CHARTER BREACH?
Oakes Test – Is the violation saved under s. 1? (government prove on BOP)
1. Is there a pressing and substantial objective?
- Nothing is struck down here, BUT: how you define objective is crucual
2. Rational connection between objective and means (basic linkage?)
- Do they relate to each other? Not hard to meet…
- Reasonable apprehension is sufficient. Harms not easy to quantify=leeway
3. Minimal Impairment – Did you go father than what was necessary?
- Must be a clear option to go narrower
- Does the law unnecessarily capture conduct unrelated to purpose of law?
4. Proportionality (Final balance)
- Benefits vs. Costs  What is the impact on people’s freedoms?
- Must be a gross disproportionality to fail
Sharpe – Failed proportionality analysis. Law criminalized product of the mind
where no children were harmed in process, and records of consensual acts. SCC
read in 2 defenses: (1) Self-produced material kept for private possession, and
(2) visual depictions of the accused, providing it does not depict unlawful
activity, and is kept for private possession only
**Fail one? Fail all
S. 7 Test – Violate principle of Fundamental Justice? (prove on BOP)
1. Overly Vague (Nothing really gets struck down here)
- EX: “any other reason” = vague. You need to know the zone of risk
2. Arbitrary (Mimics rational connection)
- Look at objective  simply no connection between means?
3. Overly Broad (Most powerful)  mimics minimal impairment
- Arbitrary in SOME of it’s applicatons (ex: living off avails  bodyguards)
- Is the law going further than what is reasonably necessary?
4. Grossly Disproportionate – Benefits of law vs. violation on individual
Heywood – Sexual offence conviction, banned from “all parks”. Overly broad,
some parks never have children at them, and no time frame restricton
Bedford – failed over breadth and disproportionality.
BASIC PRINCIPLES
IDENTITY:
Sheppard – BARD closer to AC than BOP. Testimony of credible witness (knows
A) created reasonable double whether A struck V = Aquitted
Saunders – Specifies heroin on partix, A testifies it was Cocaine. Offence must be
proved as particularized, cannot ammed partix where it would cause prejudice
and unfairness to A. EXCEPTION: lesser/included offences. BUT: risky to run
defence on partix.
STATUTORY INTERPRETATION
Pare – 7 y/o boy, kills after sex assault. Simultaneous not required.
1st degree murder, must be temporal and causal link between the two acts,
continuous sequence, one transaction. Steps of statutory interpretation before
ambiguity principle (adopting interpretation favourable to A).
Clark – Masturbating in living room, acquitted. Public place = physical access, not
mere spectacle. Check defined terms in provision + definition section.
ADH – Abandon, expose, willful  speaks to subjective (s. 218=subjective)
No mention of failure to act, reasonableness, dangerous, carelessness (Obj.)
Other provisions in statute had duty of care, this one was an odd one out
STANDARD & BURDEN OF PROOF
Oakes – Possession = trafficking, A must prove otherwise, reverse onus
violates 11(d)-right to be presumed innoc. 11(d) Violation Test: (1) proven
guilty BARD, (2) Crown must bear burden of proof, (3) crim prosecutions must
be carried out in accordance with lawful and procedural fairness
Keegstra – Hate speech, reverse onus defence if A can prove on BOP hate speech
was true. Violates 11(d), saved by s. 1. Hate speech generally false, but proving
would make convictions difficult.
Morin – Take all evidence relevant to particular element as a whole and combine
together to determine if element is proven BARD (do not consider each piece of
evidence separately)
BRD “circumstantial evidence” instruction:
1. The guilt of the accused is a reasonable inference that arises from the
evidence
2. If the evidence consistent with the guilt of the accused, AND
3. Not consistent with any other possibility
(alternate reasonable inferences?  not proven BARD)
No Evidence Motion – is ONE reasonable inference the guilt of A? Cannot be
pure suspicion, weak circumstantial cases likely kicked out
Lifchus – BARD Jury Instruction: A presumed to be innocent, presumption
remainds until proven BARD A is guilty, BARD is not imaginary or frivolous
doubt & cannot be based on sympathy or prejudice, it is based on
reason/common sense, logically derived from evidence or lack of evidence,
probably/likely guilty not sufficient, BARD is not AC, sureness based on
evidence.
Starr - Proof BARD lies much closer to AC than BOP
Charemski – Not sure how V died, no evidence placing A in apartment. A had
knowledge of how V died…Not BARD, aquitted. (directed verdict)
Kylo – Charged w/1st degree, main witness (Meyer) has major credibility
problems (Vetrevec – need corroborating evidence, not available..)
ACTUS REAS
CONCURRANCE
(1) Conduct (2) Failure to act (duty) (3) conduct causing a certain act
Cooper – Strangled V, but defence is at time of death A “blanked out”.
Concurrance = at ONE point, actus reas and mens rea concur. Here, initial
hands on throat = inference of intention to kill. AR had begun + met with MR
Fagan – Accidently drives on officer’s foot. Officer tells him, and A refuses to
move. When he became AWARE, and refused to move = concurrence
LEGAL CAUSATION – Can A be said responsible in physical sense for result?
Smithers – Manslaughter case, A kicks V in stomach, V pukes and puke gets
stuck in throat. V dies. LEGAL CAUSATION = MORE THAN MINIMAL
Harbottle – Held legs down in sex assault/murder. Helping in the murder…
1st DEGREE CAUSATION = SUBSTANTIAL CAUSE - 231(5) (usually physical)
Nette – “A” hog ties 95 y/o widow, robs her and leaves with ligature around
neck. V suffocates to death. 2nd DEGREE CAUSATION = SIGNIFICANT CAUSE
 But, Smither’s standard still applies, just “re-articulated”
Maybin – Must be a “Significant CONTRIBUTING Cause” (reminder threshold
not too high. INTERVENING ACTS?  (1) Was the intervening act reasonably
foreseeable? (2) How independent were the acts? (not determinative)
MENS REA
PROVING MENS REA
PRESUMED SUBJECTIVE Cannot be absolute w/poss. jail (re: MVA)
1. Motive: More likely to do things intentionally that you have motive to do.
You can attach past conduct to motive. Also aids in proving identity.
2. Inferences from Behavior: Use logic, people intend the natural
consequences of their act (but NOT reasonable person standard)
3. Admissions from Accused: Statements about intention
GENERAL vs. SPECIFIC
General - EX: Possession of a drug (knew the product was a drug)
 Fairly basic, general thought process
Specific – EX: Possession for the purpose of trafficking
 Double MR: (1) Prove MR for possession (2) Prove intent to traffic
FOR THE PURPOSE OF – Hibbert – doesn’t mean it was your motive, just
knowledge
ACTUAL KNOWLEDGE
Absolute Certainty
 A shoots V 10 times, tells friend they just did a hit
Substantial Certainty
 Relaxation of AC, still full knowledge
Willful Blindness
 Strong suspicion of knowledge, deliberately failed to inquire
to keep self in state of ignorance Sansagret
Bricose – murder, willful blindness is the equivalent of knowledge
SUBJECTIVE RECKLESSNESS
Subjectively sees risk, and proceeds anyways despite knowledge of risk.
***Not always available to prove knowledge
Buzzunga – Hate speech pamphlets, alleged satire, Crown wanted to rely on
“recklessness”.
 Including the term “willfully” implies “recklessness” will not suffice to
prove MR, UNLESS “recklessness” also mentioned
When will recklessness not be available?
Knowingly, intentionally, willfully, “for the purpose of” (Double MR)
MENS REA – PARTICULAR OFFENCES
Valliancourt – Felony-murder violates s. 7 of Charter (no fault requirement)
Must be a relationship between fault standard + stigma + punishment
***Murder + theft: Always require subjective
MENS REA FOR MURDER: Intend to cause death, or intend to cause bodily harm
and subjectively see death as a possibility
Creighton – Manslaughter has an OBJECTIVE fault requirement. Does not violate
s. 7. “Objective foreseeability of the risk of non-trivial bodily harm”.
Manslaughter is treated less blameworthy than murder, with flexible sentences.
3-Part test for Manslaughter: (1) Establish actus reas – must constitute marked
departure from the care of a reasonable person in the circumstances
***Causation– Smithers – more than minimal
(2) Establish Mens Rea – activity must have been done while there was an
objective foresight of non-trivial bodlity harm (not death) that can be inferred
form the facts (stnd. = reasonable person in the circumstances of the accused)
(3) Establish Capacity: Given the personable characteristics of the accused, were
they capable of appreciating the risk of harm flowing from their conduct?
Desuza – “unlawfully causing bodily harm”
Definition of unlawful?  only need to prove causation…
SCC reads in this offence excludes all offences based on absolute liability and
have constitutionally insufficient mental elements of their own. They also
read in that “unlawfully” must be objectively dangerous
PARTIES TO OFFENCES – 21(1)(a,b,c)
BASIC PRINCIPLES
Hibbert – for the purpose,  not desire
PRINCIPLE OFFENDER
21(1)(a) - You are a party to an offence when you actually commit it
MURDER, you caused the death. THEFT, you took the cash and ran
 There can MULTIPLE principle offenders
AIDER – “helper”
**RECKLESSNESS NOT AVAILABLE!
21(1)(b) – Does or omits to do something for the purpose of aiding any person to
commit an offence
ACTUS REAS: Did you assist in some way?

Lending a car, gun, shovel, keys to unlock door

Limited conduct, but JUST as guilty

Without them, crime doesn’t happen
MENS REA: Did you have knowledge?

Of the person who you were helping’s intentions
 You can convict an aider without convicting a principle
ABET – “encouragement”
**RECKLESSNESS NOT AVAILABLE!
21(1)(c) – not used often
RUNNING WITH MULTIPLE THEORIES
Thatcher – Crown thought both principle/aider theories were plausible, went
with both. **Evidence supported both theories
 Jury can convict on EITHER theory – does not violate animity
 Crown was broad on charging sheet
 Narratives must be extremely powerful..
 2nd theory can make 1st weak, likelihood verdict overturned
 Instructions on aiding/abetting much more difficult
AIDER  MORE THAN INCIDENTAL ASSISTANCE
Greyeyes – If you buy drugs, are you an AIDER to trafficking?
Direct buyer? = NOT an aider to trafficker
Assisting purchaser? = Depending on role, you can be aider to trafficking.

Bringing person to trafficker, helping to locate trafficker

Accepting money for facilitating sale

MORE THAN INCIDENTAL ASSISTANCE TO TRAFFICKER
AIDER/ABETTOR  Mere presence is NOT ENOUGH
Dunlop & Slyvester – You actually have to do something to enourage, or do
something/omit to do something to aid. Being present, even with knowledge a
crime is happening is not enough.
BUT: Accidental presence VS. prior knowledge+ planned presence, may
differentiate (Natural Inference)  client on stand to displace
AIDERS/ABETTORS:  SUBJECTIVE MENS REA
Helsdon – Publication ban on court proceedings. Publishes story. DEFENCE: Did
not know about ban. PRNCPL: Paper, AIDER: Reporter

Violating publication ban is an OBJECTIVE mens rea offence

BUT: for aider/abettor = SUBJECTIVE MENS REA
much have known about ban or was willfully blind to ban
Jackson – Can convict an AIDER of manslaughter with OBJECTIVE mens rea…
***Prof. Harris does not think this is certain in law.
HLI – Number of ppl participate in a beating, V dies. Not clear who caused death.
(not like Maybin b/c Bouncer came in afterwards)
Agree to participate?  Blows of 1 are the blows of all
(Does not matter who caused the fatal blow)
Manslaughter/murder distinction is an INDIVIDUAL analysis
 what did each individual FORESEE? (pusher VS. head stomper)
 To raise from manslaughter to murder, person must have FORESEEN the
death
AGREE TO DO CRIME (A) & CRIME (B) HAPPENS
21(2)
Agree to do a theft, co-perp beats up security guard
SHOULD YOU HAVE FORESEEN THE ROBBERY OCCURING? (objective analysis)
****MURDER + THEFT CANNOT BE APPLIED**** (Martineau)
Applicable to aiders…gave alarm code for theft, robbery happens, on for
Robbery
REGULATORY OFFENCES
MENS REA
Not in CC or CDSA. Fisheries Act, Immigration Act, Environmental Acts
 Can involve liberty, but only in extreme cases. No Criminal Record
ABSOLUTE LIABILITY: Conduct only, no MR required
STRICT LIABILITY: Object. MR, would a reasonable person have been aware of
those circumstances?
Sault St. Marie - Neutral Language in statute? PRESUME OBJECTIVE
SUBJECTIVE: “knowingly”, “intentionally”.
PROCEDURE
Prove actus reas BARD  then, onus flips to defendant to show due diligence on
a Balance of Probabilities. ***JUDGED ON OBJEC. Stndrd.
DUE DILLIGENCE

Took all reasonable steps to avoid the particular event

Look to expert evidence in industry
Tetreault – Told by insurance agency renewal notice would be mailed 30 days
before expiry, never received notice. Officially induced error not applicable,
should have taken more steps when they failed to receive not
REASONABLE MISTAKE OF FACT
EX: Paint came mislabled

Honest and Reasonable

BUT: Mislabeled in past? Company should be checking…
OFFICIALLY INDUCED ERROR (Jorgensen)
1. Error of mixed law and fact was made
2. Considered legal consequences
3. Advice obtained from APPROPRIATE official
4. Advice was REASONABLE
5. Advice must be ERRONEOUS
6. Relied on THAT advice in committing act (causative)
MOTOR VEHICLE OFFENCES
PUREST ACCIDENT: Someone jumps in front of car  no liability
CIVIL LIABILITY: Driver breached negligence standards. Not driving as a
reasonable driver (20km over, changed lanes w/no signal, etc)
REGULATORY OFFENCE: MVA, requires driving with reasonable care.
Negligence is more profound. Can reduce CC charge to MVA, no record.
Some absolute liability (speed tix). Most serious? = Objective MR
CRIMINAL CODE: Most serious. Distraction, alcohol, etc.
1. Dangerous Driving: operating vehicle in manor dangerous to public,
having regard to all the circumstances
EX: speed limit, but in treacherous winter conditions
Dangerous driving causing death  engage in act, death ensues and
there is a causal link to the death
2. Criminal Negligence (fair bit of alcohol, extreme speeding)
3. Murder (Using car as weapon, intended to hit someone)
Beatty – CC Dangerous driving causing death. Momentary lapse of attention 
meets actus reas but not marked departure MR standard.
MR: Marked departure from the stnrd. of reasonably prudent driver
(Modified objective). Consider TOTALITY of circumstances (ex. Booze)
Reasonable Mistake of Fact can be taken into account. No way of knowing road
was icy? Also, take into account the amount of time driving in such a manner.
OTHER
7 Can be used for SUBSTANCE
Motor Vehicle Reference – You cannot have an absolute liability offence with
possibility of imprisonment attached.
 Violates s. 7 of the charter

Crux of problem: Being imprisoned without a guilty mind
***YOU CAN USE s.7 TO GO AFTER SUBSTANCE OF THE LAW
 Must be a tangible concept that has applicability to the accused
 Must demonstrate it is a pillar of “fundamental justice” being infringed
Felderhof – a judge can lose jurisdiction when uncivil conduct on a court room is
not being reigned in.
Foddie – more aggravated part of offence, no further mens rea (for some
offences objective foresight of non-trivial bodily harm)
Assault INTENDING to cause bodily harm (double mens rea)
Assualt CAUSING bodily harm (no further mens rea)