SUMMARY: CRIMINAL LAW (BERGER) 2020
Table of Contents
SUMMARY .........................................................................................................................................1
I. The Nature of Criminal Law .............................................................................................................2
1. Sentencing and Punishment .......................................................................................................2
2. Limits of Criminal Law: Morality and Harm..................................................................................9
3. Codification and Interpretation of Criminal Law ........................................................................ 15
4. The Charter and Exclusion Of Evidence ..................................................................................... 25
II. Criminal Procedure ....................................................................................................................... 31
1. Search and Seizure ................................................................................................................... 31
2. Arrest and Detention ................................................................................................................ 37
3. Confessions, Right to Counsel and Right to Silence .................................................................... 49
4. The Trial Process and the Role of Counsel ................................................................................. 55
III. Actus Reus – The Criminal Act ...................................................................................................... 62
1. Contemporaneity and Voluntariness ......................................................................................... 62
2. Omissions, Status and Circumstances........................................................................................ 67
3. Consequences and Causation.................................................................................................... 71
IV. Mens Rea – The Mental Element ................................................................................................. 77
1. Mens Rea and Intent ................................................................................................................ 77
2. Recklessness, Willful Blindness, Criminal Negligence and Penal Negligence................................ 79
3. Constitutional Limits ................................................................................................................ 84
4. Regulatory Offences and Absolute and Strict Liability ................................................................ 86
V. Sexual Assault.............................................................................................................................. 91
1. Framing Principles and Actus Reus ............................................................................................ 91
2. Mistake of Fact and Mistaken Belief in Communicated Consent ................................................ 96
VI. Defences ................................................................................................................................... 104
1. Intoxication............................................................................................................................ 104
2. Mental Disorder ..................................................................................................................... 111
3. Self-Defence........................................................................................................................... 117
4. Duress ................................................................................................................................... 122
5. Necessity ............................................................................................................................... 125
Summary: Criminal Law (Berger) 2020
I. The Nature of Criminal Law
1. SENTENCING AND PUNISHMENT
A. Purposes and Principles of Sentencing (S. 718 of Criminal Code)
- Purpose
o S. 718 The fundamental purpose of sentencing is to protect society and to contribute,
along with crime prevention initiatives, to respect for the law and the maintenance of a
just, peaceful and safe society by imposing just sanctions that have one or more of the
following objectives:
 (a) to denounce unlawful conduct and the harm done to victims or to the
community that is caused by unlawful conduct;
 (b) to deter the offender and other persons from committing offences;
 (c) to separate offenders from society, where necessary;
 (d) to assist in rehabilitating offenders;
 (e) to provide reparations for harm done to victims or to the community; and
 (f) to promote a sense of responsibility in offenders, and acknowledgment of
the harm done to victims or to the community.
- Objectives — offences against children
o S. 718.01 When a court imposes a sentence for an offence that involved the abuse of a
person under the age of eighteen years, it shall give primary consideration to the
objectives of denunciation and deterrence of such conduct.
- Objectives — offence against peace officer or other justice system participant
o S. 718.02 When a court imposes a sentence for an offence under subsection 270(1),
section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary
consideration to the objectives of denunciation and deterrence of the conduct that
forms the basis of the offence.
- Objectives — offence against certain animals
o S. 718.03 When a court imposes a sentence for an offence under subsection 445.01(1),
the court shall give primary consideration to the objectives of denunciation and
deterrence of the conduct that forms the basis of the offence.
- Objectives — offence against vulnerable person
o S. 718.04 When a court imposes a sentence for an offence that involved the abuse of a
person who is vulnerable because of personal circumstances — including because the
person is Aboriginal and female — the court shall give primary consideration to the
objectives of denunciation and deterrence of the conduct that forms the basis of the
offence.
- Fundamental Principle
o S. 718.1 A sentence must be proportionate to the gravity of the offence and the
degree of responsibility of the offender.
- Other sentencing principles
o S. 718.2 A court that imposes a sentence shall also take into consideration the following
principles:
o (a) a sentence should be increased or reduced to account for any relevant aggravating
or mitigating circumstances relating to the offence or the offender, and, without limiting
the generality of the foregoing,
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
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(i) evidence that the offence was motivated by bias, prejudice or hate based on
race, national or ethnic origin, language, colour, religion, sex, age, mental or
physical disability, sexual orientation, or gender identity or expression, or on
any other similar factor,
 (ii) evidence that the offender, in committing the offence, abused the offender’s
intimate partner or a member of the victim or the offender’s family,
 (ii.1) evidence that the offender, in committing the offence, abused a person
under the age of eighteen years,
 (iii) evidence that the offender, in committing the offence, abused a position of
trust or authority in relation to the victim,
 (iii.1) evidence that the offence had a significant impact on the victim,
considering their age and other personal circumstances, including their health
and financial situation,
 (iv) evidence that the offence was committed for the benefit of, at the direction
of or in association with a criminal organization,
 (v) evidence that the offence was a terrorism offence, or
 (vi) evidence that the offence was committed while the offender was subject to
a conditional sentence order made under section 742.1 or released on parole,
statutory release or unescorted temporary absence under the Corrections and
Conditional Release Act
o shall be deemed to be aggravating circumstances;
o (b) a sentence should be similar to sentences imposed on similar offenders for similar
offences committed in similar circumstances;
o (c) where consecutive sentences are imposed, the combined sentence should not be
unduly long or harsh;
o (d) an offender should not be deprived of liberty, if less restrictive sanctions may be
appropriate in the circumstances; and
o (e) all available sanctions, other than imprisonment, that are reasonable in the
circumstances and consistent with the harm done to victims or to the community
should be considered for all offenders, with particular attention to the circumstances
of Aboriginal offenders.
Additional consideration — increased vulnerability
o S. 718.201 A court that imposes a sentence in respect of an offence that involved the
abuse of an intimate partner shall consider the increased vulnerability of female persons
who are victims, giving particular attention to the circumstances of Aboriginal female
victims.
Bill C-41
R v Proulx, 2000 SCC 15
Keywords: purposes and principles of sentencing, Bill C-41
Findings
Court provided overview of Bill C-41:
- In Sept. 1996, Bill C-41 came into effect and substantially reformed the Criminal Code
- It introduced an express statement of the purposes and principles of sentencing
- It was enacted as part of a response to the issue of overincarceration in Canada and to
improve the effectiveness of sentencing
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Summary: Criminal Law (Berger) 2020
-
Parliament had two principal objectives in enacting Bill C-14
o 1. Reducing the use of prisons as a sanction
 S. 718.2(d) an offender should not be deprived of liberty, if less restrictive
sanctions may be appropriate in the circumstances; and
 S. 718.2(e) all available sanctions, other than imprisonment, that are
reasonable in the circumstances and consistent with the harm done to
victims or to the community should be considered for all offenders, with
particular attention to the circumstances of Aboriginal offenders.
o 2. Expanding the use of restorative justice principles
 Bill expanded the principles of sentencing beyond the traditional
denunciation, deterrence and separation, and focused on rehabilitation
 A restorative justice approach seeks to remedy the adverse effects of a crime
in a manner that addresses the needs of all parties involved: the victim, the
community and the offender
 This is accomplished in part through the rehabilitation of the offender,
reparations to the victim and to the community and the promotion of a sense
of responsibility in the offender and acknowledgement of the harm done to
the victim and community
B. Indigenous Overincarceration and S. 718.2(e)
- Indigenous adults and youth are disproportionally represented relative to their presence in the
overall population, both within criminal courts and within jails and prisons
- 2016-17 – 5% of Canadian population but 23% of offender population in the federal prison
- As of March 2019, Indigenous women accounted for 41% of all federally incarcerated women
- 2017-18, Indigenous offenders accounted for 28% of adults and 46% of youth in provincial or
territorial custody (while representing only 8% of Canadian youth population)
- In response, Parliament included s. 718.2(e) in Bill C-14:
o (e) all available sanctions, other than imprisonment, that are reasonable in the
circumstances and consistent with the harm done to victims or to the community should
be considered for all offenders, with particular attention to the circumstances of
Aboriginal offenders.
R v Gladue, [1991] 1 SCR 688
Keywords: s. 718.2(e) sentencing of Aboriginal offenders; Gladue reports
Facts
- Suspecting that her fiancé had cheated, Gladue stabbed and killed him
- There was evidence that Gladue was intoxicated at the time, was “jumping up and down” and
did not appear to realize what she had done
- After the stabbing, she was diagnosed with and underwent treatment for a hyperthyroid
condition which can cause exaggerated emotional reactions
- There was also evidence that the deceased had physically abused her while she was pregnant
- At sentencing hearing, she expressed remorse, but her lawyer did not raise that she was an
Aboriginal offender and when asked by the sentencing judge whether she grew up in an
Aboriginal community, her lawyer said “it’s just a regular community”
- Gladue pleaded guilty to manslaughter and was sentenced to 3-years imprisonment
- Sentence was appealed on basis that trial judge failed to apply s. 718.2(e) which requires that
“all available sanctions, other than imprisonment, that are reasonable in the circumstances
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Summary: Criminal Law (Berger) 2020
and consistent with the harm done to victims or to the community should be considered for
all offenders, with particular attention to the circumstances of Aboriginal offenders.”
Issue – How should s. 718.2(e) of the Criminal Code be applied to Aboriginal offenders?
Findings
Purpose of s. 718.2(e)
- Purpose of s. 718.2(e) is to respond to the problem overincarceration in Canada and to the
disproportionate incarceration of Aboriginal peoples (remedial purpose)
- In combination with the sentencing principles set out in s. 718, s. 718.2(e) is intended to
encourage sentencing judges to apply principles of restorative justice alongside or in place of
other, more traditional sentencing principles when making sentencing determinations
Applying s. 718.2(e) to Sentencing of Aboriginal Offenders
- The fundamental duty of a sentencing judge is to impose a sentence that is fit for the offence
and the offender (i.e. violent and serious will result in imprisonment for Aboriginal and nonAboriginal offenders)
- S. 718.2(e) is a direction to alter the method of analysis which each sentencing judge must
use in determining the nature of a fit sentence for an Aboriginal offender
- S. 718.2(e) applies to all Aboriginal persons, whether they reside on- or off-reserve, in a
large city or a rural area
- In sentencing an Aboriginal offender, the judge must consider:
o (A) The unique systemic or background factors which may have played a part in
bringing the particular Aboriginal offender before the courts
o (B) The types of sentencing procedures and sanctions which may be appropriate in
the circumstances for the offender because of his or her particular Aboriginal
heritage or connection
 In this analysis, the judge must consider all available sanctions other than
imprisonment
 If there is no alternative to incarceration, the length of the term must be
carefully considered
- In order to undertake these considerations, the trial judge will require information pertaining
to the accused; however, the offender may waive the gathering of this information
o Judges may take judicial notice of the broad systemic and background factors
affecting Aboriginal people, and of the priority given in Aboriginal cultures to a
restorative approach to sentencing
o Case-specific information will come from counsel and from a pre-sentence report
which outline the factors in the above test and may come from representations of the
relevant Aboriginal community
Application
- Trial judge failed to apply s. 718.2(e) to Gladue and in most cases, this would have been
sufficient to justify sending the matter back for a new sentencing hearing
- However, the serious nature of her offence (murder and domestic violence against an
intimate partner) are aggravating factors that must be taken into account
- For that offence, a sentence of three years imprisonment was not unreasonable
- More importantly, Gladue had been granted parole after serving 6 months of the sentence
and had a controlled release (ankle monitor, must reside with father, and alcohol and
substance abuse counselling) which was in the interest of both Gladue and society
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Held: it’s not in the interest of justice to order a new sentencing hearing to review her
circumstances as an Aboriginal offender; appeal dismissed
Post-Glade Failures
- In the decade following Gladue, s. 718.2(e) had not had a discernable impact on the
overrepresentation of Aboriginal people in the criminal justice system
- This failure was partly attributed to the fundamental misunderstanding and misapplication of s.
718.2(e) in Gladue, which the SCC sought to rectify in Ipeelee
R v Ipeelee, 2012 SCC 13
Keywords: s. 718.2(e)
Facts:
- Ipeelee was an alcoholic with history of committing violent offences while intoxicated
- He was designated a long-term offender and made subject of a long-term supervision order
(LTSO) due to his high risk of reoffending
- On latest offence, he was sentenced to six years imprisonment
- After his release, he breached the LTSO by committing another offence while intoxicated and
was sentenced to three years imprisonment
Issue – Whether s. 718(e) applies to sentencing of long-term Aboriginal offenders
Findings
- Post-Gladue cases reveal several issues with the implementation of s. 718.2(e)
- 1. Some cases erroneously suggest that an offender must establish a causal link between
background factors and the commission of the current offence before being entitled to have
those matters considered by the sentencing judge
o Held: Systemic and background factors are not an excuse or justification for the
criminal conduct; they provide the necessary context to enable the judge to
determine the appropriate sentence
- 2. Irregular and uncertain application of Gladue principles to sentencing decisions for serious
or violent offences
o Held: Application of Gladue principles is required in every case involving an Aboriginal
offender, including breach of an LTSO, and failure to do so is inconsistent with the
fundamental principle of proportionality and is an error justifying appellate review
Application
- Sentencing judge erred in concluding that rehabilitation was not a relevant objective when
sentencing for breach of an LTSO
- Court substituted the sentence to 1 year imprisonment
Indigenous Overrepresentation Continues Today
- Why has overrepresentation of Aboriginals in prison continued to increase since Ipeelee?
- Relative youth of Canada’s Indigenous population
- Lack of adequate funding support and training for the preparation of Gladue reports
- Socio-economic issues including education, health, high child welfare apprehension rates, high
criminal victimization rates especially of Indigenous women and youth and systemic bias and
institutional bias
- TRC Report:
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Summary: Criminal Law (Berger) 2020
o
o
o
The decisions in Gladue and Ipeelee recognize that the application of a uniform one-size
fits all approach to punishment will be discriminatory and ineffective given the
treatment of Aboriginal people in Canadian society
Incarceration fails to address the underlying causes of offending behaviour in a manner
that supports their mental, spiritual and cultural needs or reduces crime
Need sufficient and stable funding for community sanctions that provide realistic
alternatives for Aboriginal offenders and respond to the underlying causes of offending
Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls
- Indigenous women and girls are disproportionately overrepresented in provincial and federal
prisons; Indigenous women make up 4% of the Canadian population and 40% of the federal
prison population
- Rate of incarceration of Indigenous women is the fastest growing; from 2009-2019, the number
of Indigenous women sentenced to federal institutions grew by 60%
- Why are they overrepresented in prison?
o They experience violence at a disproportionate rate and when they are incarcerated for
a violent crime, it is often in defense of or reactive to violence directed at themselves,
their children or a third party
o Canada’s correctional and justice system are deeply rooted in colonialism and Western
values and attitudes about Indigenous women and culture
o System criminalizes acts that are the direct result of survival for Indigenous women
 This repeats the pattern of colonialism because it places the blame and
responsibility on the women and their choices and ignores the systemic
injustices and intergenerational trauma that they experience, which often lead
them to commit crimes
 Poverty, food insecurity, mental health issues, addiction and violence, all parts
of Canada’s past and present colonial legacy, are systemic factors that lead to
the incarceration of Indigenous women
o Because the state is not held accountable for its abuses and because the system does
not reflect the cultural history, realities and conceptions of justice of Indigenous
peoples, it recreates patterns of state-sanctioned control, assimilation and trauma
o Often times when Indigenous women want to exercise their right to a Gladue report,
they are denied this right or face challenges
 Many women also feel shame and humiliation having to reveal their histories to
Gladue reporters who are often non-Indigenous or lack experience or
awareness of Indigenous histories; many omit certain facts out of shame
 Details in the reports often result in high-risk status being applied in sentencing
- Recommendations:
o Community-based resources can better address underlying issues of incarceration
(trauma, poverty and other effects of colonization) by using the strengths of cultural
practices for healing
o Any meaningful recommendations must come from the communities that are affected
so that the solutions reflect their practices, beliefs and cultures
o Must be given funding to support community-led solutions to prevention and
reintegration associated with crime
o We must understand what justice has meant and does mean to Indigenous people
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Summary: Criminal Law (Berger) 2020
Rethinking the Crisis of Indigenous Mass Imprisonment (Efrat Arbel)
- Arbel argues that the use of the term “crisis” to describe mass imprisonment of Indigenous
people is a dangerous and misleading term for two reasons:
- 1. “Crisis” implies that Indigenous mass imprisonment is exceptional and temporary
o While this language captures the urgency and severity of the issue, mass imprisonment
and rising rates of Indigenous incarceration are predictable outcomes of colonialism
o By presenting it as atypical, this language makes it more difficult to recognize Indigenous
mass imprisonment as colonial violence
- 2. “Crisis” suggests that Indigenous mass imprisonment is capable of resolution through a
decisive change or juncture
o Simply recognizing a crisis does little to challenge or disrupt the practice
o Gladue and Ipeelee fail to assign legal responsibility for the crisis and disperse
responsibility for its production; by doing so, the court deploys the same colonial
justificatory framework it critiques
C. Prisons and Punishment
- It is in jails that offenders actually experience the punishment meted out by judges
- Thus, it is the conditions and practices in prisons that will have the most direct effect on the true
nature and gravity of the sentence imposed
- We need to move beyond the purposes and principles of sentencing and pay more attention to
the nature and realities of criminal justice
- How the Prison is a Black Box in Punishment Theory (Lisa Kerr)
o In criminal law, the power to punish is the power to incarcerate
o While sentencing is focused on delivering a penalty that is proportionate to the
wrongdoing, the ability of prisons to do so is presumed rather than investigated
o Imprisonment can affect individuals in vastly different ways and prison conditions and
administration vary from one another
o Sentencing hearings focus on the length of sentences and not on the concerns about the
administration or quality of the prison system at the time they impose custodial
sanctions
- When sentencing, judges do not know how an offender will be classified in the correctional
system and therefore whether they will serve their sentence in a maximum, medium or
minimum-security institution
o Does such information affect whether a given sentence is “proportionate to the gravity
of the offence and the degree of responsibility of the offender?
- Justice Arbour in the Report of the Commission of Inquiry into Certain Events at the Prison for
Women in Kingston
o The management of segregation and the administration of the grievance process
undermines the rehabilitative prospects of inmates
o Correctional Service of Canada demonstrates a disturbing lack of commitment to the
ideas of justice and there is nothing to suggest it is willing or able to reform with judicial
guidance and control
o Because of their smaller numbers, women experience incarceration differently than
men: more self-harm, harsher conditions, greater family dislocation, no vocational
training opportunities, placement in facilities that don’t match their classification
o “Most significantly, women offenders as a group have a unique history of physical and
sexual abuse. Considerably more attention has been devoted to efforts to rehabilitate
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Summary: Criminal Law (Berger) 2020
-
-
male sex offenders than to assist women offenders whose own sexual abuse has never
been addressed.”
o Recommended sweeping reforms including regulations that would provide that if
illegalities, gross mismanagement or unfairness in the administration of the sentence
renders a sentence harsher than imposed by the court:
 A) in the case of a non-mandatory sentences, a reduction of the period of
imprisonment granted, to reflect the fact that the punishment administered was
more punitive that the one intended
 B) in the case of mandatory sentence, the same factors be consider as militating
toward early release
2018-2019 Annual Report of the Office of the Correctional Investigator
o Since 2010, the population of white inmates decreased by 23% while the Indigenous
population increased by 52%
o Indigenous peoples are not only incarcerated at disproportionate rates, they also suffer
disproportionately while in prison and have worse correctional outcomes
o Indigenous offenders tend to serve a longer proportion of their sentence in prison
before being released on parole compared to non-Indigenous offenders
o Indigenous offenders also have a higher rate of attempted suicide while imprisoned and
a higher rate of return post-release
o For Aboriginal women, prison is an extension of life on the outside; they contain more
white authority that is sexist, racist and violent
Prison Abolition and Grounded Justice (Allegra McLeod)
o The profound social and racial inequities generated by imprisonment means it is not a
defensible practice and calls for prison abolition
o Prison abolition seeks to end the use of punitive policing and imprisonment as the
primary means of addressing what are social, economic and political problems
o It calls for reducing reliance on incarceration and building social institutions that would
render incarceration unnecessary
o We must develop an ethic that recognizes the violence, dehumanization and moral
wrong inherent in any act of caging or chaining – or otherwise confining and controlling
by penal force – human beings
2. LIMITS OF CRIMINAL LAW: MORALITY AND HARM
A. Limits of Criminal Law
- Criminal law is among the most intrusive and violent tools at the disposal of the state
- The ability of the criminal law to deprive an individual of his basic liberty raises questions on
whether there are limits on the kinds of ends for which it can be used
- Key question: should the criminal law only respond to harm or does it have a role in proclaiming
and enforcing the values and moral views of the community
- Principle of Liberty – government power ought to be used as sparingly as possible, leaving as
much space as possible for each individual to exercise his liberty of thought, expression and
action
- Harm Principle – the only purpose for which power can be rightfully exercised over any member
of a civilized community, against his will, is to prevent harm to others
o His own good, either physical or moral, is not a sufficient warrant
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o
o
He cannot be compelled to do something because it will be better for him, make him
happier or, in the opinion of others, because it would be wise or right for him to do so
Government power to achieve moral ends is illegitimate and the only legitimate use of
its coercive power/force is to prevent harm to others
The Enforcement of Morals (Patrick Devlin)
- The smooth functioning of society and the preservation of order require that a number of
activities should be regulated
- Criminal law rules are designed to simply achieve uniformity and convenience and rarely involve
any choice between good and evil
- Function of criminal law is the preservation of order and decency and the protection of the lives
and property of citizens
- In carrying out these roles, criminal law overlaps with moral law; crimes of violence are morally
wrong and are offences against good order, so they violate both laws
o Law appears to be arbitrary but frequently concerns itself with the enforcement of
morals, especially sexual morals
o Criminal law is based upon moral principles historically derived from Christian teaching
- A complete separation of crime from moral sins would not be good for criminal law
- Every society has a political structure and a moral structure, including ideas about the way its
members should behave govern their lives
o A society is a community of ideas – without shared ideas on politics, morals and ethics,
no society can exist
o A common morality is the bond that holds a society together and without it, the society
will disintegrate
o As such, society is justified in taking steps to preserve its moral code and we must not
set limits on the power of the State to legislate against immorality
- Lawmakers must ascertain the moral judgements of society not by majority opinion but through
the reasonable man standard
o He is the man in the jury box, for moral judgement of society must be something about
which any 12 men or women drawn at random would be unanimous
- Nothing should be punished by law that does not lie beyond the limits of tolerance
o It is not enough to say that a majority dislike a practice; there must be a real feeling of
reprobation
- The limits of tolerance shift – while moral judgements consistently remain those for which are
good for that society, the extent to which society will tolerate departures from moral standards
varies from generation to generation
- However, laws, especially those which are based on morals, are less easily moved
o It is a matter of good principle that in any new matter of morals, the law should be slow
to change because by the next generation, the swell of indignation may have abated,
and the law would be left without the strong backing it needs
o Law is concerned with the minimum, not with the maximum
Immortality and Treason (HLA Hart)
- Cautions against turning popular feeling into criminal law
- Affirms the harm principle because harm is a better basis to guide legislation than morality
- Morality runs the risk of law falling to the tyranny of the majority
- Society won’t collapse if the criminal law does not set out and enforce morality
- Law should not enforce morality except where there is clear and tangible harm to others
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Summary: Criminal Law (Berger) 2020
R v Malmo-Levine, R v Caine 2003 SCC 74
Keywords: harm principle
Facts
- Accused in each case charged with drug offences
- Caine argued that it is a violation of the principles of fundamental justice for Parliament to
provide a term of imprisonment as a sentence for conduct such as simple possession of
marijuana which results in little to no harm to other people
- Malmo-Levine puts in issue the constitutional validity of the prohibition against possession for
the purpose of trafficking marijuana
Issues: (1) Does Parliament have the legislative authority to criminalize simple possession of
marijuana? (2) If so, has that power been exercised in a manner that is contrary to the Charter
Majority Findings on Issue 1 – Does Parliament have the legislative authority to criminalize simple
possession of marijuana? – Yes
- It is within Parliament’s legislative jurisdiction to criminalize
- For a law to be classified as a criminal law, it must possess three prerequisites:
o 1. 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. (Reference re Firearms Act (Can.),
[2001] 1 SCR 733)
o 2. Some legitimate public purpose must underlie the prohibition (RJR-MacDonald Inc.
v Canada (AG), [1995] 1 SCR 199). In Labatt Breweries, court held that a health hazard
may ground a criminal prohibition.
o 3. Parliament cannot use its authority improperly to invade areas of provincial
competence (Scowby v. Glendinning, [1986] 2 SCR 226)
Application
- Marijuana is a psychoactive drug which “causes alteration to mental function” and certain
groups in society, including pregnant women, schizophrenics, chronic users and adolescents,
are particularly vulnerable to its effects
- Advancing the protection of these vulnerable individuals is a policy choice that falls within the
broad legislative scope conferred on Parliament
- The use of marijuana is therefore a proper subject matter for the exercise of the criminal law
power; if there Is a reasoned apprehension of harm, then Parliament is entitled to act
- It is open to Parliament to decriminalize or otherwise modify any aspect of marijuana laws
that it no longer considers to be good public policy
Majority Findings on Issue 2– Has that power been exercised in a manner that is contrary to the
Charter? Specifically, since the liberty interests of the accused are engaged by the risk of
imprisonment, does this deprivation offended any principles of fundamental justice? – No
Test – What is a principle of fundamental justice:
- For a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7 ,
it (a) must be a legal principle (b) about which there is significant societal consensus that it is
fundamental to the way in which the legal system ought fairly to operate, and (c) it must be
identified with sufficient precision to yield a manageable standard against which to measure
deprivations of life, liberty or security of the person.
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Is the criminal law limited to the harm principle (it can only prohibit acts that cause harm to others)?
Is the harm principle a principle of fundamental justice? – No
- Appellants argued that the harm principle is a principle of fundamental justice and so unless
the state can establish that the use of marijuana is harmful to others, the prohibition against
simple possession cannot comply with s. 7
- Held: The harm principle is not a principle of fundamental justice
o (a) the harm principle is better characterized as an important state interest rather
than a legal principle
o (b) there is no sufficient consensus that the harm principle is the sole justification for
criminal prohibition and the state may sometimes be justified in criminalizing conduct
that is either not harmful or that causes harm only to the accused
o (c) harm principle is not a manageable standard under which to review laws under s.
7 because we lack an agreed definition for harm
Is the possibility of imprisonment for simple possession contrary to the principles of fundamental
justice? – No
- There is no mandatory minimum sentence for possession of marijuana
- In practice, most offenders are given a conditional discharge
- Except in very exceptional circumstances, imprisonment for simple possession of marijuana
would constitute a demonstrably unfit sentence under s. 7 which requires a fit sentence
- Held: The mere fact of the availability of imprisonment in a statute dealing with a variety of
prohibited drugs does not make the criminalization of possession of marijuana contrary to
the principles of fundamental justice
Held: the harm principle is not a principle of fundamental justice within the meaning of that term in s.
7 of the Charter and it is constitutionally open to Parliament to legislate on the basis of morality alone
Dissent in Caine (Arbour J) on Issue 2:
- In Re BC Motor Vehicle Act, [1985] 2 SCR 486, Lamer J said: “a law that has the potential to
convict a person who has not really done anything wrong offends the principles of
fundamental justice and, if imprisonment is available as a penalty, such a law then violates a
person’s right to livery under s. 7 of the Charter
- In my view, a “person who has not really done anything wrong” is a person whose conduct
caused little or no reasoned risk of harm or whose harmful conduct was not his or her fault
- Thus, s. 7 requires not only that some minimal mental element be an essential element of any
offence punishable by imprisonment, but also that the prohibited act be harmful or pose a
risk of harm to others
- Harm to self does not satisfy the constitutional requirement that whenever the state resorts
to imprisonment, there must be a minimum harm to others; the prohibition of conduct that
only causes harm to self, regardless of the gravity of the harm, is not in accordance with the
principles of fundamental justice
- In order to assess harm, the court must assess the interest of society in prohibiting and
sanctioning the conduct; societal interests in prohibiting conduct are evaluated by balancing
the harmful effects on society against the effects of prohibiting the conduct in question
- A law that has the potential to convict a person whose conduct causes little of no reasoned
risk of harm to others offends the principles of fundamental justice, and if imprisonment is
available as a penalty, such a law then violates a person’s right to liberty under s. 7
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Imprisonment can only be used to punish blameworthy conduct that is harmful to others
Majority argued that the state is justified creating these prohibitions in order to protect
vulnerable persons but implicit in those prohibitions is that the state would be justified in
sending these same vulnerable persons to jail in order to prevent them from harming
themselves
Also, the trial judges’ findings that the burden to the health care system of marijuana use is
negligible compared to the costs imposed by comparable conduct that society tolerates (i.e.
alcohol and tobacco use)
The prohibition of simple possession of marijuana attempts to prevent a low quantum of
harm to society at a very high cost
Application
- Trial judge found that the harms associated with marijuana use are exclusive to the health
risks for the individual user
- Harm to self does not satisfy the constitutional requirement that whenever the state resorts
to imprisonment, there must be a minimum harm to others
- The prohibition of conduct that only causes harm to self, regardless of the gravity of the
harm, is not in accordance with the principles of fundamental justice and since imprisonment
is available as a means to enforce the prohibition, it is a breach of s. 7
Notes
- Dissent was written by Justice Arbour, who had previously written the piece on the conditions
of women’s prisons; her dissenting position demonstrates that when judges have a better
understanding of how jails actually work, they are more apt to see the harms caused by
incarceration and advocate against its use as a criminal sanction
- Cannabis Act, SC 2018 decriminalized the purchase and possession of small amounts of
cannabis by those of legal age and regulates the legal production and distribution of cannabis
o (b) there is no sufficient consensus that the harm principle is the sole justification for
criminal prohibition and the state may sometimes be justified in criminalizing conduct
that is either not harmful or that causes harm only to the accused
o (c) harm principle is not a manageable standard under which to review laws under s.
7 because we lack an agreed definition for harm
o Policy goals: prevent young people from accessing cannabis, protect public health and
safety by establish strict product safety and product quality requirements, deter
criminal activity by imposing serious criminal penalties for those operating outside
the framework and reduce the burden on criminal justice system related to cannabis
R v Labaye, 2005 SCC 80
Keywords: harm principle, indecency
Facts:
- Labaye operated a club “established to facilitate group sex” (swinging)
- Participation was voluntary and no one was paid for sex
- He was convicted under s. 210(1) of the Criminal Code for keeping a “common bawdy house”
for the “practice of acts of indecency
Issue – Whether the acts committed in his establishment were acts of indecency within the meaning
of the criminal law
Majority Findings
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No definition of indecency in Code
Historically, legal concepts of indecency were informed by moral views of the community
Over time, courts recognized that morals were subjective and unworkable in criminal law
Shifted from a community standard of tolerance to grounding criminal indecency in harm
Test for Indent Conduct
- Key question: what types of harm are sought to be curtailed by the offence?
- Onus on Crown to prove:
- 1) Nature of the harm – that, by its nature, the conduct at issue causes harms or presents a
significant risk of harm to individuals or society in a way that undermines or threatens to
undermine a value that is formally recognized as incompatible with its proper functioning in
its Constitution or similar fundamental laws?
o Three types of harm, grounded in values recognized by our Constitution and similar
fundamental laws, have thus far emerged from the jurisprudence:
o (A) confronting members of the public with conduct that significantly interferes with
their autonomy and liberty
o (B) predisposing others to anti-social conduct;
o (C) physically or psychologically harming persons involved in the conduct
o Note: This is not a closed list
- 2) Degree of the harm – that the degree of the harm or risk of harm is incompatible with the
property functioning of society?
o This is not a question of society’s tolerance; it is an assessment of whether permitting
the conduct engages a harm that threatens the basic functioning of society
o Whether it does so must be determined by reference to the values at engaged by that
particular kind of harm at stake
o i.e. if the harm is based on the threat to autonomy or liberty by unwanted sexual
conduct, the Crown must establish a real risk that the way people live will significantly
and adversely affected by the conduct
o i.e. if the harm is based on predisposing others to anti-social behaviour, then Crown
must show a causal link, first b/w the sexual conduct and the formation of negative
attitudes, and second b/w those attitudes and the real risk of anti-social behaviour
o i.e. if harm is based on physical or psychological injury to participants, the Crown
must show that the harm has occurred or there is a real risk that it will occur
Application
- 1) Nature of Harm
o The sexual acts at issue were conducted on the third floor of a private club, behind a
door marked private and accessible only by those with a code
o Steps were taken to prevent exposure to the public including pre-membership
interviews, members-only access to the club and a doorman
o There was no evidence of any of the three types of harm identified above
o Since the only people involved or observing the conduct were willing participants,
indecency based on harm is not made out
- 2) Degree of Harm
o Unnecessary to proceed to this stage but court still noted that there was no evidence
that the degree of harm rose to the level of incompatibility with the proper
functioning of society
- Held: Appeal allowed and conviction set aside.
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Dissent
- Rejects the harm principle as the basis for this analysis
- Would apply the original community standards of tolerance test for indecency, which focuses
on a contextual analysis of the conduct and incorporates harm as a significant but not
determinative factor to establishing the applicable level of tolerance
- Serious harm is not the sole criterion for determining what society will tolerate or what
conduct is criminalized by Parliament; social morality is inherent in indecency offences
- Acts such as child porn, incest, polygamy and bestiality are unacceptable because the
community considers these acts to be harmful in themselves
- Held: the impugned acts were sexually explicit and took place in a commercial establishment
that was accessible to the public; the situation causes a form of social harm resulting from the
failure to meet the minimum standards of public morality and thus are indecent
3. CODIFICATION AND INTERPRETATION OF CRIMINAL LAW
A. Division of Powers
- The Constitution Act, 1867 provides for a division of legislative authority and responsibilities
between the federal government and provinces
- Legislation on matters outside the area of authority given to a level of government is
unconstitutional because it is ultra vires (outside the powers) of the legislature in question
- Under s. 91(27) of the Constitution Act, 1867, federal government has exclusive jurisdiction
legislate the substance of criminal law and rules of criminal procedure, except for the
constitution of courts of criminal jurisdiction
o Under s. 91(28), they also have jurisdiction to establish and manage penitentiaries
- Under s. 92(15), the provinces have jurisdiction to impose punishment by way of fines, penalty
or imprisonment to enforce valid provincial laws
o Under s. 92(14), they also have jurisdiction over the administration of justice, including
the constitution, maintenance and organization of provincial criminal courts
o The federal government has the exclusive power to prosecute federal or Criminal Code
offences however, they can and do delegate this power to the provincial Attorney
General under s. 2 of the Criminal Code
o R v Hauser, [1979] SCR 984: “The position of decentralized control…with local
administration of justice, local police forces, local juries and local prosecutors, was
perpetuated and carried forward into s. 92(14). The administration of criminal justice
was to be kept in local hands and out of control of central government.”
- Federal government appoints judges of higher superior trial courts, appeals courts and SCC
- Provinces appoint judges to provincial courts, where most criminal trials are held
Criminal Justice and the Division of Power in Canada (Martin Friedland)
- Canada’s centralizing of the criminal law power is in deliberate contrast to the US which gives
control over criminal law power to the individual states
- Have one consistent law across the courts allows citizens to move between provinces, knowing
what their rights are and what their punishment will be if they offend the criminal law
- It allows the law to operate equally and predictably across the countries
o In contrast, in the US, what may be a capital offence in one state may be a
misdemeanour in another state
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Criminal law plays an important role in stating the fundamental values of our society
Switzman v Elbling and AG of Quebec, [1957] SCR 285
Keywords: ultra vires provincial law
Facts
- Quebec’s Act Respecting Communistic Propaganda prohibited the propagation of communism
or bolshevism, punishable by closure of any premise used for such propaganda and/or
imprisonment
Issue – Was the Act constitutional?
Findings
- The pith and substance of the impugned Act is in relation to criminal law and thus is
unconstitutional
R v Morgentaler, [1993] 3 SCR 463
Keywords: ultra vires provincial law
Facts
- In 1988, the SCC ruled that the Criminal Code provisions relating to abortion were
unconstitutional because they violated women’s Charter guarantee of security of the person
(R v Morgentaler, [1988, 1 SCR 30)
- The court also reaffirmed its earlier decision that abortion provisions were a valid exercise of
federal criminal power (Morgentaler v The Queen, [1976] SCR 616)
- 1988 decision meant it was no longer an offence to obtain or perform an abortion at a clinic
- In 1989, Nova Scotia enabled the Nova Scotia Medical Services Act and Reg. 152/89 which
made it an offence to perform an abortion outside a hospital
Issue – Is the impugned Act and Regulation ultra vires the province of Nova Scotia on the ground that
they are pith and substance criminal law?
Findings
- The law has a criminal law purpose and effect rather than a health policy purpose:
- By its terms, the legislation deals with a subject historically considered to be part of the
criminal law – the prohibition on performances of abortions with penal consequences
- Its legal effect also reproduces the defunct Criminal Code provision by precluding the
establishment and operation of free-standing abortion clinics
- It regulates the place where an abortion may be obtained, not as a health care policy
purpose, but from the viewpoint that abortions are socially undesirable conduct
- Held: the impugned law is an unconstitutional provincial invasion of the federal criminal law
power
B. Treaties, Aboriginal Rights and Indigenous Law
- Criminal law was one tool used by colonial authorities and the Canadian state to extend and
consolidate power over Indigenous territory and law
- The conflict between pre-existing sovereignty and laws of Indigenous peoples and the asserted
sovereignty and legal authority of the Canadian state is a crucial, but underexamined,
component of our criminal law
- In some parts of Canada, the sovereignty of Indigenous peoples was acknowledged by the
British Crown through treaties
o These treaties included certain rights and entitlements for the Indigenous nation in
exchanged for allowing the colonial government to share, use and settle the land
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o However, may aspects of these treaties have not been honored by the state
Treaties are foundational constitutional documents that provide a basis for governing with
consent, respect and harmony, as opposed to coercion, force and polarization (Kent Roach)
o Many First Nations chiefs who signed the treaties believed the terms contemplated the
preservation of Indigenous justice systems
As foundational constitutional documents, treaties continue to have independent force; s. 35(1)
of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights
R v Ippak, 2018 NUCA 3
Keywords: Inuit legal values versus s. 24(2)
Facts
- In community of Sanikiluaq, Nunavut, a decision was made, by plebiscite, to prohibit the
purchase, sale, transport and possession of alcohol
- Ippak was the sole passenger on a flight from Montreal to Sanikiluaq
- RCMP received an anonymous tip that Ippak was carrying alcohol, met him at the airport and
advised him that he was under investigation for transporting liquor
- Ippak consented to a search of his bags in which RCMP found 3.7 pounds of marijuana and
arrested him for possession with the purpose of trafficking
- Ippak argued that the RCMP lacked reasonable grounds to detain him and thus violated his ss.
8, 9 and 10 Charter rights
Issue – Should the evidence be excluded under s. 24(2)?
Majority Findings (Court of Appeal for Nunavut)
- Based on the case law and the Grant test, the breaches were “wilful, significant and serious”
and thus excluded under s. 24(2)
- Ippak was acquitted
Dissent (Berger JA)
- Dissent also would exclude the evidence but argues for a different approach to applying the
Grant test in these circumstances
- Implementation of a law via plebiscite makes the law enforceable under both Canadian law
and Inuit law
- Thus, Inuit legal values must be integrated into each stage of an s. 24(2) analysis; majority had
only considered Canadian law in their analysis
- After analyzing the facts in light of both the Grant test and principles of Inuit law, Berger JA
found the following:
- Appellant was in breach of his community’s decision to ban alcohol and drugs from
Sanikiluaq. Both Canadian law and Inuit law recognize his transgressions, but they differ in
how to address it. Canadian law emphasizes adjudication whereas Inuit culture focuses on
reintegration of the individual and preservation of the community.
- When Canadian law is reconciled with Inuit law and culture in the application of the Grant
test, both favour exclusion of the evidence
C. Codification – The Idea of a Criminal Code
- Before 19thC, most criminal law was found in various legislation and court decisions
- Over the 19thC, attempts were made to bring the criminal law into a single, coherent and
exhaustive document
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Codification advances fundamental criminal law values of certainty and fairness, captured in the
maxim nullum crimen sine lege, nulla poena sine lege: “there must be no crime or punishment
expect in accordance with fixed, predetermined law
D. Common Law Offences
- In the 1953 amendment to the Criminal Code, all common law offences were abolished:
o Criminal offences to be under law of Canada
o 9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or
discharged under section 730
 (a) of an offence at common law,
 (b) of an offence under an Act of the Parliament of England, or of Great Britain,
or of the United Kingdom of Great Britain and Ireland, or
 (c) of an offence under an Act or ordinance in force in any province, territory or
place before that province, territory or place became a province of Canada,
o but nothing in this section affects the power, jurisdiction or authority that a court,
judge, justice or provincial court judge had, immediately before April 1, 1955, to impose
punishment for contempt of court.
- S. 9 makes one exception to the prohibition of common law offences: courts may still impose
punishment for the common law offence of contempt of court
Frey v Fedoruk, [1950] SCR 517
Keywords: common law offences (pre-1953 abolishment)
Facts
- Frey was caught and detained by Fedoruk after Frey was observed at 11pm looking into a
window of a woman’s room in Fedoruk’s house
- Frey was charged for unlawfully acting in a manner likely to cause a breach of the peace by
peeping
- Frey was convicted at trial, but the conviction was overturned because no such offence exists
- Frey sued Fedoruk for false imprisonment
- Fedoruk argued that breach of the peace was an offence at common law
Issue – Whether peeping constitutes a criminal offence and if so, whether Fedoruk was justified in
arresting Frey without a warrant
Majority Findings
- Allowing a principle that non-criminal conduct may be treated at common law as criminal
because it has a natural tendency to provoke violence by way of retribution would result in
great uncertainty in the law
- There is no precedent to support the view that peeping is criminal
- It is not the role of judges to decide what acts constitute a crime because such a decision
would be according to their individual view of whether such acts were a disturbance to the
tranquilly of people tending to provoke physical reprisal
- Held: there is no crime of peeping, thus Frey was falsely imprisoned
Notes
- S. 177 of the Criminal Code introduced an offence of trespassing at night
R v Jobidon, [1991] 2 SCR 714
Keywords: judicial interpretation of provision can extend an offence
Facts
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Jobidon was charged with manslaughter by the unlawful act of assault
Jobidon and victim engaged in a fight outside a bar; at one point, Jobidon knocked the victim
unconscious but followed up with several blows; victim later died
- S. 265(1)(a) defines assault as the intentional application of force to another person “without
the consent of [the other] person”
- At trial, Jobidon was acquitted on the basis that the victim had consented to the fight and
thus the elements of the unlawful act of assault were not made out
- Court of Appeal held that for reasons of public policy, one cannot consent to intentionally
caused bodily harm (assault) and thus entered a conviction of manslaughter
Issue – In cases of assault, is the Crown required to prove an absence of consent?
Majority Findings
Should the question be left to Parliament to decide? – No
- While all criminal offences in Canada now are defined in the Code, the common law still
continues to play an important role in criminal law
- It illuminates the definitions and gives content to the various principles of criminal
responsibility
- S. 8 of the Code authorizes courts to look at pre-existing common law rules and principles to
give meaning to, and explain the outlines and boundaries of an existing defence or
justification
- Thus, it authorizes the common law to develop an approach to the role and scope of consent
as a defence to assault
Can you consent to assault?
- Policy limits on conduct is the product of balancing individual autonomy (the freedom to
choose to have force intentionally applied to yourself) and a larger social interest
- Fist fights have no social value
- It is not in the public interest that adults should willingly cause harm to one another; also,
consensual fights can lead to larger brawls and serious breaches of public peace
- Common law limitations on consent may serve as a deterrent for fist fights
- On policy grounds, Court imposes a limit on consent under s. 256:
- Held: under s. 256, adults cannot consent to the intentional application of force causing
serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl
o This rule does not apply where intentional applications of force cause only minor hurt
or trivial bodily harm
o This is in keeping with s. 267(2) which defines bodily harm as “any hurt or injury to
the complainant that interferes with the health or comfort of the complainant and
that is more than merely transient or trifling in nature:
o As such, this rule does not apply to “ordinary” schoolyard scuffles
- This rule also does not apply to the consent given to participate in rough sporting activities so
long as the intentional applications of force to which one consents are within the customary
norms and rules of the game. Unlike fist fights, sporting activities and games have significant
social value
Conviction upheld.
Dissent (Sopinka)
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Consent cannot be read out of the offence b/c (1) consent is a fundamental element of the
criminal offence of assault and (2) the statutory provision creating the offence of assault
explicitly provides for the element of consent
There is no evidence in clear and simple language that s. 256 intended to outlaw consensual
fighting; reading out the words “without the consent of another person”, the majority is going
against the intention of Parliament
Judicial interpretation and application must be constrained by the wording of the Code
The majority has in essence created a new common law offence
Held: The consent to fight given by the victim ended once he lost consciousness. By striking
the victim after he lost consciousness, the accused acted beyond the scope of consent and
thus committed an assault. Given that the victim died as a result of that unlawful act, the
accused is guilty of manslaughter.
Notes
- In R v Paice, 2005 SCC 12, the SCC concluded that Joibidon requires serious harm both
intended and caused for consent to be vitiated
E. Common Law Defences
- Common law defences are still permitted under the Code:
o Common law principles continued
o 8(3) Every rule and principle of the common law that renders any circumstance a
justification or excuse for an act or a defence to a charge continues in force and applies
in respect of proceedings for an offence under this Act or any other Act of Parliament
except in so far as they are altered by or are inconsistent with this Act or any other Act
of Parliament.
Amato v The Queen, [1982] 2 SCR 418
Keywords: creating new common law defences
Facts
- Amato was harassed by an undercover police officer and informant to provide drugs
- This carried on for two months after which Amato put them in contact with his supplier
- Amato claimed he was entrapped, which is not an defence in the Code
Issue – Does s. 8(3) of the Code permit the common law to develop a new defence of entrapment?
Findings
- The common law can develop new defences as long they are consistent with the Code
- This is permitted because it is impossible for lawmakers to foresee all possible circumstances
and justifications that may arise
- The court noted that it had the authority to create a defence of entrapment but did not do so
until R v Mack, [1988] 2 SCR 903
Notes
- In recent years, court has acknowledged defences such as duress, necessity and due diligence
without considering state of the law before current Criminal Code
F. Statutory Interpretation
- Basic rule for statutory interpretation (aka Driedger’s modern approach) – Today there is only
one principle or approach, namely, the words of an Act are to be read in their entire context and
in their grammatical and ordinary sense harmoniously which the scheme of the Act, the object
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of the Act and the intention of Parliament (Bell ExpressVu Limited Partnership v Rex, 2002 SCC
42)
This approach must be read with s. 12 of the Interpretation Act, RSC c I-21 which provides that
every Act “is deemed remedial and shall be given such fair, large and liberal construction and
interpretation as best ensures the attainment of its objects
Both the English and French version of the Code are authoritative
o Where one version is ambiguous and the other Is clear and unequivocal, the common
meaning of the two versions is preferred. Further, where one of the two versions is
broader than the other, the common meaning would favour the more restricted or
limited meaning (Schreiber v Canada (AG), 2002 SCC 62)
R v Clark, 2005 SCC 2
Keywords: statutory interpretation
Facts
- Clark was masturbating near the uncovered window of his illuminated living room when he
observed by his neighbours; Clark did not know he was being watched
- He was charged under s. 173 with willfully performing an indecent act in a public place in the
presence of one or more persons
- Clark admitted that he had committed an indecent act within the meaning of the Code but
argued that his living room was not a public place
- Trial judge convicted on the basis that he had converted his living room into a public place
because he could be seen through the window
Issue – Was Clark’s living room a “public place” within the meaning of s.173 of the Code?
Findings
- In Part V of the Code, Parliament distinguishes between conduct that is prohibited “in a public
place” and conduct that is prohibited if it is “exposed to public view”
- Under s. 150 of the Code, a “public place” includes any place to which the public access as of
right or by invitation, express or implied
- Based on the ordinary and grammatical meaning of “access” in this context, “access” here
means “the right or opportunity to reach or use or visit”
- Read harmoniously which the scheme of the Act, the object of the Act and the intention of
Parliament, s. 173 does not contemplate that ability of those who are neither entitled nor
invited to enter a place to see or hear from the outside, through uncovered windows or
doors, what is transpiring within
- Appellant is acquitted.
G. Rule of Strict Construction to Penal Statutes
- Rule of Strict Construction – when interpreting penal statutes, including the Criminal Code, any
real textual ambiguities should be resolved in a way that benefits the accused
- Requires courts to favor the narrower meaning of the criminal law
- In R v Paré, the SCC outlined when the rule of strict construction applies:
R v Paré, [1987] 2 SCR 618
Keywords: rule of strict construction
Facts
- Paré, 17, lured a 7-year-old boy under a bridge and sexually assaulted him
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After the assault, Paré kept his hands on the boy’s chest and when the boy threatened to tell
his mother, Paré killed him
- Under s. 214(5) (now s. 231(5)) of the Code, a murder is first degree murder when the deal is
caused by a person while committing indecent assault
- Paré was convicted of first degree murder at trial but the Court of Appeal substituted a
verdict of second degree murder
Issue – Did Paré murder the boy while committing an indecent assault?
Findings
Rule for Interpreting Penal Statutes:
- 1) Interpret the statute using the basic rule for statutory interpretation
- 2) If the basic rule leads to a “real ambiguity”, then apply the rule of strict construction which
requires that the court adopt the interpretation most favourable to the accused
- 3) Is the narrow interpretation reasonable given the scheme and purpose of the legislation?
o If yes, then the narrow interpretation applies
o If no, the court may opt for the broader interpretation that fits more reasonably with
the scheme and purpose of the legislation
- [see note below]
Application
- 1) Basic rule of statutory interpretation leads to two possible meanings for “while
committing”: it could mean the assault and murder must occur at the same time or it could
mean that the assault and murder are part of a continuous series of events.
o There is a real ambiguity so the rule of strict construction is applied to resolve it
- 2) Rule of strict construction requires that the words “while committing” must be narrowly
construed so as to elevate murder to the first degree only when the death and underlying
offence occur simultaneously
- 3) The narrow construction is not one that could reasonably be attributed to Parliament for
several reasons:
o A) There is difficulty in defining the beginning and end of an indecent assault. The
accused kept his hand on the victim’s chest for two minutes after the assault. Was
this continued contact part of the assault. Important issues of criminal law should not
be allowed to hinge on this kind of distinction. Any interpretation that depends on
this kind of distinction should be avoided if possible
o B) The simultaneous approach leads to distinctions that are arbitrary and irrational. In
the present case, if Paré had killed two minutes earlier, it would be first-degree
murder, but the time he spent contemplating the murder would reduce his offence to
second-degree murder. This is an absurd result since the latter crime is more serious
since in volves some element of deliberation.
o An interpretation of s.214(5) that runs contrary to common sense is not to be
adopted if a reasonable alternative is available
Held: Where an act causing death and the acts constituting indecent assault form part of one
continuous sequence of events forming a single transaction, the death was caused “while
committing” an offence for the purpose of s. 214(5)
- This interpretation is also in line with policy considerations that under the provision
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The principle is that where a murder is committed by someone who is already abusing his
power by illegally dominating another, the murder should be treated as exceptionally serious
and Parliament has chosen to treat these as murders in the first degree
Conviction of first-degree murder is restored.
Notes
- It is only when a genuine ambiguity arises between two or more plausible readings, each
equally in accordance with the intentions of the statute, that the courts need to resort to
interpretation aids such as the rule of strict construction (CanadianOxy Chemicals Ltd. v
Canada (Attorney General), [1999] 1 SCR 763)
H. Constitutional Rules Governing Statutory Interpretation: Vagueness and Overbreadth
- Charter includes rights and principles to protect the ideals of fairness, notice and certainty in the
criminal law
- Under s. 7, the SCC has found that it is principle of fundamental justice that laws cannot be
vague or overbroad
R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606
Keywords: vagueness
Facts
- Society argued that s. 32(1)(c) of the Combines Investigation Act, which made it an offence to
“lessen, unduly, competition” was impermissibly vague
Findings
- Held – the impugned provision is not impermissibly vague
Vagueness
- Doctrine of vagueness is a principle of justice under s. 7 and is prescribed by law under s. 1
- Under s. 7, it is principle of fundamental justice that laws cannot be vague
- A vague provision does not provide an adequate basis for legal debate, that is for reaching a
conclusion as to its meaning by reasoning analysis applying legal criteria or precedent
- It does not sufficiently delineate an area of risk and thus can provide neither fair notice nor a
limitation of enforcement direction
Test for vagueness:
- A law may be found to be unconstitutional on the ground of vagueness if:
- 1. It fails to provide fair notice to the citizen
o Formal notice is not a central concern in a vagueness analysis. – formal notice is
acquaintance with the actual text of the statute. In criminal law, this concern has
been set aside by the common law maxim “Ignorance of the law is no excused”
embodied in s. 19 of the Code. Thus,
o Fair notice may not have been given when provisions are in general terms such that
they don’t readily permit citizens to be aware of their substance or they do not relate
to any element of the values held by society
- 2. It does not place a limitation on law enforcement discretion
o The law cannot be a “standardless sweep” (Prostitution Reference, (1990)
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o
o
o
A law must not be so devoid of precision in its content that a conviction will
automatically flow from the decision to prosecute
When the power to decide whether a charge will lead to conviction or acquittal
(normally preserved for the judiciary) becomes fused with the power prosecute
because of the wording of the law, then the law will be unconstitutionally vague
Ex. In Papachristou v. City of Jacksonville, 405 US 156 (1972), the vagrancy ordinance
was so general and so lacked precision in its content that a conviction would ensure
every time the law enforcer decided to charge someone with vagrancy. The words of
the ordinance had no substance and did not indicate a particular legislative purpose.
They left the accused in the dark, with no possible way of defending himself in court.
R v Heywood, [1994] 3 SCR 761
Keywords: overbreadth
Facts
- S. 179(1)(b) of the Code provides that it is an offence for a person with a past sexual violence
conviction to be “found loitering in or near a school ground, playground, public park or
bathing area”
- The accused had two prior convictions of sexual assault of young girls
- In the most recent case, police were called to a store after he brought in photos of the crotch
area of young girls to be developed
- He was found photographing young children at play and charged with “loitering in or near a
playground”
Issue – Was s. 179(1)(b) overly broad?
Majority Findings
Overbreadth and Vagueness
- Overbreadth and vagueness are related in that both are the result of a lack of sufficient
precision by legislature in the means used to accomplish an objective
- In the case of vagueness, the means are not clearly defined
- In the case of overbreadth, the means are too sweeping in relation to the objective
- Even where a law is unambiguous (not vague), it may still be overbroad
- Where a law is vague, it may also be overbroad to the extent that the scope of its application
is difficult to define
Overbreadth Analysis
- Overbreadth analysis looks at the means chosen by the state in relation to its purpose
- In considering whether a legislative provision is overbroad, a court must ask: “Are those
means necessary to achieve the State objective?”
- Rule: If the State, in pursuing a legitimate objective, uses means that are broader than
necessary to accomplish that objective, then the principles of fundamental justice will be
violated because the individual’s rights will have been limited for no reason
- The effect of overbreadth is that in some applications, the law is arbitrary or disproportionate
Application
- Held: S. 179(1)(b) is overly broad to the extent that it violates the right to liberty proclaimed
in s. 7 of the Charter for several reasons:
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-
(a) it is overly broad in its geographical scope embracing all public parks and beaches no
matter how remote and devoid of children they may be
(b) It is overly broad in its temporal aspect with the prohibition applying for life without any
process for review
(c) it is too broad in the number of persons it encompasses
(d) the prohibitions are put in place and may be enforced without any notice to the accused
Dissent
- Prohibition is not overbroad
- A lifetime prohibition of activities with a malevolent or ulterior purpose related to
reoffending is in no way objectionable or overbroad
- While the prohibition places a restriction on the liberty of he affected individual to which
ordinary citizens are not subject, the restriction is directly related to preventing reoffending
- The affected person’s history of offending, the uncertainties prevalent in offenders and a
desire to dispute the cycle of reoffending justify what is, in effect, a minor intrusion which
does not breach the principles of fundamental justice
- Also, the lack of notice is not a principle of fundamental justice because the basic tenet of our
legal system is that ignorance of the law is not an excuse for breaking the law
Notes
- S. 161 of the Code provides that any person convicted of a sexual offence against a minor can
be prohibited from public spaces where children are present, including community centres
- In R v Budreo (2000), ONCA held that “community centre” was overbroad to the objective of
protecting children from sexual violence because children might not be present in such
centres; the reference to “community centres” was struck out as unconstitutional
4. THE CHARTER AND EXCLUSION OF EVIDENCE
A. The Charter
- ss 1, 2, 7-15, 24-28, 32-33, 52
B. S. 1 Oakes Test
R v Oakes, [1986] 1 SCR 103
Keywords: Oakes test for s. 1 justification
Facts
- Under s. 8 of the Narcotic Control Act, if the Court finds that the accused was in possession of
a narcotic, he is presumed to be in possession for the purpose of trafficking
- Oakes was found in possession of 8 one-gram vials of hashish oil (cannabis)
- Oakes argued s. 8 imposes a burden on the accused to prove that he was not in possession for
the purpose of trafficking which violates the presumption of innocence contained in s. 11(d)
of Charter
Issue – Does s. 8 of the Narcotic Control Act violate the Charter? Can it be upheld as a reasonably limit
under s. 1 of the Charter?
Findings – Does s. 8 of the Narcotic Control Act violate the Charter?
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-
S. 8 contains a reverse onus provision imposing a legal burden on an accused to prove on a
balance of probabilities that he was not in possession of a narcotic for the purpose of
trafficking
- Although expressly protected under s. 11(d) of the Charter, the presumption of innocence
also protects the fundamental liberty and human dignity of every person accused by the State
of criminal conduct and thus is also integral to s. 7 of the Charter
- Held: S. 8 violates s. 11(d) of the Charter because it compels the accused to prove that he is
not guilty of the offence of trafficking. He is thus denied his right to be presumed innocent
and subjected to the potential penalty of imprisonment unless he can rebut the presumption
of guilt
- This is fundamentally inconsistent with the social values of human dignity and liberty
Findings – Can s. 8 of the Narcotic Control Act be upheld as a demonstrably justified in a free and
democratic society under s. 1 of Charter?
Section 1 of the Charter
- The rights and freedoms guaranteed by the Charter are not absolute
- It may be necessary to limit rights and freedoms in circumstances where their exercise would
be inimical to the realization of collective goals of fundamental importance
- S. 1 provides criteria of justification for such limits: “The Canadian Charter of Rights and
Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic society”
- Two contextual considerations must be part of any s. 1 inquiry:
o (a) Any s.1 inquiry must be premised on an understanding that the impugned limit
violates constitutional rights and freedoms which are part of the supreme law of
Canada
o (b) In order for the limit to be found reasonable and demonstrably justified, it must
be in line with the fundamental principles of a free and democratic society. In any s. 1
inquiry, the court must be guided by the values and principles essential to a “free”
and “democratic society” which includes respect for the inherent dignity of a human
person, commitment to social justice and quality, accommodation of a wide variety of
beliefs, respect of cultural and group identity and faith in social and political
institutions which enhance the participation of individuals and groups in society
- The onus of proving, on a balance of probabilities, that a limit on a right or freedom
guaranteed by the Charter is reasonable and demonstrably justified rests on the party seeking
to uphold the limitation
Oakes Test
- To establish that a limit is reasonable and demonstrably justified in a free and democratic
society, the party seeking to uphold the limitation must prove on a balance of probabilities:
- 1) The objective, which the measures responsible for a limit on a Charter right or freedom are
designed to serve, must be “of sufficient importance to warrant overriding the
constitutionally protected right or freedom”
o At a minimum, the objective of the limit must relate to concerns within are “pressing
and substantial” in a free and democratic society
o The standard must be high in order to ensure that objectives that are trivial or
discordant with the principles of a free and democratic society do not gain s. 1
protection
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2) The means chosen to are reasonably and demonstrably justified; proportionality test
meant to balance the interests of society with those of individuals or groups; has three
components:
o (i) The measures adopted must be rationally connected to achieving the objective in
question. They must not be arbitrary, unfair or based on irrational considerations
o (ii) The means, even if rationally connected to the objective, should impair “as little as
possible” the right or freedom in question
o (iii) There must be proportionality between the effects of the measures which are
responsible for limiting the right or freedom and the objective which has been
identified as of “sufficient importance”
Application
- 1) The legislative objective of “curbing drug trafficking by facilitating the conviction of drug
traffickers is a substantial and pressing concern of sufficient importance to warrant overriding
a constitutional right
- 2) s. 8 does not survive the rational connection test – there is no rational connection between
the proved fact of possession and the presumed fat of an intention to traffic
o (i) It is irrational to infer that a person had an intent to traffic on the basis of his
possession of a very small quantity of narcotics. The presumption required by s. 8 is
overinclusive and could lead to results in some cases that defy rationality and fairness
especially since the offence carries the possibility of imprisonment. S. 8 does not
o Since s. 8 fails the first component, the court did not consider the other two
C. S. 24(2) Exclusion of Evidence
R v Grant, 2009 SCC 32
Keywords: detention; exclusion of evidence
Facts
- Grant, a young black man, was walking down a Toronto street at midday when, according to
two plainclothes police officers, his manner and clothing attracted their attention
- The officers requested a nearby uniformed officer “have a chat” with Grant
- The uniformed officer approached Grant, while standing on the sidewalk directly in his path
- The officer asked grant for his name and address, so Grant provided his health card
- At one point, Grant, behaving nervously, adjusted his jacked, prompting the officer to tell him
to “keep his hands in front of him”
- By this point, the two plainclothes officers approached, flashed their badges and took up
positions behind the other officer
- Grant was asked if he was carrying anything he shouldn’t have and admitted he was in
possession of cannabis and a firearm
- He was arrested immediately
Issues – At what point was Grant detained? If the detention is found to be unlawful, should the
evidence be excluded under s. 24(2) of the Charter?
Findings – how does a court determine when a person has been detained?
Test for Detention
- Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty
interest by a significant physical or psychological restraint. Psychological detention is
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established either where the individual has a legal obligation to comply with a restrictive
request or demand (i.e. traffic stops), or a reasonable person would conclude by reason of the
state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a
person has been detained. To determine whether the reasonable person in the individual’s
circumstances would conclude that he or she had been deprived by the state of the liberty of
choice, the court may consider, inter alia, the following factors:
o (a) 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 out the individual for focused investigation.
o (b) the nature of the police conduct including the language used; the use of physical
contact; the place where the interaction occurred; the presence of others; and the
duration of the encounter
o (c) the particular characteristics or circumstances of the individual where relevant,
including age; physical stature; minority status; level of sophistication
Application
- The initial approach by the uniformed officer and general questioning was not enough to
trigger a detention because “a reasonable person would not have concluded that he was
being deprived of the right to choose how to act”
- Things changed with the direction to “keep his hands in front him” and the whole encounter
became “inherently intimidating” – Grant was singled out, two plainclothes officers took up
tactical positions and posted interrogation-like questions; his relative youth and inexperience
- Held: Given this backdrop, Grant was detained when the uniformed officer told him to keep
his hands in front of him. Further, the officers did not have legal grounds to detain Grant, so
the detention violated his s. 9 Charter rights.
Findings – Since the detention was unconstitutional, should the gun be excluded under s. 24(2) of the
Charter?
Section 24(2) of Charter
- 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute.
- The phrase “bring the administration of justice into disrepute” must be understood in the
long-term sense of maintaining the integrity of, and public confidence in, the justice system
- Key question: would reasonable person conclude that the overall repute of the justice system,
viewed in the long-term, will be adversely affected by the admission of the evidence
- The analysis starts with the proposition that damage to the administration has already been
done by the breach and s. 24(2) seeks to ensure that evidence obtained during the breach
doesn’t do further damage to the repute of the justice system
Grant Test
- When faced with an application for exclusion under 24(2), a court must assess and balance
the effect of admitting the evidence on society’s confidence in the justice system, having
regard to:
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-
-
-
1) The seriousness of the Charter-infringing state conduct (i.e. admission may send the
message that the justice system condones serious state misconduct)
o The more severe or deliberate the state conduct that led to the violation, the greater
the need to exclude the evidence linked to that conduct in order to preserve public
confidence and the rule of law
o This analysis considers the gravity or serious of the conduct; it is not meant to punish
the police or deter Charter breaches even though deterrence may be a happy
consequence
o “Good faith” on part of the police or extenuating circumstances, such as the need to
prevent the disappearance of the evidence, may mitigate the seriousness of the
conduct (R v Silveira, [1995] 2 SCR 257)
o Willful or flagrant disregard of the Charter by those charged with upholding it or
evidence that the conduct was part of a pattern of abuse tends to support exclusion
2) The impact of the breach on the Charter-protected interests of the accused (i.e. admission
may send the message that individual rights count for little)
o This inquiry focuses on the seriousness of the impact of the breach on the accused
o To determine the seriousness of the infringement, the court must look to what
interest are engaged by the right and evaluate the extent/degree to which the breach
actually impacted those interests
o The impact may range from fleeting and technical to profoundly intrusive
o The more serious the impact, the greater the need for exclusion to avoid sending a
message that individual rights are of little avail to citizens
o E.g. the interest engaged in cases where the police obtained a statement in breach of
the Charter include the s. 7 right to silence, stemming from the principle against selfincrimination (R v White, [1999] 2 SCR 417)
o E.g. an unreasonable search contrary to s. 8 may impacted interests of privacy and
human dignity; a search that intrudes on an area where the individual reasonably
enjoys a high expectation of privacy or that demeans his liberty is more serious than
one that does not
3) Society’s interest in the adjudication of the case on its merits
o Society has a collective interest in truth-finding, in ensuring those who break the law
are brought to trial and dealt with according to law
o This inquiry focuses on the impact of failing to admit the evidence and considers
several factors
o (a) Reliability of the evidence
 The view that reliable evidence is admissible regardless of how it is obtained
is inconsistent with the Charter
 If the breach undermines the reliability of the evidence, this supports the
exclusion of the evidence b/c the admission of unreliable evidence serves
neither the accused’s interest in a fair trial not the public interest in
uncovering the truth
 Conversely, exclusion of relevant and reliable evidence may undermine the
truth-seeking function, render the trial unfair from a public perspective and
thus bring the administration of justice into disrepute
 The fact that evidence obtained in breach may facilitate the discovery of the
truth and the adjudication of the case on its merits must be balanced against
the interests pointing to exclusion
o (b) Importance to the prosecution’s case
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
o
The admission of evidence of questionable reliability is more likely to bring
the administration of justice into disrepute when it forms the entirety of the
case against the accused
 Conversely, the exclusion of highly reliable evidence may impact more
negatively on the repute where the remedy effectively guts the prosecution
(c) Seriousness of the offence at issue
 The more serious the offence, the greater society’s interest in prosecution
 Failure to effectively prosecute a serious charge due to excluded evidence
may case immediate public outcry; however, this is a long-term analysis so
any short-term clamour must not deafen judges to the long-term repute
 Public also has a vital interest in having a justice system that is above
reproach, especially where penal stakes for the accused are high
Application
- The violation was not deliberate or egregious and there was no suggestion that the accused
was the target of racial profiling
- While the officers went too far in detaining the accused, the demarcating line for detention is
not always clear and the officers made a reasonable mistake
- The significant impact of the breach on the accused’s Charter-protect rights favours excluding
the gun while the public interest in adjudication on its merits favours it’s admission
- The gun was highly reliable evidence and was essential to the determination on the merits
- However, because the officers were operating in circumstances of considerable legal
uncertainty, this tipped the balance in favour of admission
Held: gun is admitted.
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II. Criminal Procedure
1. SEARCH AND SEIZURE
A. Two Models of Criminal Justice (Herbert Packer)
- 1. Crime-control model
o Criminal process is an assembly line operated by the police and prosecutors
o The end product of the assembly line is a guilty plea
o Primary concern is efficiency
- 2. Due-process model
o Criminal process is an obstacle course in which defence lawyers argue before judges
that the prosecution should be rejected because the accused’s rights have been violated
o Primary concern is fairness to the accused and quality control
- Prior to the Charter, Canada’s CJS embraced crime-control values and the few due-process
initiatives that occurred were undertaken by Parliament, not the SCC
o Courts placed discovering truth before the fair treatment of the accused
o Courts were only concerned about police misconduct when it cast doubt on the truth or
reliability of the statement or evidence (truth not fairness mattered)
- In the 1980s, the courts and Parliament switched roles, with Parliament becoming concerned
with crime control and victim’s rights in reaction to due-process court decisions
B. Search and Seizure
- S. 8 of the Charter
o 8. Everyone has the right to be secure against unreasonable search and seizure
Hunter v Southam Inc., [1984] 2 SCR 145
Keywords: purpose of s. 8, reasonable vs. unreasonable search and seizure
Facts:
- s. 10(1) of the Combines Investigation Act allowed the director of investigations to enter
premises and examine or take away materials on the basis of the director’s belief that the
evidence was relevant to an investigation
- s. 10(3) provided that, before exercising the power under s. 10(1), the director should obtain
a certificate of authorization from a member of the Restrictive Trades Practices Commission
Issue – Is this statute authorizing a search and seizure constitutionally valid?
Findings
- In any s. 8 analysis, the court must assess the reasonableness or unreasonableness of the
impact of a search or of a statute authorizing a search
- The first step is to specify the purpose underlying s. 8 (what interests its meant to protect)
o S. 8 guarantees a broad and general right to be secure from unreasonable search of
seizure
o It is the right to be secure against encroachment upon the citizen’s reasonable
expectation of privacy in a free and democratic society
- Rule: The guarantee of security from unreasonable search and seizure is only triggered when
there is a reasonable expectation of privacy
- In assessing whether there was a reasonable expectation of privacy, the court must balance,
in the particular situation, the public interests in resisting an intrusion on privacy and the
government’s law enforcement interests
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S. 8 is meant to be both reactive (protecting rights after they have been breached) and proactive (preventing an unreasonable search before it happens)
Key principles:
o 1. where it is feasible to obtain prior authorization (i.e. a warrant), such authorization
is a pre-condition for a valid search and seizure
o 2. This authorization must be granted by a person acting in an entirely neutral and
impartial manner
o 3. In order for the search to be authorized, there must be reasonable and probable
grounds, established upon oath, to believe that an offence has been committed and
that there is evidence to be found at the place of the search
 There may be exceptions to this high standard in circumstances where the
state’s security is involved and where a search threatens bodily integrity
Application
- The members of the commission were unable to act in a judicial capacity to authorize the
search because they also had significant investigatory functions
- The impugned provisions do not meet the minimum standard of obtaining authorization to
search from an impartial party and based on reasonable and probable grounds to believe that
an offence has been committed and that there is evidence to be found at the place of the
search; failing to meet this minimum stand makes the search power inconsistent with s. 8
C. Reasonable Expectation of Privacy (REP)
R v Wong, [1990] 3 SCR 36
Keywords: reasonable expectation of privacy
Facts:
- Wong had invited members of the public into his hotel room for the purposes of gambling
- The Crown sought to introduce a videotape of the gambling conducted in the room
Issues – Did Wong have a reasonable expectation of privacy in his hotel room sufficient to trigger s. 8?
If so, should the evidence be excluded under s. 24(2)?
Majority Findings
- The reasonable expectation of privacy we enjoy is a reasonable expectation of privacy as
against the state
- Simply because Wong, by inviting people to come gamble in his hotel room, had created a risk
that one of those people might be the State doesn’t mean he gave up his reasonable
expectation of privacy in respect of the State
- Just because you have a conversation that someone could overhear doesn’t mean you don’t
still have an expectation that the state won’t be listening or collecting evidence on you
- Rule: To assess whether a person had a reasonable expectation of privacy against an
unauthorized state search, courts must consider whether permitting the search would
diminish the standards of privacy that we expect to enjoy in a free and democratic society
o The question in this case is whether in our society, persons who retire to a hotel room
and close the door behind them have a reasonable expectation of privacy
o Held: yes they do have a REP
- Held: Wong’s s. 8 rights had been violated because the police had not obtained a warrant for
the videotaping. However, the admission of the tape would not bring the administration of
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justice into disrepute under s. 24(2) because the police acted in good faith and there were no
Criminal Code provision at the time that would have allowed them to obtain a warrant
Dissent
- A reasonable person would know then when such an invitation is extended to the public at
large, he can no longer expect that strangers, including the police, would not be present in
the room; thus, he did not have a REP and the search did not trigger or violate s. 8
Notes:
R v Duarte, [1990] 1 SCR 30 (predates Wong)
- At issue was the constitutionality under s. 8 of undercover officers or their agents
surreptitiously recording the conversations they have with suspects
- Held: the making of such recordings does encroach upon a REP and requires a warrant
- Intrusion by unauthorized and surreptitious electronic audio surveillance would see society’s
privacy diminished to a point inconsistent with the aims of a free and open society.
- “While there are societies in which people have learned, to their cost, to expect that a
microphone may be hidden in every wall, it is the hallmark of a society such as ours that its
members hold to the belief that they are free to go about their daily business without running
the risk that their words will be recorded at the sole discretion of agents of the state”
- A free and open society cannot tolerate that agents of the state, without judicial
authorization, would enjoy the right to record the words of whomever they chose. It is
equally inconceivable that the state should have unrestricted discretion to target whomever it
wishes for surreptitious video surveillance. (Wong)
Other REP Cases:
R v Plant, [1993] 3 SCR 281
- Police obtained hydro consumption records for a residence without evidence
- Court held that s. 8 protects a “biographical core of personal information which individuals in a
free and democratic state would wish to maintain and control from dissemination to the state.
This would include info which tends to reveal intimate details of their lifestyle and person
choices of the individual” (293)
- In s. 8 analysis involving police, courts must consider:
o 1. The nature of the information
o 2. The nature of the relationship between the party releasing the info and the party
asserting confidentiality
o 3. The place where the info was obtained
o 4. The manner in which the info was being obtained
o 5. The seriousness of the crime being investigated
- Since hydro consumption records were publicly accessible at the time, there was not REP in the
records and police could access them without a warrant
R v Edwards, [1993] 1 SCR 128
- Police retrieved evidence against the accused from his girlfriend’s apartment
- Issue: Did the accused have a REP in his girlfriend’s apartment?
- Rule: whether or not a reasonable expectation of privacy attaches will depend on the “totality
of the circumstances” (31), which may include but are not restricted to:
o 1. Presence at the time of the search
o 2. Possession or control of the property or place searched
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o
o
o
-
3. Ownership of the property or place
4. Historical use of the property or item
5. The ability to regulate access, including the right to admit or exclude others from the
place
o 6. The existence of a subjective expectation of privacy
o 7. The objective reasonableness of the expectation
Held: He lacked a REP in his girlfriend’s apartment
o While he had a key and occasionally stayed overnight, he did not have the authority to
regulate access to the premises and thus “could not be free from intrusion or
interference” at the apartment
o He was no more than a “privileged guest” so could not raise an s. 8 claim
R v Belnavis [1997] 3 SCR 341
- Per the Edwards criteria, passengers in a car do not have a REP with respect to the search of
bags and the trunk of the car in which they are travelling
R v Marakah, 2017 SCC 59
- Text messages sent by an accused but recovered from the recipient’s smartphone can attract a
reasonable expectation of privacy on the accused’s part
R v Jarvis, 2019 SCC 10
- Male teacher secretly recorded the faces, upper bodies and breasts of female students
- Majority held that he had violated that REP, even though they were recorded while engaged in
“ordinary school related activities” and already under surveillance of the security cameras
- Court highlighted a number of principles to be applied when interpreting REP:
- 1. Determining whether a person can reasonably expect privacy in a particular situation requires
a contextual assessment that takes into account the totality of the circumstances
- 2. Privacy is not an “all-or-nothing” concept
o The fact that a person knows she will be observed by others, including strangers, does
not in itself mean that she forfeits all reasonable expectations of privacy to observation
or visual recording
o The intrusion into our privacy that occurs when a person hears or sees us is
fundamentally different to the intrusion that occurs when that person makes a
permanent audio or visual recording
o A visual recording can capture detail that the human eye cannot in permanent form and
can be accessed, edited, manipulated, studied and shared
o While some visual recording can be expected in public places, the court’s analysis of
whether there was an REP must recognize the difference between a mere observation
and a recording
- 3. While evolving technologies may make it easier for state agents or citizens to glean, store and
disseminate information about use, this does not mean that our REP will correspondingly shrink
- 4. Privacy interests serve to foster values of dignity, integrity and autonomy in our society. There
are three main types of privacy interests:
o A) Territorial privacy interest – expectations of privacy in the places we occupy
o B) Personal privacy – privacy with respect to our bodies, including visual access to our
bodies; SCC has recognized that society places a high value on personal privacy,
especially as it relates to the protection of human dignity
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o
C) Informational privacy – “individuals have a valid claim to determine for themselves
when, how and to what extent information about them is communicated” (Tessling,
para 23)
 The safeguarding of info about oneself is closely tied to the dignity and integrity
of the individual and is of paramount importance in modern society
 When a court is considering whether there is REP in info, the nature and
quality of the info at issue are relevant
Which REP Test Applies and When?
- For situations involving the state’s use of surveillance technologies, apply the Duarte and Wong
approaches
- For informational privacy claims, apply the Plant factors
- For territorial or spatial privacy claims, apply the Edwards factors
R v Spencer, 2014 SCC 43
Keywords: REP
Facts:
- Police identified an IP address of a computer that someone had been issuing to access and
store child porn through an Internet file-sharing program
- Without a warrant, they obtained the subscriber information associated with the IP address
from the Internet Service Provider which led them to the accused
- At trial, Spencer was convicted of possession of child pornography
Issues – Was the s. 8 protection against unreasonable search and seizures engaged here?
Findings
Test for REP:
- 1. Did the accused have a REP in the subject matter of the search? Must consider Tessling
factors including:
- A) The subject matter of the search
o When identifying the subject matter, the court should look beyond the physical acts
involved or the type of space physical space invaded; they must consider the nature
of the privacy interests potentially compromised by the state action (Ward)
- B) The claimant’s interest in the subject matter
- C) The claimant’s subjective expectation of privacy in the subject matter
- D) Whether this subjective expectation of privacy was objectively reasonable, having regard
to the totality of the circumstances
- The REP standard is normative rather than descriptive so while the courts should be sensitive
to the factual context, the decision must be made from the independent perspective of the
reasonable and informed person who is concerned about the long-term consequences of
government action for the protection of privacy
Application:
- 1. Did the accused have a REP in the subscriber information associated with the IP address
provided by the ISP to police?
- A) The subject matter goes beyond a obtaining a name and address. The subject matter of the
search was core biographical data, revealing intimate and private info about the people living
at the address and their online activity
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-
-
-
B) The nature of the privacy interest in question, informational privacy in the context of
Internet usage, includes a privacy interest in anonymity. Maintaining anonymity can be
integral to ensuring privacy.
o An Internet user may not be able to control or be aware of who may observe a
pattern of online activity but by remaining anonymous – by guarding the link between
the information and the identity of the person to whom it relates – the user can in
large measure by assured that the activity remains private.
o Subscriber info, which links info to identifiable individuals, implicates privacy interests
not simply relating to the person’s name or address to but his identify as the source,
possessor or user of that information
o Depending on the totality of the circumstance, anonymity may enjoy constitutional
protection under s. 8
C) In the totality of the circumstances, there is a REP in the subscriber info
o The disclosure of this info often amounts to the identification of a user with intimate
or sensitive activities being carried out online, usually on the understanding that
these activities would be anonymous
o A request by a police officer that an ISP voluntarily disclosure such info is a search
o A request to disclose subscriber info engages a more significant privacy interest that a
simple question posed by the police in the course of an investigation
o The contractual and statutory terms of his ISP agreement did not undermine his REP
to the subscriber info. A contractual and statutory framework may be relevant to but
not necessarily determinative of whether there is a REP
Held: s. 8 was violated however the evidence was not excluded under s. 24(2) because the
police had acted in good faith
D. Permissible Departures from Hunter v Southam
- In order to be reasonable under s. 8 of the Charter, a search of seizure must satisfy three
requirements: (1) it must be authorized by law; (2) the law itself must be reasonable; and (3) it
must be carried out reasonably (R v Collins, [1987] 1 SCR 265)
- Hunter and Southam prescribes the requirements for a law to be considered “reasonable” (the
second requirement from Collins) when criminal or quasi-criminal investigative powers are
involved
- However, even in the context of criminal investigations, the SCC as permitted deviations from
the Hunter and Southam standards:
- 1. Drug-Sniffing Dog Searches
o In R v Kang-Brown, 2008 and R v AM, 2008 SCC 19, the SCC found that drug-sniffing dogs
can be used to search suspects and their belongings on the basis of a “reasonable
suspicion” rather than “reasonable and probable grounds’ that illegal drugs will be
located and without the need for prior judicial authorization
o The court found that such a departure of the Hunter and Southam standards was
reasonable given the comparatively less intrusive nature of such searches and the
inherent impracticality of requiring warrants in situations where the police must take
action in response to on-the-spot observations
o Reasonable suspicion is “something more than a mere suspicion and something less
than a belief based upon reasonable and probable grounds (Kang-Brown, para 75)
o Reasonable grounds to suspect and reasonable and probable grounds to believe both
must be grounded in objective facts but reasonable suspicion is a lower standard, as it
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engages the reasonable possibility, rather than probability, of crime (R v Chehil, 2013
SCC 49, para 27)
2. Search Incident to Arrest
o In R v Golden, 2001 SCC 83, the court found that searches incidental to arrest (which are
prefaced on reasonable and probable rounds and can be undertaken without any need
for prior judicial approval
2. ARREST AND DETENTION
A. S. 9 of the Charter
- S. 9. Everyone has the right not to be arbitrarily detained or imprisoned
- It supplies the constitutional framework for regulating the circumstances in which the state may
interfere with an individual’s freedom of movement
- In R v Grant, the SCC noted that the purpose of s. 9 is to protect an individual’s physical and
mental liberty from unjustified state interference by prohibiting the coercive pressures of
detention and imprisonment from being applied by the state without adequate justification
- S. 9 provides a means for scrutinizing legislation that authorizes detention or imprisonment
o The presence of too little or too much discretion in the statute usually renders the law’s
application “arbitrary”
o Legislation that mandates a loss of liberty without the need to consider any rational
criteria or standards operates arbitrarily (R v Swain)
o In many cases, it is the absence of discretion that may render arbitrary the law’s
application (R v Lyons)
o Further if a law confers unfettered discretion on state agents to detain individuals, the
discretion is arbitrary because there are no criteria, express or implied, which governs
its exercise (R v Husky)
- S. 9 also provides a means for scrutinizing conduct/decisions to detain or arrest an individual
o In Grant, the SCC held that if police detain or arrest an individual in the absence of
requisite grounds for doing so, the interference to liberty is arbitrary and s. 9 is violated
o The SCC has also found that any detention or arrest undertaken because of
discriminatory motivation (i.e. racial profiling) is contrary to s. 9; specifically, s. 9 is
violated if any detention or arrest is undertaken “because a police officer was biased
towards a person of a different race, nationality or colour, or that there was a personal
enmity between a police officer directed towards the person arrested” (R v Storrey)
- The death of JJ Harper illustrates the importance of specified guidelines for when police may
legitimately detain and arrest, and the specific impacts of policing practices on racialized and
Indigenous persons
The Death of John Joseph Harper (Report of the Aboriginal Justice Inquiry of Manitoba, 1991)
- Facts:
o Police officers were searching for a man who had fled on foot from a stolen car,
described as a “native male, 22 years of age, wearing dark clothing”
o Around 2:30am, Officer Cross stated that he heard that the suspect, Pruden, had been
arrested and “one minute later” spotted JJ Harper walking on the sidewalk
o The officer asked Harper for ID but he refused and started to walk past
o Officer placed his hand on Harper’s arm and turned him around
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Both men fell to the ground and the officer testified that they were fighting for his gun
when it went off and killed Harper
Inquiry’s Finding – Citizen Rights vs. Detention
o In an encounter between an officer and a citizen, an officer may legitimately exercise his
right to ask questions and request ID and a citizen may comply or legitimately exercise
his right to refuse to do so
o If the officer does not place the citizen under arrest or if the officer is not making a
lawful detention and has no intention of doing so, the officer exceeds his authority by
grabbing and detaining the citizen forcibly
o While the reasonable use of force to detain or arrest individuals falls with the scope of a
police officer’s rights, an officer’s use of force may be an unjustifiable if he uses force
without making a lawful arrest or detention
Inquiry’s Findings – Racial Profiling
o It was clear that the officer’s reasons for stopping, questioning and refusing to permit
Harper to pass freely was racially motivated
o Officer had no basis to connect Harper to any crime and decided to stop Harper simply
because he was an Aboriginal male
o It was clear from the evidence that officer did not confront Hunter until after he knew
the suspect had been arrested
o He testified that Harper wasn’t acting suspiciously and was walking, not running
o Harper also didn’t match the suspect description: while a native male wearing dark
clothing, he was 37 years old and considerably heavier and stockier than Pruden
Racial Profiling in Canada
- The Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995)
reported that Black individuals are stopped more frequently by police that White and Asian
people and report higher dissatisfaction with police during these encounters
- In R v Brown (2003), the Ontario Court of Appeal acknowledged that racial profiling, is a reality
in Canada:
o Facts: Brown, a black Toronto Raptors player, was speeding, stopped by police and
charged with the DUI.
o “Racial profiling is criminal profiling based on race. Racial or colour profiling refers to
that phenomenon whereby certain criminal activity is attributed to an identified group
in society on the basis of race or colour resulting in the targeting of individual members
of that group. In this context, race is illegitimately used as a proxy for the criminality or
general criminal propensity of an entire racial group…The attitude underlying racial
profiling is one that may be consciously or unconsciously held. That is, the police officer
need not be an overt racist. His or her conduct may be based on subconscious racial
stereotyping.” (para 7-8)
o Test for proving racial profiling: “A racial profiling claim could rarely be proven by direct
evidence. This would involve an admission by a police officer that he or she was
influenced by racial stereotypes in the exercise of his or her discretion to stop a
motorist. Accordingly, if racial profiling is to be proven it must be done by inference
drawn from circumstantial evidence.” (44)
o Application of Test: “In the present case, in addition to submitting that the facts (a
young black person wearing a baseball hat and jogging clothes driving an expensive new
car) fit the phenomenon of racial profiling, the respondent refers to several features of
the evidence which support the argument that the officer was not being truthful about
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the real reasons for the stop…Briefly, the record includes: the respondent's evidence
that the officer looked into his car before following and stopping him; evidence of the
second set of notes prepared by the officer to firm up his reasons justifying the stop
after he became aware the person under arrest was a well-known sports figure likely to
undertake a defence of the charge against him; a licence check that the officer made
before he stopped the respondent; and discrepancies between the times recorded in his
notebook and those which he gave to the breathalyzer technician.” (46)
The SCC described further constitutional aspects of racial profiling in R v Le, 2019 SCC 34
Carding
- In 2016, the federal government asked Tulloch JA of the Ontario Court of Appeal to assess street
check practices, including carding
- The Independent Street Checks Review (2018) reported that street checks were an “unfocused
practice…disproportionately applied to the most marginalized communities and against the
most disadvantaged people.”
- While carding can occasionally be productive in uncovering drugs or weapons or finding people
with outstanding warrants, many police services reported that random stops usually produces
low-quality information
- The costs of carding are high, including: a toll on mental and physical health; the establishment
of a confrontational relationship with police (often involving public shaming and fearinducement); making it hard to obtain or retain employment because you are listed in a police
database despite not being suspected of criminal activity; and encouraging people to commit
crime, particularly when they feel discriminated against
- The report also recommended that provincial carding regulation should be amended to state
that police cannot arbitrarily conduct random stops and that individuals must be told that they
have the right not to participate in the police’s request for ID or information
B. Arrest Powers
- The Criminal Code requires that a police officer must have reasonable and probable grounds to
believe that the person being arrested has committed the offence.
- Those grounds must be justifiable from an objective point of view meaning a reasonable person
placed in the position of the officer must be able to concluded that there were indeed
reasonable and probable grounds for the arrest
- This standard does not require them to establish a prima facie case for conviction before making
the arrest
C. Powers Incident to Arrest
Cloutier v Langlois, [1990] 1 SCR 158
Keywords: frisk or pat down searches incidental to arrest
Facts:
- Two police officers were charged with assault after a lawyer was frisked following his arrest
for unpaid parking tickets
- Court held the search was justified for the police officer’s safety and not conducted with
excessive force or constraint so the assault charges were dismissed
Findings:
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A frisk search incident to arrest is a minimal intrusion that balances the public’s interest in
safe and effective law enforcement and the dignity of individuals
A search incident to arrest must comply with the following principles:
o 1) Search power is discretionary. Where police are satisfied that the law can
effectively and safely applied without a search, the police may see fit not to conduct a
search
o 2) The search must be for a valid criminal justice objective such as to discovery of an
item that threatens the safety of the police, the accused or the public or that may
facilitate escape or act as evidence against the accused. The purpose of the search
must not be to intimidate, ridicule or pressure the accused to obtain an admission.
o 3) The search must not be conducted in an abusive fashion. The use of physical or
psychological constrain should be proportionate to the objectives sought and the
other circumstances of the situation.
A search which does not meet these objectives is unreasonable and unjustified at criminal law
R v Stillman, [1997] 1 SCR 607
- Seizure of bodily samples, namely hair samples, dental impressions, hair samples and buccal
swabs, without the accused’s consent and without a warrant infringes on ss. 7 and 8 of the
Charter and are not authorized by the common law power to search incident to arrest
- Police must be able to protect themselves from a weapon, and to collect and preserve evidence
located at the site of the arrest or in a nearby motor vehicle
- Bodily samples do not pose a threat and are in no danger of changing or disappearing; there is
no possibility of the evidence sought being destroyed if it was not seized immediately
- Taking of bodily samples is highly intrusive and violates the sanctity of the body which is
essential to the maintenance of human dignity; it is the ultimate invasion of privacy
- Thus, taking of dental impressions, hair samples and buccal swabs without judicial authorization
violates s. 7 right to security of person and the principles of justice
R v Golden, 2001 SCC 83
Keywords: strip searches
Facts:
- Police established a surveillance post across the street from a sandwich shop and observed
the accused, a Black man, conduct two suspected drug transactions before arresting him
- When their initial pat-down searches did not reveal any drugs or weapons, the police
conducted 3 strip searches: one in the stairwell when the office pulled back his long
underwear and looked down at his buttocks; the second in the back of the restaurant where
his pants were pulled down and a package of heroin removed from his buttocks and the third
at the police station
- Golden applied to exclude the evidence for violation of s. 8
Issue – Can police officers conduct a strip search as part of a search incident to arrest and without
prior judicial authorization?
Majority Findings
Principles of Searches Incident to Arrest
- When assessing the reasonability of a search, the court must balance the privacy interests of
the accused with the realities of law enforcement
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In this case, it must balance the interest of citizens to be free from unjustified, excessive and
humiliating strip searches upon arrest and the interest of police and society in ensuring that
people who are arrested aren’t armed with weapons that they may using against themselves,
police or others, and in finding and preserving relevant evidence
What are Strip Searches?
- Strip search is the removal or rearrangement of some or all of the clothing of a person so as
to permit the visual inspection of a person’s private areas, namely, genitals, buttocks, breasts
or undergarments
- It is distinguished from a frisk or pat down search, which do not involve the removal of
clothing, and from more intrusive body cavity searches which involve physical inspection of
the genital or anal regions (but not the mouth cavity)
- Strip searches represent a significant invasion of privacy and are inherently humiliating,
degrading and traumatic. In addition, since Black and Indigenous individuals are
overrepresented in the CJS, they are likely disproportionately strip searched. It can also be
traumatizing for sexual assault or abuse victims. Thus, strip searches cannot be carried out
simply as a matter of routine policy.
Rules for Strip Searches
- Per Cloutier, a search incident to arrest (pat down and search of the immediate area) does not
require additional grounds beyond the reasonable and probable grounds necessary to justify
the lawfulness of the arrest
- For strip searches, additional grounds (beyond the reasonable and probable grounds for the
arrest) pertaining to the purpose of the strip search are required. Strip searches are only
constitutionally valid at common law where they are conducted as an incident to a lawful
arrest for the purpose of discovering (1) weapons in the detainee’s possession or (2)
evidence related to the arrest.
- Strip searches must only be conducted the police station expect where there are exigent
circumstances requiring the search prior to being transported to the police station. Strip
searches in the field are only justified where there is a demonstrated necessity and urgency to
search for weapons or objects that could threaten the safety of the accused, police or others.
However, the police would have to show why it would have been unsafe to wait and conduct
the strip search at the police station.
Held: the strip searches were unconstitutional and the evidence was excluded; acquitted.
R v Saeed, 2016 SCC 24
- In sexual assault cases where a suspect is under arrest shortly after the assault and police
therefore have reasonable grounds to believe that he may traces of the victim’s DNA on his
genitals, the police may swab the genitals without a warrant
- Court noted the transient nature of such evidence and the resulting potential for its degradation
or destruction
R v Fearon, 2014 SCC 77
- Can police search the cellphone or smartphone upon arrest without a warrant?
- Majority concluded that the proper balance between the interests of privacy and effective law
enforcement does not always require obtaining a warrant for such searches
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The police will not be justified in searching a cellphone or similar device incidental to every
arrest. Rather, such a search will comply with s. 8 where:
o (1) The arrest was lawful;
o (2) The search is truly incidental to the arrest in that the police have a reason based on a
valid law enforcement purpose to conduct the search, and that reason is objectively
reasonable. The valid law enforcement purposes in this context are:
 (a) Protecting the police, the accused, or the public;
 (b) Preserving evidence; or
 (c) Discovering evidence, including locating additional suspects, in situations in
which the investigation will be stymied or significantly hampered absent the
ability to promptly search the cell phone incident to arrest;
o (3) The nature and the extent of the search are tailored to the purpose of the search;
and
o (4) The police take detailed notes of what they have examined on the device and how it
was searched.
D. Detention Powers
R v Mann, 2004 SCC 52
Keywords: detention
Facts:
- Around midnight, police are dispatched to B&E in progress in Winnipeg neighbourhood
- Suspect was described as Zachary Parisienne, 21-year-old Aboriginal male, 5’8”, 165 lbs,
wearing a black jacket with white sleeves
- As they approached the scene, they spotted a man walking along the sidewalk who matched
the description of the suspect “to the tee”
- The man identified himself as Philip Mann and complied with a pat down search for weapons
- Mann was wearing a pullover sweater with a kangaroo pouch pocket in the front
- During the pat down, the officer felt a soft object in the pocket, pulled it out and found a 27g
bag of marijuana; in another pocket, he found several small plastic baggies, two Valium pills
and a treaty status card confirming Mann’s identity
- Mann arrested and cautioned for possession for the purposes of trafficking
Issue – Is there a common law power of investigative detention?
Findings
Investigative Detentions
- Historically, the law has not recognized investigative detention; either you were under arrest
or free to go
- In this case, the court recognizes the common law power of investigative detention
- Rule: Police officers may detain an individual for investigative purposes if there are
reasonable grounds to suspect on an objective view of the totality of the circumstances that
there is a clear nexus between the individual to be detained and a recent or ongoing criminal
offence and that such a detention is necessary
- The detention (1) must be conducted in a reasonable manner, (2) must be brief in duration
and (3) cannot impose an obligation on the detained individual to answer any questions
Protective Search Powers Upon Detention
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Where a police officer has reasonable grounds to believe that his safety or that of others are
at risk, the officer may engage in a pat-down search
The search must be conducted in a reasonable manner
This protective search power is distinguished from the incidental power to search on arrest
Duties and Rights Upon Detention
- S. 10 of the Charter provides that everyone has the right on arrest or detention to be
informed promptly of the reasons thereof and the right to retain and instruct counsel without
delay and to be informed of that right
- At a minimum, individuals who are detained for investigative purposes must be advised, in
clear and simple language, of the reasons for the detention and of their rights upon detention
Application
- 1) The officers had reasonable grounds to detain him
o Mann matched the description of the suspect and was 2-3 blocks from the scene
o These factors led the officers to reasonably that Mann was involved in recent criminal
activity and that further investigation was warranted
o Note: your presence in a high-crime neighbourhood is not a basis for detention
- 2) There were reasonable grounds for a protective search
o Suspected of committing a B&E, it was logical to suspect that he had B&E tools that
could be used as weapons
o The stop also occurred at midnight and with no one else around
- 3) The officer, having admitted to only feeling a soft-object, had no reasonable basis (i.e.
safety reasons) for reaching into the pocket and this intrusive searched violated Mann’s REP
- Held: seizure of marijuana was unlawful and the evidence was excluded under s. 24(2).
Criticisms of Mann
- Many unanswered questions such as how much force police can use in effecting a detention,
whether police can transfer detainees from one location to another, how long a person may
be detained and even whether Mann himself was detained
- Court also failed to address the racial dimensions of police detention practices and the
disproportionate impact of “stop and frisk” practices on Black and Indigenous peoples
R v Clayton, 2007 SCC 32
- Criminal investigative roadblock stops of vehicles and their occupants must be tailored to the
information possessed by police, the seriousness of the offence being investigated and the
temporal and geographic connection between the situation being investigated and the timing
and location of the roadblock
R v Suberu, 2009 SCC 33
- Police had a duty to inform an individual who is subject to investigative detention of his right to
retain and instruct counsel, and a duty to facilitate that right immediately on detention
- The immediacy of this obligation is only subject to concerns for officer or public safety, or to
reasonable limits prescribed by law and justified under s. 1 of the Charter
R v Grant, 2009 SCC 32
Keywords: detention; exclusion of evidence
Facts
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Grant, a young black man, was walking down a Toronto street at midday when, according to
two plainclothes police officers, his manner and clothing attracted their attention
- The officers requested a nearby uniformed officer “have a chat” with Grant
- The uniformed officer approached Grant, while standing on the sidewalk directly in his path
- The officer asked grant for his name and address, so Grant provided his health card
- At one point, Grant, behaving nervously, adjusted his jacked, prompting the officer to tell him
to “keep his hands in front of him”
- By this point, the two plainclothes officers approached, flashed their badges and took up
positions behind the other officer
- Grant was asked if he was carrying anything he shouldn’t have and admitted he was in
possession of cannabis and a firearm
- He was arrested immediately
Issues – At what point was Grant detained? If the detention is found to be unlawful, should the
evidence be excluded under s. 24(2) of the Charter?
Findings – how does a court determine when a person has been detained?
Test for Detention
- Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty
interest by a significant physical or psychological restraint. Psychological detention is
established either where the individual has a legal obligation to comply with a restrictive
request or demand (i.e. traffic stops), or a reasonable person would conclude by reason of the
state conduct that he or she had no choice but to comply.
- In cases where there is no physical restraint or legal obligation, it may not be clear whether a
person has been detained. To determine whether the reasonable person in the individual’s
circumstances would conclude that he or she had been deprived by the state of the liberty of
choice, the court may consider, inter alia, the following factors:
o (a) 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 out the individual for focused investigation.
o (b) the nature of the police conduct including the language used; the use of physical
contact; the place where the interaction occurred; the presence of others; and the
duration of the encounter
o (c) the particular characteristics or circumstances of the individual where relevant,
including age; physical stature; minority status; level of sophistication
Application
- The initial approach by the uniformed officer and general questioning was not enough to
trigger a detention because “a reasonable person would not have concluded that he was
being deprived of the right to choose how to act”
- Things changed with the direction to “keep his hands in front him” and the whole encounter
became “inherently intimidating” – Grant was singled out, two plainclothes officers took up
tactical positions and posted interrogation-like questions; his relative youth and inexperience
- Held: Given this backdrop, Grant was detained when the uniformed officer told him to keep
his hands in front of him. Further, the officers did not have legal grounds to detain Grant, so
the detention violated his s. 9 Charter rights.
Findings – Since the detention was unconstitutional, should the gun be excluded under s. 24(2) of the
Charter?
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Section 24(2) of Charter
- 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute.
- The phrase “bring the administration of justice into disrepute” must be understood in the
long-term sense of maintaining the integrity of, and public confidence in, the justice system
- Key question: would reasonable person conclude that the overall repute of the justice system,
viewed in the long-term, will be adversely affected by the admission of the evidence
- The analysis starts with the proposition that damage to the administration has already been
done by the breach and s. 24(2) seeks to ensure that evidence obtained during the breach
doesn’t do further damage to the repute of the justice system
Grant Test
- When faced with an application for exclusion under 24(2), a court must assess and balance
the effect of admitting the evidence on society’s confidence in the justice system, having
regard to:
- 1) The seriousness of the Charter-infringing state conduct (i.e. admission may send the
message that the justice system condones serious state misconduct)
o The more severe or deliberate the state conduct that led to the violation, the greater
the need to exclude the evidence linked to that conduct in order to preserve public
confidence and the rule of law
o This analysis considers the gravity or serious of the conduct; it is not meant to punish
the police or deter Charter breaches even though deterrence may be a happy
consequence
o “Good faith” on part of the police or extenuating circumstances, such as the need to
prevent the disappearance of the evidence, may mitigate the seriousness of the
conduct (R v Silveira, [1995] 2 SCR 257)
o Willful or flagrant disregard of the Charter by those charged with upholding it or
evidence that the conduct was part of a pattern of abuse tends to support exclusion
- 2) The impact of the breach on the Charter-protected interests of the accused (i.e. admission
may send the message that individual rights count for little)
o This inquiry focuses on the seriousness of the impact of the breach on the accused
o To determine the seriousness of the infringement, the court must look to what
interest are engaged by the right and evaluate the extent/degree to which the breach
actually impacted those interests
o The impact may range from fleeting and technical to profoundly intrusive
o The more serious the impact, the greater the need for exclusion to avoid sending a
message that individual rights are of little avail to citizens
o E.g. the interest engaged in cases where the police obtained a statement in breach of
the Charter include the s. 7 right to silence, stemming from the principle against selfincrimination (R v White, [1999] 2 SCR 417)
o E.g. an unreasonable search contrary to s. 8 may impacted interests of privacy and
human dignity; a search that intrudes on an area where the individual reasonably
enjoys a high expectation of privacy or that demeans his liberty is more serious than
one that does not
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3) Society’s interest in the adjudication of the case on its merits
o Society has a collective interest in truth-finding, in ensuring those who break the law
are brought to trial and dealt with according to law
o This inquiry focuses on the impact of failing to admit the evidence and considers
several factors
o (a) Reliability of the evidence
 The view that reliable evidence is admissible regardless of how it is obtained
is inconsistent with the Charter
 If the breach undermines the reliability of the evidence, this supports the
exclusion of the evidence b/c the admission of unreliable evidence serves
neither the accused’s interest in a fair trial not the public interest in
uncovering the truth
 Conversely, exclusion of relevant and reliable evidence may undermine the
truth-seeking function, render the trial unfair from a public perspective and
thus bring the administration of justice into disrepute
 The fact that evidence obtained in breach may facilitate the discovery of the
truth and the adjudication of the case on its merits must be balanced against
the interests pointing to exclusion
o (b) Importance to the prosecution’s case
 The admission of evidence of questionable reliability is more likely to bring
the administration of justice into disrepute when it forms the entirety of the
case against the accused
 Conversely, the exclusion of highly reliable evidence may impact more
negatively on the repute where the remedy effectively guts the prosecution
o (c) Seriousness of the offence at issue
 The more serious the offence, the greater society’s interest in prosecution
 Failure to effectively prosecute a serious charge due to excluded evidence
may case immediate public outcry; however, this is a long-term analysis so
any short-term clamour must not deafen judges to the long-term repute
 Public also has a vital interest in having a justice system that is above
reproach, especially where penal stakes for the accused are high
Application
- The violation was not deliberate or egregious and there was no suggestion that the accused
was the target of racial profiling
- While the officers went too far in detaining the accused, the demarcating line for detention is
not always clear and the officers made a reasonable mistake
- The significant impact of the breach on the accused’s Charter-protect rights favours excluding
the gun while the public interest in adjudication on its merits favours it’s admission
- The gun was highly reliable evidence and was essential to the determination on the merits
- However, because the officers were operating in circumstances of considerable legal
uncertainty, this tipped the balance in favour of admission
- Held: gun is admitted.
R v Le, 2019 SCC 34
Keywords: detention; race
Facts:
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The accused was one of five young, racialized men in a private backyard of a townhouse in a
Toronto housing co-operative; none of them appeared to be doing anything illegal
- Two police officers entered the yard without a warrant or consent and began questioning the
men and asking for ID
- A third officer patrolled the perimeter of the yard and told one of the men to keep his hands
where the officer could see them
- An officer asked the accused for ID and what was in the satchel he carried
- Accused fled but was captured and arrested; drugs, cash and a firearm were found
Issue – Was the accused’s s. 9 rights breached? If so, should the evidence be excluded under s. 24(2)?
Majority Findings
Was he detained and when?
- Le’s detention began the moment the police entered the backyard and made contact with the
young men
Factors considered
- (1) Circumstances giving rise to the encounter as they would reasonably be perceived
o (A) The place where the interaction occurred and the mode of entry
 Officers understood the backyard was a part of a private residence yet
treated it as a common area where people could come and go, which would
suggest to the reasonable person that they were now under police control
 It is unlikely they would have brazenly entered a private backyard and
demanded to know what its occupants were up to in a more affluent and less
racialized community
 Just because the neighbourhood experiences a high rate of violent crime and
is more heavily policed does not licence police to enter a private residence
more readily or intrusively than a neighbourhood with a lower crime rate
 “…that a neighbourhood is policed more heavily imparts a responsibility on
police officers to be vigilant in respecting the privacy, dignity and equality of
its residents who already feel the presence and scrutiny of the state more
keenly than their more affluent counterparts in other areas of the city”
- (2) Particular characteristics or circumstances of the accused
o In Grant, the court held that the legal test for detention is measured based on how a
reasonable person in like circumstances would perceive the interaction with police,
accounting for diverse realities (i.e. racial background) and based on a “realistic
appraisal of the entire interaction”
o The court must appreciate that individuals in some communities have different
experiences and relationships with police which may impact upon their reasonable
perceptions of whether and when they are being detained
o Accused’s perception vs. officer’s motivation
 In a s. 9 detention analysis, the focus is on what a reasonable person of a
similar racial background would perceive, not what motivated the officers to
act as they did
 The reasonable person is presumed to be aware of the broader, historic and
social context of racial relations between police and racialized individuals
 The focus is on how the combination of the racialized context and minority
status would affect the perception of a reasonable person in the shoes of the
accused as to whether they felt they were free to leave or compelled to stay
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
o
o
Racial profiling is only relevant under s. 9 when addressing whether the
detention was arbitrary because a detention based on racial profiling is one
that is, by definition, not based on a reasonable suspicion. It is also relevant
under s. 24(2) analysis in assessing the whether the police conduct was so
serious and lacking in good faith as to bring the administration of justice into
disrepute. Racial profiling is not relevant to the timing of the detention.
(A) Race and the Timing of Detention
 An important consideration in assessing when the detention occurred is that
Le is a member of a racialized community
 A reasonable person in the shoes of the accused is deemed to know about
how relevant race relations would affect an interaction between police
officers and four Black men and one Asian man in a backyard of a townhouse
at a Toronto housing co-operative
 Evidence of this social context can be proven by direct evidence, admissions
or as a social fact of which the judge may take judicial notice
 In Grant, Binnie J took judicial notice of reliable reports on race relations to
find that “visible minorities, who may, because of their background and
experience, feel especially unable to disregard police directions, and feel that
assertion of their right will itself be taken as evasive”
 In this case, accused cited many reliable studies and reputable reports, and
interveners testified to establish the social context of the disproportionate
policing of racialized and low-income communities, particularly a long history
of a lack of legal basis for police stopping, questioning or detaining Black
people, inappropriate or unjustified searches and unnecessary charges or
arrests which have contributed to feelings of fear/trauma, humiliation, lack of
trust and expectations of negative police treatment
 The lack of testimonial evidence by the accused does not obviate the judge’s
obligation to take racial context into account when determining the timing of
the detention
(B) Level of Sophistication
 Trial judge noted that Le had many prior interactions with police and a
reasonable person in Le’s circumstances would view what happened as
merely another police interaction, not a detention
 SCC disagreed – there is no good reason for the conclusion that more
frequent encounters with the police may make it less likely that a person feels
detained when police approach. This reasoning would suggest that familiarity
with police encounters breeds familiarity with the scope of police entitlement
to detain and with one’s Charter rights to be free from arbitrary detention
 Rather, Le’s experience with police (his level of sophistication) supports a
finding that he was detained when police entered the backyard.
 It is more reasonable to anticipate that frequency of police encounters will
foster more “psychological compulsion, in the form of a reasonable
perception of suspension of freedom of choice”
 Individuals who are frequently exposed to forced police interactions more
readily submit to police demands in order to get through the experience as
quickly and peacefully as possible and move on with their lives because of a
sense of “learned helplessness”
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
A reasonable person who has been stopped by police on multiple prior
occasions would more likely perceive that it is necessary to simply submit to
police demands
Held: the detention was arbitrary, so s. 9 rights were breached. The drug and gun evidence were
excluded given the severity of the police conduct, including the absence of justification to investigate
the men and the police’s lack of good faith. Acquittal entered.
3. CONFESSIONS, RIGHT TO COUNSEL AND RIGHT TO SILENCE
A. Common Law Confessions Rule
- The common law requires the exclusion from evidence of confessions not proven voluntary
- Boudreau v The King, [1949] SCR 262
o The fundamental question relating to the admissibility of a confession made to a person
in authority (i.e. a police officer) is whether it is voluntary
o “It has long been established as a positive rule of English criminal law, that no statement
by an accused is admissible in evidence against him unless it is shewn by the
prosecution to have been a voluntary statement, in the sense that it has not been
obtained from him either by fear of prejudice or hope of advantage exercised or held
out by a person in authority.”
- Voluntariness can be undermined by considerations that have little to do with the reliability of
the confession and everything to do with treating suspects fairly
- R v Oickle, 2000 SCC 38
o The SCC noted that while the confessions rule is concerned with the reliability of
confessions, it focuses on the protection of the accused’s rights and fairness in the
criminal process
o Confessions can be rendered involuntary:
 (1) because of threats or promises that induce the confession;
 (2) due to an atmosphere of oppression that compels a suspect to speak in
order to bring their ordeal to an end;
 (3) in circumstances where the suspect lacks an “operating mind” when
speaking, for example, where a suspect is so intoxicated or mentally disturbed
that the suspect lacks knowledge of what he is saying and that he is saying it to
a police officer who can use it to the suspect’s detriment; or
 (4) where the police have engaged in tricky that is so appalling as the shock the
community (it is inconsistent with maintaining the integrity of the CJS)
o In each case, the court must consider the totality of the circumstances to decide
whether the Crown has established beyond a reasonable doubt that the suspect made a
free and voluntary choice to speak to the police
- Voluntariness can be undermined by shock (Ward v The Queen) or by hypnosis (Horvath v The
Queen)
- In Hobbins v The Queen, the SCC noted that, in determining voluntariness, courts must be alert
to the coercive effect of an “atmosphere of oppression” even where there was no inducement,
threats of violence or actual violence
- R v Spencer, 2007 SCC 11
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o
o
Majority held that inducements become improper only when they deprive the accused of
an “effective choice” whether or not to speak, and that it is the strength of the
inducement that must be considered in the analysis
Dissent sais this collapses the operating mind test in Oickle which only requires evidence
that the inducement caused the will of the detainee to be “overborne” such that he
otherwise would not have made the confession but was persuaded to do so in order to
avoid threatened pain or achieve promised gain
B. Right to Counsel
- Under s. 10(b) of the Charter, everyone has the right on arrest or detention to retain and instruct
counsel without delay and to be informed of that right
R v Manninen, [1987] 1 SCR 1233
Keywords: right to counsel duties; reasonable opportunity to consult; cease questioning
Facts
- The accused was arrested for armed robbery and theft of a convenience store
- On arrest, police officer informed him of his right to retain and instruct counsel without delay
- Accused said he didn’t want to answer any questions and asked to speak to a lawyer
- The police continued their questioning and he made incriminating statements
- There was an operating telephone in the station where the accused had been arrested
- Accused claimed his s. 10(b) rights had been violated
Issue – Were his s. 10(b) rights to counsel breached? If yes, should the confession be excluded under
s. 24(2)?
Findings – s. 10(b) rights were breached.
S. 10(b) Duties
- S. 10(b) imposes two duties on police in addition to the duty to inform a detainee of his rights
- 1. The police must provide the detainee with a reasonable opportunity to exercise his right
to retain and instruct counsel without delay. The detainee is in the control of the police and
he cannot exercise his right unless the police allow him to.
- 2. The police must cease questioning or otherwise attempting to elicit evidence from the
detainee unless he has had a reasonable opportunity to retain and instruct counsel. For the
right to counsel to be effective, the detainee must have access to legal advice as to how to
exercise those rights before he is questioned or otherwise required to provide evidence
- The only exception to either duty is where the circumstances are particularly urgent that the
police continue with an investigation before it is possible to facilitate the detainee’s
communication with counsel or to access advice before questioning
Application
- The accused’s s.10(b) right to counsel was infringed in the circumstances of this case
- 1. Police did not provide him with a reasonable opportunity to consult with counsel. He
clearly asserted his desire to consult counsel and there was an operating telephone in the
office. He was not required to make an express request to use the phone. There was also no
urgency in the circumstances surrounding the offences in this case.
- 2. Police continued questioning before he was given the opportunity to consult with counsel.
The accused’s conduct in answering the questions did not constitute an implied waiver of his
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right to counsel. When police ignored his request, he was likely to feel that his right had no
effect and that he must answer.
Findings – s. 24(2) analysis
- The violation of his s. 24(2) rights was “wilful and deliberate” and was “an open and flagrant
disregard” of his s. 10(b) rights
- Per R v Collins, [1987] 1 SCR 265, the use of self-incriminatory evidence obtained following a
denial of the right to counsel will generally go to the very fairness of the trial and will
generally bring the administration of justice into disrepute
- While the offence was serious and his guilt is clearly established by the statement, this cannot
justify the admission of the evidence in light of the seriousness of the violation and the effect
of the evidence on fairness of the trial
- Held: evidence excluded and new trial ordered
R v Taylor, 2014 SCC 50
- After Manninen, police developed a practice of delaying contact with counsel until the detainee
was transported back to the police station. SCC has found that police cannot assume it would be
impractical to facilitate contract with counsel elsewhere.
- Facts:
o Accused was arrested for impaired driving and transported to hospital
o When informed of his s. 10(b) rights, he asked to speak to a lawyer
o At the hospital, no effort was made by police to provide him with an opportunity to
speak to his lawyer or to determine whether such opportunity was even logistically or
medically feasible
- SCC found that police had violated his right to counsel
- S. 10(b) requires that a detained individual have access to a phone to exercise his right to
counsel at the first reasonable opportunity
- Absent specific evidence that it would be impractical to facilitate contact at the hospital (i.e.
medial emergency, absence of a phone, inability to provide sufficient privacy), the police must
provide a reasonable opportunity to consult counsel
Clarkson v The Queen, [1986] 1 SCR 383
- Waiving your right to counsel
- Facts
o Accused was drunk and emotional when she was arrested for her husband’s murder
o When informed of her right to counsel, she said there was no point and underwent
police questioning while still in that drunken and emotional state
- In order to be valid and effective, a purported waiver of the right to counsel must be clear,
unequivocal and informed
o Informed means the waiver must be premised on a true appreciation of the
consequences of giving up the right (awareness of consequences test)
- SCC held that the circumstances did not pass the awareness of consequences test
- Absent a situation of urgency, the police should have delayed their interrogation until the
accused was in a condition to properly exercise her s. 10(b) right or appreciate the
consequences of waiving it
- By proceeding with the interrogation, the police violated s. 10(b)
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R v Sinclair, 2010 SCC 35
Keywords: no right to reconsult counsel after initial call
Facts
- Accused was charged with second-degree murder
- He was apprised of his s. 10(b) and, at the police station, spoke to his lawyer on two separate
occasions before his formal interrogation commenced
- During the interview, he asked to speak to his lawyer on several occasions but was told that
his right to counsel had been satisfied by the earlier phone calls
- He also asserted his right to silence which the police acknowledged he had but they
continued questioning him regardless
- Eventually, he made some incriminating statements and was used by the Crown as evidence;
he was convicted of manslaughter
Issue – Whether a detainee who has been properly accorded his s. 10(b) rights at the outset of
detention has the constitutional right to further consultations with counsel during the course of the
interrogation.
Majority Findings
- The purpose of s. 10(b) is to inform the detainee of his rights and to provide the detainee
with an opportunity to get legal advice on how to exercise them
- Once the detainee has been informed of his rights, the purpose of s. 10(b) has been met so he
is not entitled to reconsult with counsel unless there are a change in circumstances such as
a new procedures involving the detainee, a change in the jeopardy facing the detainee, or
reason to believe the detainee may not have understood the initial advice of the right to
counsel
o There must be objective indicators that a renewed legal consultation was required to
permit him to make a reasonable choice as to whether to cooperate with the police
investigation or refuse to do so
- In addition, s. 10(b) does not confer a constitutional right to have a lawyer present
throughout a police interview. There is nothing to prevent counsel from being present at an
interrogation where all sides consent and the detainee is free to make counsel’s presence a
precondition of giving a statement
- Held: Applying these principles to the facts, the majority found that his s. 10(b) were not
violated and affirmed the conviction
Dissent
- The plain meaning of s. 10(b) favours an ongoing right to the assistance of counsel
- Upon arrest, the suspect will be subject to skilled and persistent interrogation and through
ignorance of the consequences, may feel bound to make incriminatory statements to police
- Access to counsel is of critical importance at this stage to provide a sense of security and
ensure that the detainee’s constitutional rights are respected
- The exercise of the right to counsel should not be spent upon its initial exercise nor should its
exercise be subject to the permission of police who deliberately ignore a detainee’s requests
to consult counsel
- By persisting instead with their relentless interrogation, the police flout another
constitutional right – the detainee’s right to silence. Often, they succeed in persuading the
detainee that further attempts to exercise either constitutional right will merely postpone the
inevitable and prove to be in vain.
- The majority’s approach is inconsistent with both the text and broader purpose of s. 10(b)
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Summary: Criminal Law (Berger) 2020
-
-
The majority’s fear that administration of justice would grind to a halt should detainees be
given greater access to counsel is not supported by evidence in jurisdictions where that very
right is in place
Dissent would have found that his s. 10(b) rights were violated and that the evidence should
be excluded under s. 24(2); the conviction would be set aside and new trial ordered
C. Right to Silence
- Relying on s. 7 of the Charter, the SCC has recognized a right to silence, subject to some
significant limitations
- R v Sinclair, 2010 SCC 35
o Dissent: “The right to silence, the right against self-incrimination and the presumption of
innocence are interrelated principles and the core values that animate the
administration of justice in Canada. They work together to ensure that suspects are
never obligated to participate in building the case against them.” (para 159)
R v Hebert, [1990] 2 SCR 151
Keywords: right to silence
Facts
- Accused was arrested for robbery and apprised of his right to counsel
- After speaking with counsel, he refused to make a statement to police and was placed in a
holding cell with an undercover officer
- The undercover officer engaged the accused in conversation, during which he made several
incriminating statements
Issue – Whether a statement made by a detainee to an undercover officer violates his right to silence
Findings
Right to Silence
- The overarching purpose underlying the legal rights guarantees in the Charter is to control the
superior power of the state vis-à-vis the individual who has been detained by the state
- The right to silence is based on the suspect’s right to choose whether to speak to authorities
or remain silent
- The question is whether the police conduct effectively and unfairly deprived the suspect of
the right to choose whether or not to speak to the authorities
- There is no absolute right to silence; it is subject to certain limitations:
o 1. It is presumed that counsel will inform the accused of the right to remain silent. As
such, if the police are not posing as undercover officers and the accused chooses to
voluntary info, there will be no violation of the Charter. Police persuasion, short of
denying the suspect the right to choose or depriving him of an operating mind, does
not breach the right to silence
o 2. It only applies after detention (when the state takes control and becomes
responsible for ensuring the detainees rights are protected.) The right is not extended
to undercover operations conducted prior to detention b/c he is not in state control
o 3. It does not apply to voluntary statements made to cellmates, whether or not they
are undercover agents. The right only applies when the Crown acts to subvert the
suspect’s constitutional right to choose not to make a statement to the authorities.
o 4. When the suspect is detained, undercover officers cannot elicit information that
police were unable to obtain by respecting his right to silence. In the absence of
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eliciting behaviour, the suspect makes a choice to speak and must be taken to accept
the risk that the recipient may inform the police (undercover officer can merely listen
but cannot take active and intentional steps to elicit a confession)
Application
- The accused freely exercised his choice not to speak to police
- When he spoke to a fellow prisoner, he was not reversing that choice not to speak to police
- The Crown used a trick to negate his decision not to speak and thus violated his rights
- The nature of the evidence obtained, and the serious nature of the violation was a wilful and
deliberate effort by police to undermine his express assertion of his right to silence and thus
was excluded under s. 24(2)
R v Liew, [1999] 3 SCR 227
- An undercover police officer posed as a cellmate of the accused but did not initiate conversation
that resulted in incriminating utterance
- The majority found that the right to silence was not violated
- The undercover officer had simply responded in keeping with his role
R v Singh, 2007 SCC 48
Keywords: s. 7 right to silence vs. common law confessions rule
Facts
- Three Indian-Canadian men got into an argument with employees in a pub parking lot; one of
the men took out a gun and fired several shots, one of which killed an innocent bystander
- A nearby doorman identified Singh as the shooter and a witness identified him as one of the
three men in the pub’s surveillance photo
- The gun was never found, and no forensic evidence linked Singh to the shooting
- Upon arrest, he was given proper Charter rights and spoke to counsel
- During the interrogation, he said that he did not want to talk to police and wanted to be
returned to his cell
- The police continued asking questions to which he asserted his right to silence 18 times
- Eventually, Singh made incriminating statements
- Singh conceded that the statements were obtained voluntarily (so the common law
confessions rule did not apply) but that the statements should be excluded under s. 24(2)
based on the residual protections afforded to the right to silence under s. 7
Issue – Was his s. 7 right to silence breached? If so, should the evidence be excluded under s. 24(2)?
Findings
Common Law Confessions Rule vs. s. 7 Right to silence
- In the context of a police interrogation of a person in detention, where the detainee knows
he is speaking to a person in authority, the tests for the common law confessions rule and s.
7 right to silence are functionally equivalent
- Both are questions of voluntariness and focus is on whether, from an objective view, the
police conduct denied the accused his ability to exercise his free will (his right to silence)
- If the Crown proves voluntariness BARD, there can be no finding that s. 7 was breached
- If the accused proves on a balance of probabilities that his right to silence was breached, the
Crown cannot show that the statement was voluntary
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-
-
While violation of the common law confessions rule always warrants exclusion of the
evidence, the remedies under for a Charter are subject to the court’s discretion in s. 24(2)
Since the Crown bears the burden of establishing voluntariness BARD and exclusion is
automatic if the test is not met, the common law affords greater protection to the accused
and there is no point in conducting a distinct s. 7 inquiry
Held: the accused conceded that the statement was voluntary so s. 7 was not breached on
this basis
Was s. 7 breached when police continued questioning after accused asserts his right to silence?
- Case focuses on the rights of the accused and society’s interest in effective investigation and
resolution of crime
- The court reiterates the ruling in Hebert which stated that “police persuasion, short of
denying the suspect the right to choose or depriving him of an operating mind, does not
breach the right to silence”
- In determining whether a statement was voluntary under s. 7, the question is whether the
continued questioning by the police in the face of the accused’s repeated assertions of the
right to silence denied the accused a meaningful choice whether to speak or to remain
silent (whether his choice to talk or to remain silent was overborne by the police conduct)
- Held: even those the officer admitted that his questioning was intended to get Singh to
confess, the evidence does not show that Singh’s choice to talk or remain silent was
overborne by the continued questioning; this s. 7 was not breached by the questioning
Dissent (Fish J)
- Singh clearly asserted his right to silence 18 times
- His interrogator systematically disregarded Singh’s wish to remain silent and the more he did
so, the stronger the interrogator’s message that continued resistance was futile
- As a detainee, Singh was under total control of the police and dependent on them for the
necessaries of life
- Where continued resistance has been made to appear futile to a person under the dominance
or control of another, ultimate confessions are neither an implied waiver of the right to
silence nor a voluntarily-made statement
- Police must be not be permitted to press detainees to waiver Charter rights they have firmly
and unequivocally asserted or to deliberately frustrate their exercise
- Dissent would have found his s. 7 right to silence had been breached and would have
excluded the statements under s. 24(2) as a serious breach of one of the fundamental tenets
of a fair trial, the right against self-incrimination
Note
- In Canada, adverse inferences cannot be drawn from a suspect’s silence when interviewed
4. THE TRIAL PROCESS AND THE ROLE OF COUNSEL
A. The Wrongful Conviction of Donald Marshall Jr.
R v Marshall, (1972) 8 CCC (2nd) 329 (Nova Scotia Supreme Court, Appeals Division)
Keywords: wrongful conviction
Facts
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-
On May 28, 1971, Marshall, an Indigenous man, and his friend Seale, a black man, were in a
park when they were approached by two men asking for cigarettes and Marshall and Seale
ask him for money
- Marshall claimed that one of men said he didn’t like “niggers or Indians,” pulled a knife and
stabbed Seale in the abdomen and slashed Marshall’s arm
- Marshall flagged down a police car for help, but Seale later died in hospital
- Two witnesses in the park testified that they had seen Marshall and Seale fighting in the park
and that Marshall had stabbed Seale
- Marshall was charged and convicted of Seale’s murder by judge and jury in 1971 and
sentenced to life in prison
Issues on Appeal – whether the trial judge had erred in law by failing to adequately instruct the jury
and in expressing opinions that were highly prejudicial to the accused
Findings
- No errors found. Appeal dismissed.
Professional Responsibility of Defence Counsel
- On appeal, Marshall’s counsel argued that he was guilty of manslaughter, not murder even
though his client always maintained that he did not stab Seale
- Was such an argument ethical?
- In R v Delisle (1999) (QC CA), the defence lawyer’s refused to pursue the accused’s statement
that another person committed the crime and the court observed that the lawyer “totally
misunderstood the role which was his, by setting himself up as the judge of his client, instead of
respecting his client’s instructions and truly defending his client’s interests.”
R v Marshall, (1983) 57 NSR (2d) 286 (Nova Scotia Supreme Court, Appeals Division)
Keywords: wrongful conviction
Facts
- Marshall made a petition for mercy to the federal minister of justice, arguing that a
miscarriage of justice had occurred
- The minister ordered a new appeal in order to consider new evidence not heard at trial
- The new evidence was testimony by James MacNeil who stated that on May 28, 1971, he and
a friend, Roy Ebsary, were walking in a park when Marshall and a “coloured youth” attempted
to rob them
- MacNeil testified that Ebsary pulled a knife and stabbed Seale before running away
- A week after Marshall was sentenced, MacNeil told Sydney police what had happened
- There was also evidence that the witnesses who had testified at trial later admitted to lying
and denied having seen anything
Issue – Whether the new evidence causes the Appeal Court to “doubt to the correctness of the
judgement at the trial” and thus requires it to set aside the conviction and enter an acquittal
Findings
- There is no doubt that in light of the evidence now before the court that no reasonable jury
could, on that evidence, find Marshall guilty of murder of Seale BARD
- The court must accordingly conclude that the verdict of guilt is not supported by the evidence
and is unreasonable and must order the conviction quashed
- While ordinarily a new trial should be ordered, it would serve no purpose to do so in this case
because the new evidence combined with the denials of the trial witnesses, could not support
a conviction of Marshall
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-
Held: The conviction should be quashed and a verdict of acquittal entered. In light of the
evidence now available, a conviction of the appellant cannot be supported by the evidence.
However, the court held that any miscarriage of justice was “more apparent than real”
because his untruthfulness with police, counsel and the court about the robbery contributed
to his conviction
Royal Commission on the Donald Marshall Jr. Prosecution (1989)
- “The criminal justice system failed Donald Marshall Jr. at virtually every turn, from his arrest and
wrongful conviction in 1971 up to — and even beyond — his acquittal by the Court of Appeal in
1983. The tragedy of this failure is compounded by the evidence that this miscarriage of justice
could have — and should have — been prevented, or at least corrected quickly, if those involved
in the system had carried out their duties in a professional and/or competent manner.”
- Commission highlighted several areas where things went wrong:
o Police – investigating officers had tunnel vision; they believed he was guilty and only
sought evidence and persuaded witnesses to conform with that view
o Crown Counsel – did not probe conflicting witness statements and if he had, he would
have found they weren’t reliable; he also failed to disclose this evidence/inconsistency
that would have been helpful to the accused
o Defence Counsel – despite being experienced and capable counsel, he believed Marshall
was guilty and racial bias led him to represent Marshall inadequately
o Trial Judge – made multiple evidentiary errors and did not allow a recanting witness to
be heard in court
o The 1972 Appeal – did not address the serious issues on record and this failure was of
particular significance because Courts of Appeal are usually the final court in a criminal
matter (usually don’t go to SCC) so what happens at this level matters
o The Correctional System – after his exoneration, the corrections system washed their
hands of him and left him without any support
o The 1983 Appeal
 Reference judges absolved the CJS of any responsibility for Marshall’s wrongful
conviction
 “Donald Marshall Jr. was convicted of murder and served a lengthy period of
incarceration. That conviction is now to be set aside. Any miscarriage of justice
is, however, more apparent than real.” (p 241 of casebook)
 The court found that while Marshall hadn’t committed the murder, he had been
involved in a robbery attempt prior and so was evasive when talking to police;
they essentially blamed him for the wrongful conviction
B. Racism, Court Dynamics and Fact-Finding
R v S(RD) [aka R v RDS], [1997] 3 SCR 484
Keywords: reasonable apprehension of bias
Facts
- RDS, a 15-year-old black man, came upon police arresting his cousin, also a 15-year old man
- RDS was charged with assaulting a white police officer and interfering with a lawful arrest
- The only evidence was their conflicting testimonies
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-
The trial judge, Judge Sparks, who was the first Black appointed judge in Nova Scotia,
commented that police officers have been known to mislead the court in the past and to
overreact with regard to non-white groups and acquitted the accused
- The Crown successfully appealed on the ground of a reasonable apprehension of bias
Issue – Whether the judge’s inclusion of her lived experiences of race relations with police
demonstrated a reasonable apprehension of bias.
Majority Findings (L’Heureau-Dube, McLachlin, La Forest, Gonthier JJ)
Reasonable Apprehension of Bias
- The test for reasonable apprehension of bias is reflective of the reality that while judges can
never be neutral, they must strive for impartiality
- It is inevitable and appropriate that the differing experiences of judges assist them in their
decision-making process and will be reflected in their judgements so long as those
experiences (1) are relevant to the cases, (2) are not based on appropriate stereotypes, and
(3) do not prevent a fair and just determination of the cases based on the facts in evidence
Application
- On the basis of the 3 principles above, there is no reasonable apprehension of bias in this case
- The trial judge’s comments are an entirely appropriate recognition of the facts in evidence in
this case and of the context within which this case arose – a context of racism in that
community known to the judge and to any well-informed member of that community
- Held: the acquittal of RDS is restored
Concurring Decision (Cory and Iacobucci JJ)
- The Marshall inquiry documented the history of anti-black racism in Nova Scotia and suggests
that there is a realistic possibility that the actions taken by police in their relations with visible
minorities demonstrate both prejudice and discrimination
- However, there was no evidence before the trial judge that would suggest anti-black bias
influenced this particular police officer’s reactions
- Findings of credibility must not be made on generalizations rather than on specific evidence
- However, while the comments were troubling, the Crown has not satisfied its onus to provide
cogent evidence needed to impugn the trial judge’s impartiality
- Her remarks, viewed in their context, do not give rise to a perception that she prejudged the
issue of credibility on the basis of generalizations about racist police rather than on the officer
before her in this case
- A reasonable, informed person, aware of the circumstances, would not conclude that her
comments gave rise to a reasonable apprehension of bias
Dissent (Lamer CJ and Sopinka J)
- Our adversarial system does not permit a judge to become an independent investigator to
seek out the facts
- Jurisprudence prohibits tying credibility to something as irrelevant as gender, occupation or
perceived group perceptions
- The comments of the trial judge fall into stereotyping the police officer; it suggests that police
witnesses are likely to lie when dealing with non-whites
- She erred in law by failing to base her conclusions on evidence
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M. E. Turpel, “On the Question of Adapting the Canadian Criminal Justice System for Aboriginal Peoples”
- Turpel argues against the notion that we can easily adapt or translate the current CJS to better
fit Indigenous peoples
- From an Indigenous perspective, many of the things we take as given or for granted as part of
the CJS are in no way necessary; they are cultural artifacts
- The structure of our trials consists of many specific structures that seem normative but in fact
are particular to our culture and don’t fit with many Indigenous views on justice:
o 1. Crime as Against the State – system is structured such that crimes are against the
state whereas Indigenous people view it as personal between people and as a
community issue requiring restoration
o 2. Adversarial System – we are trained to think that an adversarial approach is the
natural way of getting at truth in a criminal trial; it is actually a recent innovation in the
history of the Anglo-North American justice system and is also inconsistent with the
ethic of non-confrontational and non-accusation in Indigenous culture
o 3. Non-Translation of Legal Concepts – concepts like guilt or innocence don’t translate
easily into Indigenous communities; concepts of responsibility or blame might be more
appropriate
o 4. Penalties – incarceration and fines are alien to Indigenous communities; they focus
more on responsibility, restoration
o 5. Institutional Actors – the idea of an impartial judge is inconsistent with the elder who
doesn’t judge but rather helps the individual appreciate the effects of his actions
- Indigenous peoples and Indigenous law are a rich source of inspiration for ideas and visions of
justice so there is an obligation to think about alternative ways of imagining a trial structure
C. The Role of Crown Counsel
Boucher v The Queen, [1955] SCR 16
Keywords: role of Crown counsel
Facts
- Accused was charged with murder
- At trial, the Crown made the following comment to the jury which secured the conviction:
- “It is the duty of the Crown, when an affair like that happens, no matter what affair, and still
more in a serious affair, to make every possible investigation, and if in the course of these
investigations with our experts, the conclusion is come to that the accused is not guilty or that
there is a reasonable doubt, it is the duty of the Crown, gentlemen, to say so, or if the
conclusion is come to that he is not guilty, not to make an arrest. That is what was done
here.... When the Crown put in that evidence, it is not with the intention of bearing down on
the accused, it was with the intention of rendering justice to him.”
Issue – What is the role of Crown counsel?
Findings
- The Crown’s statement gave the impression that there had already been an impartial
determination of guilt and this is inconsistent with the proper role of Crown counsel
- “… the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury
what the Crown considers to be credible evidence relevant to what is alleged to be a crime.
Counsel have a duty to see that all available legal proof of the facts is presented: it should be
done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of
prosecutor excludes any notion of winning or losing; his function is a matter of public duty
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than which in civil life there can be none charged with greater personal responsibility. It is to
be efficiently performed with an ingrained sense of the dignity, the seriousness and the
justness of judicial proceedings...” (pg. 220)
Crown prosecutors are “ministers of justice assisting in its administration, not advocates.”
Duty of the Crown is not to obtain convictions or win cases; it is to present the evidence and
let the system decide on guilt or innocence
Held: conviction was set aside and new trial ordered
“The Pathological Politics of Criminal Law” (Stuntz)
- Many people assume that the substantive criminal law defines the conduct that will land you in
prison and determines who goes to prison and who doesn’t
- In reality, the role of the law is to empower prosecutors, who are the real lawmakers in our CJS
- Courts make criminal law by interpreting criminal statutes, but few criminal cases go to trial and,
of those that do, few raise serious questions about the meaning of the relevant criminal act or
intent, or of some defense
- The criminal law serves as a grant of authority to prosecutors to decide what is a crime, to
separate those who are to be punished from those who are not, and to determine how long
individuals will go to prison
- Criminal law hides a system that allocates criminal punishment discretionally
D. Role of Defence Counsel
“Model Code of Profession Conduct” (Federation of Law Societies of Canada)
- 5.1-1 When acting as an advocate, a lawyer must represent the client resolutely and honourably
within the limits of the law, while treating the tribunal with candour, fairness, courtesy and
respect.
- [9] Duty as Defence Counsel – When defending an accused person, a lawyer’s duty is to protect
the client as far as possible from being convicted, except by a tribunal of competent jurisdiction
and upon legal evidence sufficient to support a conviction for the offence with which the client
is charged. Accordingly, and notwithstanding the lawyer's private opinion on credibility or the
merits, a lawyer may properly rely on any evidence or defences, including so- called
technicalities, not known to be false or fraudulent.
- [10] Admissions made by the accused to a lawyer may impose strict limitations on the conduct
of the defence, and the accused should be made aware of this. For example, if the accused
clearly admits to the lawyer the factual and mental elements necessary to constitute the
offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take
objection to the jurisdiction of the court, the form of the indictment or the admissibility or
sufficiency of the evidence, but must not suggest that some other person committed the
offence or call any evidence that, by reason of the admissions, the lawyer believes to be false.
Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example,
by calling evidence in support of an alibi intended to show that the accused could not have done
or, in fact, has not done the act. Such admissions will also impose a limit on the extent to which
the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the
evidence given by each individual witness for the prosecution and argue that the evidence taken
as a whole is insufficient to amount to proof that the accused is guilty of the offence charged,
but the lawyer should go no further than that.
- Incriminating Physical Evidence
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-
-
-
5.1-2A A lawyer must not counsel or participate in the concealment, destruction or alteration of
incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the
course of justice.
[3] A lawyer is never required to take or keep possession of incriminating physical evidence or to
disclose its mere existence. Possession of illegal things could constitute an offense. A lawyer in
possession of incriminating physical evidence should carefully consider his or her options. These
options include, as soon as reasonably possible:
o (a) delivering the evidence to law enforcement authorities or the prosecution, either
directly or anonymously;
o (b) delivering the evidence to the tribunal in the relevant proceeding, which may also
include seeking the direction of the tribunal to facilitate access by the prosecution or
defence for testing or examination; or
o (c) disclosing the existence of the evidence to the prosecution and, if necessary,
preparing to argue before a tribunal the appropriate uses, disposition or admissibility of
it.
[4] A lawyer should balance the duty of loyalty and confidentiality owed to the client with the
duties owed to the administration of justice. When a lawyer discloses or delivers incriminating
physical evidence to law enforcement authorities or the prosecution, the lawyer has a duty to
protect client confidentiality, including the client’s identity, and to preserve solicitor-client
privilege. This may be accomplished by the lawyer retaining independent counsel, who is not
informed of the identity of the client and who is instructed not to disclose the identity of the
instructing lawyer, to disclose or deliver the evidence. A lawyer cannot merely continue to keep
possession of the incriminating physical evidence.
[5] A lawyer has no obligation to assist the authorities in gathering physical evidence of crime
but cannot act or advise anyone to hinder an investigation or a prosecution. The lawyer’s advice
to a client that the client has the right to refuse to divulge the location of physical evidence does
not constitute hindering an investigation. A lawyer who becomes aware of the existence of
incriminating physical evidence or declines to take possession of it must not counsel or
participate in its concealment, destruction or alteration.
Exceptions to Solicitor-Client Privilege
- 1) when it must be revealed as the only means to demonstrate the innocence of the accused
- 2) when the communications themselves are criminal in nature
- 3) for public safety reasons relating to a clear and serious risk of serious harm to an identifiable
person or group of people
- See Smith v Jones, R v McClure
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III. Actus Reus – The Criminal Act
Conduct or Actus Reus
- Criminal liability can only exist where there is a valid definition in law of criminal wrongdoing
- Criminal law cannot be applied retroactively and it excludes the enforcement of offences that
are vague or overbroad
- Foundational principle of criminal liability is actus non facit reum nisi mens sit rea, an act is not
guilty unless there is also a guilty mind; there can be no criminally culpable act unless it is
performed with a culpable mental state
o Insistence on mens rea prevents criminalization of mere accidents
o Without actus reus, there would be no bar to the imposition of criminal liability for
prohibited thoughts
- Actus reus requires a (1) physically voluntary (2) act or omission, (3) sometimes in certain
prescribed circumstances, and (4) sometimes causing certain consequences
- Finding of guilt requires that the Crown prove each element BARD
1. CONTEMPORANEITY AND VOLUNTARINESS
A. Voluntariness
- Actus reus requires voluntary conduct
- Voluntariness is a requirement for every offence, whether criminal or quasi-criminal/regulatory
offence
- Voluntariness – the prohibited conduct must be a product of the will of the accused
o Involuntary = accident, reflexive action, sleepwalking
- The essential characteristic of voluntariness is conscious control of action
o Consciousness alone is not enough to establish voluntariness because a person might be
conscious but incapable of controlling his conduct (i.e. sleepwalking)
o An element of control is necessary in order to attribute liability for the conduct
- The voluntariness of a person’s conduct will be established if his conduct is the product of his
conscious choice
R v Larsonneur, (1934) 24 Cr App R 74
Keywords: voluntariness
Facts:
- Appellant was a French citizen who landed in the UK legally
- Shortly thereafter, she was ordered to leave the UK and she travelled to Ireland
- Irish police deported her back to the UK where she was detained as an illegal alien
- Jury returned a verdict of “guilty through circumstances beyond her own control”
Notes
- Case is now viewed as having improperly ignored the voluntariness component of actus reus
Kilbride v Lake, [1962] New Zealand (SC)
Keywords: voluntariness
Facts:
- Appellant parked his wife’s car on a street and returned to find a ticket for falling to display a
current warrant of fitness on the vehicle
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The warrant was in the correct position when he left the vehicle but had somehow become
detached or was removed by a someone unknown in his absence
Issue – Whether a lawful act could become an offence by reasons of an intervening cause beyond his
influence or control and which produced an effect entirely outside his means of knowledge
Findings
- The act or omission making up the actus reus must be voluntary – there must be free and
conscious will in the case of an act, or the opportunity to choose to behave differently in the
case of omissions
- This mental element is distinct from mens rea which is the intent behind or accompanying the
exercise of will; voluntariness of actus reus is simply the spark without which actus reus
cannot be produced at all
- In this case, there was no opportunity to take a different course and any inactivity of the
appellant after the warrant was removed was involuntary and unrelated to the offence
- Held: there was no actus reus in this case; appeal allowed
R v King, [1962] SCR 746
- Facts
o Accused was injected with an anesthetic, sodium pentothal, for a dental extraction
o After awakening, the nurse told him not to drive but he said he didn’t hear her
o While driving home, he fell unconscious and crashed into the rear of a parked car
o He was charged with impaired driving
o Medical evidence showed his physical and mental condition at the time was consistent
with the after-effects of sodium pentothal which can induce amnesia accompanied by a
period where the person may feel competent to drive only to suddenly lose conscious
awareness
- SCC overturned the conviction, arguing that there can be no actus reus unless it is the result of a
willing mind at liberty to make a definite choice or decision
o Free will and meaningful choice are central to the idea of voluntariness
Voluntariness and Duress
- R v Ruzic, 2001 SCC 24
o Criminal liability can be ascribed only to acts that resulted from the choice of a
conscious mind and an autonomous will
o It is a basic principle that absence of volition in respect of the act is always a defence to
a crime and a defence that the act was involuntary entitles the accused to a complete
and unqualified acquittal
B. Principle of Contemporaneity
- The principle of contemporaneity (also called the principle of coincidence or concurrence)
explains the relationship between the actus reus and mens rea
- It holds that, with regard to all offences that require proof of fault, that offence cannot be
proven unless the element of fault (the mens rea) and the actus reus coincide
o The intent and the act must concur to constitute a crime
- In some cases, a strict application of the principle can lead to an unjust or absurd result, so the
courts have begun to favour a more flexible application
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Fagan v Commissioner of Metropolitan Police, [1969] 1 QB 439
Keywords: contemporaneity; assault
Facts:
- Fagan was pulled over by a police officer who then stood in front of his car and directed him
to drive the car forward to the curb
- At first, Fagan didn’t park close enough for the officer’s liking and was told to move forward
- Fagan did so and stopped with the wheel on the officer’s foot
- The officer said “get off my foot” and Fagan replied “fuck you, you can wait” and turned off
the vehicle
- Officer continued yelling to get off and Fagan eventually moved the car
- Fagan was charged with assaulting a police officer in the execution of his duty
- At trial, judge found that the initial mounting of the wheel onto the foot was an accident but
was satisfied, BARD that Fagan “knowingly, provocatively and unnecessarily allowed the
wheel to remain on the foot after the office said get off”
- On appeal, Fagan raised an issue of contemporaneity – the act of driving onto the foot came
to an end without there being any mens rea
Issue – Whether Fagan’s act can be said to be complete and spent at the moment of time when the
car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating
until the wheel was removed
Majority Findings
- An assault is any act which intentionally causes another person to apprehend immediate and
unlawful personal violence
- No mere omission to act can amount to an assault
- The actus reus is the action causing the effect on the victim’s mind
- The mens rea is the intention to cause the effect
- It is not necessary that the mens rea be present at the inception of the actus reus; it can be
superimposed on upon an existing act; however, subsequent inception of mens rea cannot
convert an act which has been completed without mens rea into an assault
- On the facts, the act of Fagan may have initially been unintentional but the time came when
knowing that the wheel was on the officer’s foot he (1) remained seated in the car so that his
body through the medium of the car was in contact with the officer, (2) switched off the
ignition, (3) maintained the wheel on the foot and (4) used words indicating the intention of
keeping the wheel in that position
- This was not a mere omission to act but voluntary actions
- The act of assault was continuing during this time
- Held: appeal dismissed. Conviction upheld.
Dissent
- The elements of assault cannot be established
- Driving on the foot was an act but failing to drive off was an omission
- No mere omission to act can amount to an assault
- The car rested on the foot by its own weight and remained stationary by its own inertia
- Fagan’s fault was that he omitted to manipulate controls to set it in motion again
- The fact that Fagan remained in the seat and turned off the ignition has no relevance because
it may have been worse if he alighted from the car and left the ignition on
- Dissent would have overturned the conviction
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R v Miller, [1982] 2 All ER 286
Keywords: contemporaneity; arson
Facts:
- Miller was squatting in someone else’s house, lit a cigarette and then lay down on a mattress
- He woke up to find the mattress smouldering but simply moved to another room and slept
- The house caught on fire and he was charged with arson
- Miller argued that he did not intend to light the fire so there was no mens rea; the act of
lighting the cigarette is separate from the guilty mind (willfully allowing the fire to spread)
Issue – Whether the act and intent were coincident
Findings
- Rule: an unintentional act followed by an intentional or reckless omission to rectify that act
or its consequences can be regarding as an intentional act
- Miller did not have a legal duty to extinguish the smouldering mattress
- However, the whole of Miller’s conduct in relation to the mattress from the moment he lay
on it with a lighted cigarette until the time he left it smouldering and moved to the adjoining
room can and should be regarded as one act
- At the time of such conduct, his state of mind was one which constituted a necessary
ingredient of the offence: he became aware the mattress was on fire and could cause damage
to another person’s property
- Responsibility Theory: Criminal liability begins at the point in time before the resultant
damage is complete that a person becomes aware that he has done a physical act which,
whether or not he appreciated that it would at the time when he did it, does in fact create a
risk that property of another will be damaged; provided that, at the moment of awareness, it
lies within his power to take steps, either himself or by calling for assistance, to prevent or
minimize the damage to the property at risk
- Once he became aware of the danger, he had a duty to take steps to prevent the damage; as
such, he is criminally liable for arson
R v Cooper, 1993 1 SCR 146
- Cooper began strangling the victim but blacked out and woke to find her dead next to him
- He was charged with murder by manual strangulation and convicted
- SCC introduced the continuing transaction approach to assessing contemporaneity
o The guilty act and intent must be present but not it is not always necessary for them to
be concurrent; they must simply coincide at some point
o The determination of whether the guilty mind coincides with the wrongful act will
depend on the nature of the act
- Majority
o Death of the victim occurred within 2 minutes after he grabbed her by the neck
o It could reasonably be inferred that when he grabbed her neck, there was at that
moment, the necessary coincidence of the wrongful act of strangulation and the
requisite intent to do bodily harm that the accused knew was likely to cause her death
o Cooper was aware of these acts before he blacked out
o It was sufficient that the intent and act of strangulation coincided at some point and it
was not necessary that the intent continue throughout the entire 2 minutes required to
cause her death
o Conviction upheld
- Dissent
o He lacked the intent to cause death so should not be liable for murder
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R v Williams, 2003 SCC 41
- Facts
o Williams had been in a relationship with the victim for 18 months and they had engaged
in unprotected sex for 5 months before he learned of his HIV-positive status
o At that point, he was counselled about the risk of transmission and his duty to disclose
his status to sexual partners
o Williams continued to have unprotected sex with the victim for a year before she tested
positive
o Under law, failing to disclose HIV status vitiates consent
o Williams was convicted of aggravated sexual assault for endangering her life
- SCC substituted the conviction for attempted aggravated assault
o Since the medical evidence couldn’t prove whether she contracted HIV before or after
his diagnosis, there was reasonable doubt as to whether, at the time he was aware of
his HIV-positive status, he was endangering the life of the victim
R v Forcillo, 2018 ONCA 402
Keywords: inconsistent verdicts
Facts:
- Shortly before midnight on July 27, 2013, officer Forcillo and his partner responded to a
report of a man, Sammy Yatim, wielding a knife on a streetcar
- When they arrived, Yatim was alone on the streetcar and the officers stood directly outside
the streetcar door
- Forcillo told Yatim to drop the knife several times but Yatim moved towards them instead
- Forcillo fired three shots and Yatim fell to the ground
- 5.5 seconds later, Forcillo fired six more shots into Yatim as he lay on the floor
- Medical evidence showed the one of the shots in the first volley fatally struck Yatim in the
heart; during the second volley, Yatim was dying but the medical experts couldn’t say if any of
these shots accelerated his death
- Crown filed a two-count indictment
- The first count was second degree murder relating to the first three shots, alleging that
Forcillo had the requisite intent for murder that could not be justified as lawful use of force or
self-defence
- The second count was attempted murder relating to the second volley of shots, alleging that,
even though there was no causal connection between those bullets and Yatim’s death,
Forcillo believed he was alive when he fired and intended to kill him; this conduct could not
be justified as lawful use of force or self-defence
- At trial, Forcillo was acquitted of murder but convicted of attempted murder
Issue – Was the conviction of attempted murder inconsistent with the acquittal of murder?
Findings
- The circumstances pertaining to the first and second volleys were significantly different. and
those differences left it reasonably open to the jury to come to different conclusions
- Forcillo fired the first volley at a non-compliant Yatim who approached him with a knife in a
menacing matter and ignored the officer’s demands; these circumstances provide a basis for
reasonable doubt as to whether the use of deadly force was justified, and the jury acquitted
on that basis
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-
-
-
-
-
The second volley of shots occurred while Yatim was lying on the floor and these
circumstances reasonably led the jury to conclude that Yatim posed no imminent threat to
Forcillo and he knew it
Forcillo was also not prejudiced by the inclusion of two counts in the indictment; the inclusion
of a separate count for the first and second volley promoted trial fairness and Forcillo’s ability
to effectively present his defence
The two separate indictments were also consistent with Forcillo’s own evidence; he did not
testify that the second volley was a continuation of the first volley and instead specified that
he fired the second volley after he reassessed the circumstances as he is trained to do
The jury was not required to look at the circumstances pertaining to the second volley
without regard to the preceding circumstances and they did not do so; the events leading up
second volley were an important circumstance in deciding whether the Crown had proved
BARD that the second volley was not justified
Forcillo’s perception that he was in imminent danger of serious harm when he fired the first
volley impacted his perceptions when he fired the second volley
Held: No error or prejudice in the Crown’s decision to prefer two counts in the indictment.
The verdicts on the counts are neither unreasonable nor inconsistent. Appeal dismissed.
2. OMISSIONS, STATUS AND CIRCUMSTANCES
Acts, Omissions and Status
- In defining the actus reus, it is crucial to ascertain the precise conduct that is prohibited
- The law generally favours criminal punishment only for actions, but there are certain
circumstances in which omissions, or failures to act, may be punishable in criminal law
- Status offences, which punish in absence of an act or an omission, are problematic but rare
A. Acts
- Most offences require proof of some positive act (i.e. stealing, killing)
- Issues related to acts tend to be definitional in nature (i.e. what does “communicating” mean)
- In some instances, Parliament has provided definitions to clarify what is meant by specific terms
used in the definition of prohibited conduct
o S. 2 of the Code is a general section for definitions
o Some words are given a limited meaning in relation to specific offences. This means that
words can mean different things for different parts of the criminal law, by virtue of
express definition
- Where Parliament has offered no guidance of definition specifying what is contemplated by a
particular act, one must look to the common law to find judicial interpretation of the term
B. Omissions
- Criminal law has been reluctant to impose liability for omissions or failures to act
- The law will only find someone criminally liable for an omission where that person was subject
to a legal duty to act arising out of statute or common law (Moore v The Queen)
- There is no duty to intervene, prevent or offer assistance unless the law specifically says so
- Specific omission offences imply a legal duty and punish for failure to discharge it
o The legal duties implied by these offences are, the duty to report treason (s. 50), the
duty to assist a peace officer attempting to arrest a person (s. 129) and the duty to stop
your vehicle, identify yourself and render assistance after an accident (s. 320.16)
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o Failure to perform any of the duties is an offence
General omission offences create the possibility for criminal punishment based on the failure to
perform a legal duty; they don’t specify what legal duties might “plug in” and instead refer
generally to a “duty imposed by law” or a “legal duty”
o Two types: offences of common nuisance and criminal negligence
-
R v Browne, (1997) ONCA
Keywords: omission; criminal negligence
Facts:
- Browne and Audrey Greiner were drug dealers and had been stopped by police after leaving a
known drug house
- To escape detection, Audrey swallowed a bag of cocaine
- After release, she tried unsuccessfully throw up the bag and the two went to Browne’s house
- Around 2am, Browne found Audrey shaking and sweating and said “I’m going to take you to
the hospital”
- Browne called a taxi which arrived 15 minutes later; Audrey had no pulse on arrival at the
hospital and died
- Brown was convicted of criminal negligence causing death because he failed to render
assistance to her by failing to take her immediately to the hospital after undertaking a legal
duty to render such assistance and thereby did cause her death; he demonstrated a wanton
and reckless disregard for her life contrary to s. 219(1) of the Code
Issue – Was his undertaking to “take her to the hospital” sufficient to form a legal duty under s. 217?
Findings – Was there an “Undertaking” under s. 217
Test
-
-
-
S. 217 states that everyone “who undertakes to do an act is under a legal duty to do it if an
omission to do the act is or may be dangerous to life”
What kind of an undertaking gives rise to a legal duty within the meaning of s. 217, the breach
of which can result in criminal culpability?
1) The undertaking under s. 217 can be made between anyone; it doesn’t require a preexisting relationship or a specific relation defined by law
o The legal duty under s. 217 does not flow from the relationship between the parties
as it does in s. 215 which creates legal duties between spouses, parents and children,
and dependants and caregivers
o The relationship or context between the parties is relevant only to the determination
of whether the breach reflected a “wanton or reckless disregard” under s. 219(1), not
to whether there was an undertaking under s. 217
2) The definition of “undertaking” must be determined based on the penal sanctions applied
to that context.
o Since a conviction for criminal negligence causing death carries a max penalty of life
imprisonment, the definition must be sufficiently high to justify such serious penal
consequences
o A mere expression of words indicating a willingness to do an act cannot trigger the
legal duty; there must be something in the nature of the commitment upon which
reliance can reasonably said to have been placed
3) The undertaking must have been clearly made and with binding intent. Nothing short of
such a binding commitment can give rise to the legal duty contemplated in s. 217
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Application
- The nature of the relationship between Browne and Audrey is irrelevant to the s. 217 analysis
- The evidence does not disclose any undertaking of a binding nature
- They both were drug dealers used to swallowing bags of drugs to avoid police detection
- There was no evidence that Browne knew Audrey was in trouble until 2am when he
immediately phoned for a taxi
- His words that he would take her to the hospital do not constitute an undertaking creating a
legal duty under s. 217.
- He said he would take her to the hospital, and he did. There was no evidence that a 911
would have resulted in a quicker arrival to the hospital or that she would have been saved if
she had arrived earlier
- Held: Since there was no undertaking, there was no duty. Since there was no duty, there can
be no breach contrary to s. 219
Provincial Law Duties
- Duties established in provincial legislation can serve as legal duties sufficient to ground liability
in general omission offences
- This raises a division of power problem
- Criminal law was intended to be uniform across Canada and was accordingly assigned to the
federal government
- Provincial duties allow criminal law to punish certain omissions in some provinces while not in
others
o E.g. article 2 of Quebec’s Charter of Rights and Freedoms imposes a duty upon others to
assist a person in peril and failure to do so could be the basis of a prosecution for
criminal negligence causing death
o In the rest of Canada, there is no duty to intervene, prevent or offer assistance
- This puts some substantive criminal law into the hands of provincial legislatures
Common Law Duties
- Recall that s. 730 of the Code prohibits the creation or application of offences at common law
- However, courts have created and upheld legal duties created at common law
- Common law duties raise concerns about the structure of the criminal law and the idea of
codification
R v Thornton, (1991) 1 OR (3d) 480 (CA)
Keywords: common nuisance; common law duty from Donoghue v Stevenson
Facts:
- Thornton donated blood to Canada Red Cross knowing he was HIV positive and being wellinformed about AIDS and the means of transmission
- Red Cross’s screening process detected the contamination and set it aside
- Thornton was charged under s. 180 for common nuisance
- Under s. 180, a person commits a common nuisance by doing an unlawful act or by failing to
discharge a legal duty and, in doing so, endangers the lives, safety, health, property or
comfort of the public.
Issue – Were the elements of common nuisance met? Did he have the mens rea for the offence?
Findings – Act of Common Nuisance
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Did he commit an unlawful act? – No
- An unlawful act means conduct which is specifically prescribed by law
- The Code does not make it an offence to donate contaminated blood
- Thornton’s conduct did not amount to an offence known to law
Did he have a legal duty to refrain from donating blood? – Yes
- A “duty imposed by law” or “legal duty” may be a duty arising by virtue of either the common
law or by statute
- There is no provision under the Code or statute specifically imposing a legal duty upon a
person to refrain from donating contaminated blood
- However, per Donoghue v Stevenson, there is a common law duty that requires everyone to
refrain from conduct which it is reasonably foreseeable could cause serious harm to other
persons
- Held: Donating blood which one knows to be HIV contaminated, to an organization whose
purpose is to make the blood available for transfusion to other persons, clearly constitutes a
breach of the common law duty to refrain from conduct which one foresees could cause
serious harm to other persons. Thus, it is a failure to discharge a “legal duty” under s. 180
Did he “endanger” the lives or health of the public? – Yes
- To “endanger” means to expose someone to danger, harm or risk, or to put them in danger of
something untoward occurring; it does not require actual injury or damage
- Donating contaminated blood obviously put potential recipients and health-care workers at
risk or in danger of an untoward happening when he donated his blood
- The gravity of the potential harm is catastrophic, and the public was endangered from the
moment he donated his blood
Held: there was an actus reus for common nuisance
Findings – Mens Rea for Common Nuisance
- Thornton had person knowledge that he should not donate blood, that it could be missed by
the screening process and that It could cause serious harm to the life and health of the public
- Thus, he knew that by giving his blood to Red Cross, he was endangering the lives and health
of other members of the public
- Held: he had mens rea for the offence
SCC Appeal
- S. 216 imposed on the appellant a duty of care in giving his blood to the Red Cross. This duty
of care was breached by not disclosing that his blood contained HIV antibodies. This nuisance
obviously endangered the life, safety and health of the public.
- Appeal dismissed.
- *Note: SCC said nothing about common law duties and ruled that the conviction could be
sustained on the basis of s. 216.
R v Cuerrier, [1998] 2 SCR 371
- SCC created and imposed a duty of disclosure regarding HIV-positive status
- Court held that non-disclosure of HIV status vitiates consent
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Omissions – Final Thoughts
- Criminal liability for non-compliance with legal duties should be restricted to duties enacted by
Parliament under s. 91(27) of the Constitution
C. Status
- Historically, status offences punished when there was neither an act nor an omission
- Effectively amounted to criminal law punishing an individual for who he is rather than how he
chooses to act (i.e. being tall or being part of an ethnic group)
- Such offences run afoul of the requirement of voluntariness in criminal liability
- Today, status offences would likely be considered to offence s. 7 of the Charter
- While pure status offences have been extinguished, status is an essential ingredient of some
current offences such as being a parent in the context of failing to provide the necessaries of life
or being an owner in the context of permitting the suffering of animals
- Some argue that offences such as being found in a common gaming or betting house, or being
nude in a public place are modern status offences; however, acts or omissions underlie these
offences
- Assuming that people require some form of shelter to be safe and heathy, do by-laws
prohibiting temporary overnight shelters effectively punish the homeless based on their status?
- In a recent contemporary appearance of status-like concerns, Parliament rejected the option to
create offences of being a member of a criminal or terrorist organization and instead created
offences for participation in the activities of such organizations
D. Circumstances
- Parliament will occasionally include specific circumstances among the elements of an offence
- E.g. operating a motor vehicle only becomes criminal conduct where the individual was impaired
- Wherever there are such circumstances, the Crown must prove them BARD
- Statutory definitions are sometimes provided to assist in clarifying the relevant circumstances
- Some circumstantial aspects may be clarified only through judicial interpretation
3. CONSEQUENCES AND CAUSATION
- Many offences include a specific outcome or consequence, such as causing death or bodily harm
- When an offence specifies an outcome, the specified consequence itself generally poses little
interpretative difficulty
- Key issue usually is whether the prescribed consequence was caused by the accused’s conduct
- Two types of causation in criminal law: factual causation and legal causation
A. Factual Causation
- Factual causation asks whether some logical link can be drawn between the accused’s conduct
and the prohibited consequence
- If the Crown is unable to show such a link, causation is not established
R v Winning, (1973) ONCA
Keywords: factual causation
Facts:
- Winning filled out an application to obtain credit from Eaton’s; she gave her proper name and
address but made at least two false statements
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- She was convicted of obtaining credit by false pretenses
Issue – Was factual causation established?
Findings
- Rule: Only if the creditor relies on those false statements to provide credit, then she is
guilty of the offence
- Evidence establishes that Eaton’s did not rely upon the info contained in the application save
for the name and address
- Thus, she did not obtain credit by false pretense because the credit was not given not in
reliance on her application
- Held: acquittal entered.
R v Gentles, 2016 BCCA 68
- Accused was charged with impaired driving, impaired driving causing bodily harm and impaired
driving causing death after he struck two pedestrians, injuring one and killed the other
- He was convicted of impaired driving but acquitted of the other two charges because the
evidence showed that the victims has walked into the path of the accused’s vehicle, making the
accident unavoidable
- The Crown failed to provide BARD that the impairment was a contributing cause to the death
and injuries resulting to it
B. Legal Causation
- Legal causation – whether the causal connection between the conduct and consequence is
sufficiently strong to support criminal liability
Smithers v The Queen, [1978] 1 SCR 506
Keywords: test for legal causation
Facts:
- Smithers and Barrie Cobby were hockey players on opposing youth hockey teams
- On the night in question, profanities and racial slurs had been exchanged and both were
ejected from the game
- In the parking lot, the two engaged in an altercation where Smithers kicked Barrie who died
- Smithers was charged with manslaughter
- Manslaughter is the causing of a death by a human being by an unlawful act (i.e. assault), but
not an intentional act
- The autopsy showed that Cobby had died from aspiration due to vomiting
Issue – Whether there was evidence of a causal connection between the kick and death
Findings
- Test for legal causation: Crown must establish that the accused’s actions were a
contributing cause of the death, outside the de minimis range
- Jury found as fact that the kick was a contributing cause to the victim’s vomiting and death
- The “thin skull rule” from R v Nicholson applies – one must take the victim as he finds him
- Thus, the fact that the victim had a malfunctioning epiglottis was immaterial
Harbottle Exception to Smithers Test
R v Harbottle, [1993] 3 SCR 306
Keywords: Harbottle test for legal causation under s. 214(5)
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Facts:
- Harbottle and a friend, Ross, forcibly confined a young woman
- Ross sexually assaulted the victim and then afterwards, the two discussed how to kill her
- While she was still confined with her hands tied, the friend strangled her to death while
Harbottle held her legs to prevent her from kicking or struggling
Issue – Whether Harbottle’s participation such that he can be found guilty of first-degree murder
under s. 214(5)
Findings
S. 214(5) and Substantial Cause Test
- S. 214(5) was designed to punish those who commit the “most grievous murders”
- It states that irrespective of whether a murder is planned and deliberate on part of any
person, murder is first degree murder when the death is caused by that person while
committing or attempting to commit of domination (i.e. sexual assault)
- The phrase “when the death is caused by that person” demonstrates Parliament’s recognition
that these are particularly heinous crimes warranting a more severe penalty and thus a higher
standard of causation
- Substantial Cause Test – a person may only be convicted under s. 214(5) if the Crown
establishes BARD that the accused’s actions were an essential, substantial and integral cause
of the death
- An accused may be found guilty of first-degree murder pursuant to s. 214(5) if the Crown
establishes BARD:
o (1) the accused was guilty of the underlying crime of domination or of attempting to
commit that crime;
o (2) the accused was guilty of the murder of the victim;
o (3) the accused participated in the murder in such a manner that he or she was a
substantial cause of the victim's death;
o (4) there was no intervening act of another which resulted in the accused no longer
being substantially connected to the death of the victim; and,
o (5) the crimes of domination and murder were part of the same series of events.
o It would be appropriate to charge a jury in those terms.
Application
- Evidence adduced clearly established all elements of the test:
- (1) Harbottle was guilty of at least one enumerated offence of domination (forcible
confinement)
- (2) he participated in and was found guilty of murder
- (3) his participation in the murder was such that he was a substantial and integral cause of
the death of the victim
- (4) there was no intervening act of another which resulted in the accused’s act no longer
being substantially connected to the death of the victim
- (5) the crimes of domination and murder were part of the same series of acts or transaction
- Held: appeal dismissed; conviction of manslaughter upheld
R v Nette, 2001 SCC 78
Keywords: causation standard for second-degree murder; jury instructions on causation
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Facts:
- During course of a robbery, Nette and partner hog-tied a 95-year-old woman with electric
wire and tied a garment around her head and neck; the men departed leaving her tied up
- Two days later, she was found dead on the floor beside her bed
- Medical expert found the cause of death was asphyxiation due to an upper airway
obstruction and a number of factors contributed to her death including being tied up, age,
lack of muscle tone, congestive heart failure and asthma
- At trial, Nette was convicted of second-degree murder but appealed on the basis that the
Harbottle causation test should have been used rather than Smithers
Issue – What is the standard of causation for second degree murder? How should the applicable
standard be explained to the jury?
Findings – Standard of Causation
- The causation standard expressed in Smithers is applicable to all forms of homicide. The only
exception is in the case of first-degree murder under s.231(5) or s. 236 for which Harbottle
requires additional instructions
- Held: conviction upheld
Findings – Jury Instructions
Majority
- Latin phrase of “beyond a de minimis range” is not useful to the jury
- Preferable to phrase the standard of causation in positive terms such as “significant
contributing cause” rather than using expressions phrased in the negative such as “not a
trivial cause” or “not insignificant” or Latin terms
Minority
- Describing a contributing cause as having a “significant” impact attaches a greater degree of
influence or importance to it than do the words “not insignificant”
C. Intervening Act
- Causal link between an accused’s actions and the victim’s death is not always obvious in a
homicide case
- In cases involving multiple causes of death or intervening causes, determining causation is
challenging
R v Maybin, 2012 SCC 24
Keywords: intervening act
Facts:
At a bar, Timothy and Matthew Maybin punched the victim’s face and head who then fell
unconscious
- Less than a minute later, the bouncer struck the unconscious victim in the head
- The victim died as a result of bleeding in the brain
- At trial, the Maybins and the bouncer were acquitted of manslaughter because the medical
evidence was inconclusive about which blows caused death and thus, there was reasonable
doubt as to who caused the death
Issue – When does an intervening act by another person sever the causal connection (legal causation)
between the accused’s act and the victim’s death, thereby absolving the accused of legal
responsibility for manslaughter?
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Findings
- An accused’s unlawful actions need not be the only cause of death, or even the direct cause
of death; the court must determine if the accused’s actions are a significant contributing
cause of death
- When does an intervening act by another person sever the causal connection so that the
accused’s act is not a significant contributing cause of death?
Intervening Act
- As intervening act is one which intervenes to break the chain of causation between the
accused’s act and the death (R v Tower)
- Any assessment of legal causation should maintain focus on whether the accused should be
held legally responsible for the consequences of his actions, or whether holding the accused
responsible for the death would amount to punishing a moral innocent
- Depending on the circumstances, assessments of foreseeability or independence may be
more or less helpful in determining whether an accused’s unlawful acts were still a significant
contributing cause at the time of death.
- 1) Reasonable foreseeability
o Was the intervening act reasonably foreseeable in the circumstances?
o Was the general nature of the intervening act and the accompanying risk of nontrivial harm objectively foreseeable at the time of the dangerous and unlawful acts?
- 2) Independence
o Did the act of the accused merely set the scene, allowing other circumstances to
coincidentally occur, or did the act of the accused trigger or provoke the action of the
intervening party?
o Was the act of the third party so independent of the accused’s actions that his act
should be regarded in law as the sole cause of the victim’s death to the exclusion of
the acts of the accused?
o If the intervening act was a direct response or was 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
- When the intervening acts are natural events, they are more closely tied to the theory of
foreseeability and the courts ask whether the event was “extraordinary”
- When the intervening acts are those of a person exercising his free will, the focus is on the
independence of the actions
- An intervening act does not always sever the causal connection:
o Under CC, the chain of causation is not broken if the death could otherwise have been
prevented by resorting to proper means (s. 224) or if the immediate cause of death is
proper or improper treatment that is applied in good faith (s. 225)
o It is also not severed if the third party acted in good faith, under mistake, intimidation
or similar pressure, or whose actions were not voluntary
Application
- 1) Reasonable foreseeability – the risk of intervention by patrons and the bouncer was
objectively foreseeable when the accused commenced a one-sided fight in a bar
- 2) Independence – the bouncer acted in direct and immediate reaction to what the accused
did’ his act was responsive and not coincidental conduct
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o
-
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 acts were still
subsisting and not spent at the time the bouncer acted
o The evidence showed that the blow delivered by the bouncer was not so
overwhelming as to make the effect of the original assaults merely part of the history
o Bouncer’s assault was not independent of the accused’s unlawful act and the
accused’s actions remained a significant contributing cause of death
o The dangerous and unlawful acts of the accused were not so remote to suggest that
they were morally innocent
Held: It was reasonable to conclude that the accused caused the death. Conviction upheld.
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IV. Mens Rea – The Mental Element
1. MENS REA AND INTENT
- Mens rea is the “guilty mind”; it is the mental element or fault requirement of an offence
- There is no single type of fault applicable to true crimes
R v ADH, 2013 SCC 28
Keywords: common law presumption of subjective mens rea
Facts:
- S. 218: everyone “who unlawfully abandons or exposes a child who is under the age of 10
years, so that its life is or is likely to be endangered or its health is or is likely to be
permanently injured is guilty of an offence
Issue – Whether the mens rea for the offence of child abandonment in s. 218 is to be assessed
subjectively or objectively?
Findings
- The presumption is that Parliament intends crimes to have a subjective fault element,
unless there is something in the text or context that suggests a particular form of required
mens rea for the offence in question
- Presumption also stands if Parliament’s intent is unclear
Application
- 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 in fact support the view that subjective fault is
required
A. Subjective vs. Objective Standards of Fault
R v Buzzanga and Durocher, (1979) ONCA
Findings
- Subjective fault may involve some objective considerations
- Since people are usually able to foresee the consequences of their acts, if a person does an
act likely to produce certain consequences, it is, in general, reasonable to assume that the
accused also foresaw the probable consequences of his act, and if he, nevertheless, acted so
as to produce those consequences, that he intended them
- The greater the likelihood of the relevant consequences ensuing from the accused’s act, the
easier it is to draw the inference that he intended those consequences
- However, because this is a subjective assessment, if the accused gives testimony to what was
actually in his mind and the jury finds him credible, this evidence must be weighed with the
other evidence when determining whether the necessary intent was established
R v Tennant and Naccarato, (1975) ONCA
Findings
- Where liability is imposed on a subjective basis, what a reasonable man ought to have
anticipated is merely evidence from which a conclusion may be drawn that the accused
anticipated the same consequences
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Where the test is objective, what a reasonable man should have anticipated constitutes the
basis of liability
B. Intent
R v Hibbert, [1995] 2 SCR 973
Keywords: intent vs. motive
Facts:
- The accused’s friend told him to lure the victim down to the basement or he would kill him
instead
- Accused did so and the victim was shot and killed by the friend
- Accused was charged with aiding and abetting a murder
- Under the Code, the crime of aiding and abetting requires that the accused does or omits to
do something for the purpose of assisting another in committing an offence (language of
intent)
- Accused argued that he was lacked the mens rea for the offence because his goal was to save
his life, not to help the friend commit murder
Issue – Can motive of duress negate the mens rea of the offence?
Findings
- Motive can only be raised later with a defence of duress or self-defence
- For the purposes of the offence, the accused had the required intent because he subjectively
knew that luring the victim downstairs was certain or virtually certain to lead to the victim’s
death and the accused did it anyways
- Intent means the accused meant to do that act and here, he did mean to do it
R v Buzzanga and Durocher, (1979) ONCA
Keywords: intent
Facts:
- Accused were sympathetic to the French community in which they lived and published a
pamphlet that was a satire of those who opposed bilingualism in order combat apathy in the
French-speaking community in relation to the building of a French-language school
- They were charged with willfully promoting hatred against francophones
Issue – What is the required form of mens rea indicated by the word “willfully”?
Findings
By including the word “willfully” in the provision, Parliament intended to limit the offence to
the intentional promotion of hatred
- It reflects Parliament’s policy to strike a balance in protecting freedom of expression and the
public order and group reputation
- Thus, the accused “willfully” (intentionally) promoted hatred against French Canadians only if:
(a) their conscious purpose in distributing the document was to promote hatred against
that group, 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 obtaining the French language high school
- New trial ordered
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2. RECKLESSNESS, WILLFUL BLINDNESS, CRIMINAL NEGLIGENCE AND PENAL NEGLIGENCE
A. Wilful Blindness
R v Briscoe, 2010 SCC 33
Keywords: willful blindness
Facts:
- Accused was charged with first-degree murder, kidnapping and sexual assault
- He had driven the group to the crime scene, gave them a weapon, held the victim and told
her to shut up
- Trial judge acquitted on the basis that he did not know the crimes would occur
Issue – Had the trial judge erred by not considering willful blindness?
Findings
- Willful blindness is not on its own a subjective form of mens rea; rather, it can substitute for
actual knowledge whenever knowledge is a component of the mens rea
- Willful blindness imputes knowledge to an accused whose suspicion is aroused to the point
where he sees the need for further inquiries but deliberately chooses not to make those
inquiries
- Key question: “Did the accused shut his eyes because he knew or strongly suspected that
looking would fix him with knowledge?”
- If yes, he was willfully blind and the mens rea of subjective knowledge of a fact would be
complete
- While failure to inquire may be evidence of recklessness or criminal negligence (i.e. where a
failure to inquire is a marked departure from the conduct of a reasonable person), willful
blindness Is not simply a failure to inquire but “deliberate ignorance” – an actual process of
supressing a suspicion
Application
- Accused made statements that suggested that he had a strong, well-founded suspicion that
someone would be killed, and he was willfully blind to the kidnapping and sexual assault
- His statements showed he deliberately chose not to inquire about what the members of the
group intended to do because he didn’t want to know: “whatever you guys wanna do just do
it. Don’t do it around me. I don’t want to see nothing. I don’t want to know what the fuck
you’re going to do.”
- New trial order to determine whether he had the required mens rea for the three offenses
B. Recklessness
Sansregret v The Queen, [1985] 1 SCR 570
Keywords: recklessness vs. willful blindness
Facts:
- Accused sexually assaulted the victim after breaking into her home and the victim said she
consented in order to ensure her own safety
- The accused had done this before, and she had reacted in the same way; she alleged sexual
assault but later withdrew the charges
- Accused said he had a mistaken belief that she had consented and had not done so out of fear
or violence
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Issue – What is the relationship between recklessness and willful blindness?
Findings
Recklessness vs. Willful Blindness
- Recklessness for criminal liability must be subjectively determined
- It is not based on a departure from a reasonable standard of care but rather on what is found
in the attitude of the accused who, aware that there is danger that his conduct could bring
about the result prohibited by the law, nevertheless persists, despite the risk
- Willful blindness is distinct from recklessness
o Recklessness involves knowledge of a danger or risk and persistence in the course of
conduct which creates a risk that the prohibited result will occur; the accused is at
fault because he was conscious off the risk and proceeded anyways
o Willful blindness arises where a person who has become aware of a need for some
inquire declines to make the inquiry because he does not wish to know the truth; the
accused is at fault because he deliberately failed to inquire when he knows there is a
reason for inquiry
Mistake of Fact Defence and Willful Blindness
- Accused asserted an honest belief that the consent of the complainant was not caused by
fear or threats
- If the accused’s conduct was found to be reckless, he would be acquitted because Pappajohn
only requires that the belief be honest, even where unreasonable (note: see legislative
reforms for update)
- If willful blindness is shown, the law presumes knowledge on part of the accused (in this
case knowledge that the consent had been induced by threats) so there would be no room
for the application of the defence
C. Objective Standards of Fault
R v Hundal, [1993] 1 SCR 867
Keywords: objective fault standard for regulatory offences
Facts:
- Accused drove his overloaded dump truck through a red light and killed the driver of a car
that had moved into the intersection on a green light
Issue – Whether the mens rea for the offence of dangerous driving should be assessed subjectively or
objectively?
Findings
- Because driving is often undertaken automatically and with little conscious thought, it is
inappropriate to apply a subjective test
- The mens rea for the offence of dangerous driving should be assess objectively but in the
context of all the events surrounding the incident. Personal factors need not be taken into
account.
- This approach satisfies the dictates of common sense and fairness
Application
- Accused’s manner of driving represented a gross departure from the standard of a reasonably
prudent driver
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-
No explanation was offered by the accused that could excuse his conduct (i.e. sudden or
unexpected illness)
Conviction upheld. Appeal dismissed
D. Criminal Negligence
R v Creighton, [1993] 3 SCR 3
Keywords: criminal negligence
Facts:
- Accused, an experienced drug user, was charged with manslaughter (criminal negligence
causing death) by means of the unlawful act of trafficking drugs when he injected cocaine into
a friend who then died of an overdose
Issue – Whether a reasonable person in the circumstances of the accused would have foreseen the
risk of death arising from the unlawful act.
Dissent
- Parliament has made it clear that this is an objective mens rea offence. The analysis is based
on what a reasonable person in the circumstances of the accused would have done.
- Court held that personal characteristics of the accused such as age, mental development or
education level do not factor into the reasonable person analysis; the only exception is where
there is an utter incapacity to view risk
Objective Test & Special Knowledge
- If the accused enjoyed, by virtue of his membership in a group, had special experience or
knowledge related to the conduct giving rise to the offence, the reasonable person will be
invested with this enhanced foresight
Objective Test & Capacity
- An accused can only be held to the standard of a reasonable person if the accused was
capable, in the circumstances of the offence, of attaining that standard
- While personal characteristics of the accused are not typically considered in the objective
test, the court will consider any “human frailties” affecting the accused’s awareness of the
circumstances which create risk or impair their ability to perceive the particular risk
- Human frailties which may affect the capacity of the accused to recognize the risks of
unlawful conduct must be incorporated, not because they result in the accused believing in
an incorrect set of facts but rather because they render the accused incapable of perceiving
the correct set of facts
o E.g. illiteracy could mean the accused was unable to read the warning labels or signs
- Because the reasonable person is expected to compensate for his frailties to the text that he
or she is conscious of them or able to do so, the alleged frailty must be one in which the
accused could not control or manage in the circumstances
o E.g. intoxication or drug impairment which occurs as a result of voluntary
consumption cannot serve to vitiate liability for the risks created by negligent conduct
of an accused
o E.g. while a person with cataracts cannot be faulted for having reduced vision, he may
be expected to avoid activities which create risk or render him unable to manage risk
which is inherent in the activity (i.e. driving)
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-
However, it’s important to remember this is not a subjective test: If the accused has frailties
that do not impair capacity, those are not considered. Thus, if a reasonable person with the
frailties of the accused would nevertheless have appreciated the risk, and the accused did not
in fact appreciate the risk, the accused must be convicted.
Application
- The reasonable person should be deemed to possess the accused’s considerable experience
in drug use
- However, an application of the objective test is not necessary because the trial judge had
found that the accused subjectively appreciated the risk of death when injecting the deceased
with cocaine
Majority Findings
- The dissenting decision infuses objective mens rea with subjective elements
- Factors that hinder capacity should be considered at the defences stage; not in an assessment
of mens rea
- Affirms the manslaughter conviction on the basis that a reasonable person in the
circumstances would have been aware of the risk of non-trivial bodily harm
- Short of incapacity to appreciate the risk or incapacity to avoid create it, personal attributes
such as age, experience and education are not relevant. The objective test is measured
based on the conduct expected of the reasonably prudent person in the circumstances of
the accused.
E. Penal Negligence
R v Beatty, 2008 SCC 5
Keywords: penal negligence; mere vs. marked departure
Facts:
- Accused’s truck suddenly crossed the centre line into the path of an oncoming vehicle, killing
all three occupants
- He was charged with three counts of dangerous driving causing death
- Accused said he wasn’t sure what happened but may have lost consciousness or fell asleep
- Witnesses testified that the accused had been driving properly prior to the accident
- An inspection discovered no mechanical issues with the car and intoxicants were not present
Issue – Whether this momentary act of negligence was sufficient to constitute dangerous operation of
a motor vehicle within the meaning of s. 320.13(3) of the Code
Findings
- The objective test of Creighton is applied to penal negligence offences
- Penal negligence is aimed at punishing blameworthy conduct
- There must be a marked departure from the standard of a reasonable person, not simply a
mere departure required for civil negligence
- This distinction is a question of degree; it is only when the conduct meets the higher
threshold of “marked departure” that the court may find a blameworthy state of mind
- “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk
casting the net too widely and branding as criminals persons who are in reality not morally
blameworthy”
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Application
- 1. Actus reus – viewed objectively, was the trier of fact satisfied BARD that the accused driving
in a manner that was “dangerous to the public, having regard to all the circumstances,
including the nature, condition and use of the place at which the motor vehicle was being
operated and the amount of traffic that at the time is or might be reasonably expected to be
at that place”?
o The accused’s failure to confine his vehicle to his own lane of traffic was dangerous to
other users of the highway
- 2. Mens rea - viewed objectively, was the trier of fact satisfied BARD that the conduct
amounted to a marked departure from the standard of care that a reasonable person would
observe in the accused circumstances?
o There is no evidence of any deliberate intention to create a danger for other drivers
o Was the accused’s momentary lapse of attention, viewed on an objective basis, a
marked departure from the norm?
Held: There was insufficient evidence to support a finding of a marked departure from the standard of
care of a prudent driver
R v Roy, 2012 SCC 26
Keywords: penal negligence; momentary lapse
Facts:
- Accused brought his vehicle to a halt at a stop sign on a steep, unpaved back road, which was
snow covered and slippery; visibility was poor due to fog
- He proceeded to make a left turn onto the highway and came directly into the path of an
oncoming tractor-trailer
- The accused had no memory of the accident so could not say why he made the turn
- The accused’s passenger was killed, and he was convicted of dangerous driving causing death
Issue – Did the accused have the requisite mens rea for the offence?
Findings
- Dangerous driving causing death consists of two components: (1) the prohibited conduct –
operating a motor vehicle in a dangerous manner resulting in death, and (2) a required
degree of fault – a marked departure from the standard of care that a reasonable person
would observe in all the circumstances
- The fault component ensures criminal punishment and stigma is only imposed on those who
are morally blameworthy
- Defining a fault element for dangerous driving is difficult given the inherent dangerous nature
of driving and the fact that even simple carelessness may result in tragic consequences which
may tempt triers of fact to unduly extend the reach of the criminal to those responsible
- The focus of the mens rea is on whether the manner of driving was the result of a marked
departure from the reasonable standard; it asks two questions
- 1) In light of all the evidence, would a reasonable person have foreseen the risk and taken
steps to avoid it if possible?
- 2) If so, whether the accused failure to foresee the risk and take steps to avoid it was a
marked departure from the standard of care of a reasonable person in the circumstances
Application
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-
-
-
Simple carelessness, to which even the most prudent drivers may occasionally succumb, is
generally not criminal
Per Beatty, momentary lapses in attention may but do not generally give risk to the level of a
marked departure required for a conviction of careless driving
The manner of driving leading up to the event was normal and prudent; it was the only
momentary decision to pull into the highway when it was not safe to do so that, viewed
objectively, that was dangerous
His decision to pull onto the highway is consistent with a simple misjudgement of speed and
distance of oncoming traffic in difficult conditions and poor visibility
Record discloses a single and momentary error in judgement with tragic consequences
It does not support a reasonable inference that the accused’s standard of care was a marked
departure from that expected of a reasonable driver in the same circumstances so as to
justify a conviction for the offence of dangerous driving causing death
Acquittal entered.
R v Chung, 2020 SCC 8
- Accused had accelerated from speed limit of 50 km/hour to 140 km/hour while approaching an
intersection
- Held: The momentary period of excess speeding could satisfy the mens rea of a marked
departure from the standard of care on a charge of dangerous driving causing death because a
reasonable person would foresee the dangers to the public from the momentary conduct
3. CONSTITUTIONAL LIMITS
A. Stigma Offences
R v Vaillancourt, [1987] 2 SCR 636
Keywords: felony murder; stigma offences require minimum of subjective mens rea
Facts:
- Accused and his accomplice committed an armed robbery in a pool-hall
- Prior to the robbery, the two had agreed to only be armed with knives but on the night of the
robbery, the accomplice arrived with a gun
- The accused said he objected because on a previous robbery, his gun had accidentally
discharged, so he insisted the gun be unloaded
- The accomplice removed three bullets and handed them to the accused who stored it in a
glove in the bathroom (which was later found by the police)
- During the robbery, the accused was armed with a knife and the accomplice with the gun;
during the struggle, the accomplice shot and killed a patron
- The accused was charged with “felony murder” which said that you were guilty of murder
when death happened while committing a set of listed offences (i.e. robbery, kidnapping)
- The offence did not require the mens rea for murder (didn’t need to have an intent to kill or
foresight of death) to find the accused guilty of murder
Issue – Is felony murder provision constitutional?
Findings
- While Parliament retains the power to define the elements of a crime, the courts have a duty
under s. 7 to ensure that definition is in accordance with the principles of fundamental justice
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Under s. 7, if a conviction, given either the stigma attached to the offence or the availability
of penalties that will result in the deprivation of life, liberty or security of person, the
principles of fundamental justice require proof of subjective mens rea with respect to the
prohibited act, in order to avoid punishing the morally innocent
Stigma offences includes: murder and theft
The mental element must give rise to a moral blameworthiness which justifies the stigma
and sentence attached to a murder conviction
Held: The felony murder provision is unconstitutional because the minimum constitutional
mens rea for murder is subjective foreseeability of death. It is not reasonably justified under
s. 1
R v Martineau, [1990] 2 SCR 633
Keywords: stigma offences
Facts:
- Accused and his friend planned to commit a break and enter
- During the gunpoint robbery, the friend killed the occupants
- Both were charged with felony murder
- Accused argued that he thought it would only be a robbery and thus did not subjectively
foresee the death
Issue – Is felony murder provision constitutional?
Majority Findings
- While Parliament retains the power to define the elements of a crime, the courts have a duty
under s. 7 to ensure that definition is in accordance with the principles of fundamental justice
- A conviction of murder carries with it the most severe stigma and punishment of any crime in
our society and this requires a mens rea reflecting the particular nature of that crime
- S. 7 requires that the punishment must be proportionate to the moral blameworthiness of
the offender
- The necessary moral blameworthiness to justify the huge stigma and punishment for
murder arises only where there is subjective mens rea
- Here, where the accused had no subjective foresight of the death, punishment exceeds the
moral blameworthiness of his actions
- To label and punish a person as a murderer who did not intend or foresee death
unnecessarily stigmatizes and punishes those whose moral blameworthiness is not that of a
murderer
- The stigma and punishment attaching to the most serious of crimes, murder, should be
reserved for those who choose to intentionally cause death or who choose to inflict bodily
harm that they know is likely to cause death.
Dissent
- The severity of the actus reus in these cases justifies requiring little to no mens rea
- The purpose of this offence is to deter those who are already committing serious crimes from
going so far as to cause death; this is a valid policy objective
R v Creighton, [1993] 3 SCR 3
Keywords: stigma offences; manslaughter not included
Facts:
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Accused, an experienced drug user, was charged with manslaughter (criminal negligence
causing death) by means of the unlawful act of trafficking drugs when he injected cocaine into
a friend who then died of an overdose
- Manslaughter only requires mens rea for the underlying unlawful act and reasonable
foreseeability of the risk of non-trial and non-transitory bodily harm
Issue – Is objective foresight of death for manslaughter constitutional?
Findings
- Manslaughter is constitutional even though subjective fault is not required
- Per Vallaincourt, the only basis upon which subjective foresight of death or risk of death is
constitutionally required is where the offence for which “because of the special nature of the
stigma attached to a conviction thereof or the available penalties, the principles of
fundamental justice require a mens rea reflecting the particular nature of that crime
- The stigma attaching to a conviction of manslaughter is significant but does not approach the
level reserved in our society for those who knowingly or intentionally take the life of another
R v Finta, [1994] 1 SCR 701
Keywords: stigma offences; crimes against humanity
Facts:
- Accused was a senior officer at a concentration camp in Hungary during WWII
- He was charged with committing unlawful confinement, robbery, kidnapping and
manslaughter that constituted crimes against humanity
Issue – What is the required mens rea for a “crime against humanity”?
Findings
- The distinguishing feature of a crime against humanity as compared to the underlying
offences (i.e. kidnapping) is that they shock the conscience of all right-thinking people
- The offence is not aimed at those who killed in the heat of battle or in defence of their
country; rather it is aimed at those who inflicted immense suffering with foresight and
calculated malevolence
- While the underlying offence may constitute a base level of moral culpability, Parliament has
added a further measure of blameworthiness by requiring that the act or omission constitute
a crime against humanity
- Further, this offence meants the Vallaincourt standard of a stigma offence so it requires
subjective mens rea
- Thus, the Crown would have to establish that the accused subjectively knew or was willfully
blind to that the facts or circumstances of his actions were such that, viewed objectively,
would shock the conscience of all right-thinking people
- If the jury is not satisfied of this additional element of mens rea BARD, then the accused
cannot be found guilty of a crime against humanity
Kent Roach, “Mind the Gap”
- There is a gap between what the law says and people’s lived experience of it in courts
4. REGULATORY OFFENCES AND ABSOLUTE AND STRICT LIABILITY
A. Regulatory Offences
- Regulatory offences can be enacted by all levels of government; they far out-number crimes
- Can apply to individuals and corporations
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Corporations can be charged with regulatory offences relating to the environment, comsumer
protection and health and safety; they can also be charged with some Criminal Code crimes
R v Wholesale Travel, [1991] 3 SCR 154
Keywords: regulatory offences vs. true crimes
Findings
Importance of Regulatory Offences
- Government policy in Canada is pursued principally through regulation
- It is through regulatory legislation that society governs itself and the conduct of its members
- Regulation is essential for our protection and well-being as individuals, and for the effective
functioning of society
- The more complex the activity, the greater the need for and greater reliance on regulation
and enforcement
Key Distinctions between Crimes and Regulatory Offences
- 1. Mala in se vs. mala prohibita
o Acts or actions are criminal when they constitute conduct that, is it itself, so
abhorrent to the basic values of human society that it ought to be prohibited
completely
o Regulations are intended to protect the public or certain groups (employees,
consumers, motorists etc.), from the potentially adverse effects of lawful activity
o They prohibit certain conduct, not because its inherently wrong but because
unregulated activity would result in dangers conditions being imposed on members of
society, especially those who are particularly vulnerable
- 2. Purpose
o Crimes are designed to condemn and punish past, inherently wrongful conduct
o Regulatory offences are directed at preventing future harm through the enforcement
of minimum standards of conduct or care
- 3. Conceptions of Fault
o Crimes are directed at the conduct itself and a criminal conviction implies moral
blameworthiness and requires a high degree of culpability
o Regulatory offences are directed at the consequences of the conduct and conviction
implies a departure from the prescribed standard of care and thus requires a lesser
degree of culpability
B. Absolute Liability
Beaver v The Queen, [1957] SCR 531
Keywords: pre-Charter; absolute liability allowed
Facts:
- Accused was charged with possession and sale of heroin
- He believed the package contained sugar of milk
- Under the Opium and Narcotics Drug Act, every person who has in his possession and/or sells
a prohibited drug is guilty of an offence
- Trial judge instructed the jury that so long as they were satisfied that he had been in
possession of heroin, he was guilty of the offence and it was irrelevant whether he had any
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knowledge of what the substance was or whether he had an honest but mistaken belief that
it was a harmless substance
- Jury convicted him
Issue – What mens rea, if any, is required for this offence?
Findings
- Mens rea is presumed necessary for true crimes and this is why we have the presumption of
subjective mens rea is required for true crimes
- However, pre-Charter, Parliament can impose absolutely liability for regulatory offences and
thus, no mens rea is required
- Because he was in possession of heroin, he was liable
R v Pierce Fisheries Ltd., [1971] SCR 5
Keywords: pre-Charter; absolute liability allowed
Facts:
- Accused was charged with possessing undersized lobsters contrary to the Lobster Fishery
Regulations made pursuant to the Fisheries Act, RSC 1952
- The language in which the regulation was enacted is free from any presumption as to the
requirement of mens rea
Issue – What mens rea, if any, is required for conviction?
Findings
- This is a regulatory offence intended to protect lobster beds from depletion and thus
conserving the source of supply of the fishing industry which is of general public interest
- Very low stigma associated with being convicted of this offence
- Since its a regulatory offence, it is not necessary for the Crown to prove any mens rea; the
offence is simply made out by the fact that the actus reus was met (he was in possession of
undersize lobsters)
- Absolute liability means the accused was not required to intend or even know that he had
undersized lobsters in order to be found liable
C. Strict Liability
R v City of Sault Ste. Marie, [1978] 2 SCR 1299
Keywords: presumption of strict liability for regulatory offences
Facts:
- City was charged under the Ontario Water Resources Act with discharging material into a
creek and river that may impair the quality of the water (a pollutant)
- This is an absolute liability offence so as long as they discharged the pollutant there were
liable without the Crown have to establish a mental element
Issue – Are there compelling grounds to recognize a middle ground between mens rea and absolute
liability?
Findings
Mens rea and Absolute Liability
- Where the offence is criminal, the Crown must establish a mental element
- Absolute liability allows conviction on proof merely that the defendant committed the
prohibited act constituting the actus reus of the offence; there is no relevant mental element
so it is no defence that the accused was entirely without fault
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Arguments for absolute liability:
o People are more likely to maintain high standards of care if they know that ignorance
or mistake will not excuse them
o Allows for administrative efficiency because it is difficult to prove mental culpability
Arguments against absolutely liability:
o Violates principles of penal liability – even where a person takes every reasonable
precaution, this is not a defence
o No empirical evidence that it results in a higher standard of care
Strict Liability
- The court recognizes a need for a third category of offences: strict liability offences
- For regulatory or public welfare offences, unless Parliament or the legislatures make it clear
that absolute liability is the required mens rea, the presumption is that the mens rea will be
strict liability
- Strict liability – upon the Crown proving the actus reus beyond a reasonable doubt, the
burden shifts to the accused to prove due diligence on a balance of probabilities
- Accused must show that he (1) reasonably believed in a mistaken set of facts or (2) that he
took all reasonable steps to avoid the particular event
Application
- This is a regulatory offence so strict liability is presumed
- New trial is ordered
D. Charter Limits on Absolute Liability
- Pre-Charter, Parliament or legislatures could impose absolute liability for offences
- Post-Charter, it was no longer permissible under s. 7 to expose someone to a deprivation of
liberty without some mental fault element
- If liberty is at issue, the principles of fundamental of justice requires some form of mens rea,
regardless of whether it’s a true crime or a regulatory offence
Reference re Section 94(2) of the BC Motor Vehicle Act, [1985] 2 SCR 486
Keywords: post-Charter; mens rea
Facts:
- Under s. 94(2) of the BC Motor Vehicles Act, it was an offence punishable by imprisonment to
drive with a suspended licence, whether or not the person knew it was suspended
- BC referred the question of its constitutionality to the SCC
Findings
- It is constitutionally impermissible for an offence to carry the potential for imprisonment
without some minimum level of mens rea or fault
- To permit otherwise would offend the principles of fundamental justice because it would
allow for the punishment of the morally innocent
- Absolute liability is not permitted where the punishment involves a potential loss of liberty
(imprisonment or probation)
- If a regulatory offence involves the possibility of a deprivation of liberty (imprisonment or
probation), Parliament or legislatures cannot impose anything less than strict liability
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E. Charter Limits on Strict Liability
R v Wholesale Travel, [1991] 3 SCR 154
Keywords: regulatory offences vs. true crimes
Facts
- Accused was charged with false or misleading advertising contrary to the Ontario Competition
Act
- This was a strict liability offence because it imposed a due diligence defence – the accused is
not liable if he can establish on a balance of probabilities that he took reasonable precautions
and exercised due diligence to prevent the occurrence of such error
Issue – Is the reverse onus on the accused for strict liability unconstitutional?
Dissent
- Reverse burden violates presumption of innocence under s. 11 and is not justified under s. 1
- Proof BARD requires that the Crown, not the accused, must bear the burden to prove all
elements of an offence BARD
Majority Findings
- S. 11 is offended but it is justified under s. 1 because public welfare offences are such that
due diligence is best shown by the accused
- In the world of regulation, it is reasonable and makes sense to reverse the burden
- Held: the reversed burden of strict liability is constitutional because while it might offend
the presumption of innocence, it is justified in a free and democratic society
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V. Sexual Assault
1. FRAMING PRINCIPLES AND ACTUS REUS
A. “Ideal” Victims
“Sexual Assault Law, Credibility, and ‘Ideal Victims’: Consent, Resistance and Victim Blaming” (Melanie
Randall)
- Despite increased social and legal awareness of violence against women, the archetype of the
“ideal” sexual assault victim still functions to disqualify many complainants accounts of their
sexual assault experiences
- The “ideal victim” myth often works to undermine the credibility of those women who are seen
to deviate too far from stereotypical notions of “authentic” victims and from what are assumed
to be “reasonable” victim responses
- Assessments of credibility remain deeply influenced by myths and stereotypes surrounding
“ideal”, “real”, or “genuine” victims of sexual assault
- In response to years of feminist legal scholarship and advocacy, revisions to the Code have
addressed some of the major and traditional problems surrounding definitions and prosecutions
of the crime of sexual assault
o These amendments have also sought to excise legally embedded rape myths and to
revise evidentiary rules to ensure fairer trials
o Amendments include removal of spousal immunity, statutory limits on examining a
complainant’s past sexual history, the redefinition of consent, and a legal requirement
that the accused demonstrate having taken “reasonable steps” to obtain consent tin
order to have his “mistake” excused
- These changes make law appear, on its surface, to have been cleansed of its most problematic
excesses; the criminal law on sexual assault looks “pretty good, statutorily speaking”
- However, despite these changes, serious and troubling difficulties persist within the Canadian
legal landscape, especially to the actual processing of sexual assault in the CJS
- The law on the books and the law in action are two very different things and this has yet to be
meaningfully remedied
B. Sexual Assault in Action
- Only 8% of adult women victimized by sexual assault in 2004 reported the crime to police
- Only 42% of cases report to police result in charges be laid and no more than 11% result in
sexual assault convictions (Statistics Canada)
o This attrition is what Randall has in mind when she points out the difference between
sexual assault law on the books and law in action
- In addition, police often fail to properly investigate sexual assault claims and disproportionately
and prematurely dismiss allegations of sexual assault as “unfounded”
o In Williams v London Police Services Board, 2019 ONCA 227, the plaintiff has alleged that
such practices are discriminatory and violate s. 15 of the Charter
- Law in action is also impacted by how the trier of fact determines the facts, including the
credibility of witnesses
o Sexual assault law also involves credibility contests between female complainants and
male accused
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C. Sexual Assault: Actus Reus, Mens Rea and the Role of Myths and Stereotypes
R v Ewanchuck, [1999] 1 SCR 330
Keywords: sexual assault; actus reus and mens rea elements; rape myths
Facts:
- 17-year-old complainant attended a job interview in the accused’s van and trailer
- On four separate occasions, he began touching her in a sexual manner and each time she said
no, he briefly stopped but then continued more aggressively
- Complainant said she didn’t protest beyond saying no in fear that he would become violent
- Accused was acquitted of sexual assault based on a defense of implied consent
- Crown appealed this as a mistake in law b/c no such defense is available in assault cases
Issue – Was the accused guilty of sexual assault?
Findings
Actus Reus Elements of Sexual Assault
- 3 elements: (i) touching, (ii) the sexual nature of the contact and (iii) the absence of consent
- First two elements are objective
- (i) It is sufficient for the Crown to prove that the accused’s actions were voluntary
- (ii) The sexual nature is determined objectively; the Crown need not prove that the accused
had any mens rea with respect to the sexual nature of his behaviour
- (iii) The absence of consent is subjective and determined by reference to the complainant’s
state of mind towards the touching at the time it occurred
o Credibility of the complainant’s testimony must be assessed by the trier of fact
o It is open to the accused to claim that the complainant’s words or actions, before and
during the incident, raise a reasonable doubt against the assertion that, in her mind,
she did not want the sexual touching to take place
o However, if the judge believes the complainant that she subjectively did not consent,
no matter how strongly her conduct may contradict that claim, the Crown has proven
the absence of consent
o There is no defence of implied consent to sexual assault in Canadian law
- Consent must be freely given; it does not include submission by reason of force, fear, threats,
fraud, duress or the exercise of authority
o The reason behind giving the consent is only relevant to ensuring it was valid consent
at law
o The complainant’s fear need not be reasonable nor must it be communicated to the
accused in order for consent to be vitiated
Mens Rea Elements of Sexual Assault
- 2 elements: (i) intent to touch and (ii) knowledge of or being reckless of or wilfully blind to, a
lack of consent on part of the person being touch
- Accused may challenge the Crown’s evidence of mens rea by asserting an honest by mistaken
belief in consent
o To claim this defence, there must be some plausible evidence in support so as to give
an air of reality to the defence; all that is required is for the accused to adduce some
evidence or refer to some evidence already adduced upon which a properly
instructed trier of fact could form a reasonable doubt as to his mens rea
o The evidence must show that the accused believed the complainant communicated
by words or action her consent to engage in the sexual activity in question
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o
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A belief by the accused that the complainant, in her own mind, wanted him to touch
her but did not express that desire in words or action is not a defence
For the purposes of actus reus, consent means that the complainant in her mind wanted the
sexual touching to take place
In the context of mens rea, specifically the defense of honest but mistaken belief, consent
means the complainant had affirmatively communicated by words or conduct her agreement
to engage in sexual activity with the accused
Limits on Honest but Mistaken Belief in Consent
- A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law
and provides no defence (R v M (ML))
- Consent at the start does not continue if the women says no in the middle of the sexual
activity. Once a woman says “no”, the accused must obtain a clear and unequivocal “yes” by
words or conduct before he touches her again in a sexual manner. He cannot rely on a lapse
of time, the complainant’s silence or engage in further touching to “test the waters”.
Application
- 1. Actus Reus established – the touching was of a sexual nature and the trial judge accepted
the evidence of the complainant that she did not consent. Consent given in fear of violence or
“implied consent” is not valid consent at law.
- 2. Mens rea established – Accused did not claim the “no’s” were ambiguous; he stopped
immediately each time she said no and knew she wasn’t consenting on 4 separate occasions
- 3. No air of reality for a defence mistaken belief is found – There is no evidence showing that
the accused honestly believed her to be consenting or that he re-established consent before
resuming touching
- Conviction entered.
Concurring Judgement (L’Heureux-Dube J)
Violence Against Women
- Sexual assault is a form of violence against women
- According to Statistics Canada, 50% of women in Canada are said to have experienced at least
one incident of physical or sexual violence since the age of 16
- 99% of offences in sexual assault causes are men and 90% of victims are women
- Violence against women is a matter of equality and an offence against human dignity and a
violation of human rights
- These rights are protected by s. 7 and 15 of the Charter
Rape Myths and Stereotypes
- L’Heureux-Dube J addressed the reasoning of McClung JA at the Alberta Court of Appeal who
had made the following three statements:
- “It must be pointed out that the complainant did not present herself to Ewanchuk or enter his
trailer in a bonnet and crinolines.”  reinforces the myth that the victim is less worthy or
belief or more likely to have consented
- The advances were “far less criminal than hormonal.”  supports the destructive notion that
this kind of conduct is natural and not a crime
- “In a less litigious age going too far in the boyfriend’s car was better dealt with on site – a
well-chosen expletive, a slap in the face or, if necessary, a well directed knee.”  supports
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the notion that women are presumptively sexually available and it’s not sexual assault unless
and until they physically resist
L’Heureux-Dube held that complainants should be able to rely on a system free from myths
and stereotypes, and on a judiciary whose impartiality is not compromised by these biased
assumptions which were supposed to have been eradicated by the Code amendments and
should not be allowed to resurface at trial
R v Chase, [1987] 2 SCR 293
Keywords: assault vs. sexual assault; test for sexual nature in actus reus
Facts:
- Accused was the neighbour of the complainant, a 15-year-old girl
- On the day in question, he entered her house without invitation and seized the complainant
around the shoulders and arms and grabbed her breasts
- Eventually she was able to make a telephone call to a neighbour and he left
- Accused was convicted of sexual assault at trial
Issue – How does the court differentiate between assault and sexual assault?
Findings
- Sexual assault is an assault which is committed in the circumstances of a sexual nature, such
that the sexual integrity of the victim is violated
- Objective Test for “Sexual Nature” – “Viewed in the light of all the circumstances, is the
sexual context of the assault visible to the reasonable observer”
- Relevant factors:
o Nature of the contract
o Situation in which it occurred
o The words and gestures accompanying the act
o Circumstances surrounding the conduct, including threats or force
o Intent or purpose of the person committing the act, to the extent that this may
appear from the evidence
o If the motive of the accused was sexual gratification, to the extent that this may
appear from the evidence (note: motive is only one factor, the importance of which
varies depending on the circumstances)
Application
- Viewed objectively, in light of all the circumstances, it is clear that the conduct of the accused
in grabbing the complainant’s breasts constituted an assault of a sexual nature
- Conviction restored.
D. Broad Advance Consent
R v JA, 2011 SCC
- Court considered whether a complainant can provide “advance consent” in circumstances in
which she knows she will be rendered unconscious by virtue of the sexual activity – in this case,
through a practice of erotic asphyxiation
- Majority
o It is a fundamental principle that a person is entitled with refuse sexual contact
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o
o
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-
Because a person who is unconscious is unable to withdraw consent to sexual activity,
that person is incapable of providing valid consent
Parliament requires ongoing, conscious consent to ensure that people are not the
victims of sexual exploitation and to ensure that a participant is capable of asking their
partner to stop at any time
Dissent
o The majority’s decision undermines the sexual autonomy of women and deprives
women of their freedom to engage by choice in sexual adventures that involve no
proven harm to them or to others
In 2018, Parliament amended s. 273.1(2) to codify the majority’s ruling
E. Fraud Vitiating Consent
HIV Status Disclosure Cases:
- R v Cuerrier, [1998] 2 SCR 371
o Failure to advise a partner of one’s HIV-positive status may constitute fraud vitiating
consent
- R v Mabior, 2012 SCC 47
o Mabior/Cuerrier test for fraud vitiating consent:
 (1) Was there a dishonesty?
 (2) Was there a deprivation? In HIV cases, this requires a significant risk of bodily
harm.
o Findings
 A person may be found guilty of aggravated sexual assault under s. 273 if he fails
to disclose his HIV-positive status before intercourse and there is a realistic
possibility that HIV will be transmitted
 If the HIV-positive person has a low viral count as a result of treatment and
there is condom protection, the threshold of a realistic possibility of
transmission is not me
Critiques of Mabior/Cuerrier
- The use of sexual assault law to punish non-disclosure of HIV-positive status has been criticized
on the ground that it may deter people from seeking testing
- The Court in Mabior rejected the argument that these concerns were sufficient to counter the
application of criminal law in this domain
o Court noted that its approach respects autonomy and equality with respect to the
interests of those who choose whether or not to consent to sex
- However, academics and non-governmental organizations point to the disparate impact of HIV
non-disclosure prosecutions on Indigenous and racialized individuals, include those who are
victims of violence, coercion and sexual assault
- These groups recommend that HIV non-disclosure should only be prosecuted when it results in
actual transmission, and that it should not be prosecuted as a sexual assault
- In 2018, the AG of Canada issued a directive that HIV non-disclosure cases should not be
prosecuted where a person living with HIV has maintained a suppressed viral load, used
condoms or engaged only in oral sex
R v Hutchinson
- Facts
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o Accused had poked holes into condoms he used when having sex with his girlfriend
o The girlfriend, who had previously refused to have unprotected sex, became pregnant
o Accused was charged with sexual assault
Issues – (1) Had the complainant ever consented? and (2) was her consent vitiated by fraud?
Majority
o Found that the complainant had consented, but her consent was vitiated by fraud
o Applied the Mabior/Cuerrier test
 (1) The decision to use sabotaged constituted dishonesty
 (2) The deprivation or “harm” risk by his actions was depriving a woman of the
capacity to choose to protect herself from an increased risk of pregnancy by
using effective birth control. Given that pregnancy profound changes in a
woman’s body, this constituted a deprivation that was as serious as the
“significant risk of serious bodily harm” required in Mabior/Cuerrier
o Conviction upheld
Concurring Judgement:
o Would have convicted on the basis that the victim never consented
o She had consented to a different sexual activity – she consented to sex with a condom
which is different than unprotected sex
2. MISTAKE OF FACT AND MISTAKEN BELIEF IN COMMUNICATED CONSENT
A. Mental Element of Sexual Assault
- The mens rea of sexual assault consists of the “intention to touch and knowing of, or being
reckless or willfully blind to, a lack of consent on part of the person touched” (Ewanchuk)
B. Honest but Mistaken Belief in Consent
Pappajohn v The Queen, [1980] 2 SCR 120
- An accused can rely upon an honest mistake of fact with regard to the complainant’s consent,
even if that mistake is unreasonable
- Example: f woman in her own mind withheld consent but her conduct and other circumstances
lend credence to the belief on the part of the accused that she was consenting, it would be
unjust to convict
- Test is subjective so the jury is concerned with the mind of the accused, not of a reasonable man
- If an honest lack of knowledge is shown, the subjective element of the offence is not proved
C. Wilful Blindness re Non-Consent
Sansregret v The Queen, [1985] 1 SCR 570
Keywords: wilful blindness re non-consent
Facts:
- Accused sexually assaulted the victim after breaking into her home and the victim said she
consented in order to ensure her own safety
- The accused had done this before, and she had reacted in the same way; she alleged sexual
assault but later withdrew the charges
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Accused said he had a mistaken belief that she had consented and had not done so out of fear
or violence
Issue – What is the relationship between recklessness and willful blindness?
Findings – Mistake of Fact Defence and Willful Blindness
- Accused asserted an honest belief that the consent of the complainant was not caused by
fear or threats
- If the accused’s conduct was found to be reckless, he would be acquitted because Pappajohn
only requires that the belief be honest, even where unreasonable (note: see legislative
reforms for update)
- If willful blindness is shown, the law presumes knowledge on part of the accused (in this
case knowledge that the consent had been induced by threats) so there would be no room
for the application of the defence
Application
- Complainant submitted to sexual activity out of fear and the accused was wilfully blind to her
lack of consent; no defence available
Legislative Reforms
- S. 273.2(b) regulates an accused person’s capacity to argue that he honestly, but mistakenly,
believed that a complainant was consenting. It provides that the accused cannot rely on this
belief unless he took reasonable steps to ascertain consent
- S. 276 seeks to address the operation of myths and stereotypes by relating the admissibility of
evidence regarding a complainant’s sexual activities
o It prohibits admission of sexual history evidence for certain purposes and regulates the
introduction of sexual history evidence by defence counsel
D. Honest but Mistaken Belief in Communicated Consent
- In Barton, the court clarified the defence of honest but mistaken belief in communicated
consent based on these legislative reforms
Air of Reality Test for Honest but Mistaken Belief in Communicated Consent
- R v Cinous, 2002 SCC 29
o A defence should only be put to the jury where there is an air of reality that is raised by
the evidence and that does not carry a legal burden with it
o Air of reality test asks whether a properly instructed jury acting reasonably could acquit
(whether the evidence raises a reasonable doubt)
- Air of Reality Test for Honest but Mistaken Belief in Communicated Consent
o The defence of honest but mistaken belief in consent should only be put to the jury
where there is an air of reality to the propositions that (1) the accused took reasonable
steps to ascertain consent and (2) the accused honestly believed that the complainant
communicated Consent (Barton)
R v Barton, 2019 SCC 33
Keywords: consent; honest but mistaken belief in communicated consent; Indigenous women
Facts:
- Cindy Gladue died in June 2011 from blood loss from a large wound in the wall of her vagina
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The Crown argued that Barton had caused the wound with a sharp bladed object (murder) or
alternatively, had caused in the wound in the course of a sexual assault (manslaughter)
- At trial, Barton testified that he and the victim had engaged in consensual sexual activity in
the expectation of payment on both the night leading up to her death and the previous night
- He admitted to causing the wound but that it was an accident and she had consented to the
sexual acts in question; alternatively, he had an honest but mistaken belief in consent
- He was acquitted at trial
Issues – (1) Was s. 276 violated? (2) Was there an honest but mistaken belief in consent?
Findings – Was s. 276 violated?
Failure to Comply with S. 276 was an Error of Law
- The purpose of s. 276 is prevent counsel from adducing evidence based on myths and
stereotypes that undermine the victim’s credibility or increased the likelihood that she had a
propensity to consent
- Three key problems at trial:
o Barton testified at length about his prior sexual activity with the victim, but no
application was made, and no separate hearing was held or ordered by the judge, to
determine the admissibility of that evidence under s. 276
o The jury was not given any limiting instructions identifying the purposes for which
that evidence could and could not be used per s. 276
o The Crown referred to Ms. Gladue as a “prostitute”
- This allowed the accused to adduce misleading evidence to support illegitimate inferences
and thereby distort the truth-seeking function of the trial process. This translated into a
failure to expose and properly address mistakes of law arising from Barton’s defence.
- Held: new trial ordered
S. 276 Duties on Judge and Crown
- The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies
squarely with the trial judge, not the Crown
- However, the complainant’s dignity, equality and privacy rights protected by s. 276 and which
continue after death cannot be waived by mere Crown inadvertence. The Crown should
refrain from commenting on a complainant’s prior sexual history unless necessary.
Findings – Was there an honest but mistaken belief in consent?
What is Consent?
- A person commits the actus reus of sexual assault “if he touches another person in a sexual
way without her consent” (R v J.A., 2011 SCC 28)
- The mens rea of sexual assault consists of “the intention to touch and knowing of, or being
reckless or wilfully blind to, a lack of consent on part of the person touched (Ewanchuk)
- Consent is defined in s. 273.1(1) of the Code
o Consent is the voluntary agreement of the complainant to engage in the sexual
activity in question
o 1. Consent must be freely given
o 2. It must exist at the time the sexual activity in question occurs and it can be revoked
at any time
o 3. It is not abstract; it must be linked to the specific physical sex act in question
including the sexual nature of the activity and identity of the parter. It does not
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include conditions or qualities of the physical act such as the birth control measures
or presences of STDs
Consent in actus reus
o Consent for the purposes of actus reus means “that the complainant had in her mind
wanted the sexual touching to take place” (Ewanchuck)
o The focus is strictly on the complainant’s state of mind and the accused’s perception
of that state of mind is irrelevant (Ewanchuck)
o If the complainant testifies that she did not consent and the trier of fact accepts this
evidence, then there was no consent and the actus reus is complete (Ewanchuck)
o The complainant need to express her lack of consent or revocation of consent for the
actus reus to be established (J.A.)
Consent in mens rea and the defence of honest but mistaken belief in communicated consent
o Consent for the purposes of mens rea or the defence means that the “complainant
had affirmatively communicated by words or conduct her agreement to engage in the
sexual activity with the accused” (Ewanchuck)
o Focus is on the mental state of the accused and whether he honestly believed that
the complainant actually communicated consent through words or actions
Prior Sexual History and Honest but Mistaken Belief in Consent
- In seeking to rely on the complainant’s prior sexual history in support of the defence, the
accused must be able to explain how and why that evidence informed his honest but
mistaken belief
- For example, in some cases, prior sexual activities may establish legitimate expectations
about how consent is communicated between the parties, thereby shaping the accused’s
perception of communicated consent to the sexual activity in question at the time in occurred
- Prior history cannot be used to suggest that the complainant gave broad advance consent;
this is not valid consent at law
Mistakes of Law
- Accused can make a mistake of fact (i.e. honest belief in consent) but not a mistake of law
- Three mistakes of law:
- 1. Implied Consent (Ewanchuk) – a belief that silence, passivity or ambiguous conduct
constitutes consent is a mistake of law and provides no defence’ it is also a mistake of law to
infer that the complainant’s consent was implied by the circumstances or the relationship
between the accused and the complainant
- 2. Broad Advance Consent (J.A.) – it is a mistake of law to argue that complainant agreed to
future sexual activity of an undefined scope; s. 273.1 requires consent to the each and every
specific sexual act and for that consent to be made at the time the activity occurs
- 3. Propensity to Consent (Seaboyer) – it is a mistake of law to infer that the complainant’s
prior sexual activities, by reason of their sexual nature, made it more likely that she
consented to the sexual activity in question
Reasonable Steps Requirement
- s. 273(2)(b) provides that in order to claim the defence, the accused must show he took
reasonable steps to ascertain consent
- Objective-subjective test – the accused must take steps 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
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S. 273(2)(b) does not require the accused to take all reasonable steps, just reasonable steps
Reasonable steps requirement is highly contextual and will vary from case to case
Factors that are clearly not reasonable steps in ascertaining consent:
o Steps based on rape myths or stereotypical assumptions about women and consent
are not reasonable (i.e. implied consent; idea that women can be taken to be
consenting unless they say “no”)
o Attempts to “test the waters” by recklessly or knowingly engaging in non-consensual
sexual touching are not reasonable steps (i.e. sexual assault of unconscious or semiunconscious victims)
Situations where threshold for satisfying the reasonable steps requirement will be elevated
o A reasonable person would take greater care in ascertaining consent the more
invasive the sexual activity in question and/or the greater the risk posed to the health
and safety of those involved
o Same holds true if the accused and complainant are unfamiliar with each other,
thereby raising the risk of miscommunications, misunderstandings and mistakes
Judges must undertake this analysis guided by the need to protect and preserve bodily
integrity, sexual autonomy and human dignity and not by myths and stereotypes of consent
Application
- At trial, Barton argued the second night was part of a continuing commercial transaction that
started the previous night with “similar” sexual activity
o Defence rested on the notion that the sexual activity on the first night led him to
believe that Gladue consented on the second night
o The price of $60 for “everything” suggested “she knew what she was coming for”
o She was a prostitute and made no signs of disagreement
o Thus, he reasonably believed she was consenting
- Trial judge instructed the jury that this was evidence that raised the defence of honest but
mistaken belief in communicated consent
- Trial judge erred by failing to inoculate the jury against mistakes of law masquerading as
mistakes of fact
- There were several mistakes of law made
o An absence of disagreement cannot be substituted as affirmative consent; implied
consent does not exist in Canadian law
o A belief that prior “similar” sexual activities, the complainant’s status as a sex worker
or the accused’s speculation about what was going through her mind could be
substituted for communicated consent were mistakes of law
o As a matter of law, consent must be specifically renewed – communicated – for each
sexual act.
o A belief that the complainant could give broad advance consent to whatever the
accused wanted to do to her is a mistake of law
o The inference that her past sexual activities, by reason of the sexual nature, make it
more likely that she consented is a violated of the twin myths and a mistake of law
- The incumbent judge in the new trial must instruct the jury against making these mistakes
Findings – Air of Reality Test and Reasonable Steps
- 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: whether there is
any evidence upon which a reasonable trier of fact acting judicially could find (1) that the
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accused took reasonable steps to ascertain consent and (2) that the accused honestly
believed the complainant communicated consent
If there is no air or reality, the defence must not be left with the jury
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.
Instructions to the jury
o The trial judge must make it clear that the reasonable steps requirement is a
precondition to the defence
o The trial judge should explain, as a matter of law, the type of evidence
that can and cannot constitute reasonable steps, making sure any steps that are
grounded in mistakes of law are relegated to the latter category.
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.
Ultimately, if the Crown fails to disprove the defence beyond a reasonable doubt, then the
accused would be entitled to an acquittal.
Findings – Cases involving Indigenous women and girls
Instructions re: Prejudice Against Indigenous Women and Girls in Sexual Assault Cases
- Trial judges, as gatekeepers, play an important role in keeping biases, prejudices and
stereotypes out of the courtroom
- Trial judges have the ability to provide instructions to the jury and such instructions can play a
role in exposing biases and encouraging jurors to discharge their duties fairly and impartially
- Exposing biases allows all justice system participants to address them head-on – openly,
honestly and without fear
- Trials do not take place in a historical, cultural or social vacuum; over a long history of
colonialism, Indigenous women, girls and sex workers had endured serious injustice, including
high rates of sexual violence
- Court has acknowledged on several occasions the widespread racism against Indigenous
people within the CJS and that they are subject to stereotypes about credibility, worthiness
and criminal propensity
- Where the complainant in a sexual assault case is an Indigenous woman and girl, trial judges
would be “well-advised” to provide express instruction aimed at countering prejudice against
Indigenous women and girls
- This instruction must go beyond generic instruction to reason impartially and without
prejudice
- However, to ensure trial fairness, these instructions must not privilege the rights of the
complainant over the accused; the goal is to identify specific biases that may reasonably be
expected to arise and remove them from the jury’s deliberative process in a fair, a balanced
way, without prejudicing the accused
- The trial judge might dispel a number of troubling stereotypical assumptions about
Indigenous women who perform sex work, including that such persons:
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o
o
o
o
o
are not deserving of respect, humanity, and dignity;
are sexual objects for male gratification;
need not give consent to sexual activity and are “available for the taking”;
assume the risk of any harm that befalls them because they engage in a dangerous
form of work; and
are less credible than other people.
Language Used to Address Gladue at Trial
- Witnesses, Crown counsel and defence counsel referred to the complainant as a “Native” girl
or “Native woman” approximately 26 times
- While in some cases it may be appropriate to establish certain biographical details about a
person such as where race may be relevant to a particular issue at trial, it is almost always
preferrable to refer to someone by their name
- Being respectful and cognizant of language used to refer to a person is particularly important
in a case like this, where there was no suggestion that the complainant’s status as an
Indigenous woman was somehow relevant to the issues at trial
Concurrent Judgement (Abella J, Karakatsanis J, Wagner CJ)
- S. 276 was enacted to preserve the fairness and truth-seeking functions of a trial, as well as
the dignity of victims of sexual assault
- The trial judge failed to appreciate that the victim’s prior sexual conduct, occupation and race
required the jury to be specifically altered to the dangers of discriminatory attitudes towards
Indigenous women, particularly those working in the sex trade
- He provided no specific instructions to confront the operative social and racial biases and this
rendered the whole trial unfair
- In Seaboyer, based on studies that found that “jurors were more likely to convict a defendant
accused of raping a woman a chaste reputation than an identical defendant charged with
assaulting a prostitute, the court warned against the use of the word “prostitute” because use
of this term is intrinsically linked to the “twin myths” and can lead to substantial prejudice in
the way that the jury assess the evidence
- Because Ms. Gladue was labelled a “Native prostitute”, the jury would believe she was even
more likely to have consented to whatever Barton did and was even less worthy of the law’s
protection
- To guard against eroding public confidence in juries in cases involving sexual assault, they
must be carefully instructed on not allowing their reasoning and assessment of the evidence
to be obstructed by subconscious stereotypes
Notes
- Barton illustrates the nexus between myths and stereotypes and the mens rea of sexual
assault
- It also makes clear that trial judges must ensure than an accused person’s argument that he
had an honest but mistaken belief in communicated consent has an air of reality based on
permissible lines of reasoning before this argument can be left to the jury
“The Northwest is Our Mother: The Story of Louis Riel’s People” (Jean Teillet)
- In Barton, the trial judge permitted the Crown to introduce a portion of Gladue’s preserved
bodily remains into evidence to demonstrate the nature of her fatal wound
- This decision not only horrified the public but was insulting in its disregard of Metis beliefs about
respect for bodies of the dead
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Statutory law in Canada has no place for Metis burial customs and traditions. It also provides no
recognition of their spiritual beliefs about the dignity and honour they give to the bodies of their
dead
Canadian law roughly and without consideration overrides the Metis Nation customs of respect
the bodily integrity of the dead and of keeping Metis families together in life and death
Metis also has its own values about justice and due process
They value precedent; disputes are heard by those with particular expertise in the issue at hand
and is always heard by more than one person
Most importantly, Metis Nation culture allows the victim, the injured and their families to be
heard and their wishes to be considered in determining the appropriate process, during the
process and when considering the remedy
This does not mean that victims are permitted to claim their vengeance should override the
collective values of justice and due process
Consideration is given to the victims because to do otherwise does restore harmony to the
community and that is one of the goals of Metis nation justice
Family, the Metis Nation culture, and the dignity they afford to men, women and children are
not something lost in the quest for justice
Metis Nation Laws of the Prairie do not discard humanity and the dignity accorded to
individuals in the name of justice
National Inquiry into Murdered and Missing Indigenous Women and Girls
- Indigenous women experience sexual violence at three times the rate of non-Indigenous women
in Canada
- They are at least six times more likely to become the victims of homicide
- In Barton, the SCC recognized a link between racist myths and stereotypes and the Canadian
justice system’s structural failure to address this violence, specifically in respect of how courts
and juries approach the question of consent to sexual activity
- The legal system’s lack of Indigenous cultural competency may have compounded the problem
of sexual violence toward Indigenous women, girls and others
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VI. Defences
1. INTOXICATION
A. The Common Law Defence of Intoxication
DPP v Beard, [1920] AC 479 (HL)
Keywords: common law defence of intoxication
Facts:
- Beard was charged with committing murder during a rape
- He claimed he was highly intoxicated at the time of the offence
Issue – Is there a defence of intoxication available at common law?
Findings
- Historically, intoxication has been considered an aggravating factor, not a defence
- Three findings
- 1. Intoxication can be a defence to a crime
o Where a specific intent is an essential element of the offence, court must consider
whether the intoxication rendered the accused incapable of forming such intent
o If he was so drunk that he was incapable of forming the necessary intent, he cannot
be convicted of that offence
o However, he is not excused of all liability; he can still be charged with a reduced
offence which does not have the same required intent (i.e. reduce from murder to
manslaughter)
- 2. Evidence of drunkenness must be taken into consideration with other circumstances to
determine whether or not he had intent
- 3. Evidence of drunkenness does not rebut the presumption that a man intends the natural
consequences of his acts
Application
- Intoxication not a defence unless it could be established that Beard at the time of committing
the rape was so drunk that he was incapable of forming intent to commit it
- Having regard to the evidence, including that he was able to answer questions put to him
shortly thereafter, his drunkenness fell short of a proved incapacity
Bouchard-Lebrun, 2011 SCC 58
- Courts have been reluctant to hold that voluntary intoxication could constitute a mental
disorder
- The accused was in toxic psychosis after taking amphetamines and committed an assault
- Court found he did not qualify for the mental disorder defence because the drugs were an
external factor and there was no evidence that he would be in continuing danger if he did not
take the drugs
- Mental disorder and intoxication defences are mutually exclusive
B. Intoxication and Specific Intent
- The distinction between specific and general intent exists solely for the purpose of the
intoxication defence
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R v George, [1960] SCR 871
Keywords: general vs. specific intent offences; intoxication
Facts:
- Accused was charged with assault and robbery of an elderly man in his home
- Accused was intoxicated at the time of the offence
- Trial judge acquitted on both charges because he found as fact that he was so drunk on the
night in question that he was unable to form the intent
Issue – Whether the defence of intoxication is available for general intent offences and/or specific
intent offences
Findings
- In considering the question of mens rea, a distinction is made between (i) intention as applied
to acts considered in relation to their purposes and (ii) intention as applied to acts considered
apart from their purposes
- General Intent Offences – acts done to achieve an immediate end
o E.g. Assault – there is no specific intent necessary to constitute the offence of assault;
it only requires the Crown to show that the accused applied force intentionally to
another
- Specific Intent Offences – acts done with a specific or ulterior motive and an intent to further
or achieve an illegal object
o E.g. Robbery – Crown must show that there was an intent to steal
Application
- Acquitted of robbery; convicted of assault
R v Tatton, 2015 SCC 33
Keywords: general vs. specific intent offences; intoxication
Facts:
- Accused was an alcoholic living at his ex-girlfriend’s house
- On the day in question, he drank 52 ounces of alcohol and left the stove on while he went out
to get a coffee
- When he returned, the house was on fire and he was charged with arson
Issue –Is the defence of intoxication available for general and/or specific intent offences? Is arson a
general or specific intent offence?
Findings
- 1. First step is to determine the mental element of the offence
- 2. After the mental element has been established, the next question is whether it is a general
or specific intent offence
o Determination of the mental element of an offence is based (a) first on statutory
interpretation, (b) then on common law interpretation and (c) if still uncertain, then
on policy considerations
o (a) Statutory interpretation
 For general intent offences, the mental element simply relates to
performance of an illegal act
 For specific intent offences, the accused must not only intent to do the act
that constitutes the actus reus, he must also act with intent to bring about
certain consequences or has actual knowledge of or is willfully blind to certain
circumstances or consequences that are external to the actus reus
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(heightened mental element which is the product of complex thought and
reasoning)
o (b) Where the court has already established the appropriate classification in a
satisfactory manner, that classification stands
 General intent offences = sexual assault (R v Chase), assault (R v George)
 Specific intent offences = murder (R v Cooper); robbery (R v George); assault
with intent to resist arrest (Daviault)I; possession of stolen property
o (c) Policy Considerations
 Three main factors to consider:
 1. Whether alcohol consumption is habitually associated with the crime in
question. If it is, then allowing the accused to rely on intoxication as a
defence would endorse the very behaviour that historically has been proved
to be a root cause of the problem. (established crimes: crimes involving
violent or unruly conduct, crimes involving damage to property, sexual
assault)
 2. The presence of a lesser included general intent offence in the main
offence. Accused who successfully relies on intoxication to negate mens rea
for the main offence can still be convicted of the lesser offence.
 3. The presence of judicial sentencing discretion. If there is a mandatory
minimum sentence, it is unduly harsh to preclude considerations of
intoxication. However, if judge has discretion to take into account the
accused’s intoxication, there is less concern.
4. What defences are available
o If general intent offence, intoxication is not a defence except in cases of extreme
intoxication
 General intent offences involve such minimal mental acuity that it is difficult
to see how intoxication short of automatism could deprive the accused of the
low level of intent required. This provides a strong policy reason for
precluding reliance on intoxication for these offences. It also explains why it is
constitutionally permissible to render intoxication unavailable for general
intent offences (Daviault)
o If specific intent offence, then normal intoxication defence applies when
intoxication raises a reasonable doubt about mens rea
 One can more readily understand how the complex thought and reasoning
required for specific intent offences may be negated by intoxication
 The nature of the mental element is intertwined with policy considerations
which suggests that intoxication can be considered for these crimes
Application
- Arson is a general intent offence – actus reus is damage property by fire and mens rea is the
intentional or reckless causing of damage to property.
- Intoxication short of automatism will not deprive the accused of the minimal intent required
for this crime
- New trial ordered.
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C. Extreme Intoxication and General Intent
R v Daviault, [1994] 3 SCR 63
Keywords: extreme intoxication; general intent
Facts:
- Accused was a chronic alcoholic and on the day in question, consumed 7-8 bottles of beer and
a 40 oz bottle of brandy and was charged with sexual assault of an elderly woman
- Expert testified that a blood alcohol level for that amount of consumption would cause death
or coma in an ordinary person; the brain may disassociate normal function and he may suffer
blackouts, lose contact with reality and have no awareness of his actions
- Trial judge acquitted on the basis of a reasonable doubt whether, by virtue of the extreme
intoxication, the accused possessed the intent necessary for sexual assault
- Crown appealed on the basis that intoxication is not a defence to a general intent offence
Issue – Whether extreme intoxication akin to automatism can negate mens rea for general intent
offences
Dissent
- Sexual assault is a crime of general intent
- In Leary v the Queen, the court held that drunkenness is not a defence to a crime of general
intent and evidence of intoxication can only provide a defence for crimes of specific intent
- This rule is supported by public policy considerations:
o Purpose of law is to protect the public and that purpose would be frustrated if we
allowed people who voluntarily consume intoxicating amounts of drugs or alcohol to
avoid criminal liability
o Society is entitled to punish those who, of their own free will, render themselves so
intoxicated as to pose a threat to other members of the community
- It is up to Parliament, not the court to create a new offence of dangerous intoxication
Majority Findings
Is the Leary rule constitutional? – No
- The Lehry rule is unconstitutional because the principles of fundamental justice under s. 7
and the presumption of innocence under s. 11(d) means that the required mental element
must be linked to the actus reus of the crime charged
- Studies show that consumption of alcohol is not the cause of crime and thus a person
intending to drink cannot be said to be intending to commit a sexual assault
- There is also no crime of voluntary intoxication
Is extreme intoxication a defence to a general intent offence? – Yes
- Given the minimal nature of the mental element required for crimes oof general intent, even
those who are significantly drunk will usually be able to form the requisite mens rea and will
be found to have acted voluntarily
- Thus, normal intoxication is not a defence to a general intent offence
- It is only where the accused was in a state akin to automatism that may raise a reasonable
doubt as to his ability to form the mens rea for a general intent offence
- What is “intoxication akin to automatism”?
o Refers to a person so drunk automaton – he may be capable of voluntary acts such as
moving his arms or legs but is incapable of forming the most basic intent required to
perform the act prohibited by a general intent offence
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It will only be on rare occasions where evidence of such extreme intoxication can be
advanced and even rarer when it will be successful
This exception to the normal rule ensures it avoids infringement with the Charter
Reverse onus – accused should be called upon to establish this level of intoxication on the
balance of probabilities. This violates s. 11(d) but is justified under s. 1 because only the
accused can give evidence as to the amount of alcohol consumed and its effect upon him
Expert evidence is required to confirm that the accused was likely in a state akin to
automatism as a result of his drinking
D. Section 33 of Criminal Code – New Legislation in Response to Daviault
- Parliament was unsatisfied with Daviault rule, particularly as it related to sexual assault
- They felt it was bad social policy to expose victims, particularly women and children, to harm
where someone took the irresponsible step of becoming extremely intoxicated to a level of
automatism
- They passed s. 33 of Criminal Code which says that extreme intoxication is not a defence where
the offence is one that involves interference with the bodily integrity of another person
- Explicit reference was made to women and children in the preamble of the bill that introduced
this provision
- S. 33 of the Criminal Code
o (1) It is not a defence to an offence referred to in subsection (3) that the accused, by
reason of self-induced intoxication, lacked the general intent or the voluntariness
required to commit the offence, where the accused departed markedly from the
standard of care as described in subsection (2).
o (2) For the purposes of this section, a person departs markedly from the standard of
reasonable care generally recognized in Canadian society and is thereby criminally at
fault where the person, while in a state of self-induced intoxication that renders the
person unaware of, or incapable of consciously controlling, their behaviour, voluntarily
or involuntarily interferes or threatens to interfere with the bodily integrity of another
person.
o (3) This section applies in respect of an offence under this Act or any other Act of
Parliament that includes as an element an assault or any other interference or threat of
interference by a person with the bodily integrity of another person.
- Getting that intoxicated is a marked departure from the standard of reasonable care generally
recognized in Canadian society and that fault is, by operation of s. 33(2), substituted for the
mens rea of any offence which involves interference with the bodily integrity of another person
The Intoxication Defence: Constitutionality Impaired and in Need of Rehabilitation (Ferguson)
- Parliament claims that even if s. 33.1 involves an unconstitutional form of substituted fault in
violation of ss. 7 and 11(d), it is saved under s. 1 because of concerns about the strong
association between intoxication and violence and that the victims of drunken violence are
disproportionately women and children
- Most courts have found that s. 33.1 does violate ss. 7 and 11(d)
- However, these decisions ignore feminist argument that the removal of a defence of extreme
intoxication in cases of general intent offences involving assault (by reliance on the device of
substituted fault) should not be seen as a violation of principles of fundamental justice since it
supports equality rights of women and children and is applied to extremely intoxicated persons
who are not morally blameless for the ultimate consequences of their conduct
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Ferguson argues that these are real and legitimate claims but may not be enough to overcome a
s. 1 challenge to the legislation
If the SCC accepts the view that there are other reasonable alternatives open to Parliament to
achieve its objectives of denunciation of the offender’s conduct and protection of society,
especially women and children, from drunken violence, without any impairment to ss. 7 and
11(d), then s. 33.1 is bound to fail the minimal impairment test of s. 1
Parliament’s objectives can indeed be achieved without no constitutional infringement by
creating a set of penally negligent offences which apply when an accused’s voluntary
intoxication negates the requisite subjective fault for those offences
R v SN, 2012 NUCJ 2 (Nunavut)
Keywords: s. 33.1
- Sharkey J:
- The real object of s. 33.1 is the protection of women from alcohol-related or intoxicated
violence, and in turn, the preservation of women’s equality rights to full participation in
Canadian society
- Statistical data on the extent to which women, particularly Aboriginal women suffer from
intoxicated violence is “stunning”
- In Nunavut, rate of violent crime is several times the national average and it is anecdotal but
true that this Court rarely sees a case of violence against a woman – whether it be assault,
spousal assault, sexual assault or spousal manslaughter – where the offender is not
intoxicated. So it is in this context that I analyze the legislative objective of s. 33.1
R v Sullivan, 2020 ONCA 333
Keywords: constitutionality of s. 33.1
Facts:
- Two cases heard jointly regarding Thomas Chan and David Sullivan
- In separate incidents, while in the throes of drug-induced psychoses and without any
discernible motive, both men attacked and stabbed loved ones
- Chan, who became intoxicated after consuming “magic mushrooms”, killed his father and
grievously injured his father’s partner.
- Sullivan became intoxicated after consuming a heavy dose of a prescription drug in a suicide
attempt and repeatedly stabbed his elderly mother
- Both claimed they were in a state of automatism at the time of the attacks
- However, s. 33.1 of the Code removes non-mental disorder automatism as a defence where
the state of automatism is self-induced by voluntary intoxication and the offence charged
includes “as an element an assault or any other interference or threat of interference by a
person with the bodily integrity of another person”
Issue – Is s. 33.1 constitutional?
Findings
Automatism
- Automatism is state of impaired consciousness in which an individual, though capable of
action, has no voluntary control over that action (R. v. Stone)
- Automatism negates voluntariness and thus negates the crime (R. v. Luedecke)
- Two defences of automatism: (1) mental disorder defence which applies where the
involuntariness is caused by a disease of the mind and (2) common law automatism defence
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which applies where the involuntariness is not caused by a disease of the mind (i.e.
intoxication)
Constitutionality of S. 33. 1
- S. 33.1 is in prima facie violation of ss. 7 and 11(d) of the Charter in three ways:
- 1. Breach of voluntariness requirement – The principles of fundamental justice require that
voluntariness is an element of every criminal offence and s. 33.1 permits conviction without
proof of voluntariness. It is also contrary to s. 11(d) to convict someone where there is a
reasonable doubt about voluntariness.
- 2. Improper substitution – Substituting voluntary intoxication for the required elements of a
charged offence violates s. 11(d) because it permits conviction without proof of the mental
element required by the offence (i.e. proof of the intent to commit an assault). While studies
show a correlation between intoxication and violence, there is no direct causal link. Proving
voluntary intoxication does not necessarily or even ordinarily prove the intention to commit
assaults.
- 3. Mens rea breach – infringes s. 7 by enabling the conviction of accused persons who do not
have the constitutionally required minimal level of fault for the offence. In Creighton, the SCC
held that where an offence provides no mens rea requirement, penal negligence is the
minimum, constitutionally-compliant level of fault for criminal offences.
Is the breach justified under s. 1? – No.
- 1. Pressing and substantial purpose – purpose of s. 33.1 is to protect victims, women and
children, from violence based-offences committed by those who are in a state of automatism
due to self-induced intoxication
- 2. Proportionality – it is unlikely that a reasonable person would be deterred from becoming
intoxicated by this provision
- 3. Minimal impairment – it is not minimally impairing because it can be used to rebut
voluntariness for any violence-based offences, regardless of whether it involves general or
specific intent. The provision applies to anyone consuming any intoxicant for any reason; it
includes prescription medication which has an intoxicating side effect and those who become
intoxicated in the course of a suicide attempt.
Interveners
- Interveners argue that s. 33.1 has collateral salutary effects, such as: “(i) encouraging victims
to report intoxicated violence, (ii) recognizing and promoting the equality, security, and
dignity of crime victims, particularly women and children who are disproportionately affected
by intoxicated violence, and (iii) avoiding normalizing and/or incentivizing intoxicated
violence.”
Recommendations
- A stand-alone offence of criminal intoxication would achieve the objective of s. 33.1 and be
less impairing than s. 33.1
- Such an offence would be more effective in achieving the Preamble objective of protecting
against acts of intoxicated violence, as it would serve to deter voluntary intoxication directly
and more broadly than s. 33.1 does
- Its reach would depend on whether the intoxication was dangerous, as demonstrated by the
commission of a violence-based offence.
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2. MENTAL DISORDER
Introduction
- Mental disorder offence can apply to an accused person whose psychiatric or developmental
condition renders them unable to appreciate the nature and consequences of their actions or
unable to know that their actions are wrong
- Defence remains narrow and fails to capture many aspects of psychiatric conditions that one
might think would bear upon criminal responsibility
- More than 40% of male inmates entering federal penitentiaries met the diagnostic criteria for
mental disorders other than personality or substance abuse disorders (Janelle Beaudette & Lynn
Stewart)
- Approx. 20 communities in Ontario have mental health courts
o These courts don’t require the accused to plead a mental disorder defence and
generally only require that he be willing to participate in treatment if necessary
o They rely on diversion programs, have personnel with some mental health training and
generally deal with less serious offences
“Mental Disorder and the Instability of Blame in Criminal Law” (Berger)
- An accused who is declared NCRMD is now moved through a disposition hearing before a review
board comprised of legal and psychiatric experts who decide on the appropriate treatment and
control options, a decision driven largely by assessments of dangerousness
- S. 16 of the Code defines mental disorder as a “disease of the mind”; courts have held that this is
a legal and not psychiatric term
- Test for mental disorder focuses on capacity for reasoning and cognition
- Threshold for disruption is high and requires “extreme cognitive impairments”
- Excludes volitational impairments and emotional appreciation from the measure of criminal
responsibility in order to exclude extreme forms of personal disorders such as psychopathy or
sociopathy
- Defence depends on the presence of a disease of the mind with two possible branches of
cognitive effects: (1) incapacity to appreciate the nature and consequences of the act, or (2)
incapacity to know that the was wrong.
- There is mounting evidence that the legal test for mental disorder is actively hostile to certain
mental disorders that are frequently found in the penal population
- “The underinclusive doctrine of mental disorder serves as a mechanism for the elision of
collective blame for a complex social problem” and allows us to disregard the difficult issues of
collective, social and political responsibility that can arise at the intersection of mental health,
social disadvantage and crime
A. Mental Disorder or Disease of the Mind
The Defence of Mental Disorder in the Criminal Code
- Under s. 2, mental disorder is defined as disease of the mind
- Defence of mental disorder
- 16 (1) No person is criminally responsible for an act committed or an omission made while
suffering from a mental disorder that rendered the person incapable of appreciating the nature
and quality of the act or omission or of knowing that it was wrong
- Presumption
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-
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from
criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of
probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be
exempt from criminal responsibility is on the party that raises the issue
Cooper v The Queen, [1980] 1 SCR 1144
Keywords: disease of the mind; mental disorder
Findings
Disease of the Mind
- Disease of the mind is a legal term which embraces any illness, disorder or abnormal
condition which impairs the human mind and its function, excluding however, self-induced
states caused by drugs or alcohol and transitory mental states such as hysteria or
concussion
- In order to support a defence of NCRMD, the disease must be of such intensity as to render
the accused incapable of appreciating the nature and quality of the violent act or of
knowing that it is wrong
- It is within the discretion of the judge to determine what mental conditions are within the
meaning of that phrase and whether there is any evidence that an accused suffers from an
abnormal mental condition comprehended by that term
- If there is any evidence that the accused did suffer such a disease in legal terms (an air of
reality), the question of fact must be left with the jury
R v Bouchard-Lebrun, 2011 SCC
Keywords: toxic psychosis; mental disorder
Facts:
- Accused brutally assaulted two individuals while he was in a serious psychotic condition
caused by chemical drugs that he had taken a few hours earlier
- Evidence showed that he had never experienced a psychotic episode such as this before, had
no underlying disease of the mind and was not addicted to the particular substance
- He described himself as an “occasional user” of the drugs
Issue – Whether toxic psychosis that results from self-induced intoxication of a chemical drug
constitutes a “mental disorder” under s. 12
Findings
NCRMD
- The defence of NCRMD protects the integrity of our CJS and its fundamental principles of
autonomy and reason
- It is a fundamental principle of the common law that criminal responsibility can only result
from the commission of a voluntary act
- In a democratic society, it is unfair to impose the consequences and stigma of criminal
responsibility on an accused who did not voluntarily commit an act that constitutes a crime
- This means no one can be found criminally responsible for an involuntary act
- For an act to be voluntary under criminal law, it must be the product of the accused person’s
free will
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-
-
-
An individual’s will is expressed through conscious control exerted by the individual over his
or her body (R v Perka)
The criminal law relies on a presumption that ever person is an autonomous and rational
being who can distinguish right from wrong and whose acts/omissions can attract liability
This presumption can be rebutted by proving that the accused did not at the material time
have the level of autonomy or rationality required to attract criminal liability
Criminal responsibility will not be imposed if the accused gives an excuse for his act that is
accepted in our society
A person suffering from a mental disorder within the meaning of s. 16 is deemed not to be
autonomous and rational because he is not capable of appreciating the nature of his act or
understanding that it is wrong
Thus, s. 16 operates as an exemption from criminal liability which is predicated on an
incapacity for criminal intent (R v Chaulk)
Because the person’s actions are not the product of his free will, it is consistent with the
principles of fundamental justice for a person whose mental condition at the relevant time is
covered by s. 16 not to be criminal responsible under law
The defence does not result in an acquittal; it leads to a verdict of NCRMD and triggers an
administrative process whose purpose is to determine whether the accused is a significant
threat to the safety of the public, to take any necessary action to contract the threat and, if
necessary, to provide the accused with appropriate care
Section 16
- S. 16 provides that every person is presumed not to suffer from a mental disorder and
requires the accused to prove on a balance of probabilities that he was suffering, at the
material time, 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
- Two-stage test:
- 1. Characterizing the mental state – whether the accused was suffering from a mental
disorder within the meaning of s. 16 at the time of the alleged events
o S. 16 requires the trial judge to determine whether the mental condition of the
accused constitutes a “mental disorder” within the meaning of s. 16
o The court must identify the source of the psychosis, namely self-induced
intoxication or a disease of the mind, in order to determine whether the accused
will be held criminally responsible for his actions
o This analysis is more difficult where the mental health of the accused was already
precarious prior to the incident in question, he had not yet been diagnosed at the
time of the incident or the psychosis emerged while he was intoxicated
o If the judge finds as a matter of law that the mental condition of the accused is a
mental disorder, it will ultimately be up to the jury to decide whether, on the facts,
the accused was suffering from such a mental disorder at the time of the offence
- 2. Effects of the disorder – whether, owing to the mental condition, the accused was
incapable of knowing the act or omission was wrong
Application
- 1. Character - Toxic psychosis can result from voluntary and involuntary exposure to chemical
drugs, and the quantity and nature of the drugs taken can also change its effect. Thus, each
case must be assessed on its own facts. In this context, the accused was not suffering from a
mental disorder. Incapacity that results exclusively from self-induced intoxication is not
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-
-
considered a disease of the mind in law, since it is not a product of the accused’s inherent
psychological makeup. The toxic psychosis was merely a symptom of his intoxication.
2. Effect – At the time the criminal acts were committed, the accused did not realize what he
was doing and was in a serious psychotic condition. He meets element 2 but failed element 1
so no defence.
From a policy basis, it would affect the integrity of the CJS if everyone who committed a
violent offence while suffering from toxic psychosis were to be found not criminally
responsible regardless of the origin or cause. The scope of the defence would become much
broader than Parliament intended.
B. Appreciating the Nature and Quality of the Act
Cooper v The Queen, [1980] 1 SCR 1149
Findings
Appreciate vs. Knowledge
- The word “appreciates” requires more than mere knowledge of the physical quality of the act
- It requires an ability to perceive the consequences, impact and results of the physical act
- An accused may be aware of the physical character of his action (i.e. choking) without
necessarily having the capacity to appreciate that, in nature and quality, the act will result in
the death of a human being
- To be capable of “appreciating the nature and quality of his acts”, the accused must have the
capacity to know what he is doing (i.e. choking) and the capacity to understand the physical
consequences which would flow from his act (i.e. physical injury which could result in death
- This is consistent with principle of mens rea or the intention as to the consequences of an act
Regina v Simpson, (1997) ONCA
- The appreciation does not have to be accompanied by the appropriate feeling about the effect
of the act on other people (i.e. remorse or guilt), even if suck lack of feeling stems from the
disease of the mind
R v Abbey, [1982] 2 SCR 24
Keywords: appreciating penal consequences
Facts:
- Accused was charged with importing and possession of cocaine for the purpose of trafficking
- Defence and Crown psychiatrist testified that he suffered with hypomania and an associated
delusion that he was protected from legal punishment by a mysterious external force
- However, they disagreed as to whether he was incapable of appreciating the nature and
quality of his acts
- Trial judge found that because he suffered from this delusion, he was incapacitated from
appreciating the nature and quality of his actions
Issue – Whether the accused appreciated the nature and quality of the acts
Findings
- To appreciate the nature and quality of the acts requires more than mere knowledge of the
physical nature of the acts being committed
- It also means appreciating the “physical consequence” of the act, not just the penal
consequences of that act
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The mental disorder (i.e. the delusion) must negative the mens rea of the offence
Trial judge erred in law in holding that a person who, by reason of the disease of mind, does
not appreciate the penal consequences of his acts has a mental disorder within the meaning
of s. 16
New trial ordered.
C. Knowing that the Act is Wrong
R v Chaulk, [1990] 3 SCR 1303
Keywords: meaning of “wrong”
Facts:
- 15-year old Chaulk and 16-year-old Morrisette robbed a home and stabbed the sole occupant
to death and were charged with first-degree murder
- They raised a defence of mental disorder, claiming to be suffered from paranoid psychosis
which made they believe they had the power to rule the world and that killing was a
necessary means to that end
- They knew the laws of Canada but believed they were above the law
- Trial judge instructed that “knowing the act was wrong” means knowing the act was a
criminal act or legally wrong
- Accused were convicted at trial but appealed that wrong should be interpreted to mean
morally wrong, not legally wrong
Issue – What does “wrong” mean under s. 16?
Majority Findings
Statutory Interpretation of “Wrong”
Determining the meaning of “wrong” requires statutory interpretation:
- 1. Plain language of s. 16 and the Code
o Parliament would have used the word “unlawful” if it had intended wrong to mean
contrary to law
o The French version uses the word “mauvais” which suggests that Parliament intended
the term to have a broader meaning that unlawful
- 2. Jurisprudence
o Historical common law test for “insanity” looked at whether the accused had the
capacity to distinguish between good or evil, right or wrong
o Clear line between knowledge that the act is illegal and knowledge that the act is one
that a person ought not to do
- 3. Purpose and theory underlying the provisions
o Purpose of s. 16(2) is to protect individuals who do not have the capacity to judge
whether an act is right or wrong
o That incapacity must result from a disease of the mind
- 4. Practical difficulties in determining what is “morally wrong”
o Interpreting “wrong” as meaning “morally wrong” would not open the defence to a
far greater number of accused persons for two reasons:
o What is illegal and what breaches society’s moral standards does not often differ
o This is an objective, not subjective assessment – a moral wrong is not based on the
personal standards of the accused but on his knowledge that society regards the act
as wrong. Accused thereby cannot substitute his own sense of morality and to be
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-
Test
-
-
found NCRMD, he must show the mental disorder renders him incapable of knowing
that society in general considers a particular act to be immoral
Held: “wrong” in s. 16(2) means more than simply legally wrong because a person may be
aware an act is legally wrong but because of a disease of the mind, may be incapable of
knowing that the act is morally wrong according to society’s standards (i.e. might know it’s
against the law to kill but does so in the belief that it is in the response to a divine order)
To invoke the defence under s. 16(2), the accused must show that he is incapable of knowing
that he ought not to do the act because he does not know (1) that the act is contrary to the
formal law or (2) that the act breaches the standard of moral conduct that society expects of
its members
Two limits which prevent floodgates to amoral offenders:
1. The incapacity to make moral judgements must be causally linked to the disease of the
mind
2. The accused will be benefit from substituting his own moral code for that of society. He is
only protected by s. 16(2) if he is incapable of understanding that the act is wrong according
to the ordinary moral standards of reasonable members of society
New trial ordered. On retrial, accused were found NRCMD.
Dissent (McLachlin, L’Heureux Dube, Sopinka JJ)
- Test should not be limited to legal or moral wrongness; all that should be required is that the
accused be capable of knowing the act was in some sense “wrong” (something one “ought
not to do”)
- Law and morality are coextensive but are different
- Generally, lack of moral appreciation is no excuse for criminal code
- People are presumed to know the law and the fact that their moral standards vary from those
of society is not an excuse for disobeying the law
- A person whose moral mechanisms breaks down from a disease of the mind should not be
excused from criminal responsibility where he knows or was capable of knowing that the act
was illegal or one in which he “ought not to do”
- There is no reason why deficiency of moral appreciation due to mental illness should have a
different consequence than those who have a deficiency of moral appreciation due to a
morally impoverished upbringing
- In addition, a court is in no position to make determinations of questions of morality, nor is it
fair to expect a jury to be able to agree on what is morally right and wrong
- Limitation to a “legally wrong” greater certainty and avoids metaphysical arguments on right
and wrong
R v Oommen, [1994] 2 SCR 507
Keywords: general knowledge of wrong vs. ability to apply to situation
Facts:
- Accused suffered from a paranoid delusion and believed that the woman he was living with
was part of a conspiracy to kill him
- On the night in question, he heard the doorbell ringing and believed this was the kill signal
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He shot and killed her and was charged with second degree murder
Evidence showed that in general, he had moral capacity to know the difference between right
and wrong and knew that society judged killing as being wrong so trial judge acquitted him on
that basis
Issue – Is the capacity to distinguish right and wrong an abstract or generalized capacity, or is it about
the accused’s ability to rationally apply this capacity in particular circumstances?
Findings
- The accused must know right from wrong in an abstract sense but must also possess the
ability to apply that knowledge in a rational way to the alleged criminal act
- The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether
the act is right or wrong and hence to make a rational choice about whether to do it or not
Application
- The delusion prevented him from viewing the situation rationally
- He thought he was subject to an imminent attack and thus thought that society would view
him as acting in self-defence
- His mental disorder deprived him of the capacity to know that society would view his act as
morally wrong
- Acquittal upheld.
R v Landry, (1988) QCCA
Keywords: knowledge of wrong
Facts:
- Accused was charged with first-degree murder of a former friend
- He suffered from paranoid schizophrenia and over time believed this friend was Satan and
that he was God and it was his duty to kill the deceased to save the world from destruction
Issue – Whether he had a valid mental disorder defense
Findings
- An accused who, because of a mental disorder, killed believing he was killing Satan on the
orders of God qualifies for a defence under s. 16 because his mental state directly affects his
mens rea
- On the other hand, an accused who killed because his mental disorder prevented him from
having sympathy for the victim or remorse for his act, or who killed because his mental
disorder man him believe he wouldn’t be arrested for charged does not qualify because this
mental state does not affect the mens rea or his knowledge of the physical consequences of
his act
Application
- Disease of the mind made him believe that society would not view his actions as wrong and
thus could be a valid mental disorder defense
3. SELF-DEFENCE
A. Section 34 of Criminal Code
- 34(1) To establish an “air of reality” to self-defence, there must be some evidence upon which a
properly instructed jury, acting reasonably, could find that:
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o
-
-
a) The accused believed on reasonable grounds that force is being used against them or
another person, or that a threat of force is being made against them;
o b) The accused acted with the subjective purpose of protecting himself or others from
the use or threat of force; and
 This condition screens out acts motivated by vengeance, retribution or other
non-defensive purposes
o c) The act committed by the accused was reasonable in the circumstances
34(2) provides a non-exhaustive list of factors that a judge or jury must consider when assessing
whether the act was reasonable in the circumstances
The enactment of this legislation reflected judicial recognition in the case law of the lived
experience of women subject to persistent violence from their partners
The new provision also eliminated the language of “repelling force by force” with “the person is
not guilty of an offence” indicating that acts such as stealing a car to escape an assault qualifies
under this provision as an act of self-defence
A successful self-defence claim results in an acquittal
o Self-defence is considered a justification – an instance in which the accused is thought
to have acted rightly, rather than simply being excused as a concession to human frailty
R v Cinous, 2002 SCC 29
Keywords: air of reality for self-defence
Facts:
- Accused was part of a criminal organization and, on the day in question, he got into a car with
his peers and noticed they were acting suspiciously and wearing latex gloves; he believed they
planned to kill him
- Accused was charged with murder after having shot the deceased in the back of the head
from outside of the van when they stopped at a gas station
Issue – Was there an air of reality (evidence) supporting his perception that they were going to kill
him?
Findings
Air of Reality Test
- Air of reality test – whether there is evidence on the record upon which a properly instructed
jury acting reasonably could acquit (cannot just be mere assertions by the accused that the
elements are met; there must be actual evidence of those elements)
- Credibility of the evidence or the accused is not an issue in this analysis; it simply focuses on
whether an inference that there was force or a threat of force which necessitated selfdefence could be drawn from the evidence
- A trial judge must put to the jury all defences that arise on the facts, whether or not they
have been specifically raised by an accused
- A trial judge has a positive duty to keep from the jury defences that lack an air of reality
- Air of reality analysis must be applied to each component of the defence, both subjective and
objective
- An air of reality as to the three conditions of self-defence is required in order to warrant
putting the analysis to the jury
Application
- Accused heard rumours that victim and friend planned to kill him, and another friend had
warned him
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-
They were acting suspiciously on the night in question including not taking off their coats and
reaching under the coat which is a gang signal that they were armed
They were wearing latex gloves, avoided eye contact and were silent in the car
He didn’t call police because he didn’t feel they would arrive in time and in order for them to
help him, he would have to become their informant
Held: It is possible for a jury reasonably to conclude that the accused believed he was going to
be attacked and that this belief was reasonable in the circumstances. However, there was
nothing in the evidence to explain why he did not flee once they stopped at the gas station.
Thus, there was no evidence from which the jury to infer that he had a reasonable belief in
the absence of alternatives.
No air of reality to the defence. Conviction upheld.
Reilly v The Queen, [1984] 2 SCR 396
- A belief stemming from intoxication is not a reasonable belief; you cannot say a drunk
reasonable person would have perceived that force was being used
B. “Battered Women” and Self-Defence
Defending Battered Women on Trial: Lessons from the Transcripts (Sheehy)
- Battering or intimate terrorism = the systemic use of threats and acts of violence, whether
minor or serious, by male materials to enforce their authority, to isolate, intimidate and silence
their female partners and to control them
- Battering draws on structural inequalities experienced by women, including their unequal access
to social, political and economic resources
- It is used to enforce women’s traditional roles of serving their male partners by cooking and
cleaning, bearing and raising children and being sexually available; to restrict or supervise what
they wear, whether they pursue educational or employment opportunities and whom they
associate with
- Melanie Randall – battering “simultaneous expresses and reproduces sexual inequality on both
individual and society levels; it is both a cause and effect of sexual inequality”
- The term “battered women” suggests a homogenous group of women whose experiences are
universal and are set apart from “other” women
- At trial, Crown and defence lawyers present competing narratives about women on trial:
the violent, manipulate fraud versus the wholly innocent, deserving wives and mothers, claiming
the experience of battery
- Women who fail in any way to meet preconceptions of battered women have their credibility
destroyed and their chance of acquittal undercut
- Many women convicted of killing their batterers reject the label because they have internalized
the violence inflicted on them by men as being their fault
- The experiences of these women remain invisible and continue to be distorted in the legal
system by misconceptions
“Battered Women” and Self-Defence
- The s. 34 reflects concerns raised in Lavallee that the law of self-defence developed at common
law does not accommodate battered women’s claims that they killed their abusers in justified
self-defence
- The highlights how the law imagines the “reasonable person”
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R v Lavallee, [1990] 1 SCR 852
Keywords: battered spouse; self-defence
Facts:
- Accused was a 22-year-old woman who had been subjected to a long history of abuse from
the deceased including significant physical injuries such as black eyes and fractures
- On the night in question, the deceased had been drinking and became violent towards her; at
one point, he took out a gun, fired one shot through a window and then gave her the gun
telling her to either kill him or he would kill her
- She pointed the gun at herself and then as he turned to leave the room, she shot him in the
back of the head
- Defence introduced psychiatric evidence that she was suffering battered spouse syndrome
Issue – Whether the accused’s actions were reasonable in the circumstances
Findings
- Despite legislative initiatives and policy changes to educate the public on spousal abuse, a
woman claiming she was battered faces the prospect of being condemned by myths about
domestic violence (e.g. if she didn’t leave, she was not as badly beaten as claimed or got
some machoistic enjoyment out if it)
- Court must take a subjective-objective approach to the elements of self-defence
- Reasonableness for the purposes of self-defence must be assessed in light of the
experiences and position of the accused
- Expert evidence on the psychological effect of battering is necessary for the jury to fairly
assess whether the accused’s perceptions and actions were reasonable in the circumstances
- Acquittal entered.
The Syndromization of Women’s Experience (Isabel Grant)
- When a woman uses force to defend herself, it is evaluated with reference to a male standard of
reasonableness or to an exceptional standard of “battered women”
o She must either be reasonable “like a man” or reasonable “like a battered woman”; the
reasonable woman disappears
- A label of “battered woman syndrome” transforms the reality of gender oppression into a
psychiatric disorder characterized by “learned helplessness” (a perceived inability to extricate
herself from the battering environment)
- The victim becomes the abnormal actor, one whose conduct must be explained by an expert
- However, it is not the battered woman’s learned helplessness that renders her killing
reasonable; it is the repetition and regularity of the abuse which she has been subject and her
perception of the threat to her life or safety
- By relying on a syndrome explained by psychiatrist, we implicitly send a message that, without
expert evidence, the women’s perception of reality would not be reasonable
- A woman who kills her batterer should not be seen as acting abnormally or pursuant to a
psychiatric disorder; in these situations, there may be no other way out and it may be rational
for the woman to believe she has to kill her abuser to protect her own life
- The fact that a woman remains in an abusive relationship does not mean she abandons her right
to defend herself
R v Malott, [1998] 1 SCR 123
Keywords: battered women syndrome; self-defence
Facts:
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Summary: Criminal Law (Berger) 2020
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Accused and deceased were common law spouses for 19 years
Mr. Malott abused the accused physically, sexually, psychologically and emotionally
She filed complaints with police but because he was a police informant on drug deals, the
police told him of her complaints which escalated the violence against her
- On the day in question, they were driving to a medical centre to get prescription drugs for his
illegal drug trade when she shot him to death
- Defence led expert evidence to show she suffered from battered woman syndrome and
raised a defence of self-defence
- Jury convicted her of second-degree murder but made a recommendation that because of the
severity of the abuse, she should receive the minimum sentence
Issue – Whether the accused’s actions were reasonable in the circumstances
Findings
- Expert evidence on battered woman syndrome can be used to help the jury understand:
o 1. Why an abused woman might remain in an abusive relationship
o 2. The nature and extent of the violence that existed in the relationship and its impact
on the accused.
o 3. The accused’s ability to perceive danger from the abuser and whether she was
under a reasonable apprehension of death or grievous bodily harm (subjective test)
o 4. Whether the accused believed on reasonable grounds that she could not otherwise
preserve herself from death or bodily harm
- Expert evidence on the effects of abusive relationships is necessary in order to properly
understand the context in which an accused woman had killed her abusive spouse in selfdefence (Lavallee)
- A crucial implication of the admissibility of expert evidence is the legal recognition that
historically both the law and society have treated women unfairly
o Myths and stereotypes interfere with the capacity of judges and juries to justly
determine a battered woman’s claim to self-defence and can only be dispelled by
expert evidence designed to overcome the stereotypical thinking
o Merely establishing battered woman syndrome does not lead to an acquittal; it is
simply relevant to the inquiry into the reasonableness of her perceptions and actions
- Lavallee also implies that women’s experiences and perceptions are different from men
o It is accepted that a woman’s perception of what is reasonable is influenced by her
gender and her individual experience
o The “objective” standard of a reasonable person in relation to self-defence must take
into account that the perspectives of women have historically been ignored
- It is possible that women who are unable to fit themselves within the stereotype of a
victimized, passive, helpless, dependent battered women will not have their claims to selfdefence fairly decided
o Women who have demonstrated too much strength or initiative, women of colour,
women who are professionals or women who might have fought back against their
abusers on previous occasions should not be penalized for failing to accord with the
stereotypical image of a battered woman
- Law must not develop such that a woman accused of killing her abuser was reasonable “like a
man” or reasonable “like a battered woman”; a reasonable woman must be part of the
objective standard of a reasonable person
- Law of self-defence must focus on the reasonableness of her actions in the context of her
personal experiences and experiences as a woman, not on her status as a battered woman
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Summary: Criminal Law (Berger) 2020
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By emphasizing her “learned helplessness”, the law shifts from objective rationality of
her actions to save her life to those personal inadequacies which explain her failure to
flee from her abuser
o This comports with society’s stereotypes about woman and must be avoided because
it undermines the advancements in Lavallee
o There are other elements which help to explain her inability to leave her abuser
which do not focus on characteristics consistent with stereotypes (i.e. lack of job
skills, fear of retaliation, presence of children to care for and to protect from abuse,
fear of losing custody, pressures to keep the family together, weakness of social and
financial support for battered woman and no guarantee that the violence will end
after she leaves)
[43] “To fully accord with the spirit of Lavallee, where the reasonableness of a battered
woman’s belief is at issue in a criminal case, a judge and jury should be made to appreciate
that a battered woman’s experiences are both individualized, based on her own history and
relationships, as well as shared with other women, within the context of a society and a legal
system which has historically undervalued women’s experiences. A judge and jury should be
told that a battered woman’s experiences are generally outside the common understanding
of the average judge and juror, and that they should seek to understand the evidence being
presented to them in order to overcome the myths and stereotypes which we all
share. Finally, all of this should be presented in such a way as to focus on the reasonableness
of the woman’s actions, without relying on old or new stereotypes about battered women.”
R v Khill, 2020 ONCA 151
- An accused’s “honest” belief that all young black men are armed and dangerous could not be
taken into account in the determining the reasonableness of his actions. To colour the
reasonableness inquiry with racist views would undermine the very purpose of that inquiry
because it would allow a defence predicated on a belief that is inconsistent with essential
community values and norms
4. DURESS
Introduction
- Self-defence-duress and necessity all address criminal liability of people who find themselves in
extreme situations
- In self-defence, that extremity arises from someone apprehending the use of force against
themselves or another, and the response is to repel or resist that force
- Necessity and duress concern situations in which individuals commit crimes under compulsion
or coercion
- Duress arises when criminal acts are committed by one person who is subject to compulsion
from another person (compulsion by threats)
- Necessity arises when circumstances have produced situations of imminent peril that compel
the commission of an offence (duress of circumstances)
A. Two Types of Duress
- 1. Statutory Duress – s. 17 of Criminal Code
o Compulsion by threats
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Summary: Criminal Law (Berger) 2020
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17. A person who commits an offence under compulsion by threats of immediate death
or bodily harm from a person who is present when the offence is committed is excused
for committing the offence if the person believes that the threats will be carried out and
if the person is not a party to a conspiracy or association whereby the person is subject
to compulsion, but this section does not apply where the offence that is committed is
high treason or treason, murder, piracy, attempted murder, sexual assault, sexual
assault with a weapon, threats to a third party or causing bodily harm, aggravated
sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or
causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an
offence under sections 280 to 283 (abduction and detention of young persons).
2. Common Law Defence of Duress
o Does not include the strict requirement of immediacy and presence
o Does not include the long list of excluded offences
Common law has struck down some of the restrictive features of s. 17 as unconstitutional so
common law duress is renewed importance
R v Carker, [1967] SCR 114
- Common law defence is eclipsed by the statutory defence
- S. 17 is supreme
Paquette v R, [1977] 2 SCR 189
Keywords: duress; secondary offender
Facts:
- Paquette’s two friends asked him to give them a ride to a pop shoppe
- On their way there, the friends disclosed that they were going to rob the store and when
Paquette refused to drive them there, they pulled a gun and threatened to kill him unless he
drove them there and helped them to get away
- During the robbery, an innocent bystander was killed by a bullet and the two men pleaded
guilty to murder
- By driving them to the scene, Paquette had aided and abetted a murder and was a guilty
party to the murder under s. 21
- On the authority of Carker, Paquette was barred from pleading duress because murder is an
excluded offence under s. 17
Issue – Should he be able to plead duress?
Findings
- The language of s. 17 refers to a “a person who commits an offence” so s. 17 only applies to
principal offenders
- Since the accused was a secondary offender, he can rely on the common law which allows
him to plead duress as a secondary party to a murder
R v Hibbert, [1995] 2 SCR 973
Keywords: duress is an excuse
Facts:
- Accused’s friend told him to lure the victim down to basement or he would kill him instead
- Accused did so and the victim was shot and killed by the friend
- Accused was charged with aiding and abetting a murder and pleaded duress
Issue – Does duress negate the mens rea of the offence?
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Findings
- Duress does not negate the mens rea because the accused has the intent or knows he is
committing the offence, but he does not desire the result
- Duress is considered an affirmative excuse
R v Ruzic, 2001 SCC 24
Keywords: duress; constitutionality of s. 17
Facts:
- Ruzic was walking her dog in Belgrade, Serbia where she lived with her mother, when she was
approached by a man, Mirkovic
- This followed with two months of intimidation, including threats of violence against her and
her mother, placing menacing phone calls to her home, physically and sexually harassing her
and at one point, injecting her with drugs
- Ruzic believed that he was a paid assassin in the war and, like many of the citizens of Belgrade
at the time, felt the police would do nothing to help her (supported by expert testimony)
- On the day in question, he instructed her to meet him at a hotel where he strapped three
packages of heroin to her body, gave her a fake passport, airline ticket and instructions to fly
to Toronto and deliver the drugs to a restaurant in the city
- She initially refused but acquiesced when he threatened to harm mother
- When she landed in Toronto in April 1994, she was charged with possession of and unlawful
importation of narcotics and use of a false passport
- She admitted to having committed both offences but pleaded duress
- Since she was the principal offender, she could only claim duress under s 17 and since the
threat was not imminent and present, the defence failed
Issue – Whether the immediacy and presence requirements of s. 17 are unconstitutional because
they allow the morally involuntary to be punished contrary to the principles of fundamental justice?
Findings
- Law presumes that people are autonomous, freely choosing agents and that it ought not to
punish someone whose actions weren’t a product of her agency
- Moral voluntariness is the analog to physical voluntariness and is based on whether the
accused had a realistic choice on whether to commit the defence
- Just like someone who didn’t have control of their body, if circumstances create a situation
where a person cannot control her choices (there was no real choice or the choice was
involuntary), the law should not punish her
- Thus, it is a principle of fundamental justice that only those who are morally voluntary should
be punished by the law
- New Charter standard for evaluating defences – does this defence allow the conviction of the
morally involuntary? If it does, it breaches the principles of fundamental justice under s. 7
- Held: The imminence and presence requirements create a significant possibility of
punishing the morally involuntary and thus are unconstitutional; struck down.
R v Ryan, 2013 SCC 3
Keywords: duress; hired killing of abuser
Facts:
- Accused was in a long-term abusive relationship and arranged to have her husband killed
because he was threatening to kill her and her daughter
- She pleaded duress and self-defence
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Summary: Criminal Law (Berger) 2020
Issue – Whether a wife, whose life is threatened by her abusive husband, can rely on the defence of
duress when she tries to have him murdered
Findings
- The defence of duress is available when a person commits an offence while under compulsion
of a threat for the purpose of compelling him or her to commit that offence
- Duress is not available to Ryan because this was not a case in which the purpose of the threat
was to compel her to have him killed
- Self-defence was also not found
- However, out of a sense of fairness, equity and compassion for Ryan, the court took the
unusual and extraordinary step of staying the proceedings
5. NECESSITY
Introduction
- Necessity is recognized as a defence for crimes committed in urgent situations of clear and
imminent peril in which the accused has no safe avenue of escape or legal way out of the
situation
- Necessity is an excuse; it never justifies the commission of the crime
R v Morgentaler, [1976] 1 SCR 616
Keywords: necessity and abortion
Facts:
- At the time, abortions were to be performed only in a hospital if approved by a hospital
committee
- Dr. Morgentaler performed an abortion on a 26-year-old woman in his clinic in contravention
with the law and testified that he was afraid that she “might do something foolish” if he did
not perform the abortion; he raised a defence of necessity
Issue – Can defence of necessity apply to abortions?
Findings
- Necessity has been found to justify pulling down a house to stop the spread of a fire or the
escape of prisoners from a burning prison
- It has been held that defence of necessity cannot justify killing (R v Dudley and Stephens), the
stealing of food by a starving man (Hale, Pleas of Crown) or the trepass/occupancy of empty
housing by those in dire need of accommodation (Southwark London Borough Council v
Williams, 1971)
- Allowing necessity in these cases would open the floodgates to wide variety of situations
- Necessity only justifies non-compliance with the law in urgent situations of clear and
imminent peril when compliance with the law is demonstrably impossible
Application
- In the case of abortion, a defence of necessity rests upon evidence from which a jury could
find (i) that the accused in good faith considered the situation so emergent that failure to
terminate the pregnancy immediately could endanger life or health and (ii) that upon any
reasonable view of the facts compliance with the law was impossible
- There was little evidence on record of a real and urgent medical need
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There lacks evidence in which a jury could conclude that it was impossible for the accused to
comply with the law
Held (6-3) that defence of necessity was not available
Dissent
- The urgency requirement in the defence of necessity is of such a nature as to make it
impossible to obtain a lawful abortion
- Because this prevents an air of reality from being established, the question of necessity is
never put to the jury
- It should be for the jury to say whether in such circumstances the harm sought to be avoided
by performing the abortion was an immediate and physical one and whether there was
enough of an emergency facing the accused as to make it certain that there could be no
effective resort to the law
- The necessity must arise out of danger to life or health and not merely out of economic
circumstances, although the latter may have an effect in producing the danger
- The sufficiency of the evidence on any issue is a matter for the jury, which alone is charged
with to accept what it chooses and to weigh what it accepts in light of the law given to it by
the trial judge
R v Morgentaler, Smoling and Scott, (1985) ONCA
Findings
- The defence of necessity is not premised on dissatisfaction with the law
- Defence of necessity recognizes that the law must be followed, but there are certain factual
situations which arise which may excuse a person for failure to comply with the law
- It is not the law itself which can create an emergency giving rise to a defence of necessity, but
the facts of a given situation
Necessity: Excuse or Justification?
Perka v The Queen, [1984] 2 SCR 232
Keywords: necessity is an excuse
Facts:
- Accused was transporting 33 tons of cannabis on his ship from Columbia to Alaska when he
was forced to seek refuge on Vancouver Island due to mechanical issues and poor weather
- Accused raised defence of necessity
Issue – Is necessity a justification or excuse?
Findings
- Justification challenges the wrongfulness of an action which technically constitutes a crime;
exculpates actors whose conduct whose conduct could reasonably be viewed as “necessary”
in order to prevent a greater evil than that resulting from the violation of the law
- Excuse concedes the wrongfulness of the action but asserts that the circumstances under
which it was done is one in which the law will not punish; pardon is granted because the
wrongful act is excusable in the circumstances
- Necessity excuses the conduct; it does not justify it
- New trial ordered to determine whether accused truly had mechanical issues
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Latimer v The Queen
Keywords: legal requirements for defence of necessity
Facts:
- Accused’s 12-year-old daughter suffered from a severe form of cerebral palsy
- She had a serious and debilitating disability, but she was not terminally ill
- After learning doctors wished to perform another surgery on her, the accused placed her in
his truck where she died from carbon monoxide
- He was charged with second-degree murdered and raised a defence of necessity
Issue – Was there an air of reality to the defence?
Findings
- To claim defence of necessity, (1) it must be a situation of urgent and imminent peril, (2)
there was no legal alterative available and (3) you achieve a good equal to or greater than the
harm you inflicted
Application
- There was no air of reality to the three requirements of necessity
- (1) Accused did not himself face immediate peril; he only claimed peril involving his daughter
- (2) He had other reasonable legal alternatives – could have given her more pain medication or
put her in a group home; even though this may have been sad or unappealing options, the
law is only concerned with the fact that they were reasonable legal alternatives
- (3) Uncertain whether proportionality can be found in a homicide situation. Assuming that
the necessity can provide a defence to homicide, there would have to be harm that was
comparable in gravity to death. In this case, the harm inflicted was death and the harm
prevented was more pain for Tracy which is not proportionate.
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