Final Exam
70% is second term
- AR, MR and Defences
30% - A question from the big chunk in part 3
- Topics 4 – 7 on moodle, exclusion of evidence, search and seizure, arrest and detention and confessions.
But the essay spans over the whole course
Part 1 (choice) – 8
Part 2 – 18
Part 3 – 62
Part 4 - 12
Principles of Criminal Liability
-
Criminal liability for an offence normally requires proof of three elements: (1) actus reus; (2) mens rea
and (3) absence of any lawful defence:
Mens rea refers to the state of mind (or mental blameworthiness, i.e. "culpability") which is required in
order to convict a person of a particular crime.
1. Actus reus
- Refers to the "conduct" which is prohibited.
- Description of the prohibited conduct must not be impermissibly vague or overly broad, otherwise
challenged under the Charter. The accused must know the specific offence they are charged with so that
they can mount full answer and defence.
- According to the principle of legality and s. 11(g) of the Charter, a person cannot be convicted of a
criminal offence retroactively
- Concurrence is also likely a PFJ. There must be a concurrence between the actus and the mens rea. They
must intersect but need not completely overlap. So questions about when that interaction occurred and
whether it is valid in all the circumstances.
- Elements of Actus Reus:
o (1) Physically voluntary
o (2) Act or Omission: can be both, normally omission not enough, have statutory provisions
criminalizing failures/omissions to act
o (3) Sometimes in certain prescribed circumstances: in impaired driving is driving while impaired
(No actual harm to any person or property is required.)
o (4) Sometimes causing certain consequences: the prescribed harm in the offence of
murder/manslaughter is death of a human being.
voluntary
act, or
omission
of a legal duty1
causes
prescribed harm2
or
occurs in
prohibited
circumstances3
Voluntariness
- No CC provision, but the courts have stated (common law general principle) that it is a fundamental
principle of our criminal law that no conduct can be criminal unless it is done voluntarily: see Rabey
(1980), Parks (1992), Daviault (1994), Stone (2000) AND Ruzic (2001)
o Rabey: had gone into a state of disassociation, not acting voluntarily in a conscious way. An
earlier illustration of the courts issues about voluntariness
o Parks: Involves sleep driving, and then killing people. Can be acquitted because you were not
acting voluntarily, and it was not a mental disorder.
o Daviault: he was so drunk that medical evidence said that he had no control over any of his
cognitive or other functions. Goes back to the principle that we don’t convict someone who
didn’t act voluntarily.
- The requirement of "voluntary" conduct is "fundamental" because we recognize it would be unfair and
unjust to condemn and punish persons for conduct they did not choose or could not physically control.
Physical Involuntariness
- In the context of actus reus refers to "physical" voluntariness; has not normally been thought of as
having a “moral” element, that is automatism (Ruzic)
- Lack of physical control over one's actions may sometimes arise when a person is conscious; other times
it will arise because the person is unconscious.
- Examples of conduct that is physically "involuntary" (not willed) even though the accused is conscious
include:
o A spasm or twitch, reflex action (e.g., stung by a swarm of bees example), unexpected
mechanical failure of vehicle, trip and fall, A takes B's hand and swings B's hand into C
(physical compulsion), physically impossible to fulfill a legal duty, accused was placed in legal
jeopardy (became illegal alien) while in detention: see R v Larsonneur. This case was wrongfully
decided, that defence of voluntariness should have been allowed but was not.
- Examples of "involuntary" conduct where the accused is not conscious (or fully conscious) include:
o Some severe forms of mental disorder such as psychomotor epilepsy which is dealt with under
the mental disorder/insanity defence [s. 16 of the Criminal Code]
o Extreme intoxication, see King where accused under influence of sodium pentathol; normally,
however, self-induced (voluntary) intoxication not seen as vitiating voluntariness requirement
o Situations other than insanity or intoxication such as sleepwalking [Parks], concussion, delirium,
or epileptic seizure
Physical versus Moral Involuntariness
R v Ruzic – Introduces moral involuntariness
- Facts: she was coerced into carrying heroin into Canada. The defence of duress is only available if the
person can cause immediate harm to you and that was not the case here.
- Argued that the Charter should reflect some form of moral voluntariness. Her mother was still in the
country and could be harmed
- Decision: This case was a bit of an analomy, and it opened the door past what we understood
voluntariness to be. You don’t have to be unconscious to raise an issue with respect to voluntariness. It
recognizes that voluntariness can have both moral and physical dimensions.
- Only people acting in knowledge of what they were doing with the freedom to choose would bear the
burden and stigma or criminal responsibility. Need a conscious mind and autonomous will
- Ruzic recognizes that voluntariness normally refers to "physical voluntariness"; however the S.C.C. in
Ruzic also introduces a different concept which they refer to as "morally involuntary" conduct
- Critics don’t like Ruzic; more logical for moral aspect to be dealt with under defences
- "Physical involuntariness" is an essential requirement of the actus reus. If the accused's conduct is not
physically voluntary, there is no actus reus and therefore no criminal liability. On the other hand, even
if the accused's conduct is intentional and "physically voluntary", the accused may be found not guilty
on the basis that his or her conduct was "morally involuntary" due to duress/compulsion. In other
words, moral involuntariness arising out of duress/compulsion is a separate defence which exists
notwithstanding the existence of actus reus and mens rea.
Kilbride v Lake – Crown must show voluntary act of omission
- Facts: He left his car with the warrant displayed on it but it fell off without his knowledge, so he claims
no MR. Crown says that MR is not necessary since strict liability. Here a “public welfare” offence (not
strictly speaking criminal law) however some interesting reflections on the distinction between AR and
MR
-
-
-
Issue: whether something done perfectly lawfully by the appellant could become an offence on his part
by reasons of an intervening cause beyond his control or influence, and produced on effect entirely
outside his means of knowledge.
o So the question is what was the voluntary act of omission here, what did he do? The Crown has
to point to some voluntary act or omission on his part before they can call upon him to mount a
defence. On these facts there is nothing there to point lack of voluntariness.
Decision: to have AR and be voluntary, you must have a different course of action available to you, here
he didn’t have that. The Court holds it is unnecessary to analyze these facts as presenting a mens rea
defence; the prior question is whether this act/omission alleged was a “voluntary” one.
It is included to show that even in situations where it is a regulatory prosecution and different rules
apply, the Crown must show some voluntary act or omission that put this person in jeopardy before the
accused proves due diligence.
Concurrence or Contemporaneity
- Contemporaneity: With regards to all offences that require proof of fault, the offence cannot be proved
unless the element of fault, the mens rea and the actus reus coincide or are concurrent, present at the
same time. Applied in a flexible manner
o The act cannot be complete before the mens rea arose.
- It is not necessary for the actus reus and mens rea to be "completely" concurrent. It is only necessary
for the mens rea to be present at some time between the beginning and the end of the actus reus.
o In Cooper, S.C.C. held that the requirement for concurrence was satisfied even though the mens
rea may not have existed throughout the entire actus reus
o He strangled a women and the court said that as long as he knew that his actions were likely to
cause death, need not be aware of what he was doing at the moment she died. Don’t have to have
intent the entire time and be completely concurrent
- The cases of Meli (1954 PC), Fagan (1969 CA) and Miller (1982, HL) show that the courts do not take
a narrow or strict approach to the requirement that the actus reus and mens rea must concur at some
point in time.
Meli v The Queen – entire episode one transaction
- Facts: He hits someone numerous times and then throws him over the cliff thinking he is dead. He
actually dies due to the exposure when he lay at the base of cliff.
- Accused argues the mens and actus don’t coincide since the MR was not present when the victim
actually died.
- Decision: the entire episode was one continuing transaction that could not be subdivided in that way. At
some point, the requisite MR coincided with the continuing series of wrongful acts that constituted the
transaction
R. v Miller - unintentional act followed by an intentional/reckless omission is contemporaneous
- Facts: his cigarette fell on the mattress which lit on fire. He did nothing and so was charged with arson
- Decision: an unintentional omission to rectify that act or its consequences can be regarded in total as an
intentional act. Only when common sense requires. Court looks at the entire transaction from the
moment that he starts the fire. He didn’t have the mens rea when he went to sleep but did possess it of
recklessness when he woke up. Relied on the "omission of a legal duty" approach rather than the "one
continuous act" approach. To do so, the House of Lords appears to have created a (new) common law
legal duty - one which the law did not appear to recognize before
- Alternative theory is that if you become aware of a dangerous situation and are able to prevent the harm
about to occur you risk criminal liability.
- If you frame the situations broadly then you are able to include an act.
Fagan v Commissioner of Metropolitan Police - Separate acts/omissions may be viewed as one continuous act
or transaction
- Facts: assaulted a police office by driving a car onto his foot and then not moving it.
- Issues: was mounting deliberate or accidental and did the AR and MR coincide
-
Decision: it is not necessary that the MR be present at the inception of the AR, it can be superimposed
upon an existing act. This case was initially an accident but became criminal the moment the intention
was formed.
- Dissent: disagree that he had MR and that his actions did not amount to assault
William
- The most recent case in which the SCC has discussed concurrence is Williams (2003).
- Facts: the accused was charged with aggravated assault for having unprotected sex with his partner after
he was diagnosed with HIV without telling her of his status. The two had been partners for 5 months
before, and for a year after he learned of his status. His partner was also diagnosed as HIV positive, and
thereupon the charge was laid.
- Section 268 of the Code states: “everyone commits an aggravated assault who wounds, maims,
disfigures or endangers the life of the complainant”. On these facts there was no doubt that the accused
had the requisite mens rea (recklessness) to be found guilty of the offence; however the SCC held that
there was reasonable doubt as to whether at the relevant time (after he knew of his status) the
unprotected sex did in fact endanger his partner’s life (in that by that time she may have also been HIV
positive).
- So he was found guilty of attempted aggravated assault because she could have gotten the disease before
he knew.
R v Larsonneur
- She was ordered to lease UK, she did but the Irish authorities brought her back and so she was convicted
of being found where she was not supposed to be.
- The court found her guilty through circumstances beyond her control and the SCC agreed, they ignored
voluntariness
2. Actus Reus – Acts, Status, Omissions & Circumstances
Acts
-
An offence usually requires a prohibited act, but it could be an omission to fulfil a legal duty, an
otherwise legal act occurring in prohibited circumstances, or a prohibited status (e.g. being French).
Since the prohibited act is always set out in the Code or the statute creating the offence, the main
practical concern about "the act" is a definitional one
The readiness of the criminal law to punish positive acts stands in stark contrast to the deep discomfort
that the law manifests for criminalizing omissions, failures to act.
Criminal law will not punish for mere failure to act, but will in certain cases when they had legal duty to
act.
Status Offences
- A status offence can be described as criminalizing "a state of being", rather than some positive action.
They punish when no act or omission, eg. common bawdy house provisions
- This is subject to substantial controversy; should it be a PFJ that a pure status offence nullifies choice
o Malmo-Levine; a PFJ must be a manageable standard and have societal consensus.
- NB: Parliament is very mindful of not creating these types of offences. Parliament recently rejected the
option of making it an offence "to be a member of a criminal or terrorist organization". Instead,
Parliament made it an offence to participate in the activities of such organizations. Don’t criminalize
people’s beliefs, affiliations or status.
- Heywood: vagrancy is an offence that raises these types of status related issues. In Heywood it was
argued that the prohibition was overbroad. The provisions which say that the person doesn’t have a job,
is a type of status (S.179(1)(a)).
- Very few, if any, pure status offences in Canadian criminal law. Would likely offend principles of
fundamental justice under s. 7 of the Charter to criminalizing pure "status" rather than "action";
especially where status is "involuntary" see Victoria v Adams
Omissions
- An omission is a failure to act. The law imposes criminal liability for an omission only in circumstances
"where the law imposes a legal duty to act".
- There has been no general legal duty to be a good Samaritan, even when one can do so easily and
with no risk or disadvantage to oneself.
- General Common Law Duties: The common law recognized at least three broad categories of legal
duties which were codified:
o (1) S. 215(1) - duty to provide "necessaries of life" to certain dependents (e.g., a parent/guardian
to child; doctor/nurse to patient)
o (2) S. 217 - duty of persons undertaking an act to actually do the act, if omitting to do it may be
dangerous to life, R v Brown below
o (3) S. 216 - duty of persons to use reasonable care in undertaking acts that may endanger life.
- Specific Omission Offences. The Criminal Code also contains some offences which set out specific
omissions as part of the offence. For example, see
o S. 50(b) - fails to report to the police a high treason [s. 46(1)] that is about to be committee
o s. 80 - breach of duty in regard to the care of explosives [s. 79]
o s. 127 - failing to obey a court order
o s. 129(b) - omitting to assist a police officer when requested
o s. 252(1) - failing to stop and render assistance after being involved in an accident.
o s. 254(5) - failing to provide a sample of your breath
- General Omission Offences. Some offences in the Criminal Code indicate that the crime can be
committed either by an act or "by omission of a legal duty". Two important examples of this type of
omission offence are:
o s. 180(2) - Common Nuisance: Everyone commits a common nuisance who does an unlawful
act or fails to discharge a legal duty and thereby (a) endangers lives, safety, health, property or
comfort of the public …
o s. 220/221 - Criminal Negligence Causing Death/Bodily Harm
 Section 219 defines criminal negligence as follows:
 219(1) Everyone is criminally negligent who
 (a) in doing anything, or
 (b) in omitting to do anything that it is his duty to do, shows wanton or reckless
disregard for the lives or safety of other persons.
- For the purposes of this section, "duty" means a duty imposed by law
Cases on legal duties emanating from the Common Law
- Several courts of appeal have held that legal duties can arise by statute (federal or provincial) OR
common law. The Supreme Court of Canada has not yet ruled on this latter point.
- The following cases are citied in Thornton because they show that you can found a duty outside criminal
law, or in the common law. In Thornton they found the duty in Donoghue v. Stevenson
Coyne
- The N.B.C.A. held that a duty in regard to the offence of criminal negligence causing death may arise by
either statute or common law. The Court then went on to convict the accused based on a common law
duty to use reasonable care in dealing with a dangerous object such as a rifle.
- Query: Could the Court have relied upon s. 216 for the legal duty?
- They upheld that at common law he failed to take care of the riffle which would have prevented harm
from occurring.
Popin
- The Ontario Court of Appeal held that a duty in regard to the offence of criminal negligence could
arise by statute or common law. The Court relied upon a common law legal duty of a parent to take
reasonable steps to protect his or her child from illegal violence. Query: Could the Court have relied
upon the legal duty in s. 215(1)?
R. v. Nixon
-
B.C. Court of Appeal held that the officer in charge of a police lock-up was a party to and guilty of
aggravated assault of a prisoner on the basis of his breach of a legal duty to provide care and protection
to inmates under his care. The inmate was assaulted by other police officers. The Court said the legal
duty of the officer in charge arose both by statute and by common law.
- Query: Could the Court have relied upon the legal duty in s. 215(1)(c)? Does this case potentially have
relevance to the Frank Paul case?
R v Thornton
- Facts: he donated blood while knowing that he was HIV positive
- Decision: The Ontario Court of Appeal held that liability for common nuisance under s. 180 of the
Criminal Code can arise out of breach of a common law duty. The Court relied on the common law tort
duty in Donoghue v. Stevenson to take reasonable care not to injure one's neighbor. The Ontario Court
of Appeal held that the accused's failure or omission to disclose that he was HIV-positive when donating
blood to the Red Cross was a breach of the above mentioned legal duty and was sufficient to convict
him of the offence of common nuisance.
- NB: The Supreme Court of Canada did not address the issue of whether criminal liability can be based
upon a common law duty; instead the Supreme Court found that the accused violated the statutory duty
in s. 216 of the Code.
o The SCC was not prepared to follow CA because (1) that is a huge decision which would give
the common law courts a role in defining the criminal law. (2) Also they were able to rely on one
of the three enumerated sections of the code to found the applicable duty.
 It is not really clear in this section, so they seem to stretch this section. But it may be
sufficiently broad to be able to include a wide variety of factors.
o Does reliance on common law duties, as opposed to statutory duties, violate the spirit of s. 9 of
the Criminal Code (enacted in 1954) which abolished all common law offences?
o Would it be appropriate for a Canadian court to create a new legal duty such as the House of
Lords did in Miller where the House of Lords held [CB: 305] that there is a common law duty on
persons who accidentally create a danger to take action to stop or mitigate the continuing harm
flowing from their accidental conduct?
Circumstances
- Some crimes require the accused's conduct to have caused certain prescribed harms, whereas other
offences require the accused's conduct to occur in certain prescribed circumstances.
- Critical point in interpretation of offence is to identity what circumstances, if any, are essential
ingredients of the AR.
- Murder or manslaughter is an example of the first -- the accused causing the death of another human
being (harm based)
- Driving while impaired, or driving in a dangerous manner, are examples of the second -- conduct which
occurs in the prohibited circumstances "while impaired" or "in a dangerous manner". (circumstancebased)
- There is no requirement for a specific harm to have been caused. This latter conduct is criminalized
because of its potential for harm in the future if such conduct continues. Some offences will involve
both prescribed harm and prescribed circumstances.
3. Consequences and Causation
- Some offences require proof that the accused "caused" a particular harm or consequence.
- As part of its ordinary burden of proof, the Crown must prove "causation" beyond a reasonable doubt.
In practice, the existence or non-existence of causation is often self-evident.
- The Criminal Code does not have any general provisions on causation and therefore common law rules
of causation apply.
- Causation is comprised of two elements: legal and factual
- There are some tensions and competing positions about where to set the threshold in terms of
causation.
o On the one hand in terms of first degree murder, we have set the bar high in terms of causation,
pursuant to the decision in Harbottle.
o Consequently in all other cases, both culpable homicide and other cases we have set the standard
very low, even in case of second degree murder, Smithers
A Tangent on Murder and Manslaughter
- Culpable homicide comes in three varieties: murder, manslaughter and infanticide: s. 222
- Culpable homicide is murder inter alia (among other things) where the accused causes the death of a
human being (i) meaning to cause his death or (ii) meaning to cause bodily harm but knowing that death
will likely be caused or reckless to whether death occurs: s. 229
- First degree murder is “planned and deliberate” or where the victim falls into specified categories of
employment, or in the commission of listed offences: s. 231
- Second degree murder is the residual category (all other murders): s. 231(7)
- Manslaughter is culpable homicide that is not murder or infanticide: s. 234
o It becomes another residual category
o No minimum sentence, can simply get probation.
- A conviction for manslaughter can be arise inter alia where (i) the Crown does not prove the accused
had the requisite MR for murder; (ii) where the accused committed an unlawful act in circumstances it
was objectively foreseeable that bodily harm would ensue (i.e. unlawful act manslaughter) and (iii)
where murder was committed as a result of provocation: s. 232
- There is no minimum sentence for manslaughter; the mandatory sentence for first and second degree
murder is life imprisonment; for first degree murder there is no parole eligibility for 25 yrs; in second
degree cases, parole eligibility is set by the trial judge at between 10 and 25 yrs: see s. 235
Factual Causation
- There must be at least some causal link between A’s conduct and the criminal harm.
- The threshold is so low that all the Crown has to prove is that some causal relationship existed.
- Examples of no factual causation established beyond a reasonable doubt:
Winning (1973, Ont. C.A.)
- Facts: she applied for a credit card in which she provided false information. The store did not rely upon
the false pretense in granting credit. She is convicted of providing false information and her appeal was
accepted.
- Decision: Defence was successful in saying that since they didn’t rely on the false pretense, she didn’t
obtain the card of false pretenses. Lack of factual causation
Wilmot (1940) 3 D.L.R. 358
- Impaired driving causing death. Impairment must be a cause, not just a circumstance. Accused
acquitted of manslaughter where a cyclist suddenly and unexpectedly swerved into his path.
Fisher (1992, B.C.C.A.)
- Decided similarly to Wilmot - no proof that the "impairment" caused the accident. But in White (1994,
N.S.C.A.), it was held that once impairment is proven, it will be assumed that impairment contributed to
the accident unless there is some other innocent explanation for the accident. Likewise, in R. v. Andrews
(1994), 91 C.C.C. (3d) 97 (B.C.C.A.), the accused's impairment was held to be a contributing cause of
the deaths beyond the de minimis range.
White, [1910] 2 K.B. 124
- Tried to poison Mom but she died of independent heart attack unrelated to the poisoning. Not liable for
death of Mom (but liable for ...). An illustration of factual causation, she was not affected by the
poising and died of a completely unrelated cause. May be charged of an attempt.
Johnson (1976, N.B.C.A.)
- Is an example of where there was some uncertainty (i.e. a reasonable doubt) as to whether the accused's
blow to the victim's head caused the victim's death or whether the death was caused by other head
injuries which were not caused by the accused.
Legal Causation
- Any contributory cause that is “above the de minimis range” (Simithers)
- Proof of factual cause may not by itself be sufficient to establish legal (or imputable) cause. Before
"imputing" criminal liability for "causing" a particular harm, the law requires that the factual connection
be significant enough to justify liability (i.e. the factual cause must also be a sufficient legal cause).
- This requires a higher form of probability and a more rigorous form of causation. Legal causation is
defined by the common law and not the criminal code
- England: Test illustrated in Smith and Blaue - “substantial and operating cause”; and not merely the
setting or background for another overwhelming cause to take effect
o This is very different from Smithers
- Canada: The general test for legal causation in Canada (as set out in Smithers) is set at a lower
threshold than the causation test in England:
Smithers v The Queen
- Despite controversy and problems this is the test that is used in all cases other than first degree murders
(Harbottle). It arises in the context of a manslaughter prosecution but also applies across the criminal
law including in second degree murder prosecutions (Cribben)
- Facts: Two hockey players get in a fight, accused kicks the victim in the stomach but the victim had an
epiglottis malfunction which caused him to choke on his vomit. There is factual causation, connection
between the illegal assault and the death. The victim was not defending himself, the last kick occurred in
an unexpected way, so he had no self-defence argument here (so no lack of causation).
- Decision: SCC held that a legal cause is "any contributory cause that is beyond the de minimis
range". There is no need for the accused's conduct to be the "sole cause", the "main cause" or even a
"substantial cause".
o It is something more than trivial, all the Crown has to prove is one cause. Thus there can be more
than one legal cause for the harm and therefore more than one person can be legally liable for
causing the harm.
- Application to case: Here all of the circumstances preceding the kick could have caused the vomiting,
but the Crown proved beyond a de minimus range that the kick caused vomiting.
- For manslaughter, the death may have been unexpected and the physical reactions unforeseen, but that
does not relieve the accused. Well recognized principle that they must take the victim as they find them.
Even if the unlawful act alone would not have caused the death, it was still a legal cause so long as it
contributed in some way to the death.
- It was pre-Charter so challenged in Cribben
Cribben (Ont. C.A., 1998)
- Facts: accused involved in a beating that resulted in non-life threatening injuries and the victim and left
victim unconscious. He was left on the side of the road and drowned in his own blood. Accused charged
with manslaughter.
- Issue: Does the Smither’s test set a threshold that is too low for causation in homicide.
- Appellant argues that the “de minimus” test is too vague and that the standard sets the bar to low from
the prospective of recognizing that criminal law is about fault, in particular moral fault.
o If all the crown has to prove beyond de mimimus, we are criminalizing and labeling individuals
as guilty where the level of causation and fault is quite low.
- Decision: The Ontario Court of Appeal held that the Smithers de minimis test, although a very low test
for criminal liability, does not violate principles of fundamental justice under s. 7 of the Charter in
regard to the offences of second degree murder and manslaughter. The Smithers test is neither
unconstitutionally vague or lacking a requisite fault component
- Need to bear in mind that (1) this approach to unlawful act manslaughter where liability flows from
unlawful act, has been around for centuries, so a constitutional challenge will be hard. (2) By the time of
challenge they have already delivered there reasons in the mens rea in Creighton, so they are constrained
-
not directly because this is an action against the actus, but still it is very similar to the other decision on
mens rea.
o In Creighton they found that unlawful act manslaughter requires objective foreseeability of
bodily harm which is neither trivial nor transitory, arising from a dangerous act
o Law of causation must be a PFJ akin to MR because morally innocent should not be punished.
Causation is embodied in the same PFJ and it requires that the law should refrain from holding a
person criminally responsible for consequences that should not be attributed to him/her
o Test: if a person commits an unlawful act that is dangerous, in circumstances where a reasonable
person would have foreseen the risk of bodily harm which is neither trivial nor transitory and the
unlawful act is at least a contributing cause of the victims death, outside the de minimus range,
then the person is guilty of manslaughter.
No issue with the Smither’s standard either from the mens rea or the actus reus with the question of
section 7 challenge
R v Nette (S.C.C. 2001) – Change articulation of Smithers test
- Facts: an elderly lady was found hog-tied with electric wire and had a red garment tied around her neck.
She died by choking but the doctors could not isolate one factor from among the circumstances that
caused her death. The accused confessed to an undercover officer and was convicted of second degree
murder.
- The Crown’s theory was that this was a murder committed in the course of a listed offence so it is first
degree. But jury decides it is second degree
- The accused argued there should be one standard of causation for both first and second degree murder
cases: namely the "substantial cause" test traditionally applied in first degree case per Harbottle.
- Decision: It held that the causation standard in Smithers is valid and applicable to second degree murder
- Majority: Arbour J (5 to 4) would change its articulation (i.e. the words used to describe it).
o The only potential shortcoming with the Smithers test is not in its substance, but in its
articulation
o In order to explain the standard as clearly as possible to the jury, it may be preferable to phrase
the standard of causation in positive terms using a phrase such as "significant contributing
cause" rather than using expressions phrased in the negative such as "not a trivial cause" or "not
insignificant". Latin terms such as "de minimis" are rarely helpful.
o The majority noted that trial judges have a discretion in choosing the terminology they wish to
use in explaining the causation standard to the jury, but suggest that "to the extent that trial
judges may find it more useful to express the standard of causation in Smithers in a more direct
and affirmative fashion, they may find it preferable to express the standard positively as a
'significant contributing cause’"
- Dissent: L’Heureux-Dube (concurring in result) disagrees that with majority's conclusion that the
"significant contributing cause" has the same meaning as "a contributing cause that is not trivial or
insignificant".
o In her view “not insignificant” does not = “significant”. By replacing “not insignificant” with
“significant” the Court is elevating “threshold of causation” in 2nd degree and manslaughter
cases.
Causation Test for First Degree Murder
- There is also a special and higher causation test for first-degree murder under s. 231(5) which provides
that murder will be classified as "first degree" where "the death is caused" by the accused while
committing one of the listed offences.
Harbottle (S.C.C., 1993) – Substantial and Integral Causation Test
- Facts: two men held down a girl after sexually assaulting her and strangled her to death
- Issue: can the friend who held the girl down also be convicted of murder in first degree. Also don’t
know if the jury thought it was planned and deliberate or in the course of assault.
-
-
Decision: The S.C.C. held that under the causation test for s. 231(5), "the actions of the accused must
form an essential, substantial and integral part of the killing of the victim." But this "substantial and
integral" causation test applies only to first degree murder (perhaps only under s. 231(5)) and not to
second degree murder: Cribben, supra; Nette, supra. There is a higher standard here
Also they say you cannot distinguish between the blameworthiness of an accused who holds the victims
legs thus allowing his co-accused to strangle her and the accused who actually strangles her.
Thin Skull
- As in tort law, the victim’s thin skull is not an intervening act, and does not negate liability. A
wrongdoer must take his victim as he finds her. (e.g. Blaue, Smithers)
- Smithers - malfunctioning epiglottis
- Blaue - must take their victims as they find them - including religious beliefs against accepting certain
forms of treatment.
Intervening Cause
- An intervening cause (novus actus interveniens) will not negate legal causation for the original act if the
intervening cause is a direct result of the original act (i.e. dependent on the original act).
o White, is an example of an independent intervening cause. A tried to poison Mom but Mom died
of independent heart attack so not liable for death of Mom (but liable for ...)
- If something breaks the chain of causation, this will rid the offender of liability.
- In most cases, the alleged intervening cause is not independent from the accused's conduct, and does not
therefore relieve the accused of liability for causing the harm. See for example:
o Blaue - V’s refusing blood transfusion is a direct result of A’s wounding her, therefore A is still
liable for V's death.
o Section 222(5)(c) of the Criminal Code - If Victim does anything which causes her death (e.g.,
jumps from a window or a moving car) in order to avoid threats of violence from A, A has in law
caused V's injuries -- i.e. V's conduct is not an intervening cause which relieves A from criminal
liability.
o Pagett v The Queen (Eng. C.A., 1983)
 Facts: He was being shot by a police officer and used his daughter as a shield. She was
killed and he was charged with murder. The jury acquitted of murder and convicted of
manslaughter
 Issue: whether an accused person can be held guilty of homicide of a victim, the
immediate cause of whose death is the act of another person must be. This must be
determined on the ordinary principles of causation.
 Held: A’s conduct was a direct cause of police conduct, therefore A’s conduct is a legal
cause of V’s death.
Remoteness
- Smithers leaves open the possibility that the original act may be so remote (or the treatment so incorrect)
that the original act is in fact de minimis and therefore not a legal cause.
Degrees of Causal Connection
- Judges do not use (and would frown upon lawyers who tried to use) a numerical scale to distinguish
between "insignificant", "significant" and "substantial" causes. These concepts are not precise,
numerical concepts. Instead they require judges to make qualitative judgments (a process that is both
more fluid and more amorphous). Keeping in mind this cautionary note, the following Chart may give
you some relative sense of these three concepts (although it could be readily argued, for example, that
my suggestion that "insignificant" cause is "5 or less" on the Chart is too high or too low an estimation).
- Smithers is very low
- 0 = No causal connection at all, therefore no criminal liability for that harm
-
-
-
From 1 – 5: A factual cause but not a legal cause. The factual connection is "insignificant, trivial, de
minimis", and therefore the criminal law does not hold the actor liable for that harm -- i.e. no legal
causation.
At 6 and above: The factual cause also becomes a legal cause (except for 1st degree murder. The factual
connection (i.e. the factual cause) is now above trivial or de minimis" and therefore the law will hold the
actor's conduct is a legal cause for that harm. Smithers referred to this test for legal causation as a "a
contributing cause beyond de minimis". In Nette the majority indicates that they are not changing the
Smithers standard but suggests that it may be preferable to describe the Smithers standard as "a
significant contributing cause".
30: Substantial Cause (test for 1st degree murder under s. 231(5): Harbottle)
51: Main or Primary Cause
100: Sole Cause.
4. Mens Rea
Introduction
- "Actus non facit reum, nisi mens sit rea.": The act is not criminal [guilty] unless the mind is also criminal
[guilty]
- Although it has been generally asserted in case law for centuries that criminal liability requires a guilty act
and a guilty mind (mens rea),
o (a) Mens rea has no one settled meaning
o (b) The Code does not use the words "mens rea", nor does the Code state, as a general principle,
that mens rea is required;
o (c) The Code includes mens rea (mental element) words in some offences and excludes mens rea
words from other offences in an apparently random fashion,
o (d) Some offences do not require mens rea in regard to one or more elements of the offence
- Historically there was a tendency to use the phrase "mens rea" to refer to some general, but undefined
notion of "moral blameworthiness", courts used "evil", "wicked" or "depraved".
- Slowly, there has been a trend toward trying to define mens rea in terms of specific states of mind - e.g.
intention, knowledge, recklessness. The trajectory has been that MR was equated with evil, to a more
objective, scientific notion that where we can separate, identify and prove specific and distinct states of
mind that can be used for criminal law purposes. Moved from depravity and evil to this notion of
intention, knowledge and willful blindness, etc.
- Why is mens rea generally considered an essential element of criminal liability?
o The S.C.C. has held in cases such as Martineau and Reference re s. 94(2) Motor Vehicle Act, that
(i) the criminal law ought not to punish the morally innocent, and (ii) that the level of moral fault
for an offence ought to be proportionate to the seriousness and consequences of that offence.
- The way that the Crown frames the issues is very important, they want to frame the AR broadly, so that
they can say that the MR came up at one point. But the defence will want them to narrow to a single
transaction and say it’s not fair to characterize it in a broad fashion
- The MR tends to be a much more contested because the Criminal Code is not very clear about it. It very
rarely speaks directly to the issue, will sometimes use archaic language
Types of Fault (Chart)
- Full Mens Rea: Intent, knowledge, recklessness, wilful blindness. Subjective test.
- Criminal negligence: A marked and substantial departure from the conduct of a reasonable person which
shows wonton and reckless disregard for the lives and safety of others” (Tutton, Gingrich and McLean)
(Objective Test)
- Penal negligence: A marked and substantial departure from the conduct of a reasonable person” (Hundal,
Beatty) (Objective Test)
- Strict Liability: Different meaning from tort law (Objective Test)
- Absolute Liability: (No fault liability) MR does not matter, but it can be seen as being unconstitutional in
certain situations
Types of Defences
(1) Negative Defences
- Ie. Mistake of fact; Voluntariness
- You are saying that the Crown has not proved the AR/MR, voluntariness, or contemporaneity. Defenses
that go to the actual Crown proof.
- They can be successfully argued without having to raise your own evidence or put your client on the stand
because they go to negate the proof of beyond a reasonable doubt
(2) Affirmative defences
- i.e. provocation; drunkenness; duress; necessity; automatism
- This is where you have to put your client on the stand.
- Automatism is a wildcard, can be used in different areas.
- You may have to prove on a balance or probability or air of reality.
(3) Justification
- Ie. Self-Defence
- In most cases, enough to raise reasonable doubt (based on “air of reality” test)
- However, certain defences (i.e. automatism, drunkenness) require proof of defence on balance of
probabilities
To What Elements of the AR does the MR apply?
- The General Rule (Rule of Symmetry): Must have a MR for every element of AR
- Exception: Crimes based on a Predicate Offence
o MR only relates to the AR elements of the predicate offence: Creighton
o Where it was an unlawful act causing something, only need MR for the unlawful act, don’t have
to prove that the consequences attached to that act was going to happen.
Types of Full (subjective) Mens Rea
- The Criminal Code and case law use several different types of subjective mens rea. The main ones are: (a)
willfully/intentionally (b) knowingly (c) recklessly (d) wilfully blind
- When an offence in the Criminal Code is silent as to mens rea, there is a presumption that full subjective
mens rea applies. But which of the four types of subjective mens rea described above applies?
- In Buzzanga, the Courts held that the general mens rea that is required can be satisfied by proof of any of
the specific types of subjective mens rea.
(1) The Meaning of "Wilfully"
- In general, the word "wilfully" means intentionally, unless the statute states otherwise.
- If an offence specifies that it must be done wilfully, such as “wilfully promoting hatred” in s. 319(2) of
the Code, this means that the Crown must prove it was done intentionally.
- It will typically not be sufficient to prove it was done recklessly or negligently: Buzzanga; approved in R.
v. Keegstra
- Exceptions: In certain circumstances, Parliament may deem that the word "wilfully" includes intentionally
and recklessly, as Parliament has done in s. 429 for offences under Part XI of the Criminal Code. [i.e.
Wilful ppty damage]
R v Buzzanga
- Facts: they made a pamphlet about French schools that can be seen as promoting hate. They said their
purpose was to create the truth and a movement for the government to do something, they didn’t intend to
raise hatred towards anyone.
- Issue: what does “willfully” mean
- Decision: Primarily means “intentionally”, not accidentally, intention to bring about consequences, more
narrow approach
- By using willfully it is reasonable to assume that Parliament intended to limit the offence to the
intentional promotion of hatred.
(2) The Meaning of "Intention"
- Distinction between “intent” and “motive”: Steane
- Distinction between “purpose” and “intent”: Hibbert
- The meaning of "intention" and "recklessness" have been clarified in Buzzanga
- Two types of Intent (Hibbert)
o a) Direct Intent: Acting with the intent/purpose/desire of bringing about the prescribed harm. In
this situation, intent exists regardless of whether the act will certainly, probably or only possible
cause the harm.
 You wanted something to happen, and it happened. Once you have formed that and it
exists, it doesn’t matter if the act actually occurred. If you formed the intent you will be
held liable unless can prove the intent didn’t come to fruition. This allows Crown to
attach liability where the intent was formed but the AR was not fully realized.
o (b) Indirect or Oblique Intent: Acting without the intent/purpose/desire of bringing about the
prescribed harm, but foreseeing that that harm is “certain or substantially certain to result”. A
does an act with the intent, purpose or desire of bringing about something other than the
prescribed harm, but A also knows (foresees) that the prescribed harm is certain or substantially
certain to occur.
 e.g., A puts bomb on airplane with intent to blow up the cargo, but A knows that it is
certain that the bomb will also blow up the pilot. In this example, in law, we say that A
intended to kill the pilot
- Buzzanga emphasized that "substantial certainty" is required for indirect intent; "highly probable" does
not constitute indirect intent
- R v Tennant and Naccarato: where liability is subjective, what a reasonable man ought to have anticipated
is merely evidence from which a conclusion may be drawn that the accused anticipated the same
consequence. “Common Sense Inference”
R v Buzzanga – creates two types of intent
- Substantial support for the proposition that in criminal law a person intends a particular consequence not
only when his conscious purpose is to bring it about, but also when he foresees that the consequences is
certain or substantially certain to result from his conduct.
- Can be convicted in this case if (a) conscious purpose in distributing the document was to promote hatred
(b) they foresaw that the promotion of hatred against the group was certain or morally certain to result,
although the actual purpose was different
- Since people are able to foresee the consequences of their acts, if a person does an act likely to produce
certain consequences it is in general reasonable to assume that the accused also foresaw the probable
consequences of his act and if he nevertheless acts so as to produce the consequences that he intended.
- But the purpose here is what the particular accused intended, not to fix what intent of reasonable person,
where doubt exists as to the mind of the accused
R. v. Chartrand (1994) – use both direct and indirect intent for “with intent to”
- The Supreme Court of Canada held that the words "with intent to" in s. 281 of the Code [abduction]
includes the two separate states of mind listed above.
- It lines up with Hibbert in that where you see words like purpose or intent, those words should be read as
importing both the direct and indirect forms of intent.
R v Hibbert – purpose does not mean desire, can be direct or indirect intent
- Fact: He was forced by the principle offender to accompany him to the victims building and to lure him
to the lobby. He was charged as a party under s. 21(1)(b) of the Code to attempted murder.
- He claimed he was coerced into assisting the principal offender into luring the victim to attend at a hit. He
claimed he had no desire to assist in the hit and therefore lacked the MR required by s. 21 which speaks of
doing “anything for the purpose of aiding any person to commit an offence”.
- Decision: The SCC rejects his claim that lack of desire = absence of purpose; leaving open his potential
claim for an affirmative common law-based defence of duress
- For the purpose it does not have to equal desire. For the purpose of aiding, it doesn’t require the accused
to actively view the commission of the offence he/she is aiding as desirable in and of itself.
- Even when the words "for the purpose of" aiding are used in s. 21(1)(b) of the Criminal Code, the S.C.C.
has held that the word "purpose" in that section is equivalent to the word "intent" in the sense of both
direct and oblique intent
R v Steane – purports to restrict direct intent and not include indirect intent (English Approach)
- Facts: He gave a statement to the British Intelligence service that he worked for German Broadcast service
during the war. But he was threatened to work, wanted to save his wife and children from concentration
camps. He was charged with “intent to assist the enemy” in connection with WWII radio broadcasts.
- Eng CA: says that being in subjection of the enemy makes it impossible to infer intent from guilty act
(here accused says he was intending to do broadcasts poorly; and to save his wife and kids from
concentration camp). As such, according to Court facts lead to conclusion that his evidence vitiates MR
of intent; unnecessary to consider stand-alone duress defence
- Where intent is charged on the indictment it is for the prosecution to prove it. Cannot presume intent, must
be proved. The judge must tell the jury that they should only convict if satisfied by evidence that the act
complained of was in fact done to assist the enemy
- Proper direction is that it was for the prosecution to prove intent, jury can presume intent if they thought
act was done as a result of free uncontrolled action of the accused.
o This is an anomalous case and is probably wrong.
o He said he had no desire to assist the enemy, his explanation is compelling. On the proper
principles, he decided the case wrong.
o Whether it was intended in a physical way, it would be certain that his work would assist the
enemy, he knew that but since he can’t prove duress he is guilty of criminal offence and
therefore you can prove it.
- Buzzanga, Hibbert and Chartrand all seem to disapprove of the approach taken by the Eng CA in Steane
which purports to restrict intent to direct intent and not include indirect intent.
Motive and Intent
- MR relates to intent which is the exercise of free will to use particular means to produce results.
- Motive is that which precedes and induces the exercise of will. Not required for MR, “ulterior intention”,
motive makes it more likely the D did the said act, but it is not necessary for criminal liability.
- 6 factors for motive (1) evidence of motive is admissible, (2) motive is no part of crime and is legally
irrelevant to criminal responsibility (3) proved absence of motive is always an important fact in favour
of the accused and ordinarily worthy of note in a charge to the jury (4) proved presence of motive may
be an important factual ingredient in the Crown’s case (5) motive is a question of fact and evidence and
the necessity of referring to motive in the charge to the general duty of the trial judge (6) each case will
turn on its unique set of circumstances. Issue of motive is always matter of degree.
(3)The Meaning of "Recklessness"
- “Reckless”: Where a person has knowledge of a danger or risk, and persists in conduct that creates the
risk that the prohibited result will occur, element of subjective (Sansregret)
- A does an act where A knows or foresees that the prescribed harm may "possibly" or "probably" occur,
but is not "certain" to occur. A has no desire for it to occur (or may be indifferent as to whether it occurs
or not), but nevertheless A goes ahead and does the act, thereby unjustifiably taking the risk of causing
the harm. In this situation, we say that A acted "recklessly".
- In Buzzanga Martin defines "reckless" as "the subjective state of mind of a person who foresees that his
conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of
bringing it about."
R v Sansregret
- Facts: he broke into his ex-girlfriend’s house and she consented to sex out of fear that he would
endanger her. The accused claimed that he honestly believed that she consented
-
-
-
At trial, the accused was acquitted on the basis of honest mistake. On appeal, the issue was whether the
accused nonetheless had the requisite mens rea based on either recklessness or willful blindness to the
true fact that there was a lack of consent.
Decision: McIntyre J. for the Court stated recklessness, to form a part of the criminal mens rea, must
have an element of the subjective.
o It is found in the attitude of one who, aware that there is danger that his conduct could bring
about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in
other words, the conduct of one who sees the risk and who takes the chance. It is in this sense
that the term "recklessness" is used in the criminal law and it is clearly distinct from the concept
of civil negligence. Here WB applied
While recklessness requires knowledge of danger/risk, WB arises where a person does not wish to know
the truth
Legislation has abolished the notion that you can have an unreasonable or mistaken belief of consent
(4) The Meaning of "Wilful Blindness"
- Where a person becomes aware of the need to make some inquiry, but does not, in order to avoid
learning the truth.
- In Sansregret, the S.C.C. held that the concepts of recklessness and wilful blindness are not the same
- Willful blindness is distinct from recklessness because,
o While recklessness involves knowledge of a danger or risk and persistence in a course of conduct
which creates a risk that the prohibited result will occur,
o Willful blindness arises where a person who has become aware of the need for some inquiry
declines to make the inquiry because he does not wish to know the truth. He would prefer to
remain ignorant.
o The culpability in recklessness is justified by consciousness of the risk and by proceeding in the
face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to
inquire when he knows there is reason for inquiry.
- In the case of willful blindness, the law "deems" that the accused had knowledge of the facts about
which he/she is being wilfully blind (i.e. constructive knowledge)
- Note: In this case, as the law then stood a finding of recklessness could not override the defence of
mistake of fact. This is because under the law at that time, if the accused had a subjectively honest yet
unreasonable (objectively) belief in the existence of consent that would entitle him to an acquittal.
R v Briscoe (SCC, 2010) – WB can substitute for knowledge when knowledge element for MR
- Facts: He was said to assist in a crime by driving a group to the scene of a crime, providing a weapon,
and holding the victim and telling her to shut up. He was charged as a party to a charge of first degree
murder and related offences. He admitted that he “had a strong suspicion that someone would be killed”
at the murder scene.
- He was acquitted by TJ on ground that he did not have actual knowledge that crimes would occur, TJ
failed to consider willful blindness.
- New trial ordered by Alta CA; appeal to SCC dismissed
o Finding of fact that he didn’t have knowledge, so the Crown decided to use willful blindness.
o He had a strong suspicion that someone was going to be killed and he did not inquire into it.
o WB can substitute for actual knowledge when knowledge is complete of MR. Concept is of narrow
scope, and involves no departure from subjective focus on workings of accused’s mind.
(5) The Meaning of "Knowing"
- Some offences expressly state that "knowing/knowingly" is the mens rea for all or part of that offence.
- For example, s. 354(1) -- "possession of property, knowing it was stolen"; or s. 290(1)(a)(ii) -- every one
commits bigamy who marries a person he/she "knows" is married; or s. 23(1) -- accessory after the fact,
"knowing that a person has been a party to an offence.
-
"Knowing" is a subjective state of mens rea. However, if an accused is wilfully blind to a possible fact,
the law will "deem" that the accused knew that fact (i.e. treat the accused as if the accused actually did
know that fact): Sansregret
Objective Forms of Fault
- They focus on what the accused ought to have thought or contemplated about his/her actions, as opposed
to what he/she did actually think about.
- There are three main types of objective fault.
(1) Criminal Negligence [Probably An Objective Test]
- "A marked and substantial departure from the conduct of a reasonable person" which "shows wanton
and reckless disregard for the lives or safety of others".
o Defined in s. 219 and Tutton and Waite
o The S.C.C. split 3 to 3 on whether the words "wanton and reckless" involve an objective (i.e.
reasonable person) test, or a subjective test (i.e. requiring the accused to be personally aware of,
or wilfully blind to, the risk to the lives or safety of others).
- E.g. ss. 219, 220, 221, 222(5)(b)
- Provincial appellate courts have continued to apply an objective test after Tutton and Waite: see, e.g.
R.v. Gingrich
(2) Penal Negligence [An Objective Test]
- The Crown must prove (beyond a reasonable doubt) that the accused's conduct was a "marked
departure" from the standard of care that a reasonable person would use in the circumstances.
o This is a higher standard than civil negligence which involves "any departure" from reasonable
care.
o Modified Objective Test, Hundal confirmed in Beatty
o Creighton: There is no general constitutional principle requiring subjective foresight
- E.g.: S. 86(1) - "careless use or storage of a firearm": Findlay; Gosset, S. 249 - "dangerous driving":
Hundal (1993), S. 436 - "arson by negligence"
(3) Strict Liability [An Objective Test: to be discussed later]
- Where Parliament or the Legislature have not specified the "fault" level for an offence, regulatory
offences are presumed to be offences of strict liability which means
o (a) the Crown proves actus reus (b.r.d.), and
o (b) the accused is then found guilty unless the accused can prove (on a balance of probability)
that she/he acted with reasonable care or due diligence: Sault Ste. Marie
- NB: A controversy reigns re: objective fault crimes: namely whether the objective, reasonable person
standard ought to be "individualized" to some extent to match the circumstances or characteristics of the
accused.
Cases on Criminal and Penal Negligence
R v Tutton and Tutton (S.C.C. 1989) Different views on objective/subjective test
- Facts: Parents believed in alternative healing practices and failed to administer their son insulin and so
he died. They were convicted at trial of manslaughter on charges of criminal negligence for failing to
provide the necessaries of life to their 5 yr old son by declining to provide him with insulin based on
their religious views. The parents are under a duty to provide the necessaries of life. (unlawful act
manslaughter)
- Issue: Whether the test for criminal negligence (then s. 202; now s. 219) was subjective or objective.
Should it be based on personal knowledge, through the eyes of individuals similar to them, or from the
perspective or an entirely detached or separate individual. On the ultimate issue, you have a three to
three split
- Wilson, Dickson, and La Forest: held that criminal negligence involves a subjective standard, the
accused must be personally aware of the risk. Crown has to prove advertence or awareness of the risk
-
-
-
that the prohibited consequences will come to pass. She had "reservations" concerning the approach of
McIntyre and Lamer to "relieving against the harshness of the objective standard"
McIntyre, L'Heureux-Dubé, and Lamer: held that criminal negligence involves an objective standard
of fault, not a subjective standard.
McIntyre and L'Heureux-Dubé stated that the objective test is not to be applied in a vacuum. The test of
reasonable/unreasonable conduct must be made in the context of "the facts existing at the time and in
relation to the accused's perception of those facts". Need to be mindful of the accused perceptions of the
facts.
o The latter part of this quotation is confusing since it introduces a subjective element -- "the
accused's perception".
Lamer J. went further and stated "a generous allowance for factors which are personal to the accused,
such as youth, mental development, education" should be considered. Stated that both the subjective and
the objective will produce the same result if done correctly.
In this case there is a range of views, but no resolution as to how this should be solved
But after this you do get the emergence of a modified or contextual objective approach
Gingrich and McLean (SCC, 1991) – Objective Test from Criminal Negligence
- Involves the criminal liability of the driver and owner of a commercial truck with faulty brakes. They
are both charged with criminal negligence causing death after a fatal accident caused by the bad brakes.
- In this case, the SCC affirms that, despite Tutton, an objective approach to analyzing the MR for
criminal negligence should apply.
Hundal (S.C.C. 1993) Modified Objective Test for Penal Negligence
- Facts: The accused, driving an overloaded dump truck, went through a red light killing the driver of
another vehicle lawfully in the intersection. The charge was dangerous driving causing death, not a
criminal negligence case, but a penal negligence one.
- Cory, J., for the full Court, held that dangerous driving is an offence of penal negligence. In applying
the objective test to penal negligence, Cory J. stated:
(i) The objective test must be applied in the context of the events surrounding the incident, and
(ii) At least for driving offences (which involve a licensed activity where people must meet certain
basic standards of capability to drive before getting a licence) "as a general rule, personal factors
need not be taken into account" such as age, experience, physical/mental health in applying the
objective test.
- In other words, Cory J. held that the test for penal negligence is whether the accused's conduct "in all the
circumstances" was "a marked departure from the standard care that a reasonable person would observe
in the accused's situation." Although Cory J. referred to this test as the "modified objective test", it
clearly is not a subjective, personal characteristics test. See the modified objective test first proposed,
and the use of personal characteristics
R. v. Creighton (SCC, 1993) – Affirms not unconstitutional to have an objective element, also no personal
factors to be considered
- Facts: The accused was charged as the result of injecting the deceased with cocaine at her request. It was
more pure then she was used to, or maybe the amount is larger. The deceased had a violent reaction to
the drug and experienced a cardiac arrest. The accused and another companion tried to resuscitate her
unsuccessfully. The companion wanted to call 911 but the accused persuaded him not to by verbal
intimidation. They clean the apartment and leave. The companion goes back and then ultimately calls
the police. The accused was convicted, and the Court of Appeal upheld the conviction.
o Predicate offence for unlawful act manslaughter was unlawful activity of injecting drugs
- Issue #1: Does s. 7 of the Charter require a minimum level of subjective fault for manslaughter?
-
-
-
Held: No, cases make it clear that there is no general constitutional principle requiring subjective
foresight for criminal offence. The stigma attached in manslaughter is significant but not akin to murder
for which such a requirement of subjectivity is constitutionally mandated [Vaillancourt]
o AFFIRMS that it is not unconstitutional to have an objective element for unlawful act
manslaughter.
Issue # 2: How is the objective test to be applied in cases (such as unlawful act manslaughter) where the
Crown must prove objective forseeability of the risk of death?
McLachlin J: test is objective foreseeability of the risk of bodily harm that is neither trivial nor transitory
and this does not violate section 7.
o There is only one standard of reasonableness for the fault element in offences involving criminal
or penal negligence and therefore no individual factors of the accused (short of incapacity to
perceive the risk) should be taken into account in determining the appropriate standard of care
the accused is required to meet.
o Factors such as age, inexperience, lack of education etc. are not to be taken into account in
determining the appropriate objective standard of the reasonable person (NB distinction between
personalization vs contextualization later underscored in Beatty
o Two concerns about adding personal characteristics: (1) the notion that the CL may properly
hold people who engage in risky activities to a minimum standard of care, judged by what a
reasonable person would have done provides a uniform standard for all people despite their
background and (2) morally innocent should not be punished.
Lamer C.J(Dissent): The objective standard should take into account such personal characteristics as
age, experience, literacy, exigent circumstances etc. The majority of the Court refused to take into
account the fact that the accused was an experienced cocaine user in determining the standard of care he
should have used in regard to determining the quantity and potency of the cocaine which he injected into
another person with their consent.
o By bringing personal characteristics it doesn’t defeat the ends of justice.
o This does not make the job of the Crown any harder.
o The test is “a reasonable person with the frailties of the accused would nevertheless appreciate the
risk, and the accused did not, then must be convicted. The relevant characteristics must be traits the
accused could not control, or otherwise manage in the circumstances.
R v Beatty (SCC, 2008) Contextualized Objective test for penal negligence
- Facts: The accused was driving a truck which inexplicably swerved into oncoming traffic on a clear day,
killing 3 occupants of an oncoming vehicle. Accused had no explanation for his driving. The accident
reconstruction people said that likely it was a moment of inattention. Charged with 3 counts of
dangerous driving causing death. Acquitted at trial; CA orders new trial; SCC restores acquittals.
- Issue: Is momentary act of negligence adequate to found conviction in these circumstances? What is the
mens rea for penal negligence post Hundal?
- Charron:
- (1) Confirms that objective test for mens rea criminal liability is not “personalized” but is nonetheless
“contextualized”. Cannot ignore the actual mental state of the accused, so will be based on premise that
a reasonable person in the accused’s position would have been are of the risks arising from conduct
- (2) AR of dangerous driving is driving that is dangerous to the public having regard to all the
circumstances. She is saying that pervious cases are wrong, they focus on marked and substantial
departure, it is simply a “marked departure” from the civil norm. The AR for this section is simply
driving dangerously in all the circumstances.
- (3) MR of dangerous driving is conduct amounting to a marked departure from the standard of care of a
reasonable person; is a matter of degree therefore momentary inattention will not suffice
- On these facts, AR is shown but MR is not
- Per CJ
-
-
-
1. AR of dangerous driving (penal neg) has always entailed marked departure in actual driving in
circumstances; it is this marked departure which distinguishes criminally culpable driving from bad
driving regulated by provincial authorities.
o This type of driving is a serious offence and carries with it quite a lot of stigma.
o Need to maintain the distinct role from the provincial law of careless driving from dangerous
driving and so need to give some meaning to the word “dangerous”
o The meaning is marked and substantial
2. MR of dangerous driving is inferred from proof of AR although it will always be open for this to be
rebutted by raising a reasonable doubt. The MR is inferred from the marked departure in the nature of
the driving. Don’t think about the result of the driving, but the driving itself. In this case there was no
pattern, it was not a marked departure it happened momentarily. So no AR and so that’s the end
o Only once the Crown can show the AR that the MR is inferred.
o When you drive badly, we are going to assume you have MR and so you need to tell us why you
didn’t have the guilty mind.
3. On these facts neither the AR nor MR are proven
She recognizes that the marked and substantial was really conduct, so maybe it goes to AR, so we will
infer MR on an objective standard from that driving.
Mens Rea and Charter Considerations
- For at least some "True Crimes" (aka “Stigma” Offences) Subjective Mens Rea is constitutionally
required due to the severity of the stigma or penalty attached to them. It is constitutionally impermissible
for an offence to carry the potential for imprisonment without some minimal level of fault
- So far, the S.C.C. has identified murder, attempted murder and theft as such special offences:
Vaillancourt and Martineau.
- Crimes against humanity and war crimes hve now been added to that list in Finta. It now appears
unlikely that there will be many more, if any, offences added to the list of "stigma crimes which
constitutionally require subjective mens rea."
R v Vaillancourt (1987, SCC)
- Facts: V was going to commit an armed robbery with an accomplice, V thought his accomplice (A)
agreed only to arm themselves with knives. Just prior to robbery, A showed up with a loaded gun. V
testified at trial that he took out three bullets from the gun and put them in his glove (thought it was all
of them). A shot and killed a pool hall client at the scene and was never apprehended. In this case the
accused actually testified but the gun and shooter were never found, bullets were recovered.
- Felony Murder Rule: If while committing a felony, you killed someone, that fact that you did not intend
them to die, nor foresee that their death was a likelihood or significant possibility does not matter. The
mens rea that the Crown must prove is that for the predicate offence, not murder.
- Issue: Does felony murder liability based on weapon use in offence, in situation where accused does not
forsee (and objectively could not have reasonably forseen) that death would ensue breach charter? Is it a
PFJ that to impose liability for causing a particular result, there must be some degree of subjective MR
in respect of that fault
- Lamer J: He doesn’t strike down the entire felony murder rule, just for when a weapon is used. This is
not a hard case because not only is there no subjective, there is no objective foreseeability
o Need not consider whether subjective foreseeability is necessary, as s. 213(d) does not even meet
objective standard. The court cannot conclude on a reasonable doubt standard that death would
ensue. In this case, because 213 doesn’t require objective foreseeability, doesn’t even have to
deal with subjective. Would it be possible for a conviction of murder to occur 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. If yes, section 7 and 11 violation
o Under Oakes test, holds
 objective of section is constitutionally valid
 rational connection: arguably satisfied

-
however, provision is overbroad and creates unjustifiable stigma, stigmatizing crimes that
deal with guns as murder, unnecessarily impairs the Charter
McIntyre J: Holds that Parliament’s intention in creating liability under the section is clear and should
not be interfered with. Provision has been on the books for many years and can be applied in a clear and
consistent fashion
R v Martineau (1990, SCC)
- Facts: M is charged with murder under then s. 213(a) of the Code. Both were armed and M testifies that
his accomplice committed the murder due to concern about witness identification (even though M was
wearing a mask). It focuses on the core of the felony murder provision, which imposes liability for
participating directly or through the party provision, elicits criminal offence where death occurs.
- Issue: Does liability for generic felony murder where no proof beyond reasonable doubt of subjective
mens rea, intent/recklessness of likelihood/certainty of death, is required, offend s. 7 of the Charter?
- Lamer J: Murder has been long recognized as most heinous of peacetime offences and it is a PFJ that
such convictions be reserved for those with requisite subjective MR, like death or bodily harm likely to
cause death. Stigma and punishment for murder must be reserved for those who intend to cause death
that they know will likely cause death. Under Oakes analysis, is overbroad (for same reasons set out in
Vaillancourt)
- L’Heureux-Dube (Dissent): Felony murder rule common in other US jurisdictions. The emphasis on
“stigma” misplaced especially for manslaughter. From a stigma point of view manslaughters don’t do a
whole lot better than murders in society. She said that it ought not to be the metric in deciding when
subjective mens rea should be constitutionally required. This has not really been a growing area in
criminal law, stigma has had no part in adding to the list or jurisprudence since Finta
o Here there is at least an objective mens rea required, the predicate (underlying) felony offence
o Second guesses Parliament
R v. Finta (1994, SCC)
- Facts: The accused was the senior officer at a Hungarian concentration camp. He was charged with war
crimes contra to s. 7(3.71) of the Code. Part of the statutory definition of the offence was that the
predicate offences (kidnapping, robbery) constitute a war crime or crime against humanity.
- At the time of Finta no standalone Canadian statute which affirmed crimes against humanity and war
crimes under Canadian Laws. But there is now. So the crown was faced with prosecuting him for
internationally recognized crimes of war and crimes against humanity. In international law these were
defined in the same language as is now reproduced in the new statue.
- The Crown has to prove that F (1) committed either directly or indirectly predict offences, including
manslaughter, kidnapping and (2) the circumstance in which he committed those crimes amounted to
crimes against humanity or war crimes.
- The AR was the predicate offence plus the circumstances of when and how those offences were
committed. They had to be war crimes or crimes against humanity
- Issue: does the Charter require that accused have a subjective mens rea that the character and
circumstances of the predicate offences qualify them as war crimes or crimes against humanity? Is it a
constitutional requirement that he be shown to have known or been willfully blind to the circumstances
of these offences? Does he have to know that what he was ordering or committing were war crimes, or
crimes against humanity under international law.
o Crown’s position was that it was not necessary under Canadian law to show that he knew that
these offences were offences that amounted to war crimes or crimes against humanity.
- TJ: held that the Crown had to establish that F subjectively knew the predicate offences in question
were war crimes or crimes against humanity.
- Cory (with Lamer CJ and two others)
o This is even more of a stigma offence than murder per se
o Knowledge of nature of the offence cannot be inferred from commission of offence. Knowledge
of nature of offence is distinct from accused’s belief as to whether “inhumane”. Accused
-
likewise could be convicted if they knew their actions, viewed objectively would shock
conscience of all right-thinking people. Mental element must involve an awareness of the facts or
circumstances which would bring the acts within the definition of a crime against humanity
o Willful blindness as facts or circumstances could also provide basis for conviction.
La Forest (with L’H-D and McLachlin JJ)
o Mens rea need only be proven for individually blameworthy elements of a war crime or crime
against humanity, not every surrounding circumstance. The stigma does not come from the
nature of the offence but the surrounding circumstances of most war crimes.
o Per DeSousa, there must be an element of personal fault in regard to culpable aspects of the AR,
not each and every element of the AR
For all other "True Crimes" Objective MR is Constitutionally Sufficient
- Many "true crimes" already contain a subjective mens rea, either by express language in the section
creating the offence, or by application of the presumption of full mens rea for true crimes where
Parliament has been silent in regard to the requisite mens rea. It is quite likely that these offences will
continue to have subjective mens rea. That is a sound approach for Parliament and the courts to take.
- However it would be open to Parliament to substitute an objective fault standard for these true crimes
(unless they are "stigma offences" discussed above)
- In other words, objective mens rea for Criminal Code or penal offences (except for stigma offences) is
constitutionally valid: Creighton
- However, the objective mens rea must in general be more than civil negligence (i.e. "any" departure
from the standard of care of a reasonable person). The objective standard must involve at least penal
negligence which means a "marked" departure from the standard of care of a reasonable person. This
position has been articulated by the S.C.C. in various cases, including some we have discussed before,
as set out below
- Dangerous Driving - s. 249 of the Code:
o Hundal: the S.C.C. held that dangerous driving involves an objective test, not a subjective test.
The objective test does not violate the Charter. The objective test requires "a marked departure"
from the conduct of a reasonable person in the circumstances.
- Careless Use of a Weapon - s. 86(1) of the Code
o Durham (Ont CA) and Finlay (SCC) it is held that the mens rea involved in "careless" use of a
firearm is objective, not subjective. The objective test is "penal" negligence (not "civil"
negligence) and penal negligence requires "a marked departure" from the conduct expected of a
reasonable person in the circumstances.
- Crimes Based on a Predicate Offence: Predicate based liability does not raise a Charter issue. As long
as the Crown has proven the element of the predicate offence on a subjective basis, can show the second
on an objective basis.
- Unlawfully Causing Bodily Harm - s. 269 of the Code
o De Sousa: the S.C.C. held that there is no requirement that the accused subjectively foresee
that bodily harm will arise from his/her unlawful act or omission. The Supreme Court held that
objective foreseeability of the risk of bodily harm, coupled with the fault requirement of the
underlying unlawful act satisfies the principles of fundamental justice under s. 7 of the Charter.
- Unlawful Act Manslaughter - s. 222(5)(a) of the Code
o Creighton: the S.C.C. held that unlawful act manslaughter does not require subjective foresight
of death. In fact, the majority held that it does not even require objective foresight of death, only
objective foresight of the risk of bodily harm which is neither trivial nor transient, coupled
with the fault requirement for the underlying unlawful act.
o Lamer for the dissent would have required objective foresight of death (not simply bodily harm)
as the minimum constitutionally required mens rea for manslaughter. McLauchlin gives many
policy reasons for her decision.
o Essential what Creighton is saying, is that you can be guilty and liable to life imprisonment, for
the commission of an unlawful act which has an objective foresight for some type of harm
Assessing the Charter Record Standards of Fault in Criminal Law
K. Roach, “Mind the Gap: Canada’s Different Criminal and Constitutional Standards of Fault”
- Significant slippage between criminal law standards of fault articulated before the Charter and the actual
standard of fault that have been enforced by the courts under the Charter
- A reflection on how, taken as a whole, Canadian criminal law deals with fault as a constitutional
principle. Makes argument that Canadian courts pay lip service to the notion that subjective mens rea
has a constitutionally-assured role in criminal law
- While pre-Charter cases seemed to indicate a commitment to subjective MR, there has significant
slippage post Charter like the narrowness of the “stigma” test, judicial approval of unlawful act
manslaughter in Creighton and unlawfully causing bodily harm in De Sousa
- As a result of this gap, we are seeing increasing judicial approval for negligence-based (objective) or
blended (objective-subjective) forms of mens rea-based liability
- Explanations? Doubts about efficacy of subjective mens rea as a vehicle for prosecuting certain kinds of
cases (sexual violence, corporate crime)
o Stringency of justificatory Oakes test under s. 1, if subjective mens rea more broadly
constitutionalized as a PFJ
o McLachlin J.’s policy considerations as set out Creighton
 This form of predicate liability (unlawful act), is so historically rooted and central part of
criminal justice system, that it would not make sense for us to post-1982 say there is a
Charter problem with that
 Also if the felony murder rule has been stuck down, although it was historically accepted,
what does history have to do with anything.
o How should/would mandatory sentences combined with objective mens rea-based liability (i.e.
manslaughter w firearm now has 4 yr minimum) affect the analysis of Courts that are otherwise
supportive of objective mens rea?
 Based on notion that sentencing will protect those from being stigmatized or punished
unduly
The Charter and Regulatory Offences
- Principles in this area turn on the distinction between "true crimes” and "regulatory offences"; each governed by
somewhat distinct principles and dynamics: see SSM(1978, SCC) and Wholesale Travel (1991, SCC)
- True crimes: offences synonymous with criminal law and the criminal law power. They are often associated
with a moral turpitude but it has become old fashion to think of it as moral terms. True crimes are those that are
contained in the criminal code, but can be offences that are set out in other statutes. The fact that it is in another
federal statue, does not mean that it might not be a true crime. Need to look at the degree of penalty and other
metrics to determine this.
o Absent a clear intention to the contrary, offences in the CC are presumptively true crimes.(Prue)
- Regulatory Offences: they are the counter points to true crime, no mens rea. Different rules apply with regards
to mens rea and come in two main species (1) Strict and (2) Absolute. Are created to protect those who are
unable to protect themselves. The essential distinction between regulatory as opposed to criminal offences is
the removal of the MR requirement.
Strict Liability Regulatory Offences
- The most common form
- The Crown need only prove the actus reus (BRD), but the accused can advance a due diligence defence.
No mens rea needs to be shown.
o Under St Marie this is known as “Due Diligence” Defence must be proven on a balance of probabilities
o If the statue is silent, this is the default MR for a regulatory offence
- The minimum fault requirement of civil negligence satisfies the requirements of s. 7 of the Charter for
strict liability regulatory offences;
- The reverse onus that the accused must prove due diligence on a balance of probabilities is not an
unreasonable violation of the presumption of innocence [s. 11(d)]: R. v. Wholesale Travel and R. v. Ellis-Don
Ltd
Absolute Liability Offences
- The Crown need only prove the actus reus (BRD); there is no defence. (Marie)
- This is not permitted when the punishment involves a potential loss of liberty, possibility of
imprisonment (Motor Vehicle)
- Note: The BC Offence Act ss. 6 and 82 provide that no person may go to jail for an absolute liability
offence (or for non-payment of fines, resp.), so this isn’t an issue anymore.
o Section 4.1 states that notwithstanding any other provision in any Act, no person is liable to
imprisonment for an absolute liability offence. Section 72 states that no person shall be imprisoned by
reason only that he/she defaults in paying a fine.
-
o To prevent further challenges, the province said in S. 4.1, that even though some of our laws say
that you can go to jail for absolute liability, we don’t mean it. They have created an override and
transferred the absolute liability cases to strict liability ones. They went through the strict
liability offences and either removed the imprisonment opportunity, or created a “due diligence”
defence.
It is favored where the state doesn’t want to be burdened with dealing with a lot of excuses and needs an
efficient way to hold people accountable.
Absolute and Strict Liability: a Tour of the Cases
Beaver v The Queen (1957, SCC)
- Facts: Two hapless brothers thought they were selling sugar of milk but it was really heroin. They were
charged with Count 1: trafficking heroin; Count 2: possession of heroin. At trial convicted of both counts and
sentenced to 7 yrs concurrent
- Issue: role of knowledge under Opium and Narcotic Drug Act; must Crown establish knowledge of nature of
substance to succeed in prosecution
- Decsion: per Majority
o Note the druggist, a hypothetical is proposed about going to the druggist to buy baking soda, but it turns
out to be heroin. There is no knowledge here that it is heroin but the person on the face of it is in
possession of heroin. Does this not suggest that given that this person could be imprisoned, knowledge
should be necessary? Threshold question is whether it is a true crime or regulatory offence. If it is a true
crime with imprisonment, looking at some form of subjective MR
o Combination of strict liability and imprisonment rare if not unknown under criminal law; apply strict
construction canon
o However, the Act per s. 4(1)(f) contemplates that sale of substance represented to be a narcotic amounts
to violation of Act...
- The act said that there is no need to prove that it is heroine, as long as they are representing it as such. Can be a
fraudulent drug dealer
- Dissent: supports Parliament's intention to be tough on drugs
R v Pierce Fisheries [1970, SCC] - knowledge is not necessary
- Facts: Accused were a large industrial harvester, they were found in possession of undersized lobsters contra
Regs under the Fisheries Act.
- Issue: Is knowledge an element of the offence? Do they have to have known that they possessed and kept under
sized lobsters
- Held: No
o This is not a "true crime": distinguishes Beaver, no stigma and purpose is to protect lobster beds from
depletion and conserving the supply
o No MR language, and should be construed in language in which it was enacted
o This is a type of offence where presumption of full MR doesn't apply
- Dissent: principle from Beaver, “the essence of the crime is the possession of the forbidden substance
and in a criminal case there is in law no possession without knowledge of the character of the forbidden
substance”. In this case, no knowledge of the undersized lobster so can’t be guilty
R v Sault Ste Marie (1978, SCC) – can have strict liability with D showing due diligence
- It balances and recognizes the various interests at stake in the setting. Absolute liability is a too blunt policy
interest. Here they can’t go to prison because they are a corporation
- Absolute liability entails conviction on proof merely that the D committed the prohibited act, constituting the
AR.
- Justifications for absolute liability: (1) people will more likely maintain standards if they know ignorance of the
law or mistake will not excuse them. (2) Proof of fault is too great burden in time and money to place
prosecution
- So Absolute liability is the most efficient way of ensuring compliance with minor regulatory legislation and the
social ends to be achieved are of such importance as to override the unfortunate by-product of punishing those
who may be free of moral turpitude.
-
Facts: Prosecution under provincial environmental protection legislation, polluting creek
No MR language: prohibits discharges that impair water quality
Issue: should MR be proved by the Crown?
Held: for Crown
o recognition of public welfare offences as a "halfway house" between MR and absolute liability; this
reflects "shift in emphasis from individual interests...to protection of society"
o enunciates a threefold categorization of offences
 offences in which MR consisting of some positive state of mind such as intent, knowledge
recklessness, must be proved by the prosecution either as inference from the nature of the act
committed or by additional evidence
 offences in which there is no necessity for the prosecution to prove the existence of MR, the
doing of the prohibited act prima facie imports the offence leaving it open to the accused to
avoid liability by proving that he took at reasonable care
 offences of absolute liability where it is not open to the accused to exculpate himself by
showing he was free of fault.
o public welfare offences presumptively to fall within category two: allowing a defendant to escape
liability on proof of due diligence
R v Wholesale Travel (1991, SCC) – Reverse onus upheld
- Facts: they made misleading advertisements, and since they are a corporate entity they cannot go to jail. But
the argument turns on the notion that someone can go to jail in such a strict liability where due diligence
defence existed
- Issue: Charter challenge to validity of SSM approach; arguing that "strict liability" offends ss. 7 and 11(d)
of the Charter. Can a corporation be able to entertain arguments that are hypothetical, say that it
challenges individuals rights even though it is not relevant to them. Can the court decide on an issue that
is not relevant to the corporation itself
o it is obvious that this issue raises issues and needs to be dealt with, therefore they will just advance it.
o Corporation is doing indirectly what it was not allowed to do directly. Court has a way out of that
argument, it can take a remedial step if it wanted to.
 They can say that the corporations pointed out a law which was unconstitutional to
individuals and then they will just say that it is not applicable to individuals but is still
applicable to corporations. But they don’t do this
- Reverse onus due diligence defence (DDD) allows for potential for accused to be convicted where there is a
reasonable doubt as to whether they were duly diligent (the prescribed MR)
o But argue that efficiency is good reason to have this reverse onus, the accused is in the best position to
raise due diligence
- Majority: There is a fundamental distinction between true crimes and regulatory offences that is well founded on
policy grounds:
o Objective of regulatory legislation is to protect the public from the potentially adverse affects of
otherwise lawful activity
o Concept of fault is based on reasonable person standard so does not imply moral blameworthiness in
same manner as criminal fault
o They change with societies calues, so very important to keep distinction
o Government policy is pursued principally through regulation. It is through regulatory legislation that the
community seeks to implement its larger objectives and to govern itself and the conduct of its members.
- by 5 to 4 margin upheld the reverse onus
o 2 Justices held s. 11(d) was not violated
o 3 Justices held s. 11(d) was violated but could be justified under s. 1
 St Marie model offends the Charter, but is justified
o 4 Justices 11(d) was violated but could not be justified under s. 1
-
-
Strict liability allows that you can be convicted of an offence where there is a reasonable doubt as to if
you have the request MR. You can raise the reasonable doubt, but that is not enough because you have
to look at the balance of probabilities.
New offence of strict liability was a compromise which acknowledged the importance and essential
objectives of regulatory offence but at the same time sought to mitigate the harshness of absolute.
Reference Re Section 94(2) of the BC Motor Vehicle Act (1985, SCC) – Cannot have absolute liability and jail
- Facts: section 94(2) creates and absolute liability offence in which guilt is established by proof of
driving, whether or not the D knew of suspension or prohibition of license.
- Lamer: absolute liability and imprisonment cannot be combined as it is against section 7. There is a
generally held revulsion against punishment or morally innocent.
o But a law enacting absolute liability will violate section 7 only if and to the extent that it has the
potential of depriving life, liberty and security of the person.
o Corporations don’t enjoy S. 7 protection.
- ss. 8-14 are illustrations of broad residual protections afforded by s 7
- PFJ are principles found in basic tenets of our legal system; not in policy
- Decision: 94(2) creates an absolute liability offence which effects a deprivation of liberty for a limited number
of persons and not saved by section 1. It is unconstitutional to have imprisonment with absolute liability, so
the provinces have gone and changed this
R v Pontes (1995, SCC) – No presumption of strict liability
- The offence of driving while prohibited contrary to the BC MVA was the same as considered in Re: BCMVA
except that language referencing "'absolute liability" has been deleted. The potential for imprisonment has been
eliminated
- Issue: In the circumstances is the provision to be read as strict or absolute liability?
o If you have eliminated the potential for imprisonment, does that mean that all of the offences that were
formally absolute liability are now strict
- Decision: We should not assume that this was the intention of the legislatures, no presumption that no strict
liability. Need to look carefully at the sections and consider whether it is the correct form or what the legislature
intended on a case by case basis.
- Majority said that detaching imprisonment from an offence that was absolute liability pre-BC Motor Vehicle
Reference does not change that offence into strict liability
- Dissent said that retention of absolute liability would require clearer statutory language: implicit presumption of
strict liability
Determining the Level of Fault Required For An Offence
(1) The Offence Expressly States the Mens Rea/Fault
- Sometimes the offence will expressly specify the type or level of mental fault by using words such as
wilfully, intentionally, knowingly, for the purpose of, recklessly, carelessly, negligently, etc. In such
cases, the court must then go on to define the precise meaning of those mens rea words.
(2) The Offence is Silent as to the Required Mens Rea/Fault
- But what level of mental fault is required when the offence does not expressly contain words of mental
fault in the description or definition of that offence?
- Where a statute is "silent" as to the mens rea for an offence, the courts must decide as a matter of
general principle or statutory interpretation what level or type of mens rea applies. Sault Ste. Marie and
other cases give some guidance: (a) if the offence is "a true crime", the courts will presume that full
mens rea is required; (b) if the offence is a "regulatory offence", the courts will assume that strict
liability is required.
(a) True Crimes
- For "true" crimes where the statute is silent as to mens rea Sault Ste. Marie held that there is a
presumption that such crimes require full mens rea. Dickson J. in S.S.M. defined full mens rea as
follows:
-
-
-
-
o The Crown must establish a mental element, namely, that the accused who committed the prohibited
act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with
wilful blindness toward them. Mere negligence is excluded from the concept of the mental element
required for conviction. Within the context of a criminal prosecution a person who fails to make
such inquiries as a "reasonable and prudent person would make, or who fails to know facts he should
have known, is innocent in the eyes of the law.
In Buzzanga, the Court similarly stated: Although no mental element is expressly mentioned in s. [319(1)
of the Code] mens rea is nonetheless, required since the inclusion of an offence in the Criminal Code must be
taken to import mens rea in the absence of a clear intention to dispense with it: see Prue & Baril
The general mens rea which is required and which suffices for most crimes where no mental element is
mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which
the law, in creating the offence, seeks to prevent....
Notice that the above mental element refers to the accused's mental state - i.e. what the accused actually
knew or intended. Thus we call this subjective mens rea. It does not include what the accused "ought to
have known" if he/she were a reasonable person (i.e. objective liability). In other words, subjective mens
rea excludes negligence as an adequate fault basis for criminal liability.
How do you decide whether an offence is a "true crime"?
(1) If an offence is in the Criminal Code, there is a presumption that it is a true crime and therefore
requires full mens rea, unless there is a clear intention to the contrary: Prue & Baril (1979) (S.C.C.).
(2) If an offence is not in the Criminal Code (e.g. drug offences under the Controlled Drugs and
Substances Act) the Courts look to the nature and seriousness of the conduct, and the severity of the
penalty, in deciding whether the offence is truly criminal in its character: S.S.M.
(b) Regulatory or Public Welfare Offences
- Offences which are not "true" crimes are referred to as public welfare or regulatory offences.
- If a regulatory offence does not expressly contain words of mental fault. There is a presumption that the
offence is one of strict liability (not subjective mens rea and not absolute liability): SSM.
- An offence will be classified as an absolute liability offence only if the legislature makes it clear
expressly, or by implication based on the subject matter and the relative unimportance of the penalty,
that guilt automatically follows upon proof of the actus reus: [SSM]. If the legislative provision in
question effectively eliminates the defence of due diligence, then the legislature has thereby created an
absolute liability offence: R. v. Pontes [text at 400]
5. Sexual Assault
A. Procedural Issues
Overview
- The legislative definitions of sexual assault and criminal liability & procedural regimes have evolved
(1983 amendments; 1992 amendments; 1996 amendments);
- Evidentiary and procedural rules concerning sexual assault trials, in particular,
o Rape shield provisions (1983 amendments; Seaboyer; 1992 amendments Bill C-49; and
Darrach)
o Disclosure to the accused of private information concerning the complainant (Stinchcombe;
O’Connor; and 1996 Bill C-46 );
o Mens rea, consent and mistaken belief in consent: Pappajohn; Sansregret; Ewanchuk (see
1992 amendments per Bill C-49); and
o Defences and the Air of Reality test: Osolin
Prior to 1983
- The main sexual assault offences in the Criminal Code were
- (1) Rape, (2) Attempted rape, (3) Sexual intercourse with a female under 14 years of age or over 14
years old and under 16 if she was "of previously chaste character, (4) Indecent assault on a female, and
on a male
- Rape was defined as a male person who has sexual intercourse with a female person, who is not his
wife, without her consent (or with consent if obtained by threats or fraud).
- These offences, and the procedural and evidentiary rules and practices surrounding them, embodied a
number of myths and sexual stereotypes which resulted in unfair treatment of complainants in sexual
cases
o Rape was treated like a property offence
o A husband could not legally rape his wife.
o A number of special evidentiary rules existed which were based upon assumptions about female
sexual propriety and the fear that women would make false accusations of rape
1983 Amendments to Code
- Abolished rape, attempted rape, intercourse with a minor, and indecent assault. Tried to rid the law of
anachronisms and to address the incidence of sexual assault more effectively.
- Created three new offences
o (i) S. 271: sexual assault punishable by indictment (max. 10 years) or by summary conviction
(max. 6 months);
-
-
o (ii) S. 272: sexual assault causing bodily harm or threats to cause bodily harm or use of a
weapon (max. 14 years);
o (iii) S. 273: aggravated sexual assault (wounds, disfigures or endangers the life of the
complainant) (max. of life imprisonment);
Altered or abolished a number of evidentiary rules for sexual crimes which were based on sexual myths
and stereotypes;
Introduced s. 265(4) of the Code [discussed below under the topic mistaken belief in consent];
Introduced s. 486 of the Code which permits the judge (1) to exclude the public from the courtroom
where the complainant is testifying, and (2) to protect the complainant's identity by banning publication
of any information that would disclose the identity of the complainant.
Sexual assault is not specifically defined in the Criminal Code (although it is defined in the cases).
Section 265(1) defines assault, Section 265(2) states that the definition of assault applies to all assaults
including sexual assaults and Section 265(3) provides that no consent is obtained where the complainant
submits or does not resist due to (a) force, (b) threats of force, (c) fraud, or (d) the exercise of authority.
R. v Chase – Definition of sexual assault
- The S.C.C. defined sexual assault as (a) an assault [defined in s. 265] (b) in circumstances of a sexual
nature whereby the sexual integrity of the victim is violated.
- The test to determine if it is sexual in nature is if viewed light of all the circumstances, is the sexual or
carnal context of the assault visible to a reasonable observer?
- The sexual nature of the assault is determined objectively:
- The sexual nature of the assault may be inferred from (i) the part of the body touched; (ii) the nature of
the contact; (iii) the situation in which it occurred; (iv) the words and gestures accompanying the act; (v)
and any other surrounding circumstance, like the intent or purpose of the person, like sexual
gratification. The test for what constitutes a "sexual assault" is not dependent solely on the specific area
of the body touched.
R v KB
- The court applies the Chase criteria and decided that when a father grabbed his son’s genitals it was
sexual assault because the assault was such that the sexual integrity of the son was violated.
- But the dissent said that the fathers lack of sexual gratification was a decisive factor
Critique of Rape/Sexual Assault Laws
- Rape and sexual assault are not simply sexual crimes, they are crimes of violence. The idea that rape
should be viewed, first and foremost as a crime of violence, led Parliament in 1983, backed by many
feminist scholars, to drop the word "rape" in favour of the words "sexual assault" and "aggravated
sexual assault"; to move rape from Part IV of the Code entitled "Sexual Offences, Public Morals and
Disorderly Conduct" to Part VI [now Part VIII] of the Code entitled "Offences Against the Person and
Reputation"; and to use gender-neutral language in defining sexual assaults.
- Apart from the substantive definition of rape, male bias was evident in special common law rules of
evidence for proof of rape. These rules were constructed by male judges and based upon myths and
stereotypical beliefs about women, female sexuality and chastity.
(1) Critiques of Common Law Evidentiary Rules
- Three key areas where CL promoted/facilitated myths and stereotyping in terms of Criminal evidence
and procedure: (a) corroboration requirements; (b) doctrine of recent complaint; (c) rules about
relevance of past sexual history [3rd area controversial; giving rise to Seaboyer and further
amendments in 1992]
(a) Fear of Fabrication - "Cry Rape" and the Requirement for Corroboration
- Courts developed special corroboration rules based on the assumption that women's accusations of
rape/sexual assault were more likely to be fabricated than other persons' accusations of crime:
-
Jury (or trier of fact) must be instructed that it is unsafe to convict an accused of rape or sexual assault
based on the (female) complainant's uncorroborated evidence
- This rule was abolished in 1983: Section 274 provides that in sexual assault cases "no corroboration is
required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused
guilty in the absence of corroboration".
(b) Fear of the "Vindictive Woman" - Recent Complaints
- Assumption that women who do not report a rape/sexual assault immediately are more likely to be lying
and to be doing so for vindictive purposes than women who do report immediately.
- Thus the common law permitted the judge to instruct the jury (or trier of fact) that a negative inference
as to the truth of the complainant's claim of rape/sexual assault could be drawn from the absence of a
recent complaint.
- In 1983, S. 275 abrogated the common law rules relating to the doctrine of recent complaint in sexual
cases.
(c) Past Sexual History: The "Unchaste Woman"
- Assumption that "unchaste women", women who have had sexual relations outside of marriage were
more likely to have consented to the alleged rape/sexual assault, and were in general less trustworthy
witnesses (i.e. more likely to be lying).
- These twin myths or stereotypes led to the creation of CL rules of evidence which permitted the accused
to attack the complainant's credibility by (a) questioning the complainant, or introducing evidence about
the complainant's general "sexual reputation" for chastity in the community, and (b) cross-examining the
accused about her prior sexual activities.
- In 1983, these common law rules were repealed:
- Section 277 provided that "evidence of sexual reputation, whether general or specific, is not admissible
for the purposes of challenging or supporting the credibility of the complainant";
- Section 276 [the so-called "rape shield" law] placed limitations on adducing evidence of a complainant's
prior sexual history.
(2) Challenges to the Rape Shield Law: Section 276
- Section 276 was initially enacted in 1983 to shield complainants in sexual assault trials from being asked
irrelevant and inappropriate questions about their sexual activities with persons other than the accused.
Section 276 provided a blanket exclusion of such evidence, subject to three exceptions
- (1) Rebuttal evidence as to whether alleged sexual activity occurred: they could lead evidence to
whether it actually occurred
- (2) Identity
- (3) Evidence as to consent on same occasion, this is not previous but that same occasion
R v Seaboyer and R v Gayme (1992) – changed the exceptions
- McLachlin: These 3 exceptions were too narrow and there were other instances including motive,
corroborate alibi, support alternative explanation, where prior sexual activity of the complainant
would be relevant to the accused's defence
- To exclude such evidence in those instances denied the accused the right to a fair trial and raised the
possibility of conviction of the innocent; and therefore s. 276 was unconstitutional (a violation of ss. 7
and 11 of the Charter). Accused not able to give full answer and defence
o Ex: related to the accused's defence of an honest (although not necessarily reasonable) mistaken
belief that the complainant was consenting to the sexual conduct in question. She suggested that
in some instances prior sexual acts of the complainant may be relevant to the accused's claim that
he honestly believed the complainant was consenting.
- Principles of admissibility in relation to evidence of prior sexual conduct:
- (a) Prior sexual conduct with others (or the accused) is not admissible solely to support the inference
o (i) That the complainant is thereby more likely to have consent to the sexual conduct in issue, or
o (ii) Is less worthy of belief as a witness;
-
-
-
-
(b) While admission of evidence of prior sexual conduct will be exceptional, she gave examples of
incidences where sexual conduct of the complainant could be relevant and admissible assuming its
probative value outweighed its prejudicial effect
o Probative value: does its ability to help prove something in the case, outweigh the possible
prejudice it might cause, like muddy the waters more.
(c) She indicated that the question of whether such conduct was admissible in a specific trial must be
made in an in camera hearing by way of a voir dire; and if admitted, the jury must be cautioned as to the
limited use that may be made of such evidence.
Dissent (L'Heureux-Dubé) :
(a) Sexual assault is not like any other crime; (b) Many of the examples of the supposed exclusion under
s. 276 of relevant prior sexual conduct of the complainant are pure fantasy; and (c) that there is no
"relevant" evidence excluded under s. 276 which threatens an accused's fair trial rights
Rejects the idea that there is no legitimate purpose for cross-examination except the three exemptions
provided.
The factors that the majority added are not important, and they are hobbled by stereotypes and gendered
presumptions
We are theorizing in the abstract without any real evidence that a Charter breach would ensue due to the
restriction. As such we are not restricting fair trial rights, but are narrowing the discretion of the trial
judge to more properly protect complaints rights and allow for questions where they do line up with a
Charter right.
Bill C-49 as a response to Seaboyer and Gayme
- Parliament was quick to respond and in 1992, enacted Bill C-49 which
- (i) Replaced the old s. 276 of the Criminal Code with new provisions (s. 276 to s. 276.5) which are
designed to deal comprehensively with the admission of evidence of a complainant's prior sexual
activity; and
o Rape Shield Provisions essentially codified the approach of the majority in Seaboyer:
o (a) Section 276(1) categorically prohibits evidence of a complainant's sexual history if it is being
used to support either of the twin myths: (i) more likely to have consented, or (ii) less worthy of
belief.
o (b) Section 276(2) provides that before admitting evidence of the complainant's prior sexual
history, the judge must determine [according to the procedures in s. 276.1-276.2] that the
evidence is (i) relevant to an issue at trial and (ii) has significant probative value that is not
substantially outweighed by the danger of prejudice to the proper administration of justice.
o (c) Section 276(3) provides that in determining whether such evidence is admissible the judge
must take into account at least eight listed factors (which factors attempt to balance the
accused's, the complainant's and society's interests).
- (ii) Added s. 273.1 and 273.2 which amend the law by defining consent in regard to sexual offences and
by removing the defence of honest but mistaken belief in consent unless the accused took "reasonable
steps, in the circumstances known to the accused at the time, to ascertain that the complainant was
consenting."
- Introduction of a "reasonable steps" test in s. 273.2(b) was an attempt to reduce the opportunities for
the accused to question the complainant on prior sexual conduct.
o If the accused has not taken "reasonable steps", then the accused cannot raise the defence of
"honest but mistaken belief in consent" and therefore cannot ask the complainant questions about
her prior sexual conduct on that basis.
o Restrictions on the accused's ability to question the complainant on her prior sexual conduct are
also heightened by the S.C.C.'s adoption in Ewanchuk (Text: 659) of a "communicative" model
for consent.
- These new rape shield provisions were also attacked as a violation of the Charter. However, in
Darrach, the S.C.C. unanimously held that the provisions were constitutional and do not provide a
blanket exclusion on the admissibility of the complainant's prior sexual conduct.
R. v. Darrach – Rape Shield Provisions not unconstitutional
- Facts: he was charged with sexual assault and attempted to introduce evidence of the complainant’s
sexual history. After a VD the TJ said no to history and CA also agreed that the provisions sections not
infringe his decion 7, 11(c) and 11(d) rights.
- Decision: Far from being a blanket exclusion, s. 276(1) only prohibits the use of evidence of past sexual
activity when it is offered to support two specific illegitimate inferences. These are known as the "twin
myths". If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern
of conduct or a prior inconsistent statement, it may be permitted.
- One of the implications of this analysis is that while the right to make full answer and defence and the
principle against self-incrimination are certainly core principles of fundamental justice, they can be
respected without the accused being entitled to "the most favourable procedures that could possibly be
imagined".
o Nor is the accused entitled to have procedures crafted that take only his interests into
account. Still less is he entitled to procedures that would distort the truth-seeking function of a
trial by permitting irrelevant and prejudicial material at trial.
- The use of the word “significant” by Parliament does not render the provision unconstitutional by
raising the threshold, so it’s unfair to the accused.
(3) Disclosure of the Complainant's Personal Records to the Accused
- Another area of concern in regard to the treatment of complainants in sexual assault trials is the issue of
possible disclosure to the accused of personal records of the complainant, such as counseling, hospital,
or school records, or personal diaries. Concerns relate to:
o (a) Invasion of the complainant's privacy,
o (b) Revictimization of the complainant through disclosure in a public trial of such private and
potentially embarrassing information, and
o (c) The chilling effect that such disclosure may have on the willingness of complainants to
report, and to proceed to trial with, charges of sexual assault.
- The accused may seek such personal information for a number of reasons including:
o (a) To try to discredit the complainant (in the eyes of the judge or jury) by disclosing potentially
embarrassing or disreputable personal information about the complainant's ideas, attitudes,
values or actions,
o (b) To search (i.e. a fishing expedition) for statements or actions in the complainant's personal
records which provide evidence of inconsistencies in the complainant's allegations concerning
the issue at trial,
o (c) To suggest that the complainant is a disturbed, mentally or emotionally unstable person and
therefore less likely to be truthful,
o (d) To suggest that the complainant's allegations of sexual assault, especially historical sexual
assault, arise out of a "falsely recovered" memory which has been implanted by a therapist,
o (e) To dissuade a complainant from proceeding to trial by collecting embarrassing or humiliating
personal details about the complainant from her personal records.
- Disclosure of a complainant's personal records is initially covered under the broad Stinchcombe
rules.
- (a) Under Stinchcombe (1991), the prosecutor must disclose to the accused all "relevant evidence" which
is in the prosecutor's hands -- this has been held to include any personal records of the complainant
which the prosecutor has copies of: O'Connor (1995).
- (b) In regard to personal records, not in the hands of the prosecutor, but rather in the hands of third
parties such as counseling centers, hospitals or schools, the accused can apply to a court to have such
records subpoenaed.
R. v O’Connor – test for disclosure of personal records
- Facts: O’Conner was a bishop and he conducted many different sexual assaults over a wide variety of
time. He attacked the credibility of some of the complainants. For example why they raised these so late
-
-
in life and whether they were mentally able and therefore reliable witnesses. The Crown argued that the
defence was overreaching and she refused to disclose the information until she was compelled to do so
by court order.
Majority: In regard to these personal records in the hands of third parties, court held that such records
may be subpoenaed subject to a judicial inquiry, involving a two-stage test:
o (i) The accused must convince the judge that there is a reasonable possibility that such records
will provide information which is logically probative of "an issue at trial or the competence of a
witness to testify"; and
 Competence goes to the question of ability to relate to past events accurately and
relevance is the threshold question
o (ii) If the relevance test is met the second stage involves a balancing of the competing rights of
the accused to make full answer and defence and the complainant's privacy rights.
Dissent: (L'Heureux-Dubé) She held that the majority's two-step test was inadequate, at the first stage, in
protecting a complainant's privacy rights. This is the regime that is ultimately accepted, is one where in
detailed fashion, the courts need to look at all of the factors, model that directs the judge to ask specific
questions.
1996 Amendments in Response to O’Connor
- Parliament reacted to criticism of the majority judgment in O'Connor by introducing Bill C-46 in 1996.
This Bill enacted ss. 278.1-278.9 of the Criminal Code to deal with the disclosure of records in sexual
assault prosecutions. These new provisions were designed to provide greater privacy to complainants.
- The new provisions follow a 2-step procedure modeled on L'Heureux-Dubé's dissenting judgment
in O'Connor, whereby the initial stage of the 2-step test is increased to incorporate a balancing of the
relevant interests of the accused and the complainant at stage one. In Darrach, the S.C.C. summarized
the provisions as follows
- The provisions that control the use of personal records contain a two-step procedure:
o (1) The defence must first apply in writing under s. 278.3 with grounds to establish that the
record is "likely relevant". On a voir dire, the judge may order the holder of the record to
produce it if the defence can demonstrate that the record is "likely relevant" and "is necessary in
the interests of justice".
o (2) The judge then reviews the material and decides whether or not to produce it to the
accused. The Code contains a list of factors to help the judge determine the relevance of the
record
- Sections 278.1 to 278.9 were challenged as being unconstitutional. However, in Mills (1999) a majority
of the S.C.C. upheld the constitutional validity of these new provisions.
B. Substantive Law Issues
Mistake of Fact as a Defence
- Mistake of fact is an essential element of the actus reus and may operate as a defence because it may
negate the required mens rea for that offence.
- As a general rule, the mens rea must be proven in relation to each essential element of the actus reus.
- If the offence in question requires subjective mens rea, then the accused does not have that subjective
mens rea if he/she is honestly mistaken [i.e. not reckless, not wilfully blind] about an essential element
of the offence.
o Example of the accused's belief in Beaver that he was in possession of sugar of milk, rather than
a narcotic. The accused's mistake must be subjectively honest but need not be objectively
reasonable.
- On the other hand, if the offence in question requires objective mens rea -- e.g., criminal negligence,
penal negligence, or strict liability -- the mistake of fact must be both honest and reasonable.
- In Pappajohn and Sansregret, the Supreme Court held that since the mens rea for rape was subjective,
an honest mistake of fact that the complainant consented to the intercourse, negated that mens rea even
though that mistake may have been unreasonable or even grossly unreasonable.
o In both cases we are dealing with old criminal law, the need for subjective MR for each element
of the AR.
o In Sansregret, if your mistake is deliberate, then it is considered willful blindness and therefore
no defence.
R v Pappajohn – General Rules Apply
- Because sexual assault is a mens rea offence, an honest mistaken belief of consent (even if
unreasonable) is a defence.
- Facts: After a lunch date they went back to the Ds house. The victim said that she didn’t consent and the
D said that she did until she ran out of the house. The accused was charged with rape. The TJ refused to
give the mistake of fact defence to the jury and said the only issue was consent.
- Majority: The Criminal Code was silent as to the mens rea of the offence of rape. Thus the Supreme
Court applied the principles in Sault Ste Marie that in the absence of a contrary legislative intent a true
crime requires subjective mens rea as to all essential elements of that crime. Thus the mens rea for rape
was intention, recklessness or wilful blindness. The Court stated:
- In summary, intention or recklessness must be proved in relation to all elements of the offence,
including absence of consent. This simply extends to rape the same general order of intention as in
other crimes.
- The TJ was correct in leaving to the jury to decide consent or not because the evidence was not clear
- Dissent: intention or recklessness must be proved in relation to all elements of the offence, including
absence of consent. The defence should avail where there is a honest belief in consent, or an absence of
knowledge that consent has been withheld
- If mistake of fact is found, then it does not matter if it is reasonable or unreasonable. The concern of not
having reasonable belief is balance with other concerns.
o (1) cases in which mistake can be advanced in answer to a charge or rape must be few
o (2) if a women, in her own mind withholds consent, but her conduct leads one to believe she is
consenting, it would be unjust to convict.
o (3) It is unfair to ask the jury to ignore an actual belief in favour of an attributed belief.
- The debate as to the whether a mistake must be reasonable is unimportant because the accused’s
statement that he was mistaken is not likely to be believed unless the mistake is to the jury reasonable.
R v Sansregret – willfully blind, so no defence
- Facts: her ex-boyfriend broke into her home on 2 occasions and she had intercourse with him in hopes of
calming him down. TJ acquitted on the basis that his was an honest yet mistaken belief of consent.
- Decision: If the accused's lack of knowledge as to consent is due to the accused's own wilful blindness,
then the accused has no defence on that point.
- Where the accused is deliberately ignorant as a result of blinding himself to reality then the law
presumes knowledge, in this case knowledge of the nature of the consent. There was therefore no room
for the operation of this defence.
1983 Amendment to Code: new section 265(4)
- In cases of mistaken belief as to consent, s. 265(4) of the Criminal Code now states that the judge shall
direct the jury to consider the presence or absence of reasonable grounds for that belief in assessing
whether or not to believe the accused’s claim that he/she was mistaken. This section was added in 1983.
Osolin v. The Queen
- The SCC held that s. 265(4) is no more than the codification of the common law on mistake of fact. It
does not create a statutory presumption nor does it shift the burden of proof to the accused.
- The accused who wishes to raise the defence of mistaken belief as to consent only bears an evidential
burden (i.e. to introduce some evidence that creates an “air of reality” to the claim of mistaken belief).
This is the same evidential burden on the accused as exists for other defences
o The Supreme Court goes on to hold that the defence of honest but mistaken belief in consent was
not available to the accused in Pappajohn and in Sansregret because the evidence did not create
"an air of reality" to the accused's claim.
-
They said there was not change in the law, just a codification. There is a new procedural requirement but
the law has remained the same. No evidence shift or change in burden
1992 Amendment to Code: new section 273.2 (re: reasonable steps)
- This as a new test for consent, society wanted a higher standard with respect to consent
- Subjective mens rea in respect to consent for sexual assault does not provide sufficient protection to
complainants in respect to sexual assault committed by reason of honest, but unreasonable mistakes as to
consent.
- As a result Parliament in 1992 introduced an objective "reasonable steps" test for consent in sexual
assaults. Section 273.2 provides:
o It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the
complainant consented to the activity that forms the subject-matter of the charge, where
 (a) The accused's belief arose from the accused's (i) self-induced intoxication, or (ii)
recklessness or wilful blindness; or
 (b) The accused did not take reasonable steps, in the circumstances known to the accused
at the time, to ascertain that the complainant was consenting.
 This requires the accused to put into the record what reasonable steps they took
- The following two comments can be made on s. 273.2:
- i) Section 273.2(a)(ii) sets out the law as per Pappajohn and Sansregret.
- ii) Section 273.2(b) alters the law of mistake of fact for sexual assault cases that was laid down in
Pappajohn and Sansregret.
o In Pappajohn and Sansregret the Supreme Court of Canada held that the offence of rape
was a true crime requiring subjective mens rea and therefore intent, recklessness or wilful
blindness must be proven in regard to all elements of the actus reus, including the
element of consent.
o Thus if an accused was honestly mistaken about consent, the accused lacked the
necessary mens rea and must be acquitted, even if the accused's honest mistake was an
unreasonable one.
o Under s. 273.2(b) the accused's mistake must now be both honest and reasonable, in the
sense that the accused must have taken "reasonable steps" to ascertain that the
complainant was consenting.
- The constitutional validity of s. 273.2(b) was challenged in R. v. Darrach (1998).
o The Ontario Court of Appeal held (1) that sexual assault is not one of the "very few offences"
which carries such a stigma or penalty that its mens rea must be "subjective" in order to be
constitutionally valid under Vaillancourt etc; and
o (2) In any event, notwithstanding s. 273.2(b), the offence of sexual assault is still largely based
on subjective fault because the objective element of taking reasonable steps is also
"personalized" by the words "in the circumstances known to the accused at the time". [The
S.C.C. in Darrach did not consider the constitutional validity of s. 273.2(b).]
o But it may be difficult for the accused to do this without actually testifying themselves.
- In Ewanchuk the Supreme Court of Canada noted that the mens rea of sexual assault contains two
elements:
o (i) An intention to touch and (ii) knowing of, or being reckless of or willfully blind to, a lack of
consent on the part of the person touched. The accused may challenge the Crown's evidence of
mens rea by asserting an honest but mistaken belief in consent
o The mistaken belief must also meet the "reasonable steps" requirement of s. 273.2 of the
Criminal Code.
o Mistaken belief in consent is simply a denial of mens rea. It does not impose any legal burden of
proof on the accused nor impose a mandatory obligation on the accused to testify. Support for
the defence may arise in cross-examination of the Crown's case, although it will usually arise
also in the evidence called by the accused. Like all defences, there must be an air of reality to it,
before it is considered by the trier of fact.
-
On the facts of Ewanchuk, the Supreme Court held that there was no air of reality to the claim of
mistaken belief in consent: (NB: among other things, the Accused didn’t testify).
o The Court noted that there must be evidence that the accused honestly believed that the
complainant communicated by words or conduct her agreement to engage in the sexual activity.
Speculation, or even a belief by the accused that the complainant wanted in her own mind to be
touched, but did not express that desire, is no defence. The accused must honestly believe that
the complainant said "Yes" through her words or actions.
Defences and Air of Reality Test
- Before a trial judge instructs a jury to consider a defence, there must be an "air of reality" to the
existence of that defence in the evidence presented at trial. There must be a factual basis for that
defence in the evidence.
- The air of reality test simply means that there must be sufficient evidence, which if it was believed,
would constitute the defence in question: Cinous. This is a test of general application and applies to all
defences including mistaken belief in consent
- In the context of mistaken belief in consent, the S.C.C. has held in Osolin (1993, S.C.C.)
- (1) No requirement that there be a source of evidence other than the accused.
- (2) Mere assertion "I believed she was consenting" is not sufficient; there must be something in the facts
(evidence) to support that assertion.
Meaning of Consent
- Section 273.1, which was enacted in 1992 by Bill C-49 defines consent as "the voluntary agreement of
the complainant to engage in the sexual activity in question" and it provides that no consent is obtained
where
o (a) the consent is expressed by someone other than the complainant,
o (b) where the complainant is incapable of consenting to the activity;
o (c) where the activity is induced by an abuse of a position of trust, power or authority;
o (d) where the complainant expresses, by words or actions, a lack of agreement, or
o (e) the complainant expresses, by words or conduct, a revocation of her/his agreement
- Whereas consent has in the past often been readily implied through the complainant's silence,
acquiescence, or failure to protest, the majority of the S.C.C. in Ewanchuk has now held that in respect
to consent, the focus is on whether the complainant's words or conduct have positively affirmed her/his
willingness to participate, rather than expressly reject it.
R. v. Ewanchuk
- Is the most recent and important case on consent [and mistaken belief in consent] in sexual assault.
- Facts: she went with the accused to his trailer and certain sexual acts took place to which she said “no”
to but she didn’t show fear.
- TJ: the complainants conduct was such that it could be objectively construed as constituting consent to
sexual touching of the type performed
- Decision: Set aside the accused's acquittal on the charge of sexual assault and entered a conviction. Held
that the trial judge erred in acquitting the accused on the grounds of implied consent since no such
defence exists in law. The Court clarified a number of issues concerning consent, and mistaken belief
in consent, in the context of sexual assault
- The Court reiterated that the actus reus of sexual assault involves three elements:
o (i) touching (objective),
o (ii) in a sexual context (objective)
o (iii) without the complainant's consent: subjective in nature and is determined by assessing the
complainant's subjective state of mind towards the touching at the time it occurred. On the issue
of consent, or no consent, the trier of fact is only to be concerned with the complainant's
perspective. The approach is purely subjective.
- Where the complainant testifies that she did not consent, it is open to the accused to argue that the
complainant's words and actions, before and during the sexual activity, raise at least a reasonable
doubt as to the truth of the complainant's assertion.
-
-
-
-
-
-
If a reasonable doubt exists, the Crown has not proven its case. On the other hand, if the trier of fact is
convinced beyond a reasonable doubt that the complainant subjectively did not consent, then absence of
consent has been established.
At the stage of determining consent, the accused's perception of the complainant's state of mind is
not relevant. It is only relevant once consent has been established and then it operates as a denial of
mens rea based on mistake of fact. Thus, at the first stage, the trier of fact may only come to one of two
conclusions: consent or no consent.
o There is no third option of implied consent whereby the trier of fact accepts the complainant's
assertion that subjectively she did not consent, but finds that the complainant's words or actions
were ambiguous and thereby amounted to implied consent.
o This is where mistaken belief and the new provisions come in. Since he didn’t put his client on
the stand could not raise mistaken belief. Also important that you have to examine the whole
transaction, there may have been consent at the beginning, but it can be revoked at any time.
The Court also noted that in some circumstances where the complainant ostensibly consents to the
sexual activity, s. 265(3) provides that such ostensible consent is of no legal force and effect. One such
circumstance is where consent is given by reason of threats or fear of force.
But the Court noted that one need only consult s. 265(3) where the complainant has consented, or there
is at least a reasonable doubt on that point, which was not the case in Ewanchuk. In regard to s.
265(3)(b), the Court stated (at para. 39):
o If a complainant agrees to sexual activity solely because she honestly believes that she will
otherwise suffer physical violence, the law deems an absence of consent, and the third
component of the actus reus of sexual assault is established.
o The trier of fact has to find that the complainant did not want to be touched sexually and made
her decision to permit or participate in sexual activity as a result of an honestly held fear. The
complainant's fear need not be reasonable, nor must it be communicated to the accused in order
for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of
it, are obviously relevant to assessing the credibility of the complainant's claim that she
consented out of fear, the approach is subjective.
The Court also referred to R. v. M.(M.L.), where the Court held that a belief that silence, passivity or
ambiguous conduct constitutes consent is a mistake of law and provides no defence.
The Court further stated that where the complainant has expressed her unwillingness to engage in sexual
contact, the accused must obtain a clear and unequivocal "Yes" before he proceeds with any further
sexual touching. The accused in this case received no such clear and unequivocal "Yes". The Court
stated that the accused "cannot rely on the mere lapse of time or the complainant's silence or equivocal
conduct” to indicate that there has been a change of heart and that consent now exists, nor can he engage
in further sexual touching to "test the waters". The Court held that to continue to initiate sexual conduct
after someone has said "No" is, at a minimum, reckless conduct that is not excusable.
Mistake of fact discussion above
6. Ignorance of the Law
-
-
-
-
-
-
-
Defences in general are in three categories: ones the negate AR, negate MR or don’t go to either AR or
MR.
o For third category, D will have to call some evidence. Cannot establish them merely by effective
cross-examination.
The Rule: See s. 19 of the Code: “Ignorance of the law is not an excuse for committing an offence.”
Is a common law rule based on the assumption that everyone knows, or ought to know, what the
criminal law forbids
Rationale for Rule: R v. Jorgensen (SCC 1995)
o Discusses officially induced error but also the rationales
o Evidential concerns
o Encouraging a socially undesirable state of mind
o Anarchy; conflict with Rule of Law and moral basis of law
o Ignorance is blameworthy per se. It is bad to be ignorant and we should not encourage it.
Creating incentives for people to know the law
The principle can be harsh and unjust. See the following examples:
Bailey (1800)
o He was at sea, could not know that a new Act and offence had been created
o Held: "in strict law" guilty since ignorance of the law is no excuse.
R. v. Dalley (1957), 118 C.C.C. 116 (Ont. C.A.)
o Relied on advice of his lawyer that his conduct was lawful; the lawyer was wrong. He did not
know he was trading in a "security" and therefore by law needed to be a "registered broker",
which he was not
o Held: ignorance of law is no defence. A was convicted.
Brinkley (1907), 12 C.C.C. 454 (Ont. C.A.)
o Relied on advice of lawyer that his first marriage was dissolved. He then remarried. Later
charged with bigamy. Found guilty.
o Held: ignorance of the law is no excuse
Campbell (1972), 10 C.C.C. (2d) 26 (Alta. D.C.)
o Accused relied upon an early Alberta QB judgment holding that nude dancing in a bar illegal
under the Criminal Code. This judgment was reversed on appeal to the Alberta Court of Appeal
o Accused performed nude before the trial judgment was reversed, expressly relying upon the trial
decision that such conduct was not criminal.
o Held: Guilty. Reliance on an incorrect Supreme Court trial judgment is still an error of law and
is therefore no defence
Molis (1980)
o When accused first started manufacturing a certain drug, it was a legal drug; subsequently the
drug was declared "restricted" by Regulation which was published in the Canada Gazette.
o Accused argued that he did not know it was illegal and that he had acted with due diligence in
determining whether it was legal before he started manufacturing it.
-
-
o Held: S.C.C. said that due diligence in ascertaining the law is no defence in regard to ignorance
of the law.
R. v. Gunn (1997), 113 C.C.C. (3d) 174 (Alta. C.A.)
o The Court of Appeal upheld the accused's conviction for willfully obstructing a police officer.
The accused, a lawyer, interfered with the police who were in the process of arresting the
accused's client.
o The lawyer interfered because he thought the arrest was illegal. The lawyer was mistaken. The
lawyer's mistake was a mistake of law and therefore was not a defence due to s. 19. The Court
also distinguished Docherty and held that the accused's mistake of law did not negate the mens
rea of "wilfully" obstructing a peace officer.
Jones and Pamajewon (1991 S.C.C.)
o The accused operated a bingo on an Indian reserve without a provincial licence, contrary to s.
206 of the Criminal Code. The accused renounced the legitimacy or power of the federal and
provincial governments to regulate bingos on reserves.
o The S.C.C. held that their belief that the Criminal Code did not apply to their bingos was a
mistake of law and therefore no defence.
Exceptions or Limitations to the Rule
(1) Mistake of fact is a defence
- A mistake of mixed fact and law is also a defence since there is still a mistake of fact.
- Ignorance of an offence in a Regulation that has not been published in the official Gazette will excuse:
o Statutory Instruments Act, R.S.C. 1985, c. S.-22, s. 11(2): which states no person shall be
convicted of an offence set out in a Regulation unless the Regulation was published in the
Canada Gazette.
o B.C. Regulation Act, s. 3(2) [similar to s. 11(2) of the Statutory Instruments Act]
(2) Mistake as to civil law treated as a Mistake of Fact for Criminal Code Offences
- A mistake as to civil law (i.e. whether one's license was suspended automatically under the provincial
Motor Vehicle Act) will be considered a mistake of fact when it is an essential element of an offence
under the Criminal Code: Prue & Baril (S.C.C. 1979)
o The accused lack of knowledge that his license had been automatically suspended under
provincial law was a question of fact and not of law.
o The dissent said that it was a mistake of law because they were ignorant of the law which was
attendant upon the failure to be aware of the automatic suspension for which provincial law is
made
- A mistake as to civil law is not a defence if the offence is an offence under provincial law, rather than a
Criminal Code offence: MacDougall (S.C.C. 1982)
o The accused testified that he believed he could drive until he was notified by the registrar that his
license had been revoked. This was accepted by the trial judge.
o The SCC found that despite Prue and Baril, this was a mistake of law
- So if you are mistaken as to the operation of provincial law, that can furnish a defence to the criminal
code operation. But if your mistake is in regards to the criminal law, that does not give a defence to the
conviction
- Likewise, a mistake or ignorance of law about a military regulation passed under the Defence Act, is no
defence to a prosecution under the Defence Act of being absent without leave: R. v. Forster
- The Prue & Baril exception was applied to the Criminal Code offence of taking a child contrary to a
custody order where the parent mistakenly believed the custody order was of no legal effect. This was a
defence since it was a mistake as to civil law: Hammerbeck
- In R. v. Metro News Ltd. Martin J.A. stated that there are also other cases where an accused's mistaken
belief as to his rights under the civil law may negative the necessary mens rea or afford a defence.
However, apart from the doctrine of officially induced error, a person's mistaken belief pertaining to the
relevant criminal law ordinarily does not afford a defence
(3) Colour of Right
-
An honest, mistaken belief that one has a right to the property in question i.e. it is a mistake of law as to
"property rights"
- Theft (s. 322) is defined as "fraudulently taking ... without colour of right"
- This exception is analogous to the newly developing exception concerning mistakes as to civil law under
- This exception was applied in Howson
o Facts: an employee of a towing service was charged with theft of a car when he refused to give a
towed car back to its owner until he paid certain expenses. Convicted at trial but appealed
o Decision: If upon the evidence it may fairly be inferred that the accused acted under a genuine
misconception of fact or law, there would be no offence of theft committed. Although a mistake
as to property rights is technically a mistake of law, the “colour of right” exception appears to
treat it as a mistake of fact (as with the civil law exception above)
o This is a very narrow defence, and goes to the question of the legality of the action and the
individual’s belief in the action. You believed that you were legally entitled to maintain
possession of something.
o Since it says without colour of right, if the person is charged with theft the Crown has to negate
that there was a colour of right beyond a reasonable doubt. If on the evidence there is some
evidence of honest but mistaken belief that they had a colour of right, it would be justified.
(4) Negate Mens Rea
- Courts will sometimes hold that a mistake of law negates some forms of mens rea such as "wilful".
- R. v. Docherty
o Facts: He was charged with breaching his probation order of keeping peace and being of good
behavior because he was found in his car while intoxicated. But the car could not start so he
didn’t think he was breaking the law.
o Decision: He did not "wilfully" violate his probation order "to keep the peace" because he did
not know that he was committing the offence of "impaired care and control" of an automobile
when he was in a parked vehicle in an impaired condition since he believed the car was broken
and could not be started.
- Contra: R. v. Gunn, above where the Court held that a mistake of law does not negate the mens rea of
"wilfully" obstructing a police officer.
(5) Officially induced mistake of law is an excuse
- It is a principle of our common law that an honest but mistaken belief in respect of the legal
consequences of one’s deliberate actions does not furnish a defence to a criminal charge, even when the
mistake cannot be attributed to the negligence of the accused.
o But defence of officially induced error has a limited exception to general principles of ignorance
of the law is not an excuse.
- The individual has relied to their detriment on something that the state has said or done. It is unfair for
the state to provide false advice and then prosecute and fail to take ownership over their advice.
- Cancoil (Ont. C.A., 1986)
o The defence was allowed after an official inspector approved new piece of machinery.
o Restricts the defence of officially induced error as follows
 (1) To regulatory statutes
 (2) The erroneous official advice must come from an official who is responsible for the
administration or enforcement of that law
 (3) The accused's reliance must be reasonable
 (4) Accused must prove the defence on a balance of probabilities.
- Doesn’t apply in criminal cases, only civil, the advice must come from the official who is reasonable for
the enforcement of the law.
- R. v. Jorgensen (S.C.C., 1995)
o The majority of the Court expressly chose not to consider the existence or nature of a defence of
officially induced error. Although the defence to the obscenity charge under the Code was that
the provincial film review board had approved the movie
-
-
-
o In a separate judgment, Lamer C.J.C. held that an accused's reliance on such approval does
constitute a defence of officially induced error.
o He also held that:
 The defence is an excuse, not a justification,
 It applies not only to regulatory offences but also to true crimes,
 The defence must be established by the accused on a balance of probabilities
 The appropriate remedy if the defence is proven is a judicial stay of proceedings, not an
acquittal
He also proposed 6 conditions for raising the defence
o (1) Need to determine whether the error was in fact one of law or mixed law and fact
o (2) Did the accused consider the legal consequences of his actions
o (3) Did advice come from appropriate official
o (4) Was the advice reasonable
o (5) The advice must have been obtained erroneously
o (6) Must demonstrate reliance on the advice
Levis v Tetrault (SCC, 2006)
o In this case the SCC recognized for the first time officially induced error.
o Facts: A company relied on provincial insurance agency for a renewal notice which never came.
So they were charged provincially with operating a vehicle without insurance. The company
argued it had relied on representation by Provincial insurance agency, that it would receive
renewal docs in the mail (which never arrived)
o Decision: Company’s appeal dismissed however defence of officially induced error recognized.
Adopts Jorgenson, takes the view that there has to be some room in the system for the accused to
raise this defence. Approve the 6 element from the above case. Rationale is that extensiveness of
modern regulation justifies a limited exception. Can be seen as akin to entrapment: i.e. defence
does not go to MR or AR (therefore stay of proceedings appropriate). Must be established on a
balance of probabilities like entrapment. Here Respondent company’s defence failed on two
elements of the test (1) Respondent had not considered the legal consequences if its conduct on
the basis of the advice received; and (2) had not acted in reliance on that “legal” advice
Critiques: Is the analogy to entrapment valid, and thus is it appropriate to treat this defence as giving rise
to a “stay” rather than an acquittal?
Should the accused always have the burden of establishing the defence on a balance of probabilities?
Does it matter, in this regard, whether the charge is criminal or regulatory in nature?
7. Voluntary Intoxication Defence
Introduction
- For several centuries, common law courts maintained that drunkenness arising out of voluntary
consumption of alcohol is neither a defence nor an excuse for crime.
- But in the 1800's courts began to consider voluntary drunkenness in relation to its effect on the intent to
commit a crime. Although they always reiterated the ancient rule that drunkenness does not excuse, the
courts went on to hold that if the specific intent required for the offence was absent due to drunkenness,
the crime was not proven and the accused could not be convicted.
- Specific intent: the intention which was specifically set out in the indictment for each offence (e.g.,
assault with intent to wound; assault with intent to kill; taking property with intent to deprive the owner,
etc., etc.).
D.P.P. v. Beard (1920) – The Beard Rules
- The modern statement of the defence of drunkenness
- 3 propositions concerning the defence of drunkenness:
o (a) If insanity is produced by excessive drinking, the proper defence to plead is insanity, not
intoxication.
o (b) Drunkenness which renders the accused incapable of forming the specific intent essential to
constitute the crime is a defence.
o (c) Drunkenness, short of incapacity to form the necessary specific intent, is no defence merely
because it caused the accused to more readily give way to some passion or inclination which he
may not have given way to, except for the alcohol.
- The Beard rules were expressly adopted by the S.C.C. in MacAskill (1931). Over the years, the Beard
rules have been subject to some modifications. In most cases, drinking alcohol causes people to fall
within the terms of proposition 3(c) above and, thus, their drinking affords them no defence or excuse.
It is only a limited number of cases where drunkenness is so great as to negate the required intent for a
crime.
Specific/General Intent
- Specific-general intent rule: Intoxication can be pleaded as a defence only for specific intent crimes,
not general intent crimes: R. v. Leary (S.C.C., 1978).
- The specific-general intent rule for intoxication has been criticized on a number of grounds including:
o (a) The fact that it ignores the wider ratio in Beard;
o (b) It seems neither logical nor just to allow intoxication as a defence for specific intent and to
deny it as a defence for general intent offences; and
o (c) It is very difficult in some cases to determine whether an offence is a general or a specific
intent offence
- Dickson J's criticism in dissenting opinions in Leary and in Bernard (S.C.C., 1988).
o No logical reason why lack of specific intent due to drunkenness is a defence whereas lack of
general intent due to drunkenness is not.
o The courts are more willing to allow the defence of drunkenness for specific intent crimes
because these specific intent crimes often involve a lesser, included, "general intent" crime which
a drunken accused can be convicted of.
 For example, the specific intent crime of robbery includes the general intent crime of
common assault. However, theft is a specific intent offence which does not include any
lesser general intent offence. Thus the drunken thief is acquitted outright.
o There is nothing wrong with a policy of not allowing drunken, accused persons to escape entirely
from criminal responsibility. But the all-or-nothing, "specific-general intent" rule is not a logical
way to pursue the law's legitimate aim.
o It has been suggested that drunkenness should be available to negate all "intentional crimes",
whether specific or general, but that an accused in such circumstances should be convicted of a
separate and new offence of "dangerous or negligent intoxication".
o Specific intent offences are more serious, so why should we allow voluntary intoxication come
to the aid of a criminal for the serious offences. It tends to privilege conduct which is even more
worthy of censure.
How do you determine which crimes are specific intent and which are general intent.
R v George – Distinguishes the two
- Facts: The accused went into and old man’s house and beat him for money. TJ acquitted because found
that accused was so drunk that he could not form the requisite intent.
- Distinction: a distinction is to be drawn between "intention" as applied to acts done to achieve an
immediate end on the one hand [general intent] and acts done with the specific and ulterior motive and
intention of furthering or achieving an illegal object on the other hand [specific intent].
o This distinction is hard to apply. If the definition of the offence includes words such as "with
intent to" or "for the purpose of", you can safely conclude that the crime is a "specific intent
crime". If such words are not present, chances are that the courts will classify such crimes as
general intent crimes, but that is not always the case.
- Decision: Evidence of drunkenness cannot be treated as a defence to a charge of common assault
because there is no suggestion that the drink which has been consumed produced permanent or
temporary insanity and the respondent’s own statement indicates that he was applying force to the
person of another.
- Fauteux: In considering MR, a distinction has to be made between (1) intention as applied to acts
considered in relation to their purposes and (2) intention as applied to acts considered apart from their
purposes. In this question should not look to specific intent of robbery but whether owing to
drunkenness, the accused’s condition was such that he was incapable of applying force intentionally.
Should be found guilty of common assault
- Locke: The Crown had no right to appeal. Stated bluntly the contention of the Crown is that where a TJ
hearing a criminal charge fails to deal with but to consider independently, an offence included in the
offence specifically charged and this is done with the approval of counsel of the Crown, s. 584 may be
invoked to again place the accused in jeopardy.
R. v. Bernard (S.C.C., 1988) – Distinction between general and specific
- Facts: the accused raised intoxication as a possible defence to sexual assault causing bodily harm.
- The trial judge held that this offence was a general intent offence and therefore intoxication is no
defence.
- The S.C.C. was asked to decide whether the specific-general intent rule for intoxication should be
retained, modified or abolished. Three different opinions were expressed.
- (1) McIntyre and Beetz held that the specific-general intent rule should continue in its present form.
- (2) Dickson, Lamer & La Forest held that the specific-general intent rule should be abolished and that
evidence of intoxication should be admissible to negate intention in both general and specific intent
crimes.
- (3) Wilson and L'Heureux-Dubé held (1) that the general-specific intent rule should be preserved; (2)
and evidence of intoxication should not be admitted for general intent offences except in cases where
there is "evidence of extreme intoxication involving an absence of awareness akin to a state of insanity
or automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the
existence of the minimal intent required for the offence." [and the evidence of intoxication in this case
did not reach this level of extreme intoxication]. (This was more of a compromise)
o Wilson J. held that to deny the defence of intoxication for general intent crimes in cases where
the intoxication was akin to insanity or automatism, would violate ss. 7 and 11(d) of the Charter.
o Based upon the reasoning in cases such as Vaillancourt and Martineau, Wilson J. held that
principles of fundamental justice (i.e. mens rea crimes require mens rea) are not satisfied by
substituting the fault of voluntarily getting extremely intoxicated for the general intent required
for each crime (e.g., "the intent to assault").
o To conform with the Charter say that you made a choice to get drunk and so we will criminalize
the choice as opposed to the precise state of mind that you were in when you committed the
offence. This is to some extent what Parliament does, the guilty state of mind is being negligent
about making yourself that drunk.
R v. Daviault (1994) – Specific/General rule should prevail except for extreme intoxication
- Facts: He was extremely intoxicated that it was possible that he blacked out or disassociated from
normal function. He was charged with sexual assault but the trial judge acquitted on the basis of extreme
intoxication, he didn’t have the requisite intent
- The trial judge held that sexual assault is a general intent offence and intoxication is no defence unless it
is so extreme that it is akin to automatism. The trial judge acquitted Daviault because there was a
reasonable doubt that the accused was in a state of drunkenness akin to automatism.
- Question: Can an extreme state of drunkenness constitute a basis for defending a crime which requires
not a specific but only a general intent?
- S.C.C: confirmed that Wilson’s judgment in Bernard was the correct statement of the intoxication
defence.
o However the S.C.C. held that in the case of extreme intoxication as a defence to general intent
crimes the accused should bear the onus of establishing that defence on a balance of
probabilities
o This does nothing to solve the asymmetry in how we solve specific or general intent offences
o Section 7 mandates a limited exception to the application of the Leary rule. This would permit
evidence of extreme intoxication akin to automatism or insanity to be considered in determining
whether the accused possessed the minimal mental element required for crimes of general intent.
o People who are a little drunk can form the necessary MR. In reality is it only those who can
demonstrate that they were in such an extreme degree of intoxication that they were in a state
akin to automatism or insanity that might expect to raise a reasonable doubt as to their ability to
from the minimal mental requirement for general intent offence.
- NB: Placing the onus of proof for general intent intoxication on the accused is not very logical since the
Crown bears the onus of proof in regard to specific intent crimes. The S.C.C. ordered a new trial on the
grounds that the trial judge applied the wrong standard of proof.
Reaction to Daviault – Section 33.1
- In spite of the infrequent occurrence of Daviault intoxication and the even less frequent success of that
defence, Parliament reacted quickly to the negative publicity which accompanied Daviault and its
aftermath by enacting s. 33.1 into the Criminal Code.
- Section 33.1 has the effect of overruling Daviault by abolishing the defence of self-induced
intoxication for all general intent offences which involve assault as an element of the offence,
notwithstanding the fact that the accused lacked the general intent or the voluntariness required to
commit the offence due to intoxication.
- However the Act does not abolish extreme, self-induced intoxication akin to insanity or automatism as a
defence to general intent offences which do not involve assault as an element of the offence, such as
forcible entry as occurred in Watt (1995), 39 C.R. (4th) 263 (Alta. Prov. Ct.).
-
To the extent that the new law overrules the Daviault rules as they apply to offences involving assault, it
appears to violate s. 7 for the reasons explained in Daviault. Whether the new law will be saved under
s. 1 of the Charter remains an open question.
- The defence of intoxication applies to intoxication by drugs as well as liquor: R. v. Curtis
- Intoxication is not on policy grounds a defence to the offence of driving a vehicle while impaired and
this ruling does not violate the Charter: R. v. Penno.
- A mistake of fact caused by self-induced intoxication will not be permitted on policy grounds as a
defence to a general intent offence: Moreau (1986, Ont. C.A.).
Current Law
- (1) Intoxication is a defence for "specific intent" crimes if it negates the specific intent (Leary)
- (2) Voluntary intoxication is not a defence to a general intent crime unless
o (i) The intoxication is so extreme that it is akin to insanity or automatism (Daviault) and
o (ii) The general intent crime does not involve assault as an element of the crime. (S. 33.1)
- (3) Voluntary intoxication is no defence to objective mens rea crimes (e.g. negligence) because the
reasonable person is never an intoxicated person.
- Onus of Proof: Differs between specific and general intent [“not very logical” – Prof. Tollefson]
o For specific intent offences, the Crown must prove the existence of specific intent BRD
(Bernard)
o For general intent offences, the onus is on ∆ to prove the defence on the BoP (Daviault)
- Consequences: Can be full acquittal of crime charged due to lack of MR or possible conviction of a
lesser included offence (e.g. murder to manslaughter; robbery to assault etc.)
A.
General Intent Offences
In R. v. Bernard, [1988] 2 S.C.R. 833, 45 C.C.C. (3d) 1, 67 C.R. (3d) 113, and R. v. Daviault, [1994] 3 S.C.R. 63,
93 C.C.C. (3d) 21, 33 C.R. (4th) 165, the Supreme Court of Canada upheld the distinction between offences of
general and specific intent. The following have been classified as offences of general intent:
Assault: R. v. George, [1960] S.C.R. 871, 128 C.C.C. 289, 34 C.R. 1; D.P.P. v. Majewski (1976), 62 Cr. App. R.
262 (H.L.). Assume that this possess at best a general offence
Assault causing bodily harm: Majewski; R. v. Penney (1959), 125 C.C.C. 341, 31 C.R. 167 (N.S. Mag. Ct.); R.
v. Quin, [1988] 2 S.C.R. 825, 44 C.C.C. (3d) 570, 67 C.R. (3d) 162; R. v. Tom (1992), 79 C.C.C. (3d) 84, 18 C.R.
(4th) 203 (B.C.C.A.). Don’t have to have an intent
Assault of peace officer (s. 270(1)(a)): R. v. Tom, supra, at C.C.C. 90, C.R. 209.
Aggravated assault (s. 268): R. v. Godin, [1994] 2 S.C.R. 484, 89 C.C.C. (3d) 574, 31 C.R. (4th) 33; R. v. Scharf
(1988), 42 C.C.C. (3d) 378 (Man. C.A.); R. v. L. (S.R.) (1992), 16 C.R. (4th) 311 (Ont. C.A.); R. v. Levy (1996),
104 C.C.C. (3d) 423 (N.S.C.A.).
Break and enter (s. 348 (1)(b)): Quin; R. v. Breese (1984), 12 C.C.C. (3d) 491 at 515-16 (Ont. C.A.), quoted in
note (7b) (may be general or specific intent).
Criminal Harassment (s. 264): R. v. Lafreniere, [1994] O.J. No. 437 (Ont. Ct. J. (Prov. Div.)); R. v. McShane,
[1996] O.J. No. 31 (Ont. Ct. (Prov. Div.)); R. v. Ducey (1995), 134 Nfld & PEI R 339 (Nfld. S.C.), aff'd 142 Nfld
& PEI R 91 (C.A.).
Incest (s. 155): R. v. S.J.B., 2002 ABCA 143.
Indecent assault: R. v. Resener, [1968] 4 C.C.C. 129, 4 C.R.N.S. 64 (B.C.C.A.); Swietlinski v. R., [1980] 2
S.C.R. 956, 55 C.C.C. (2d) 481, 18 C.R. (3d) 231; R. v. Schmidt and Gole (1972), 9 C.C.C. (2d) 101 (Ont. C.A.).
Manslaughter: Lipman, supra, note (1); R. v. Mack (1975), 22 C.C.C. (2d) 257, 29 C.R.N.S. 270 (Alta. C.A.).
Mischief: R. v. Schmidtke (1985), 19 C.C.C. (3d) 390, 44 C.R. (3d) 392 (Ont. C.A.); R. v. Butler (1984), 42 C.R.
(3d) 268 (Ont. Co. Ct.).
Rape: Leary v. R., [1978] 1 S.C.R. 29, 33 C.C.C. (2d) 473, 37 C.R.N.S. 60.
Sexual assault: R. v. Chase, [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97, 59 C.R. (3d) 193; Bernard.
Unlawful confinement (s. 272(2)(b)): R. v. S.J.B., 2002 ABCA 143.
Wilful obstruction of a peace officer (s. 129(a)): R. v. Grandish, [1995] Y.J. 63 (T.C.) cited with approval in R.
v. Gunn (1997), 113 C.C.C. (3d) 174, 6 C.R. (5th) 405 (Alta. C.A.), leave to appeal dismissed (26 June 1997),
25912 (S.C.C.).
B.
Specific Intent Offences
In Bernard, supra, note (5), and Daviault, supra, note (5), the Supreme Court of Canada upheld the distinction
between offences of general and specific intent. The following have been classified as offences of specific intent:
Aiding and abetting—s. 21(1)(b) or (c): R. v. Fraser (1984), 13 C.C.C. (3d) 292 (B.C.C.A.); R. v. Waterfield
(1974), 18 C.C.C. (2d) 140 (Ont. C.A.); R. v. Chapin (1978), 41 C.C.C. (2d) 300, 3 C.R. (3d) 336 (Alta. C.A.).
Arson—s. 433: Without expressly classifying s. 433 as a specific intent offence, the Court held that intoxication
in this case may be relevant in determining whether the accused formed the requisite intent for s. 433: R. v.
Hudson (1993), 88 Man. R. (2d) 150 at para. 12 (C.A.).
Assault with intent to resist arrest—s. 270(1)(b): R. v. Tom, supra, note (5) at C.C.C. 90, C.R. 209.
Assaulting a police officer: R. v. Vlcko (1972), 10 C.C.C. (2d) 139 (Ont. C.A.); contra R. v. Tom, supra note (5).
Added element is that you have to know if a police officer
Attempted murder: R. v. Kireychuk (1974), 19 C.C.C. (2d) 253 (Alta C.A.); R. v. Bartlett (1983), 5 C.C.C. (3d)
321, 33 C.R. (3d) 247 (Ont. H.C.); Vickberg, supra, note (5a).
Attempt at any offence: R. v. Colburne (1991), 66 C.C.C. 235 (Que. C.A.).
Break and enter: Curtis, supra, note (1); R. v. Campbell (1974), 17 C.C.C. (2d) 130 (Ont. Co. Ct.); Quin, supra,
note (5) (charge under s. 348 (1)(a): Break and enter with intent to commit); Breese, supra, note (5) at 515-16:
. . . breaking and entering and theft under s. 306(1)(b) [now s. 348(1)(b)], and attempting to commit
the offence of breaking and entering a place with intent to commit an indictable offence therein,
contrary to s. 306(1)(a) [now s. 348(1)(a)] and s. 24 of the Code, are crimes of specific intent.
Breaking and entering a place or attempting to break and enter a place with intent to commit an
indictable offence therein is always a crime of specific intent. Breaking and entering a place and
committing an offence therein under s. 306(1)(b) [s. 348(1)(b)] may or may not be an offence of
specific intent, depending upon the indictable offence therein committed . . . .
Murder: D.P.P. v. Beard, [1920] A.C. 479 (H.L.); Mulligan v. R., [1977] 1 S.C.R. 612, 28 C.C.C. (2d) 266;
Swietlinski, supra, note (5).
Possession of stolen property: Bucci, supra, note (1); R. v. McLaughlan (1974), 20 C.C.C. (2d) 59, 29 C.R.N.S.
265 (Ont. C.A.). You have to know that it is stolen and so that is special intent
Receiving stolen property: Bucci.
Robbery: George, supra, note (5).
Theft: Ruse v. Read, [1949] 1 K.B. 377; Bucci, supra, note (1). May also be on the other list
Sexual Exploitation—s. 153: R. v. Audet (1996), 106 C.C.C. (3d) 481 at 503, 48 C.R. (4th) 1 at 51; R. v. Bone
(1993), 81 C.C.C. (3d) 389 (Man. C.A.). Would have a number of MR
Wilfully Causing a fire—s. 436(1)(a) [as it then was]: R. v. Swanson (1989), 48 C.C.C. (3d) 316 (B.C.C.A.).
Predecessor offence to arson
-
-
In cases where you have crimes classified under both headings you would have to convince the judge
which line of authority to follow need to know that assault and robbery are opposite sides and murder v
manslaughter
If you can raise a defence to a specific intent crime based on intoxication, there will almost always be a
conviction on a general intent offence. If the act which was affected by intoxication was done in
furtherance of achieving another illegal object, that becomes a specific intent offence.
8. Insanity/Mental Disorder as a Defence
Substantive Requirements of s. 16
- Section 16(1) defines the legal test for the mental disorder defence. Section 2 defines "mental disorder" as a
"disease of the mind" (which in turn is defined in caselaw)
- To understand the scope of the mental disorder defence, it is necessary to examine both procedural and
substantive aspects of the defence: Classes 1 and 2
- The accused must meet the two requirements of s. 16 namely an incapacity to
o (1) "appreciate the nature and consequences" of their act; OR
 Do nor import philosophy, morality or other considerations here
o (2) know "it was wrong"
 Can be legally or morally wrong
- As such, s 16 is based solely on cognitive impairment (ability to reason, understand) due to disease of the
mind.
- It does not include volitional impairment (ability to control behaviour) due to disease of the mind: irresistible
impulse due to mental disorder is not included within s. 16
- The Crown is not allowed to ambush a defence by seeking NCRMD when the defence does not make that an
issue on their own motion. The Crown, where they deem the public interest might justify this order and once
the verdict of guilty has been entered, can stand up and invite the trier of fact to substitute a NCRMD with a
guilty verdict. If they can establish this on a balance of probabilities, then the Crown will prevail. The verdict
of guilty will be replaced with NCRMD
(1) Disease of Mind
Cooper v The Queen
- Definition: 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,
o Must be of such intensity as to render the accused incapable of appreciating the nature and quality of
the violent act or of knowing that it is wrong.
o Doesn't include transitory states (Automatism) or self-induced states
- This definition is broad enough to cover virtually any mental impairment; but note that the existence of a
disease of the mind alone does not constitute the defence of mental disorder; it is simply a necessary (and
easy to establish) prerequisite;
- The exclusions in the above definition of disease of the mind are based on policy considerations: the law
treats mental impairment due to self-induced intoxication under the separate defence of intoxication (not
insanity); likewise, the law treats certain transitory mental disturbances such as (e.g. concussion, hysteria)
under the separate defence of automatism.
- Can be any medical condition that impairs the human mind and its functioning, with a few exclusions.
R v Simpson – Legal Term
-
-
-
For the purposes of the insanity defence, "disease of the mind" is a legal term and should be given a
definition by the courts, not the medical profession
o The fact that the medical profession does or does not classify a particular mental problem as a
disease of the mind does not necessarily mean that the mental problem is not a disease of the mind for
legal purposes
o Judge determines what mental conditions are within the meaning of that phrase and whether there is
any evidence that an accused suffers from an abnormal mental condition comprehended by that term.
Expert medical evidence as to whether the accused was insane [according to the legal definition] should not
be treated as virtually determinative of that issue; it is an issue for the judge or jury, not for the medical
experts to decide;
Personality disorders or psychopathic personality are capable of constituting disease of the mind.
(2) The Meaning of Appreciate
- “Appreciating” means appreciating only those physical consequences which are an essential element
of the definition of the offence; appreciation of penal consequences is not included (Abbey)
- This is a more narrow definition of “appreciate” than was adopted previously (which also included an
emotional appreciation, and broad ability to perceive consequences, Cooper)
- Since Abbey, lower courts: Merely knowing what physical event might follow (e.g. cutting someone
leads to bleeding) does not imply an appreciation of the nature and quality of the act. In Kirkby (1985)
and Swain (1986) has attempted to re-assert a broad definition of "appreciate".
- But in Laundry courts have re-affirmed narrow
- The principal difference between section 16 and the M'Naghten rules (1843) is the substitution of the word
"appreciate" for the word "know": Cooper
- In 1956 the McRuer Commission concluded that section 16 was not in need of reform because the expression
"incapable of appreciating" was much wider than the word "know" and went far beyond the mere cognitive
nature of the M'Naghten test.
R. v Cooper
- SCC held that the expressions "know" and "appreciate" are not synonymous,
o "Appreciate" is wider in meaning than "know", and that it involves emotional as well as intellectual
awareness of the impact and consequences of an act and an ability to perceive, estimate and understand
the consequences, impact and results of a physical act.
- There was a deliberate change in the language from the common law rule in order to broaden to the legal
and medical considerations of the accused and to make it clear that cognition was not to be the sole
criteria
- In this case, the medical expert who testified at trial said the appellant could have been capable of
intending bodily harm and of choking the girl, but not having intended her death.
- The first branch of the test, in employing the word “appreciates” imports an additional requirement to
mere knowledge of the physical quality of the act. Requirement of perception is an ability to perceive
the consequences, impact and resulting physical acts.
- Appreciation of the nature and quality of the act does not import a requirement that the act be
accompanied by appropriate feelings about the effect of the act on other people.
R v. Abbey - only the physical consequences, not penal
- Facts: He was caught importing drugs from Peru. He had a large amount of drugs in his carry on, they
were in plain view. He went to Peru to purchase these drugs and he suffered from hypomania. He believed
he was able to astro-travel from location to location and that once committed to a particular task could not
stop.
- The two psychiatrists disagreed as to whether he was incapable of appreciating the nature and quality of
the acts.
o Crown argued that he knew what he was doing and that it was wrong.
- The TJ said his ability to appreciate the nature and quality of his acts was impaired and he failed to
appreciate the consequences of punishment for his acts
-
Decision: Supreme Court effectively undercut its own broad interpretation of "appreciate".
Dixon: A delusion which would render an accused “incapable of appreciating the nature and quality of the
act goes to the MR and brings into operation the first arm” of section 16(2)
o A delusion which renders and accused incapable of appreciating the penal sanctions attaching to
the commission does not go to the MR of an offence, does not render him incapable of
appreciating the nature and quality of the act and does not bring into operation the “first arm” or
the insanity defence
o TJ erred in holding that a person who by reasons of disease of mind does not appreciate the penal
consequences of his action in s 16(2) should be not guilty.
- The first branch of the insanity test "appreciating the physical consequences of an act" was restricted to
appreciating only those physical consequences which are an essential element of the definition of the offence.
The S.C.C. held that a delusion which renders the accused incapable of appreciating the penal consequences of
his/her conduct is not included within this branch of the insanity test.
- The Abbey case even casts doubt on whether foresight and understanding of the physical consequences
must be reality-based.
- The question being asked pertains to whether there is evidence that the accused lacked the ability in a
manner that was capable of negating an element of the crime. If can show that he was not able to
appreciate the nature in a way that negated the MR, it supports a claim of part one of section 16.
- Notwithstanding the hypomania, he appreciated that his body was transporting a narcotic to Canada which
was illegal, he knew in a very basic narrow way that nature and consequences of what he was doing. The
fact that he believed he was astro-travelling etc. does not go to negate the MR. Unstated issue is that
people can try to tailor their symptoms to line up with the defence.
o How does this reconcile with Laundry where the court held that he should be acquitted on
NCRMD because he did not know that it was wrong.
o Abbey is regarded as going too far, in terms of narrowing the test by some courts.
R. v. Landry (1988) – Reaffirmed narrow meaning
- The Que. C.A., gave a wide meaning to the word "appreciate" on the facts of that case
- Facts: the accused was a paranoid schizophrenic who believed that the victim was Satan, that he was
God and that in order to save the world, it was necessary to kill him.
- But on appeal, the S.C.C. disagreed and instead applied the narrower definition of "appreciate".
However, the S.C.C. concluded that the accused was insane on the ground that he was incapable of
knowing that his act was "wrong".
- The incapacity to understand and appreciate did go to MR
(3) The Meaning of Wrong – Arm 2
- “Wrong” means “wrong by the standards of the ordinary person” (Oommen)
- This includes being "morally wrong in the circumstances according to the moral standards of society"
(in addition to being merely legally wrong) (Chaulk)
- This branch is satisfied if D was "unable to rationally consider whether his act was right or wrong in the
way a normal person would"
o E.g. Believing your friend is Satan may prevent you from knowing that killing him is wrong.
(Landry)
- In Schwartz (1976), the Supreme Court of Canada decided that the word "wrong" in the second branch
of the insanity test, meant incapable of knowing that his/her act was legally wrong (contrary to law) not
morally wrong.
o In dissent, Dickson J. held that a person should be found insane "if he/she knows it is legally
wrong to kill but kills in the belief that it is in response to a divine order and therefore not
morally wrong."
Chaulk & Morrissette (1990) – Morally and Legally wrong
- Facts: He entered a home and plundered it for valuables. Then stabbed and bludgeoned the occupant and
a week later he turned himself into police and confessed.
-
Defence argued he suffered from paranoid psychosis which made them believe they had the power to rule
the work and that killing was a necessary means to that end.
- Issue: What is the meaning of “wrong” in section 16(2)
- Decision: Overruled Schwartz and held that the word "wrong" should be interpreted to mean "morally
wrong in the circumstances according to the moral standards of society" and not simply "legally wrong".
o "Morally wrong is not to be judged by the personal standards of the offender but by his or her
awareness that society regards the act as wrong". The accused is insane "if he or she is incapable
of understanding that the act is wrong according to the ordinary moral standards of reasonable
members of society."
o In applying section 16(2) it must first be established that the accused who attempts to invoke the
insanity defence is capable of knowing that he ought not to do the act because he knows, first
that the act is contrary to the formal law or secondly that the act breaches the standard of moral
conduct that society expects of its members
- Majority: held that Dickson’s dissent in Schwartz was preferable to the majority’s view in that case
o Hold that test is met if offender incapable of knowing act was wrong either legally or morally
wrong
o The object of s. 16(2) is to protect individuals who do not have the capacity to know whether an
act is wrong; the inquiry must not end simply because the accused knew that the act was a crime.
o Nor will this open the floodgates concern: illegality and immorality typically coincide, it is not
the offender’s morality that matters, but his/her awareness of societies moral standards
- Dissent (McLachlin): Prefers to uphold view in Schwartz that an awareness an act was legally or
morally wrong forecloses potential for reliance on s 16(2)
o As long as offender was capable of realizing act was wrong shouldn’t matter whether it is wrong
in law or morality, either should be sufficient to rebut claim of insanity per s. 16(2)
 The court is in no position to make determinations on questions of morality, nor is it fair
to expect a jury to be able to decide on what is morally right or wrong.
o Law is the backstop to morality: while they are usually congruent “where morality fails, the legal
sanction should not be removed as well”
o The parallelism argument: absence of “moral discernment” is not otherwise an excuse for
criminal conduct; why should it be so here, where the offender “knows or was capable of
knowing, that the act was illegal and hence one which he or she ought not to do.
o The relativism argument: illegality is a precise and clear standard, whereas morality is not… how
do we judge whether someone is capable of knowing what is immoral.
R. v. Oommen (1994) – Must be rational choice/perception
- Facts: he suffered from false fixed beliefs that he was the butt of conspiracies and situations that endangered
him. His delusions, combined with his belief that the victim was one of the conspirators convinced him that
he was obliged to kill her to prevent her from killing him
- Issue (trial): whether this delusion exempted him from criminal responsibility under section 16(1) on the
grounds that he lacked the capacity at the relevant time to know the difference between right and wrong.
o Judge concluded that in the view of the accused’s general capacity to know right from wrong, he
was not relieved from responsibility.
- Issue: what is meant by the phrase “knowing that the act was wrong in section 16(1)”
- Decision: S.C.C. held, in the case of an accused who had a paranoid delusion that the victim was coming
into his house to kill him, that "the crux of the inquiry is whether the accused lacks the capacity to
rationally decide whether the act is right or wrong and hence to make a rational choice about whether to
do it or not."
- "The real question is whether a mental disorder deprived him of the capacity for rational perception and
hence rational choice about the rightness or wrongness of the act." In this case, the accused was "unable
to rationally consider whether his act was right or wrong in the way a normal person would" and in this
case "the accused lacked the capacity to know his act was wrong by the standards of the ordinary
person."
- While we may differ whether the court got it right in Chaulk, here they have done it right.
-
-
There was evidence that this individual should have been deemed to have satisfied the second arm of the
test.
o (1) He had a self defence argument on the basis of the facts, (2) he didn’t have the ability to
make decisions the way that a normal person would. He understood that killing was wrong but at
the time he thought he was doing the right thing. So was sent back to trial to decide on the issues
of wrong morally and legally
In consequences of adopting a very narrow approach, it impelled the SCC to revisit Schwartz and
overturn itself to provide the discretion that it needs to function.
Per McLachlin CJ (for the Court)
(1) the accused considered that he was in imminent danger of being killed himself; thus he believed he
was justified in killing victim
(2) his mental state was so disordered that he could not rationally consider whether his act was right or
wrong as would a normal person
(3) the Trial Judge found that the accused had a general capacity to know killing was wrong; but that at
the time of the killing this capacity was impaired due to mental disorder
(4) this finding should have led the TJ to apply s. 16 of the Code
(4) Application of the two arms of the Test
R v Landry [1991] 1 SCR 99
- Was a case which raised both arms of the test. In this case, the accused killed a former friend who he thought
was Satan; the accused believed this was his duty as God, and was necessary to save the world. At trial the
accused was convicted by a jury of 1st degree murder.
- The Que CA substituted an NCRMD verdict. Its decision focuses on the first arm (appreciate nature and
consequences) of the test
o Beauregard JA distinguishes this case from Abbey situation, as here “the accused’s mental state directly
affects the accused’s mens rea”… he was incapable of appreciating the nature and consequences of his
act…as he thought he was God and that Fortin was Satan”:
 Section 7 had application to fortify this conclusion
- The SCC dismisses the appeal, though it disagrees with the CA’s reasoning. NB: Landry was argued in the
SCC, a year after the SCC handed down Chaulk; as such, when Landry was decided in the Que CA, the SCC
decision in Chaulk was not yet rendered.
o Had the CA been able to apply Chaulk, they would have decided this case on the footing that Landry
was incapable of knowing his act was morally wrong
o The first arm of the test under s. 16 is inapplicable here: it is restricted to the question of whether the
accused was capable of appreciating the physical consequences of his act…:
(5) Criticism of the Insanity Test
- Section 16 is based solely on cognitive impairment (ability to reason, understand) due to disease of the mind.
- Section 16 does not include volitional impairment (ability to control behaviour) due to disease of the mind:
irresistible impulse due to mental disorder is not included within s. 16: Borg (S.C.C.. 1969)
- The moral foundation for imposing criminal responsibility and punishment is based upon our view of
human beings as rational (i.e. the capacity to reason) and autonomous (i.e. the capacity to choose).
- The existence of these dual capacities — the ability to reason right from wrong and the ability to choose to do
either right or wrong ~ provides the moral justification for imposing criminal responsibility and punishment on
persons who chose to do wrong.
In this sense, the current insanity test is inadequate (immoral) since it allows persons who lack the capacity to control
their behaviour due to mental illness to be convicted and punished.
Procedural Requirements of Section 16
(1) Unfit to Stand Trial (UST)
- It is a fundamental principle of Anglo-Canadian criminal law that the accused is entitled to be present at his/her
trial. This not only includes physical presence, but also mental presence.
-
If an accused is not mentally "fit" to stand trial due to mental disorder, the criminal proceedings will be
postponed until the accused is fit (or until some other disposition of the case is made).
- Unfit to stand trial is not a defence, it is not a determination of innocence or guilt. It is a procedural inquiry
concerned with the accused's state of mind at the time of the criminal proceeding, not the accused's state of
mind at the time he/she allegedly committed the crime.
- Section 2 of the Criminal Code defines "unfit to stand trial" as
o unable on account of mental disorder to conduct a defence or to instruct counsel to do so, and, in
particular, unable on account of mental disorder to
o (a) understand the nature of the proceedings,
o (b) understand the possible consequences of the proceedings, or
o (c) communicate with counsel.
- The test for "fitness" - the ability to understand the proceedings, communicate with counsel and conduct a
defence — is very narrowly construed.
R v Whittle – Test is limited cognitive capacity
- The S.C.C. confirmed that the test for fitness to stand trial is one of "limited cognitive capacity to understand
the proceedings and communicate with counsel"
- It is not necessary that the accused "be capable of making rational decisions beneficial to the accused"
- it is not necessary that the accused "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 his/her interests"
- The limited cognitive capacity test strikes an effective balance between the objectives of the fitness rules
and the constitutional right of the accused to choose his own defence and to have a trial within a
reasonable time.
The rules concerning the determination of fit/unfit to stand trial can be briefly summarized as follows:
- (a) The accused is presumed fit until the contrary is established on a balance of probabilities by the party
raising the issue of unfitness: s. 672.22; 672.23(2):
- (b) Where there are "reasonable grounds" to believe the accused is unfit at any stage of the criminal
proceedings prior to verdict, the judge shall order that the issue of fitness be tried: s. 672.23;
- (c) Where the accused is unrepresented, the court shall appoint counsel to represent the accused: s. 672.24;
- (d) The judge may postpone a trial of the issue of fitness until the end of the Crown's case, at the preliminary
inquiry or trial, in order to be sure that the Crown has a prima facie case against the accused: s. 672.25; | if not,
the accused is discharged or acquitted and no fitness hearing is held: s. 672.30]
- (e) The fitness issue is tried by a judge at any stage of the proceedings before trial: s. 672.26;
- (f) Before trying the fitness issue, a judge may order a psychiatric assessment of the accused in order to assist
in the assessment of the accused's fitness: s. 672.11 to s. 672.19);
- (g) If the accused is found fit, the criminal proceedings will proceed (although fitness can be raised again if
there is a material change in the accused's state of mind during the proceedings): s. 672.28
- (h) If the accused is found unfit, the court may order that the accused
o (i) be detained in custody in a hospital: s. 672.54(c)
o (ii) be discharged into the community subject to conditions: s. 672.54(b)
o (iii) be subject to a compulsory or mandatory treatment order of 60 days in the hospital or community
where there are reasonable medical grounds to believe a treatment order will render the accused fit: s.
672.58 to s. 672.62;
- The disposition orders under (i) and (ii) above must be automatically reviewed every 12 months while they
remain in force: s. 672.81.
- if the accused is found unfit and still untried after two years, the court must hold an inquiry (every two years)
to determine if there is sufficient evidence at that time to put the accused on trial. If there is not, the judge shall
acquit the accused: s. 672.33(1) and (6).
(2) Who Can Raise the Mental Disorder Defence?
- Assuming the accused is fit and the trial proceeds, who can raise the insanity/mental disorder at trial?
R v Swain – Test for who can raise insanity
-
The common law rule which allowed the Crown to raise evidence of insanity during the trial against the
accused's wishes was a violation of s. 7 of the Charter and not saved by S. 1
- The decision whether or not to raise the issue of insanity is part and parcel of an accused's right to control
his or her own defence, a fundamental precept of our adversarial system and founded on respect for the
autonomy and dignity of human beings.
- But where in the circumstances the accused’s own evidence tends to put his/her own mental capacity for
criminal intent into question, the Crown will be entitled to put forward its own evidence of insanity and
the TJ will be entitled to charge the jury under section 16
- Swain replaced the common law rule with a new set of rules (including bifurcated trials):
o (a) The insanity defence may be raised during the trial by the accused; or
o (b) During the trial by the prosecutor if in the trial judge's opinion the accused has somehow put his
or her mental capacity for criminal intent in issue; or
o (c) By either the accused or the Crown after the trier of fact has concluded that the accused was guilty
of the offence, but before a verdict of guilty is formally entered [the so-called bifurcated trial]
(3) Presumption of Sanity/Burden of Proof
- Since at least the time of M'Naghten , the law has imposed a presumption of sanity
- The burden of proving insanity is on the person raising the defence on a balance of probabilities. This is now
codified in s. 16(2) and (3).
Chaulk (S.C.C, 1990) – reverse onus is constitutional
- Section 16(4) requires an accused to disprove sanity on a balance of probabilities and therefore violates the
presumption of innocence because it permits a conviction in spite of reasonable doubt in the mind of the trier
of fact as to guilt.
- But a majority of the Court held that the presumption of sanity and the reverse onus provisions in s. 16
violated the presumption of innocence in s. 11(d) of the Charier, but this violation was justified as a
reasonable limit on the presumption of innocence under s. 1 of the Charter. Since the object is to avoid putting
an impossible burden on the Crown, it is upheld. Only Wilson J. dissented.
(4) Special Verdict
- Traditional verdict: not guilty by reason of insanity; adopted from England
- Modern-day verdict: "not criminally responsible on account of mental disorder" NCRMD
- Canada continued to have the special verdict "not guilty on account of insanity" until the 1992 Criminal Code
amendments where the verdict was changed in s. 672.34 to: "committed the act or made the omission but is
not criminally responsible on account of mental disorder."
(5) Disposition/Consequences of Mental Disorder Defence (NCRMD) or Unfit to Stand Trial (UST)
- Prior to the Criminal Code amendments in 1992, an accused who was found either unfit to stand trial or
not guilty by reason of insanity was automatically confined indefinitely at the pleasure of the
Lieutenant-Governor
o There were no rules of due process in regard to the accused's detention or future release although the Cabinet sought advice from an advisory Patient's Review Board.
- In Swain, the Supreme Court held that the automatic indefinite confinement provisions under then s.
542(2) of the Criminal Code violated sections 7 and 9 of the Charter and were not saved by s. 1
- In response to Swain, Parliament introduced Criminal Code amendments in 1992 which set out a new
regime to deal with the disposition of persons found unfit or not criminally responsible on account of
mental disorder (NCRMD).
- Under the new provisions (ss. 672.45 and 672.54), the Court will hold a disposition hearing to make a
decision, taking into consideration, amongst other things, the need to protect the public from dangerous
persons, that the "NCRMD" or "unfit" person shall be
o (i) released unconditionally,
o (ii) released upon conditions of supervision, or
o (iii) detained in custody in a hospital.
- For persons put on conditional release or detained, subsequent decisions about the continuation of those
dispositions are made by an independent Review Board (s. 672.47) which is bound to follow rules of
due process.
-
The concept is not to penalize people for acts that occurred in the past, but rather to protect the public
into the future
Winko v British Columbia – New Regime Constitutional
- The accused argued that the new provisions which came into effect in 1992 still violated his s. 7 and s.
15 Charter rights.
- The S.C.C. rejected those claims. It held:
- (a) The new regime does not result in automatic, indefinite detention;
- (b) The new regime balances fair treatment to the NCRMD person with the need for public safety from
mentally ill persons who have committed serious crimes:
- (c) Once a person is found NCRMD, the Court (or Review Board) will conduct a hearing and the Court
(or Board) will, after considering the needs of the public and the accused, impose the least onerous and
restrictive order from the following three [s. 672.54]:
o (1) An absolute discharge if the accused is not a significant threat to public safety, or
o (2) A conditional discharge, or
o (3) An order for detention in a hospital.
- (d) Review of the orders in (2) and (3) above must be held at least every 12 months, while the orders are in
effect:
- (e) Although the Court may order that a person found to be NCRMD shall be detained in a hospital or
conditionally discharged, the Court may not impose a compulsory treatment order on that person as the Court
can do for an unfit accused
- (f) Court and Review Board decisions are subject to appeal.
- NCRMD “defence” is being using much more frequently than it used to be – idea is that it’s better than being
warehoused in big penitentiaries
- It’s even seen in summary conviction cases – concept is that people might just want help
- Trying to get medical treatment is so difficult that people would rather throw themselves on the mercy of the court to
get it that way
9. Defence of Automatism
- Origin: Automatism is a common law defence, S. 8(3) of the Criminal Code states that common law
defences apply to Criminal Code offences.
- R. v. Stone is now the leading judgment on the defence of automatism.
- Result: If the accused proves non-insane automatism on a balance of probabilities, the result is a verdict
of "not guilty" -- a complete and unqualified acquittal
- External Cause Theory: alive to a secondary supposition which is that it is a transitory and not
recurring condition, not in the baring. Assumption that this is a onetime thing, rarely if ever re-occur,
caused by external factor and so person will not be a danger. Non-insane automatism
- Internal Cause Theory: with the same triggering event, this problem will keep happening, rendering
this person unsafe. Insane Automatism’s threshold test is whether there is a disease of the mind, whether
the originating cause makes the person incapable of knowing the act is wrong and it resides inside their
brain.
Definition
- Rabey: "unconscious, involuntary behavior…though capable of action, the accused is not conscious of
what he or she is doing".
- Stone: held that the reference to "unconscious" behaviour in the definition of automatism means
"impaired" consciousness rather than "total" unconsciousness and thus automatism can be defined as "a
state of impaired consciousness in which an individual, though capable of action, has no voluntary
control over that action".
o Stone analysis "is meant to apply to all claims of automatism and not simply to cases of
'psychological blow' automatism."
o Whether the analysis in Stone, particularly the imposition of new and higher legal and
evidentiary burdens of proof, applies to all defence claims of involuntariness, or only to the subset of involuntariness claims arising out of automatism (i.e. impaired consciousness) is perhaps
in some doubt.
o Examples of involuntary conduct which do not arise out of automatism/impaired consciousness
include spasms or twitches, reflex actions, accidental movements (e.g., trip and fall), physical
compulsion of another (e.g., Larsonneur), or physical impossibility to perform a legal duty. The
best view is that the restrictive analysis in Stone should not be applied to these non-automatism
examples of involuntary conduct.
- Voluntary conduct is an essential requirement for criminal liability, Dickson in Rabey
- Thus automatism (i.e. involuntary behaviour) is a negation of an essential element of actus reus.
- In Stone, the S.C.C. stated that "voluntariness, rather than consciousness, is the key legal element of
automatistic behaviour since a defence of automatism amounts to a denial of the voluntariness
component of the actus reus."
Procedural Issues - Onus
-
Parks and Rabey were clear authority for the proposition that where there is some evidence of
automatism (unconsciously or involuntarily actions), the Crown has the burden of proving beyond a
reasonable doubt that the accused's act was voluntary (i.e. that there was no automatism)
- Onus: In Stone, the S.C.C. reversed that holding. The accused is presumed to act voluntarily and the
accused has the burden of proof to rebut the presumption of voluntariness on a balance of probabilities.
The S.C.C. went on to add:
o (i) the accused must make an assertion of involuntariness and must call expert psychiatric or
psychological evidence confirming his/her claim in all cases of automatism, along with any other
supporting evidence
o (ii) psychiatric or psychological evidence that the accused acted in a state of automatism will
generally not meet the necessary burden of proof if that expert opinion (as in the Stone case) is
based only on an assumption of the truthfulness and accuracy of the accused's account of the
event, without other supporting evidence of automatism;
 The expert evidence has to be more than just confirmatory.
o (iii) if the accused has laid a proper foundation for a defence of automatism, the trial judge must
then decide as a matter of law whether that evidence supports a defence of mental disorder
(insane) automatism or non-mental disorder automatism, which in turn depends upon whether
the involuntariness was caused by a mental disorder (disease of the mind);
 Need to examine the policy considerations, whether the involuntariness has an internal or
external cause.
Role of Trial Judge
- Thus the majority in Stone noted that in cases of automatism the trial judge has two discrete tasks:
o (1) Assess whether a proper foundation for a defence of automatism has been established
 Is there evidence which could convince a jury on a balance of probabilities that the
accused was in a state of automatism at the time of the act
o (2) If a proper evidentiary foundation has been established, the trial judge must next determine
whether the condition alleged by the accused is mental disorder or non-mental disorder
automatism.
 Whether the condition originates from a disease of the mind or not. It could be both. In
Stone they made three arguments: non-insane automatism, insane automatism and then
provocation. The judge in applying air of reality only remitted insane automatism to jury.
Inquiry into the Origins of the Conduct
- If there is evidence that could establish on a balance of probabilities that the accused's conduct may have
been "unconscious/involuntary" conduct, it is necessary to determine what might have caused the
conduct to be unconscious.
- Key question is where did this conduct come from? Is it more plausible to think of it as a disease of the
mind, or having some external cause?
- The way that the courts analyze this is:
- (1) If the unconscious conduct was caused by "disease of the mind" (as defined in Rabey, Parks and
Stone, discussed below), then the accused must rely on the mental disorder/insanity defence [s. 16].
- (2) If caused by intoxication, the accused must rely on the intoxication defence (see Bernard & Daviault
as modified by s. 33.1 of the Code)
- (3) If caused by something other than disease of the mind or intoxication, the accused may rely on noninsane automatism as a defence (Rabey).
Examples of Non-Insane Automatism
- (a) Concussion from a physical blow to the head - Bleta
- (b) Sleepwalking – Parks; and see also R v Jaing re: successful “sleepdriving” defence to dangerous
driving charge
o R v Luedecke verdict of “NCRMD automatism” in parasomnia
o All the post-Stone cases involving sleepwalking have been characterized as NCRMD
-
(c) Stroke - Hill v. Baxter
(d) Epileptic fit "may" be automatism: Hill v. Baxter but psychomotor epilepsy = insanity
(e) Hypoglycaemia (diabetic) Quick & Paddison
(f) Extraordinary psychological blow - Rabey and Stone
Consideration of the Key Cases: Rabey, Parks & Stone
Rabey v the Queen (SCC, 1980) – Distinguished automatism and insanity
- Issue: At the relevant time the appellant was in a state where though capable of action. He was not
conscious of what he was doing and not suffering from a disease of the mind and therefore not insane.
Whether unconscious conduct (i.e. conduct committed while in a "dissociative state") caused by a
psychological blow (i.e. being informed that the girl whom the accused liked/loved thought he was a
"nothing" as a possible boyfriend) ought to be classified as automatism or as insanity.
- Summary: acquitted at trial on basis of non-insane automatism; SCC new trial ordered with Dickson
dissent
- Decision: Held that if the "unconscious" behaviour is caused by a "disease of the mind", then the only
defence is insanity (not automatism).
- Disease of the mind: As "a malfunctioning of the mind that is primarily internal to the accused having
its source in his/her organic, psychological or emotional make-up; i.e., some subjective condition or
weakness internal to the accused.
o It does not include transient malfunctioning of the mind caused by some external factor, such as
a concussion caused by a physical blow to the head.
- Majority (Per Ritchie J):
- An “internal cause”: held that unconscious (dissociative) conduct caused by a psychological blow
arising out of the ordinary stresses and disappointments of life, will normally be attributable to an
internal, psychological weakness in the accused's make-up
o Thus, it will be classified as a disease of the mind and therefore the proper defence is mental
disorder (insanity), but not automatism.
- An external cause: if the psychological blow arises from an extraordinary event that may cause an
"average, normal person" to go into shock/dissociation, then the psychological blow will be classified as
an "external cause" and NOT a disease of the mind.
o In such a case the accused may rely on automatism, not insanity, as a defence. One example of
an extraordinary psychological blow may be a situation where the accused goes into a
dissociative state (i.e. a "state of shock") after seeing a loved one murdered or killed by accident.
- Here the Majority concluded the accused reacted in “unnatural” way unlike that of a “normal person”
suggesting the cause was a disease of the mind
- Dissent: (Dickson J.) Was critical of the "objective" or "average normal person" test for automatism. He
would apply a subjective standard for psychological blows
o I cannot accept the notion that an extraordinary external event, an intense emotional shock, can
cause a state of dissociation or automatism if and only if all normal persons subjected to that sort
of shock would react in that way.
o Should be like all other aspects of criminal law and in relation to the accused’s actual state of
mind
- Secondly, Dickson J. suggested that when the accused's unconscious conduct was "transient rather than
persistent, unlikely to recur and not in need of treatment", then automatism, not insanity, is the proper
defence, because the accused is "not a danger to himself or society in general" and thus the special
verdict and commitment to an insane asylum which follow upon a successful defence of insanity are not
necessary.
o His test is mostly a policy based approach in that if this person will be a danger to the public then
lock them up.
R v Parks (SCC, 1992) – If not mental disease, automatism
-
-
-
Facts: He stabbed his mother and father in law while he was sleepwalking and then turned himself into
the police. He claimed automatism because sleepwalking is not a disease of the mind.
Summary: Acquitted on non-insane automatism; upheld on appeal
Majority: Agreed that sleep walking is not itself a mental disease. The evidence in this case did not
indicate that Parks' sleep walking arose out of a mental illness (but rather from stress and other external
causes). Thus the proper defence for Parks was automatism, not insanity.
It is for the Crown to prove that sleepwalking was a disease of the mind and neither the evidence nor the
policy considerations in this case overcome the Crown’s burden.
o Lamer did note that in a different case, on different evidence, it would be possible to conclude
that the sleep walking arose out of a disease of the mind
o Lamer C.J.'s suggested that the outright acquittal for automatism should be modified to allow the
trial judge to exercise some control over the acquitted person by means of a common law order
to keep the peace (which could be subject to various conditions).
o He wanted more assurance that Parks would deal with this problem and the notion of him
walking away was worrisome.
But the majority of the S.C.C. rejected Lamer C.J.'s suggestion. In the courts view, no error at trial about
the legal principles. Court seems to be saying that legislature has put in place these mechanisms, they
did it for NCRMD so they should do the same for automatism.
R v Stone (SCC, 1999) – Current Test of Automatism
- Facts: The accused stabbed his wife 47 times after she made many negative comments towards him. He
claimed the wife’s insults causes him to go into a state of automatism.
- Summary: Raised defences of (1) non-insane automatism and (2) insane automatism. TJ refused to put
non-insane automatism to jury; upheld on appeal
- Issue: How can an accused demonstrate that mere words caused him to enter an automatistic state such
that his actions were involuntary can thus do not attract criminal law sanctions?
- Legal Burden: Must be on the defence to prove involuntariness on balance of probabilities. This burden
is justified under section 1 because it can be easily feigned and all the knowledge of the occurrence rests
with the accused.
- Majority: severely restricts the defence of automatism. The majority's views may be summarized in the
following five propositions, the first two of which are not new:
o (1) If the impaired consciousness resulting in involuntary conduct arises from a disease of the
mind, then the proper defence is mental disorder, not automatism;
o (2) What mental conditions are included in the term “disease of the mind” is a question of mixed
law and fact for the trial judge; whether the accused actually suffered from such conditions, and
the effect of those conditions on the accused's mind, are questions of fact for the jury;
 D of M = judge, Suffered = Jury
o (3) A new, more holistic approach should be taken by the trial judge in deciding what conditions
constitute a disease of the mind; This holistic approach must be informed by the (a) internal
cause factor, (b) the continuing danger factor and (c) policy concerns raised in Rabey and Parks
about the automatism defence. These policy concerns include
 (1) Fear of fabrication,
 (2) Public disillusionment by an outright acquittal, for example, of a sleepwalker who has
killed another person, and
 (3) A verdict of acquittal on the basis of automatism does not allow for subsequent
monitoring and control of the accused as a NCRMD verdict does.
o (4) It will only be in rare cases that automatism is not caused by mental disorder and thus trial
judges should, as a rule, start from the proposition that the condition the accused claims to
have suffered from is a disease of the mind, and then decide whether the evidence takes the
condition out of the disease of the mind category; and
 It will be used only where there is no concern about protection of public, repetition,
fabrication
-
-
-
o (5) Psychological blow automatism will require evidence of "an extremely shocking trigger" as
opposed to simply stressful situations.
In addition, the majority in Stone listed a number of other factors to be considered in assessing the
claim of automatism:
o the severity of the triggering stimulus
o corroborating evidence of bystanders
o corroborating medical history of automatistic-like dissociative states
o the presence or absence of motive
o the relationship between the alleged trigger of the automatism and the victim of the
automatistic violence
The above factors are not a closed category and no single factor is meant to be determinative. Also
affirm that judges should be very reluctant in recognizing the existence of automatism as a defence.
Therefore this seems to be saying that the court must minimize the risk that they are wrong close to zero.
This can be seen as being problematic because they are using this concept of disease of the mind in a
way that stretches the meaning.
Stone also reemphasized the important point that amnesia (e.g. "I don't remember doing it") does not
necessarily mean that the accused was unconscious at the time of the act. Amnesia may arise after the
event as a post-traumatic response to that event. In other words, the accused may not remember the
event either (1) because he/she was unconscious at the time, or (2) because he/she has suffered amnesia
after the event.
Distinction between evidentiary and legal burden:
- Legal Burden: legal burden in cases involving claims of automatism must be on the defence to prove
involuntariness on a balance of probabilities to the trier of fact
- Evidentiary Burden: To meet this burden, the defence must satisfy the trial judge that there is evidence
upon which a properly instructed jury could find that the accused acted involuntarily on a balance of
probabilities.
o The court makes an incorrect statement of law, but this is corrected in Fontaine
- R. v. Fontaine (S.C.C., 2004): unanimous Supreme Court held that there is not a new or higher
evidentiary burden in respect to the defence of automatism and the trial judge is not to assess or weigh
the evidence on a balance of probabilities standard in determining whether the accused has met the
evidentiary burden.
o Fontaine does not alter most other aspects of Stone, including the classification of automatism,
the "persuasive" burden [also called the "legal" burden] for automatism (i.e. the accused must
ultimately prove automatism on a balance of probabilities) and the factors for considering
whether automatism has been proven.
o Makes clear that although an accused must ultimately convince the jury on a balance of
probabilities that she/he is in an automatisitc state, there is no special evidentiary burden on the
accused in cases of automatism
R v Luedecke
- Stone has change it so that (1) the TJ must begin from the premise that the automatism is caused by a
disease of the mind and look to the evidence to determine if it convinces them the condition is not a
disease of the mind. (2) Although it addresses a multi-factored approach to policy component, refocuses
on continuing danger aspect
- A combined reading of Stone and Winko yields a proper response to automatism
o At the pre-verdict stage, social concerns dominate
o At the post-verdict stage, the emphasis shifts to an individualized assessment of the actual
dangerousness of the person NCRMD
Criticisms of Stone
- The decision makes it almost impossible to rely on automatism
-
By creating a reverse onus, the court seemed to be saying that even to put the defence to the trier of fact
to decide, the judge would have to first conclude not only that there was some evidence, but that there
was sufficient evidence to convince the jury on a balance of probabilities that the accused was an
automaton
- Psychological blow would only be classified as non-mental disorder automatism if the blow or
triggering event is an “extremely shocking” trigger which might case a normal person to enter a state of
automatism
o A normal person is also an contextual objective test, must be similarly situated individual
- In R v Graveline had a successful application of psychological blow automatism
o She was a battered wife who shot her husband. Court left open the possibility that an incident of
abuse, which is not itself an extremely shocking trigger can nonetheless form the basis for a
definition of non-mental disorder automatism when then cumulative impact of that incident is
considered in the context of battered women syndrome.
- In R v Jiang she was suffering from undiagnosed chronic insomnia and was not aware of her condition.
A sleeping driver is not driving of his or her own volition an acts committed while in that state of mind
cannot form the AR of dangerous driving. Is in a state of non-insane automatism.
9. Provocation as a Defence
Requirements of Provocation
- Provocation is dealt with in s. 232 of the Criminal Code. It is a “qualified” or “limited” defence in two
different respects:
o (i) It is only a defence to a charge of murder, and not to any other offence (not even attempted
murder: Campbell (1977);
o (ii) It is a partial defence in the sense that if it is proven, the accused will not be totally acquitted;
the charge of murder will be reduced to manslaughter instead (s. 232(1)).
- The requirements (or elements) for the defence of provocation are set out in s. 232(2):
- (a) The accused must be provoked by a wrongful act or insult;
- (b) The wrongful act or insult must be sufficient to deprive an ordinary person of the power of selfcontrol [objective test]; and
- (c) The accused must him/herself be acting in response to the wrongful act or insult on the sudden and
before there is time for his/her passion to cool (i.e. regain his/her self-control) [subjective test].
- Like other defences, there must be "an air of reality" to the accused's claim that the killing occurred
while he/she was provoked.
o Air of reality means there must be some evidence of all three elements of provocation for the
trial judge to put it to the jury
Rationale
- Why is Provocation only relevant to murder?
o Because murder is the most serious type of offence, it may in a limited way provide a reason to
treat the offender in terms of the way to diminish their responsibility instead of removing it.
o There may be an explanation of historical or cultural values that have fallen away. So the
question may be should it still exist if it was a legacy of a different era
o There may also be that there are situations in which provocation has been incorporated into selfdefence.
o Important to bear in mind that if you succeed in self-defence that is done, no mitigation of the
defence, whereas in provocation the best outcome would be for a reduced charge
- Assumption that a person who momentarily loses his/her power of self-control due to a wrongful act or
insult and kills another [in anger] is less heinous or blameworthy, and therefore deserving of less
punishment, than a person who without any provocation and while in full possession of his/her powers
of self-control deliberately kills another person.
- However elements #1 and #2 of the provocation defence place some important limits on the defence. In
particular, the wrongful act or insult must be of such a nature that it would or could deprive an ordinary
person in the same circumstances as the accused of the temporary loss of the power of self-control.
-
The test is not whether an ordinary person would have done what the accused did, but whether an
ordinary person would have lost the power of self-control in such circumstances:
o the objective element should be taken as an attempt to weigh in the balance those very human
frailties which sometimes lead people to act irrationally and impulsively against the need to
protect society by discouraging acts of homicidal violence" [Thibert]
- Provocation is a partial excuse; it is never a justification.
- A justification (e.g. self-defence) renders the actor's conduct lawful [even though that conduct may be
killing or injuring another person]. An excuse never renders the conduct (e.g. killing) lawful, although it
may provide some reason in law and policy not to punish, or not to punish as severely, the wrongful
conduct.
- The defences of mistake of fact, intoxication, automatism and mental disorder are all excuses, not
justifications. The harmful conduct committed in those states of mind is never justified. However, those
circumstances and states of mind provide some reason in law and policy not to blame and punish (or
fully blame and punish) the actor for his/her conduct which is clearly wrongful and harmful.
Context
- The defence of provocation provides the opportunity to once again address concerns about violent
crime, and in particular murder (since provocation is a partial defence only to murder). It is also an
opportunity to look at the role that gender, race and sexual orientation play in murder.
Offenders
Victims
Male: 87% Male: 65%
Female: 13% Female: 35%
- Homicide is a male-dominated offence (both as offenders and victims).
- Females are disproportionately victims (35% of the time) compared to offenders (13% of the time).
- 98% of female homicide victims were killed by men, the vast majority of whom they knew intimately.
- Critics of the provocation defence argue that the motivation for males killing intimate females is usually
"proprietary control" and "sexual ownership". Women are killed because they are women. This
phenomenon can be heightened in some ethnic minority families where fathers can be especially
controlling of wives and daughters
- Critics likewise argue that when females kill it is often motivated by present and prior abuse of them by
males [self-defence and provocation are often pleaded].
- Likewise, when males kill gay males it is often motivated by hatred of gay men or by homophobic overreaction to a perceived sexual advance by the gay victim.
Criticisms of the Defence
- Critics argue that it “accepts, bolsters or even promotes" male patterns of violence against women and
gays, thereby contributing to the continuing discrimination and inequality which those groups face. In
particular, arguments against a defence of provocation include the following:
- Provocation is an acceptance of male values and emotional patterns concerning use of violence to lash
out at (discipline) females;
- Provocation recognizes (male) anger as a partial excuse; this privileging of the emotion of anger is
inconsistent with other situations which do not reduce murder to manslaughter, such as compassion or
love (in mercy killing), or perhaps self-preservation (necessity/duress) [or excessive use of force in selfdefence];
- The provocation defence involves "victim blaming" shifting the focus from the accused's wrongful
conduct to the conduct of the victim;
- The requirement of "sudden" provocation arose out of the male model of provocation (striking out on
the sudden in response to an unexpected insult or wrongful act); this requirement is an obstacle to
women who raise provocation as a defence for killing their male, long-term battering partners.
- In 1999, the Department of Justice released a Consultation Paper which contains a discussion of the pros
and cons of various options for reform, including abolition of the defence. The Report also noted that
the provocation defence frequently fails, but there have been a number of well-publicized cases where
provocation succeeded. These cases have generated much criticism of the defence. In February, 2001,
Justice Minister McLellan announced the government would not proceed with any reforms to the
provocation defence at this time:
o There was a lack of agreement on any particular reform option by those consulted;
o Most groups consulted felt that the defence of provocation was legitimate in limited
circumstances.
o The support for the abolition of the defence was limited, this could be because of the way that
the court has limited this defence.
Elements of Provocation Defence
(1) Wrongful Act or Insult
- The defence of provocation only applies where there is a wrongful act or insult.
- The word insult was broadly defined in Thibert as "injuriously contemptuous speech or behaviour,
scornful utterance, or action intended to wound self-respect; an affront; indignity".
- Under s 232(3) of the Criminal Code, an act shall not be deemed to constitute provocation if the act was
one that:
o (a) The victim had a legal right to do, such as in self-defence: R. v. Haight. or
o (b) The accused incited the victim to do in order to give the accused an excuse to cause bodily
harm or death.
- "Legal right to do" means a right which is sanctioned by law. In Thibert, Cory J., for the majority,
explained that just because "insults" are not specifically prohibited, that does not mean that a person has
"a legal right" to insult others (for the purposes of s. 232(3)). On the facts of the case, the majority held
that the actions of the deceased in the parking lot (although clearly not prohibited by law) could
nonetheless be found by a jury to constitute insulting behaviour.
(2) "Deprive an Ordinary Person ... "
- The test is not whether an ordinary person under the provocative circumstances would have done exactly
what the accused did (e.g. stab the victim), but rather whether an ordinary person may have lost the
power of self-control under such provocative circumstances: R. v. Carpenter (1993)
- In deciding whether the provocation would be sufficient to deprive an ordinary person of the power of
self-control, the courts must apply an objective, reasonable person test.
- The ordinary or reasonable person is D’s age and sex, has a normal temperament and level of selfcontrol, and is not exceptionally excitable or pugnacious, and is not drunk; (Hill)
- Other general characteristics relevant to the gravity of the wrongful act or insult may be considered (e.g.
if the insult was racial, the reasonable person should be of ∆’s race) (Hill)
- The level of self-control expected varies with age, but not with any other characteristics. (Hill)
- The background relationship between D and the victim may also be considered. (Hill)
- Cultural Background: The authority here is divergent:
- Cultural background may be a relevant consideration for provocation, even if that culture has views
antithetical to contemporary Canadian society. (Nahar, BCCA 2004)
- The "ordinary person" may not be given beliefs that are antithetical to fundamental Canadian values
(including views of female inferiority). (Humaid, OCA 2006 [obiter])
- The cultural background of ∆ is not a relevant consideration generally. (Ly, BCCA 1987)
Bedder (H. of L., 1954) – Should be objective approach
- Facts: The accused was an 18 year old male who killed a female prostitute after she jeered at his sexual
impotency; she also allegedly slapped, pushed and kicked him.
- The accused argued that in considering the “ordinary person” test the jury should be told
o (i) to place the ordinary person in the circumstances that the accused was in and
o (ii) to invest the ordinary person with the physical peculiarities of the accused (in this case,
impotence) [i.e. What would be the reaction of the impotent reasonable person in the
circumstances?].
- The House of Lords rejected point (ii) and held that the physical or mental infirmities of the accused are
not relevant to the ordinary person test. The ordinary person is not “unusually excitable or pugnacious”,
-
“is not endowed with abnormal conditions” and “is not a person who is either drunk or sexually
impotent.”
This is a very objective approach, the accused characteristics are not ones that we should invest the
ordinary person with.
Camplin (H. of L., 1978) – Can look at particular characteristics of accused, age
- The House of Lords overruled Bedder and softened the rigid “reasonable person” test.
- Facts: The accused was a 15 year old male who killed K after K allegedly buggered him and then
laughed at him for being upset.
- The accused argued that the “ordinary person” in this context should be a 15 year old male who is
subject to buggery.
- The House of Lords acknowledged that the gravity of an insult or other form of provocation “may well
depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is
addressed — e.g., race, physical infirmities or some shameful incident in one’s past.
- The Court also held that the accused’s young age was a relevant characteristic for the ordinary person
test: “It is a characteristic which may have its effects on temperament as well as physique — the average
15 year old may be expected to have lesser powers of self-control than an adult.”
- Accordingly, the Court held that the jury should be told that the reasonable person is “an ordinary person
of the same sex and age of the accused, but in other respects sharing such of the accused’s
characteristics as they think would affect the gravity of the provocation to him/her.”
- Need to bear in mind the youthfulness of the offender, which could potentially be excitable or violent.
Youth tends to be associated with a lack of self-control. Keep in mind that this is another stereotype that
is being added to this
R. v. Hill (S.C.C., 1986) – The approach to take in assessing ordinary person
- Facts: A 16 year old male killed another after he allegedly made sexual advances towards him. The
Crown’s theory was that they were gay lovers
- The S.C.C. accepted Camplin rather than Bedder as the proper test for the “ordinary person”.
- At trial, the accused’s provocation defence failed and he was convicted of murder.
- Issue: On appeal, the accused complained that the trial judge did not instruct the jury that the “ordinary
person” should be considered to be of the same age and sex as the accused (otherwise the jury may have
assumed the ordinary person was someone more experienced or mature than a 16 year old youth).
- The Supreme Court of Canada held:
- (i) The ordinary or reasonable person has a normal temperament and level of self-control and is not
exceptionally excitable, pugnacious or in a state of drunkenness;
- (ii) In terms of other characteristics of the ordinary person, other general characteristics relevant to the
gravity of the wrongful act or insult may be considered — e.g., racial background if the provocation is a
racial slur. But race is irrelevant if the insult involves a physical disability. Likewise the gender of the
accused may be relevant if the provocation relates to a gender slur, but is irrelevant if the provocation is
a racial insult. Thus particular characteristics that are not peculiar or idiosyncratic can be ascribed to the
ordinary person.
o The collective good sense of the jury will naturally lead them to ascribe to the ordinary person
any general characteristics relevant to the provocation in question
- (iii) Young age is relevant to the degree of self-control expected of an ordinary person, i.e. the law
expects less self-control from a young person than an adult. However, the degree of self-control which
the law expects from an ordinary person does not vary with that person's gender or race. The jury does
not need to be told that the accused is “young” to ensure it properly considers this factor.
- We assume that the jury will take all of these factors into account, they don’t need to be told of this. It
will not always be necessary to talk about the objective reasonable person and that it would be confusing
for the jury to add this
R v. Thibert – Ordinary person is same age, sex, shares similar factors, background relevant
-
-
-
-
-
Facts: his wife left him for another man; he kept trying to persuade her to come back. In the course of
events he shot her lover.
Issue: whether there was any evidence upon which a reasonable jury acting judicially and properly
instructed could find that there had been provocation.
Decision: Cory J. specifically states that "the 'ordinary person' must be of the same age and sex, and
share with the accused such other factors as would give the act or insult in question a special
significance" and that "all the relevant background circumstances should be considered" and that "it is
proper for the jury to consider the background of the relationship between the deceased and the accused,
including earlier insults which culminated in the final provocative actions or words."
o Also states that Daniels and Conway, have correctly widened the approach to the objective
element by taking into account the background relationship between the deceased and the
accused.
 “The objective aspect would at first reading appear to be contradictory for, as legal
writers have noted, the "ordinary" person does not kill. Yet, I think the objective element
should be taken as an attempt to weigh in the balance those very human frailties which
sometimes lead people to act irrationally and impulsively against the need to protect
society by discouraging acts of homicidal violence.”
Doesn’t say that a jury should be told of this, by the judge in the charge. The trial judge must consider
all of this, but telling the jury can be dangerous because they will take into account all of these factors
themselves. Have not added the complexity of the burden to the judge to have to give a complex charge
In this case a new trial was ordered on the ground that the TJ in leaving the defence of provocation with
the jury failed to instruct them that the Crown had the onus of rebutting the defence beyond a reasonable
doubt. A jury could infer that it was the taunting of the appellant by the deceased who was preventing
him from talking to his wife which was the last straw that led him to fire the rifle suddenly before his
passion had cooled.
Dissent (Major J): He holds that “it would be a dangerous precedent to characterize involvement in an
extramarital affair as conduct capable of grounding defence of provocation…at law, no one has either an
emotional or proprietary right or interest in a spouse that would justify the loss of self-control that the
accused exhibited”.
o Also cannot be said that the appellants mind was unprepared for the sight of his wife with the
deceased such that he was taken by surprise and his passions were set a flame.
o His point is very simple, this guy premeditated this murder to such a degree that by allowing him
to use provocation is very problematic. At the end of the day, this decision stands for a
dangerous precedent, in an era where in terms of social values we respect people’s values to
leave and enter relationships. So does this judgment echo of a different era which is more
patriarchal and conservative to relationships and families.
It may come up again in issues where do we want an ordinary person to have values that are not in line
with our Canadian values, not an easy question.
R. v. Ly (1987) – Accused’s ethnic background not relevant
- Facts: The accused was charged with second-degree murder as a result of an incident in which he
strangled his common-law wife because he believed she had been unfaithful to him. The accused, a
recent immigrant to Canada from Vietnam, testified that prior to the incident he had suspected his wife
was no longer being faithful to him. On the night of her death, she returned home in the early hours of
the morning and when questioned by the accused as to her whereabouts the previous evening replied,
"Don't ask me. It's none of your business." It was at this point that the accused strangled her.
- The accused led evidence to show that in his Vietnamese culture a wife's adultery causes the husband to
lose "face" and "honour" and would be a great blow for the average Vietnamese male.
- Decisin: The accused's ethnic background (Vietnamese) was not relevant to the ordinary person test.
The B.C.C.A. held that the issue is whether an ordinary person, not an ordinary Vietnamese person,
would be provoked by such adultery.
- When it comes to culture, a few difficult questions
-
To what extent do we want to invest in this reasonable person the full kind of range of supposed cultural
values associated with their country of origin?
Assuming that there is expert evidence, did this person actually believe in those values, do we approve
of those values.
R v Nahar - Ordinary person must be from culture of accused
- Facts: estranged Sikh husband and wife, he killed her because of her defiance and her actions made him
angry. The charge of 1st degree murder was heard by Judge alone and he rejected the provocation
defence.
- An appeal was brought on the basis that he had failed to take the accused’s background into account in
setting out his reasons for this conclusion. The CA found no error in the TJ’s reasons.
- Decision: In the context of the case, the ordinary person must be from the cultural background to whom
the accused belongs. Factors that give an act or an insult a special significance could be said to include
the implications of an accused person having been raised in a particular culture.
o So ordinary person would be one who shared Nahar’s cultural background so that the
implications of his being Sikh and having been raised in the Sikh tradition were to be taken into
account where measuring the gravity of the assault.
- Decided that no reasonable doubt even when taking into account cultural background.
R. v Humaid – Accused must subscribe to the views
- Facts: He got in an argument with his wife and believed she was being unfaithful when she mentioned
something about a “pill”
- The accused was found guilty of 1st degree murder by a Judge and Jury.
- The appeal was based on the Judge’s instructions of the “ordinary person” arm of the test.
- Decision: The CA held that the defence should not have gone to the jury in any event, as there was no
“air of reality” to the defence. This was because there was no evidence that the accused subscribed to
the views Dr. Ayoub claimed were common to Muslim men about wives and infidelity
o The accused was never asked as to whether he personally ascribed to those values, and in
absence of the evidence of the accused that he believed that, no air of reality for the court to put
forth to the jury.
- In any event, the CA suggested that it might well be against good “criminal law policy” to allow an
individual to base a provocation on beliefs that “are antithetical to fundamental Canadian values,
including gender equality”
- The judge did instruct the jury on provocation believing that there was an air of reality, but the CA says
that if there was a defect on his charge doesn’t matter because there was no air of reality to the defence
so it should have never gone to the jury.
(3) Suddenness
- D must himself be acting in response to the wrongful act or insult “on the sudden” and before there is
time for his passion to cool. [NB: subjective test]
- This is not met if A insults B, B goes away to “brood” on the matter, and later kills A (Salamon v the
Queen, Tripodi)
- Even a few minutes may be enough time to "cool". Frisen defence based on alleged homosexual
advance failed since the accused’s acts were not “on the sudden before there was time to cool.
- The question is whether D formed the intent to kill while in the state of rage resulting from the insult,
not before or after. Premeditation can be relevant here. (Thibert, Cameron)
o In Thibert the fact that the accused had stalked his wife, loaded his gun, and removed his gun
from the trunk of his car
9. Self-Defence
-
-
Self-defence is dealt with primarily in ss. 34-37 of the Criminal Code.
Section 34 seen as the primary self-defence provision.
Section 35 has limited utility today. It used to be the only section that you could use if you provoked
the assault, but now can use 34(2) because it is more robust.
Section 37 is only to be used in fact patterns where ss. 34 or 35 do not apply. This is where you are
defending someone else.
All of these sections are drafted in the language of "justification" not "excuse" for committing what
would otherwise be a crime. You are not guilty if you defended yourself in these circumstances. Either
you defended yourself appropriately or you are guilty.
Each section has its own distinct, limiting conditions or requirements. A primary device in determining
what section applies is to ask the question
o "What type of harm did the accused perceive when he/she responded in self-defence?"
o Was it an apprehension of death/grievous bodily harm [D/GHB] or something less? : SEE
CHART…
Essential Elements of Section 34(1)
- There are four essential elements to s. 34(1):
o (1) An unlawful assault (or a reasonable but mistaken belief that he/she is, or is about to be,
assaulted;
o (2) The unlawful assault must not be provoked by the person claiming self-defence; (provocation
includes blows, words or gestures: s. 36 of the Code);
o (3) The force used by the accused in defending him/herself must not be intended to cause
D/GBH; and
o (4) The force used in self-defence must be no more than necessary to defend oneself.
- Each element must be established by the accused to create an air of reality. The question then for the
jury would be was there a reasonable doubt?
- Section 34(1) can be used in cases where the accused has actually killed or caused grievous bodily
harm to another person while acting in self-defence, provided the accused did not apprehend
D/GBH and did not intend to cause D/GBH while acting in self-defence: see Pawliuk and Baxter
o For example, suppose V threatens to punch A in the face. A hits V with a fist in the face in
self-defence, V falls, hits his head and dies. If A is charged with murder/manslaughter, A will
rely on self-defence under s. 34(1) because:
o (1) A did not apprehend D/GBH from V, and
-
o (2) A did not intend to cause D/GBH to V when A punched V.
However, if the facts were different and A did apprehend D/GBH from V, then s. 34(1) does not
apply and we must consider s. 34(2): Pawliuk.
In Paice the judge said that Section 34(1) is not available to either combatant in a consensual fist fight
because neither is the innocent victim of an unprovoked assault.
Essential Elements of Section 34(2)
- There are at least three (and perhaps four) essential elements to s. 34(2):
o (1) An unlawful assault or a reasonable but mistaken belief that he/she is, or is about to be,
assaulted (Petel);
o (2) The person acting in self-defence must be under a reasonable apprehension of death or
grievous bodily harm from the attacker;
o (3) And the person acting in self-defence must believe, on reasonable grounds, that he/she
cannot otherwise preserve him/herself from death or grievous bodily harm.
o (4) Section 34(2) expressly states it only applies when D/GBH is actually caused so this appears
to be a fourth, unspoken requirement; it is not specifically mentioned as a requirement in Cinous
and Petel but both cases involved a claim of causing death in self-defence
- Section 34(2) is both more and less strict than s. 34(1).
- Section 34(2) requires the accused to be under a reasonable apprehension of D/GBH, whereas s. 34(1)
does not.
o This may require the accused giving evidence which is retracted into an objective standard
- On the other hand, s. 34(2) applies even if the accused has provoked the assault, and allows for the
intentional infliction of D/GBH, both of which are excluded under s. 34(1).
- Section 34(2) also appears to have more of a subjective approach than s. 34(1) in terms of the amount of
force which will be permitted.
o It used to be thought that the word "intentionally" should be read into s. 34(2) so that s. 34(2)
only applied where the accused actually caused death or G.B.H. and intended to cause death or
G.B.H. to the person attacking him/her (Baxter); however, in Pintar (1996), the Ont. C.A. held
that s. 34(2) applies whether or not the accused intends death or G.B.H. Pawliuk agrees with
Pintar on that point
R v Pawliuk (2001) – Distinction between two sections is the kind of harm you are apprehending
- Facts: the victim was running towards him and accused thought he had a gun. Waved a gun infront of
him and claims it discharged by accident, was self-defence.
- The trial judge only instructed the jury to use section 34(2)
- CA: lack of intention alone does not require a TJ to leave both subsections with the jury. What
differentiates the section is whether the accused reasonably apprehended that the attack on him/her was
likely to cause death or harm, then use section 34(2).
o S. 34(2) is designed for self-defence cases where the accused reasonably apprehended that the
attack on him/her was likely to cause D/GBH.
o Section 34(1) is designed for self-defence cases where the accused did not apprehend that the
attack on him/her would likely cause D/GBH.
- Key indicia is WHAT KIND OF HARM ARE YOU APPREHENDING???
o They are not mutually exclusive lies in the accused’s perception of what is happening to him
when he acts against the victim.
- Result from Pintar: if the accused reasonably apprehends that he is under threat of death or grievous
bodily harm, he may defend himself using as much force as he reasonably believes is required to
preserve himself from death or GBH which may or may not include an intention to cause it.
o If the accused did not believe the he is under threat of death or GBH, he may rely on section
34(1) but only if he did not intend to cuase death or GHB
o If in response to an attack the accused intends to cause death or GBH he is limited to section
34(2) and thus he must in turn be under a reasonable apprehension of death or GBH from his
attacker before it can be said that his acts are justified.
R v. Cinous – Each element has subject and objective component
- Facts: The accused thought the victim stole his revolver and was going to kill him. So he shot him in the
back of the head.
- Leading case on Section 34(2) and air of reality
- Decision: Each of the first three elements of s. 34(2) have both a subjective and an objective
component. There must be an air of reality in the evidence as to all three elements before a judge will
put the defence of self-defence to the jury.
o Look at it from the accused point of view and then ask then same question on an objective
reasonable person basis
o The accused perception is subjective but the belief must be reasonably on the basis of the
situation, objective.
- Majority: Held that although there was an air of reality to element 1 and 2 (existence of assault and
reasonable apprehension of death), there was no air of reality to element 3: "believed on reasonable
grounds that he could not otherwise preserve himself from D/GBH."
o The accused testified that he feared a deadly attack and that he believed that he had no other way
to preserve himself than shooting the supposed attacker. While he may have honestly believed
that, there was no evidence that the accused's belief that he had no realistic alternative course of
action was based on reasonable grounds.
o The majority noted that there was no explanation of why the accused did not consider the options
of waiting in the service station, or fleeing, rather than returning to the van and shooting the
supposed attacker, as reasonable alternatives to save himself.
- Binnie J: held that recognizing self-defence as a justification to killing a criminal associate in these
circumstances would be antithetical to promoting public order. As a self-styled criminal, the accused
believed that his only options were to kill or be killed.
o "He wishes the jury to judge the reasonableness of his conduct by the rules of his criminal
subculture, which is the antithesis of public order."
o He held that the only way self-defence could succeed would be to allow "the jury to step into the
skin of the accused and accept as reasonable a sociopathic view of appropriate dispute
resolution."
o Within certain cultural context there may be an air of relation to the defence.
- Arbour J (dissented): holding that there was an air of reality to all three elements of self-defence.
- Difference between Arbour and Binnie is whose community standards. Did he have no way out. In his
view, he didn’t and his evidence was that he never went to the police.
Section 35: Virtually Useless
- Section 35 is clearly designed for cases where the accused (A) was the initial aggressor
- Amongst other requirements, A cannot rely on s. 35 unless A retreated as far as feasible before using the
additional force.
- For a long time it was assumed that s. 34(1) and (2) both applied only to accused who had not provoked
the assault. Initial aggressors (provokers) would have to rely on the more stringent s. 35.
- However, in McIntosh, the majority expressly noted that the words "without having provoked the
assault" expressly appear in s. 34(1), but not in s. 34(2). The majority held that those words should
not be read into s. 34(2).
o Many argue that the majority was wrong. Certainly the legislative subheadings preceding
sections 34 and 35 when those sections were originally enacted in 1892 made it expressly clear
that s. 34 was for self-defence to unprovoked assaults, and s. 35 was for self-defence to provoked
assaults.
- As the law now stands, s. 34(1) applies only to situations where the accused has not provoked the
assault. Section 34(2) applies to self-defence regardless of whether or not the accused provoked the
assault. This interpretation has rendered s. 35 virtually useless.
Section 37: Defence of self and Defence of others
- The essential elements of s. 37 are:
- (a) The accused must reasonably believe that the person is subject to an unlawful assault;
- (b) The force used must be no more than is necessary to prevent the assault or repetition of the assault;
- (c) The wilful infliction of any hurt or mischief must not be excessive, having regard to the nature of the
assault that the force used was intended to prevent.
o Note that the accused could have provoked the attack.
o Note also that the accused could have (though need not have) intended death or grievous bodily
harm.
(i) Defence of Others
- Section 37 is an important provision to the extent that it specifically provides a defence for the use of
force to defend third persons from unlawful assaults by others.
- While s. 37 only refers to the defence of "any one under his protection", these words have been given a
wide meaning to include "anyone who requires protection which the accused may be able to provide": R.
v. Webers (1994), Thus s. 37 applies to the defence of any third party.
(ii) Defence of Self: Gap-filling Role
- In R. v. McIntosh (S.C.C., 1995), the S.C.C. held that the scope of s. 37 as it relates to self-defence (as
opposed to defence of others) is unclear but that it should be used in a "gap-filling" role and therefore it
should be put to the jury only in cases where s. 34 or s. 35 do not apply.
- For example, A has a reasonable fear of D/GBH from V. A responds by pulling a gun and fires at V
with intent to immobilize V by causing D/GBH to V. However, A misses. V safely flees. If A is
charged with attempted murder and wants to claim self-defence:
- (i) S. 34(1) does not apply (A intended to cause D/GBH)
- (ii) S. 34(2) does not apply because A did not actually "cause D/GBH"
- (iii) S. 35 does not apply because A was not the initial aggressor
- (iv) S. 37 could now be applied since ss. 34 and 35 do not apply.
Retreat and Self-Defence
- To what extent, if any, is a person expected to retreat before acting in self-defence?
- S. 35 imposes a positive duty on an initial aggressor to retreat as far as feasible before using force to
further defend him/her self
- SS. 34 and 37 have no express retreat requirement
- When in one's home, there is no obligation to retreat or flee one's home before relying on self-defence:
Jack (1994) and Irwin (1994), Lavallee (S.C.C., 1990)
- While there is no positive duty or obligation to retreat except in s. 35, the possibility of retreat [at
least outside the home] is one factor that can be considered in s. 34(2)(b) as to whether the accused
believed "on reasonable grounds that he/she could not otherwise preserve him/her self from D/GBH":
Malott (S.C.C., 1998); Proulx (1998)
- In Cinous (2002) the majority of the S.C.C. looked at the fact that the accused did not flee/retreat as a
relevant factor in deciding that the third element of self-defence under s. 34(2)(b) was not met. Thus
failure to retreat is a consideration in self-defence under s. 34(2), rather than an absolute imperative
Intoxication and Self-Defence
- Since the accused's beliefs as to the nature and degree of the assault and the necessary response must
be "reasonable", the accused cannot rely on intoxication as a factor in arguing that his/her beliefs were
"reasonable in the context of his/her intoxicated state"
- Since a reasonable person is a sober person, the accused's intoxication is irrelevant in deciding whether
his/her apprehension and belief were reasonable. This does not mean that an intoxicated person cannot
rely on self-defence. If an intoxicated person's beliefs are reasonable, in spite of his/her intoxication,
then he/she can rely on self-defence: see Reilly v. The Queen (S.C.C., 1984)
Mental Impairment and Self-Defence
- In R. v. Nelson (1992), the Court held that the diminished intelligence of an accused should be taken into
account in the application of s. 34(2) in deciding whether the accused’s apprehensions and beliefs were
reasonable. Like R. v. Lavallee (S.C.C., 1990), the Court held that it would be unfair to measure the
accused’s apprehension and belief against the perceptions of an “ordinary person”.
Excessive Force in Self-Defence
- The degree of force permitted under ss. 34(1) and 37 is less than the degree of force permitted under ss.
34(2) and 35:
o S. 34(1): "no more force than is necessary to enable him to defend himself"
o S. 37: "no more force than is necessary to prevent the assault or its repetition"
- The expression "no more force than necessary" in ss. 34(1) and 37 is often referred to as the
"proportionate force" requirement.
- It is an objective assessment.
o Look at the force being used by the attacker and then determine objectively the degree of force
needed to defend against such force. It is not what the accused believed, or reasonably believed,
was necessary; it is what a reasonable person would have judged necessary. [But surely this test
must be contextualized to take into account the relevant strengths and options available to the
self-defender in comparison to the attacker.]
- Sections 34(2) and 35 have more of a subjective aspect to the degree of necessary force, albeit with a
reasonableness limitation. Sections 34(2) and 35 authorize the accused to use deadly force if "the
accused reasonably apprehends D/GBH" and "the accused believes, on reasonable grounds, that he/she
cannot otherwise preserve him/herself from D/GBH".
- The emphasis is on the accused's beliefs, albeit those beliefs must be based on reasonable grounds. Thus
the force used may be more than is actually necessary [and in that sense, therefore, not objectively
proportionate], provided the accused reasonably believed that the force used was necessary.
- Consequence of a finding of use of excessive force? If the accused uses more force than justified under
ss. 34-37, then the accused is criminally liable for the excess force: s. 26 of the Code.
- If the excessive use of force is accompanied with an intent to cause death or bodily harm likely to cause
death, and death ensues, then the accused who was initially acting in self-defence is guilty of murder.
There is no partial defence for excessive use of force in self-defence reducing murder to manslaughter:
Faid (S.C.C., 1983).
10. Self-Defence and Domestic Violence
Domestic violence is a serious problem in our society.
- Can consist of physical, sexual and/or psychological abuse
- It can be visited on either partner by the other partner although research indicates that serious physical
and sexual abuse is visited disproportionately on female partners
- When women are killed, it is usually by their partners or former partners.
- In a smaller percentage of cases, women have killed their partners in circumstances where they claim
self-defence (or provocation) based on long-time abuse by their partner.
- How does the law respond to such cases? In the context of self-defence, these cases are normally
decided on the basis of s. 34(2).
Lavallée (S.C.C., 1990) – Successfully raised BWS using expert evidence
- Facts: The accused, a 22-year old female, shot her partner in the back of the head as he was leaving the
bedroom. She had been subjected to repeated physical assaults by the deceased during their 3-4 year
relationship. On the night in question the accused and the deceased had an argument. She ran and hid in
the closet. The deceased came in, pulled her out of the closet and slapped her in the face a few times.
The deceased then apparently told her that "if I didn’t kill him first he would kill me. He told me he was
-
-
-
-
-
gonna kill me when everyone left (the party)". The deceased gave her a loaded gun and continued to
taunt her. As he was leaving the room, the accused shot him. She said that she aimed above his head,
but the shot hit his head and killed him.
The accused was acquitted at trial by judge and jury after hearing expert evidence on the so-called
"battered woman syndrome". The Manitoba Court of Appeal ordered a new trial on the basis that
evidence of the battered woman syndrome should not have been admitted. The S.C.C. restored the
acquittal.
Wilson: showed some sensitivity to the plight of battered women in its interpretation under s. 34(2) of
what constitutes “reasonable apprehension of death or grievous bodily harm” and “reasonable grounds”
for a belief that she cannot otherwise preserve herself.
o The defence brought in expert evidence that she was suffering from a recognized syndrome.
o The Court held that expert evidence on the subject of battered woman syndrome was both
helpful and necessary so that jurors, who would normally have no experience with the battered
woman syndrome, could better understand whether or not the accused’s apprehensions and
beliefs in this case were based on “reasonable” grounds.
o The issue is not, however, what an outsider would have reasonably perceived but what the
accused reasonably perceived, given her situation and her experience.
o The test is not what would the reasonable person have perceived but rather what would a
“reasonable” battered spouse have perceived in the same situation.
o Subsection 34(2) requires an accused who pleads self-defence to believe "on reasonable
grounds" that it is not possible to otherwise preserve him or herself from death or grievous
bodily harm.
The obvious question is if the violence was so intolerable, why did the appellant not leave her abuser
long ago?
o The same psychological factors that account for a woman's inability to leave a battering
relationship may also help to explain why she did not attempt to escape at the moment she
perceived her life to be in danger.
o I think the question the jury must ask itself is whether, given the history, circumstances and
perceptions of the appellant, her belief that she could not preserve herself from being killed by
Rust that night except by killing him first was reasonable. To the extent that expert evidence can
assist the jury in making that determination, I would find such testimony to be both relevant and
necessary.
o The syndrome helps to explain that fact. Also gives context to determine the issue and whether in
the same circumstances this individual who says they had no alternative should be seen as being
credible and given weight.
Section 34(2) had to be interpreted in a new way, she was indeed acting lawfully in self defence. She
just has to create an air of reality, when interpreting section 34(2), in particular the second arm. It is
important for expert evidence to be allowed into court relative to the syndrome of BWS. This is because
many jurors would have little or no familiarity with the syndrome and without the information they may
draw the wrong conclusions based on stereotypes.
Without this expert evidence, triers of fact are prevented from appropriately applying the law. Evidence
is brought in not to tell us how to decide the case, rather helps in the fact finding role.
Pétel (1994) – Must apply contextual approach, can consider past conduct
- Facts: She shot both the man she was living with and the victim (died) who was involved in the drug
trade with her boyfriend.
- Decision: applied R. v. Lavallée, and noted that a contextual approach must be used in assessing the
reasonableness of the accused’s beliefs and apprehensions. Although an objective standard is still
required, the range of factors that must be considered should be expanded to take into account the
history, circumstances, and perceptions of the person who pleads self-defence.
-
-
In particular, the majority found that threats made to the accused before the night in question were
relevant not only to the determination of whether there had actually been an assault, but also to the
reasonable belief of the accused in the existence of an assault.
A majority of the S.C.C. held that the trial judge failed to relate the earlier threats to this important
element. Thus the majority set aside the accused's conviction for murder and ordered a new trial.
The Court also stressed that the appropriate consideration for self-defence is not whether an accused was
in fact unlawfully assaulted, but rather, whether the accused had a reasonable belief, given the
circumstances, that he or she was being unlawfully assaulted. In addition, the majority found that
threats made before the night of the killing were also relevant to the accused’s reasonable apprehension
of a danger of death or grievous bodily harm.
R. v. Malott (S.C.C., 1998) – Enunciated Principles from Lavallee
- Facts: The accused's primary defence for killing her spouse was self-defence based on extensive
evidence of physical, sexual, verbal, emotional, and psychological abuse by the deceased towards the
accused throughout their 19-year relationship. They had broken up and moved away from one another.
But she shot him and then went to the girlfriend’s house and stabbed her. On appeal from her conviction
for second-degree murder of her spouse, a majority of the Ont. C.A. held
o That the jury was clearly instructed on the general principles in R. v. Lavallée, and that the
perceptions of the appellant, developed against the background of her abuse, must be assessed in
determining whether her actions were reasonable.
o The majority held that the manner in which the trial Judge left the expert evidence of battering
with the jury was under the circumstances fair and sufficient. Abella J.A., in dissent, held the
trial Judge's instructions were inadequate.
- SCC: held that the trial judge's instructions were adequate; thus her conviction for murder was restored.
- Summarized what the jury must be told once an accused claims self-defence in the context of a battered
relationship. Once that defence is raised, the jury ought to be made aware of the principles of that
defence as dictated by Lavallée. In particular, the jury should be informed of how that evidence may be
of use in understanding the following:
o 1. Why an abused woman might remain in an abusive relationship. As discussed in Lavallée,
expert evidence may help to explain some of the reasons and dispel some of the misconceptions
about why women stay in abusive relationships.
o 2. The nature and extent of the violence that may exist in a battering relationship. In
considering the defence of self-defence as it applies to an accused who has killed her violent
partner, the jury should be instructed on the violence that existed in the relationship and its
impact on the accused. The latter will usually but not necessarily be provided by an expert.
o 3. The accused's ability to perceive danger from her abuser. Section 34(2)(a) provides that an
accused who intentionally causes death or grievous bodily harm in repelling an assault is
justified if he or she does so "under reasonable apprehension of death or grievous bodily harm".
No requirement that the accused apprehend imminent danger.
 Where evidence exists that an accused is in a battering relationship, expert testimony can
assist the jury in determining whether the accused had a "reasonable" apprehension of
death when she acted by explaining the heightened sensitivity of a battered woman to her
partner's acts
o 4. Whether the accused believed on reasonable grounds that she could not otherwise preserve
herself from death or grievous bodily harm. This principle was summarized in Lavallée as
follows:
By providing an explanation as to why an accused did not flee when she perceived her
life to be in danger, expert testimony may also assist the jury in assessing the
reasonableness of her belief that killing her batterer was the only way to save her own
life.
Criticisms
-
Lavallée has been applauded by feminist scholars and others for eroding the gender bias which was
inherent in the legal requirements for self-defence. However, these scholars also have expressed some
concerns about the "battered woman syndrome"
o Treating battered women as "abnormal" for not leaving the battering relationship;
o Pre-occupation with the "battered woman's syndrome" deflects attention from/obscures the real
problem of male violence to female partners;
o Pre-occupation with treating battered women as weak, helpless, passive persons may result in
women who do not meet that stereotype having their claims to self-defence in a battering
relationship unfairly decided;
o Failure to recognize the social factors, such as housing, child care, income etc., which severely
limit a battered woman's opportunities to leave.
- Many of the above concerns have now been acknowledged in separate, concurring reasons in Malott.
- The utility of such evidence is not limited to instances where a battered woman is pleading self-defence,
but is potentially relevant to other situations where the reasonableness of a battered woman's actions or
perceptions is at issue (e.g. provocation, duress or necessity).
- Accepted that the perspectives of women, which have historically been ignored, must now equally
inform the "objective" standard of the reasonable person in relation to self-defence.
- Concerns have been expressed that the treatment of expert evidence on battered women syndrome,
which is itself admissible in order to combat the myths and stereotypes which society has about battered
women, has led to a new stereotype of the "battered woman".
- It is possible that those women who are unable to fit themselves within the stereotype of a victimized,
passive, helpless, dependent, battered woman will not have their claims to self-defence fairly decided.
o For instance, women who have demonstrated too much strength or initiative, women of colour,
women who are professionals, or women who might have fought back against their abusers on
previous occasions, should not be penalized for failing to accord with the stereotypical image of
the archetypal battered woman. Needless to say, women with these characteristics are still
entitled to have their claims of self-defence fairly adjudicated, and they are also still entitled to
have their experiences as battered women inform the analysis.
- How should the courts combat the "syndromization", as Professor Grant refers to it, of battered women
who act in self-defence? The legal inquiry into the moral culpability of a woman who is, for instance,
claiming self- defence must focus on the reasonableness of her actions in the context of her personal
experiences, and her experiences as a woman, not on her status as a battered woman and her entitlement
to claim that she is suffering from "battered woman syndrome". By emphasizing a woman's "learned
helplessness", her dependence, her victimization, and her low self-esteem, in order to establish that she
suffers from "battered woman syndrome", the legal debate shifts from the objective rationality of her
actions to preserve her own life to those personal inadequacies which apparently explain her failure to
flee from her abuser.
Impact of Lavallee decision on conviction rates
- In Lavallee, the Court notes that obviously the fact that the appellant was a battered woman does not
entitle her to an acquittal. Battered women may well kill their partners other than in self-defence.
- Martha Shaffer reports that of the 16 cases post-Lavallée where women were charged with murder or
manslaughter of abusive partners, only 3 were ultimately acquitted.
- Likewise Judge Lynn Ratushny's 1997 Self-Defence Review which involved a comprehensive review of
98 pre-Lavallée women convicted of and serving sentences for homicide which allegedly occurred to
avoid domestic violence.
o Judge Ratushny found that only 7 of those convictions would probably have been different postLavallée. Of those 7 cases, the Department of Justice accepted her opinion in only 3 of them,
and issued pardons to those 3 women. Thus as the Ratushny Review demonstrates, Lavallée will
not dramatically reduce the conviction rate of women who kill abusive partners.
o Very rare for this to actually happen, Toelfson thinks we should be celebrating the fact that this
has happened as opposed to criticizing it. He says despite the small numbers, it has made a
difference and will continue to do so
Extension of Lavallee rejected
- Questions arise whether this can be extended to other relationships but courts have refused to accept this
R. v. Charlebois (2001) – Refused to extend BWS to other situations
- Facts: Charlebois, a man, had shot the victim, a male friend, in the back of the head while he slept. His
claim of self-defence was based on an overwhelming fear of the victim that had developed over the
course of their long and difficult relationship. On the night of the murder, the victim had held a knife in
front of the accused’s face and threatened him.
- Decision: The trial judge's reference to "a reasonable person, an average person, in the accused's
situation" was ambiguous and unclear in relation to the subjective aspects of s. 34(2).
- SCC: The lack of precision in the trial judge's reference was not serious, the trial judge related the
history of violence and fear that the appellant suffered at the hands of the victim to the reasonable person
and that in the context of the charge as a whole, “this part of the directions would have clearly indicated
to the jury that the appellant’s perception was to be weighed by considering whether a person, infused
with Charlebois’ experience, placed in the circumstances of the night in question, would reasonably
have had the same perceptions.”
- The accused was unsuccessful in his attempt to rely on Lavallee to support his claim of self-defence. It
was inappropriate in the context of the battered woman syndrome to refer to what an "ordinary man"
would do in assessing the reasonableness of the accused's perceptions.
- Bastarache J. stated that while we have relaxed the requirement of imminency of the threat in the selfdefence analysis particular to battered women, on the basis of expert evidence outlining the unique
conditions they face, there is no justification for extending its scope further on the evidence presented in
this case.
- This later statement about relaxing "the requirement of imminency" is confusing in light of the fact that
there is no formal requirement for imminency.
Does the Threat of Assault Need to be Imminent?
- Ones actions were justified when present with imminent danger
- If it is an imminent attack, imminence will help in your case. But if you don’t have this, the defence will
not necessarily fail. It is a factor and no longer necessary requirement.
- Lavallée is also important in clarifying whether the accused must apprehend that the assault is
"imminent".
- The Court noted that prior case law had read this requirement into s. 34, but the Court noted that s.
34(2)(a) does not say the apprehension of D/GBH must be "imminent".
o Thus it is only one matter to be considered in determining whether the accused truly
apprehended D/GBH. Wilson J. held that the law ought not to require an accused to wait until
the "knife is up-lifted" or "the gun is pointed at them", before they are entitled to respond in selfdefence.
- In Petel, Lamer said that Lavallée rejected the rule requiring that the apprehended danger be imminent.
o This alleged rule, which does not appear anywhere in the text of the Criminal Code, is in fact
only a mere assumption based on common sense.
o However, evidence may be presented (in particular expert evidence) to rebut this presumption.
o There is thus no formal requirement that the danger be imminent.
o Imminence is only one of the factors which the jury should weigh in determining whether the
accused had a reasonable apprehension of danger and a reasonable belief that she could not
extricate herself otherwise than by killing the attacker.
- The issue of pre-emptive strikes and imminent attacks has also been applied somewhat liberally in the
prison context.
o McConnell, the accused, a penitentiary inmate, had good reason to believe that the deceased,
another inmate who was a "prison enforcer", was on his way to kill him. Just after the deceased
walked by the accused, the accused attacked the deceased from behind.
-
-
-
-
o The accused was convicted of second degree murder. A majority of the Alberta C.A. upheld that
conviction.
o However, Conrad J.A., dissenting, cited Lavallée and Pétel to the effect that imminence is not a
formal requirement of an assault by threat, but merely one of the factors that a jury should weigh.
He concluded that the requirement of immediacy stated by the trial judge was an error. The
possibility of a "pre-emptive strike" should not be precluded from s. 34(2). Although the victim
must have had the "present ability" to carry out the threat, this point does not require the accused
to have believed that the threat would be carried out immediately or at that precise moment. She
ordered a new trial. The S.C.C. agreed with Conrad
R. v. Plain the accused was acquitted of aggravated assault on the basis of self-defence under s. 34(2).
Facts: The accused, a maximum security inmate at Kingston Penitentiary, owed the complainant $100
for drugs. The accused was unable to pay. The complainant was a vicious man and was feared in the
penitentiary. The accused believed that he would be killed or seriously injured by the complainant and
his friends. To protect himself from such injury, he took pre-emptive action and attacked the
complainant with a knife.
The trial judge considered and applied McConnell and Lavallée, noting that the accused had a
reasonable apprehension of death or grievous bodily harm and that there is no requirement that the threat
of death or grievous bodily harm be imminent.
o On the issue of whether the accused, on reasonable grounds, believed that he could not otherwise
preserve himself, the Crown argued that a reasonable alternative for the accused would have
been to request that he be segregated.
o The trial judge first noted that there is no duty to retreat and then considered evidence from other
inmates that prisoners can be attacked even in segregation. The trial judge concluded that there
was at least a reasonable doubt that the requirements of self-defence under s. 34(2) existed and
therefore he acquitted the accused.
Recognizes that a preemptive strike with no immediacy can be defended on the basis of 34(2), at least in
the prison context. Here it was aggravated assault and not murder, so that makes a difference. He says
this guy was out to get me and he could have gotten me even if I was in segregation. I had to get him
first.
However, as we have seen in Cinous [especially in the remarks of Binnie J.], the S.C.C. was not so
willing to take into account, or contextualize, Cinous' criminal lifestyle in the assessment of whether
Cinous had a belief, on reasonable grounds, that he had no alternative but to kill V, or be killed himself.
Do you see any differences in the contextualizing of battered women and prison inmates, but (arguably)
not street criminals like Cinous?
11. Duress as a Defence
Parties to an Offence
- Sections 21 and 22 of the Criminal Code provide various ways in which a person can commit and be
found guilty of an offence. A person is a party to an offence and guilty of that offence if he or she
- (a) Actually commits it, (principle offender)
- (b) Aids someone else to actually commit it, (b – d Secondary offender)
- (c) Abets (encourages) someone else to actually commit it: this remains uncertain, but anything that falls
under encouragement can potentially do so
- (d) Counsels, procures or incites someone else to actually commit it
- Duress is an excuse and not a justification. Entitled to an acquittal.
Law of Duress
- Two defences of duress or compulsion: statutory (S. 17) and common law.
- Elements of the statutory defence (Note: struck out elements were struck down in Ruzic):
o D commits an offence under threats of immediate death or bodily harm
o The threats were from a person present when the offence was committed
o D believes threats will be carried;
o D is not a co-conspirator or criminal associate
o The offence is not one of the 22 listed in s. 17 (i.e. s. 469 offences, robbery, sexual assault)
- Carker: S.C.C. held that the defence of duress was “exhaustively defined in s. 17 of the Code” and
therefore the accused could not avail himself of the common law defence of duress.
o His claim of duress failed because he could not meet the strict "presence" and "immediacy"
requirements of s. 17 since they were in a controlled prison setting. Today (since Ruzic), Carker
would be entitled to rely upon common law duress which does not have such rigid "presence"
and "immediacy" requirements.
- Elements of Common Law Duress (Paquette, Mena and Ruzic)
o (1) Accused must be subject to a threat of death or serious injury to himself or to another person
 Although the threat of harm need not be immediate, there must be "a close temporal
connection between the threat and the harm threatened" (Ruzic)
o (2) The accused must be committing the offence (solely) as a result of the threat (i.e. the accused
must believe that the threat will be carried out if he/she fails to commit the offence),
o (3) The threat must be of such gravity that it may well cause a reasonable person placed in the
same situation as the accused to respond to the threat by committing the offence in question,
o (4) The accused must not have a safe avenue of escape (Ruzic emphasized that this is an
objective-subjective assessment), and
o (5) The accused must not be a voluntary member of a criminal association whereby he or she
knew that he/she may be subject to compulsion by threats (part of S. 17, and CL)
- Onus of Proof: As with most other defences, once the issue of duress is raised by the evidence (i.e.
there is an air of reality to it), the Crown must prove beyond a reasonable doubt that the offence was not
committed under duress.
- MR: Duress does not negate intent, Hibbert
Paquette – Section 17 only applies to principle offenders
- Facts: He was forced to be the driver of a robbery gone wrong. Drove two other people, to a shop, drops
them off, and drivers around the block. They shot and killed one of the employees, upon return he
refuses to let them back in the vehicle. But under conventional criminal law theory, he is liable for
second degree murder.
- Decision: S.C.C. held that the words in s. 17 “a person who commits an offence under compulsion” only
refer to “a person who actually commits an offence”.
o S. 17 applies to “principal” offenders only, but not to “secondary” offenders (i.e. persons who
aid, abet, counsel or procure the principal offender). [I think this was a wrong interpretation of s.
17.]
o Since neither s. 17, nor any other provision in the Code deals with duress for secondary parties,
therefore the common law defence of duress (which is preserved in our Criminal Code by s.
8(3)) is available to all secondary parties to an offence.
- Implications:
o (1) Section 17 is not a complete codification of the law of duress
o (2) If you are a secondary offender, can invoke the common law of duress.
 (a) Doesn’t contain same degree of immediacy or grievous bodily harm. (b) Nor did it
have to be uttered by the person present
R. v. Ruzic (2001) – Removed the presence and immediacy requirements from Section 17
- Facts: She was caught smuggling heroin from the former Yugoslavia. A man threatened and assaulted
her to do this. He threatened her mother and she didn’t feel she could go to the police as the rule of law
in the country had broken down.
- Decision: While Section 17 captures the threats against third parties, the immediacy and presence
requirements continue to impose considerable obstacles to relying on the defence in hostage or other
third party situations.
o Thus the strictness of section 17 beaches Section 7 of the Charter because it allows individuals
who acted involuntarily to be declared criminally liable.
- The trial judge and the Ontario Court of Appeal were correct in allowing Ruzic, the principal offender,
to rely upon the common law defence of duress on charges of use of a false passport and unlawfully
importing a narcotic. However, the Supreme Court noted that s. 17 was only being declared
"unconstitutional in part". The list of 22 offences, ranging from murder and sexual assault to less
serious crimes such as robbery and arson, which are excluded from the scope of the defence.
Combined effect of Paquette and Ruzic
- (a) S. 17 does not apply to secondary parties; therefore secondary parties may rely on the common law
defence of duress in respect of all offences; (Paquette)
- (b) Principal offenders may rely on the common law defence of duress in respect to all offences except
the s. 17 list of excluded offences; (Paquette)
- (c) S. 17 is still applicable to the list of excluded offences (unless and until successfully challenged as
unconstitutional); this means that a person charged with an "excluded offence" listed in s. 17 cannot rely
on the statutory defence of duress under s. 17, nor on common law duress
o Can try to strike down based on the Ruzic immediacy and presence requirements.
Differences between Common Law and Section 17
- Section 17 contains list of excluded offences and had immediacy and presence
-
Section 17 only requires threats of "bodily harm", whereas the common law seems to require threats of
"serious bodily harm; and
Section 17 expressly applies a subjective test while common law duress applies a modified objective
test.
When a principal offender is charged with an offence not listed in s. 17, the trial judge may ignore s. 17
and instruct the jury exclusively on the common law defence of duress. That is what the trial judge did
in Ruzic and the Supreme Court expressly stated (at para. 101) that the trial judge was right in doing so.
Is Common Law Duress a Defence to "All" Offences?
- Paquette: Common law defence of duress is available to a secondary party (i.e. aider and abettor etc.)
for all offences, even murder.
- Relied on the House of Lords decision in Lynch (1975) for that proposition.
o BUT the House of Lords overruled Lynch and held that the common law defence of duress was
not available to an aider or abettor (or other secondary party) to murder: R. v. Howe; nor
attempted murder: R. v. Gotts
o Lynch has not yet been reconsidered or overruled by a Canadian court, so Lynch (via Paquette)
remains the law in Canada at least for now.
- The hesitation the S.C.C. showed in Latimer (2001), on the issue of whether necessity could ever be a
defence for a principal offender on a charge of murder may have some bearing on the S.C.C.'s thinking
if they ever reconsider this aspect of Paquette (Lynch).
Distinguishing Principal Offenders and Secondary Parties
- When accused charged with one of the 22 excluded offences, need to decide it principal or secondary.
- If principal offender (s. 17) not defence but if secondary does have a defence of duress (at common law)
R. v. Mena (Ont. C.A., 1987) – Distinction between the two
- Facts: The accused participated in a robbery with Mr. Yee. Mena tied up the store owner under
directions from Mr. Yee and carried part of the proceeds of the robbery out of the store at Yee’s
command. Mena argued that he participated in the robbery under duress from Yee. Co-perpetrator, more
then one principle offender
o If Mena’s participation in the robbery amounted to being a principal offender, then s. 17 and no
defence of duress.
- TJ: told the jury that Mena was a co-perpetrator (i.e. a principal offender) and that he was not entitled to
rely on duress as a defence to robbery since excluded in s. 17
- CA: New trial, stating that it was open to the jury on the facts of this case to find that Mena was not a
co-perpetrator, but rather only an aider and abettor to Yee.
o As an aider and abettor, Mena would therefore be entitled to rely upon duress as a common law
defence to robbery.
o CA suggested that Mena would be a co-perpetrator “if he intended to act in concert with Yee”
and only an aider and abettor “if the acts which he performed were the result of duress from
Yee.” This is not a satisfactory distinction. It is circular. It seems to say that if he actually acted
because of the duress, then we will treat him as "an aider and abettor" rather than a coperpetrator.
Common Law Defence
Hibbert v. R. (1995, S.C.C.) – Not available if had a safe avenue of escape, modified objective test
- Facts: The principle offender made him accompany him to the victim’s apartment to lure him down
while the PO shot him.
- Issue: Whether it is open to a person charged as a party to an offence to argue that because he was
coerced, he did not possess the necessary MR for party liability.
o Also if the accused persons are foreclosed from recourse to the defence if they failed to avail
themselves of a “safe avenue of escape” from the situation of coercion when such a safe avenue
was available.
-
Decision: The common-law defence of duress is not available to an accused who has a "safe avenue of
escape". If an accused "could have escaped without undue danger", then it was not necessary to commit
the offence and duress is no defence.
o Whether a safe avenue of escape existed is to be determined on a subjective-objective
standard, i.e. when considering the perceptions of a reasonable person as to whether there is a
safe avenue of escape, the personal circumstances of the accused are relevant and should be
taken into account.
o “Purpose” should not be seen as incorporation the notion of “desire” into the mental state for
party liability and that the word should instead be understood as being essentially synonymous
with “intention”
 If you are charged as an aider and abitter, it does not negated the MR
Hébert
- Duress will not always succeed as a defence to perjury, it depends on the Court's view of whether
reasonable alternatives were open to the accused (taking into account the accused's circumstances and
his ability to perceive a reasonable alternative).
- Here the accused committed perjury after falsely testifying in court due to threats by motorcycle gang
members.
- S.C.C. held that he could not rely on s. 17 duress since he could have “easily escaped and rendered the
threat unenforceable” by reporting it to the judge or police. In Ruzic, contacting the police was not seen
as a reasonable alternative.
How Duress Operates on the Elements of Criminal Liability
- In Dunbar the S.C.C. held that duress was the accused's motive for acting, but motive does not negate
the intent to act.
- In Carker, the B.C.C.A. held that the evidence of duress should have been admitted on the grounds that
evidence of duress may negate the mens rea of the offence charged (in this case, “wilfully” destroying
property).
o Argument rejected by the court. Duress does not negate mens rea; it operates as an excuse or
justification notwithstanding the fact that the accused has committed the actus reus and the mens
rea for the crime charged.
- Unfortunately, in obiter, in Paquette, the Supreme Court created some uncertainty on this point.
- In Hibbert (1995), the SCC clarifies Paquette on this point, reaffirmed the Dunbar approach, and
therefore held that duress does not negate the mens rea of s. 21(1)(b) or s. 21(2), but rather operates as a
distinct common-law excuse, separate and apart from the mens rea required for parties to an offence
12. Defence of Necessity
- Key distinction between necessity and duress is that necessity is a defence that responds to the
circumstances that produce situations of imminent peril whereas the defence of duress is concerned with
criminal acts committed while subject to a threat or compulsion form another person.
- A common law defence only recently recognized in Canadian law: Morgentaler (SCC, 1975), Perka
(SCC, 1984) and Latimer (SCC, 2001)
- Prevailing view is that it is an excuse: though some argue for “justification” theory
Elements of the Defence - Perka
- (1) Urgent situation of clear and imminent peril; reasonable person would likely not withstand
(objective)
- (2) No other reasonable lawful way to avoid peril (objective)
- (3) Proportionality test (the harm associated with committing the offence must be less than harm
associated with peril) (subjective)
Important Notes
- (1) Illegality or contributory fault not a bar to its invocation
- (2) If defence has air of reality to defence, Crown must disprove beyond reasonable doubt
Latimer: applied the Perka test and found that Tracey’s ongoing pain did not constitute an emergency in
this case. He also had a legal alternative, she could have continued living, have the operation. Leaves
open the possibility of whether the proportionality requirement could be held in a homicide situation.
o Claims of necessity in such situations ultimaelty call upon courts to make judgments about what
we are willing to demand from individuals faced with seemingly impossible situations.
o For first and second arms of test, a “modified objective” standard is to be employed; for final
arm purely objective test applies
An Excuse or Justification?
- (1) Dominant view is that it is an “excuse”: see Dickson J. in Perka and decision of court in Latimer
(contra Wilson J. in Perka)
- (2) The distinction can be NB in two situations:
o Criminal liability of accomplices
o Civil liability
o Elements of the offence per Wilson J (i.e. relevance of immediacy requirement)
- Justification: Challenges the wrongfulness of an action which technically constitutes a crime
- Excuse: concedes the wrongfulness of an action but asserts that the circumstances under which it was
done are such that it ought not to be attributed to the actor.
o Within this, the objectivity of the criminal law is still maintained in that the acts are still wrong
but in the circumstances they are excusable.
- Wilson (Dissent): by classifying necessity as an excuse, shutting the door on justification as an
appropriate jurisprudential basis in some cases.
o Where necessity is invoked as a justification it myst be restricted to situations where the
accused’s act constitutes the discharge of a duty recognized by law. Rule of proportionality is
central to conflict of duties.
Necessity and Abortion
Morgentaler v The Queen
- Facts: He performed an abortion on a 26 year old woman.
- A defence of necessity must rest upon evidence upon which a jury could find that (1) the accused in
good faith considered the situation so emergent that failure to terminate the pregnancy immediately
could endanger the life or health of the woman and (2) that upon any reasonable view of the facts
compliance with the law was impossible
- Decision: no real evidence or urgent medical need, there was a legal way out in that the appellant made
no attempt to bring himself within the bounds of legality in deciding to perform the abortion.
- Laskin: The cost of hospital abortion was much higher than her ability to pay. The doctor said he
assessed the necessity by reference to her state of anxiety, her inability to sleep or eat properly and on
her physical health. It was for the jury to decide whether the harm sought to be avoided by performing
the abortion was an immediate and physical one.
R v Morgentaler
- It was not an issue for the jury to weigh the merits of the law enacted by Parliament and to be invited to
resolve the public debate on abortion.
- Yet it was the basis on the dissatisfaction with the law that the defence sought to rely on the legal
defence of necessity.
- The defence of necessity cannot be resorted to as an excuse for medical practioners in Canada to agree
in circumstances of this case to procure abortions on their own opinion of the danger to life or health at a
place of their own choosing in complete disregard to the provision of Section 251 of CC
-