence without following the procedure required by s. 276, thereby allowing him to make
unrestricted reference to the victim’s sexual history. He also failed to give the jurors any kind of limiting
instruction to advise them that such evidence could not be used to show that the victim was more likely
to have consented. All of this was compounded by the fact that the trial judge permitted, on dozens of
occasions, the deceased to be referred to as a Native prostitute without providing any instruction to
guard against potential prejudicial reasoning based on these descriptions. There was thus no filter for
the victim’s prior sexual history and no specific warning to the jury to avoid drawing prejudicial and
stereotypical assumptions about Indigenous women working in the sex trade. This left the jury with an
essentially unchallenged version of the accused’s interactions with the victim. The trial judge failed to
appreciate that the victim’s prior sexual conduct, occupation and race required the jury to be specifically
alerted to the dangers of discriminatory attitudes toward Indigenous women, particularly those working
in the sex trade. He provided no specific instructions crafted to confront the operative social and racial
bias potentially at work. This rendered the whole trial unfair.
The devastatingly prejudicial effects of this error cannot be said to be confined to the included offence
of manslaughter, but may also have had a material bearing on the jury’s reasoning on the charge of first
degree murder. The prejudicial impact of the accused’s detailed testimony — without either the
screening required by s. 276 or any limiting instructions — necessarily infected the whole trial and the
entirety of the jury’s fact-finding process. Indeed, the jury’s portrait of the victim was painted almost
exclusively through the accused’s testimony, which meant that there was a significant possibility that
the jury’s entire deliberations would have been based on fundamentally flawed — and prohibited —
legal premises.
The potential for prejudicial reasoning was further exacerbated by the repeated description of the
victim as a “prostitute”, and as a “Native”, without any limiting instruction from the trial judge. Specific
safeguards are required in jury trials to prevent the systemic biases that can affect jury deliberations.
Trial judges have an important role to play in instructing juries so that they can recognize and set aside
racial and other biases, including those against Indigenous peoples and sex trade workers.
Acknowledging, as this Court has for the last two decades, that racial prejudice is a social fact not
capable of reasonable dispute, is not an insult to the jury system, it is a wake-up call to trial judges to be
acutely attentive to the undisputed reality of pervasive prejudice and to provide the jury instructions
required by law. Not only did that not happen here, the opposite occurred: inflammatory terminology
was frequent, and was gratuitously used without any corrective intervention by the trial judge.
In summary, the trial judge’s failure to apply the requirements in s. 276 created a significant risk that the
evidence of the victim’s prior sexual conduct not only tainted the jury’s perception of her character and
conduct, but also fundamentally affected the factual foundation upon which their deliberations were
based. This error permeated the entire trial and may have had a material bearing on the jury’s
deliberations, affecting their verdicts for both murder and manslaughter. Given the prejudicial impact of
these references, and the risk that they would affect the jury’s assessment of the victim and the
accused’s credibility, it is difficult to see how it is realistically possible to conclude that their effect was
confined to the jury’s verdict on manslaughter. The risk of harmful effects on the jury’s deliberations on
murder would have been no less profound. When a trial with intimately connected issues, such as this
one, is riddled with highly prejudicial testimony, it affects the very foundations of a jury’s fact-finding
function and decision making.
In addition, the trial judge’s error in the instruction on after-the-fact-conduct is significant. In his own
testimony, the accused admitted to lying, disposing of evidence and providing contradictory exculpatory
explanations to numerous people after the victim’s death. It was open to the jury to conclude that
additional incriminating after-the-fact conduct evidence came from the hotel video camera footage,
physical evidence found by the police, and the testimony of numerous individuals. The accused did not
call 911 immediately after finding the victim in the bathtub. Instead there was evidence that he
attempted to erase his link to the scene by attempting to clean the bathroom, re-arranging the bedding,
putting his belongings in his van, checking out of the hotel room, and that he attempted to conceal and
destroy evidence by throwing the bloody towel he had used to wipe the victim’s blood from his feet and
the bathroom floor into a garbage can in the parking lot of the hotel. He also concocted and fabricated
multiple stories and excuses. There is a strong possibility that, properly instructed, it would have had a
material bearing on the jury’s assessment of the accused’s testimony and, ultimately, its verdict.
Instead, the jury was given contradictory and confusing directions. In effect, the trial judge did not leave
it open to the jury to consider the impact of the after-the-fact conduct evidence, such as the admitted
exculpatory lies the accused told after the victim’s death, except when such evidence favoured an
acquittal.
Juries, although expected to apply common sense, are above all expected to follow the instructions
given by the trial judge. Where those instructions are confusing and contradictory, there is no roadmap
for common sense to follow.
R v ADH 2013 SCC 28
The accused, not previously knowing that she was pregnant, gave birth while using the toilet in a retail
store. Thinking the child was dead, she cleaned up as best she could and left, leaving the child in the
toilet. The child was in fact alive, was quickly attended to by others and transported to the hospital
where he was successfully resuscitated and found to be completely healthy. The accused was eventually
identified as the woman seen entering and leaving the washroom at the time in question. When
contacted by police, she cooperated fully and confirmed that she was the mother of the child. She was
charged with unlawfully abandoning a child under the age of 10 years old and thereby endangering his
life contrary to s. 218 of the Criminal Code.
The trial judge noted that the accused acknowledged that she had left her child in the toilet, thereby
committing the actus reus of the s. 218 offence. As for the mens rea, the trial judge decided that
subjective fault was required and found that the Crown had not proven beyond a reasonable doubt that
the accused intended to abandon her child. She had not known she was pregnant and truly believed she
had delivered a dead child. Her fear and confusion explained her subsequent behaviour. The trial judge
accordingly found the accused not guilty and dismissed the charge. The majority of the Court of Appeal
agreed with the trial judge that s. 218 of the Criminal Code requires subjective fault.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ.: The text of s. 218 of the Criminal Code
does not expressly set out a fault requirement, but when read in light of its full context, it supports the
conclusion that subjective fault is required. An important part of the context in which we must interpret
s. 218 is the presumption that Parliament intends crimes to have a subjective fault element. There is
nothing in the text or context of the child abandonment offence to suggest that Parliament intended to
depart from requiring subjective fault. The text, scheme and purpose of the provision support this
conclusion, and to the extent that Parliament’s intent is unclear, the presumption of subjective fault
ought to have its full operation in this case. The legislative evolution of the child abandonment offence
is, if anything, more supportive than not of this conclusion.
There is no doubt that the purpose of the abandonment offence is the protection of children from risk
even when no harm occurs. Viewed in the light of the broad scope of potential liability under s. 218 of
the Criminal Code, the requirement for subjective fault serves an important purpose of ensuring that the
reach of the criminal law does not extend too far. While the conduct and people that fall within s. 218
are broadly defined, the requirement for subjective fault ensures that only those with a guilty mind are
punished.
The words “abandon”, “expose” and “wilful” all suggest a subjective fault requirement. The first two of
these words involve more than just leaving a child alone or failing to take care of it: they denote
awareness of the risk involved and, as defined in s. 214 of the Criminal Code, they suggest a requirement
for knowledge of the consequences flowing from the prohibited acts of abandonment or exposure. As
for the word “wilful”, it is used only in the non-exhaustive definition of the words “abandon” and
“expose” in relation to omissions, and a wilful omission is the antithesis of a crime involving a mere
failure to act in accordance with some minimum level of behaviour. Likewise, the use of the word
“likely” in both ss. 214 and 218 does not suggest an objective fault requirement given that it is simply
aimed at criminalizing the creation of risk.
Conversely, what is absent from the text of s. 218 of the Criminal Code and the broader scheme in which
it appears strongly suggest that subjective fault is required. The text of the child abandonment provision
does not contain any of the language typically employed by Parliament when it intends to create an
offence of objective fault. The prohibition applies to everyone, not just to a particular group engaged in
a regulated activity or standing in a particular, defined relationship with the alleged victim. Nothing in
the text suggests an intention to impose a minimum and uniform standard of care. There are no
references in the text to “dangerous”, “careless” or “reasonable” conduct or any requirement to take
“reasonable precautions”. There is no predicate offence and no actual harm is required by the provision,
and it does not create, define or impose a duty to do anything other than in the sense that all criminal
offences could be considered to create a duty not to commit them. While failure to perform a duty
imposed by law on persons in particular relationships is the essence of the necessaries of life offence
created by s. 215, this is not at all the case with respect to the child abandonment offence under s. 218.
The text, context and purpose of s. 218 of the Criminal Code show that subjective fault is required. It
follows that the trial judge did not err in acquitting the respondent on the basis that this subjective fault
requirement had not been proved. The Court of Appeal was correct to uphold the acquittal.
Per Rothstein and Moldaver JJ.: Section 218 is child protection legislation. It targets three limited classes
of people faced with a situation where a child under 10 is or is likely to be at risk of death or permanent
injury. A common sense approach dictates that the offence is duty-based and that penal negligence is
the level of fault required to establish guilt as regards the proscribed consequences. Further support for
this view is found in a review of the provision’s language, its placement in the Criminal Code, relevant
scholarly opinion, its legislative evolution and history and the gravity and social stigma associated with
the offence.
Once it is accepted that in enacting s. 218 Parliament intended to guard against dangerous conduct that
any reasonable person would foresee is likely to endanger a child’s life or expose it to permanent injury,
common sense suggests that Parliament would not provide accused persons with a host of defences
based on their individual characteristics. Doing so would effectively defeat the provision’s purpose of
imposing a societal minimum standard of conduct, since crimes of subjective fault require an
assessment of personal characteristics to the extent that they tend to prove or disprove an element of
the offence.
The recognition that s. 218 sweeps within its ambit persons who are already duty-bound to protect a
child leads to the central difficulty with holding that s. 218 is, in its entirety, a subjective mens rea
offence. If the great bulk of people to whom the provision applies have a pre-existing and ongoing legal
duty to take charge of children who fall below the age of 10, it hardly seems reasonable that they should
be judged against a subjective mens rea standard when the very same people who run afoul of the dutybased provision next door (s. 215 (failure to provide necessaries)) are judged on a penal negligence
standard in light of this Court’s decision in R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122. The
result would be a double standard — an objective standard under s. 215 and a subjective standard
under s. 218 — for provisions that serve similar, if not identical, purposes.
Section 218 can be read purposefully and harmoniously, such that it applies only to persons who are
cloaked with a duty, whether pre-existing and ongoing or situational, to protect a particular child under
the age of 10 from death or permanent injury, all of whom are properly subject to an objective standard
with respect to the consequences element of s. 218. The s. 214 definition should be restricted in scope
as applying only to persons falling into the following three categories: (1) those with a pre-existing and
ongoing legal duty to the child; (2) those who come to the aid of the child who is or is likely to be at risk
of death or permanent injury, and; (3) those who actually place the child in that situation. Interpreting
the scope of s. 218 in this way goes a long way toward addressing concerns about the broad scope of
potential liability under the provision.
Section 218 finds its place in Part VIII of the Criminal Code under the heading “Duties Tending to
Preservation of Life”. It is one of two offences located under that heading — the other being s. 215. This
provides some indication that Parliament intended that s. 218 be construed as a duty-based offence. It
seems anomalous that Parliament would insert a non-duty-based offence into a thicket of duty-related
provisions. The scenario becomes even more remarkable when one appreciates that s. 218is concerned
with inherently dangerous conduct that places or is likely to place the lives and safety of helpless young
children at risk. This is the very type of situation which requires a societal minimum standard of conduct
and calls out for a standard of fault based on objective foreseeability. Likewise, the plain language of s.
218 — supported by the place of situational duties in Canadian criminal law, the offence’s placement
among other duty-based provisions in the Criminal Code and the scholarship on s. 218 — leads to the
conclusion that the offence of child abandonment is duty-based.
The legislative history of s. 218 further supports the conclusion that the fault element for s. 218 is penal
negligence. The provision has never included words of subjective intention, as confirmed by the early
English interpretation of the offence. Furthermore, neither the social stigma associated with it nor the
gravity of the offence of child abandonment require it to be treated differently than its sister provision
s. 215 (failure to provide necessaries), where penal negligence was found to be the requisite fault
element.
Under a penal negligence standard, a mistake of fact that is both honest and reasonable affords a
complete defence. Thus, an objective mens rea standard does not punish the morally blameless. In the
present circumstances, the trial judge found that the respondent honestly believed that her child was
dead at birth and that this belief was objectively reasonable. As such, she was entitled to be acquitted
based on the defence of honest and reasonable mistake of fact.
R v Briscoe 2010 SCC 13
C, a 13-year-old girl, and a young friend were lured into a car on the false promise of being taken to a
party. B drove the group, which included L and three youths, to a secluded golf course. Unbeknownst to
C or her friend, L had said earlier in the day that he would like to find someone to kill. It would appear
that the idea had been generally well received and C was chosen by L and some of the others as the
victim. On their arrival, B opened the trunk and, at L’s request, handed him some pliers. B stayed behind
at the car as the others went onto the golf course under the guise of seeking the party. B rejoined the
group around the time that one of the youths hit C from behind with a wrench. For a moment, B held on
to C and angrily told her to be quiet or shut up. B then stood by and watched as C was brutally raped
and murdered. All five persons involved were charged with kidnapping, aggravated assault and first
degree murder and the two adults, B and L, were jointly tried by a judge alone. B was acquitted. The trial
judge found that the actus reus for being a party to the offences was proven, but not the mens
reabecause B did not have the requisite knowledge that L intended to commit the crimes. The Court of
Appeal overturned the acquittals and ordered a new trial, holding that the trial judge erred in law by
failing to consider wilful blindness.
Held: The appeal should be dismissed.
The mens rea requirement reflected in the word “purpose” under s. 21(1)(b) of the Criminal Code has
two components: intent and knowledge. For the intent component, the Crown must prove that the
accused intended to assist the principal in the commission of the offence. It is not required that the
accused desired that the offence be successfully committed. As for knowledge, in order to have the
intention to assist in the commission of an offence, the aider must know that the principal intends to
commit the crime, although he or she need not know precisely how it will be committed. Even in the
case of murder, the principal’s intention to commit the crime must be known to the aider or abettor, but
it need not be shared. It is sufficient that he or she, armed with knowledge of the principal’s intention to
commit the crime, acts with the intention of assisting the principal in its commission.
The doctrine of wilful blindness, correctly delineated, is distinct from recklessness and involves no
departure from the subjective inquiry into the accused’s state of mind which must be undertaken to
establish an aider or abettor’s knowledge. Wilful blindness does not define the mens rea required for
particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component
of the mens rea. Wilful blindness imputes knowledge to an accused whose suspicion is aroused to the
point where he or she sees the need for further inquiries, but deliberately chooses not to make those
inquiries.
In this case, the evidence cried out for an analysis on wilful blindness. Even B’s own statements to the
police, on which the trial judge relied heavily, suggest that he had a strong, well-founded suspicion that
someone would be killed at the golf course and that he may have been wilfully blind to the kidnapping
and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about
what the members of the group intended to do because he did not want to know. The trial judge’s
failure to consider B’s knowledge from that perspective constitutes a legal error which necessitates a
new trial on all charges.
R v Zora 2020 SCC 14 – paras 36-51
Z was charged with drug offences and was granted bail with conditions, including a curfew and a
requirement that he present himself at the door of his residence within five minutes of a peace officer
or bail supervisor attending to confirm his compliance with his curfew. Z twice failed to present himself
at his door when police attended, and was charged under s. 145(3) of the Criminal Code with two counts
of breaching his curfew and two counts of breaching his condition to answer the door. Z led evidence
that he was in his bedroom where it would have been difficult, if not impossible, to hear the doorbell or
someone knocking on the door. The trial judge acquitted Z on the alleged curfew violations but
convicted Z on the two counts of failing to appear at the door. A summary conviction appeal judge
dismissed Z’s appeal, concluding that objective mens rea is sufficient for a conviction under s. 145(3)and
that Z’s behaviour was a marked departure from what a reasonable person would do to ensure they
complied with their bail conditions. The Court of Appeal dismissed Z’s appeal. A majority of the court
concluded that s. 145(3) created a duty-based offence that only requires an objective mens rea.
Held: The appeal should be allowed, Z’s convictions quashed and a new trial ordered on the two counts
of failing to attend at the door.
Under s. 145(3) of the Criminal Code, the Crown is required to prove subjective mens rea. The Crown
must establish that the accused breached a condition of an undertaking, recognizance or order
knowingly or recklessly. Accordingly, a new trial is required on the two counts charging Z with failing to
attend at the door of his residence, in light of the lower courts’ error of applying an objective standard
of fault.
The default form of bail for most crimes is release on an undertaking to attend trial, without any other
conditions. Bail conditions can be imposed, but only if they are clearly articulated, minimal in number,
necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused’s
risks regarding the statutory grounds for detention in s. 515(10): securing the accused’s attendance in
court, ensuring the protection or safety of the public, or maintaining confidence in the administration of
justice. The setting of bail conditions must be consistent with the presumption of innocence and the
right not to be denied reasonable bail without just cause under s. 11(e) of the Canadian Charter of
Rights and Freedoms. In addition, s. 515 of the Criminal Code codifies the ladder principle, which
requires that the form of release and the conditions of release imposed on an accused be no more
onerous than necessary to address the risks listed in s. 515(10). Only conditions specifically tailored to
the individual circumstances of the accused can meet the required criteria. Bail conditions are intended
to be particularized standards of behavior designed to curtail statutorily identified risks posed by a
particular person and are to be imposed with restraint. Restraint is required because bail conditions
limit the liberty of someone who is presumed innocent of the underlying offence and, through the
offence in s. 145(3), create new sources of potential criminal liability personal to that individual accused.
Section 145(3) of the Criminal Code creates a hybrid offence that applies to breaches of conditions
imposed on an accused by a court order when the accused person is released prior to trial, while
awaiting sentencing, or during an appeal. It is a crime against the administration of justice and carries a
maximum penalty of two years’ imprisonment. Accused persons may therefore be subject to
imprisonment under s. 145(3) if they breach a condition of their bail, even if they are never ultimately
convicted of any crimes for which they were initially charged. In many cases, an accused person faces
criminal sanctions for conduct which, but for the stipulated bail condition, would be a lawful exercise of
personal freedom. Accordingly, the fault element under s. 145(3) has far-reaching implications for civil
liberties and the fair and efficient functioning of bail in this country, and there is a direct link between
what conditions may be imposed in a bail order and Parliament’s intent in criminalizing their breach
under s. 145(3).
Determining the mens rea of s. 145(3) involves discerning the fault standard intended by Parliament.
The presumption is that Parliament intends crimes to have a subjective fault element unless there is a
clear legislative intention to overturn the presumption. If the offence in the Criminal Code is ambiguous
as to the mens rea, then the presumption has not been displaced. The text and context of s. 145(3)
suggest that Parliament intended for subjective fault to apply. The wording in s. 145(3) is neutral insofar
as it does not show a clear intention on the part of Parliament with regard to either the subjective or
objective mens rea. The absence of express words indicating a subjective intent cannot on its own
displace the presumption of subjective mens rea. Furthermore, nothing establishes a clear intention to
create a duty- based offence which calls for an objective mens rea. Duty-based offences are directed at
legal duties very different from the obligation to comply with the conditions of a judicial order. And,
unlike these duty-based offences, bail conditions do not impose a minimum uniform standard of
conduct having regard to societal interests rather than personal standards of conduct. Parliament
legislated a bail system based upon an individualized process and the bail order is expected to list
personalized and precise standards of behaviour. As a result, there is no need to resort to a uniform
societal standard to make sense of what standard of care is expected of an accused in fulfilling their bail
conditions and no need to consider what a reasonable person would have done in the circumstances to
understand the obligation imposed by s. 145(3). In addition, the highly individualized nature of bail
conditions excludes the possibility of a uniform societal standard of conduct applicable to all potential
failure to comply offences. Bail conditions and the risks they address also vary dramatically among
individuals on release, so it is not intelligible to refer to the concepts of a “marked” or “mere” departure
from the standard of a reasonable person. The offence under s. 145(3) is not comparable to other
objective fault offences, and reasonable bail cannot be compared to a regulated activity that is entered
into voluntarily. Further, the offence of failure to comply with bail conditions is similar to the offence of
breach of probation for which a subjective mens rea is required.
A subjective fault requirement is consistent with the penalties and consequences which flow from
conviction under s. 145(3). A conviction has profound implications for the liberty interests of the
offender, including imprisonment even if the offender is acquitted of the underlying charge or further
conditions imposed as part of a sentence. A conviction under s. 145(3) creates or adds to that person’s
criminal record. Being charged under s. 145(3) also places a reverse onus on accused persons to show
why they should be released on bail again. Previous convictions under s. 145(3) inform bail hearings for
future offences and may lead to the denial of bail or more stringent bail conditions for future unrelated
offences. Breach charges often accumulate quickly, leading to a vicious cycle of increasingly numerous
and onerous conditions, more breach charges and eventually pre-trial detention. These serious
consequences presuppose that the person knowingly, rather than inadvertently, breached their bail
condition.
Parliament’s intention to require subjective fault is further demonstrated by the distinct purpose of s.
145(3), being to punish and deter those who knowingly or recklessly breach their bail conditions.
Parliament did not intend for criminal sanctions to be the primary means of managing any risks or
concerns associated with individuals released with bail conditions. Such risks or concerns are to be
managed through the setting of conditions that are minimal, reasonable, necessary, least onerous, and
sufficiently linked to the accused’s risk; variations to those conditions when necessary through bail
reviews and vacating bail orders; and bail revocation when bail conditions are breached. Charges under
s. 145(3) are not, and should not be, the principal means of mitigating risk. Bail review is the primary
way to challenge or change bail conditions. Bail revocation under s. 524 of the Criminal Code and
criminal charges under s. 145(3) work together to promote compliance with conditions of bail, but they
serve distinct and different legislative purposes. Section 524 fulfills a risk management role; s.
145(3)exists to punish and deter. Section 145(3) is a means of last resort when other risk management
tools have not served their purposes. Specific deterrence has little or no effect if an accused does not
know they were doing anything wrong. An accused must know what standard of behaviour to meet and
that their conduct is failing to meet that standard in order to be deterred from engaging in prohibited
conduct.
The requirement that bail conditions must be tailored to the accused points to a subjective mens rea so
that the individual characteristics of the accused will be considered when bail is set and if bail is
breached. Requiring a subjective mens rea reinforces, mirrors, and respects the individualized approach
mandated for the imposition of bail conditions. In practice, the number of unnecessary and
unreasonable bail conditions, and the rising number of breach charges, indicates insufficient
individualization of bail conditions. The majority of bail orders include numerous conditions of release
which often do not clearly address an individual accused’s risks. A culture of risk aversion contributes to
courts applying excessive conditions. The expeditious nature of bail hearings generates a culture of
consent which aggravates the lack of restraint in imposing excessive bail conditions and encourages
accused persons to agree to onerous terms of release rather than run the risk of detention. Onerous
conditions disproportionately impact vulnerable and marginalized populations, including those living in
poverty or with addictions or mental illnesses, and Indigenous people. The presence of too many
unnecessary, excessive and onerous conditions provides legislative context for finding no clear intention
of Parliament to displace the presumed subjective fault standard for s. 145(3) and illustrates the need
for restraint and careful review of bail conditions.
The principle of restraint and the ladder principle require anyone proposing bail conditions to consider
what risks might arise if the accused is released without conditions. Only conditions which target the
accused’s risk in relation to flight, public protection and safety, or maintaining confidence in the
administration of justice are necessary. A bail condition must attenuate a risk that would otherwise
prevent release without that condition. Conditions cannot be imposed for gratuitous or punitive
purposes and should not be behaviourally-based. They must be sufficiently linked to the defined
statutory risks, as narrowly defined as possible to meet their objective, and reasonable. They will only be
reasonable if they realistically can and will be met by the accused. They cannot contravene federal or
provincial legislation or the Charter, and must be clear, minimally intrusive, and proportionate to any
specific risk posed by the accused. The setting of bail is an individualized process and there is no place
for standard, routine, or boilerplate conditions, whether bail is contested or the product of consent.
Some specific non-enumerated conditions are commonly included in release orders, but must be
scrutinized to ensure that each condition is necessary, reasonable, least onerous and sufficiently linked
to a risk in s. 515(10). All persons involved in the bail system are required to act with restraint and to
carefully review bail conditions they propose or impose. The Crown, defence, and the court all have
obligations to respect the principles of restraint and review. Ultimately, the obligation to ensure
appropriate bail orders lies with the judicial official. These obligations carry over to consent releases.
Judicial officials should not routinely second-guess joint proposals by counsel, however, they have the
discretion to reject overbroad proposals and must act with caution when reviewing and approving
consent release orders.
Subjective mens rea under s. 145(3) can be satisfied where the Crown proves: (1) the accused had
knowledge of the conditions of their bail order or were wilfully blind to those conditions; and (2) either
the accused knowingly failed to act according to the bail conditions or they were wilfully blind to those
circumstances and failed to comply despite that knowledge, or the accused recklessly failed to act
according to the conditions, meaning they perceived a substantial and unjustified risk that their conduct
would likely fail to comply with the conditions and persisted in this conduct. Genuinely forgetting a
condition could be a mistake of fact and would negate mens rea. The accused need not have knowledge
of the legal consequences or scope of their condition, but they must know that they are bound by the
condition. Knowledge in the second component of the mens rea means that the accused must be aware
of, or be wilfully blind to, the factual circumstances requiring them to act or refrain from acting. The
second component of the mens rea can also be met by showing that the accused was reckless.
Knowledge of risk is key to recklessness — the accused must know of their bail conditions and the risk of
factual circumstances arising that would require them to act (or refrain from acting) to comply with their
bail conditions. Recklessness is a subjective standard and the accused must be aware that their conduct
created a substantial risk of non-compliance with their bail conditions and aware of any factors that
contributed to that risk being unjustified.
In the instant case, a new trial should be ordered in light of the error in law by the courts below in
applying an objective rather than a subjective standard of fault for s. 145(3). This is not a case where the
curative proviso under s. 686(1)(b)(iii) of the Criminal Code applies — identifying the wrong fault
standard is not a harmless or trivial error. A subjective mens rea would have required the trial judge to
consider Z’s state of mind, which clearly could have had an impact on the verdict. The evidence is not so
overwhelming that a conviction is inevitable. A new trial is therefore needed to address whether Z
knowingly or recklessly breached his conditions.
Objective Mens Rea
R v Martineau [1990] 2 SCR 633
Martineau and a friend, Tremblay, set out armed knowing that they were going to commit a crime;
Martineau testified that he thought it would only be a break and enter. Tremblay shot and killed two
people after robbing them and their house. Martineau allegedly said or thought, after he heard the shot
which killed the first victim, "Lady, say your prayers". As they left, Martineau asked Tremblay why he
killed them and Tremblay answered, "They saw our faces". Martineau responded, "But they couldn't see
mine 'cause I had a mask on".
Respondent was convicted of second degree murder. The trial judge charged the jury on s. 213(a) and
(d) and on s. 21(1) and (2) of the Criminal Code. The Court of Appeal held that s. 213(a) was inconsistent
with ss. 7 and 11(d) of the Charter for reasons given in R. v. Vaillancourt and that it was not saved by s. 1
of theCharter. The Court could not conclude that a conviction should be entered pursuant to
s. 613(1)(b)(iii) of the Code because the jury had not been not instructed on any portion of s. 212.
The constitutional questions queried whether s. 213(a) of the Criminal Code infringed s. 7 and/or s.
11(d) of the Charter, and if so, whether or not it was justified by s. 1.
Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed. Section 213(a) of the Criminal
Code infringes both ss. 7 and 11(d) of the Charter and is not justified by s. 1.
Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: The principles of fundamental justice
require that a conviction for murder be based upon proof beyond a reasonable doubt of subjective
foresight of death. This appeal was disposed of on the basis of the principle of subjective foresight of
death, even though it could have been disposed of on the basis of objective foreseeability.
The introductory paragraph of s. 213(a) expressly removes the Crown's burden of proving beyond a
reasonable doubt that the accused had subjective foresight of death. This section is an anomaly as
regards the other murder provisions, especially in light of the common law presumption against
convicting a person of a true crime without proof of intent or recklessness. In a free and democratic
society that values the autonomy and free will of the individual, the stigma and punishment attaching to
murder should be reserved for those who choose intentionally to cause death or who choose to inflict
bodily harm knowing that it is likely to cause death. Requiring subjective foresight of death in the
context of murder maintains a proportionality between the stigma and punishment attached to a
murder conviction and the moral blameworthiness of the offender.
A special mental element with respect to death is necessary before a culpable homicide can be treated
as murder and gives rise to the moral blameworthiness that justifies the stigma and punishment
attaching to a murder conviction. It is a principle of fundamental justice that a conviction for murder
cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death.
Section 213 of theCode expressly eliminates the requirement for proof of subjective foresight and
therefore infringes ss. 7 and 11(d) of the Charter.
The objective of deterring the infliction of bodily harm during the commission of certain offences
because of the increased risk of death is sufficiently important to warrant overriding a Charter right. The
section, however, unduly impairs Charter rights because it is not necessary to convict of murder persons
who do not intend or foresee the death in order to achieve this objective.
Since subjective foresight of death must be proven beyond a reasonable doubt before a conviction for
murder can be sustained, the phrase "ought to know is likely to cause death" in s. 212(c) of the
Codeprobably infringes ss. 7 and 11(d) of the Charter. Section 212(c) would not likely be saved by s. 1.
Per Sopinka J.: The issue of subjective foresight of death should be addressed only if it is necessary to do
so in order to decide this case or if there is an overriding reason making it desirable to do so. Overbroad
statements of principle are inimical to the tradition of incremental development of the common law.
Here, ruling on the issue of subjective foresight was not necessary for the disposition of this case
because R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, applied. Since objective
foreseeability of death is a constitutional minimum for the definition of murder, the conclusion must
follow that s. 213(a) does not meet this constitutional minimum. This section places a restriction on s. 7
of the Charter by permitting a person to be convicted of murder without proof beyond a reasonable
doubt of objective foreseeability of death, or of an equivalent substitute requirement, and cannot be
saved by s. 1 for the reasons expressed by Lamer J., as he then was, in Vaillancourt and in the case at
bar.
Per L'Heureux-Dubé J. (dissenting): Section 213(a) does not offend the principles of fundamental justice
and accordingly does not violate ss. 7 and 11(d) of the Charter.
Neither the subjective foresight of death test nor the objective foreseeability test violate the principle of
fundamental justice. It has been decided in a number of cases, including R. v. Vaillancourt, that
subjective foresight of death is not the exclusive standard for murder and no other common law
jurisdiction has adopted that standard as the exclusive standard for murder. Significant policy
considerations favour upholding the existing legislation.
The invocation of s. 213(a) may not have been necessary in the instant case. The statement, "Lady, say
your prayers", whether it was actually said or thought, reflected a mental state of mind sufficient to
anchor a charge under s. 212(a) which is the only truly subjective foresight murder provision of the
Criminal Code.
The tests of subjective foresight and objective foreseeability are not static or distinct concepts and are
not mutually exclusive. In most instances, and certainly those delineated by s. 213(a), death will be both
objectively and subjectively foreseeable. The two are profoundly interrelated, especially when dealing
with a crime committed during the execution of a predicate crime. The validity of a provision should not
be evaluated on a strict "either-or" approach. A fastidious adherence to prescribed labels becomes
particularly obdurate when gauging the constitutionality of legislation.
Vaillancourt settled only two legal questions. First, it established a standard of objective foreseeability of
death for the crime of murder. Second, it only disposed of s. 213(d) of the Criminal Code.
The legislature, rather than simply eliminating any need to prove the essential element, may substitute
proof of a different element. This will be constitutionally valid only if, upon proof beyond reasonable
doubt of the substituted element, it would be unreasonable for the trier of fact not to be satisfied
beyond reasonable doubt of the existence of the essential element. Section 213(d) could not meet that
test; s. 213(a) does.
Section 213(a) is completely different in its historical development in its
consistency with the objective foreseeability of death test established in R. v. Vaillancourt and in the
parallel provisions adopted in other common law jurisdictions.
An exacting combination of factors must be proven, all beyond a reasonable doubt, before the accused
can be found guilty of murder under s. 213(a). The offender must: (1) cause the death by committing a
"culpable homicide"; (2) cause the death while committing or attempting to commit one of a limited
number of very serious, inherently dangerous and specific intent crimes; (3) intentionally inflict bodily
harm while committing one of these offences; (4) inflict the bodily harm purposefully in order to
perpetrate the underlying crime or to facilitate escape; and (5) the death must ensue from the bodily
harm intentionally inflicted.
No Charter violation of ss. 7 or 11(d) takes place if the test of objective foreseeability has been met. The
accused must specifically intend to, and actually commit the underlying offence, and must specifically
intend to, and actually inflict bodily harm. The law necessitates conclusive proof beyond a reasonable
doubt of factors that are collectively tantamount to an objective foreseeability requirement. The
inexorable conclusion is that the resulting death is objectively foreseeable. Neither the presumption of
innocence nor the other reference provisions which give content and scope to s. 7 are impugned.
How harm or injury is to be defined and what level of harm or injury is required are matters for
Parliament to consider and decide. Many factors enter into the determination of an appropriate penalty
for a particular offence; the degree of blameworthiness is only one. So long as Parliament does not act
irrationally or arbitrarily or in a manner otherwise inconsistent with the fundamental principles of
justice, its choice must be upheld.
Concentration on social "stigma" is overemphasized, and in the great majority of cases, completely
inapplicable. The "stigma" and punishment attached to murder need not be proportionate to the mens
reaalone. Rather they must correspond to the combination of the physical and mental elements that
collectively define a murder.
R. v. Creighton, [1993] 3 S.C.R. 3
Over an 18-hour period, the accused, a companion of his and the deceased shared a large quantity of
alcohol and cocaine at the deceased's apartment. With the deceased's consent, the accused injected a
quantity of cocaine into her forearm. She immediately began to convulse violently and appeared to
cease breathing. Subsequent expert testimony confirmed that, as a result of the injection, she had
experienced a cardiac arrest, and later asphyxiated on the contents of her stomach. Both the accused
and his companion attempted unsuccessfully to resuscitate the deceased. The companion indicated he
wanted to call for emergency assistance but the accused, by verbal intimidation, convinced him not to.
The accused placed the deceased, who was still convulsing, on her bed. He then proceeded to clean the
apartment of any possible fingerprints, and the two men then left. The companion returned
unaccompanied to the deceased's apartment six to seven hours later and called for emergency
assistance. The deceased was thereupon pronounced dead. The accused was charged with
manslaughter. Defence counsel conceded at trial that the injection into the deceased's body constituted
"trafficking" within the meaning of s. 4(1) of the Narcotic Control Act. The Crown argued that the
accused was guilty of manslaughter as the death was the direct consequence of an unlawful act,
contrary to s. 222(5)(a) of the Criminal Code. The accused was convicted, and the Court of Appeal
upheld the conviction. This appeal is to determine whether the common law definition of unlawful act
manslaughter contravenes s. 7of the Canadian Charter of Rights and Freedoms.
Held: The appeal should be dismissed.
Per L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: The test for the mens rea of unlawful act
manslaughter is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory,
in the context of a dangerous act. Foreseeability of the risk of death is not required. This test does not
violate the principles of fundamental justice under s. 7 of the Charter. The mens rea requirement of
foreseeability of harm is entirely appropriate to the stigma associated with the offence of manslaughter.
By the very act of calling the killing manslaughter, the law indicates that the killing is less blameworthy
than murder. Nor does the sentence attached to manslaughter require elevation of the degree of mens
reafor the offence. Finally, the principle that those causing harm intentionally must be punished more
severely than those causing harm unintentionally is strictly observed in the case of manslaughter. The
standard of mens rea required for manslaughter is thus appropriately tailored to the seriousness of the
offence.
Risk of bodily harm is not appreciably different from risk of death in the context of manslaughter: when
the risk of bodily harm is combined with the established rule that a wrongdoer must take his victim as
he finds him and the fact that death did in fact occur, the distinction disappears. Further, while the rule
that there must be symmetry between the mens rea and the prohibited consequences of the offence is
a general rule of criminal law, it is not a principle of fundamental justice. Just as it would offend
fundamental justice to punish a person who did not intend to kill for murder, so it would equally offend
common notions of justice to acquit a person who has killed another of manslaughter and find him
guilty instead of aggravated assault on the ground that death, as opposed to harm, was not foreseeable.
Fundamental justice does not require absolute symmetry between moral fault and the prohibited
consequences. Consequences, or the absence of consequences, can properly affect the seriousness with
which Parliament treats specified conduct. Policy considerations support a test for the mens rea of
manslaughter based on foreseeability of the risk of bodily injury, rather than death.
The objective test for criminal fault, which requires a "marked departure" from the standard of the
reasonable person, should not be extended to incorporate a standard of care which varies with the
background and predisposition of each accused. Considerations of principle and policy dictate the
maintenance of a single, uniform legal standard of care for such offences, subject to one exception:
incapacity to appreciate the nature of the risk which the activity in question entails. The principle that
the criminal law will not convict the morally innocent does not require consideration of personal factors
short of incapacity. The criminal law, while requiring mental fault as an element of a conviction, has
steadfastly rejected the idea that a person's personal characteristics can (short of incapacity) excuse the
person from meeting the standard of conduct imposed by the law. The fundamental premises upon
which the criminal law rests mandate that personal characteristics not directly relevant to an element of
the offence serve as excuses only at the point where they establish incapacity, whether the inability to
appreciate the nature and quality of one's conduct in the context of intentional crimes, or the incapacity
to appreciate the risk involved in one's conduct in the context of crimes of manslaughter or penal
negligence.
While the legal duty of the accused is not particularized by his or her personal characteristics short of
incapacity, it is particularized in application by the nature of the activity and the circumstances
surrounding the accused's failure to take the requisite care. The question is what the reasonably
prudent person would have done in all the circumstances. The legal standard of care is always the same
-- what a reasonable person would have done in all the circumstances. The de facto or applied standard
of care, however, may vary with the activity in question and the circumstances in the particular case.
In cases of penal negligence, the first question is whether the actus reus is established. This requires that
the negligence constitute a marked departure from the standards of the reasonable person in all the
circumstances of the case. The next question is whether the mens rea is established. As is the case with
crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally inferred
from the facts. The standard is that of the reasonable person in the circumstances of the accused. If a
prima facie case for actus reus and mens rea is made out,* it is necessary to ask a further question: did
the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further
question is answered in the affirmative, the necessary moral fault is established and the accused is
properly convicted. If not, the accused must be acquitted.
In this case a reasonable person in all the circumstances would have foreseen the risk of bodily harm. At
the very least, a person administering a dangerous drug like cocaine to another has a duty to inform
himself as to the precise risk the injection entails and to refrain from administering it unless reasonably
satisfied that there was no risk of harm. As that was not the case here, as the trial judge found, the
conviction was properly entered and should not be disturbed.
Per La Forest J.: Both at the constitutional level and in the interpretation of offences, the adoption of
subjective rather than objective mens rea was favoured. The subjective view of mens rea underlines that
no one will be punished for anything he or she did not intend or at least advert to, and its use supports
one's feeling that a morally innocent person will not be punished. The objective view, however qualified,
does not fully serve these ends, and loses most of the practical advantages sought to be attained by the
objective approach. Objective mens rea as to consequence should accordingly not be qualified in the
manner proposed by Lamer C.J. The position taken by McLachlin J. would also seem to be favoured by
this Court's decision in R. v. DeSousa. McLachlin J.'s view that foreseeability of the risk of bodily injury,
rather than death, is sufficient was also preferred.
Per Lamer C.J. and Sopinka, Iacobucci and Major JJ.: There is no general constitutional principle requiring
subjective foresight for criminal offences. There are, however, certain crimes where, because of the
special nature of the stigma attached to a conviction therefor or the available penalties, the principles of
fundamental justice require a mens rea reflecting the particular nature of that crime. In analysing social
stigma, the court must first look to the conduct being punished to determine if it is of sufficient gravity
to import significant moral opprobrium on the individual found guilty of engaging in such conduct. The
second branch of the stigma test concerns the moral blameworthiness not of the offence, but of the
offender found guilty of committing it. As a general proposition, more stigma will attach to those who
knowingly engage in wrongful conduct than to those who recklessly or inadvertently engage in the
same conduct.
Unlawful act manslaughter falls into the class of offences where a mental element in relation to the
consequence must be established, and the stigma attached to a conviction for culpable homicide is
significant enough to require, at a minimum, objective foresight of the risk of death in order for the
offence to comply with s. 7 of the Charter. Section 222(5)(a) of the Code is open to the interpretation
that objective foreseeability of death is required by virtue of the section, an interpretation that would
render it constitutional. In accordance with the requirements of s. 7 of the Charter, the proper
interpretation of unlawful act manslaughter under s. 222(5)(a) of the Code requires the Crown to prove
beyond reasonable doubt: (a) that the accused has committed an unlawful act which caused the death
of the deceased; (b) that the unlawful act must be one that is objectively dangerous (i.e., in the sense
that a reasonable person would realize that it gives rise to a risk of harm); (c) that the fault requirement
of the predicate offence, which cannot extend to offences of absolute liability, was in existence and (d)
that a reasonable person in the circumstances of the accused would foresee the unlawful act giving rise
to a risk of death.
In determining whether a reasonable person in the circumstances of the accused would have foreseen
the risk of death arising from the unlawful act, the trier of fact must pay particular attention to any
human frailties which might have rendered the accused incapable of having foreseen what the
reasonable person would have foreseen. Once the Crown has established beyond a reasonable doubt
that this reasonable person in the context of the offence would have foreseen the risk of death created
by his or her conduct, the focus of the investigation must shift to the question of whether a reasonable
person in the position of the accused would have been capable of foreseeing such a risk.
Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must ask
the threshold question of whether a reasonable person in the same circumstances would have been
aware that the likely consequences of his or her unlawful conduct would create the risk of death. If the
answer is no, then the accused must be acquitted. If the answer is yes, however, the trier must then ask
whether the accused was unaware (a) because he or she did not turn his or her mind to the
consequences of the conduct and thus to the risk of death likely to result, or (b) because he or she
lacked the capacity to turn his or her mind to the consequences of the conduct and thus to the risk of
death likely to result, due to human frailties. If the answer is (a), the accused must be convicted, since
the criminal law cannot allow the absence of actual awareness to be an excuse to criminal liability. If the
answer is (b), the trier must ask whether in the context of the particular offence, the reasonable person
with the capacities of the accused would have made him- or herself aware of the likely consequences of
the unlawful conduct and the resulting risk of death. In this third and final stage of the inquiry, the
accused's behaviour is still measured against the standard of the reasonable person, but the reasonable
person is constructed to account for the accused's particular capacities and resulting inability to
perceive and address certain risks.
Human frailties encompass personal characteristics habitually affecting an accused's awareness of the
circumstances which create risk. Such characteristics must be relevant to the ability to perceive the
particular risk. In addition, the relevant characteristics must be traits which the accused cannot control
or otherwise manage in the circumstances. Two central criteria are the gravity of the offence and the
inherent purposefulness of the conduct involved.
In this case the trial judge concluded that the accused foresaw the risk of death or serious bodily harm in
injecting the deceased with cocaine, given the lethal nature of the narcotic in question and the fashion
in which it was administered, the familiarity of the accused with the drug and its dangerous properties.
The trial judge erred in adopting the standard of objective foreseeability with respect to unlawful act
manslaughter contained in an earlier line of cases which referred to "the risk of some harm", but since
he found that the accused actually did appreciate the risk of death, it is clear that had he instructed
himself properly, he would necessarily have arrived at the same verdict. There is therefore no
substantial wrong or miscarriage of justice which would require a new trial.
R v J.F 2008 SCC 60
M was four years old when he died in his foster home from multiple blunt traumas to his head. M’s body
was extensively bruised. M’s foster mother confessed to beating M and pleaded guilty to manslaughter.
The accused, M’s foster father, was charged with manslaughter by criminal negligence and
manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count,
but acquitted on the second. The accused appealed his conviction. A majority of the Court of Appeal
overturned the conviction and ordered a new trial on the charge of manslaughter by criminal negligence
on the basis that the verdicts were inconsistent. The Crown appealed as of right on the issue of
inconsistent verdicts. The accused cross-appealed the order for a new trial, contending that an acquittal
ought to have been entered.
Held (Deschamps J. dissenting): The appeal should be dismissed and the cross-appeal should be allowed.
The order setting aside the conviction on the charge of manslaughter by criminal negligence should be
affirmed and an acquittal entered.
Per McLachlin C.J. and Binnie, Fish, Abella, Charron and Rothstein JJ.: The verdicts rendered at trial are
inconsistent and the conviction of manslaughter by criminal negligence must be quashed. There was no
reasonable basis upon which to convict and acquit the accused at the same trial, of the same offence
committed in the same way against the same victim. The accused was tried on two counts of
manslaughter by omission. Though each count alleged different “underlying” or “predicate” offences,
the accused’s guilt in respect of both counts was made by the Crown to depend on exactly the same
failure to perform exactly the same duty: the duty to protect his foster child from foreseeable harm
from his spouse. The actus reus, the prosecution theory, and essentially the fault element are common
to both offences. The count of failure to provide the necessaries of life required proof of a marked
departure from the conduct of a reasonably prudent parent in circumstances where it was objectively
foreseeable that the omission would lead to a risk of danger to M’s life, or a risk of permanent
endangerment to his health. Criminal negligence, the more serious offence, required proof that the
same omission represented a marked and substantial departure from the conduct of a reasonably
prudent parent in circumstances where the accused either recognized and ran an obvious and serious
risk to M’s life or gave no thought to that risk. The conviction can only be supported upon a finding that
the accused failed in his duty to protect M, the factual foundation and the gravamen of both counts. The
verdicts signify that a lesser degree of fault was not established whereas a greater degree of fault was
proven beyond a reasonable doubt. Even if the fault requirements were treated as equivalent, the
verdicts are incomprehensible. [1 -4] [8-9] [17] [37] [38] [40]
The verdicts cannot be reconciled retrospectively based on arguments that the offences differ or the
trial judge misdirected the jury. Abstract differences between the offences formed no part of the trial
and are of no relevance on the facts of the case. Nor is it likely that the jury was misled by the trial
judge’s instructions with respect to failure to provide the necessaries of life. Even if the intructions were
erroneous, improper instructions do not make improper verdicts proper, nor inconsistent verdicts
consistent. [5] [18] [23-24]
Where criminal negligence and failure to provide the necessaries of life are alleged, the jury first should
consider whether the accused failed a duty to provide the necessaries of life. If so, the jury is bound to
find the accused guilty of that offence. The jury then should consider whether the accused, in failing to
provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If
so, the jury is bound to find the accused guilty of criminal negligence. If not, the jury could still find the
accused guilty of failure to provide the necessaries of life, but not of criminal negligence. [37]
This is not an appropriate case in which to order a new trial. Rather, an acquittal should be entered on
the count of manslaughter by criminal negligence. Since, in this case, the Crown did not appeal the
accused’s acquittal on the count of manslaughter by failing to provide the necessaries of life, a new trial
would deprive the accused of the benefit of his acquittal and expose him to a finding that he did in fact
commit the offence of which he was acquitted. [39] [41]
Per Deschamps J. (dissenting): The accused has not met the onus of proving that the verdicts were
inconsistent, and the conviction on the charge of manslaughter by criminal negligence should be
restored. When an appellant pleads that two verdicts are inconsistent, a court of appeal must determine
whether the verdict appealed from is unreasonable because it tends to indicate that the jury must have
been confused as to the evidence or must have reached some sort of unjustifiable compromise. No such
demonstration was made in this case. [43] [61] [92]
The essential elements of the offences differ. Both are negligence-based offences for which fault
requires proof of a failure to direct the mind to a risk of harm which the reasonable parent would have
appreciated. However, the fault element of each offence is in large part premised on the actus reus of
the offence and the actus reus of each offence differ. The actus reus of failing to provide the necessaries
of life required proof that the accused was under a legal duty to provide the necessaries of life to M,
that he failed, viewed objectively, to perform the duty, and that this failure, assessed objectively,
endangered M’s life or caused or was likely to cause M’s health to be endangered permanently. The
actus reus of criminal negligence required proof that the accused was under a legal duty to do
something, that he failed, viewed objectively, to perform his duty, and that in failing to perform his duty,
he showed, assessed objectively, a wanton or reckless disregard for the lives or safety of other persons.
While the two offences may involve the same legal duty, each offence sets out a different type of risk of
harm and the trial judge’s instructions to the jury were clear on that point. The jury was instructed on
both counts to find a marked and substantial departure from what a reasonable parent would do in the
circumstances. For the offence of failing to provide the necessaries of life, the jury was further
instructed to consider whether the accused endangered M’s life or caused or likely caused his health to
be endangered permanently. This harm was described as unique to the offence of failing to provide the
necessaries of life. The charge to the jury set out the essential elements of each offence in such a way
that the jury did not answer the same question when determining each verdict. [64-66] [68-69] [73-75]
[91]
It was open to the jury to find that the accused failed to direct his mind to the health or safety of M, but
not that M’s health was endangered permanently. The time line of M’s bruising was a crucial factual
issue. A finding that the accused failed to direct his mind to the health or safety of M did not necessarily
imply that M’s health was permanently endangered. The jury was clearly instructed that the reasonable
doubt standard applied to the harm unique to failing to provide the necessaries of life and would have
understood that the two counts had to be distinguished. The verdicts are supportable on the
instructions and the theory of the evidence. [77] [81] [84] [86-88]
Even if the verdict was unreasonable in this case, the just order would have been a new trial on both
counts. An appeal from the acquittal was not necessary to order a new trial on both counts in this case
because s. 686(8) of the Criminal Code empowers an appeal court to make any order that justice
requires, including an order for a new trial where the court finds defects in the instructions on the
charge that led to an acquittal. [95]
R v. Javanmardi 2019 SCC 54
An experienced naturopath wasn’t guilty when one of her patients died after treatment, the
Supreme Court has ruled. Ms. Javanmardi worked as a naturopath in Quebec for over 20 years. She had
a degree in science. She also had a doctorate and diploma in naturopathic medicine. Her education
included classes and clinical training about intravenous injections. She gave these injections to
thousands of patients while working as a naturopath. While naturopaths are allowed to give injections in
other provinces, they aren’t allowed to in Quebec.
In 2008, Mr. Matern visited Ms. Javanmardi’s clinic. He was 84 and had heart disease. He was frustrated
with the treatment he got at regular medical clinics and hoped naturopathy would help. Ms. Javanmardi
recommended an intravenous injection. Mr. Matern asked for one right away. It turned out that one of
the vials Ms. Javanmardi used for the injection was contaminated. Mr. Matern died later that night. Two
other patients got injections from the same vial that day without any problems.
Ms. Javanmardi was charged with two crimes. The first was “unlawful act manslaughter.” This means
doing something illegal that causes someone to die. The second was “criminal negligence causing
death.” This means doing something that a “reasonable person” wouldn’t have done that causes
someone to die. Both charges were based on the fact that Ms. Javanmardi gave Mr. Matern an injection.
To be guilty of a crime, a person must do something that is against the (criminal) law. But something has
to make them responsible for what they’ve done. For many crimes, responsibility is based on meaning
to do something wrong. But for some crimes, a person can be responsible even if they don’t mean to do
anything wrong. In these cases, a judge will compare what the person did to what a “reasonable person”
would have done in the same situation. If the actions of the accused person and the “reasonable
person” are very different, the judge can decide the accused person didn’t take proper care.
The trial judge found Ms. Javanmardi not guilty on both charges. She said Ms. Javanmardi had the
necessary skills and experience to give Mr. Matern the injection. She said Ms. Javanmardi followed
proper safety procedures. She bought her nutrients from a respected pharmacy. She chose proper
nutrients for the injection.
She also said that a reasonable person in Ms. Javanmardi’s position wouldn’t have thought that the
injection would hurt Mr. Matern. She said Ms. Javanmardi’s actions weren’t a “marked departure” (very
different) from what a reasonable person with her skills and training would have done. The Court of
Appeal disagreed. It found Ms. Javanmardi guilty of unlawful act manslaughter, but said there should be
a new trial on criminal negligence.
The majority at the Supreme Court said the trial judge’s ruling should stand. This meant Ms. Javanmardi
was not guilty of both crimes. It is the trial judge’s job to weigh the evidence and make conclusions
about the facts.
The majority said the Court of Appeal was wrong to re-weigh the evidence and replace the trial judge’s
factual conclusions with its own. The majority noted the trial judge was right to consider Ms.
Javanmardi’s extensive training and experience as a naturopath when deciding what was reasonable in
the circumstances. This case came to the Supreme Court as an appeal “as of right.” That means there is
an automatic right to appeal. The person doesn’t need the Court’s permission. The right is automatic in
criminal cases when a Court of Appeal replaces a not-guilty verdict with a guilty verdict, as happened
here.
Regulatory Offences
R v Sault Ste. Marie [1978] 2 SCR 1299
The respondent City entered into an agreement with a company for the disposal of all refuse originating
in the City. The company was to furnish a site and adequate labour, material and equipment. The site
selected bordered Cannon Creek which runs into Root River. The method of disposal adopted was the
“area” or “continuous slope” method of sanitary land fill, whereby garbage is compacted in layers which
are covered each day by natural sand or gravel. The side had previously been covered with a number of
fresh water springs that flowed into the creek. Material was dumped to submerge these springs and the
garbage and wastes dumped over this material, ultimately to within twenty feet of the creek. Pollution
resulted and the company was convicted of a breach of s. 32(1) of The Ontario Water Resources
Commission Act. The City also charged under that section, which provides that every municipality or
person that discharges, or deposits, or causes, or permits the discharge or deposit of any material of any
kind into any water course, or on any shore or bank thereof is guilty of an offence. In dismissing the
charge against the City the trial judge found that the City had nothing to do with the actual operations,
that the company was an independent contractor and that its employees were not employees of the
City. On appeal by trial de novo the judge found that the offence was one of strict liability and he
convicted. The Divisional Court set aside the charge as duplicitous and also held that it required mens
rea with respect to causing or permitting the discharge. The Court of Appeal, while rejecting the ground
of duplicity as a basis to quash, as there had been no challenge to the information at trial, agreed that
mens rea was required and ordered a new trial.
Held: The appeal and cross-appeal should be dismissed.
The primary test for duplicity should be the practical one based on the only valid justification for the rule
against duplicity, the requirement that the accused know the case he has to meet and be not prejudiced
in the preparation of his defence by ambiguity in the charge. In this case there was nothing ambiguous
or uncertain in the charge. Section 32(1) is concerned with only one matter, pollution, and only one
generic offence was charged, the essence of which was “polluting”. As the charge was not duplicitous it
was not necessary to consider whether a duplicity objection can be raised for the first time on appeal.
Regarding mens rea the distinction between the true criminal offence and the public welfare offence is
of prime importance. Where the offence is criminal mens rea must be established and mere negligence
is excluded from the concept of the mental element required for conviction. In sharp contrast “absolute
liability” entails conviction on mere proof of the prohibited act without any relevant mental element.
The correct approach in public welfare offences is to relieve the Crown of the burden of proving mens
rea, having regard to Pierce Fisheries, 1970 CanLII 178 (SCC), [1971] S.C.R. 5, and to the virtual
impossibility in most regulatory cases of proving wrongful intention, and also, in rejecting absolute
liability, admitting the defence of reasonable care. This leaves it open to the defendant to prove that all
due care has been taken. Thus while the prosecution must prove beyond reasonable doubt that the
defendant committed the prohibited act, the defendant need only establish on the balance of
probabilities his defence of reasonable care. Three categories of offences are therefore now recognised
(first) offences in which mens rea must be established, (second) offences of “strict liability” in which
mens rea need not be established but where the defence of reasonable belief in a mistaken set of facts
or the defence of reasonable care is available, and (third) offences of “absolute liability” where it is not
open to the accused to exculpate himself by showing that he was free of fault. Offences which are
criminal are in the first category. Public welfare offences are prima facie in the second category.
Absolute liability offences would arise where the legislature has made it clear that guilt would follow on
mere proof of the proscribed act.
Section 32(1) being a provincial enactment does not create an offence which is criminal in the true
sense; and further the words “cause” and “permit” which are frequently found in public welfare statutes
do not denote clearly either full mens rea or absolute liability and therefore fit much better into an
offence of the strict liability class. As the City did not lead evidence directed to a defence of due
diligence and the trial judge did not address himself to the availability of such a defence there should be
a new trial to determine whether the City was without fault.
R v Raham 2010 ONCA 206
Charter of Rights and Freedoms -- Fundamental justice -- Accused arguing that stunt driving by speeding
being absolute liability offence violating her s. 7 rights under Charter as punishable by imprisonment -Presumption in favour of constitutionality requiring offence to be interpreted as strict liability where
possible to construe as absolute or strict liability -- Offence of stunt driving by speeding one of strict
liability -- Offence not violating s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s.
7 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 172 -- O. Reg. 455/07, s. 3.
Criminal law -- Provincial offences -- Stunt driving -- Section 172 of Highway Traffic Act creating separate
offence of stunt driving -- Stunt driving not confined to driving in race or contest and encompassing
offence of stunt driving by speeding more than 50 kph over limit one of strict liability -- Offence not
violating s. 7 of Charter -- Due diligence defence could arise and speeding simpliciter included offence in
stunt driving -- New trial ordered to permit accused opportunity to raise due diligence defence -Canadian Charter of Rights and Freedoms, s. 7 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 172 -- O. Reg.
455/07, s. 3.
Section 172 of the Highway Traffic Act creates the offence of stunt driving, which is punishable by a fine,
a term of imprisonment or both. "Stunt" is defined in s. 3 of O. Reg. 455/07 as including driving a motor
vehicle "at a rate of speed that is 50 kilometres per hour or more over the speed limit" (para. 7). The
defendant was clocked at 131 kph in an 80 kph zone as she was passing a truck and was charged with
stunt driving by speeding. The defendant's argument that the offence is one of absolute liability for
which a term of imprisonment is a possible punishment, thus violating her rights under s. 7 of the
Canadian Charter of Rights and Freedoms, was rejected at trial but was successful on her appeal from
conviction. The appeal judge found that the offence is unconstitutional and acquitted the defendant.
The Crown appealed.
Held, the appeal should be allowed.
Section 172 of the HTA does not create two offences (driving a motor vehicle on a highway in a race or
contest while performing a stunt; and driving a motor vehicle on a highway in a race or contest on a bet
or wager). Rather, it creates three offences: driving a motor vehicle on a highway in a race or contest;
driving a motor vehicle on a highway while performing a stunt; and driving a motor vehicle on a highway
on a bet or wager. Because of the presumption of constitutionality, it will take very clear language to
create an absolute liability offence that is potentially punishable by incarceration. The offence of stunt
driving by speeding is one of strict liability. The due diligence defence is not limited to persons who
believed they were not speeding. A due diligence defence to a strict liability charge amounts to a claim
that the defendant took all reasonable care to avoid committing the offence with which he or she is
charged. It cannot be said that driving over the speed limit, regardless of how much over the speed limit,
will necessarily preclude a [page242] finding that an individual took all reasonable steps to avoid driving
at 50 kph or more over the reasonable limit. While it is true that the prohibited conduct in stunt driving
by speeding is identical to the conduct prohibited by the offence of speeding simpliciter created by s.
128 of the HTA, there is nothing illogical in treating the former as a st rict liability offence and the latter
as an absolute liability offence. The legislature has chosen, through s. 172, to up the penal stakes for
speeding at 50 kph or more over the speed limit by including the risk of incarceration. In doing so, it
must be taken, in the absence of clear language excluding the defence, to have accepted the availability
of the due diligence defence. Clear exclusionary language is not found in s. 172 of the HTA or s. 3(7) of
the Regulation. A new trial is ordered as the accused was not given an opportunity to raise a due
diligence defence.
APPEAL from the judgment Griffin J., [2009] O.J. No. 3669, 2009 ONCJ 403 allowing an appeal from a
conviction for stunt driving by speeding.
Aiding and Abetting
R v Dunlop and Sylvester [1979] 2 SCR 881
The appellants were twice tried and convicted on a charge of rape. It was alleged that they unlawfully
had sexual intercourse with the complainant without her consent. They were sentenced to serve six
years in penitentiary. In an appeal taken following the second trial, the Manitoba Court of Appeal found
error on the part of the trial judge, but by a three to two majority sustained the conviction by applying s.
613(1)(b) (iii) of the Code. From that judgment an appeal was taken to this Court.
A gang rape of the complainant occurred late at night in an isolated area, the site of a former dump,
where members of a motorcycle club were having a party. Some eighteen men had intercourse with the
complainant while she was being held by two other members of the group. She identified the accused as
two of the men who attacked her. The accused denied the charge. They testified that they had attended
a meeting of the club at the dump earlier in the evening in question, and later were present in a
beverage room where the complainant and a friend were spending some time. Still later, the accused
delivered a quantity of beer at the dump. Dunlop saw a female having intercourse; with whom, he could
not say, but he believed the person to be a member of the motorcycle club. After three minutes he and
his co-accused left.
The issue for the jury was a simple one—did the two accused have intercourse with the complainant?
She said that they had, and they denied it. The judge chose,however, to instruct the jury upon parties to
an offence under s. 21 of the Code, and it was in this respect that the convictions were challenged.
Held (Martland, Ritchie and Pigeon JJ. dissenting): The appeals should be allowed.
Per Laskin C.J. and Spence, Dickson and Estey JJ.: It was common ground that the trial judge erred in
charging the jury on s. 21(2) of the Code, common intention, when there was no evidence that the
appellants had formed any common intention with those involved in the gang rape to commit rape upon
the complainant.
Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by
other factors, such as prior knowledge of the principal offender's intention to commit the offence or
attendance for the purpose of encouragement. In this case there was no evidence that while the crime
was being committed either of the accused rendered aid, assistance, or encouragement to the rape of
the complainant.
There was no evidence of any positive act or omission to facilitate the unlawful purpose. One could infer
that the two accused knew that a party was to be held, and that their presence at the dump was not
accidental or in the nature of casual passers-by, but that was not sufficient. A person cannot properly be
convicted of aiding and abetting in the commission of acts which he does not know may be or are
intended. One must be able to infer that the accused had prior knowledge that an offence of the type
committed was planned, i.e. that their presence was with knowledge of the intended rape.
The evidence failed to disclose any facts as distinguished from surmise or suspicion, upon which a jury
could conclude beyond reasonable doubt that the accused had assumed a role which would qualify
them as aiders and abettors under s. 21(1) of the Code.
In these circumstances, the trial judge erred in charging the jury on the alternative bases of (i) principal
offender and (ii) aider and abettor.
The error, unfortunately, was compounded when the jury, which had retired at 3:15 p.m., returned at
5:40 with the following question: "If the accused were aware of a rape taking place in their presence and
did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice
to the act under law?"
That question should have been answered in one word—"No." However, the judge, who initially
intended to respond with a "No" answer, was persuaded, during argument, to the point of view,
advanced for the first time on behalf of the Crown, that the accused might be guilty as parties to the
offence under s. 21 of the Code.
The recharge was in error in three respects: (i) it was not responsive to the question asked; (ii) on the
facts of the case, it might leave the jury with the impression that the accused could be parties to the
offence if they knew that an offence was being committed and failed to do anything to hinder or
prevent it; and (iii) the jury received no help in applying the instruction given; no act or omission was
identified as providing a possible factual underpinning to the operation of s. 21.
The difficulty now faced by this Court was that it did not know, and would never know, whether the jury
found the appellants guilty because they had had intercourse with the complainant, or by reason of the
operation of subss. (1) or (2) of s. 21 of the Code. The Court did know from the question of the jury, and
its timing, that after two hours and twenty-five minutes of deliberation the jury had not accepted the
evidence of the complainant as to direct participation by the appellants. Fifteen minutes after resuming
deliberation, following the recharge, the guilty verdict was returned.
This was not an appropriate case for the application of s. 613(1)(b)(iii). One could not say that the
verdict would have been the same in the absence of error. In the circumstances a verdict of acquittal
should be directed, rather than have the applicants undergo a third trial.
Per Beetz and Pratte JJ.: With respect to subs. 21(2), there was agreement in the Court of Appeal—and it
was not challenged here—that the trial judge had erred in charging the jury in, that respect. The
difference in the Court of Appeal was solely as to the application of subpara. 613(1)(b)(iii) to such error.
This was not a dissent on a question of law.
As to subs. 21(1), for the reasons given by Dickson J., the reply of the trial judge to the question of the
jury was inadequate and amounted to a misdirection in law. One could not say, in the light of the
evidence, that this error on the part of the trial judge caused the appellants no substantial wrong or
miscarriage of justice. Therefore, [Page 884] subpara. 613(1)(b)(iii) should not be invoked in respect to
such error.
Per Martland, Ritchie and Pigeon JJ., dissenting: The third ground of dissent in the Court of Appeal did
not constitute a dissent on a question of law. Paragraph (iii) of subs. 613(1)(6) gives to a court of appeal
a discretionary power to dismiss an appeal from conviction, even where there has been a wrong
decision by a trial court on a question of law if there has been no substantial wrong or miscarriage of
justice resulting from that error. A disagreement by a dissenting judge regarding the exercise of that
discretion is not a dissent on a question of law.
The first ground of dissent was that there was no evidence upon which the appellants could have been
found to be parties to the offence under subs. 21(2) of the Code. Matas J.A., who delivered the main
reasons of the majority, and with whom Freedman C.J.M. concurred, did not disagree on this point with
the reasons of Hall J.A., who delivered the reasons of the minority. As stated by Matas J.A., with respect
to the grounds of appeal on common intention, there was merit in the argument that the comments of
the trial judge were inappropriate in the circumstances of the case. But it was apparent from the juror's
question that the members were not troubled by the concept of common intention. In any event, no
substantial wrong or miscarriage of justice occurred.
With respect to the second ground of dissent, it was noted that whereas ground one referred to "no evidence," which is an issue of law, the second ground referred to "insufficient evidence in law" to make
the appellants parties to the offence. Sufficiency of evidence is a matter for the jury. Dissent on this
point was not a dissent on a question of law.
However, as the point had been thoroughly canvassed in argument, it was considered. The gist of the
reasons of Hall J.A. was found in his statement that the presence of the accused at the dump, and their
passive observation of a girl having sexual intercourse was not sufficient in law to make them parties to
an offence under s. 21(1) of the Code. But the statement that the appellants were merely present at the
dump and were passive observers of an act of sexual intercourse had to be based upon the evidence of
the appellants. It was for the jury to decide whether or not to accept that evidence. The statement
overlooked entirely other evidence on which the jury could conclude that the appellants had aided and
abetted the commission of the offence. The jury had been properly instructed as to what was necessary
in order to establish aiding and abetting, The sufficiency of that evidence was solely a matter for the
determination of the jury and was not a matter to be decided by the Court of Appeal.
As to the criticism of the trial judge for his response to the question asked by the jury, the reasons of
Matas J.A. for his view that the Crown had satisfied the onus of showing that the trial judge did not err
in either the instructions or the answer on the question of the applicability of s. 21(1) were adopted.
R v Logan [1990] 2 SCR 731
Respondents were convicted of attempted murder. During a robbery -- one of a series -- a person was
shot and severely injured. Neither respondent did the shooting. Respondent Johnson, however,
admitted to being one of the robbers but stated that he had no intention to shoot and that there had
been no discussion concerning the use of guns. Respondent Logan had boasted of being involved in
planning the robberies. The trial judge instructed the jury that the Crown had to establish beyond a
reasonable doubt that the accused knew or ought to have known that someone would probably shoot
with the intention of killing. The Court of Appeal allowed appeals with respect to the convictions for
attempted murder and substituted convictions for robbery. At issue here was (1) whether s. 21(2) of the
Criminal Code infringed ss. 7 and/or 11(d) of the Charter, and (2), if so, whether it was justified under s
1.
Held: The appeal should be dismissed.
Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: R. v. Vaillancourt cannot be construed
as saying that, as a general proposition, Parliament cannot ever enact provisions requiring different
levels of guilt for principal offenders and parties. As a matter of policy, the proposition seems more
equitable than not but should not be characterized as a principle of fundamental justice.
There are a few offences with respect to which the operation of the objective component of s. 21(2) will
restrict the rights of an accused under s. 7. If an offence is one of the few for which s. 7 requires a
minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction
of a party to that offence on the basis of a degree of mens rea below the constitutionally required
minimum.
The question whether a party to an offence had the requisite mens rea to found a conviction pursuant
to s. 21(2) must be answered in two steps. Firstly, is there a minimum degree of mens rea which is
required as a principle of fundamental justice before one can be convicted as a principal for this
particular offence? Secondly, if the principles of fundamental justice do require a certain minimum
degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is
constitutionally required to convict a party to that offence as well.
The requisite mens rea for a murder conviction logically must be the same for a conviction of attempted
murder. However, logic is not sufficient reason to label something a "constitutional requirement".
The sentencing range available to the judge is not conclusive of the level of mens rea constitutionally
required. Instead, the crucial consideration is whether there is a continuing serious social stigma which
will be imposed on the accused upon conviction.
The mens rea for attempted murder cannot, without restricting s. 7 of the Charter, require less than
subjective foresight of the accused -- the mental element required of a murderer under s. 212(a)(i).
Parliament could well extend our definition of attempted murder to include the unsuccessful murderers
of s. 212(a)(ii) but it cannot go further and include objective foreseeability as being sufficient for a
conviction without restricting s. 7 of the Charter.
When the principles of fundamental justice require subjective foresight in order to convict a principal of
attempted murder, that same minimum degree of mens rea is constitutionally required to convict a
party to the offence of attempted murder. Any conviction for attempted murder, whether of the
principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional
requirement. To the extent that s. 21(2) would allow for the conviction of a party to the offence of
attempted murder on the basis of objective foreseeability, its operation restricts s. 7 of the Charter.
Given that a minimum degree of mens rea (subjective foresight) is constitutionally required to convict a
principal of the offence of attempted murder, the restriction of s. 7 in this case is in convicting, through
the operation of s. 21(2), a non-principal who does not have that same degree of mens rea. It is not the
legislative objective of s. 21(2) as a whole which this Court must scrutinize, but only the legislative
objective of that portion of s. 21(2) that restricts the accused's rights under s. 7 of the Charter in issue in
the present case. This differential treatment of parties and principals charged with attempted murder is
the restriction which must undergo the s. 1 test.
In this case, the objective of such a differentiation is to deter joint criminal enterprises and to encourage
persons who do participate to ensure that their accomplices do not commit offences beyond the
planned unlawful purpose. This is a legislative objective of sufficient importance to justify overriding the
rights of an Accused under s. 7 of the Charter.
The objective of the legislation is that this possibility of conviction through s. 21(2) will make parties
more responsible for the actions of their accomplices. Clearly, then, there is a rational connection
between the restriction and the legislative objective. It, nevertheless, does not satisfy the
proportionality test because it unduly impairs an accused's rights under s. 7 of the Charter.
Because of the importance of the legislative purpose, the objective component of s. 21(2) can be
justified with respect to most offences. However, with respect to the few offences for which the
Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs
the legislative objective which, therefore, cannot be justified under s. 1.
The words "or ought to have known" are inoperative when considering under s. 21(2) whether a person
is a party to any offence where it is a constitutional requirement for a conviction that foresight of the
consequences be subjective, which is the case for attempted murder. Once these words are deleted, the
remaining section requires, in the context of attempted murder, that the party to the common venture
know that it is probable that his accomplice would do something with the intent to kill in carrying out
the common purpose.
Per L'Heureux-Dubé J.: The factors which, according to the majority, operated to render the objective
foreseeability standard unconstitutional in R. v. Martineau are not importable to the crime of attempted
murder. A conviction for attempted murder requires proof of the specific intent to kill. No lesser mens
reawill suffice. Parliament has decided to create a distinct offence for attempted murder, recognizing
that the results of criminal acts are not to be ignored. The death of a victim renders a standard of
objective foreseeability constitutionally permissible. When the attempt does not result in death, logic as
well as principles of fundamental justice enshrined in the Charter dictate that the specific intent to have
committed the attempted murder must be conclusively proven. When mere attempts are at issue, mens
rea assumes a dominant role. The rationale for invoking a test of subjective foresight for attempted
murder does not stem from the crime's relationship to the crime of completed murder, but rather from
its connection to crimes of attempt generally. The motivation for requiring subjective foresight for
attempt crimes radiates from the primacy of the mens rea component, not from any potential penalties
or social stigma that might attend conviction for the completed offence.
For mere attempts, no other unlawful act is necessary. Intent is what is being punished by s. 222, not
the act itself. The mens rea criteria for the full offence of murder and mere attempt are necessarily
different.
The words "ought to know" are not to be read out of the section in all cases. This measure of objective
foreseeability is certainly appropriate when the mens rea of the principal can be ascertained according
to an objective standard as well.
No killing took place here. The crime was one for which the specific intent of the principal had to be
shown. In those instances where the principal is held to a mens rea standard of subjective foresight, the
party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability
standard. In this regard the actus reus component of the offence cannot be ignored. Policy
considerations addressed in Martineau justify treating completed killings more harshly than attempted
ones. If someone who attempts to kill cannot be convicted unless the Crown proves that he had the
specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely
shows that the attempted murder was objectively foreseeable.
Per Sopinka J.: There is no principle of fundamental justice whereby in all cases the level of mens
reapossessed by the principal offender must also be possessed by the party. The correct constitutional
principle is that if social stigma and other factors require the principal offender to possess a
constitutional minimum mind state in order to be convicted of an offence, then a party under s. 21(2)
must possess that same minimum mind state. If it is assumed that murder requires subjective foresight
of death, it follows that subjective foresight is a constitutional requirement for attempted murder.
R v Gauthier 2013 SCC 32
G was charged with being a party, together with her spouse, L, to the murder of their three children at
the dawn of the year 2009. According to the Crown’s theory, G was a party to the murder in planning it
as part of a murder-suicide pact and in supplying the murder weapon. She did not act to prevent the
children from being poisoned with drinks served by her spouse, which contained Gravol and oxazepam.
Thus, she aided L to kill the children. At her jury trial, G submitted in her defence that she had not
bought the medication to poison her children, that she was in a dissociative state on December 31, 2008
when she wrote some incriminating documents, and that this state meant she could not have formed
the specific intent to commit the murders. In the alternative, should her argument based on the absence
of mens rea be rejected, she claimed to have abandoned the common purpose of killing the children
and to have clearly communicated her intention to do so to her spouse. The jury found G guilty of the
first degree murder of her three children. The Court of Appeal upheld the guilty verdict, concluding that
the trial judge had not erred in refusing to put the defence of abandonment to the jury, since it was
incompatible with the defence’s principal theory.
Held (Fish J. dissenting): The appeal should be dismissed.
Per LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.: There is no cardinal rule against
putting to a jury an alternative defence that is at first glance incompatible with the primary defence. The
issue is not whether such a defence is compatible or incompatible with the primary defence, but
whether it meets the air of reality test. In any case, the trial judge must determine whether the
alternative defence has a sufficient factual foundation, that is, whether a properly instructed jury acting
reasonably could accept the defence if it believed the evidence to be true.
The defence of abandonment must be submitted to the jury only if there is evidence in the record that is
reasonably capable of supporting the necessary inferences in respect of each of the elements of this
defence. The defence can be raised by an accused who is a party to an offence on the basis that he or
she did or omitted to do anything for the purpose of aiding any person to commit the offence, or
abetted any person in committing it (s. 21(1) of the Criminal Code), or on the basis that he or she had
formed with other persons an intention to carry out an unlawful purpose and to assist each other
therein and that an offence was committed in carrying out the common purpose (s. 21(2) of the Criminal
Code), if the evidence shows (1) that there was an intention to abandon or withdraw from the unlawful
purpose; (2) that there was timely communication of this abandonment or withdrawal from the person
in question to those who wished to continue; (3) that the communication served unequivocal notice
upon those who wished to continue; and (4) that the accused took, in a manner proportional to his or
her participation in the commission of the planned offence, reasonable steps in the circumstances either
to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission
of the offence. There will be circumstances in which timely and unequivocal communication by the
accused of his or her intention to abandon the unlawful purpose will be considered sufficient to
neutralize the effects of his or her participation in the crime. But there will be other circumstances,
primarily where a person has aided in the commission of the offence, in which it is hard to see how
timely communication to the principal offender of the person’s intention to withdraw from the unlawful
purpose will on its own be considered reasonable and sufficient.
In this case, G’s evidence that she communicated her withdrawal from the deadly plan and that her
communication was timely and unequivocal is insufficient. The only relevant passage from her
testimony is one in which she used the plural pronoun “we” (using the French pronoun “ on” as an
equivalent for the plural “nous”) in saying “I told Marc we couldn’t [do that]”. But even if it were
assumed that this evidence would be sufficient for a jury to reasonably conclude that G had
communicated her intention to withdraw from the plan and that her communication was timely and
unequivocal, that communication would not on its own have sufficed, in the circumstances of this case,
for the judge to put the defence of abandonment to the jury. G did more than merely promise to take
part in the murder-suicide pact. She supplied her spouse with the intoxicants he used to cause the
children’s deaths. She therefore had to do more either to neutralize the effects of her participation or to
prevent the commission of the offence. For example, she could have hidden or destroyed the
medication she had purchased, remained watchful and taken the
children to a safe place for the evening, insisted that her spouse give her verbal confirmation of what he
intended to do, or simply called the authorities. The record did not therefore contain evidence upon
which a properly instructed jury acting reasonably could have found that G had abandoned the common
unlawful purpose, and could accordingly have acquitted her, if it believed the evidence to be true. The
defence of abandonment therefore did not meet the air of reality test, and the trial judge was not
required to put the defence to the jury.
Per Fish J. (dissenting): Canadian courts have for more than 70 years held that the defence of
abandonment comprises only two essential elements: (i) change of intention; and (ii) where practical
and reasonable, timely and unequivocal notice of withdrawal. This test has been repeatedly and
consistently applied in prosecutions under s. 21(1) and s. 21(2) of the Criminal Code alike. The defence
of abandonment does not require that the accused take steps to neutralize prior participation in the
criminal enterprise or to prevent the commission of the offence. While such evidence may strengthen a
defence of abandonment, failure to take neutralizing or preventative steps is not fatal.
In light of the state of the law universally accepted in Canada at the time of G’s trial, it would be
fundamentally unfair at this stage to fault her for failing to demonstrate anything more than a change of
intention, plus timely and unequivocal notice of withdrawal from the murder-suicide pact. Since G’s
testimony provided some evidence on these two essential elements, there was an air of reality to the
defence. The trial judge therefore erred by withholding the defence of abandonment from the jury.
Incompatibility between G’s defence of abandonment and her primary defence should not be relied
upon to deprive the accused of a defence for which an air of reality has been established.
G testified that she told L his plan did not make sense and he “could not do it”. She also told him that
she did not want to be a part of it. She demonstrated her disapproval of the murder-suicide pact by
tearing up two documents: a last will and testament written by her and a story of L’s life containing
references to the pact. She was convinced by his facial expression that the murder-suicide pact was off.
This testimony provides some evidence that G no longer intended to participate in the murder-suicide
pact and that she provided timely and unequivocal notice of this change of intention to the principal
offender. That the evidence could have left the jury with a reasonable doubt as to G’s guilt is all that was
required. It was for the jury to determine whether G’s words and conduct were believable and sufficient
to demonstrate timely and unequivocal notice of withdrawal.
G is entitled to a fresh trial, where the jury will not be wrongly prevented from considering on its merits
her defence of abandonment, however weak and unpromising this Court might believe it to be.
R. v. Cowan, 2021 SCC 45
Two people robbed a Subway restaurant in Regina, Saskatchewan on July 7, 2016. One wore a mask and
brandished a knife, while the other stood watch at the front door. The only employee on duty at the
time could not identify the two robbers, but the restaurant security camera had captured images of the
masked person. An anonymous tip implicated Jason William Cowan and he was arrested soon after. Mr.
Cowan denied having any involvement in the incident and he claimed to have an alibi. However, he did
admit to telling a group of people “how to do a robbery” on the same day it occurred. Police also noted
that Mr. Cowan had been wearing shoes that closely resembled those worn by the masked person in the
images from the security camera. When police showed Mr. Cowan the images from the security camera,
he named two of his acquaintances. He called the lookout person “Littleman” and the armed robber Mr.
Robinson. Mr. Cowan later named two more people. He told police that Mr. Fiddler and Mr. Tone had
driven Littleman and Mr. Robinson to the restaurant and that they had waited in Mr. Fiddler’s vehicle
during the robbery. Mr. Cowan was charged with armed robbery. He was tried by judge alone with no
jury. At trial, the Crown advanced two theories about what happened. The first was that Mr. Cowan was
the masked armed robber and, as a result, was guilty as a principal offender. The second theory was that
if he was not the masked man, Mr. Cowan was a guilty party because he had either helped commit the
crime or had advised others on how to do it.
The trial judge rejected both theories and acquitted Mr. Cowan.
The Crown appealed to the Court of Appeal, which agreed with the trial judge that Mr. Cowan was not a
principal offender. The judges did not all agree, however, with the trial judge’s finding that the Crown
had to first prove who had committed the actual robbery before finding Mr. Cowan guilty of helping or
advising others on how to commit the crime. The majority of the Court of Appeal found that this error
may have affected the verdict. They allowed the appeal, set aside the acquittal and ordered a new trial
on the second theory of liability. Both Mr. Cowan and the Crown appealed the Court of Appeal’s ruling
to the Supreme Court of Canada. Mr. Cowan argued that the trial judge made no error and that his
acquittal should stand. The Crown argued that the Court of Appeal was not allowed to limit a new trial
to a single theory of liability. Instead, the Crown said there should be a new trial on the charge of armed
robbery as a whole.
The Supreme Court has dismissed Mr. Cowan’s appeal and allowed the Crown’s appeal. The new trial
will be on the charge of armed robbery as a whole. New trial required
Writing for a majority of the judges of the Supreme Court, Justice Moldaver said the trial judge
committed an error of law in assessing Mr. Cowan’s liability as a party to the offence. To have an
acquittal set aside due to a legal error, the Crown must satisfy an appeal court to a reasonable degree of
certainty that the error could have changed the outcome of the trial. In this case, the judges said, the
Crown had satisfied the Court. They said that the verdict may well have been different if the trial judge
had considered the evidence in light of the correct legal principles. Appeal courts may not limit the
scope of a new trial to a particular theory of liability on a single criminal charge. The majority said the
new trial should be a “full new trial” that is not limited to a particular theory of liability. The majority
explained that appeal courts may not limit the scope of a new trial to a particular theory of liability on a
single criminal charge. They said, “as one of the purposes of the criminal process is to foster a search for
truth, justice cannot require that a trier of fact be restricted in their ability to determine how, if at all,
an accused participated in a given offence. Rather, a trier of fact must be able to consider any and all
theories of liability that have an air of reality based on the evidence adduced at the new trial.”
Attempts
R v Ancio [1984] 1 SCR 225
Respondent, who wanted to speak with his estranged wife, broke into an apartment building with a
loaded sawed-off shotgun. Kurely, the man with whom his wife had been living, went to investigate the
sound of breaking glass and threw the chair he was carrying at respondent when he saw him climbing
the stairs.
The gun discharged, missing Kurely, and a struggle followed. Shortly after his arrest, respondent stated
to police that he "had him [Kurely] by the throat and I would have killed him." The trial judge found
respondent had broken into the apartment building with the intent to use the shotgun to force his wife
to leave and convicted him of attempted murder. The Court of Appeal over-turned that conviction and
ordered a new trial. At issue here is whether the mens rea in attempted murder is limited to an
intention to cause death or to cause bodily harm knowing it to be likely to cause death, or whether the
mens rea required extended to the intention to do some action constituting murder as defined by ss.
212 or 213 of the Code.
Held (Ritchie J. dissenting): The appeal should be dismissed.
Per Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.: The mens rea for attempted
murder is the specific intent to kill and a mental state falling short of that level, while it might lead to
conviction for other offences, cannot lead to a conviction for an attempt. The completed offence of
murder involves killing and any intention to complete that offence must include the intention to kill. An
attempt to murder should have no lesser intent. Nothing illogical arises from the fact that in certain
circumstances a lesser intent will suffice for a conviction for murder. A person cannot intend to commit
the unintentional killings described in ss. 212 and 213 of the Code. Any illogic lies in the statutory
characterization of unintentional killing as murder.
The crime of attempt developed as, and remains, an offence separate and distinct from murder. While
the Crown must still prove both mens rea and actus reus, the mens rea is the more important element.
The intent to commit the desired offence is a basic element of the offence of attempt, and indeed, may
be the sole criminal element in the offence given that an attempt may be complete without completion
of the offence intended.
R v Deutsch [1986] 2 SCR 2
Appellant, who was in the business of selling franchises of various kinds, placed advertisements in
several newspapers for a secretary/sales assistant. He conducted interviews with three female
applicants and with a police officer who posed as an applicant and recorded the interview on a tape
recorder.
Appellant indicated to the applicants that a secretary/sales assistant would be expected to have sexual
intercourse with clients or potential clients of the company where that appeared to be necessary to
conclude a contract. He also indicated that a successful secretary/sales assistant could earn as much as
$100,000 annually through commission or bonus on the sale of franchises. Appellant did not make an
offer of employment to any of the three applicants who became uninterested after hearing the
requirements of the position. The police officer, while not made an offer, was told to think it over and
let appellant know when she expressed an interest in the position notwithstanding its requirements. At
trial, appellant was acquitted of counts of (1) attempting to procure female persons to become common
prostitutes and (2) attempting to procure female persons to have illicit intercourse with another person.
The Court of Appeal dismissed the appeal from acquittal on the first count, but allowed the appeal with
respect to the second and ordered a new trial. Appellant appealed. At issue here are: (1) whether
appellant's acts or statements could, as a matter of law, constitute an attempt to procure rather than
mere preparation; and (2) whether the sexual intercourse contemplated by appellant would be illicit
sexual intercourse within s. 195(1)(a) of the Criminal Code.
Held: The appeal should be dismissed.
Per Beetz, McIntyre, Wilson and Le Dain JJ.: The word "illicit" in s. 195(1)(a) of the Criminal Code must be
given the meaning that has been assigned by the weight of judicial opinion to the word "unlawful" in
comparable legislative tests--as referring to sexual intercourse not authorized or sanctioned by lawful
marriage. The alternative meaning--sexual intercourse prohibited by the criminal law or other
enactment of positive law--apart from reducing the scope of the offence of procuring a person to have
illicit sexual intercourse with another person so as to make it rarely, if ever, applicable, is not
reconcilable with other provisions of the Criminal Code.
The evil to which s. 195(1)(a) is directed is procuring or soliciting, not the actual act of sexual intercourse
itself. The provision is parallel to and of the same kind as that in s. 195(1)(d), which makes it an offence
to procure a person to become a prostitute although prostitution is not itself a crime. This is true of all
the offences created by s. 195. They are directed to conduct which is designed to encourage or promote
conduct which itself is not criminal. If fault be found with that legislative policy it is for Parliament to
make the necessary changes, not for the court to do so by giving the word "illicit" in s. 195(1)(a) such a
restricted meaning as not only to give s. 195(1)(a) a very limited, if not improbable application, but also
to restrict very severely the application of other important provisions of the Criminal Code for the
protection of girls and women in which the words "illicit sexual intercourse" are used.
No satisfactory general criterion has been, or can be, formulated for drawing the line between
preparation and attempt. The application of this distinction to the facts of a particular case must be left
to common sense judgment.
The distinction between preparation and attempt is essentially a qualitative one, involving the
relationship between the nature and quality of the act in question and the nature of the complete
offence, although consideration must be given, in making that qualitative distinction, to the relative
proximity of the act in question to what would have been the completed offence, in terms of time,
location and acts under the control of the accused remaining to be accomplished.
Relative proximity may give an act, which might otherwise appear to be mere preparation, the quality of
attempt. But an act which on its face is an act of commission 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.
The Court of Appeal's finding, that the offence of procuring a person to have illicit sexual intercourse
with another person is not committed unless sexual intercourse actually takes place, was accepted for
the purposes of deciding whether appellant's acts could, as a matter of law, constitute the actus reus of
an attempt to procure.
If the appellant had the necessary intent to induce or persuade the women to seek employment that
would require them to have sexual intercourse with prospective clients, then the holding out of the
large financial rewards in the course of the interviews, in which the necessity of having sexual
intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to
procure. It would clearly be an important step in the commission of the offence. Before an offer of
employment could be made in such circumstances an applicant would have to seek the position, despite
its special requirement. Thus such inducement or persuasion would be the decisive act in the procuring.
There would be little else that the appellant would be required to do towards the completion of the
offence other than make the formal offer of employment. The holding out of the large financial rewards
in the course of the interviews would not lose its quality as a step in the commission of the offence, and
thus as an actus reus of attempt, because a considerable period of time might elapse before a person
engaged for the position had sexual intercourse with prospective clients or because of the otherwise
contingent nature of such sexual intercourse.
Per Lamer J.: Agreement with Le Dain J.'s broad definition of "illicit sexual intercouse" was only to the
extent that those words were resorted to in s. 195(1)(a) of the Criminal Code. Accepting such a wide
definition depended on the fact that an essential ingredient of "procuring" or of "soliciting" under s.
195(1)(a) was that what was being done was done for lucre, gain, or some advantage.
Mental Disorder
R v Cooper [1980] 1 SCR 1149
The appellant, an out-patient at the Hamilton Psychiatric Hospital, was charged with the murder of
Denise Hobbs, an in-patient at the same institution. After a party at the hospital, the appellant
unsuccessfully attempted to have sexual intercourse with the victim then choked her. Appellant had a
lengthy psychiatric history. The defence of insanity was not raised at the trial. A psychiatrist was called
by the defence to seek to establish that the accused did not have the capacity to form an intention to
kill. In answer to a question put by the trial judge the psychiatrist testified that he did not think that the
accused was suffering with a disease of the mind. None the less, the trial judge dealt with this issue of
insanity in her charge to the jury. The jury found the appellant guilty of non-capital murder and he was
sentenced to life imprisonment. An appeal was dismissed without written reasons, Dubin J.A. dissenting
on the grounds that there was misdirection and non-direction amounting to misdirection in the trial
judge’s charge to the jury on the defence of insanity. The appellant then appealed to this Court pursuant
to s. 618(1)(a) of
the Criminal Code on the basis of a dissent in the Court of Appeal on a question of law.
Held (Martland and Pratte JJ. dissenting): The appeal should be allowed.
Per Laskin C.J. and Dickson, Beetz, Estey and McIntyre JJ.: Section 16 of the Criminal Code does not set
out a test of insanity but, rather, the criteria to be taken into account in determining criminal
responsibility. The question raised by this appeal is whether there was evidence upon which a properly
charged jury could conclude, on a balance of probabilities, that the appelty. The second is that there was
non-direction, amounting to misdirection, in failing to relate the evidence of the psychiatrist on the issue
as to whether the appellant was able to appreciate the nature and quality of the act. As to the first
criticism, the trial judge did not treat the opinion of the psychiatrist that the accused was not suffering
from a disease of the mind as determinative. The jury was told that if there was other evidence on this
issue they were entitled to weigh it. There was no evidence to show a state of natural imbecility. As to
the second criticism, it is desirable to stress the fact that the appellant elected not to raise the question
of insanity: The trial judge cannot be criticized for not relating the evidence given in relation to another
issue, to an issue which had not been raised at trial. The evidence does not establish an incapacity to
appreciate the nature and quality of the appellant’s act. The onus of proving that he was not sane rested
upon the appellant.
There was no substantial wrong or miscarriage of justice. The Court of Appeal was entitled to dismiss
the appeal of the accused under ss. 613(1)(b)(iii) of the Criminal Code.
Automatism and Involuntary Acts
R v Stone [1999] 2 SCR 290
The accused admitted stabbing his wife 47 times but claimed to have done it while in an automatistic
state brought on by nothing more than his wife’s insulting words. The accused testified that he felt a
“whoosh” sensation washing over him. When his eyes focussed again, he was staring straight ahead and
felt something in his hand. He was holding a six-inch hunting knife. He looked over and saw his wife
slumped over on the seat. He disposed of the body in his truck tool box, cleaned up, drove home,
prepared a note for his step-daughter, and checked into a hotel. He then collected a debt, sold a car and
flew to Mexico. While in Mexico, the accused awoke one morning to the sensation of having his throat
cut. In trying to recall his dream, he remembered stabbing his wife twice in the chest before
experiencing a “whooshing” sensation. He returned to Canada about six weeks later, spoke to a lawyer
and surrendered himself to police. He was charged with murder.
In his defence, the accused claimed: insane automatism, non-insane automatism, lack of intent, and
alternatively, provocation. The trial judge ruled that the defence had laid a proper evidentiary
foundation for insane, but not non-insane, automatism. Accordingly, he instructed the jury on insane
automatism, intention in relation to second degree murder and provocation. The accused was found
guilty of manslaughter and sentenced to seven years’ imprisonment.
In opening remarks at trial, counsel for the defence stated that the evidence which would be given by
the defence psychiatrist would support the defence of automatism. The defence only made this expert’s
report available to the Crown after the latter successfully brought a motion for disclosure.
The Court of Appeal upheld accused’s conviction and dismissed the Crown’s appeal of the sentence.
Both the accused and the Crown appealed to this Court. At issue here were: (1) whether the “defence”
of sane automatism should have been left to the jury; (2) whether the defence psychiatric report was
properly ordered disclosed to the Crown; and (3)(a) whether the sentencing judge could consider
provocation as a mitigating factor for manslaughter where the same provocation had already been
considered in reducing the charge to manslaughter; and (b) whether the sentence was fit and properly
reflected the gravity of the offence and the moral culpability of the offender.
Held (Lamer C.J. and Iacobucci, Major and Binnie JJ. dissenting on the appeal from conviction): The
accused’s appeal from conviction should be dismissed. The Crown’s sentence appeal should also be
dismissed.
(1)
“Defence” of sane automatism
Per L’Heureux-Dubé, Gonthier, Cory, McLachlin and Bastarache JJ.: Two forms of automatism are
recognized at law. Non-insane automatism arises where involuntary action does not stem from a disease
of the mind and entitles the accused to an acquittal. Insane automatism, on the other hand, arises only
where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the
defence of mental disorder. A successful defence of insane automatism will trigger s. 16 of the Criminal
Code and result in a verdict of not criminally responsible on account of mental disorder.
The law presumes that people act voluntarily. Since a defence of automatism amounts to a claim that
one’s actions were not voluntary, the accused must establish a proper foundation for this defence
before it can be left with the trier of fact. This is the equivalent of satisfying the evidentiary burden for
automatism. Once the evidentiary foundation has been established, the trial judge must determine
whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.
A two-step approach should therefore apply to all cases involving claims of automatism. First, the
defence must establish a proper foundation for automatism. This burden is only met where the trial
judge concludes that there is evidence upon which a properly instructed jury could find that the accused
acted involuntarily on a balance of probabilities. In all cases, this will require that the defence make an
assertion of involuntariness and call confirming psychiatric evidence. Other relevant factors to be
considered in determining whether this defence burden has been satisfied include: the severity of the
triggering stimulus; corroborating evidence of bystanders; corroborating medical history of
automatistic- like dissociative states; whether there is evidence of a motive for the crime; and whether
the alleged trigger of the automatism is also the victim of the automatistic violence. No one factor is
determinative. The trial judge must weigh all of the available evidence on a case-by-case basis. Placing
this burden on the defence, while constituting a limitation of an accused’s s. 11(d) Charter rights, is
justified under s. 1.
Second, given the establishment of a proper foundation, the trial judge must determine whether the
condition alleged by the accused is mental disorder or non-mental disorder automatism. The
assessment of which form of automatism should be left with the trier of fact comes down to the
question of whether or not the alleged condition is a mental disorder. Mental disorder is a legal term
defined in the Code as “a disease of the mind”. The question of what conditions are included in that
term is a question of mixed law and fact because it involves an assessment of the particular evidence in
the case rather than a general principle of law. Trial judges should start from the proposition that the
condition is a disease of the mind and then determine whether the evidence in the particular case takes
the condition out of the disease of the mind category.
There are two distinct approaches to the disease of the mind inquiry. Under the first, the internal cause
theory, the trial judge must compare the accused’s automatistic reaction to the way one would expect a
normal person to react in order to determine whether the condition the accused claims to have suffered
from is a disease of the mind. The trial judge must consider the nature of the alleged trigger of the
automatism and determine whether a normal person might have reacted to it by entering an
automatistic state. This comparison is a contextual objective one. Evidence of an extremely shocking
trigger will be required to establish that a normal person might have reacted to it by entering an
automatistic state as the accused claims to have done.
The objective element of the internal cause theory does not violate ss. 7 (the fundamental principles of
justice) and 11(d) (the right to be presumed innocent) of the Charter. The objective inquiry is applied to
assess whether the condition claimed by the accused is a disease of the mind only after a subjective
inquiry has been completed by the trial judge into whether there is evidence upon which a properly
instructed jury could find, on a balance of probabilities, that the accused acted involuntarily. The
objective standard affects only the classification of the defence rather than the assessment of whether
the actus reus of the offence has been established. That is, the objective component does not affect the
burden of proof on the issue of whether the accused voluntarily committed the offence. Moreover, the
impact of the objective comparison is limited even with regard to the disease of the mind inquiry
because the internal cause theory is only an analytical tool. Consideration of the subjective psychological
make-up of the accused in the internal cause theory would frustrate the very purpose of making the
comparison which is the determination of whether the accused was suffering from a disease of the mind
in a legal sense.
The second approach, the continuing danger theory, holds that any condition which is likely to present a
recurring danger to the public should be treated as a disease of the mind. While a continuing danger
suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a
disease of the mind. Trial judges may consider any of the evidence before them in order to assess the
likelihood of recurrence of violence and in particular the psychiatric history of the accused and the
likelihood that the trigger alleged to have caused the automatistic episode will recur.
The internal cause theory and the continuing danger theory should not be viewed as alternative or
mutually exclusive approaches to the disease of the mind inquiry. Rather, a holistic approach should be
adopted under which either or both of these approaches to the inquiry may be considered by trial
judges. It is therefore more appropriate to refer to the internal cause factor and the continuing danger
factor. In addition to these two factors, policy factors may also be considered in determining whether
the condition the accused claims to have suffered from is a disease of the mind.
If the trial judge concludes that the condition the accused claims to have suffered from is not a disease
of the mind, only the defence of non-mental disorder automatism will be left with the trier of fact as the
trial judge will have already found that there is evidence upon which a properly instructed jury could
find, on a balance of probabilities, that the accused acted involuntarily. The question for the trier of fact
will then be whether the defence has proven, on a balance of probabilities, that the accused acted
involuntarily. A positive answer to this question by the trier of fact will result in an absolute acquittal. On
the other hand, if the trial judge concludes that the alleged condition is a disease of the mind, only
mental disorder automatism will be left with the trier of fact. The case will then proceed like any other s.
16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of
probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of
appreciating the nature and quality of the act in question. The determination of this issue by the trier of
fact will absorb the question of whether the accused in fact acted involuntarily.
No substantial wrong or miscarriage of justice occurred here.
Per Lamer C.J. and Iacobucci, Major and Binnie JJ. (dissenting): The defence of non-mental disorder
automatism should not have been taken away from the jury in light of the trial judge’s evidentiary ruling
that there was evidence the accused was unconscious throughout the commission of the offence. The
correctness of the ruling was affirmed by the British Columbia Court of Appeal.
Automatism is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus
reus, and accordingly puts in issue the Crown’s ability to prove all of the elements of the offence beyond
a reasonable doubt. While sane individuals are presumed to be responsible for their voluntary acts or
omissions, no such inference of voluntariness can be drawn if the accused leads credible evidence,
supported by expert testimony, that he was unconscious throughout the commission of the offence. A
judge-made classification of situations into mental disorder automatism and non-mental disorder
automatism cannot relieve the Crown of the obligation to prove all elements of the offence, including
voluntariness. Otherwise there would be strong objections under s. 7 (fundamental principles of justice)
and s. 11(d) (presumption of innocence) of the Charter, and no attempt was made in this case to provide
a s. 1 justification. Similar Charter objections apply to any attempt to add to the evidential burden on
the accused the further persuasive or legal burden to establish automatism on a balance of probabilities.
The law on automatism is correctly concerned with public safety. The risk of recurrence is legitimately
part of the “policy component” of the legal analysis of “disease of the mind”. In the present case,
neither psychiatrist considered recurrence a significant possibility.
The mental disorder provisions of the Criminal Code were not appropriate to resolve the automatism
issue here. It was wrong of the courts to require the accused to substitute for his chosen defence of
involuntariness the conceptually quite different plea of insanity. Both Crown and defence psychiatrists
agreed that the accused did not suffer from a medically defined disease of the mind. He was either
unconscious at the time of the killing or he was not telling the truth at the time of the trial. This was a
question for the jury. The statutory inquiry into whether he was “suffering from a mental disorder” that
rendered him “incapable of appreciating the nature and quality of the act or omission or of knowing that
it was wrong” are qualitative questions that are not really responsive to his allegation that he was not
conscious of having acted at all. While s. 16 of the Code may provide an appropriate structure to resolve
cases of medical “diseases of the mind”, it may not be responsive to the real issues where the “disease
of the mind” derives from legal classification, rather than medical classification. If the jury was satisfied
that the s. 16 requirements were met, that would end the matter: the accused would have been found
not criminally responsible on account of mental disorder (NCRMD). He or she would not be permitted to
ignore NCRMD status and seek a full acquittal on the basis of involuntariness. However, if the jury
rejects NCRMD status, it should still be left with the elementary instruction that the accused is entitled
to an acquittal if the Crown fails to establish beyond a reasonable doubt all of the elements of the
offence, including voluntariness.
The evidence established that there are states of automatism where perfectly sane people lose
conscious control over their actions. Once the trial judge exercised his gatekeeper function to screen
frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the plea of
automatism. This jurisdiction should not be removed by “judicially created policy”. It is to be expected
that the jury will subject the evidence of involuntariness to appropriate scrutiny. There was discussion in
Rabey v. The Queen about the need to maintain the credibility of the justice system. The jury is as well
placed as anyone in the justice system to uphold its credibility. The bottom line is, after all, that the task
of weighing the credibility of such defences was confined by Parliament to the jury. The Court should
respect the allocation of that responsibility.
(2)
Disclosure
Per the Court: The defence waived the privilege in its psychiatrist’s report at the opening of its case
when counsel disclosed the elements in that report favourable to his client. In any event, if disclosure
was premature, the accused suffered no prejudice. A witness, once on the stand, is no longer offering
private advice to a party but rather is offering an opinion for the assistance of the court. The opposing
party must be given access to the foundation of such opinions to test them adequately. Thus, even if the
defence counsel’s opening address had been insufficient to constitute a waiver, s. 686(1)(b)(iii) of the
Code would properly be applied to cure the error.
(3)
Sentence Appeal
Per the Court: The sentencing judge must consider all of the circumstances of the offence, including
whether it involved provocation. An accused does not gain a “double benefit” if provocation is
considered in reducing a verdict from murder to manslaughter under s. 232 of the Code. Rather, s. 232
provides an accused with a single benefit and to give it full effect, provocation must be considered in
sentencing as well.
The judiciary must bring the law into harmony with prevailing social values. A spousal connection
between offender and victim is recognized as an aggravating factor in sentencing under s. 718.2(a)(ii)
and under the common law. Here, the Crown failed to establish that the sentencing judge did not
properly consider the domestic nature of this offence in reaching his decision on sentence.
Appellate courts, in minimizing disparity of sentences in cases involving similar offences and similar
offenders, may fix ranges for particular categories of offences as guidelines for lower courts provided
they clearly describe the category created and the logic behind the range appropriate to it. They must
not, however, interfere with sentencing judges’ duty to consider all relevant circumstances in
sentencing.
Variation of sentence should only be made if an appellate court is convinced that a sentence is “not fit”
or “clearly unreasonable”, provided the trial judge has not erred in principle, failed to consider a
relevant factor or overemphasized the appropriate factors. This was not the case here.
Extreme Intoxication
R. v. Brown, 2022 SCC 18
The Supreme Court restores an Alberta man’s acquittal for attacking a woman while in a state
of automatism. On the night of January 12, 2018, Matthew Winston Brown consumed alcohol and
“magic mushrooms” at a party in Calgary, Alberta. The mushrooms contain psilocybin, an illegal drug
that can cause hallucinations. Mr. Brown lost his grip on reality, left the party and broke into a nearby
home, violently attacking a woman inside. The woman suffered permanent injuries as a result of the
attack. When Mr. Brown broke into another house, the couple living there called the police. Mr. Brown
said he had no memory of the incidents. Mr. Brown was charged with aggravated assault, breaking and
entering, and mischief to property. He had no previous criminal record and no history of mental illness.
At trial, Mr. Brown pleaded not guilty to the charges of “automatism”. Automatism is when someone
claims to have been so intoxicated or impaired that they had lost complete control of themselves. The
Crown argued Mr. Brown could not rely on automatism because section 33.1 of the Criminal Code
prevents a person from using automatism as a defence for crimes involving assault or interference with
the bodily integrity of another person.
Mr. Brown responded that section 33.1 of the Criminal Code violates sections 7 and 11(d) of the
Canadian Charter of Rights and Freedoms. Section 7 guarantees everyone the right to life, liberty and
security of the person, whereas section 11(d) guarantees everyone the right to be presumed innocent
until proven guilty. The judge agreed with Mr. Brown and acquitted him. The Crown appealed to
Alberta’s Court of Appeal, which disagreed and convicted Mr. Brown. He then appealed to the Supreme
Court of Canada.
The Supreme Court has restored the acquittal.
The Supreme Court heard this case together with R. v. Sullivan, and the judgments are being rendered at
the same time. Section 33.1 of the Criminal Code violates sections 7 and 11(d) of the Charter and is
therefore unconstitutional.
Writing for a unanimous Supreme Court, Justice Nicholas Kasirer said section 33.1 of the Criminal Code
violates sections 7 and 11(d) of the Charter in a way that cannot be justified in a free and democratic
society and is unconstitutional. He wrote that section 33.1 violates section 11(d) of the Charter because
society could interpret someone’s intent to become intoxicated as an intention to commit a violent
offence. Section 33.1 also violates section 7 because a person could be convicted without the
prosecution having to prove that the action was voluntary or that the person intended to commit the
offence. Convicting someone for how they conducted themselves while in a state of automatism violates
principles of fundamental justice. Our criminal justice system is based on the notion of personal
responsibility. In Canada, two elements of fundamental justice are required for a person to be found
guilty of a crime. They are: a guilty action; and (2) a guilty mind. Neither element is present when a
person is in a state of automatism. Parliament could enact legislation to address violence caused by
extreme intoxication. The Court explained that Parliament could enact new legislation to hold an
extremely intoxicated person accountable for a violent crime. The Court emphasized that, “protecting
the victims of violent crime – particularly in light of the equality and dignity interests of women and
children who are vulnerable to intoxicated sexual and domestic acts – is a pressing and substantial social
purpose”.
Defense of the Person
R. v. Khill 2021 SCC 37
The Supreme Court orders a new trial for an Ontario man accused of murder. In the early morning hours
of February 4, 2016, Peter Khill shot and killed Jonathan Styres, a young man who was breaking into his
truck. The vehicle was parked in the driveway of Mr. Khill’s home, in a rural area on the outskirts of
Hamilton, Ontario. Before the shooting, Mr. Khill was awoken by his partner who alerted him to loud
noises coming from the driveway next to their bedroom window. Looking out the window, Mr. Khill saw
the dash lights of his truck were on, indicating that someone was, or had been, in the truck. At that
point, Mr. Khill retrieved his shotgun, went outside and confronted Mr. Styres. Moments later, he fired
two shots, killing Mr. Styres. When police arrived on the scene, they arrested Mr. Khill. He told the
arresting officer that he had been a soldier. He also said the intruder had raised his hands to gun height,
so he reacted as he did. Mr. Khill was charged with second degree murder. At trial, he testified that he
shot Mr. Styres in self-defence, believing Mr. Styres was armed and about to shoot him. Mr. Khill’s
training as a former part-time reservist was raised at trial. A jury found Mr. Khill not guilty and acquitted
him.
The Crown appealed. The Ontario Court of Appeal overturned the acquittal and ordered a new trial,
finding that the jury was not property instructed on the principles of selfdefence. Mr. Khill appealed that
decision to the Supreme Court of Canada. The Supreme Court has dismissed Mr. Khill’s appeal and has
ordered a new trial. The trial judge should have instructed the jury on self-defence and on Mr. Khill’s
role in the incident. Writing for the majority, Justice Martin said the jury received no instructions from
the trial judge on how Mr. Khill’s role in the incident should inform its assessment of the reasonableness
of his conduct. She said this was an error that had an important effect on the verdict. Justice Martin
explained that a “person’s role in the incident” refers to “the person’s conduct … during the course of
the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the
circumstances.” In this case, if the jury had been properly instructed, it may have arrived at a different
conclusion. She said the jury may have found, for example, that Mr. Khill’s conduct increased the risk of
a fatal confrontation with Mr. Styres outside the home. They may also have assessed Mr. Khill’s decision
to advance into the darkness against other alternatives he could have taken, such as calling 911,
shouting from the window or turning on the lights. Those actions may have prevented the mistaken
belief that Mr. Styres was armed and avoided the need to use deadly force. As a result, the majority
concluded that a new trial is necessary to ensure the jury is appropriately instructed on the principles of
self-defence and the significance of Mr. Khill’s role in the incident.
Breakdown of the decision: Majority: Justice Sheilah L. Martin said the appeal should be dismissed and a
new trial ordered due to the trial judge’s failure to instruct the jury on self-defence principles (Chief
Justice Wagner and Justices Abella, Karakatsanis and Kasirer agreed) | Concurring: Michael J. Moldaver
came to the same conclusion as Justice Martin but for different reasons (Justices Brown and Rowe
agreed) | Dissenting: Justice Suzanne Côté would have allowed the appeal and restored Mr. Khill’s
acquittal.
Provocation
R. v Simard, 2019 BCSC 531
A British Columbia Supreme Court judge has ruled that a 2015 amendment to the Criminal Code, which
limits when an accused killer can use the defence of provocation, is unconstitutional.
Justice Douglas Thompson ruled that the amendment in question only allowed for the partial defence of
provocation in murder cases if the victim committed an indictable offence (most serious of offences)
punishable by a sentence of five or more years, which is contrary to the rights and freedoms set out in
the Charter.
THE DEFENCE OF PROVOCATION
Stephen Harper’s Conservative government amended the definition of provocation prior to the 2015
election through the Zero Tolerance for Barbaric Cultural Practices Act.
This legislation changed the definition of provocation from “a wrongful act or an insult that is of such
nature as to be sufficient to deprive an ordinary person of the power of self-control …if the accused
acted on it on the sudden and before there was time for his passion to cool” to “conduct of the victim
that would constitute an indictable offence …punishable by five or more years of imprisonment and that
is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is
provocation for the purposes of this section, if the accused acted on it on the sudden and before there
was time for their passion to cool”.
The intention of the government in amending the law was that a victim had to have committed a crime
so serious against an accused to argue that the accused was provoked into killing, not merely upset by
the victim. However, Justice Thompson found that the law as it was written denied vulnerable victims of
domestic abuse and racism the ability to claim provocation when they are incited to respond violently
by behaviour that is not quite criminal.
Justice Thompson wrote in his ruling:
It is an unfortunate but notorious fact that people of colour and members of other marginalized
communities are sometimes subject to despicable and hateful rhetoric, and that women are sometimes
subject to intense psychological abuse by their male partners. … Although the provoking behaviour does
not constitute an indictable offence punishable by at least five years’ imprisonment, it is reasonably
foreseeable that the targets of this conduct may respond violently.
WHAT HAPPENED?
Michael Philip Simard (“Simard”) was in an “on again, off again” relationship with Leanne Larocque since
2014. On October 5, 2016, Simard, armed with an assault rifle, entered the home of Larocque and
proceeded to kill her and Gordon Turner. Simard called 911 and then proceeded to shoot himself
before the police arrived.
Simard was charged with two counts of second-degree murder.
Michael Philip Simard challenged the constitutionality of amendments to section 232(2) of the Criminal
Code arguing that the wording infringed his section 7 rights to life, liberty and security of person under
the Charter, preventing him from raising a partial defence to reduce his charges of second-degree
murder to manslaughter.
Justice Thompson agreed with Simard’s Charter arguments and found that the section in question in the
Criminal Code to be overly broad and arbitrary. Justice Thompson stated in his ruling:
…it is clear that s. 232(2) engages s. 7 of the Charter. Second-degree murder carries a mandatory
minimum sentence of life in prison. On the other hand, manslaughter has no mandatory minimum
sentence (unless a firearm is used in the commission of the offence…). Circumscribing the available of
the partial defence affects the liberty of anyone who would previously have been able to advance a
provocation defence.
Justice Thompson struck down the current wording, thus returning the law to its original wording.
However, he proceeded to convict Simard of second-degree murder.
The government’s objective in amending the definition of provocation in the Criminal Code in 2015 may
have been to protect vulnerable women by ensuring that those who might attack them would not be
allowed to argue the defence of provocation after the fact. However, Justice Thompson ruled that the
“amended provisions extend to behaviour far beyond the object of the legislation. Provocation has
never been confined to situations in which the victims are vulnerable women.”
Simard’s lawyer, Matthew Nathanson, considered Justice Thompson’s ruling to be significant as it was
the first time a court had considered the new limits on the defence of provocation in Canada.
Nathanson stated:
The court found that the purpose of the law was to protect vulnerable women. Clearly this is an
important and appropriate goal. However, the court also found that in certain situations the law would
deny the defence of provocation to women who killed in the context of serious domestic violence. In
this way, a law designed to protect vulnerable women would deny them an important defence. This is
counterintuitive and unfair. In constitutional terms, it means the law is arbitrary, overbroad, and had to
be struck down.
Simard will return to court on May 7, 2019 for sentencing. The offence of second-degree murder carries
a mandatory sentence of life imprisonment.
R v Land 2019 ONCA 39
[Jan 18/19] – Air of Reality to Defence of Provocation – 2019 ONCA 39 [S.E. Pepall, D.M. Paciocco and A.
Harvison Young JJ.A.]
AUTHOR’S NOTE: In this decision, the Ontario Court of Appeal considered the defence of provocation in
a case where the appellant contended the proper conviction would have been manslaughter, not
second-degree murder. The reasons of Paciocco J.A. (for the panel) provide a helpful review of the law
of provocation, as well as its potential to reduce culpability to manslaughter in a case involving
extensive, varied injuries to the deceased.
The appeal was principally based upon the shift in law that occurred after trial, when the SCC released
its decision in R v Cairney, 2013 SCC 55. Noting the deference ordinarily owed to trial judge’s assessment
of “air of reality,"no deference was owed here because of the trial judge’s (understandable) error in law
(para 71). In concluding there was an air of reality such that provocation ought to have been left with
the jury (para 72) and a new trial was required, Pacioccio J.A. expressly noted that Mr. Land's experience
as a sexual assault survivor (who was raised in an environment of sexual abuse and whose family had
been abused in residential schools) was relevant to both the subjective and objective elements of the
defence (paras 82, 94-98).
Pertinent Facts
“Toby Land was convicted of second degree murder in the violent, alcohol-fuelled killing of one of his
roommates, Dominic Rock Doyon,… [who was] bludgeoned repeatedly with a hammer, beaten with a
pair of crutches, and stabbed repeatedly with a samurai sword.” (Para 1)
It is not contested that Mr. Land and another roommate, Carl St-Cyr perpetrated the fatal attack, during
which Mr. Doyon sustained 87 injuries, including: in excess of 55 blows to his head, torso, and limbs with
the hammer and crutches, and 4 stab wounds. A forensic pathologist estimated that the attack could
have lasted between five and ten minutes.” (Para 2)
“Mr. Land, who testified and admitted at his trial that he wielded the hammer that caved Mr. Doyon's
head, appeals his conviction. He claimed at trial that he was provoked into participating in Mr. Doyon's
killing but the trial judge refused to leave that defence with the jury. Mr. Land argues that this was an
error. He contends there was an air of reality to his defence that required the judge to invite the jury to
consider whether the killing was provoked, within the meaning of Criminal Code, s. 232. He urges that
had this partial defence to the offence of murder been presented to the jury, and if the jury could not
rule out the provocation defence beyond a reasonable doubt, Mr. Land would have been convicted of
manslaughter, not second degree murder.” (Para 3)
Given the law at the time, the trial judge’s decision not to leave provocation with the jury was
understandable. However, the law changed and, as a result, her decision was wrong. The appeal is
allowed, and a new trial is ordered. (Para 6)
“Evidence presented at Mr. Land's trial would confirm that Mr. Land, an Indigenous man, then 24 years
old, had a horrendous past. It scarred him deeply. He left his home with substance abuse issues and with
a violent aversion to sexual abusers. On numerous occasions prior to May 4, 2009, Mr. Land attacked
men he knew to be sexual abusers.” (Para 8)
“Mr. Doyon, then 33 years old, was in a friendship with a young girl that soon became romantic. She was
only 14 years old. This created tension between Mr. Land and Mr. Doyon, and their relationship became
confrontational. On more than one occasion, Mr. Land exchanged words with Mr. Doyon about the
relationship and he attempted to discourage the young girl from being at the apartment.” (Para 10)
“Evidence was presented that on two occasions prior to the killing, the dislike between the men had
become physical. On both occasions, Mr. Doyon, a larger, stronger man, gained the upper hand. During
one incident, the confrontation led Mr. Doyon to accost Mr. Land with a knife to his throat, prompting
Mr. St-Cyr to enter the fray to protect Mr. Land.” (Para 11)
“Evidence supported the conclusion that Mr. Land knew Mr. Doyon to be a violent man, not only from
these incidents, but from Mr. Doyon's habit of keeping a samurai sword around the apartment.” (Para
12)
On the day of his arrest, Mr. Land advised he had been drinking heavily on the day he decided to
confront Mr. Doyon about his relationship with the young girl. When he approached Mr. Doyon, he
knew Mr. Doyon was in possession of the sword, which was why Mr. Land had the hammer. When Mr.
Doyon began to pull out the sword, Mr. Land began to hit Mr. Doyon with the hammer in the head as
fast as he could. Mr. Land later began using the sword, while Mr. St-Cyr joined in with the crutches.
(Paras 15-18)
At trial, Mr. Land testified he had lied to the police in an effort to protect Mr. St-Cyr, who appeared to
be trying to protect him. He testified he came home that day to find Mr. Doyon and the lung girl
together, shirtless, on the couch. Mr. Land spent time with Mr. St-Cyr, drinking and playing video games.
The young girl eventually left the apartment. Around 11 pm, after consuming ~8 beers, Mr. Land was
angry and decided to confront Mr. Doyon. Through both direct and cross, Mr. Land testified to 3
variations of what occurred next. They all involved his use of a hammer and Mr. Doyon, at some point,
reaching for a sword. In most versions, Mr. Land presumed the incident stopped when Mr. St-Cyr pulled
him back. (Para 19-31)
Psychiatric evidence was also called by both Crown and defence. (Paras 39-40)
Murder Reduced to Manslaughter: The Partial Defence of Provocation
“As with other defences, the partial defence of provocation should not be left with a jury unless the
evidence in the case gives that defence an air of reality: see R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R.
162, at paras. 20-22; and R. v. Suarez-Noa, 2017 ONCA 627, 139 O.R. (3d) 508, at paras. 41-43, leave to
appeal to S.C.C. refused, [2018] S.C.C.A. No. 142.” (Para 45)
“[T]he trial judge described the air of reality test accurately, and admirably. I can do no better in
describing the law than to quote what she said: ‘Only defences presenting an air of reality should be left
with the jury (R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.), at para. 51). A defence possesses an air of
reality if a properly instructed jury, acting reasonably, could acquit the accused on the basis of the
defence (Cinous, at para. 2.) or, in this case, reduce murder to manslaughter under s. 232(1) of the
Criminal Code, R.S.C. 1985, c. C-46 due to sudden provocation. The air of reality test imposes on the
accused the evidential burden to put a defence in play (Cinous, at para. 52). In applying the air of reality
test, the trial judge considers the totality of the evidence and assumes the evidence relied upon by the
accused is true (Cinous, at para. 53). The evidence must be reasonably capable of supporting the
inferences necessary to make out the defence before there is an air of reality to the defence (Cinous, at
para. 83). The trial judge does not make determinations about the credibility of witnesses. She does not
weigh the evidence, make findings of fact, or draw determinate factual inferences (Cinous, at para. 54).
The trial judge does not consider whether the defence is likely to succeed at the end of the day (Cinous,
at para. 54).’” (Para 46)
Components of Provocation
“The trial judge correctly identified the four components of the provocation defence: (1) there must be
a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of
the power of self-control; (3) the accused must have acted in response to the provocation; and (4) the
accused must have acted on the sudden before there was time for his or her passion to cool. The first
two components constitute the "two-fold" objective element described in R. v. Tran, 2010 SCC 58,
[2010] 3 S.C.R. 350, at para. 25. The latter two components comprise the "twofold" subjective element
of the defence: Tran, at para. 36.” (Para 54)
The only component of provocation in contest was “suddenness”. Mr.Land argued the trial judge erred
in holding he could not meet this subjective component, because the defence should not be available in
circumstances where an accused initiates a confrontation knowing it may become violent and arms
themselves for that outcome. While suddenness is not an exclusively subjective consideration, there
was no reason to believe the trial judge was making determinations of Mr. Land’s subjective beliefs
when she referred to these policy considerations. Rather, she was “considering… the objective question
of whether the law would accept that an ordinary person can, at once, initiate a violent confrontation,
and yet be caught unprepared for a violent provocative act that occurs in response.” (Para 58)
However, the trial judge erred “…in concluding that since Mr. Land initiated the confrontation while
armed, anticipating that Mr. Doyon could become violent, there could be no air of reality to his defence.
The policy position she used to buttress that conclusion — that provocation should not be available in
such circumstances — is also incorrect.” (Para 60)
Mr. Land’s case involved “self-induced provocation” – “where the provocative conduct of the deceased
came about as a result of the accused initiating an aggressive confrontation: Cairney, at paras. 17, 42
[….] [T]he fact that the accused induced the act or words said to constitute provocation does not
preclude the defence from being raised. What is prohibited absolutely by s. 232(3) is "manufactured"
provocation — inciting the victim to engage in a wrongful act or insult in order to generate an excuse for
killing him: Cairney, at para. 31. But beyond this, "[t]here is no absolute rule that a person who
instigates a confrontation cannot rely on the defence of provocation": Cairney, at para. 56.” (Para 61)
“Just as there is no fixed rule prohibiting self-induced provocation defences, there is no fixed rule
undermining the provocation defence where the accused initiated the confrontation while armed,
anticipating that the victim could become violent.” (Para 63)
The issue is always one of context. That an accused incites the provocative act is relevant to both
objective and subjective considerations. The instigating role played by the accused may assist in
determining both the subjective and objective inquiries. The subjective inquiry queries whether they
actually subjective expected the victim’s response. The objective inquiry queries whether the wrongful
act/insult relied on as the provocation fell within the range of reasonably predicable reactions. “Yet
even the reasonable predictability of the response is not determinative. This may and usually will
undermine the defence, but this is not an absolute rule. The reasonable predictability of the reaction
remains to be "weighed together with all other contextual factors": Cairney, at paras. 44, 45.” (Para 62)
Objective inquiry must be undertaken with a view to an individual of the same age and sex as the
accused, and whom also shares other factors that give the act or insult special significance (citing
Thibert, at para 14). (Para 95)
Assessing Air of Reality
That Mr. Land was internally inconsistent at times did not bar leaving provocation with the jury. There
can be an air of reality to the defence, even if an accused’s testimony contradicts it - or the accused
contradicts himself. (Para 75)
Trial judges are obliged to take a defence at its highest when assessing air of reality, and to avoid
determining credibility by assuming evidence relied upon is true. The limited weighing required to
determine air of reality does not allow for consideration of contradictions in defence evidence. Neither
limited weighing, nor consideration of the evidence in its totality, amount to invitations to evaluable the
credibility of the evidence the defence would rely upon, nor to consider the ultimate strength of the
defence. (Paras 76-77)
Some instruction can be taken from the test for committal, which “is a mirror image of the air of reality
test. […] When determining whether there is an air of reality, the trial judge is therefore required to
disregard the contradictions in the defence evidence and examine whether the most favourable version
of events supported by that evidence is sufficient.” (Para 78-79)
“To be clear, a trial judge is not to pull disjointed snippets of evidence out of context to create the
possibility of a provocation defence. The version advanced must be a coherent narrative that is
grounded in the evidence in the case… The fact that the version relied upon is one of several competing
narratives offered by the accused will not defeat the air of reality.” (Para 80) [Citations ommitted]
Self-Defence vs. Provocation
“[T]he defences of self-defence and provocation are not inconsistent. A person can, at the same time,
fear bodily harm and act to prevent it, while losing control through anger or rage in the face of an
impending risk of bodily harm. Moreover, there is nothing to prevent the defences from working in the
alternative. Gill is an example where both defences were available for consideration.” (Para 74)
Application to the Case at Bar
A coherent narrative of Mr. Land, when considered with the forensic psychiatric evidence offered,
meets the air of reality test. (Paras 81-90) Author’s Note: Paciocco J.A. outlines a “coherent narrative
offered by Mr. Land” at paras 81-88.
The Crown conceded – and the trial judge was correct to accept – that Mr. Doyon engaged in a
provocative act. It was not confined to threatening Mr. Land with a sword. “All of the offensive
circumstances, including taunting words or words of challenge, should be considered in characterizing
the wrongful act or insult: see Thibert, at para. 30; and Gill, at para. 20.” (Para 91)
This evidence was capable of subjectively demonstrating that Mr. Land acted in response to Mr. Doyon’s
provocation. (Para 92)
The complex elements in Mr. Land’s case were “the subjective element that the accused must act on the
sudden before there was time for his passion to cool, and the objective measure of whether the
wrongful act or insult would have been sufficient to deprive an ordinary person of the power of selfcontrol.” (Para 93)
Mr. Land’s experience as a sexual assault survivor was relevant to both the subjective and objective
elements of the defence. In particular, the objective test requires consideration of the ordinary person
who shares similar factors that would give the act or insult in question special significance (citing
Thibert,para 14). In this case, this meant Mr. Land’s experience as a sexual assault survivor was relevant.
(Paras 94-96)
"This confrontation arose out of Mr. Doyon's alleged sexually abusive conduct. Mr. Land's personal
reaction to that conduct would obviously be affected by his experiences. So, too, would the psychiatric
conditions that predisposed him to explosive anger be relevant to the subjective inquiry.” (Para 94)
[Emphasis added]
The rolled-up charge did not render the error harmless. Factors in the rolled-up charged were used to
cast doubt on whether Mr. Land had the requisite intent; however, provocation can apply even if Mr.
Land intended to kill Mr. Doyon. “The two defences do not work together.” That the jury found an
intention to kill does not mean the jury would have rejected the defence of provocation. The only way
to know that would have been to leave the defence with the jury. (Para 104-106)
Appeal allowed, new trial ordered (Para 107)
Entrapment
R v Ahmad 2020 SCC 11
Police need good reason to suspect someone answering a phone (or the number itself) is involved in
drug dealing before asking them to sell drugs, the Supreme Court has ruled.
Police can investigate crime in different ways. To find out about crimes that are hard to investigate (like
drug trafficking, child luring, or terrorism), they may have to tempt people to commit them. But there
are limits to this. They have to be able to show the court that they had a “reasonable suspicion” (a good
reason to suspect) that a certain crime was happening. Needing reasonable suspicion makes sure courts
can review police actions to check they are acting properly.
If police don’t have a reasonable suspicion and they tempt a person to commit a crime anyway, it is
called “entrapment.” Entrapment is very serious. It undermines society’s sense of justice and the rule of
law. When it happens, there has to be a “stay of proceedings.” That means the prosecution must be
stopped and the person can’t be convicted of the crime.
This decision dealt with two entrapment cases.
In Mr. Ahmad’s case, the police got a tip that someone named “Romeo” was selling drugs over the
phone. The officer called “Romeo’s” phone number. He didn’t know if the tip was trustworthy. He had a
short conversation with “Romeo,” who agreed to sell him cocaine. They met in person and “Romeo”
sold the officer cocaine. Police arrested and searched “Romeo,” who turned out to be Mr. Ahmad.
The trial judge said Mr. Ahmad wasn’t entrapped. This was because police confirmed enough about the
tip during their conversation to have a good reason to suspect he was already selling drugs. They did this
before they asked to buy drugs from him. Mr. Ahmad was convicted.
In Mr. Williams’ case, a police officer got information from another officer that someone named “Jay”
was selling cocaine. The information also came from a tip. The officer didn’t know if the information was
trustworthy or recent. Another officer called Jay’s number and asked to buy crack cocaine. “Jay” agreed
to meet and sold the officer crack. “Jay” turned out to be Mr. Williams. The police arranged another
drug deal eleven days later. A month later, police arrested Mr. Williams.
The trial judge said police didn’t have a reasonable suspicion of Mr. Williams before they asked to buy
drugs from him. The trial judge said Mr. Williams was entrapped, and ordered a stay of proceedings.
The Court of Appeal heard both appeals together, because they dealt with the same issue. It said neither
Mr. Ahmad nor Mr. Williams were entrapped.
All the judges at the Supreme Court agreed that Mr. Ahmad wasn’t entrapped, but for different reasons.
The majority said Mr. Williams was entrapped.
The majority said police can ask a person answering a phone to commit a crime. But they can only do
this if they already have reasonable suspicion. Reasonable suspicion must be about a specific person
committing a crime or crime happening in a specific place. But in this digital age, a place doesn’t have to
be physical. It can be a phone number. So, police need a good reason to suspect that the person
answering is committing a certain crime or the phone number is being used for that crime before asking
them to commit a crime.
Police don’t have reasonable suspicion if they just have a tip and don’t know if it’s reliable. They can
develop reasonable suspicion by investigating if a tip is reliable before calling. The majority said it’s
better to have reasonable suspicion before making the call. But it’s also possible to establish reasonable
suspicion by having a conversation with the person who answers.
In both appeals, the police didn’t have reasonable suspicion before calling the phone numbers. But the
majority said Mr. Ahmad wasn’t entrapped because police developed a good reason to suspect he was
selling drugs while talking to him on the phone. They did this before they asked to buy drugs from him.
The police didn’t confirm the tip during the phone call in Mr. Williams’ case, though. The majority said
Mr. Williams was entrapped because the police asked to buy drugs from him before they had a good
reason to suspect he was selling drugs.
Mr. Ahmad got permission (or “leave”) to appeal to the Supreme Court. People who get convicted on
appeal when they weren’t convicted at trial, like Mr. Williams, can appeal “as of right” (meaning they
don’t need permission).
Error of Law and Colour of Right
Regina v. Howson, 1966 CanLII 285 (ON CA)
Facts:
Tow truck driver refuses to return car, insists owner pay expenses
Charged with theft
Decision (trial): Convicted
Decision (ONCA): Acquitted
Interpret "colour of right" in CrC theft provision broadly: No offence if "it may fairly be inferred that the
accused acted under a genuine misconception of fact or law"
The adversarial process
R. v. J.H.S., 2008 SCC 30
The appellant appealed his conviction for sexual assault of his step-daughter. He objected, inter alia, to
the trial judge's charge to the jury concerning the application of reasonable doubt to the issue of
credibility, even though his counsel did not object to the charge at trial.Appeal allowed; new trial
ordered; the trial judge failed to properly instruct the jury on the application of reasonable doubt to the
issue of credibility. In this case, the evidence was such that the jury's assessment of the credibility of the
complainant and the appellant was of great importance. Although there is no magic formula for charging
a jury on the principles of reasonable doubt as they apply to credibility, guidance must be provided as to
how, in the event they were uncertain or unable to resolve the issue of credibility, they were to proceed
with their deliberations. The charge failed to direct that if the jury did not believe the testimony of the
accused but were left in a reasonable doubt by that evidence, they must acquit. Per Saunders, J.A.,
dissenting, appeal dismissed; trial counsel expressed no difficulty with the charge to the jury and,
looking at the entire charge, the jury would not have been left under any misapprehension as to the
proper burden and standard of proof to apply. Testimony as to the 'bad behaviour' of the complainant
was properly allowed into evidence. This was neither an attempt at oath-helping nor character evidence
about the appellant and the evidence was highly relevant and crucial to the appellant's theory of the
case.
Police Powers
R. v. Le, 2019 SCC 34
Evidence found on a young racialized man who was detained by police without reasonable suspicion
can’t be used against him in court, the Supreme Court has ruled. One evening in 2012, Mr. Le and four
friends were hanging out in a backyard talking. Three police officers saw them. The officers hadn’t been
called there for any specific reason. They didn’t have a warrant. They had just been told that this was a
“problem address” for drug dealing and that a wanted suspect sometimes hung out there. They didn’t
see the men doing anything wrong. Even so, the officers came into the yard without asking permission.
They questioned the men, told one of them to keep his hands visible, and asked for ID. Mr. Le said he
didn’t have ID with him. The officer asked what was in the bag he was carrying. At that point, Mr. Le ran
away. He was arrested and found to have a gun, drugs, and cash. He was charged with ten crimes
related to these items. At his trial, Mr. Le said the items found on him couldn’t be used as evidence
against him. He said the police breached his rights under the Canadian Charter of Rights and Freedoms.
The Charter is part of Canada’s Constitution. Section 9 says that “everyone has the right not to be
arbitrarily detained or imprisoned.” This means that police can’t detain people, or put them in jail,
without a legal reason. Section 24(2) says that evidence taken by breaching someone’s rights can’t be
used if it “would bring the administration of justice into disrepute.” That means it can’t be used if
admitting it could make people lose faith in the justice system and the laws meant to protect them.
Everyone agreed that the police had no legal authority to make Mr. Le and his friends answer questions,
follow directions, or show ID. Everyone agreed that Mr. Le was detained at some point. The question
was exactly when, and whether there was a legal reason for it.
The trial judge said Mr. Le wasn’t detained until he was asked about his bag. He said the detention was
legal because the officers had reasonable suspicion of a crime by that point (they thought Mr. Le might
have a gun). He found Mr. Le guilty. A majority of the Court of Appeal agreed.
The majority at the Supreme Court said the detention was illegal. It said the police actions were so
shocking that the items they found by detaining Mr. Le couldn’t be used against him in court. The
majority said someone is “detained” when an ordinary person in the same situation would think that
they weren’t free to leave and had to comply with police demands. Mr. Le was a member of a racialized
community in a low-income area. Members of racial minorities and people living in low-income areas
often have more negative police contacts than other people do. An ordinary person stopped by the
police many times before would think they had to do what the police said.
The majority said Mr. Le was detained as soon as the officers entered the backyard. The majority noted
that the officers came in without warning and without any reasonable suspicion of a crime. (Someone
just saying that drug dealing was happening wasn’t enough.) Since they didn’t have reasonable
suspicion, what they did was illegal. The majority said this was exactly the kind of thing the Charter was
meant to protect people from. The police got the evidence against Mr. Le by walking into a backyard
and detaining him without a legal reason. If this were allowed, the majority said, people would lose faith
in the justice system. Police have to follow the Charter in all neighbourhoods and for all people, no
matter what their racial background or income. This helps people trust the law and the police, and
makes our communities safer.
The majority said the evidence the police found on Mr. Le couldn’t be used against him. It entered notguilty verdicts for the charges. This result wasn’t because the Charter doesn’t care about violence, drugs,
or community safety. It was because the illegal police actions were so serious. This case came to the
Supreme Court as an appeal “as of right.” That means there is an automatic right to appeal. The person
doesn’t need the Court’s permission. The right is automatic in criminal cases when a Court of Appeal
judge dissents (disagrees) on a point of law, as happened here. Cases in Brief are prepared by
communications staff of the Supreme Court of Canada to help the public better understand Court
decisions.
Breakdown of the decision: Majority: Justices Russell Brown and Sheilah Martin allowed the appeal
(Justice Karakatsanis agreed) | Dissenting: Justice Michael Moldaver said the trial judge’s findings about
how the police acted should stand, and since their actions weren’t serious and there was a strong public
interest in prosecuting the charges, he would have dismissed the appeal (Chief Justice Wagner agreed)
R. v. Stairs, 2022 SCC 11
The Supreme Court rules police did not violate an Ontario man’s privacy when they searched his home.
On June 1, 2017, police in Oakville, Ontario responded to a report about a man hitting a woman in a car.
The man was later identified as Matthew Stairs. Police found the car parked in the driveway with no one
inside, so they knocked on the front door of the house. When no one answered, the officers entered
through a side door. Inside, they found a woman with a bruised face. They found and arrested Mr. Stairs
in the basement. Police then looked around the basement living room and found drugs
(methamphetamine). Mr. Stairs was charged with possession of drugs for the purpose of trafficking, and
with assault and breach of probation. At trial, Mr. Stairs argued that police were not allowed to search
his home and therefore that the drug evidence could not be used against him. He invoked section 8 of
the Charter, which protects people from “unreasonable search or seizure”. Police testified they searched
the basement living room to address their safety concerns. Mr. Stairs was convicted of all charges.
He appealed his drug conviction to Ontario’s Court of Appeal, which found the police search had not
violated his section 8 Charter right.
He then appealed to the Supreme Court of Canada. The Supreme Court has dismissed the appeal. The
search did not violate Mr. Stairs’ section 8 Charter right. Writing for a majority of the judges of the
Supreme Court, Justices Moldaver and Jamal said the search of the basement living room did not violate
Mr. Stairs’ section 8 Charter right. Police had reason to suspect a safety risk, and that that their concerns
would be addressed by a quick scan of the room.
The judges said the search of the basement living room complied with section 8 of the Charter because:
(1) Mr. Stairs’ arrest was lawful; (2) the search was related to his arrest, was of the surrounding area
only and was conducted for safety reasons; and (3) the search accounted for the increased privacy
interests in a home. As a result, the drug evidence could be admitted at trial. “A fundamental and
longstanding principle of a free society is that a person’s home is their castle”, the judges wrote. They
added that this privacy interest must be balanced with valid law enforcement objectives. In other words,
police can search a home for safety reasons if the search is conducted in a reasonable manner and
accounts for the greater expectation of privacy in a person’s home.
Breakdown of the decision: Majority: Justices Moldaver and Jamal dismissed the appeal, holding the
search did not violate Mr. Stairs’ section 8 Charter right (Chief Justice Wagner and Justices Rowe and
Kasirer agreed) | Concurring: Justice Côté dismissed the appeal, finding that Mr. Stairs’ section 8 Charter
rights were violated, but that admitting the drug evidence would not bring the administration of justice
into disrepute | Dissenting: Justice Karakatsanis would have allowed the appeal (Justices Brown and
Martin agreed)
R. v. Marakah, 2017 SCC 59
On Friday, December 8, 2017, the Supreme Court released two decisions establishing that Canadians
may have a reasonable expectation of privacy in electronic communications they (may) have authored
which are found on devices or networks over which they have no control.
In R. v. Marakah, 2017 SCC 59, the police obtained warrants to search the home of the appellant and his
accomplice. The police seized the appellant’s BlackBerry and his accomplice’s iPhone. Incriminating
messages were found on both. At trial, the appellant successfully argued against the admission of the
text message found on his phone. However, the application judge found that the appellant had no
standing to argue that the text messages found on his accomplice’s iPhone should not be admitted. The
appellant was convicted of multiple firearms offences. The majority of the Ontario Court of Appeal
agreed that the appellant lacked standing and dismissed the appeal.
The issue before the Supreme Court was whether an accused “can never claim s. 8 protection for text
messages accessed through a recipient’s phone because the sender has no privacy interest in the
messages if they are not contained within his or her own device.”
In this respect, the majority disagreed with the application judge and the Ontario Court of Appeal,
finding that an accused can have a reasonable expectation of privacy in sent messages. Importantly,
however, the Supreme Court emphasized that not “every communication occurring through an
electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing
to make arguments regarding s. 8 protection.” Whether an accused has a reasonable expectation of
privacy in a sent text message (or other electronic communication) will depend on the particular facts of
the case.
The majority found that the appellant had a reasonable expectation of privacy in the messages he sent
to his accomplice’s iPhone. The Supreme Court noted that people generally expect private electronic
conversations to stay private, and as a result people often discuss personal matters. Indeed, the
majority observed, “it is difficult to think of a type of conversation or communication that is capable of
promising more privacy than text messaging. There is no more discreet form of correspondence.”
The majority acknowledged that when an individual sends a text message, they lose some control of
what happens to that text message, running the risk that the recipient will share it with others.
However, the majority noted that an individual who sends a text message to a specific individual
nevertheless has reasonable expectation that the state will not be able to access those communications.
The majority found that the appellant had standing to challenge the validity of the search, and found
that the search was unreasonable. The majority excluded the evidence under s. 24(2) and refused to
apply the curative proviso in s. 686(1)(b)(iii), which allows the court to dismiss an appeal where the
court concludes that the verdict would not have been different had the error not occurred. As a result,
the appeal was allowed, the convictions were set aside, and the appellant was acquitted.
In R. v. Jones, 2017 SCC 60, the police seized text messages from a Telus account possibly associated
with the appellant’s co-accused. The text messages were obtained pursuant to a production order under
s. 487.012 (now s. 487.014) of the Criminal Code. Some of the text messages seized were sent from a
phone registered to the appellant’s wife, but used by the appellant. The text messages concerned the
trafficking of firearms.
The appellant did not admit that he was the author of the text messages at trial, but the Crown’s theory
was that he was the author. The trial judge found that the appellant lacked standing to challenge the
production order.
One of the issues before the Supreme Court was whether the appellant could rely on the Crown’s theory
that he authored the text messages in order to challenge the production order. In order to challenge the
reasonableness of a search, the accused must establish that they have a subjective expectation of
privacy in the place or thing searched. However, the appellant was in a catch-22: if he admitted he was
the author of the text messages, then he could potentially challenge production order, but admitting he
was the author of the text messages would effectively require the accused to incriminate himself.
Recognizing the unenviable position of the accused, the majority found that the appellant could rely on
the Crown’s theory for standing on the s. 8 Charter argument. The majority reasoned that the threshold
for a subjective expectation is a low one, and that an accused should not have to incriminate himself in
order to hold the state to its constitutional obligations.
However, the majority ultimately upheld the production order as valid, and dismissed the appeal.
Taken together, Marakah and Jones strengthen Canadians’ right to be free from unreasonable search
and seizure by removing barriers that have in the past prevented accused from bringing s. 8 claims.
Marakah makes it possible for accused to bring s. 8 claims to challenge the admissibility of
communications they may have authored, but which are found on a device in which the otherwise
possess no interest (such as someone else’s cell phone). Jones, on the other hand, allows the accused to
establish a subjective expectation of privacy without incriminating themselves. The decisions will focus
courts on what is properly at the heart of the s. 8 inquiry: whether the accused has an objectively
reasonable expectation of privacy in communications seized by the police.
R. v. Mills, 2019 SCC 22
If someone has sexual conversations with a child they don’t know online, they can’t expect their
messages to stay private from the police, the Supreme Court has ruled. In 2012, a police officer created
fake Facebook and Hotmail accounts pretending to be “Leann,” a 14-year-old girl. Mr. Mills contacted
“Leann.”
He was 32, but pretended to be 23. Over the next two months, he sent “Leann” several messages and
emails, including a photo of his penis. Police used software to take screenshots of all the
communications. Eventually, Mr. Mills asked to meet “Leann” in a public park. He was arrested and
charged with child luring. This is the crime of talking to an underage person online (or using a cellphone)
to try to take advantage of them sexually. During his trial, Mr. Mills argued that police weren’t allowed
to run the undercover operation that led to his arrest.
He said they needed a judge’s permission. He said they breached his Charter right to privacy because
they didn’t have permission. Because of the breach, he said the evidence shouldn’t be allowed in court.
This would mean his conversations with “Leann” couldn’t be looked at. Privacy rights are found in
Section 8 of the Canadian Charter of Rights and Freedoms. The Charter is part of Canada’s Constitution.
Section 8 says that “everyone has the right to be secure against unreasonable search or seizure.” This
means the state can’t search or take something private without permission. To show a breach of privacy
rights, a person has to show that they should have been able to expect something would be kept
private. This is called a “reasonable expectation of privacy.” Part of this is subjective (that is, the person
actually thinks the thing should be private). Part of it is objective (that is, most other people would agree
it should be private). The state can still search or take something someone reasonably expects to be
private. But it has to have permission. Permission can be from a judge (like a warrant). It can also be
given if the law directly says so. In this case, the police said it wasn’t reasonable for Mr. Mills to expect
his conversations with “Leann” would be kept private.
They said they didn’t need permission to run the undercover operation or to screen-capture the
conversations. The trial judge agreed with Mr. Mills that police should have had a judge’s permission to
do some things. The judge said it was okay for the police officer who posed as “Leann” to capture their
conversations on Facebook and Hotmail. But using software to save screen-caps of the conversation was
an additional step. They should have gotten permission to do this. But the judge said the evidence
should be allowed anyway, and Mr. Mills was found guilty.
The Court of Appeal said the police didn’t need a judge’s permission. It said Mr. Mills couldn’t expect
privacy when he was messaging a child he didn’t know. All the judges at the Supreme Court agreed that
Mr. Mills should be found guilty. The majority said that Mr. Mills didn’t have a reasonable expectation of
privacy. He couldn’t have expected that his messages would be kept private when he was talking to a
child he didn’t know. (If he did know the child, then the conversations might be private.) In this case, the
police knew for sure Mr. Mills didn’t know “Leann,” because they invented her. That meant there was
no chance of a privacy breach. There was no reason a judge shouldn’t look at the messages Mr. Mills
sent to “Leann” to decide if he was guilty. This case involved online messages, but the majority said text
messages would also be treated the same when it comes to privacy rights. All the judges at the Supreme
Court agreed courts shouldn’t just look at whether something is actually private. (Just because
something is exposed doesn’t mean it isn’t private anymore.) Instead, they should look at what a person
ought to be able to expect to be private in our society.
Most judges agreed it isn’t reasonable to expect this kind of conversation would be kept private. The
Court decided two other cases involving privacy rights in the months before this one: R. v. Reeves in
December 2018 and R. v. Jarvis in February 2019. It decided another case about child luring, R. v.
Morrison, in March 2019.
Breakdown of the Decision: Majority: Justice Russell Brown dismissed the appeal (Justices Abella and
Gascon agreed) | Concurring: Justice Andromache Karakatsanis would have dismissed the appeal
because it was not reasonable to expect that the messages would be kept private from the intended
recipient, even if that recipient was an undercover police officer (Chief Justice Wagner agreed) |
Concurring: Justice Michael Moldaver agreed with the reasons of both Justices Brown and Karakatsanis,
and would have dismissed the appeal | Concurring: Justice Sheilah Martin said police needed permission
and Mr. Mills’ privacy rights were breached, but the evidence should be allowed anyway, and so she
would have also dismissed the appeal.
Securing Jurisdiction over the Accused and Interim Release
R. v. Lafrance, 2022 SCC 32
Who
Police locate a man bleeding heavily from a neck wound. The victim is transported to hospital where he
later dies.
Police suspect Lafrance of being involved in the homicide, and obtain and execute a search warrant on
his home. Lafrance agrees to speak with police, having not yet been arrested, and is taken to a nearby
police station to be interviewed.
Lafrance is allowed to leave the police station after the interview, but is arrested for the homicide
approximately 3 weeks later.
What
On the day of the search warrant, police interrogate Lafrance for over three hours. They obtain a blood
sample, fingerprints, his cell phones, and clothing. At no point is he told that he can speak with a lawyer.
On the day of his arrest, Lafrance is told he can contact a lawyer and talks briefly with Legal Aid, who
indicate he should “get a lawyer” to speak to.
Following the call, Lafrance is interrogated for several hours, ultimately confessing to the murder.
Where
The trial is heard in the Alberta Court of Queen’s Bench (ABQB). Lafrance is acquitted of first-degree
murder, but convicted by a jury for second-degree murder.
Lafrance appeals to the Alberta Court of Appeal (ABCA), on the basis that the trial judge erred in
allowing both of his statements, as well as other evidence obtained in the interviews, to go before the
jury.
The Court agrees, finding that his Charter rights under s. 10(b) – to seek the advice of a lawyer and be
informed of that right – were breached, and that the evidence should not have been put before the jury.
The Court orders a new trial in a split decision.
The Crown appeals to the Supreme Court of Canada (SCC). A split SCC upholds the decision of the ABCA,
and a new trial is ordered.
Why
Detention
Detention is the “suspension of an individual’s liberty interest by virtue of a significant physical or
psychological restraint at the hands of the state” (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para
21).
Three factors are considered:
1. The circumstances giving rise to the encounter as they would reasonably be perceived by the
individual;
Whether the police were providing general assistance; maintaining general order; making general
inquiries regarding a particular occurrence; or, singling [him out] for focused investigation”
2. The nature of the police conduct
Includes police “actions and language used, their use of physical contact, the place where the encounter
occurred, the presence of others, and the duration of the encounter”
3. The particular characteristics or circumstances of the individual where relevant
Includes “age[,] physical stature[,] minority status[, and] level of sophistication” of the accused
The SCC determined that Lafrance was detained at the time of both statements, including the
interrogation prior to his arrest. Lachance was a young Indigenous man with minimal police experience,
awoken in his home by armed officers giving him commands, and remained under near constant
supervision of the police during the encounter (para 63).
The SCC held that a reasonable person in Lafrance’s shoes, would have felt obligated to comply with
police demands and conclude they were not free to go (para 64).
Right to counsel
It remains well settled law that when someone is detained by police, their s.10(b) Charter right to retain
counsel, and right to be informed of that right, is engaged.
The SCC found a Charter breach on the search warrant day interrogation, as Lafrance was never told of
his right to contact a lawyer, nor given an opportunity to do so.
The SCC further held an additional breach occurred during the interrogation on the day of arrest.
Section 10(b) of the Charter has an informational and implementational component:
Informational – police must advise a detainee of their right to counsel
Implementational – police must allow a detainee to exercise their right to counsel - i.e. communicate
with a lawyer for advice
Typically, one phone call is all an accused gets. In exceptional circumstances, more may be required,
including (para 72):
Police invite the accused to take part in non-routine procedures that the lawyer would not have
considered when talking to the accused
Change in jeopardy that could affect the adequacy of the advice received
Reason to question detainee’s understanding of their rights
Lafrance had made comments to the police that made it clear he did not understand his rights when
speaking with them. This included not knowing “the benefits and drawbacks of cooperating with the
police investigation, as well as strategies to resist cooperation that should be the detainee’s choice”
(para 71)
“His confusion was an “objective indicat[or] that renewed legal consultation was required to permit him
to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do
so” (Sinclair, at para. 55). And this is because the information to which he had a right under s. 10(b) had
not been conveyed, either at all or in a manner he understood. (para 86)”
The Gist
Detention
The SCC reaffirm the standard for detention in Grant (2009 SCC 32) and Le (2019 SCC 34), and reject the
standard in Moran ((1987), 36 C.C.C. (3d) 225)
“Even absent physical restraint by the state, a detention exists in situations where a reasonable person
in the accused’s shoes would feel obligated to comply…and that they are not free to leave” (Le at para
26)
Right to counsel
Where police have reason to question a detainee’s understanding of their rights, they must take
proactive steps even if the detainee has already spoken with a lawyer and received advice.
This concern is heightened where the detainee is especially vulnerable, including the young, Indigenous,
and those lacking in experience with the police.
Disclosure and Production
R. v. J.J., 2022 SCC 28
The Supreme Court finds constitutional a new procedure in the Criminal Code for deciding if a
complainant’s private documents can be used by an accused in a sexual offence trial. J.J. was accused of
sexual assault in British Columbia. His identity is protected by a publication ban. Shane Reddick was also
accused of the same in Ontario. In both cases, the men argued that sections 278.92 to 278.94 of the
Criminal Code are unconstitutional. Those provisions set out how a judge decides if a complainant’s
private documents (called “records” in the Criminal Code) can be used by the accused during their trial
for a sexual offence. This is known as the record screening process. These provisions are also used to
decide how evidence of the complainant’s past sexual activity can be used. Evidence like private
documents and past sexual activity can be allowed in certain circumstances. J.J. had records of
communications between himself and the complainant. He wanted to use those records to crossexamine the complainant. Likewise, Mr. Reddick wanted to cross-examine the complainant in his case,
but on evidence of her past sexual activity. Before their trial, both J.J. and Mr. Reddick asked a judge to
decide that the record screening process violated three of their rights under the Canadian Charter of
Rights and Freedoms: the right to remain silent and to not self-incriminate, the right to a fair trial, and
the right of an accused to present evidence in their defence and challenge the evidence against them. In
J.J.’s case, the judge found one aspect of the record screening process unconstitutional. Both the Crown
and J.J. appealed the judge’s decision to the Supreme Court of Canada. A jury later found J.J. not guilty,
and the Crown has not appealed the acquittal.
In Mr. Reddick’s case, the judge found the entire record screening process unconstitutional. The
complainant asked the Supreme Court for permission to appeal that decision. She said it affected the
right of sexual assault complainants to participate in decision-making about how details of their private
sexual lives would be used in a public courtroom. The Supreme Court gave her permission. The Supreme
Court has found the record screening process in sections 278.92 to 278.94 of the Criminal Code
constitutional. The record screening process does not violate the Charter rights of the accused. Writing
for a majority of the judges of the Supreme Court, Chief Justice Richard Wagner and Justice Michael
Moldaver said the accused’s rights are not violated. The accused’s right to silence is not in issue because
they are not forced to testify during the record screening process.
Also, the accused’s right to a fair trial does not mean they can receive the most advantageous or
beneficial trial possible. Finally, the accused’s right to present and challenge evidence is not unlimited.
Ambushing complainants with their own highly private records at trial can be unfair to complainants and
may be contrary to the search for truth. The majority explained that sections 278.92 to 278.94 of the
Criminal Code were created to remove barriers preventing sexual assault victims from coming forward.
The goal of those sections was to have a process to protect the interests of complainants in their own
private documents when an accused has those documents and wants to use them at trial. This process
balances the rights and interests of the accused, the complainant and the public, the majority said.
Breakdown of the decision: Majority: Chief Justice Wagner and Justice Moldaver found the record
screening process constitutional in its entirety (Justices Karakatsanis, Martin, Kasirer and Jamal agreed) |
Dissenting in Cases in Brief are prepared by communications staff of the Supreme Court of Canada to
help the public better understand Court decisions. They do not form part of the Court’s reasons for
judgment and are not for use in legal proceedings. part: Justice Brown found the record screening
process unconstitutional for private records but constitutional for evidence of past sexual activity |
Dissenting in part: Justice Rowe agreed with Justice Brown, and explained how to make a decision when
sections 7 and 11 of the Charter are brought up at the same time | Dissenting in part: Justice Côté
agreed with Justices Brown and Rowe but would have interpreted more narrowly some of the terms in
the relevant Criminal Code provisions.