1
Criminal Law Process ..................................................................................................................................................................4
Morality ...................................................................................................................................................................................4
R v Malmo-Levine .......................................................................................................................................................4
R v Labaye ...................................................................................................................................................................4
Prostitution...............................................................................................................................................................................5
Reference Re ss 193 and 195.1(1)(c) of the Criminal Code ........................................................................................5
Test for s 7 Violation ...............................................................................................................................................................5
Proof ............................................................................................................................................................................................6
Burden of Proof .......................................................................................................................................................................6
Woolmington v DPP ....................................................................................................................................................6
R v Oakes .....................................................................................................................................................................7
R v Keegstra ................................................................................................................................................................7
R v Downie ..................................................................................................................................................................7
Quantum of Proof ....................................................................................................................................................................8
R v Lifchus ..................................................................................................................................................................8
R v Starr .......................................................................................................................................................................8
Actus Reus....................................................................................................................................................................................9
Contemporaneity......................................................................................................................................................................9
Fagan v Commissioner of Metropolitan Police ...........................................................................................................9
R v Miller .....................................................................................................................................................................9
R v Cooper ...................................................................................................................................................................9
R v Williams ..............................................................................................................................................................10
Voluntariness .........................................................................................................................................................................10
R v Larsonneur...........................................................................................................................................................10
Kilbride v Lake ..........................................................................................................................................................10
R v Ruzic ...................................................................................................................................................................11
Acts ........................................................................................................................................................................................11
Omissions ..............................................................................................................................................................................11
R v Browne ................................................................................................................................................................11
R v Thornton ..............................................................................................................................................................11
Status Offences ......................................................................................................................................................................12
Circumstances ........................................................................................................................................................................12
Consequences & Causation ...................................................................................................................................................12
R v Winning ...............................................................................................................................................................13
Smithers v The Queen................................................................................................................................................13
R v Cribbin ................................................................................................................................................................13
Pagett v The Queen ....................................................................................................................................................14
R v JSR ......................................................................................................................................................................14
R v Reid & Stratton ...................................................................................................................................................15
R v Harbottle..............................................................................................................................................................15
R v Nette ....................................................................................................................................................................16
Mens Rea ...................................................................................................................................................................................16
Subjective Fault .....................................................................................................................................................................16
R v Tennant and Naccarato ........................................................................................................................................16
R v Lewis ...................................................................................................................................................................17
R v Steane ..................................................................................................................................................................17
R v Hibbert ................................................................................................................................................................17
R v Buzzanga and Durocher ......................................................................................................................................18
R v Theroux ...............................................................................................................................................................18
R v Sansregret ............................................................................................................................................................18
R v Briscoe ................................................................................................................................................................19
Objective Fault.......................................................................................................................................................................19
R v Tutton & Tutton ..................................................................................................................................................19
R v Gingrich and McLean..........................................................................................................................................20
R v Hundal .................................................................................................................................................................20
R v Creighton .............................................................................................................................................................20
R v Beatty ..................................................................................................................................................................21
Absolute and Strict Liability ..................................................................................................................................................21
Beaver v The Queen ..................................................................................................................................................21
R v Pierce Fisheries ...................................................................................................................................................22
R v Wholesale Travel Group .....................................................................................................................................22
R v City of Sault Ste Marie ........................................................................................................................................22
Reference re Section 94(2) of the BC Motor Vehicle Act .........................................................................................23
Homicide ...................................................................................................................................................................................23
Manslaughter .........................................................................................................................................................................23
Second Degree Murder ..........................................................................................................................................................23
R v Simpson ...............................................................................................................................................................24
R v Cooper .................................................................................................................................................................24
R v Fontaine ...............................................................................................................................................................24
R v JSR ......................................................................................................................................................................25
Vaillancourt v The Queen ..........................................................................................................................................25
R v Martineau ............................................................................................................................................................25
First Degree Murder ..............................................................................................................................................................26
R v More ....................................................................................................................................................................26
R v Widdifield ...........................................................................................................................................................26
R v Nygaard ...............................................................................................................................................................26
R v Collins .................................................................................................................................................................27
R v Russell .................................................................................................................................................................27
R v Arkell ..................................................................................................................................................................27
R v Luxton .................................................................................................................................................................28
Sexual Assault ...........................................................................................................................................................................28
R v Chase ...................................................................................................................................................................29
Pappajohn v The Queen .............................................................................................................................................29
Osolin v The Queen ...................................................................................................................................................29
Sansregret v The Queen .............................................................................................................................................30
R v Seaboyer ..............................................................................................................................................................30
R v Darrach ................................................................................................................................................................30
R v Cornejo ................................................................................................................................................................31
R v Ewanchuk ............................................................................................................................................................31
Inchoate Offences ......................................................................................................................................................................32
Attempt ..................................................................................................................................................................................32
R v Cline ....................................................................................................................................................................32
Deutch v The Queen ..................................................................................................................................................32
R v Ancio ...................................................................................................................................................................33
R v Logan ..................................................................................................................................................................33
R v United States v Dynar .........................................................................................................................................33
Counselling ............................................................................................................................................................................34
R v Hamilton..............................................................................................................................................................34
Conspiracy .............................................................................................................................................................................34
United States v Dynar ................................................................................................................................................34
R v Déry .....................................................................................................................................................................35
Complete Offences ................................................................................................................................................................35
R v Legare..................................................................................................................................................................35
Participation ...............................................................................................................................................................................35
Principals ...............................................................................................................................................................................36
R v Thatcher ..............................................................................................................................................................36
Aiding and Abetting ..............................................................................................................................................................36
R v Greyeyes..............................................................................................................................................................37
Dunlop and Sylvester v The Queen ...........................................................................................................................37
R v Jackson ................................................................................................................................................................37
R v Nixon ...................................................................................................................................................................38
R v Helsdon ...............................................................................................................................................................38
R v Popen ...................................................................................................................................................................38
R v Palombi ...............................................................................................................................................................39
R v Kirkness ..............................................................................................................................................................39
R v Logan ..................................................................................................................................................................40
Counselling ............................................................................................................................................................................40
R v O’Brien................................................................................................................................................................40
Accessory After the Fact........................................................................................................................................................41
R v Duong ..................................................................................................................................................................41
3
Defences ....................................................................................................................................................................................41
Necessity ................................................................................................................................................................................41
Morgentaler v The Queen ..........................................................................................................................................41
R v Morgentaler et al .................................................................................................................................................42
Perka v The Queen .....................................................................................................................................................42
Latimer v The Queen .................................................................................................................................................42
Duress ....................................................................................................................................................................................43
Paquette v The Queen ................................................................................................................................................43
R v Mena....................................................................................................................................................................43
R v Hibbert ................................................................................................................................................................43
R v Ruzic ...................................................................................................................................................................44
Entrapment.............................................................................................................................................................................44
R v Mack....................................................................................................................................................................45
R v Barnes..................................................................................................................................................................46
Ignorance of the Law .............................................................................................................................................................46
R v Howson ...............................................................................................................................................................46
Jones and Pamajewon v The Queen ...........................................................................................................................46
R v Pontes ..................................................................................................................................................................47
Officially Induced Error.....................................................................................................................................................47
Molis v The Queen ....................................................................................................................................................47
R v Cancoil Thermal Corporation ..............................................................................................................................47
R v Jorgenson ............................................................................................................................................................48
Lévis (City) v Tétrault ...............................................................................................................................................48
Self Defence ..........................................................................................................................................................................48
R v Bogue ..................................................................................................................................................................49
R v Pawliuk................................................................................................................................................................49
Reilly v The Queen ....................................................................................................................................................50
R v Faid......................................................................................................................................................................50
R v Cinous .................................................................................................................................................................50
R v Lavallee ...............................................................................................................................................................50
R v Pétel .....................................................................................................................................................................51
R v Malott ..................................................................................................................................................................51
Provocation ............................................................................................................................................................................52
R v Hill ......................................................................................................................................................................52
R v Thibert .................................................................................................................................................................53
R v Campbell .............................................................................................................................................................53
R v Nahar ...................................................................................................................................................................53
R v Humaid ................................................................................................................................................................54
Automatism ...........................................................................................................................................................................54
Rabey v The Queen....................................................................................................................................................54
R v Parkes ..................................................................................................................................................................55
R v Stone....................................................................................................................................................................55
R v Luedecke .............................................................................................................................................................56
Mental Disorder .....................................................................................................................................................................56
R v Whittle .................................................................................................................................................................56
R v Swain ...................................................................................................................................................................57
R v Chaulk and Morrissette .......................................................................................................................................57
Winko v British Columbia .........................................................................................................................................58
R v Simpson ...............................................................................................................................................................58
Cooper v The Queen ..................................................................................................................................................58
R v Abbey ..................................................................................................................................................................59
R v Oommen ..............................................................................................................................................................59
Intoxication ............................................................................................................................................................................59
DPP v Beard ..............................................................................................................................................................60
R v Daley ...................................................................................................................................................................60
R v George .................................................................................................................................................................60
Bernard v The Queen .................................................................................................................................................61
R v Davivault .............................................................................................................................................................61
R v Chaulk .................................................................................................................................................................62
Criminal Law Process
Morality



Parliament has the power to legislate on the basis of morality alone (Malmo-Levine)
Test for a PFJ (Malmo-Levine)
o Legal principle
o Significant societal consensus
o Fundamental to the way in which the legal system ought to fairly operate
o Can be identified with precision
o Manageable standard to measure deprivation of liberty
Harm test (Butler, Labaye)
o Does the harm flowing from the act predispose a person to act in an antisocial manner (conduct that society
formally recognizes as incompatible with its proper functioning)
o Is the harm to such a degree that it is incompatible with the proper functioning of society
Devlin, “The Enforcement of Morals” (CB 47)
Hart, “Immorality and Treason” (CB 52)
R v Malmo-Levine
[1969] 1
Facts
 M was charged with simple possession of marijuana and possession with intent (under the reverse onus clause)
Issue
Can Parliament criminalize possession? Does it violate the Charter?
Holding
Yes. No.
Reasons (Gonthier & Binnie JJ)

Groups in society are harmed by marijuana, and while they are small relatively, their numbers are large in absolute
terms
 Widespread use despite the prohibition encourages disrespect for the law
 Marijuana is not as harmful as sometimes claimed, but it is harmful to some vulnerable groups
 Valid criminal law purpose, prohibition, penalty
 There is a reasoned apprehension of harm (Butler)
 Test for a PFJ: legal principle, significant societal consensus, fundamental to the way in which the legal system ought
to fairly operate, can be identified with precision, manageable standard to measure deprivation of liberty.
 State can criminalize harm to self
 Arbour J dissenting
o Imprisonment must be restricted to those who cause harm to others
Ratio
Harm principle is not a PFJ. Parliament can legislate on morality alone.
R v Labaye
[2005] 3 SCR 728  CB 70
Facts

L ran a swingers’ club
Issue
Is the swingers’ club indecent?
Holding
No.
Reasons (McLachlin CJC)
 Crime should be defined with as much precision as possible
 Butler test for obscenity:
o Does the harm flowing from the act predispose a person to act in an antisocial manner (conduct that society
formally recognizes as incompatible with its proper functioning)
o Is the harm to such a degree that it is incompatible with the proper functioning of society
 Types of harm
o Harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct
5
o Predisposing other to antisocial conduct
o Harm to people participating in the conduct
 Where the crown relies on risk of harm, it must be significant, but threshold is lower if there is more severe harm
Ratio
Restatement of the harm test
Prostitution

Not actually criminal, just acts around prostitution:
o 213(1)(c) communication for purposes of prostitution (90% of all prostitution prosecutions, CB 91)
o 212(1)(j) living off the avails
o 210(1) keeping a common bawdy house
Report of the House Standing Committee on Justice and Human Rights (2006, CB 90)
 213 has not had the desired deterrent effect
 Forces prostitutes into secrecy and isolation
 Minimizes information sharing on violent clients, makes obtaining assistance harder
 Must frequently change locations, so separates them from friends, coworkers, regular customers
 Negotiations must be quick, so can’t screen clients
 210 (keeping a bawdy house) – prostitutes cannot sell sex under safer conditions of a house with people
 212 (living on the avails) – cohabitation is good for saving money, reduces risk of abuse and isolation
 Better if a third party can screen clients
 Prostitution is a violent and alienating activity
 Police say 213 can protect clients from pimps
Reference Re ss 193 and 195.1(1)(c) of the Criminal Code
[1990] 1 SCR 1123  CB 85
Issue
Are the provisions against communicating for the purposes of prostitution and keeping a common bawdy house contrary to
the Charter?
Holding
Yes, but saved by s 1; No.
Reasons (Dickson CJC)

PFJ not designed to ensure optimal legislation
 Concurrence (Lamer J)
o Fair notice is given, and discretion is limited
o Liberty and security of the person so far are negative rights
o To expand the scope of s 7 too much would infringe on the judiciary’s role as guardian of the justice system,
because it would bring s 7 into the policy field, which is not for the judiciary
 Dissent (Wilson J)
o Prohibition is not proportionate because it prohibits all expressive activity conveying a certain meaning
o Definitional limits are desirable
o Resistance to outright criminalization of sex is consequential because court cannot, therefore, treat prostitution as
socially undesirable, since it’s not a crime
o Communication provisions violate ss 7 and 2(b), and are not saved by s 1
Ratio
Test for s 7 Violation
From first year Constitutional
 Deprivation of life, liberty, security of the person
o Violations
 Absolute liability offences (BC Motor Vehicle Reference)
 Preventing an abortion (Morgentaler)
 Preventing assisted suicide (Rodriguez)
 Prohibition on private medical insurance (Chaoulli)
 Denying parents decisional autonomy over their children (B(R))
 Denying choice of where to live (Godbout)
 Denial of state counsel in custody proceedings


Must be more than “the ordinary stresses and anxieties that a person of reasonable sensibility would
suffer as a result of government action … serious and profound effect on a person’s psychological
integrity” (New Brunswick v G(J), CB 1189)
o Not a violation
 Denying welfare (Gosselin)
 Delay in sexual harassment trial causing psychological distress (Blencoe v British Columbia, CB 1191)
Consistent with fundamental justice
o Test for principle of fundamental justice (Chaoulli, dissent, drawing on Rodriguez)
 Legal principle
 Significant societal consensus
 Can be identified with precision, by a manner yielding predictable results
o Not consistent
 Absolute liability offences (BC Motor Vehicle Reference)
 Illusory defences (Morgentaler)
 Arbitrary laws (Chaoulli)
o If not consistent with the principles of fundamental justice, go to s 1
Proof
Burden of Proof





The Crown must prove the accused guilty BARD (Woolmington)
There is no burden on the accused to prove his innocence (Woolmington)
Any burden that would allow a conviction despite the existence of a reasonable doubt violates the Charter (Oakes)
s 11(d) jurisprudence summary (Downie)
o Presumption of innocence infringed whenever conviction is possible despite a reasonable doubt of guilt
o If accused is required to prove or disprove an essential element of an offence or excuse, s 11(d) is violated
(Oakes)
o A rational connection between the established and presumed facts does not justify an accused having to
disprove an element of the offence
o Presumption will be valid if proof of the substituted facts leads inexorably to the proof of the other fact, but will
infringe s 11 if it requires the trier to convict in spite of a reasonable doubt
o Permissive assumptions will not violate s 11(d)
o Minor provisions will contravene the Charter if they must be established by the accused (ex sanity, Chaulk)
o Infringement of s 11(d) can be justified by s 1 (Keegstra)
Presumptions
o Permissive – optional inference from proven fact to presumed fact
o Mandatory – inference must be made
o Rebuttable
 BOP
 Raise a reasonable doubt
 Evidentiary burden
o Of Fact – frequently recurring examples of circumstantial evidence
Woolmington v DPP
[1935] AC 462  CB 279
Facts
 W convicted of wife’s murder and sentenced to death
 Judge instructed he was presumed in law to be guilty unless he could satisfy the jury his wife’s death was due to
accident?
Issue
Did the defendant have the burden to prove the murder was an accident?
Holding
No.
Reasons (Lord Sankey)

There is authority supporting the trial judge
 That authority should be interpreted “if it is proved that the conscious act of the prisoner killed a man and nothing else
appears in the case, there is evidence upon which the jury may find him guilty of murder” but the onus is still on the
Crown
 No burden on accused to prove his innocence, it is sufficient to raise doubt about his guilt
7
Ratio
Crown must prove the accused guilty beyond a reasonable doubt. There is no burden on the accused to prove innocence.
R v Oakes
[1986] 1 SCR 103  CB 284
Facts

O convicted of possession with intent to traffic under a reverse onus provision that presumes trafficking and requires the
accused to disprove intent on the BOP
Issue
Does the reverse onus violate s 11(d)?
Holding
Yes
Reasons (Dickson CJC)

Types of presumptions: permissive (optional inference from proven fact to presumed fact), mandatory (inference must
be made)
 Ways to rebut a rebuttable presumption: accused can raise a reasonable doubt, accused has evidentiary burden to
question the presumption, legal burden on the BOP to disprove presumed fact
 Presumptions of fact: “frequently recurring examples of circumstantial evidence”; presumptions of law involve actual
legal rules
 Presumption of innocence means Crown must prove guilt BARD
 Legal burden to disprove an essential element of the offence violates s 11(d)  possible for a conviction to occur despite
the existence of a reasonable doubt
 Reverse onus does not pass rational connection stage of s 1 test.
 Test for s 1
o Necessary and pressing objective
o Rational connection
o Minimal impairment
o Proportionality (salutary/deleterious)
Ratio
Any burden that would allow a conviction despite the existence of a reasonable doubt violates the Charter.
R v Keegstra
[1990] 3 SCR 697  CB 290
Facts
 K was charged with hate speech
 Claimed the provision that put a legal burden on the accused in a truth defence violated the Charter.
Issue
Do the hate speech provisions violate s 11(d)?
Holding
Yes, but it is justified under s 1.
Reasons (Dickson CJC)

The reverse onus on the truth defence does violate s 11(d)
 To require otherwise would excessively compromise the offence’s effectiveness, since many statements are not
susceptible to true/false categorization
 Small possibility truthfulness outweighs harm of wilful promotion of hatred
 Valuable precaution against justifying hatred
 McLachlin J (dissenting)
o Possibility of imprisonment does not minimally impair s 11(d)
Ratio
Violation of s 11(d) can be justified by s 1.
R v Downie
(1992), 72 CCC (3d) 1 (SCC)  CB 292
Reasons (Cory J)

s 11 jurisprudence summary
o Presumption of innocence infringed whenever conviction is possible despite a reasonable doubt of guilt
o If accused is required to prove or disprove an essential element of an offence or excuse, s 11 is violated
o A rational connection between the established and presumed facts does not justify an accused having to disprove an
o
o
o
o
element of the offence
Statutory presumption will be valid if proof of the substituted facts leads inexorably to the proof of the other fact,
but will infringe s 11 if it requires the trier to convict in spite of a reasonable doubt
Permissive assumptions will not violate s 11(d)
Minor provisions will contravene the Charter if they must be established by the accused
Infringement of s 11(d) can be justified by s 1.
Quantum of Proof


“Reasonable doubt” instruction (Lifchus)
o Judge should explain:
 Proof BARD is intertwined with the presumption of innocence
 Burden is on the prosecution the whole trial
 RD is based on reason and common sense, logically connected to evidence, does not involve proof to an
absolute certainty
 More than probably
o References to be avoided
 Ordinary expression, no special legal context
 Qualifying doubt with any word other than reasonable
 Instructing a conviction can be based on being “sure”
Lifchus standard requires instruction of special significance, and significantly greater burden than BOP (Starr)
R v Lifchus
[1997] 3 SCR 320  CB 292
Issue
Was the trial judge’s instruction to use “reasonable doubt” in its “ordinary, natural, everyday sense” wrong?
Holding
Yes.
Reasons (Cory J)
 Judge should explain:
o Proof BARD is intertwined with the presumption of innocence
o Burden is on the prosecution the whole trial
o RD is based on reason and common sense, logically connected to evidence, does not involve proof to an absolute
certainty
o More than probably
 References to be avoided
o Ordinary expression, no special legal context
o Qualifying doubt with any word other than reasonable
o Instructing a conviction can be based on being “sure”
Ratio
How to instruct a jury on RD.
R v Starr
[2000] 2 SCR 144  CB 294
Issue
Is the instruction that RD has no special meaning and does not require proof to an absolute certainty wrong?
Holding
Yes.
Reasons (Iacobucci J)

Lifchus standard requires instruction of special significance, and significantly greater burden than BOP
 Must explain how much less than an absolute certainty the RD threshold is
 Do not use examples from real life, must be specific to the legal context, not quantifiable
 “falls much closer to absolute certainty than proof on a BOP”
 L’Heureux-Dubé (dissenting): TJ properly communicated charge
o Lifchus is a broad template but not a mandatory checklist.
Ratio
Lifchus standard requires instruction of special significance, and significantly greater burden than BOP.
9
Actus Reus



Criminal liability requires a prohibited act
Without it, the State could police thought (CB 301)
Requirements
o Physically voluntary
o Act or omission
o Sometimes in certain prescribed circumstances
o Sometimes causing certain circumstances
Contemporaneity



AR and MR coincide at some point in the transaction (Cooper)
MR can be superimposed on continuing AR (Fagan)
Duty to rectify a risky situation unintentionally created. Omission to do so will bring liability (Miller)
Fagan v Commissioner of Metropolitan Police
[1969] 1 QB 439  CB 302
Facts

F drove onto a police officer’s foot, the car turned off, and F was slow to back off the foot
Issue
Is F guilty of assault?
Holding
Yes.
Reasons (James J)

Assault: act which intentionally or recklessly causes another person to apprehend immediate personal violence.
 Distinction is between complete acts, where results to continue to flow, and continuing acts
 Mens rea can be imposed on actus reus, it need not be present at the start
 Subsequent inception of mens rea cannot convert an act which has been completed without mens rea into assault
 Keeping the car on the foot continued the act of the car rolling onto the foot, so the MR was superimposed on the AR
when F didn’t back off right away.
Ratio
MR can be superimposed on continuing AR, as long as it has not been completed.
R v Miller
[1982] 2 All ER 386  CB 305
Facts

M was a squatter who fell asleep on a mattress
 He dropped his cigarette into the mattress, and when he realized it was on fire, moved into another room and fell asleep
again
 He was charged with arson
Issue
Was M’s omission to do something about his unintentional dropping of a cigarette enough to ground liability?
Holding
Yes.
Reasons (Lord Diplock)
 Court of Appeal
o Unintentional act followed by an intentional omission to rectify that act or its consequences
o Whether the offender adopts what he has done earlier by what he deliberately or recklessly fails to do later is an
important consideration
o His failure with knowledge to extinguish the incipient fire had it in a substantial element of adoption on his part of
what he had unintentionally done earlier namely set the fire
 Omission to counteract a danger the accused created attaches liability if there is the requisite MR
 When a person becomes aware of a danger he created that presents an obvious risk, he has a duty to fix it
Ratio
Duty to rectify a risky situation unintentionally created. Omission to do so will bring liability.
R v Cooper
[1993] 1 SCR 146  CB 307
Facts

C strangled a woman, but was not conscious at the point the strangulation caused death, only at the start of it
Issue
Is C guilty despite not having intent at the time of death?
Holding
Yes.
Reasons

Once the accused had formed the intent to cause the deceased bodily harm, which he knew was likely to cause her
death, he need not be aware of what he was doing at the moment she actually died.
 At some point the AR and MR must coincide
 Series of facts may form part of the same transaction
 Grabbing the neck there was necessary coincidence of wrongful act of strangulation and intent to do bodily harm that C
knew was likely to cause death
Ratio
AR and MR must coincide at some point during the transaction.
R v Williams
[2003] 2 SCR 134  CB 309
Facts

W practiced unprotected sex with the victim for a year with HIV, and gave the victim HIC
Reasons
 Failure to disclose information that changes the nature and quality of the act vitiates consent
 There was reasonable doubt as to whether, at the time he was aware of his HIV positive status, he was endangering the
victim’s life
 Before the test, there was endangerment but no intent, after, there was intent but a reasonable doubt as to the existence of
endangerment
Ratio
Confirms Cooper, though the facts don't support guilt in this case.
Voluntariness



AR must be physically voluntary, cannot be result of involuntary action (Larsonneur)
Mental element of AR  AR must be voluntary before court can consider MR (Kilbride)
Required by s 7 of the Charter (Ruzic)
R v Larsonneur
(1933), 24 Cr App R 74  CB 311
Facts

L was deported to Ireland and forbidden back in the UK
 Ireland deported L back to the UK
 On arrival in the UK at the hands of the Irish, L was convicted of being in the UK illegally
Holding
Conviction upheld
Ratio
Wrongly decided because it ignores voluntariness component of AR.
Kilbride v Lake
[1962] NZLR 590  CB 312
Facts

L parked his car and went into the store
 While he was there, someone stole the registration sticker off his car
 He was convicted of having a car without a registration sticker?
Issue
Is L liable of driving without a registration sticker?
Holding
No.
Reasons (Woodhouse J)

Lack of MR is no defence to absolute liability
 Accused must be shown responsible for the physical ingredient of the crime
11
 Until AR is established, no reason to discuss MR
 Liability for acts or omissions “in circumstances where there was some other course open to him”
 AR must be voluntary
Ratio
AR must be voluntary before MR can be considered.
R v Ruzic
[2001] 1 SCR 687  CB 315
Reasons

Absence of volition WRT the AR is always brings complete and unqualified acquittal
 Would violate s 7 otherwise
 Critical importance of autonomy in attribution of criminal liability
 Fundamental principal of criminal law: offenders are “rational, autonomous, choosing agents”
Ratio
Voluntariness is required by s 7.
Acts




CB 316
Most complications related to the act are definitional in nature
o See definitions: break (321), communicating (319(7)), operate (214), sell (183, 462.1), transfer (84), general
definition (2)
Description of action can mean different things depending on express definition in the section or statute
Where no statutory definition, use common law
Omissions




Law is reluctant to punish omissions  sweeping liability
No duty to intervene, prevent, or offer assistance unless the legislature says so
Only liability for omission where there is a duty (Browne), parents (ss 215-16)
o Statutory duty – ex police (Nixon, below in Aiding and Abetting)
o Under s 180 (common nuisance): Common law duty – Donoghue duty (Thornton)
o Under criminal negligence: undertaking – clear and binding intent (Browne)
Canadian law does not recognize common law offences (s 9) so no duty unless prescribed by statute
R v Browne
(1997), 116 CCC (3d) 183 (ONCA)  CB 319
Facts

B is charged with criminal negligence causing death when he did not bring AG to the hospital after he said he would
and knew she was having a severe reaction to drugs
Issue
Did B’s words constitute an undertaking fixing him with a duty to do it?
Holding
No.
Reasons (Abella JA)

s 217: everyone who “undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be
dangerous to life”
 Duty does not flow from relationship, as in s 215 (spouses, parents, etc)  duty flows from undertaking
 Threshold must be high to justify serious consequences
 Civil standard: must be a commitment generally, though not necessarily, on which reasonable reliance can be placed
 Criminal standard: undertaking must be “clearly made, and with binding intent”
 There was no undertaking
Ratio
Only liability for omissions where there is a duty.
Undertakings giving rise to a duty under s 217 must be clear and with binding intent.
R v Thornton
(1991), 3 CR (4th) 381 (ONCA)  CB 323
Facts

T had HIV, and lied on a questionnaire so he could giving blood, knowing his condition.
Issue
Did T have, and fail to discharge, a legal duty not to endanger public safety?
Holding
Yes. Yes.
Reasons (Galligan JA)

s 180: common nuisance, 180(2) where by unlawful act or failure to discharge legal duty endangers the public.
 “unlawful act” must be specifically proscribed by legislation
 “legal duty” can arise at common law
 Heaven v Pender (1883): “a duty lies upon him not to do that which may cause a person injury to tat other”
 Donoghue: “the rule that you are to love your neighbour becomes in law, you must not injure your neighbour”
 Legal duty requires everyone to “refrain from conduct which it is reasonably foreseeable could cause serious harm to
other persons”
 When the gravity of a potential harm is great, the public is endangered even when the risk of harm actually occurring is
slight
Ratio
Liability for breach of a legal duty can be founded on breach of a common law duty.
Everyone has a duty to “refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons”
Status Offences




Imposes liability for who the defendant is, not what he did
o Law is reluctant to do so
Examples
o Possession offences: bawdy house etc (201, 210)
o Living off the avails of prostitution (212)
o Being nude in a public place (174)
Strong case status offences offend the Charter (s 7)(CB 332)
Parliament prefers to criminalize “participation in activities” of bad organizations, rather than just being a member
Circumstances

Crown must prove circumstances for the conviction
o Ex being drunk for impaired driving  driving only becomes a crime when the circumstance of drunkenness is
added
o Statutory definitions of statuses: CB 333-37
Consequences & Causation





Some offences are defined by the fact they cause certain consequences  dangerous driving causing death
Requirements
o The prohibited consequence occurred
o The accused action caused the prohibited consequences
 Is it the factual cause?
 Is the factual cause sufficient to qualify as the legal cause
Smithers Test (manslaughter)
o Crown must show BARD that the accused’s act was “at least a contributing cause outside the de minimis
range”
o For manslaughter, the faulty act must have been reasonable foreseeable to cause bodily harm that is not trivial
(from Creighton)
o Endorsed by majority in Nette for all forms of homocide, but can be rephrased when instructing the jury as
“significant contributing cause”
o Harbottle exception – for s 214(5)(first degree murder for crimes of domination), causation is “substantially
caused”
Thin Skull Doctrine (Smithers)
Intervening Acts
o Don’t count as novus actus (Pagett)
 Reasonable act performed for the purpose of self preservation is not a novus actus

13
 Attempt to escape the consequences of the accused act
 Maybe: act done in the execution of a legal duty
 Victim not taking medical treatment because of religious belief (Blaue, thin skull doctrine in Smithers)
Dangerous situation (gunfight, car race)
o Liability for everyone involved (Menzes, JSR)
o Caveat: if one party withdraws and the other is aware and doesn’t slow down, no liability for the withdrawing
party (Menzes)
R v Winning
(1973), 12 CCC (2d) 449
Facts
 W applied for credit with Eaton’s and made at least 2 false statement on the application
 Eaton’s did not rely on the application for anything but name and address, which were true on W’s application
 Eaton’s relied on its own investigation to determine whether or not to give credit
Issue
Is W guilty of obtaining credit on false pretences?
Holding
No
Reasons (Gale CJO)

The credit was not given in reliance of the false pretences, so it therefore was not obtained on the false pretences
Ratio
Where a crime requires a result, the result must be caused by the actus reus for liability.
Smithers v The Queen
[1978] 1 SCR 506
Facts

S got in a fight with C after a hockey game
 There was some question of provocation, etc
 S kicked C in the stomach when C was down
 Within 5 minutes C stopped breathing
 Cause of death was determined to be aspiration of vomit
Issue
Did S cause C’s death?
Holding
Yes. Guilty of manslaughter
Reasons (Dickson J)

Defence of provocation only available for murder
 S submits trial judge minimized issue of causation in jury instructions
 Manslaughter only requires assault and person dying
 Causation is factual, has nothing to do with intention, foresight or risk
 Crown has the burden to prove causation beyond a reasonable doubt
 There is evidence the kick was at least a cause of death outside the de minimis range  that is all the Crown is required
to establish
 It is no defence to manslaughter that death was not anticipated or death would not ordinarily result from the act
 Must take the assault victim as you find him  R v Blaue liability for manslaughter where the victim could have been
saved with a blood transfusion but refused it for religious reasons
 Thin skull rule applies in criminal law
Ratio
Causation must be more than de minimis. Liability for everything more.
R v Cribbin
(1994), 89 CCC (3d) 67 (ONCA)  CB 344
Facts

C severely beat the victim and left him unconscious at the side of the road
 The victim drowned in his own bood
 C challenges Smithers causation for constitutionality
Issue
Is the de minimis causation too remote to attach criminal liability?
Holding
No.
Reasons (Arbour JA)

C claims the Smithers test is so low as to infringe upon s 7 (contrary to fundamental justice)
 Fault element of manslaughter requires objective foreseeability of bodily harm “which is neither trivial nor transitory, in
the context of a dangerous act, such that the most trivial assault, not dangerous in itself and not likely to cause injury
would not give rise to a conviction for manslaughter if it did somehow cause death (R v Creighton)
 C’s argument
o Causation involves moral judgement as to blameworthiness, fundamental justice requires that the rule triggering
criminal responsibility be commensurate with the moral blameworthiness of the conduct that it prohibits  de
minimis is too remote to attach criminal liability
o Definition is too vague
 Vagueness can be dismissed  standard of precision is to “provides guidance to legal debate”, this does
 Actus reus is the same for manslaughter and murder  difference is the degree of fault: subjective foresight for murder,
objective foreseeability of serious bodily harm for manslaughter
 Causation is a principle of fundamental justice like mens rea  morally innocent shouldn’t be punished
 Fault element articulated in Creighton removes any danger that de minimis is so broad as to punish the morally innocent
 Causation and fault element must be proven by Crown beyond a reasonable doubt
Ratio
Smithers test accords with fundamental justice.
Pagett v The Queen
(1983), 76 Cr App R 279  CB 349
Facts
 P shot at police officers
 Used a woman as a human shield
 Cops killed the woman shooting back at P
Issue
Did P cause the woman’s death?
Holding
Yes.
Reasons (Lord Goff)

Novus actus interveniens must be voluntary – “Free, deliberate and informed”
 Don’t count as novus actus
o Reasonable act performed for the purpose of self preservation is not a novus actus
o Attempt to escape the consequences of the accused act
o Maybe: act done in the execution of a legal duty
Ratio
Act must be voluntary to break the chain of causation
R v JSR
(2008), 237 CCC (3d) 305 (ONCA)  CB 351
Facts

SR and B were in a gun fight on Yonge Street
 B shot at SR and missed him, hit Jane Creba who died
Issue
Did SR cause JC’s death?
Holding
Yes.
Reasons

In a car race where a bystander is hit and killed, both drivers are liable for the death – “there is one danger. Each driver
bears equal responsibility for its continued life span subject to withdrawal or an intervening event” (R v Menzes)
o Caveat: if one party withdraws and the other is aware and doesn’t slow down, not liability for the withdrawing
party
 each shooter induced the other to engage in a gun fight on a crowded street. “but for” the decision to engage in a gun
fight on a crowded street and the resulting exchange of bullets, Ms Creba would not have been killed
Ratio
Liability for everyone involved in the faulty event that caused death.
15
R v Reid & Stratton
(2003), 180 CCC (3d) 151 (NSCA)  CB 352
Facts
 Everyone was drunk
 R & S got in a fight with M
 S put M in a sleeper hold and R kicked him
 M went unconscious
 The kids immediately began an attempt at resuscitation
 M was pronounced dead on arrival
 Cause of death was aspiration of stomach contents induced by resuscitation
Issue
Does the resuscitation break the chain of causation?
Holding
Yes.
Reasons (Saunders JA)

Trial judge was not clear enough when instructing jury on intervening events
 The resuscitation broke the chain of causation
 Different from subsequent surgical intervention causing death (usually won’t break the chain) – rescue attempt was by
young bystanders who were drunk
 Sleeper hold likely didn’t kill M, had they left him he would probably have come to
 Judge should give jury examples of intervening acts (beaten unconscious in building, earthquake causes building to
collapse resulting in death)
 Instructions
o Was the act a significant contributing cause of death
o Were there any intervening causes resulting in the death? Are you satisfied beyond a reasonable doubt that the
actions are so connected to the death that they can be said to have had a significant causal effect which continued
up to the time of death, without having been interrupted by some other act or event?
Ratio
Judge must be clear on intervening act. Actus reus must continue to have causal effect until death.
R v Harbottle
[1993] 3 SCR 306  CB 358
Facts
 H and R forcibly confined EB and brutally sexually assaulted her
 H restrained her while R strangled her
 H charged with first degree murder pursuant to s 214(5) – automatic first degree murder when committed during sexual
assault or forcible confinement
Issue
Did H cause EB’s death?
Holding
Yes.
Reasons (Cory J)

Ample evidence upon which the jury could have found the murder was planned and premeditated by H and R
 Charge was not correct so there must be anew trial
 Wording of the section is broad enough to include both perpetrators and those who assist in the murder and come within
the purview of substantial cause test
 Physically caused test advocated by the CA is too restrictive
 Impossible to distinguish between the two in blameworthiness
 Test takes into account: consequences of a conviction, present wording of the section, aim to protect society from the
most heinous murders
 Accused may be convicted if Crown establishes accused’s act was a “substantial and integral cause of the death”
 Accused must play a very active role: “essential, substantial and integral part”
 Higher than Smithers
 Accused can be the substantial cause of death without physically causing it
 Test for causation under 214(5)
o Accused guilty of underlying crime of domination
o Accused was guilty of the murder
o Participated in the murder such that he was the substantial cause
o No intervening act
o Crimes of domination and murder were part of the same transaction
Ratio
Liability for those who did not physically kill but still “substantially caused” the death.
R v Nette
[2001] 3 SCR 488  CB 363
Facts
 L was robbed an hog tied
 Some time in the next 2 days before she was found, she fell from her bed to the floor and died
 N was seen robbing the house during the time, charged with first degree murder per 231(5) – murder while unlawfully
confining
Issue
What is the standard of causation?
Holding
Smithers test. Can be reformulated as “substantial cause”
Reasons (Arbour J)

Standard of causation expresses whether the fault is sufficient to base criminal responsibility
 Civil causation is of limited assistance
 Difference between first and second degree is essentially a sentencing distinction
 “Substantial cause” is particular to the language found in 231(5), as found in Harbottle – establishes level of increased
participation before accused can be convicted of first degree murder
 Only one standard of causation for manslaughter or murder (all homicide offences)
 Need to distinguish between causation and the words used to explain it
 Smithers test is still applicable to all forms of homicide
 “Not insignificant” can be rephrased as “significant contributing cause”
 Important to afford trial judge flexibility when describing test for causation
 Cause must be more than de minimis, “more than a trivial cause”
 L’Heureux-Dubé in dissent held that “significant cause” is a higher standard than “not insignificant cause”
Ratio
Confirms Smithers, but says it is possible to rephrase “not insignificant cause” as “significant cause.”
Mens Rea
Subjective Fault



Common sense inference: “a person usually knows what the predictable consequences of his actions are, and means to
bring them about “ (predictable = certain or substantially certain: Buzzanga)
o Accused can disprove the presumption on a BOP
Intent
o AR must be done with intent
o No intent where under subjection of enemy (Steane)
o Purpose = intend (Hibbert)
o Wilfully means intending the consequence, or subjectively foreseeing its certainty and continuing for another
purpose (Buzzanga)
o Recklessness  accused “sees the risk and takes the chance” (Sansregret)
Knowledge
o MR is based on the facts as the accused knew them (Theroux)
o True belief (Dynar below in Attempt)
 Objective (true) and subjective components (belief)
o Wilful blindness will fix the accused with knowledge (Sansregret, Briscoe)
 Person has become aware of a need for inquiry and does not because he doesn’t want to know the truth
 Does not define MR, but will substitute for actual knowledge whenever knowledge is a component of
the MR (Briscoe)
R v Tennant and Naccarato
(1975), 23 CCC (2d) 80 (ONCA)  CB 427
Ratio
17
“Where liability is imposed on a subjective basis, what a reasonable man ought to have anticipated is merely evidence from
which a conclusion may be drawn that the accused anticipated the same consequences. On the other hand, where the test is
objective, what a reasonable man should have anticipated constitutes the basis of reality”
R v Lewis
[1979] 2 SCR 821  CB 428
Reasons
 MR relates to intent – exercise of a free will to use a particular means to produce a particular result
 Motive – that which precedes and induces the exercise of the will
 Evidence of motive is always relevant and admissible
 Motive is no part of the crime and is legally irrelevant to criminal responsibility
 There can be intent without motive
 Motive is always a question of fact
Ratio
Intent is different than motive. Law is only concerned with intent.
R v Steane
[1947] 1 KB 997 (UKCA)  CB 429
Facts

S was a British subject who was trapped in Germany at the start of WWII
 The Germans tortured him and threatened his family so that he would read the news on German radio
 S was charged with “doing acts likely to assist the enemy with intent to assist the enemy”
Issue
Did S have the specific intent required?
Holding
No.
Reasons (Lord Goddard CJ)

Where a particular intent is part of a crime, the Crown must prove its existence BARD
 Intention comes before any consideration of duress, because duress is a defence
 “It is impossible to say that where an act was done by a person in subjection to the power of others, especially if that
other be a brutal enemy, an inference that he intended the natural consequences of his act must be drawn merely from the
fact he did it. The guilty intent cannot be presumed and must be proved.”
 Where the intent is innocent or circumstances show the act was done in subjection to the power of the enemy, the
presumption is unavailable.
Ratio
Specific intent must be proven BARD.
R v Hibbert
[1995] 2 SCR 973  CB 432
Facts

H was friends with the victim
 X made H call his friend down to the lobby so X could kill the friend, threatening to kill H if he didn’t
 H stood by while X shot the victim
Issue
Did duress negate H’s MR for attempted murder?
Holding
No.
Reasons (Lamer CJC)

Duress doesn’t necessarily negate MR, depends on particular mental element in the circumstances of the case
 Intention: know what you are doing, are aware of the probable consequences
 “purpose equals desire” is problematic because some people are indifferent to committing crimes
 duress is a defence on its own, usually doesn’t strike at MR
 Purpose is intention, not desire
 If duress can negate MR, accused to point to threats to raise an RD that he had the requisite MR
 Duress is an excuse, and can be invoked even if the threats don’t negate MR
 MR for s 21(1)(b) (aiding) cannot be negated by duress
Ratio
Purpose means intent. Duress rarely will negate MR.
R v Buzzanga and Durocher
(1979), 49 CCC (2d) 369 (ONCA)  CB 427, 436
Facts

B+D were sympathetic to francophones, but published pamphlets that were offensive to francophones to combat apathy
in a campaign about a French school
 They were charged with wilfully promotion hatred
Issue
Did the trial judge misdirect himself leading to finding wilful promotion of hatred?
Holding
Yes.
Reasons (Martin JA)

Wilfully’s primary mean is intentional, but can also mean recklessly
 recklessness = person foresees his conduct will cause the prohibited result, but nevertheless takes a deliberate and
unjustifiable risk of bringing it about
 Willmott v Atack  on the charge of obstructing a constable, it is not sufficient to prove the accused intended to do what
he did, which resulted in the obstruction; Crown must prove that in doing it, he intended to obstruct the constable
 Wilfully  intention to bring about the proscribed consequence
 Inclusion of an offence in the Code imports a MR in the absence of clear legislative intention to the contrary
 Intention includes desire, as well as subjective foresight that the consequence is certain or substantially certain

Ratio
Wilfully means intending the consequence, or subjectively foreseeing its certainty and continuing for another purpose.
R v Theroux
[1993] 2 SCR 5  CB 442
Facts

T was convicted of fraud for accepting deposits from investors in a building project having told them that he had
purchased deposit insurance when he in fact had not
Issue
Did T have the requisite MR for fraud?
Holding
Yes.
Reasons (McLachlin J)

AR has a mental element – voluntariness
 Typically, MR is concerned with the consequences of the prohibited act
 MR = with the facts as the accused believed them to be, did he subjectively appreciate the consequences or their
possibility?
 Subjective awareness of the consequences can often be presumed from the act (common sense inference)
 Prohibited AR in fraud is deceit, falsehood, prohibited consequence is depriving someone of what is theirs, or putting it
at risk
 MR is subjective awareness of deceit that would lead to deprivation or risk
 Test for fraud
o AR
 Act of deceit or falsehood
 Deprivation caused by the deceit, or placing assets at risk
o MR
 Subjective knowledge of the deceit
 Subjective knowledge of possibility of deprivation or risk
Ratio
MR is based on the facts as the accused believed them, must have subjectively appreciated the AR’s consequences.
R v Sansregret
[1985] 1 SCR 570  CB 447
Facts

S beat on his girlfriend and she consented to sex to stop the beatings twice
 S is charged with sexual assault, because he was wilfully blind to the fact that her consent was vitiated by duress
Issue
19
Can S be fixed with knowledge of a defect in consent by his wilful blindness of it?
Holding
Yes.
Reasons (McIntyre J)

Recklessness – aware conduct could bring a prohibited consequence, and persists despite the risk; “sees the risk and
takes the chance”
 Wilful blindness is like recklessness
 Different than Pappajohn, which held that honesty of belief will support mistake of fact even where that belief is
unreasonable
 Wilful blindness will bring a presumption of knowledge
 Arises where a person has become aware of a need for inquiry and does not because he doesn’t want to know the truth
 Culpability is justified by deliberately failing to inquire when he knows there is a reason to inquire.
Ratio
Wilful blindness will bring a presumption of knowledge.
R v Briscoe
2010 SCC 13  CB 447
Facts

B charged with first degree murder
 Crown contends he drove the murderers to the scene, provided a weapon, held the victim, and told her to shut up
 Trial judge acquitted because B did not know the crime would occur
Issue
Did the judge err in not considering wilful blindness?
Holding
Yes
Reasons (Charron J)

Wilful blindness will substitute for actual knowledge whenever knowledge is a component of the MR
 Imputes knowledge to an accused whose suspicion is aroused to the point where he sees the need for inquiry, but
deliberately chooses not to make those inquiries.
 Looks away when he knows looking would fix him with knowledge
 B deliberately chose not to inquire about what the group was doing because he did not want to know.
Ratio
Wilful blindness imputes knowledge were the accused’s suspicion is aroused but he chooses not to inquire.
Objective Fault




Negligence is a controversial standard in criminal law.
Criminal negligence (219)
o Objective test
o “marked and significant departure (Tutton & Tutton)
Penal negligence
o “Marked departure” from the reasonable person standard, contextualized to the case (Beatty)
o Negligence not rising to the level of criminal negligence (ex 249, 249.4)
o Test (Crown burden BARD) (Beatty)
 AR
 Measure conduct against wording of the statute (ex for dangerous driving)
 Not concerned whether it was a marked departure from the reasonable person standard at this stage
 MR
 Was the accused’s conduct a “marked departure” from the reasonable person standard in the
circumstances
 Ought the reasonable person have been aware of the risk and danger in accused’s conduct?
Manslaughter
o Objective foreseeability of bodily harm which is neither trivial nor transitory (Creighton)
R v Tutton & Tutton
[1989] 1 SCR 1392  CB 450
Facts

Accused are parents who believe in faith healing and didn’t bring their child to the hospital
Issue
Are T+T guilty of criminal negligence causing death even though they were not subjectively aware of their negligence?
Holding
Yes.
Reasons (McIntyre J)

Criminal negligence implies an objective standard, considering the accused’s actions, not his mental state
 There is no difference between omissions and commissions
 Punishment for mindless action, not state of mind
 Actions that are wanton or reckless are negligent
 Test: proof of conduct “which reveals a marked and significant departure from the standard which could be expected of
a reasonably prudent person in the circumstances”
 Lamer J (Concurring)  a “generous allowance” must be made for the accused’s particular factors: youth, mental
development, education
 Wilson J (dissenting)  Crown must prove subjective awareness of the risk or departure
Ratio
Criminal negligence is marked and significant departure for the objective standard (3 of the judges, 3 said subjective)
R v Gingrich and McLean
(1991), 65 CCC (3d) 188CB 455
Facts

G+M were convicted of criminal negligence in operating a motor vehicle when a truck’s breaks failed and caused a fatal
accident. G was the driver and M was the owner.
Issue
Is the standard objective for criminal negligence?
Holding
Yes
Reasons (Finlayson JA)

MR for criminal negligence in operating a motor vehicle is objective
Ratio
Objective test for MR in criminal negligence
R v Hundal
[1993] 1 SCR 867  CB 456
Facts

H drove a dumptruck through an intersection and hit a car, because he thought he couldn’t stop in time and would hit
another car. He was charged with dangerous driving causing death.
Issue
Is H guilty because he violated the objective standard?
Holding
Yes
Reasons (Cory J)

To insist on a subjective MR for driving offences would deny reality: driving decisions are automatic and with little
conscious thought
 Objective test should be applied in the context of the events surrounding the incident
 Personal factors are taken into account by the licensing requirement
Ratio
MR for driving offences is objective. Still not sure if SCC has endorsed objective standard for criminal negligence.
R v Creighton
[1993] 3 SCR 3  CB 457
Issue
Is the MR for manslaughter objective?
Holding
Yes.
Reasons (Lamer CJC)

There must be some special mental element for homicide to be treated as murder

PFJ require some (limited number) of offences to have a subjective MR because of thir stigma
 Stigma for manslaughter is less than murder
21
De Sousa on unlawfully causing bodily harm – MR based on objective foreseeability of risk of bodily harm, combined
with MR of the predicate unlawful act, satisfies s 7
 Unlawful act manslaughter falls into the category of offences that requires a mental element, but it’s ok for the mental
element to be objective foresight of death
 If the accused can be held to the reasonable person standard, he should be
 C had more knowledge than the average person about the situation, so the reasonable person in his case should be fixed
with that knowledge
Concurrence (McLachlin J)
 Common law defence of manslaughter is unconstitutional because it does not require reasonable foreseeability of death
 Standard should be the reasonable person in all cases, and it should not be altered like the Chief Justice would for C
 Most important feature of manslaughter stigma is that it isn’t murder stigma
 When combined with the thin skull rule, the objective foreseeability of death becomes the objective foreseeability of
bodily harm because the only difference is a victim who reacted badly to the bodily harm
 Accused must be capable of appreciating the risk if he put his mind to it
Ratio
MR for unlawful act manslaughter = objective foreseeability of bodily harm which is neither trivial nor transitory

R v Beatty
[2008] 1 SCR 49  CB 378
Facts

B suffered a split second lapse in consciousness which caused his car to swerve and kill people in the oncoming car
 There was no other element of negligence
Issue
Is B guilty of dangerous driving causing death for this moment of negligence?
Holding
No.
Reasons (Charron J)

Penal negligence is aimed at punishing blameworthy conduct
 Modified objective test is appropriate for establishing penal negligence
o Marked departure
o Reasonable person in the position of the accused must be aware of the risks arising from conduct
 Short of incapacity, personal traits are not relevant, but the reasonable person must be in the context of the accused
 Dangerous driving is concerned with the manner of driving, not the consequence
 Proof of subjective MR helps, but is not essential
 A momentary lapse of attention is not a “marked departure” from the reasonable person standard.
Ratio
The test for penal negligence is “marked departure” from the reasonable person standard, contextualized to the case.
Absolute and Strict Liability





Law presumes some MR requirement for true crimes
Liability for regulatory or public welfare offences can be based on AR only (absolute), or a reduced fault requirement
(strict)
Regulatory offences are presumed to have a defence of due diligence or reasonable mistake on a BOP (Sault Ste Marie)
Absolute liability only were expressly stated (Beaver, Sault Ste Marie)
Absolute liability cannot lead to imprisonment (BC Motor Vehicle Reference)
Beaver v The Queen
[1957] SCR 531  CB 378
Facts

B was charged with possession and trafficking of heroin
 B did not know it was the drug, but thought it was lactose instead
Issue
Does it matter B didn’t know the drug was illegal (ie he lacked MR)?
Holding
Yes, criminal liability is presumed not to be absolute.
Reasons (Cartwright J)
 There is little similarity between a statute forbidding unsound meat and one making possession and trafficking crimes



Absolute liability only where Parliament expressly provides for it
Conviction for possession quashed
B still ‘held out the drug’ as heroin to the undercover cop, which counts as the MR for trafficking, so that conviction is
affirmed
Ratio
Absolute liability only where expressly stated in the legislation (NB pre-Charter)
R v Pierce Fisheries
[1971] SCR 5  CB 384
Facts

PF was caught with 26 undersized lobsters in its traps, out of 60,000 lbs of lobster
Issue
Is PF liable though it lacked any MR?
Holding
Yes.
Reasons (Ritchie J)

Regulations are to protect lobster and the public interest
 This regulation did not create a crime, because no stigma
 No analogy between lobster statutes and Beaver
 Language in the statute requires no MR, so it should not be interpreted as such (no words like “knowingly” etc)
Ratio
Regulatory offences are interpreted as absolute liability (NB pre-Charter)
R v Wholesale Travel Group
[1991] 3 SCR 154  CB 385
Reasons
 Regulations
o Enacted to protect the vulnerable
o Acts in the public interest protected under a penalty
o Don’t carry stigma of criminal conviction
o No presumption of MR
o Sault Ste Marie created strict liability, which offers the defence of due diligence
o Different concept of fault: directed at the consequence, not the conduct itself
o Based on a reasonable standard of care
o Object is to induce reliance
Ratio
Regulatory offences need no MR.
R v City of Sault Ste Marie
[1978] 2 SCR 1299  CB 388
Issue
Are regulatory offences presumed to be absolute liability?
Holding
No, strict liability (no MR but defence of due diligence)
Reasons (Dickson J)

Criminal offences require MR
 Absolute liability means conviction on proof of AR
 Arguments for absolute liability
o Protection of social interests requires high standard of care
o Administrative efficiency because the Crown doesn’t have to prove MR in every regulatory offence
o Penalty and stigma are insignificant
 Court rejects that the penalty is insignificant, and the loss to time etc means the innocent should not be prosecuted
 Due diligence is already admissible in sentencing, so evidence to that effect should be considered in considering guilt
 Woolmington doesn’t stand in the way of making regulatory offences strict liability
 Law Reform Commission concurs
 Onus should be on the defendant to establish due diligence on a BOP
 Three categories of offences
o MR required – true crimes, regulatory offences including “wilfully, knowingly,” etc
23
o No MR, but defence of due diligence (strict liability) – regulatory offences presumed to fit here
o No MR required (absolute liability) – clearly indicated by the legislature
Ratio
Regulatory offences are presumed to be strict liability
Reference re Section 94(2) of the BC Motor Vehicle Act
[1985] 2 SCR 486  CB 395
Facts

s 94(2) made driving with a suspended license an absolute liability offence, regardless if the accused knew the license
was suspended
 s 94(2) came with a mandatory minimum 7 day prison sentence
Issue
Does s 94(2) violate s 7 of the Charter?
Holding
Yes.
Reasons (Lamer J)

“absolute liability and imprisonment cannot be combined”
 ss 8 to 14 are key the the meaning of PFJ – they are essential elements of a system of justice founded on human dignity
and worth, and the rule of law
 PFJ are the inherent domain of the judiciary as guardian of the justice system
 Absolute liability allows morally innocent to be imprisoned, so offends PFJ
 Imprisonment incudes probation orders
 Regulatory offences can be absolute liability
 s 1 can only save a violation of s 7 in exceptional circumstances (war, natural disasters, epidemics, etc)
Ratio
Absolute liability cannot lead to imprisonment.
Homicide
Manslaughter





s 222 (5) manslaughter when death is caused by
o (a) unlawful act
o (b) criminal negligence
o (c) suicide caused by threats, fear of violence, deception
o (d) wilfully frightening a child or sick person
Residual charge to murder where MR cannot be proven
Sentence: up to life (236(b))
o No less than 4 years where a firearm is involved (236(1))
AR requirement
o Causing the death of a human
MR requirement under 222(5)(a), unlawful act manslaughter (Creighton)
o MR for underlying unlawful act (cannot be absolute liability)
o Objective foreseeability that the unlawful act gives rise to a risk of bodily harm neither trivial nor transitory
Second Degree Murder



s 231(7) all murder that is not first degree murder is second degree murder
AR requirement
o Causing the death of a human
MR requirement
o Subjective foresight of death  PFJ (Vaillancourt, Martineau)
o Meaning to cause death (229(a)(i))
o Meaning to cause bodily harm that he knows is likely to cause death, and is reckless (229(a)(2))(Cooper)
o Meaning to kill someone but killing someone else (229(b))
o For an unlawful object does anything he knows or ought to know is likely to cause death (229(c))
 “Ought to know” read down to save a s 7 violation (R v Martineau)
 Most often used in cases where accused does not intend to harm the victim, but is engaged in the pursuit of
an unlawful object (R v JSR)
 Test (JSR)

 For an unlawful object (kill another gangster)
 The accused did anything (got in a gunfight)
 That he knew was likely to cause the death of a human being
 Caused the victim’s death
o Transferred intent – only within the same crime (Fontaine)
Section 230 (felony murder) is not valid (Vaillancourt)
R v Simpson
(1981), 58 CCC (2d) 122 (ONCA)  CB 684
Facts

S is charged with 2 counts of attempted murder under 229(a) (intentional or reckless killing)
Reasons (Martin JA)

Either intent to kill, or recklessness satisfies the MR requirement
 Subjective MR, so accused must subjectively have knowledge the injury is likely to cause deat
Ratio
MR for murder is subjective.
R v Cooper
[1993] 1 SCR 146  CB 686
Facts

C remembers strangling the victim, but loses memory and wakes up when the victim is dead
Issue
Did C have the MR for murder?
Holding
Yes.
Reasons (Cory J)

Nygaard – MR is intent to cause such grave and serious bodily harm that the accused knew it was likely to result in
death; must, of necessity, be reckless
 MR must be concurrent with AR at some point
 A series of acts can form the same transaction
 MR did not need to persist throughout the strangulation, he knew it was likely to cause death before he blacked out
Ratio
MR and AR must be concurrent at some point. MR is intent to cause bodily harm the accused knew was likely to cause
death
R v Fontaine
(2002), 168 CCC (3d) 263 (MBCA)  CB 690
Facts

F was intent on committing suicide when he drove his car into a parked truck in the oncoming lane
 He survived, but a passenger in his car ws killed
Issue
Is F guilty of murder?
Holding
No.
Reasons (Steel JA)

s 229(b) says the specific intent for murder exists when intending to kill one person, the accused kills another by
mistake
 Parliament removed attempted suicide from the Criminal Code
 Transferred intent only applies within the same crime, because harm follows is the same legal kind as that intended
 Attempted suicide is not attempted murder
 Strict construction of penal legislation rule mitigates in favour of the accused
 Principles on constitutionality of MR (Creighton)
o Stigma and penalty reflects nature of crime
o Punishment is proportionate to moral blameworthiness
o Intentional harm must bring more severe punishment than unintentional harm
 First degree murder is the harshest sentence and stigma known to the law
 Suicide means the person needs treatment
Ratio
25
Attempted suicide does not satisfy MR for attempted murder. Transfer of intent only within the same crime.
R v JSR
2008 ONCA 544  CB 695
Facts
 JSR was one of the shooters in the Young Street Boxing Day shootout that killed Jane Creba.
 JSR did not shoot JC, but still was in the gunfight
Issue
Is JSR guilty of murder under 229(c)?
Holding
Yes.
Reasons
 Causation is analogous to the car race (R v Menzes)  each shooter consented to engage in a gunfight, and but for that
gunfight JC would not have been killed
 Test for first degree murder under 229(c) (unlawful object)
o For an unlawful object (kill another gangster)
o The accused did anything (got in a gunfight)
o That he knew was likely to cause the death of a human being
o Caused the victim’s death (substantially contributed to JC’s death by engaging in a gunfight, following causation
rules from Menzes)
Ratio
Test for 229(c) liability.
Vaillancourt v The Queen
[1987] 2 SCR 636  CB 703
Facts

s 213 (now 230) (felony murder) makes it murder when death is caused in the commission or attempt to commit a list of
crimes, if (d) he uses a weapon or has it upon his person
 V was an accomplice to a robbery, and thought his partner’s gun was unloaded. The partner shot a client at the pool hall,
and has never been found. V is charged with felony murder.
Issue
Is s 230 valid?
Holding
No. It must be severed.
Reasons (Lamer J)

PFJ require proof of a subjective MR
 Must be some special MR before homicide is murder  subjective foresight of death
 It would be possible for a conviction under s 213 despite the jury having a reasonable doubt as to whether the accused
ought to have known that death was likely to ensue
 Fails s 1 at minimal impairment
Ratio
s 230 is not valid
R v Martineau
[1990] 2 SCR 633  CB 710
Facts

Deceased was deliberately shot by M’s accomplice during a robbery M only thought was going to be a b&e
 M convicted under s 213 (now 230)
Issue
Is s 213 valid?
Holding
No.
Reasons (Lamer CJC)

Section removes Crown burden to prove subjective foresight of death
 It violates the PFK that punishment be proportionate to moral blameworthiness
 Stigma and punishment for murder must be reserved for those who have intent
 Section fails Oakes test on minimal impairment
 Flexible sentencing scheme for manslaughter is more appropriate

L’Heureux-Dubé (dissenting) – subjective MR is not required by any PFJ, too much concern for stigma, misplaced
compassion, criminals can fuck themselves
Ratio
Conviction of murder requires proof of subjective foresight of death (confirmed in R v Sit)
First Degree Murder





Sentence: life with no chance of parole for 25 years
231(2) first degree murder when it is planned and deliberate
o (3) murder for hire is first degree
o (4) first degree when accused knows victim is a law officer on duty
 Accused must subjectively know it’s an on duty cop (Collins)
o (5) first degree when caused in commission or attempt of:
 (a) hijacking an aircraft; (b) sexual assault ((c) sexual assault with a weapon; (d) aggravated sexual
assault); (e) kidnapping and forcible confinement; (f) hostage taking
 No same victim requirement (Russell)
o (6) during stalking where the accused intended to cause the victim to fear for his or someone else’s safety
o (6.01) first degree when death caused by terrorist activity
o (6.1) first degree when death caused in commission of offence for the benefit of, at the direction of, or in
association with a criminal organization
o (6.2) intimidation of a “justice system participant” or journalist
Planned (Widdifield)
o Calculated scheme or design
o Carefully thought out
o Nature and consequences have been carefully weighed
o May be very simple
o Time involved in developing the plan is important, not the time between the plan and the act
Deliberate (Widdifield, More)
o Considered, not impulsive, slow in deciding, cautious
o Took time to weigh advantages and disadvantages
Reckless killing
o Can be first degree murder when the recklessness is planned and deliberate (Nygaard)
o Planned to inflict bodily harm that the accused knew would likely result in death (Nygaard)
R v More
[1963] 3 CCC 289 (SCC)  CB 716
Facts

M was distressed about his financial affairs and planned to kill himself and his wife
 He led psychiatric evidence attempting to raise a reasonable doubt about it being planned and deliberate
Ratio
Deliberate means “considered, not impulsive”
R v Widdifield
(1961), 6 Crim LQ 152 (ONSC)  CB 717
Ratio
 Planned
o Calculated scheme or design
o Carefully thought out
o Nature and consequences have been carefully weighed
o May be very simple
o Time involved in developing the plan is important, not the time between the plan and the act
 Deliberate
o Considered, not impulsive, slow in deciding, cautious
o Took time to weigh advantages and disadvantages
R v Nygaard
[1989] 2 SCR 1074  CB 717
Facts
27
 N and his accomplice beat someone up, and he died
 Charged with first degree murder based on recklessness
Reasons (Cory J)

Vital element is intent to cause such bodily harm that the perpetrator knows that it is likely to cause death and yet
persists in the assault
 Planning and deliberate to cause bodily harm which is likely to be fatal must include planning and deliberating to
continue in that conduct despite the knowledge of the risk
 Recklessness acts in conjunction wit the intentional infliction of terrible bodily harm
Ratio
Reckless killing can be first degree murder, if the bodily harm likely to cause death and recklessness were planned and
deliberate.
R v Collins
(1989), 48 CCC (3d) 343 (ONCA)  CB 718
Facts

C killed a police office who was on duty and in his uniform
Issue
Can C be convicted of first degree murder without proof of planning and deliberation?
Holding
Yes.
Reasons (Goodman JA)

Vaillancourt – PFJ require at least objective foreseeability of death for murder conviction
 Stigma argument is much less relevant here
 First degree murder is just a classification, after murder has been established
 There is no distinction in intent between first and second degree murder
 Killing cops requires greater moral deterrent
 Crown must prove BARD that the accused had subjective knowledge the victim was an on duty police officer, or the
accused was reckless as to whether the victim was such a person so acting
 Charter is not offended because accused must have subjective knowledge that it is an on duty cop, not objective
knowledge
Ratio
Killing a cop is first degree murder
R v Russell
[2001] 2 SCR 804  CB 724
Facts

Charged with first degree murder because he murdered someone while his girlfriend was forcibly confined in another
room
Issue
Do the victims of the crimes in 231(5) need to be the same as the victim to qualify the murder as first degree?
Holding
No.
Reasons (McLachlin CJC)

Provision does not state the victims must be the same
 Other similar provisions don’t have a same victim requirement
 Principle: where murder committed by someone already abusing his power by illegally dominating another, it should be
treated exceptionally seriously
 Killing must be closely connected, temporally and causally, to the enumerated offence
Ratio
231(5) does not have a same victim requirement
R v Arkell
[1990] 2 SCR 695  CB 728
Facts

A killed the victim while sexually assaulting her
Issue
Is s 231(5) contrary to the Charter?
Holding
No.
Reasons (Lamer CJC)

Classification of murder is for sentencing, and does not create two substantive offences
 Offences in the section are those of unlawful domination
 The distinction is neither arbitrary or irrational, and there is a clear connection between the moral blameworthiness of the
offender and the stricter sentence
Ratio
s 231(5) does not offend s 7.
R v Luxton
[1990] 2 SCR 711  CB 730
Facts

L forced a taxi driver to drive him to a field where he murdered her
Issue
Is the sentencing requirement for murder constitutional?
Holding
Yes.
Reasons (Lamer CJC)

There is some sensitivity in sentencing because convicts of first degree murder can apply to the Chief Justice of the
province for a reduction in the non-eligibility for parole, after 15 years
 Dangerous offender is OK because it fits with the moral turpitude of the offence, and protects the public
 The sentencing provision is not arbitrary  narrowly defined; organizing principle (illegal domination); specifically
defined conditions under which it applies
 Cruel and unusual requires gross disproportionality that outrages the standards of decency
Ratio
Sexual Assault





Section 271
Sexual (Chase)
o Objective standard
o Part of body touched
o Nature of contact
o Situation in which it occurred
o Words or gestures accompanying the act
o Intent of person committing act
AR of sexual assault (Ewanchuk)
o Touching (objective)
o Sexual nature of contact (objective)
o Absence of consent (subjective) – based on complainant’s state of mind
MR of sexual assault – crime of general intent (Ewanchuk)
o Must be subjective (Darrach)
o Intent to touch
o Knowledge of, wilful blindness to, or recklessness toward, lack of consent
 No just when complainant says no, but when accused knew that the complainant was essentially not
saying yes
 Silence, passivity, ambiguous conduct are not consent
 When a person says no, the other person must wait for an unequivocal yes to start again
Consent
o Vitiated by (265(3))
 (a) Force
 (b) Threats or fear
 (c) Fraud
 (d) Exercise of authority
o No consent when (273.1(2))
 (a) Expressed by someone other than the complainant
 (b) Complainant cannot consent
 (c) Accused induces it by abuse of a position of authority
 (d) Complainant expresses lack of agreement
29


o Accused must take reasonable steps to obtain consent (s 273.2, Darrach)
o Where ambiguous, accused must have a clear yes (Cornejo)
Defence: honest mistake of fact (re: consent) (265(4))
o Accused honestly believed there was consent
o Negates MR
o Belief does not need to be reasonable (Pappajohn)
o Must have an air of reality (Osolin)
o Must be based on more than the accused’s statement (Osolin)
o Mistake must be honest, not sustained by wilful blindness (Sansregret)
o Accused must have taken reasonable steps to obtain consent (s 273.2(b), Darrach)
o Not available where belief arises from self induced intoxication or wilful blindness or recklessness (273.2(a))
Evidence of complainant’s sexual history
o Cannot be used to claim the complainant was more likely to consent, or is less credible (276(1))
o Can only be raised if it is of specific instances of sexual activity, is relevant, and probative value outweighs
danger of prejudice (276(2))
R v Chase
[1987] 2 SCR 293  CB 632
Facts

C grabbed the complainant by the shoulders and grabbed her breasts
Reasons (McIntyre J)
 Sexual assault is any assault where the victim’s sexual integrity is violated
 Test for sexual nature: “viewed in the light of all the circumstances, is the sexual or carnal content of the assault visible
to a reasonable observer”
 Factors
o Part of body touched
o Nature of contact
o Situation in which it occurred
o Words or gestures accompanying the act
o Intent of person committing act
Ratio
Defines “sexual”
Pappajohn v The Queen
[1980] 2 SCR 120  CB 633
Facts

P and the complainant got drunk at lunch and went to his house
 Later, she ran out naked with her arms tied behind her back
 P claimed mistaken belief in consent
Issue
Can an honest mistake of fact be exculpatory even if it is unreasonable?
Holding
Yes.
Reasons (McIntyre J)
 Defence of mistaken belief in consent must bear an air of reality, there was none here
 There must be some evidence beyond mere assertion of the belief by counsel
 Belief does not need to be reasonable, adopts Dickson J’s reasoning on this aspect
Dissent (Dickson J)

Intention or recklessness must be proven for all the elements, including absence of consent
 Mistake is a defence because it negates MR
 Defence must meat the air of reality test
 Reasonableness of the belief is not conclusive
 Circumstantial evidence in the case supports an honest but mistaken belief in consent
Ratio
Honest mistaken belief negates MR of sexual assault. Belief does not need to be reasonable.
Osolin v The Queen
[1993] 4 SCR 595  CB 640
Facts

s 265(4) was introduced after Pappajohn, provided that when mistaken belief in consent is alleged, the defence must
meet an air of reality
Issue
Does s 265(4) offend s 11(d)?
Holding
No.
Reasons (Cory J)
 Defence for which there is no evidentiary foundation should not be put to the jury
 Mere assertion by the accused is not enough
 Does not create a statutory presumption, only a tactical evidentiary burden
 Crown must still prove elements of the offence BARD
 It is possible for the jury to accept parts of both parties’ stories in accepting a defence of honest mistake
 Requirement that the testimonies must be the same could lead accused to lie
Ratio
Mistake of fact must have an air of reality. Mere assertion by accused is not enough
Sansregret v The Queen
[1985] 1 SCR 570  CB 642
Facts

S beat on his girlfriend and she consented to sex to stop the beatings twice
 S is charged with sexual assault, because he was wilfully blind to the fact that her consent was vitiated by duress
Issue
Can S plead honest but mistaken belief in consent?
Holding
No, because of wilful blindness belief wasn’t honest.
Reasons (McIntyre J)

Wilful blindness precludes honest mistaken belief
 S was aware of the likelihood of the complainant’s reaction to his threats, so to proceed with intercourse is selfdeception to the point of wilful blindness.
Ratio
Mistake must be honest, not sustained by wilful blindness.
R v Seaboyer
[1991] 2 SCR 577  CB 645
Facts
 s 276 created a rape shield whereby complainant’s previous sexual activity with anyone other than the accused could
only be introduced if it rebutted evidence of sexual activity adduced by the Crown, it established the identity of the
actual rapist, it was evidence of sex that took place on the same occasion
Issue
Does s 276 violate ss 7 and 11(d)?
Holding
Yes. It is not saved by s 1.
Reasons (McLachlin J)
 Concern is not with the legislation’s purpose, but its effect
 Evidence excluded will not necessary be of trifling weight
 Can form the basis of honest but mistaken belief
 Real risk an innocent person could be convicted
 L’Heureux-Dubé (dissenting) – no evidence regarding honest mistake is excluded
Ratio
Old rape shield law unconstitutional
NB: law in response to Seaboyer is constitution (R v Darrach)
R v Darrach
(1998), 122 CCC (3d) 225 (ONCA)  CB 650
Facts

s 273.2 requires the accused to demonstrate he took reasonable steps to ascertain whether the complainant consented
Issue
31
Is s 273.2 constitutional?
Holding
Yes.
Reasons (Morden J)

Sexual assault must have a subjective MR component because: general intent; can be prosecuted by summary
conviction; generic offence covering minor to severe offences; no minimum penalty; maximum penalty of 10 years;
sentence can be tailored
 The section still allows for subjective fault, because he must take reasonable steps in the circumstances known to the
accused at the time
 Does not require all reasonable steps be taken
 Does not require belief to be reasonable
 If the accused believes consent is ambiguous or unclear, he has a duty to abstain or obtain clarification.
Ratio
Defence of honest mistake only if accused took reasonable steps to ascertain consent
R v Cornejo
(2003), 188 CCC (3d) 206 (ONCA)  CB 655
Facts

C was drunk and alleges that by lifting her pelvis for C to take off her panties when she was passed out drunk, the
complainant consented to sex
Issue
Does C’s defence of honest mistake have an air of reality?
Holding
No.
Reasons (Abella J)
 Movements of the pelvis were not sufficient evidentiary basis to give the defence to the jury  giant leap of imagination
on the part of C
 Complainant told C on many occasions she didn’t want to have sex with him, including that night
 Circumstances cried out for reasonable steps to ascertain consent
 Reasonable steps must be taken before engaging in intercourse
Ratio
Reasonable steps must be taken if consent is ambiguous.
R v Ewanchuk
[1999] 1 SCR 330  CB 659
Facts

E sexually assaulted the complainant in the back of his van in the context of a job interview
 Complainant said no but did not show her fear, which E claims supports honest mistake
 Trial judge said consent was implied
Issue
Is consent objective, can it be implied?
Holding
No. No.
Reasons (Major J)
 AR of sexual assault
o Touching (objective)
o Sexual nature of contact (objective)
o Absence of consent (subjective) – based on complainant’s state of mind
 MR of sexual assault – crime of general intent
o Intent to touch
o Knowledge of, wilful blindness to, or recklessness toward, lack of consent
 No just when complainant says no, but when accused knew that the complainant was essentially not saying yes
 Silence, passivity, ambiguous conduct are not consent
 When a person says no, the other person must wait for an unequivocal yes to start again
 Trial judge misdirected himself when he considered the complainant’s actions, and not her subjective state of mind,
when determining consent
 Complainant’s fear vitiated her consent (s 265(3)(b))
 Defence: honest mistaken belief of consent
o
o
Negates MR
Consent in honest mistake
 Considered from the subjective perspective of the accused
 Did he believe the complainant communicated consent to engage in the act in question
 L’Heureux-Dubé (concurring) – rips on the trial judge for suggesting the complainant was promiscuous and was asking
for it
Ratio
Inchoate Offences
Attempt




24(1) having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention …
whether or not it was possible under the circumstances to commit the offence
24(2) remoteness (mere preparation) is a question of law
AR for attempt
o Next step after all the preparations are made (Cline)
o Decisive act in crime contemplated (Deutch)
MR for attempt
o For attempted murder: specific intent to kill (Ancio), subjective foresight death is likely to ensue (Logan)
o Generally: intent to do the actions beyond mere preparation (Dynar)
R v Cline
(1956), 115 CCC 18 (ONCA)  CB 572
Reasons (Laidlaw JA)

Steps in consummating a crime
o Idea develops to a decision
o Make a plan
o Preparation to carry out plan
o Next step is attempt
 Conclusions
o Must be MR and AR, but criminality is mostly in accused’s intention
o Evidence of similar acts is admissible to establish a pattern of conduct for MR
o Prosecution can advance such evidence without the defence raising a specific issue
o Not essential AR is illegal or even wrong
o AR must be more than mere preparation
o Next step after preparation with the intention to commit is attempt
Ratio
Attempt is the next step after mere preparation.
Deutch v The Queen
[1986] 2 SCR 2  CB 573
Facts

D indicated in the interview for his secretary that she would be required to have sex with clients
 He offered $100,000 a year for it
 Charged with attempting to procure females to have illicit sexual intercourse.
Issue
Were his actions mere preparation or attempt?
Holding
Attempt. Inducement would be the decisive act in procuring. New trial.
Reasons (LeDain J)

Distinction between preparation and attempt is qualitative, considering nature and quality of act in question and nature
of the complete act
 Proximity to complete offence judged by: time, location, acts under the accused’s control remaining to be accomplished
 Inducement would be the decisive act in procuring
 The inducement would not lost its status as attempt even if there was a long time between the interview and sex.
Ratio
Decisive act in completed crime constitutes attempt.
33
R v Ancio
[1984] 1 SCR 225  CB 574
Facts

A went to the apartment where his estranged wife was living with K with a loaded sawed off shotgun
 K threw a chair at A when he was coming up the stairs and the shotgun went off
Issue
Was this attempted murder?
Holding
No.
Reasons (McIntyre J)

Intent to commit the desired offence is the basic element of attempt
 Criminal element can lie solely in intent, AR does not need to be illegal
 MR for attempted murder must be specific intent to kill
Ratio
MR for attempted murder is the specific intent to kill.
R v Logan
[1990] 2 SCR 731  CB 576
Facts

L was involved in the robbery of a store and the wounding of the cashier
 He was charged with attempted murder
Reasons (Lamer CJC)

Ancio established specific intent to kill is MR for a principal in attempted murder
 Martineau held the MR for murder must be subjective foresight death was likely to ensue
 PFJ require minimum degree of MR for few offences, determined by stigma and penalty
 Attempted murderer is no less a killer than a murderer, and can get the same sentence
 MR for attempted murder must be subjective foresight of the consequences so as not to offend s 7 of the Charter
Ratio
MR for attempted murder is subjective foresight death is likely to ensue.
R v United States v Dynar
[1997] 2 SCR 462  CB 579
Facts

D was the subject of a failed sting and the US wants him extradited on money laundering charges
 D argues the fact that the money was not drug money so it was impossible to launder it
Issue
Is impossibility a defence to attempt?
Holding
No.
Reasons (Cory & Iacobucci JJ)
 24(1) says attempt exists regardless of impossibility
 Intent to commit and some act more than mere preparation is attempt
 D clearly had intent and took steps beyond mere preparation
 Imaginary crimes are ones that the accused thinks are illegal but actually aren’t
 Factually impossible crimes are thwarted by mere happenstance
 That a design is based on a mistake of fact doesn’t make it any less a design
 D was thwarted only by chance
 Knowledge is true belief
o Only belief is the mental element
o Truth cannot be part of the MR, because it exists objectively, not subjectively in the accused’s mind
o Knowledge as such is not part of MR for money laundering, only belief is.
 Motive is not important, the only thing that matters is what D believed he was doing: money laundering
 Only difference between attempt to do the possible and attempt to do the impossible is chance
Ratio
Impossibility is not a defence to attempt.
Counselling



Includes procuring, soliciting, inciting (22(3))
Two forms
o Inciting an offence actually committed (s 22)  form of participation
o Inciting an offence that is not committed (s 464)  inchoate liability
Test (Hamilton)
o AR: deliberate encouragement or active inducement of the commission of an offence
 Must actively induce or advocate, not merely describe (Hamilton)
o MR: accompanying intent or conscious disregard of the substantial and unjustified risk
 Intended the offence counselled to be committed
 Knowing counselled the commission of the offence while aware of the unjustified risk that the offence
counselled was in fact likely to be committed as a result of the accused’s conduct
R v Hamilton
[2005] 2 SCR 432  CB 588
Facts

H offered a “credit card number generator” for sale on the internet, and advertised it for fraud
 Also offered bomb recipes and information on how to commit burglaries
Issue
Is it incitement?
Holding
Yes. New trial.
Reasons (Fish J)

Trial judge confounded motive and intent when she let him off for only being in it for the money
 AR: actively induce or advocate, not merely describe
 “Counsel” includes “procure, solicit or incite” (s 22(3))
 Incitement increases the potential for harm to occur
 AR: deliberate encouragement or active inducement of the commission of an offence
 MR: accompanying intent or conscious disregard of the substantial and unjustified risk (intended offence to be
committed, or knowingly counselled the commission of the offence while aware of the unjustified risk the offence was in
fact likely to be committed”
 Charron J (dissenting) – only sufficient MR is intent the offence be committed, recklessness is not good enough
Ratio
Test for incitement
Conspiracy





Test (Dynar)
o Intention to agree, and to attain the common design
o Completion of an agreement
o Common design
AR
o Agreement
MR
o Intent to agree
o Intention to put the common design into effect
Cannot include a cop (Dynar)
Cannot attempt to conspire (Déry)
United States v Dynar
[1997] 2 SCR 462  CB 595
Facts

D was the subject of a failed sting and the US wants him extradited on money laundering charges
 D argues the fact that the money was not drug money so it was impossible to launder it
Issue
Is impossibility a defence to conspiracy?
Holding
No.
Reasons (Cory and Iacboucci JJ)
35

Conspiracy:
o Intention to agree, and to attain the common design
o Completion of an agreement
o Common design
 Agreement is key, not acts done in pursuance of it
 Must involve more than one person, though they might not all be capable of being convicted
 Each person must have a genuine intention to participate in the agreement, no liability for pretending to agree
 Cannot have conspiracy with a police informant, but conspiracy can exist between the other parties
 Two or more people can cause substantially more harm than two people working alone
 Conspirators betray a propensity and aptitude to commit crimes
 There is no difference between factual and legal impossibility, and impossibility is no defence to conspiracy
 AR: agreement
 MR: intent to commit the offence
Ratio
Conspiracy is all about the agreement.
R v Déry
[1006] 2 SCR 669  CB 600
Reasons (Fish J)

Attempting to conspire is not a crime
 No evidence accused took any steps to carry out the proposed theft
 No agreement to steal
 AR for counselling: deliberate encouragement or active inducement of the commission of a criminal offence
 High threshold for counselling is deliberate to avoid overbreadth
 Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed,
nor even attempted, by any of the parties to the discussions
 Criminal law should not police thought, so conspiracy should not reach too far
 Attempt to conspire creates a risk that a risk will materialize
Ratio
Attempt to conspire is not a crime. Cannot combine inchoate liability
Complete Offences
R v Legare
2009 SCC 56  CB 603
Facts

L chatted with a 12 year old and phoned her to “talk dirty”
 Charged with using a computer for the purpose of facilitating a sexual offence including sexual interference and sexual
touching with an underage child (s 172.1(b))
Reasons (Fish J)

Criminalizes conduct that precedes the commission of the sexual offence
 Offender need not intend to meet the victim with the view of committing the offences
 Facilitating includes helping to bring about and making easier or more probable – ex luring or grooming
 Accused’s intention must be determined subjectively
 The specific intent is required so as not to criminalize innocent behaviour
 Elements of the crime
o Intentional communication by computer
o With a person whom the accused knows or believes to be under 14 (now under 16)
o For the specific purpose of facilitating the commission of a specified secondary offence
 All three must be present
Ratio
Can have complete offences based on inchoate liability.
Participation
21(1) everyone is a party to an offence who
(a) Commits it
(b) Aiding (commission or commission)
(c) Abetting
21(2) where a group forms a common intention to carry out an unlawful purpose, each of them who knew or ought to have
known the commission of the offence would be a probable consequence of the common intention is a party to the offence.
22(1) Person is guilty of counselling even if the offence was committed in a way different than the counsel
22(2) Party liability to the counsellor for any offence he knew or ought to have known was a likely consequence of the
counselling
22(3) Counselling includes procure, solicit or incite
Principals



Where an accused acted in concert, there is no requirement to determine who struck the fatal blow (McMaster)
Aiding is legally the same as committing the crime (Thatcher)
Jury doesn’t need to decide if the accused was the principle or aided, it only needs to be unanimous that he was one or
the other BARD (Thatcher)
R v Thatcher
[1987] 1 SCR 652  CB 526
Facts
 T was a Saskatchewan MLA whose wife was murdered

Crown contended T either killed his wife or caused someone else to do it and was therefore party to an offence
Issue
Does the jury need to be unanimous over whether T aided or actually did it?
Holding
No, as long as they’re unanimous that it was one or the other.
Reasons (Dickson CJC)
 Aiding and abetting: intentional encouragement of assistance in the commission of the offence
 The actual perpetrator need not be identified
 Aider or abettor is legally in the same position as the principal  guilty of the offence he aided
 Crown is under no duty to separate different forms of participation into different counts
 Jury need not be unanimous of each piece of evidence, only must be unanimous about the material facts
 Because there is no distinction, the jury need not be unanimous over whether T killed her or aided it, just that he did one
or the other
Ratio
Aiding is the same as actually committing the crime from a legal perspective.
Aiding and Abetting





Aiding is legally the same as committing the crime (Thatcher)
Aiding
o Omitting to perform a legal duty is enough for aiding (Nixon)
o Parents not protecting their children for the purpose of aiding (Palombi)
o 21(2) where a group forms a common intention to carry out an unlawful purpose, each of them who knew or
ought to have known the commission of the offence would be a probable consequence of the common intention
is a party to the offence.
 Does not include the objective component where the Charter requires a subjective MR (Logan)
Not aiding
o Purchasing or aiding the purchase of drugs is not aiding trafficking (Greyeyes)
o Mere presence at the scene (Dunlop and Sylvester)
MR – subjective intent to commit the crime (Helsdon)
o Even if the crime is strict liability (Helsdon)
Common intention
o 21(2) where a group forms a common intention to carry out an unlawful purpose, each of them who knew or
ought to have known the commission of the offence would be a probable consequence of the common intention
is a party to the offence
o Situations where the principal offender commits an offence other than the offence planned
o Test
 Accused formed a common intention with others to carry out an unlawful purpose
 Accused assisted others in achieving such a purpose
 Any offence committed by any of the participants in the common intention makes all liable if it was
37

 A probable consequence of the unlawful purpose OR
 The accused knew or ought to have known that probability
Defence of abandonment (R v Whitehouse)
o Must be timely communication of intention to abandon where practicable and reasonable
o Abandonment relieves criminal liability for the common intention
R v Greyeyes
[1997] 2 SCR 825  CB 531
Facts

G brought an undercover cop to a drug dealer’s house, helped them negotiate a price, and passed on money to buy
cocaine
 The cop gave G 10$ for his services
 He was charged with aiding and abetting trafficking
Issue
Did G’s actions constitute aiding and abetting?
Holding
Yes.
Reasons (L’Heureux-Dubé J)
 Need to be careful not to extend aiding and abetting too far WRT trafficking
 Purchasing is not in itself aiding and abetting trafficking
 No liability for third parties who assist the purchaser
 Advantages: punishment accords with the crime, symmetry because the aid is to the purchaser, not the trafficker and
incidentally benefits the seller
 G went beyond this, located seller, brought the buyer to him, acted as a spokesman, negotiated the price, passed the
money, accepted money for helping  not the acts of a mere purchaser
 Cory J (concurring) – no reason to extend exception for purchasers to those who encourage or assist them
Ratio
Aiding the purchase of drugs is not aiding their trafficking.
Dunlop and Sylvester v The Queen
[1979] 2 SCR 881  CB 537
Facts

D and S were present briefly at a dump where a girl was being gang raped by some bikers
Issue
Were they aiding and abetting?
Holding
No.
Reasons (Dickson J)

Abets means encourages, supports, upholds
 Mere presence at the scene cannot ground culpability, need more: encouragement, facilitation (ex keeping watch),
preventing interference
 Non-accidental presence is not conclusive of aiding and abetting
 There is no duty to rescue; “it is no criminal offence to stand by” – “hardened urbanite who stands around in a subway
station when an individual is murdered”
 Aiding and abetting is established if he understood what was taking place and by some act on his part encouraged or
assisted in its attainment
 Distinction between presence with prior knowledge and accidental presence
 There was no more than mere presence and passive acquiescence here, no positive act or omission to facilitate unlawful
purpose
 Martland J (dissenting) – evidence on which the jury could have found aiding and abetting
Ratio
No liability for mere presence at the scene.
R v Jackson
[2007] 3 SCR 514  CB 542
Facts

J was found at a marijuana grow op in the middle of the bush
 He claims mere presence
Issue
Was J aiding and abetting?
Holding
Yes
Reasons (Fish J)

Liability based on apprehension at the scene, rejection of his explanation for being there, particular nature of the
offence, the context in which it was committed, circumstantial evidence of guilt
 Mere presence at the scene in circumstances consistent with innocence will not support a conviction
Ratio
R v Nixon
(1990), 57 CCC 93d) 97 (BCCA)  CB 543
Facts

N was the sergeant at the Vancouver police lockup
 A prisoner, J, was beaten in the interrogation room after giving a false name
 N was not in the room, but was aware of what was going on
Issue
Did N’s omission to act fix him with criminal liability?
Holding
Yes
Reasons (Legg JA)

N was present at the time of the assault and knew what happened
 He had a duty to protect J
 Failed to discharge that duty, and by that omission, was guilty of aiding and abetting
 Police officers have a duty to involve themselves grounded in legislation
 Parents have a legal duty under common law to take reasonable steps to protect their children
 A failure to act in accordance with a duty to act may be an omission to do something for the purpose of aiding and
abetting
Ratio
Not performing a legal duty is sufficient for aiding and abetting.
R v Helsdon
216 CCC (3d) 1 (ONCA)  CB 545
Facts

H was a newspaper reporter charged with aiding a publisher in breaching a publication ban by submitting a story that
contained the name of a complainant in a sexual assault case
Issue
Was H guilty of aiding?
Holding
No
Reasons (O’Connor ACJO)
 Intent required for breaching a publication ban does not require subjective knowledge of the ban’s existence
 Preparing and filing the article is sufficient AR for aiding and abetting
 Aiding must be for the purpose of committing the offence – even strict liability offences require intent for aiding
 MR includes knowledge of the circumstances which constitute the offence
 21(1)(b) requires a subjective MR, even when liability for the principal is strict
 Makes sense to require a higher MR for a crime they didn’t commit
 A person may be convicted of manslaughter who aids or abets another person in the offence of murder where a
reasonable person would have appreciated that bodily harm was the foreseeable consequence of the dangerous act
 To found a conviction for abetting, Crown must prove the accused intended his words or acts encourage the principal
Ratio
Aiding requires subjective intent to aid the commission of the crime, even where the crime is strict liability.
R v Popen
(1981), 60 CCC (2d) 232 (ONCA)  CB 549
Facts

P’s wife mistreated their infant daughter
39
 P was charged with manslaughter as a party to the wife’s offence
Issue
Can P be a party to his wife’s offence?
Holding
Yes.
Reasons (Martin JA)
 No evidence P had done or omitted anything for the purpose of aiding his wife inflict the injuries to the child
 Person who is present at the commission by another of an illegal act, which he has a duty to prevent, may by mere
inactivity encourage the illegal act
 It would have been open to a jury to find P was criminally negligent in failing to protect his child, when under a duty to
do so, and that failure contributed to the child’s death
 Providing the “necessaries of life” includes necessary of protection of a child from harm
 Parent is under a legal duty at common law to take reasonable steps to protect the child from violence caused by the
other parent or a third party.
Ratio
Parents have a duty to protect their children.
R v Palombi
(2007), 222 CCC (3d) 528 (ONCA)  CB 542
Facts

Ten days after P brought her kid home from the hospital, doctors discovered signs of abuse
 Evidence indicated if the child was abused, it was either P or her partner
Issue
Is mere knowledge of abuse enough to found party liability, even where there is a duty to protect?
Holding
No.
Reasons (Rosenberg JA)

By failing to intervene to protect the child, P did something that had the effect of assisting the other parent in assaulting
the child
 It was not enough P knew the child was being abused, but that her actions or her failure to act were for the purpose of
assisting or encouraging the commission of the offence
 Knowledge can be found in an inference of intention, it alone cannot constitute MR
 MR must include intention to aid and abet the commission fo the crime
 Intention is subjective
 On the facts, the failure to protect the child for the purpose of aiding was not inevitable, so there must be a new trial
Ratio
MR for party liability includes knowledge and intent. Mere knowledge is not enough.
R v Kirkness
[1990] 3 SCR 74  CB 553
Facts

K and S broke into a house when they were drunk to rob it
 S went into the resident’s room and raped her while K stood guard and robbed the house
 S dragged the victim out of the room and strangled her, K told him not to
Issue
Did K aid and abet S in murder and sexual assault?
Holding
No.
Reasons (Cory J)

K can only be guilty of murder or manslaughter if he was found to be a party to the sexual assault
 Sole evidence implicating him in tis was that he blocked the front door while he knew S was raping the woman
 No evidence K knew or had any reason to believe death was likely to result from the sexual assault
 No evidence K was party to the murder
 Fact that he told S to stop when he say him strangling the victim indicates that if K had been party to any offences, from
that point on he had removed himself from any joint enterprise with S that involved killing the victim
 Wilson J (dissenting) – distinguishing between mere acquiescence and encouragement is difficult
o Must show a common intention – there was one here
o Test for party liability
o
o
o
o
o
Ratio
 Commission of the ultimate offence must be probable
 Accused must know or ought to have known of the probability
Violence so often accompanies sexual crimes that it is implicit in the very nature of the offence that some harm
short of death is probable
Abandonment – defence usually applied to common intent provision
 Main issue is the quality of the withdrawal in relation to both the offence and the type of criminal participation
 Attempts to stop or prevent the crime which are insufficient to exculpate must be considered at sentencing
Open to the jury K did more than passively watch
21(2) is for consequential offences which were not committed nor aided or abetted by the accused, but which
resulted from the prosecution of the original offence
 Liability where the accused knew or ought to have known the offence committed would be a consequence of
the offence he aided
 Must be similar type, and contemporaneous for 21(1) liability
 21(2) is for instances where there has been a break in time between two offences, and offence actually
committed follows after, but as a consequence of the offence originally planned
 No assistance needed, only probability of the offence occurring in the offence aided
Sexual assault has a possible consequence of bodily harm, so manslaughter is open to the jury here
R v Logan
[1990] 2 SCR 731  CB 561
Facts

L was involved in a robbery where the cashier was seriously wounded
 He was charged with attempted murder
Issue
Was he guilty of attempted murder based on objective foreseeability of death?
Holding
No.
Reasons (Lamer CJC)

It is not a PFJ that a party to an offence must have the same standard of MR as the principal
 Objective component of 21(2) could restrict s 7 rights in some cases, where the offences fit into the criteria discussed in
Vaillancourt as requiring subjective MR
 MR for attempted murder must be subjective foresight
 Must read down words “or ought to have known” in 21(2) when considering whether a person is party to an offence
where the Charter requires a subjective MR (like attempted murder)
Ratio
21(2) does not include an objective component for crimes for which the Charter requires a subjective MR
Counselling


s 22 provides liability for counselling a crime that was actually committed
Liability where counselling is decisive in the motivation of the one who committed the crime (O’Brien)
R v O’Brien
2007 NSCA 3  CB 564
Facts

O sold drugs to B regularly
 O told B to rob a depanneur to get money so he could sell her drugs
Issue
Is O guilty of counselling?
Holding
Yes.
Reasons (Hamilton JA)

B had not made up her mind to rob the store before she talked to O
 Motive is not an element of counselling, it can be taken into account when considering intent
 O was supportive of the robbery: told her it would be easy, she did not have to worry, and she should paint her face
Ratio
41
Accessory After the Fact




Defined by ss 23, 23.1, and 463
o 23(1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the
offence, receives, comforts or assists that person for the purpose of enabling that person to escape
Accessory is not a party to the offence, but rather a purpose in a distinct offence of facilitating the escape
Conviction is not contingent on the conviction of a party to the offence
Accessory must know the principal committed a crime (Duong)
R v Duong
(1998), 124 CCC (3d) 392 (ONCA)  CB 566
Facts

D’s friend L told D that he (L) was “in trouble for murder” and asked to stay at his place
 D didn’t inquire any further, and let L stay with him
Issue
Can D’s wilful blindness satisfy the MR for accessory after the fact?
Holding
Yes.
Reasons (Doherty JA)

Accessory must know the principal committed the offence when the assistance was provided
o Knowledge of the offence is sufficient
 Accessory after the fact to murder has its own penalty, which is more severe than accessory to other crimes (s 260 vs s
463)
 Where the Crown proves the existence of a fact and knowledge of that fact is a component of MR for the crime, wilful
blindness to the existence of the fact is sufficient to establish MR
 Actual suspicion and a conscious decision not to make inquires to confirm the suspicion constitution wilful blindness
(both are subjective)
Ratio
Accessory must know the principal committed a crime.
Defences
Necessity




Common law defence, recognized in Canada since 1984 (Perka)
Excuse, not a justification
Test (Perka)
o Imminent peril or danger (modified objective standard)
o No reasonable legal alternative (modified objective standard)
o Proportionality between harm inflicted and harm avoided (objective standard)
Does not apply to
o Murder (Dudley and Stephens, Latimer)
Morgentaler v The Queen
[1976] 1 SCR 616  CB 880
Facts

M performed an illegal abortion
 He claimed necessity because without the abortion the woman “might do something foolish”
Issue
Can he use necessity as a defence?
Holding
No
Reasons (Dickson J)

Necessity cannot justify: killing (R v Dudley and Stephens), the starving stealing food, squatting by the homeless
 If a necessity defence does exist, it only does so to justify non-compliance in urgent situations of clear and immediate
peril when compliance with the law is demonstrably impossible
 Test for necessity
o In good faith the accused considered failure to abort could endanger life or health
o Upon a reasonable view of the facts compliance with the law was impossible
 Necessity cannot arise out of purely economic circumstances
Ratio
Introduced the possibility for necessity defence.
R v Morgentaler et al
(1985), 22 CCC (3d) 353 (ONCA)  CB 883
Reasons

Necessity must be based on truly involuntary action
 Compliance with the law must be demonstrably impossible – no legal way out
 Here, the accused consciously agreed to violate the law
 Defence is not premised on dissatisfaction of the law
 Law cannot create necessity, only the facts can
Ratio
Necessity only available where there is no legal way out.
Perka v The Queen
[1984] 2 SCR 232  CB 884
Facts

P was an officer on a ship that was forced to port in a storm
 The ship was carrying 34 tons of marijuana from Colombia to Alaska
 The officers and crew were charged with importing a narcotic and possession for the purpose of trafficking
Issue
Is necessity a defence for the charge of importing?
Holding
Yes.
Reasons (Dickson J)

Necessity is an excuse – realistic assessment of human weakness
 Compliance with the law must be demonstrably impossible – action must be involuntary
 Situation must be urgent and peril imminent
 Must ask: was there a legal way out? – reasonable legal way out invalidates the defence
 Response must be proportional
 Onus on the crown to disprove BARD where there is an air of reality
 Wilson J (dissenting) – necessity might be used as a justification sometimes, and this would reduce the imminence
requirement
Ratio
Necessity is available in “an urgent situation of clear and imminent peril when compliance with the law is demonstrably
impossible”
Latimer v The Queen
[2001] 1 SCR 3  CB 890
Facts

L killed his critically disabled daughter
 Claimed necessity because she was in pain and would have undergone more horrible surgery
Issue
Was there an air of reality to the defence of necessity?
Holding
No.
Reasons (The Court)

Necessity requires true involuntariness
 Perka test – imminent peril, no reasonable legal alternative, proportionality
 Not enough that peril is foreseeable or likely, must be on the verge of transpiring or virtually certain to occur
 Two harms must be, at a minimum, of comparable gravity
 Modified objective test for first two steps – objective evaluation taking to account situation and characteristics of the
particular accused
 Proportionality is assessed with an objective test
 Gravity of act is matter of community standards infused with constitutional considerations
 Jury is only left with the defence if there is an air of reality
Ratio
43
Peril must be imminent, not just foreseeable.
Duress





Codified in restrictive form in s 17
o Offence committed under compulsion by threats of immediate death or bodily harm from a person who is
present when the offence is committed is excused if the person believes the threats will be carried out
o Does not apply to treason, murder, piracy, attempted murder, sexual assault (with a weapon, aggravated),
threats causing bodily harm, forcible abduction, hostage taking, robbery, assault with a weapon (causing bodily
harm, aggravated), arson, abduction of young persons
o Only for principals (Paquette)
o “Immediate” and from a person who is “present when the offence was committed” are read down (Ruzic)
o Accused must believe the threat will be carried out.
Common law defence of duress
o Legitimate because the Code preserves common law excuses and justifications (s 8(3))
o Available for parties to an offence (Paquette)
o Available for murder (Paquette) and attempted murder (Hibbert)
o Test
 Threats (serious)
 No safe avenue of escape in accused’s perception of the facts
 Objective standard, considering context and accused’s human frailties (Hibbert)
Defence can raise a reasonable doubt about whether the accused has MR
Duress does not negate intent to be a party to a crime (Hibbert)
Not available where there is a safe avenue of escape (Mena)
Paquette v The Queen
[1977] 2 SCR 189  CB 904
Facts

C told P to drive him to the Pop Shoppe, and threatened to kill P with a gun if he didn't
 The robbery went bad, and resulted in murder
Issue
Is duress available for P?
Holding
Yes.
Reasons (Martland J)

Section 17 is limited to principals
 Duress is available to a person who aided and abetted a murder, and it is also available as a defence to charges under
21(2)
Ratio
Common law defence of duress available for parties to crimes; s 17 only available for principals
R v Mena
(1987), 34 CCC (3d) 304 (ONCA)  CB 907
Reasons

Section 17 is only available for principals, not for liability under 21(1)(b) or (c), or 21(2)
 Section 17 requires subjective assessment of the accused’s belief
 Where on the facts not in dispute the accused had an obvious safe means to escape and no reasonable jury could come to
any other conclusion, the judge is entitled to hold, as a matter of law, that the defence of duress is unavailable
Ratio
Duress only available where there is no safe means of escape
R v Hibbert
[1995] 2 SCR 973  CB 909
Facts

H was friends with the victim
 X made H call his friend down to the lobby so X could kill the friend, threatening to kill H if he didn’t
 H stood by while X shot the victim
Issue
Did duress negate H’s MR for attempted murder?
Holding
No.
Reasons (Lamer CJC)

Paquette says duress can excuse conduct or negate MR
 Situations where duress negates MR will be exceptional
o Structure of the offence requires a specific MR which duress can negate
o In these situations, accused can point to duress when guilt is being assessed
 Purpose does not mean desire in 21(1)(b), synonymous with intention
o Cannot be negated by duress
 Duress is a freestanding offence, it does not negate AR or MR
o Invoked despite being found guilty of the crime
 Particular variety of necessity
 Safe avenue of escape
o Existence of safe avenue of escape means compliance with the law was not demonstrably impossible
o Determined objectively taking into account circumstances and human frailties of the accused
o Must consider accused’s perception of the facts
Ratio
Duress does not negate the MR in most cases, but operates as a freestanding excuse after guilt is established.
R v Ruzic
[2001] 1 SCR 687  CB 917
Facts

M threatened to kill R’s mother if she did not act as a drug mule
 M was arrested at the airport for unlawful importation of a narcotic
Issue
Are the requirements of immediacy and presence of threatening party contrary to s 7 of the Charter?
Holding
Yes.
Reasons (LeBel J)

Withdrawal of a defence does not generally violate s 7, especially when a defence is inconsistent with the offence
prescribed, in that it would excuse the very evil which the offence seeks to prohibit or punish
 Test for PFJ
o Consider nature, sources, rationale, essential role within legal system
o Capable of being articulated with precision
o More than broad generalization about ethical or moral beliefs
o Measure of consensus
 Morally involuntary conduct is not always free from blame
 Necessity and duress are concessions to human frailty
 It is not a PFJ that morally involuntary acts should not be punished
 Basic principle that absence of volition is always a defence
 Moral involuntariness does not negate AR or MR, it deserves protection under s 7
 Immediacy and presence requirements preclude threats of future harm
 S 17 must include threats against third parties
 Immediacy and presence criteria invalidate the defence in hostage or other third party situations – violates the Charter
 Common law defence does not have the immediacy requirement
 Threats of furture harm are sufficient to invoke common law defence
 Must be a close temporal link between the threat and the commission of the offence
 Proportionality and lack of safe avenue of escape are central to the defence
Ratio
Immediacy and presence requirements in s 17 violate the Charter.
Entrapment


Generally arises in consensual crimes, where the participants don’t complain to the police
Procedural issues
o Results in a stay of proceedings
o Matter for the judge, not the jury
o Accused must demonstrate entrapment on a BOP


45
Test for entrapment (Mack)
o Authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion
that the person is already engaged in criminal activity or pursuant to a bona fide inquiry
o Police go beyond providing an opportunity and actually induce the commission of the offence
Factors to consider (Mack)
o Type of crime involved and availability of other techniques for detection
o Average person in the position of the accused would be induced to commit a crime
o Persistence and number of attempts made by police
o Type of inducement (deceit, fraud, trickery, reward)
o Timing (whether the police have investigated the offence or became involved in on going activity)
o Whether police conduct exploits human characteristics such as compassion, sympathy, friendship
o Whether the police have exploited a vulnerability like a handicap or substance addiction
o Proportionality between police involvement and accused’s act, commission of illegal acts by the police
o Threats made by the police
o Police conduct directed at undermining constitutional values
R v Mack
[1988] 2 SCR 903  CB 143
Facts

M was a former drug user with several convictions
 He was repeatedly asked by an undercover cop to supply drugs, and threatened when he refused
 After repeated attempts by the cop, the accused delivered 12 ounces of cocaine, and was charged with trafficking
Issue
Was the defence of entrapment available?
Holding
Yes.
Reasons (Lamer J)

Crucial distinction between providing an opportunity to commit a crime, and the state creating a crime for the purposes
of prosecution
 Concern in entrapment is law enforcement techniques that involve conduct the citizenry cannot tolerate – evidence or
convictions can at times be gained at too high a price
 Police conduct will rarely negate AR or MR
 Threats by police will be highly relevant
 Focus is on the police conduct
 Test for entrapment
o Authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion
that the person is already engaged in criminal activity or pursuant to a bona fide inquiry
o Police go beyond providing an opportunity and actually induce the commission of the offence
 Objective assessment of police conduct
 Must be a sufficient connection between past conduct and provision of an opportunity
 Whether the police went beyond an offer, accused’s predisposition does not matter because the standard is objective
 Police cannot engage in random virtue testing
 Factors to consider
o Type of crime involved and availability of other techniques for detection
o Average person in the position of the accused would be induced to commit a crime
o Persistence and number of attempts made by police
o Type of inducement (deceit, fraud, trickery, reward)
o Timing (whether the police have investigated the offence or became involved in on going activity)
o Whether police conduct exploits human characteristics such as compassion, sympathy, friendship
o Whether the police have exploited a vulnerability like a handicap or substance addiction
o Proportionality between police involvement and accused’s act, commission of illegal acts by the police
o Threats made by the police
o Police conduct directed at undermining constitutional values
 Entrapment is a question for the judge, not the jury
 Onus is on the accused on a BOP – he is not entitled to an acquittal, the Crown is disentitled to a conviction
Ratio
Defines entrapment
R v Barnes
[1988] 2 SCR 893  CB 149
Facts

Police “buy and bust” operation in an area where drug dealers were known to operate
Issue
Was it random virtue testing?
Holding
No, bona fide inquiry.
Reasons (Lamer CJC)
 Exception to the rule the police can only present the opportunity  bona fide inquiry in an area where it is reasonably
suspected criminal activity is occurring
 Location must be defined with sufficient precision
 Police can present any person associated with the area the opportunity to commit an offence
 Police need reasonable suspicion that
o Person is already engaged in the particular criminal activity
o Physical location with which the person is associated is a place where the particular criminal activity is likely
occurring.
Ratio
Police can present opportunity in the course of a bona fide inquiry
Ignorance of the Law



Section 19 says ignorance of the law is no defence
Not knowing your license is suspended is a mistake of fact (Pontes)
Colour of right
o No offence if there is colour of right (Howson)
o Accused has an honest belief the act is justified
R v Howson
[1966] 3 CCC 348 (ONCA)  CB 502
Facts

H worked for a towing service, and refused to return someone’s car until he paid certain expenses
 H was charged with theft
Issue
Holding
Reasons (Porter CJO)

There is no offence if there is colour of right
 For colour of right, tribunal must be satisfied the accused acted upon an honest, but mistaken belief that the right is based
upon either fact or law, or mixed law and fact
 Magistrate should have considered colour of right, which would in this case lead to acquittal
Ratio
Colour of right is a defence; ignorance of the law is not.
Jones and Pamajewon v The Queen
[1991] 2 SCR 821  CB 504
Facts

J+P were charged with operating an unlawful bingo
 They were operating it on a reserve, where they renounced the jurisdiction of federal and provincial governments
 They claim mistake WRT the law
Reasons

The defence of honest mistake is not available for this crime
 Any mistake here is a mistake of law, which is no offence
 Mistake is in believing the law does not apply, which is not a mistake of fact
Ratio
Mistake of law is no defence.
47
R v Pontes
[1995] 3 SCR 44  CB 516
Facts

Decided based on the new provision made to replace the impugned one in BC Motor Vehicle Reference
 Motor Vehicle Act provided absolute liability for driving with a suspended license even if the accused didn’t know his
license was suspended
Issue
Is a license suspension a legal or factual element?
Holding
Fact.
Reasons (Cory J)

Defence of due diligence must be available for strict liability
 In this case the only defence is ignorance that the license was suspended  therefore it must be a mistake of fact to save
the constitutionality of the section.
Ratio
Not knowing you have a suspended license is a mistake of fact.
Officially Induced Error


Test (Jorgenson)
o Error of law or mixed law and fact
o Accused considered legal consequences of his actions
o Advice came from an appropriate official
 Government official involved in the administration of the law in question – accused would normally
consider responsible for advice about the particular law in question
o Advice was reasonable
 Presumed reasonable unless it is on its face “utterly unreasonable”
o Advice was erroneous
o Accused relied on the advice
 Advice obtained before actions in question
Procedure
o Accused must prove on a BOP
o Question for the judge to decide
o Results in a stay of proceedings
Molis v The Queen
[1980] 2 SCR 356  CB 507
Facts

M manufactured MDMA for a long time, beginning before it was criminalized
 He was charged after it was criminalized, but claimed ignorance of the law and due diligence ascertaining the law
Ratio
Defence of due diligence in Sault Ste Marie is of due diligence in relation to the fulfilment of a duty imposed by law and not
in relation to the ascertainment of the existence of a prohibition or interpretation
R v Cancoil Thermal Corporation
(1986), 27 CCC (3d) 295 (ONCA)  CB 507
Facts

Safety inspector examined a new piece of machinery and said it was OK
 It wasn’t safe, and C was charged
 C claims officially induced error
Issue
Is officially induced error an available defence?
Holding
Yes.
Reasons (Lacourcière JA)

Modern society characterized by intense involvement in a complex society by all levels of Government with
corresponding reliance
 So long as mistake of law is no defence, there must be a defence of officially induced error
 Defence available where accused reasonably relied upon erroneous legal opinion or advice of an official who is
responsible for the administration or enforcement of the particular law
Consider efforts made to ascertain the proper law, complexity or obscurity of the law, position of the official, clarity
definitiveness and reasonableness of advice
 Accused proves misleading by a BOP
Ratio
Accepts defence of officially induced error

R v Jorgenson
[1995] 4 SCR 55  CB 508
Facts

J sold a movie that the Ontario Film Review Board said was OK
 The Crown says it’s obscene
Issue
Is officially induced error available to J?
Holding
No, because it was not raised in the courts below.
Concurrence (Lamer CJC)

Rationale for ignorance of the law not being a defence
o Allowing the defence would bring evidentiary problems
o Ignorance of the law is not socially desirable
o Every person could be a law unto himself
o Ignorance of the law is blameworthy in itself
 Officially induced error should be a defence
 Exception to ignorance not being a defence – unpublished law, colour of right
 Due diligence is separate from officially induced error, due diligence in ascertaining the law is no excuse
 Due diligence is a full defence, officially induced error does not engative culpability
 For most true crimes, the defence is unlikely to be available
 Test
o Error of law or mixed law and fact
o Accused considered legal consequences of his actions
o Advice came from an appropriate official
 Government official involved in the administration of the law in question – accused would normally consider
responsible for advice about the particular law in question
o Advice was reasonable
 Presumed reasonable unless it is on its face “utterly unreasonable”
o Advice was erroneous
o Accused relied on the advice
 Advice obtained before actions in question
 Procedurally similar to entrapment
 Accused must prove the elements on BOP
Ratio
Test for officially induced error, though not officially recognized.
Lévis (City) v Tétrault
[2006] 1 SCR 420  CB 542
Ratio
SCC accepts officially induced error test in Jorgenson
Self Defence
34(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the
force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend
himself.
Test for 34(1) (R v Kong)
1. Unlawful assault
2. Assault was not provoked
3. No apprehension of death
4. Lack of intent to kill or cause grievous bodily harm
5. Force used is no more than necessary for self defence
49





34(2) everyone who is unlawfully assaulted and causes death or grievous bodily harm in repelling the assault is justified
if
o he is under a reasonable apprehension of death or grievous bodily harm
o he believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily
harm
Test for 34(2) (Pétel, Cinous)(each step has a subjective and an objective component, and both must have an air of
reality
o Unlawful assault
o Reasonable apprehension of a risk of death or grievous bodily harm
 Danger does not need to be imminent (Lavallee)
o Reasonable belief it is not possible to preserve oneself from harm except by killing the adversary
Can be provoked
Can have the intention to kill
Excessive force can disentitle the accused the ability to raise the defence (Faid)
37 (1) everyone is justified in using force to defend himself or any one under his protection from assault, if he uses no more
force than is necessary
 “any one under his protection” is interpreted generously – means anyone who requires protection which the accused may
be able to provide
 37 is a residual defence, where 34 does not apply. Examples:
o Responded with force having provoked an assault but did not apprehend death or grievous bodily harm
o Intended to cause grievous bodily harm or death despite not apprehending a reasonable risk of death
R v Bogue
(1976), 30 CCC (2d) 403 (ONCA)  CB 933
Facts

B’s boyfriend M was beating on her
 The neighbours came up to see what was happening and found B on the floor and M beating her; they left to call the
police
 When the police got there B had stabbed M, claiming self defence
Issue
Is self defence an available excuse?
Holding
Yes.
Reasons (Howland JA)

34(1) is for when the force is not intended to be deadly
 34(2) is for intentional killing – no
o Reasonable apprehension of death or grievous bodily harm (objective)
o Reasonable belief the accused cannot preserve himself otherwise (subjective-objective) – can be a mistaken belief
 34(2) realizes sober reflection is impossible where life is in the balance
 Must consider accused’s state of mind
Ratio
Must consider 34(2) from the accused’s point of view, compare it to reasonable person
R v Pawliuk
(2001), 151 CCC (3d) 155 (BCCA)  CB 937
Facts

P saw Pr running across the street at him, P thought Pr was armed and intended to kill him
 P shot Pr and claimed self defence
Issue
Is either 34(1) or 34(2) available?
Holding
Only 34(2).
Reasons (Ryan JA)

Sections are differentiated by a reasonable apprehension of death or grievous bodily harm; lack of intention is not
determinative
 P’s entire defence was premised on a belief the victim was going to kill him
 Improper to focus on intent in differentiating the sections
 Pintar held that if there is a reasonable apprehension of death, the response need not be proportional
Ratio
34(2) applies where there is a reasonable apprehension of death. There is no proportionality requirement.
Reilly v The Queen
[1984] 2 SCR 396  CB 943
Facts

Accused claims trial judge erred in not instructing the jury to consider evidence of his intoxication when considering his
claim of self defence
Reasons (Ritchie J)
 Apprehension of death must be reasonable and his belief must be based upon reasonable and probable grounds
 Must consider acused’s appreciation of the situation and his belief as to the reaction it required, so long as there is an
objectively verifiable basis for his perception
 Mistaken perception still grounds self defence, as long as the mistake is one the reasonable man would have made in the
circumstances
 Intoxication can be a factor in inducing honest mistake, it cannot induce a mistake which must be based upon reasonable
and probable grounds  the reasonable man isn’t drunk
 An intoxicated man may still hold a reasonable belief, but that would be held in spite of his intoxication
Ratio
Apprehension of death must be reasonable and his belief must be based upon reasonable and probable grounds
R v Faid
[1983] 1 SCR 265  CB 945
Ratio
Excessive force in self defence does not leave open a partial defence, nor does it reduce murder to manslaughter. The
difference between murder and manslaughter is determined with reference to intent described in s 212.
R v Cinous
[2002] 2 SCR 3  CB 946
Facts

C was a gangbanger who thought the other guys he was working with were going to kill him
 He shot one of them in the back of the head at a gas station, and claims self defence
Issue
Was his apprehension of death reasonable enough to ground a defence in 34(2)?
Holding
No.
Reasons (McLachlin CJC & Bastarache J)

Three conditions of self defence were not met, so the defence lacked an air of reality
 Test for 34(2)
o Unlawful assault
o Reasonable apprehension of a risk of death or grievous bodily harm
o Reasonable belief it is not possible to preserve oneself from harm except by killing the adversary
 All three steps must have an air of reality for the defence to be put to the jury
 Accused’s perception is subjective, but must be reasonable based on his perception of the situation
 Each step has a subjective element, then an objective analysis of reasonableness  each must have an air of reality
 Existence of unlawful assault is not necessary, just a reasonable perception on the part of the accused
 The defence here fails on the objective branch of the third step – it was not reasonable for the accused to believe he had
no alternative except to kill Mike
o For the claim to appear reasonable, the reasonable man would need to think like a member of a gang, which is the
antithesis to public order
o C could have called the police, the only reason why he thought this was unreasonable was because he was a
criminal, which doesn’t fly
Ratio
R v Lavallee
[1990] 1 SCR 852  CB 955
51
Facts

L lived with her boyfriend R, who often beat her
 One night after their friends had left after a party, R told L he was going to kill her that night unless she killed him, he
handed her a shotgun
 L shot R in the back of the head as he was leaving the room
Issue
Can L claim self-defence?
Holding
Yes.
Reasons (Wilson J)

Expert evidence about domestic violence is relevant and necessary  “battered wife syndrome”
 No man has a right to abuse a woman under any circumstances
 Jury’s common sense cannot apply to a battered woman, because they cannot know her psychological situation
 The definition of reasonableness must be adapted to the circumstances of the case, which can only be done with expert
evidence in cases of battered women
 34(2)(a) does not require imminent danger, but case law has read that requirement in
 Time lag between assault and self-defence often leads one to suspect revenge rather than self defence
 Battered women tend to be able to anticipate their partner’s violence better than a stranger can anticipate violence
 Expert testimony can help the jury understand whether an apprehension of death is reasonable
 Law does not require the fear to be correct, just reasonable
 Society gains nothing by requiring the accused to wait until the beatings began to respond
 Environmental factors impair a woman’s ability to leave an abusive relationship
 Situation of a battered woman is like that of a hostage
Ratio
Danger need not be imminent.
R v Pétel
[1994] 1 SCR 3  CB 963
Facts

P lived with her daughter and granddaughter and her boyfriend E, who frequently threatened and beat her
 E worked with R, and one day went to P’s house and forced her to weight some cocaine, hide a weapon, and he
threatened to kill her, her daughter, and her granddaughter
 P did some coke, shot and wounded E and shot and killed R when she perceived him to be lunging at her/
Issue
Was the trial judge in error when not relating evidence of past abuse to the elements of 34(2)?
Holding
Yes.
Reasons (Lamer CJC)

Elements of 34(2)
o Unlawful assault
o Reasonable apprehension of death or grievous bodily harm
o Reasonable belief it is not possible to preserve oneself from harm except by killing the adversary
 Apprehension must be a reasonable one and belief must be based upon reasonable and probable grounds
 Honest but reasonable mistake as to the existence of the assault is permitted
 Accused (not the victim) must be given the benefit of a reasonable doubt when considering if there was an assault
 Danger does not need to be imminent
 Judge erred in not relating earlier threats to the elements of self defence – relevant to determining reasonable
apprehension and belief – integral part of the circumstances on which the accused’s perception might have been based
Ratio
Confirms Lavallee, belief there is no way out must be reasonable.
R v Malott
[1998] 1 SCR 123  CB 968
Facts

Mr M was a police drug informant who often abused Mrs M emotionally, psychologically, sexually, and physically
 Mrs M shot Mr M when they were at a drugstore, and then shot and stabbed his girlfriend S
Reasons (Major J)

Expert evidence on battered woman syndrome is admissible

Jury must understand
o Why a woman might remain in an abusive relationship
o The nature and extent of the violence that may exist in a battering relationship
o Accused’s ability to perceive danger from her abuser
o Whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or
grievous bodily harm
 Jury was properly charged, and it still found murder, not self defence
 L’Heureux-Dubé (concurring)
o Admission of expert evidence in Lavallee is the court recognizing women have been unfairly treated
o “battered woman syndrome” is not a defence in itself
o Perspectives of battered women must inform the defence
o Possible women who can’t fit themselves within the stereotype of a victimized, passive, helpless, dependent,
battered woman will not have their claims to self defence fairly deicided
o Focus must remain on the reasonableness of a woman’s actions, not whether she can claim to be a battered woman
o Focusing too much on “battered woman syndrome” reinforces societal stereotypes of women.
Ratio
Focus on reasonability of actions, not battered woman syndrome.
Provocation




232(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of
self control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was
time for his passion to cool
Reduces murder to manslaughter
o Not available for attempted murder (Campbell)
Test for provocation (Hill)
o Would an ordinary person be deprived of self control by the act or insult?
o Was the accused in fact provoked, regardless if the ordinary person would have been or not?
o Was the accused’s response sudden and before there was time for his passion to cool?
Ordinary person standard
o Average temperament and level of self control (Hill)
o Considered
 Any non-idiosyncratic factors that would give the wrongful act special significance to the accused
(Thibert)
 History of the relationship between the accused and victim (Thibert)
 Age, sex, race
 Cultural background (Nahar)
 Jury does not need to be instructed on age, sex (Hill)
o Not considered
 Drunkenness (Hill)
 Beliefs that are irreconcilable with fundamental Canadian values (Humaid)
 Mental disorders (Mancini)
R v Hill
[1986] 1 SCR 313  CB 742
Facts

P was H’s Big Brother
 P claims that H tried to have sex with him, so P murdered him claiming provocation
Issue
Should the ordinary person in relation to provocation be of the same age and sex as the accused?
Holding
Yes.
Reasons (Dickson CJC)

Test for provocation
o Would an ordinary person be deprived of self control by the act or insult?
o Was the accused in fact provoked, regardless if the ordinary person would have been or not?
o Was the accused’s response sudden and before there was time for his passion to cool?
 Jury cannot consider drunkenness when assessing reasonableness
 Ordinary person has a normal temperament and level of self control
 Has any characteristics to the relevant provocation in question (ex is black if it’s a racial slur against blacks)
53
Can ascribe “sex, age or race” to the ordinary person  any characteristics that are not peculiar or idiosyncratic
The judge doesn’t need to charge the jury about this, the jury will naturally assume the ordinary person to be of the age
and sex of the accused
 Wilson J (dissenting) – the judge needs to specifically charge the jury to consider the accused’s age and sex when
judging reasonableness.
Ratio
Accused’s particular characteristics should be ascribed to the reasonable man, as long as the characteristics aren’t
idiosyncratic. The jury need not be instructed on the matter.


R v Thibert
[1996] 1 SCR 37  CB 750
Facts

T killed his wife’s lover, S
 S taunted T while T was holding a gun, and continually told T to kill him
 T claims provocation
Issue
Was there an air of reality to the defence of provocation?
Holding
Yes.
Reasons (Cory J)

Provocation should be left to the jury if
o Some evidence to suggest the insult would cause the ordinary person to be deprived of self control
o Some evidence showing the accused was actually deprived of his self control by the insult
 Background of the relationship, including earlier insults, is relevant to the ordinary person analysis
 Ordinary person shares such factors as would give the act or insult special significance to the accused
 There can be a build-up, but immediately before the last insult the accused must not intend to kill
 The insult cannot be something the victim has a legal right to do – difference between something a person can do
without incurring liability (free speech), and a right which is sanctioned by law
 There was an air of reality to the defence
 Major J (dissenting) – the ordinary person would not have lost control in the situation, so the defence had no air of
reality
Ratio
Ordinary person considers any non-idiosyncratic factors that would give the wrongful act special significance to the accused
R v Campbell
(1977), 38 CCC (2d) 6 (ONCA)  CB 761
Reasons

Provocation is only available for murder, not attempted murder
 Provocation reduces murder to manslaughter notwithstanding the intent to kill
 Unnecessary to invoke provocation until all the elements of murder have been proven
 Provocative conduct of the victim might be a relevant item of evidence on the issue of intent whether the charge be
murder or attempted murder
 In attempted murder, the provocation wouldn’t be a defence, but evidence on the issue of intent.
Ratio
Provocation is not available as a defence for attempted murder.
R v Nahar
(2004), 181 CCC (3d) 449 (BCCA)  CB 766
Facts

N stabbed and killed his wife Mrs N because she smoked, drank, socialized with men, and was generally not a good
Sikh in his opinion
Issue
Was there an air of reality to provocation?
Holding
No.
Reasons (Lowry JA)

Provocation is a wrongful act or an insult that is of such nature as to be sufficient to deprive an ordinary person of the
power of self control

The ordinary person must have experienced the same series of insults as experienced by the accused, as well as age, sex,
and any other factors that would give the wrongful act or insult special significance to the accused.
 Factors can include cultural background
 Even considering this, the ordinary person would not have been provoked here.
Ratio
Ordinary person can consider accused’s cultural background.
R v Humaid
(2006), 208 CCC (3d) 43  CB 770
Facts

H killed his wife because he either wanted out of the marriage or he thought she was cheating on him
Reasons (Doherty JA)
 It is not enough to lead evidence that Muslims, or any other group, have certain religious or cultural beliefs that could
affect the gravity of the provocative conduct in issue and that the accused is a member of that group – extent to which
any one Muslim would act depends on many factors
 Must avoid stereotyping – verdicts that rely on stereotyping are no less offensive because they benefit the accused
 “The alleged beliefs which give the insult added gravity are premised on the notion that women are inferior to men and
that violence against women is in some circumstances accepted, if not encouraged. These beliefs are antithetical to
fundamental Canadian values, including gender equality.”
 The ordinary person cannot be fixed with “beliefs that are irreconcilable with fundamental Canadian values.”
Ratio
The ordinary person cannot be fixed with “beliefs that are irreconcilable with fundamental Canadian values.”
Automatism





Full defence, negates MR
Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-insane automatism and an
acquittal
o Reasonable person expected to suffer the “ordinary stresses and disappointments of life” (Rabey)
Test
o Conduct was involuntary (accused proves by BOP)
o Is the automatism caused by a disease of the mind (if yes, MD, if no non-MD automatism)(presumption of MD,
burden on the accused to prove otherwise by BOP)
Test for disease of the mind (Stone)
o Internal cause theory
 Would an ordinary person have entered an automatistic state from the same trigger as the accused?
 For psychological blow automatism, ordinary person would only react to an “extremely shocking
trigger”
 Contextualized objective test
 Objective test only after there is an air of reality to the accused’s reaction being involuntary
 Must balance protecting the morally innocent, and protecting the public
o Continuing danger theory
 Any condition likely to present a recurring danger to the public should be a disease of the mind
 Finding of no continuing danger does not preclude finding a disease of the mind
o Other policy factors
 Must take a holistic approach to disease of the mind
 Does society need protection from the accused?
Presumption there is a disease of the mind, accused must disprove it on a BOP (Stone)
Rabey v The Queen
[1980] 2 SCR 513  CB 812
Facts

R got shut down by a girl so he hit her with a rock
 He testified that he blacked out and had no idea what happened
Issue
Can a psychological blow ground non-mental disorder automatism?
Holding
Yes.
Reasons (Ritchie J)
55
Central question is whether the accused was suffering from a disease of the mind
R was in a “dissociative state”
“Disease of the mind” is a question of law
“Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or
weakness internal to the accused (whether fully understood or not) may be a disease of the mind if it prevents the
accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external
factors do not fall within the concept of disease of the mind”
 R’s infatuation caused an abnormal condition in his mind influencing his actions
 It is “unthinkable that a person found not guilty on account of insanity because of a transient mental disorder constituting
a disease of the mind, who was not dangerous and who required no further treatment, should continue to be confined.”
 Dickson J (dissenting) – automatism is easily feigned, and opening it to emotional blows would open the floodgates.
Ratio
Psychological blows can create automatism.




R v Parkes
[1992] 2 SCR 871  CB 816
Facts

P was a very deep sleeper, had a good relationship with his parents-in-law, but he was under a lot of stress in his life
 One night, when he was asleep, he drove to his parents house and killed his mother-in-law and almost killed his fatherin-law, then drove to the police station and turned himself in
Issue
Is the defence of non-mental disorder automatism available for sleepwalking?
Holding
Yes.
Reasons (Lamer CJC)

Sleepwalking is not a “disease of the mind” and gives rise to a defence of automatism  a state of mental
unconsciousness or dissociation without full awareness
 Sleepwalking is not a neurological, psychiatric illness, there is no medical treatment for it
 Laforest J (concurring) – there are no compelling policy reasons not to allow the acquittal
Ratio
Sleepwalking gives rise to the defence of automatism.
R v Stone
[1999] 2 SCR 290  CB 818
Facts

S stabbed his wife 47 times after she insulted him
 S raised mental disorder automatism and non-mental disorder automatism.
Issue
Can S raise the defence of either kind of automatism?
Holding
Mental disorder automatism
Reasons (Bastarache J)

Automatism: person is capable of action but is not conscious of what he is doing; unconscious involuntary acct where
the mid does not go with what is being done
 Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-insane automatism and an
acquittal
 Middle ground between criminal responsibility and legal insanity
 Burden for automatism is on a BOP on the party raising it
 The presumption of voluntary action is to avoid placing too high a burden on the Crown, and is saved under s 1.
 What constitutes a disease of the mind is for the judge to determine
 Factors to classify something as a disease of the mind
o Internal cause theory
 Would an ordinary person have entered an automatistic state from the same trigger as the accused?
 For psychological blow automatism, ordinary person would only react to an “extremely shocking trigger”
 Contextualized objective test
 Objective test only after there is an air of reality to the accused’s reaction being involuntary
 Must balance protecting the morally innocent, and protecting the public
o Continuing danger theory
 Any condition likely to present a recurring danger to the public should be a disease of the mind
 Finding of no continuing danger does not preclude finding a disease of the mind
o Other policy factors
 Must take a holistic approach to disease of the mind
 Does society need protection from the accused?
 A normal person would not have reacted by becoming an automaton, so the only possible defence is mental disorder
automatism.
 Binnie J (dissenting) – The burden on the accused to raise automatism should be an evidentiary burden, not a legal one
where he must satisfy BOP.
Ratio
Non-insane automatism only arises where the contextualized ordinary person would react that way.
R v Luedecke
(2008), 236 CCC (3d) 317 (ONCA)  CB 835
Reasons (Doherty JA)

Impact of Stone
o Trial judge must begin from the premise that the automatism is caused by a disease of the mind and look to the
evidence to determine whether it convinces him that the condition is not a “disease of the mind” – direct contrast to
Parks which allowed automatism because the Crown didn’t prove otherwise
o Trial judges do not limit their inquiry only to the risk of future violence in evaluating the danger to the public
o At the pre-verdict stage, social defence concerns dominate – risk posed by potential recurrence of conduct.
 Where that risk exists, the risk combined with the occurrence of the conduct in question will almost always
justify further inquiry into the accused’s dangerousness so as to properly protect the public
o Post verdict – emphasis on individualized assessment of the person found NCR-MD
 Where personalized assessment does not demonstrate significant risk, the convict is absolutely discharged
Ratio
Stone raised the onus at the pre-verdict stage.
Mental Disorder









16(1) No person is criminally responsible of 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 knowing that it was
wrong
16(2) presumption of sanity
16(3) party seeking to raise insanity must do so on a BOP
Crown can raise evidence of insanity if accused brings it up, or post-verdict independently (Swain)
Mental disorder includes mental and physical problems: mental disease, psychoses, minor forms of mental disorder,
disorders of the development of the personality (psychopathic personality), hardening of the arteries, psychomotor
epilepsy (Cooper)
Appreciate the nature and quality of the act (Cooper)
o Cognition, emotional and intellectual awareness of the significance of the conduct
o Perceive the consequences, impacts, and results of an act
o The “legally relevant time” is the time when the act was committed
o Lacking remorse is not sufficient to invoke the defence (Kjeldson)
o Failure to appreciate legal consequences cannot ground the defence (Abbey)
Knowing that it was wrong
o Wrong must mean contrary to the ordinary moral standards of reasonable men and women (Chaulk)
o Must know the particular act in question was morally wrong (Oommen)
Consequence
o Accused must be discharged unless the Review Board/court finds him to be a significant public threat (Winko)
Unfit to stand trial
o Test: on account of a mental disorder, accused cannot (s 2)
 Understand the nature or object of the proceedings
 Understand the possible consequences of the proceedings
 Communicate with counsel
o Different from the s 16 defence – much lower threshold when considering fitness to stand trial (Whittle)
R v Whittle
[1994] 2 SCR 914  CB 778
Reasons (Sopinka J)
57
Section 16 means those suffering a disease of the mind are sick as opposed to blameworthy, should be treated rather than
punished, and should be exempted from criminal liability
 Not exempted from being tried
 Fitness to stand trial is predicated on the existence of a mental disorder and focuses on the ability to instruct counsel and
conduct a defence
o Requires limited cognitive capacity to understand the process and communicate with counsel
 Provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercising
analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her
interests.
Ratio
Defence of mental disorder available to those who are nonetheless fit to stand trial.

R v Swain
[1991] 1 SCR 933  CB 780
Issue
When is the Crown allowed to raise mental disorder?
Holding
Only after the accused leads evidence of it, or after guilt is determined.
Reasons (Lamer CJC)

Crown raising evidence of mental disorder against the accused’s wishes interferes with his ability to conduct his defence
 Crown can bring evidence of mental disorder after the accused’s own evidence puts his mental capacity into question
 Reasons to let the Crown raise evidence  so the system does not label insane people as criminals, to protect the public
from dangerous people who require hospitalization
 Crown can also independently raise the issue of insanity after the accused is already found guilty
 Wilson J (dissenting) – Crown should not be allowed to raise evidence of insanity independently
Ratio
Crown can raise evidence of mental disorder after the accused brings it into question, or after guilt is determined.
R v Chaulk and Morrissette
[1990] 3 SCR 1303  CB 782
Issue
Does the s 16(4) presumption of sanity violate s 11(d) of the Charter?
Holding
Yes, but it is saved under s 1.
Reasons (Lamer CJC)

“Fact” of insanity precludes a verdict of guilty
 The presumption in 16(4) allows a factor which is essential for guilt to be presumed, rather than proven by the Crown
BARD
 It also requires an accused to disprove it (or prove insanity) on a BOP
 The accused can be convicted despite the existence of reasonable doubt WRT an essential element of guilt
 The limit on 11(d) passes proportionality and minimal impairment, and passes s 1
 McLachlin J (concurring) – there is no violation to 11(d) because sanity is not an element of guilt, but rather a
precondition to criminal liability
 Wilson J (dissenting) – the violation cannot be justified by s 1, it should just be an evidentiary burden
Issue
Did the accused appreciate the act was wrong?
Holding
No.
Reasons (Lamer CJC)
 Appellants suffered a paranoid psychosis that made them believe they were under divine charge to kill the victims
 Schwartz is wrong in concluding “wrong” only means against the law
 Wrong must mean contrary to the ordinary moral standards of reasonable men and women
 Criminal liability predicated on the ability to tell right and wrong
 Knowing an act is wrong either according to the law, or to the standard of moral conduct society expects of its members
 Incapacity to make moral judgements must be causally linked to a disease of the mind
 Accused will not benefit from substituting his own moral code for that of society
 McLachlin J (dissenting) – only thing that should matter is whether the accused knows the act is legally wrong
Ratio
Presumption of sanity does not violate the Charter. Accused must prove insanity on a BOP.
Winko v British Columbia
[1999] 2 SCR 625  CB 516
Issue
Do the sentencing provisions for mental disorder (Part XX.1) violate the Charter?
Holding
No.
Reasons (McLachlin J)

Requires an absolute discharge be granted unless the court or Review Board is able to conclude that the offender poses a
significant risk to public safety
 Significantly better for the accused than the old system of detention at the Lieutenant Governor’s pleasure
 Swain struck down the provision for automatic indefinite detention
 Twin goals: fair treatment and public safety
 Psychiatric treatment can only be carried out if the offender consents and the court or Review Board considers it
reasonable and necessary
 Further reviews every 12 months
 There is a provision for appeal on a questin of law or of mixed law and fact
 Part XX.1 does not presume the mentally ill are inherently dangerous
 The provisions are a new alternative for the NCR-MD based on assessment and treatment
Ratio
Assessment and treatment scheme for NCR-MD is constitutional.
R v Simpson
(1977), 35 CCC (2d) 337 (ONCA)  CB 788
Reasons (Martin JA)

Determining the accused suffers from a disease of the mind is a question of law for the judge
 Personality disorders or psychopathic personality are capable of constituting a disease of the mind
 Concept is capable of evolving with medical knowledge
 Existence of a disease of the mind alone does not constitute insanity, only if the disease of the mind has such a severe
effect that the accused is incapable of appreciating the nature and quality of the act or that it is wrong.
Ratio
No liability if the accused is incapable of appreciating the nature and quality of the act or that it is wrong.
Cooper v The Queen
[1980] 1 SCR 1149  CB 789
Reasons (Dickson J)

R v Kemp rejected the idea that when considering a disease of the mind, the law should distinguish between mental and
physical diseases
 “Any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind”
 Includes mental disease, psychoses, minor forms of mental disorder, disorders of the development of the personality
(psychopathic personality), hardening of the arteries, psychomotor epilepsy
 Trial judge can permit a psychiatrist to be asked directly if something is a disease of the mind, but the answer is not
conclusive
 No reason to give a narrow or limited interpretation to disease of the mind
 Disease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its
functioning, excluding however, self induced states caused by alcohol or drugs, as well as transitory mental states such
as hysteria or concussion
 To support a defence of mental disorder, the disease of the mind must be severe enough to render the accused incapable
of appreciating the nature and quality of the act or that it is wrong.
 Appreciating the nature and quality: cognition, emotional and intellectual awareness of the significance of the conduct
 Distinction between mere knowledge and appreciation
 Mental capacity to foresee and measure the consequences
 At the time of the act, could he appreciate the nature, character and consequences of the act
 Requirement is to perceive the consequences, impacts, and results of an act.
Ratio
59
R v Abbey
[1982] 2 SCR 24  CB 794
Facts

A brought cocaine back from Las Vegas knowing it was against the law but thinking a higher power would protect him
from the law’s consequences
 He suffers from hypomania
Issue
Is A criminally responsible for importing a narcotic?
Holding
Yes.
Reasons (Dickson J)

Appreciate means knowing more than the mere act being committed
 Inability to appreciate the nature and quality of the act negatives the MR for the crime
 A delusion which renders an accused incapable of appreciating that the penal sanctions attaching to the commission of
the crime are applicable to him does not to go the MR of the offence, does not render him incapable of appreciating the
nature and quality of the act, and does not allow the insanity defence.
 “wrong” means according to law – A knew what he was doing was forbidden by law
 Borg denied the defence of irresistible impulse, though it may be a manifestation of a disease of the mind.
Ratio
Inability to appreciate penal sanctions is no defence.
R v Oommen
[1994] 2 SCR 507  CB 803
Facts

B lived in O’s house
 O was under a paranoid delusion that B was trying to kill him, so he killed her
Issue
Did O appreciate it was wrong to kill B?
Holding
No.
Reasons (McLachlin J)

There is no doubt O’s insane delusions provoked the killing
 O can tell right from wrong, but on the night of the killing, his delusions deprived him of the capacity to know killing B
was wrong, on the contrary he thought it was necessary and justified
 Ability not to know right from wrong generally, but that the particular act was wrong
 Accused must possess the ability to apply knowledge in a rational way to the alleged criminal act
Ratio
Accused must know the criminal act in question is morally wrong.
Intoxication


Canute charge on drunkenness (approved in Daley)
o Drunken intent is still intent
o When considering intent, you should take into account his consumption of alcohol or drugs along with other
factors on intent
Common law defence
o Only available for crimes of specific intent (Beard, George)
o Daviault exception
 If accused proves on a BOP that he was so drunk that he was in a state of non-insane automatism, he
will be found not to have had the requisite MR
 Only available in extreme cases
o Daviault does not apply where: (s 33.1)
 By reason of self-induced intoxication, lacks the general intent or voluntariness required to comment
the offence; AND
 Departs from the standard of care set out in s.33.1(2) (i.e., the accused, while in a state of selfintoxication rendering him/her unaware of, or incapable of consciously controlling, his/her behaviour,
voluntarily or involuntarily interferes with, or threatens to interfere with, another person’s bodily
integrity).
o Daviault exception still applies to
 Property offences



 Specific intent offences
Self-induced intoxication
o Substituted for MR of the general intent crime if the accused was too drunk to draw the common sense
inference (Bernard)
o Test (Chaulk)
 Accused voluntarily consumed a substance
 He knew or ought to have known it was an intoxicant
 The risk of becoming intoxicated was or should have been within his contemplation
Specific Intent Crimes
o Murder 1/2
o Attempt, Conspiracy, Incitement
o Theft
o Fraud
General Intent Crimes
o Assault (incl sexual)
o Manslaughter
o Arson
o Negligence
DPP v Beard
[1920] AC 479 (UKHL)  CB 839
Reasons

19th C voluntary drunkenness was no defence
 Crimes of specific intent can have their MR negated by drunkenness if he was so drunk he was incapable of forming the
specific intent
 Insanity, whether produced by drunkenness or otherwise, is a defence
 Evidence of drunkenness should be taken into consideration with other facts to determine intent
 Drunkenness an no more cannot rebut the common sense presumption
Ratio
Drunkenness is a defence to crimes of specific intent
R v Daley
[2007] 3 SCR 523  CB 843
Facts

D murdered his common law wife while he was drunk
Issue
Did he have the requisite MR?
Holding
Yes.
Reasons (Bastarache J)
 Canute charge on drunkenness
o Drunken intent is still intent
o When considering intent, you should take into account his consumption of alcohol or drugs along with other factors
on intent
 MacKinlay charge makes an explicit difference between capacity to have intent and actual intent
 When there is evidence of drunkenness there must be a direct link drawn between the effect of intoxication and the
common sense inference
 Common sense inference cannot be drawn if the jury has a reasonable doubt about intention
 Trial judge must instruct on the link between foreseeability and intoxication, but it need not be expressly charged as such
 A separate charge on capacity, like in MacKinlay, is not necessary, but the judge can charge on capacity if there has been
expert evidence concerning it, or if the accused specifically requests it
 Two step charge confuses the jury – should use a one step Canute type charge
 Fish J (dissenting) – it was an error that the judge made no mention at all of the possibility of intoxication negating MR
Ratio
Intent can consider intoxication.
R v George
[1960] SCR 871  CB 849
61
Facts

G got drunk and beat up and robbed an old man.
Issue
Can intoxication negate MR for theft? For common assault?
Holding
Yes. No.
Reasons (Ritchie J)

Theft is a specific intent crime
 G violently manhandled the old man and knew he was hitting him
 Voluntary drunkenness cannot be a defence for common assault because there was no permanent or temporary insanity,
and G clearly knew he was hitting a man.
Ratio
Drunkenness is only a defence for specific intent crimes, not general intent.
Bernard v The Queen
[1988] 2 SCR 833  CB 853
Facts

B beat a girl and had non-consensual sex with her
 Claims that he was drunk when he did it so he didn’t realize what was going on, and when he did he got off her
Issue
Does drunkenness provide a defence?
Holding
Reasons (McIntyre J)

Difference between general and specific intent is for drunkenness
 Specific intent = intent or purpose going beyond the mere performance of the act in question
 Drunkenness is no defence to general intent, except maybe if someone gets so drunk he is an automaton
 Can find MR in two ways – common sense inference (which might not fly if the accused is too drunk); invoking
voluntary intoxication, which applies where the accused was so intoxicated as to raise doubt about the voluntariness of
the action
 The recklessness in getting drunk is substituted for the particular MR
 Proof of voluntary drunkenness is proof of a guilty mind
 By getting drunk, the accused was no longer morally innocent
 Wilson J (concurring) – should allow for defence of drunkenness when the accused is so drunk the state is akin to
automatism
 Dickson J (dissenting) – the specific/general intent dichotomy is an artificial one, and voluntary drunkenness should not
substitute for MR because it basically creates absolute liability for drunk people
Ratio
MR for a general intent crime can be substituted for intent to get drunk.
R v Davivault
[1994] 3 SCR 63  CB 862
Facts

D raped a handicapped woman when he was drunk
 He claims to have no recollection, and the amount of liquor he drank (8 beers and a 40 of brandy) would kill any normal
person who is not an old alcoholic like D
Issue
Does extreme drunkenness negate MR for the general intent crime of sexual assault?
Holding
Yes.
Reasons (Cory J)

Charter requires that there must be an exception to the general rule drunkenness does not provide a defence to general
intent crimes when the level of drunkenness is so extreme that the accused’s actions were not voluntary
 Substituted MR to get drunk cannot establish the MR for sexual assault
 Link must exist between minimal mental element and prohibited act
 Violation cannot be saved under s 1
 The defence is still only available to those whose drunkenness is so severe they enter a state akin to insane automatism
 Extreme intoxication should be established on a BOP

Sopinka J (dissenting) – the Leary rule precluding a defence of voluntary intoxication should be maintained even in
cases such as this
Ratio
Extreme intoxication can negate MR for crimes of general intent.
R v Chaulk
(2007), 223 CCC (3d) 174  CB 871
Facts

C was drunk and assaulted Mr M and a girl
 He claims that he took a pill someone gave him that he thought was a caffeine pill, but was clearly something else
because it made him go crazy
Issue
Was C’s intoxication self induced, thereby not providing a defence?
Holding
No.
Reasons (Bateman JA)

Section 33.1 says it is no defence if the accused’s intoxication was self induced
 Self-induced intoxication where the accused intended to be intoxicated knowing or having reasonable grounds to know
the subject was dangerous, and being reckless as to the result
 The accused need not contemplate the extent of intoxication, nor must he intend a certain level of intoxication
 Test for self induced intoxication
o Accused voluntarily consumed a substance
o He knew or ought to have known it was an intoxicant
o The risk of becoming intoxicated was or should have been within his contemplation.
Ratio
Test for self induced intoxication.