i
Criminal Law – Winter 2004
Professor: Patrick Healy
Notes: Laurence Bich-Carrière
Table of Contents.
A. INTRODUCTION
I. Aspects of Criminal Liability
II. Limitations of Criminal Law.
1. OFFENCES IN THE CRIMINAL CODE [CASEBOOK P. 323]. ........................................................................................1
2. THE ACTUS REUS (AR)..............................................................................................................................................2
III. Sources of the Criminal Law.
1. A BIT OF HISTORY… .................................................................................................................................................3
1. 1. One Criminal Law for All of Canada ............................................................................................................3
1. 2. But What is Criminal Law? ............................................................................................................................3
2. TODAY'S SOURCES.....................................................................................................................................................3
2.1. The Canadian Charter of Rights and Freedoms. ............................................................................................3
2. 2. Statutory Law: the Criminal Code and more! ..............................................................................................4
2. 3. Common law. ...................................................................................................................................................4
B. BASIC PRINCIPLES.
I. The Principle of Legality.
1. PRINCIPLES AS SUCH. ................................................................................................................................................5
2. LEGITIMATE LIMITS. ................................................................................................................................................6
II. Presumption of innocence.
1. GENERAL STATEMENTS ............................................................................................................................................7
2. LEADING CASE: WOOLMINGTON ...............................................................................................................................7
Woolmington v. D.P.P. [1935] A.C. 462 (UK) [C. 261] .................................................................................7
3. WHAT IS REASONABLE DOUBT?...............................................................................................................................8
3. A TRIAL: PROCEDURE AND EVIDENCE ....................................................................................................................8
C. ELEMENTS OF GUILT.
I. Conduct: the Actus Reus.
1. INTRODUCTION. ........................................................................................................................................................9
2. ACTS, OMISSIONS AND STATES OF BEING: VOLUNTARINESS. ...................................................................................9
2. 1. Voluntariness: introduction ...........................................................................................................................9
2. 2. Assessing Contemporaneity ......................................................................................................................... 10
2. 2. 1. Dealing with acts, continuing acts and omissions .................................................................................. 10
Fagan v. Commissioner of Metropolitan Police [1969] 1 Q.B. 439 (UK) [C. 292] .................................... 10
R v. Miller [1982] 2 All E.R. 386 (UK) [C. 295] .......................................................................................... 11
2. 2. 2. Omission + Duty of Care = Offence = Sanction .................................................................................... 12
Moore v. the Queen [1979] 1 SCR 195 [C. 301] .......................................................................................... 12
R. v. Thornton [1991] 3 CR (4th) 381 (Ontario CA) [C. 307] ...................................................................... 13
2. 4. States of being................................................................................................................................................ 14
2. 4. 1. Status Offences....................................................................................................................................... 14
2. 4. 2. Possession .............................................................................................................................................. 14
R. v. Terrence [1983] 1 SCR 357 [C. 317] ................................................................................................... 14
2. 5. Circumstances [C. 322] ................................................................................................................................. 15
3. CAUSATION.............................................................................................................................................................. 15
3. 1. A (rare) question of fact ............................................................................................................................... 15
3. 2. What is the standard of causation? ............................................................................................................. 16
–i–
ii
Smithers v. the Queen [1978] 1 SCR 506 [C. 327] ...................................................................................... 16
R. v. Cribbin [1994] 89 CCC (3d) 67 (Ont. C.A.) ......................................................................................... 16
R. v. Nette [2001] 158 CCC (3d) 486 (S.C.C.) .............................................................................................. 17
D. FAULT
I. Fault and Criminal Law: No Fault
1. INTRODUCTION. ...................................................................................................................................................... 18
2. THE CONSTITUTIONAL SOURCES OF PENAL LIABILITY (NOT JUST CRIMINAL).................................................... 18
3. THE EMERGENCE OF STRICT LIABILITY IN CRIMINAL LAW ................................................................................ 20
3.1. The Law Before Sault Ste.Marie ................................................................................................................... 20
3. 2. Sault Ste.Marie: The Recognition of Strict Liability .................................................................................. 20
R. v. City of Sault Ste. Marie (1978), 40 CCC (2d) 353 (SCC) [C. 384] ..................................................... 20
4. AND THEN CHARTER KICKS IN. ............................................................................................................................... 21
4. 1. Can a prison term be associated with absolute liability?........................................................................... 21
Reference re Section 94(2) of the BC Motor Vehicle Act (1985) 23 CCC (3d) 289 [C. 390] ..................... 21
4. 2. Can a prison term be associated with strict liability? ................................................................................ 21
R. v. Wholesale Travel Group (1991) 67 CCC (3d) 193 (SCC) [C. 403] ..................................................... 21
II. Faults of the mens reas
1. INTRODUCTION. ...................................................................................................................................................... 23
2. INTENTION AND KNOWLEDGE [C. 419 TO 444]....................................................................................................... 23
2. 1. Intention and motive ..................................................................................................................................... 23
R. v. Steane [1947] 1 KB 997 (UK) [C. 422] ................................................................................................ 24
2. 2. Desire and Wilful Blindness ......................................................................................................................... 24
R. v. Buzzanga and Durocher (1979) 49 CCC (2d) 369 (Ont. C.A.) [C. 418, 430] ..................................... 24
2. 3. Subjective knowledge and recklessness ....................................................................................................... 25
R. v. Théroux (1993) 79 CCC (3d) 449 (SCC) [C. 438] ............................................................................... 25
3. RECKLESSNESS AND WILFUL BLINDNESS................................................................................................................ 25
R. v. Sansregret (1985) 18 CCC (3d) 223 (SCC) [C. 444] ........................................................................... 25
R. v. Duong (1998) 124 CCC (3d) 392 (SCC) [C. 447] not really discussed in class.................................. 27
R. v. Cooper (1993) 124 CCC (3d) 392 (Ont. C.A.) [C. 450] not really discussed in class ......................... 27
III. Criminal Negligence [C. 454 to 474]
1. OPENING QUESTIONS .............................................................................................................................................. 28
2. HISTORY .................................................................................................................................................................. 29
R. v. Tutton and Tutton (1989) 48 CCC (3d) 129 (SCC) [C. 454] ............................................................... 29
R. v. Creighton (1993) 83 CCC (3d) 346 (SCC) [C. 463] ............................................................................ 29
IV. Constructive Liability and Constitutional Aspects of Fault
1. ILLUSTRATIONS OF THE PRINCIPLE. ....................................................................................................................... 31
2. CASES ...................................................................................................................................................................... 32
Vaillancourt v. The Queen (1987) 39 CCC (3d) 118 (SCC) [C. 709] .......................................................... 32
R. v. Martineau (1990) 58 CCC (3d) 353 (SCC) [C. 717] ........................................................................... 32
3. EXTENSION OF THE PRINCIPLE? ............................................................................................................................. 32
V. Sexual assault [C. 637-690]
1. INTRODUCTION ....................................................................................................................................................... 33
2. THE STRUCTURE OF THE PROVISIONS DEALING WITH SEXUAL ASSAULT: HISTORY ............................................ 33
2. 1. Evidentiary changes: Can you get the records of the complainant? ........................................................ 33
2. 2. With regard to the substance of sexual assault ........................................................................................... 34
R. v. Chase [1987] 2 SCR 293 [C. 638] ........................................................................................................ 34
3. THE MENS REA FOR SEXUAL ASSAULT .................................................................................................................. 34
3. 1. Consent .......................................................................................................................................................... 34
3. 2. Mistaken belief and the "air of reality" ...................................................................................................... 34
Pappajohn v.The Queen (1980) 52 CCC (2d) 481 (SCC) [C. 639].............................................................. 34
E. ASPECTS OF INNOCENCE.
I. General Introduction: What Is A Defence?
1. WHAT IS A DEFENCE?.............................................................................................................................................. 36
2. THE REQUIREMENTS OF PROOF .............................................................................................................................. 36
–ii–
iii
3. AN AREA OF THE LAW THAT CRIES FOR LEGISLATION. ......................................................................................... 37
II. Automatism and Mental Disorders
1. MENTAL DISORDER (S. 16 CC) ................................................................................................................................ 37
2. AUTOMATISM .......................................................................................................................................................... 37
2. 1. Insane Automatism ....................................................................................................................................... 37
2. 2. Non-insane Automatism ............................................................................................................................... 37
2. 2. 1. Non-insane automatism before Stone: ................................................................................................... 37
Rabey v.The Queen [1980] 2 SCR 513 [C. 817] discussed but not read ..................................................... 38
R. v. Parks (1992) 75 CCC 287 [C. 834] discussed but not read ................................................................. 38
R. v. Stone [1999] 2 SCR 290 [C. 837] ......................................................................................................... 38
III. Intoxication [C. 887 to 919]
1. INTRODUCTION ....................................................................................................................................................... 40
2. 20TH-CENTURY EVOLUTION OF THE INTOXICATION .............................................................................................. 40
2. 1. Beard and the general/specific intent dichotomy ........................................................................................ 40
R. v. George (1960), 128 CCC 289 (SCC) [C. 897] not covered in class ..................................................... 41
2. 2. Absence of intent/Incapacity to form intent ............................................................................................... 41
R. v. Robinson [1996] 1 SCR 683 [C. 891] not covered in class ................................................................. 41
2. 3. Is this specific/general intent division nonsense? ....................................................................................... 42
Bernard v. The Queen (1988), 45 CCC (3d) 1 (SCC) [C. 901] .................................................................... 42
3. AS ANNOUNCED: THE TREMENDOUS CHANGE OF DAVIAULT ............................................................................... 43
3. 1. The Reasoning ............................................................................................................................................... 43
R. v. Daviault (1994), 93 CCC (3d) 21 (SCC) [C. 912] ................................................................................ 43
3. 2. Problems with Daviault................................................................................................................................. 44
3. 3. Parliament, Daviault, principles and policy. ............................................................................................... 44
IV. Self-Defence and Domestic Violence [C. 969 to 1014]
1. HOW LAVALLÉE CHANGED THE LAW. ..................................................................................................................... 46
1. 1. Introduction ................................................................................................................................................... 46
R. v. Lavallée (1990), 55 CCC (3d) 97 (SCC) [C. 993] ................................................................................ 46
1. 2. As Crown/Defence what would you do?...................................................................................................... 46
2. OF AFFIRMATIVES DEFENCES IN GENERAL........................................................................................................... 47
R. v. Cinnous (2002), 162 CCC (3d) 129 (SCC) [C. 986] ............................................................................ 48
V. Duress and Necessity
1. DURESS [C. 945-968] ............................................................................................................................................... 49
Hibbert v. the Queen (1995) 99 CCC (3d) 193 (SCC) [C. 426] not to read, not really seen in class ......... 49
2. NECESSITY [C. 921 TO 944] .................................................................................................................................... 49
Perka v. The Queen (1984) 14 CCC (3d) 385 SCC [C. 927] ....................................................................... 49
3. SELF-DEFENCE, DURESS AND NECESSITY .............................................................................................................. 50
3.1. Duress and necessity ...................................................................................................................................... 50
R. v. Ruzic [2001] 1 SCR 687 [C. 958] ......................................................................................................... 50
3. 2. Adding self-defence and the table's complete. ............................................................................................ 51
4. CONCLUDING REMARKS SOMEWHAT RELATED TO THE SUBJECT. ........................................................................ 51
–iii–
1
A. INTRODUCTION
I. Aspects of Criminal Liability
Bunch of *concepts* to be discussed during the term:
Substantive crim law. Liability. Offences & Defences. Validity of crimlaw, means by which offences are
assessed. Aspects of trial. Corporate criminal law.
Cc doesn't contain all offences and lacks quite a few defences. Should be updated 1.
Quote
"[It] lies in the field of conflicting values," said Dickson CJ. about strict liability, but it could apply very
well to all of criminal law.
Why is crimlaw only federal 2, whereas provinces can still create offences? Example of gambling that's
evil unless there's a provincial license... Abortion… Prostitution and solicitation. Examples. Paradoxes.
Purposes. Elements of morality. Economic considerations. Utility.
What is the difference between recklessness and intention, an idea of negligence and fault, carelessness?
Question of the subjective mental state, reflected in the choice the person made of acting in the way s/he
did. Ex. Todd Bertuzzi.
What is the valid use of crim law? Legitimate use of the crim sanction. What is the appropriate angle?
What do we expect? Ingredients of liability? Legislator and its powers? Place of fault? Defences to
allegations of crim liability.
II. Limitations of Criminal Law.
1. OFFENCES IN THE CRIMINAL CODE [CASEBOOK P. 323].
It is there to see how the offences should be controlled by the legislature. In
addition to policy argument as to what criminal law should contain, there are problems
As
a as to definitions. Upon getting a case, one should check the wording of the offence
lawyer
(the syntax can give you the limits or the conditions of guilt). What exactly does a
given offence refer to in order to capture the objective legitimately set by Parliament?
Disc.
Example.
Arson3 [325]. The many suboffences might mean even if there's an overall spirit with common
features incrusted in every article, there are also slight differences. For example, arson: fire on property
intentional4 (or reckless), and there has to be damage to property or bodily harm.
Note that the structure itself marks the limits of the behaviour.
Element of causation is needed.
433 (a) says there can be an intention (recklessness) and no harm, but (b) says there can be no
intention [no requirement] but if there's harm as a result, there is an offence. (b) is liability for causing
the result (it involves the principle of constructive liability5), whereas (a)
434.1 You can't blow up your property if it seriously threatens others (seriousness, of course, always
being a borderline concept).
436. If by tort you blown something up, you're liable. Marked departure from the standard of the RP.
The definition of negligence (s. 2(19) of the Cc) in criminal law involves a marked departure (and not a
mere departure, as in the tort of negligence). It's you own property or a property you control (wheter a
tenant, a contractor).
The element of fault is present in both cases but it differs. In 433, there is an intention (or
recklessness), but not in 436. However, the conduct is "wrong" (thus, an element of fault). So actus reus
–1–
2
involves a conduct and some sort of fault, whether a mental state or a marked departure from the RP.
Intention and recklessness both include an element of choice. Negligence refers more to an objective
element of conduct.
Also, syntax-wise, the articles determine the conditions of guilt.
PoL
Point being: every criminal offence is a statement in matters of determining the
principles and the limits, the ingredients of particular offence are.
2. THE ACTUS REUS (AR)
Overall, in all these offences, we find a certain vagueness (or rather a general
realm that can capture many things). There is also always a sort of "bad" result (bodily
harm, destruction of property, serious threat), a cause can be linked to someone and his
conduct (actus reus6).
The actus reus can be:
 The basic act, whether positive or negative; the conduct: can it be the
status now (anyone who is illegally in Canada sees his status become a
conduct; if there is something in someone else's car you are drive, you
can both be "possessing" the firearm).
 The element of causation
 The result.
p. 37
PoL
Recap
Problem is, unless you attack the elements of the actus reus, you can have no
defence here. Now what if the arson-committer is insane? The element of fault
(recklessness or intention) falls away (as well as the marked departure from the RP
standard). Example of a sleepwalking murderer (Parks p. 37)… So, the ability of the
prosecution to prove fault beyond reasonable doubt is somewhat tributary of the
defences, i.e. the other reasons for which a person should be exempted from the
charges.
Self-defence (or pregnant woman going into labour in your car): intention is
there, but it's in a given context which justifies the otherwise wrong conduct. But there
must be beacons, defending your life with self-defence is not the same as killing to
preserve your property (for instance).
Coercion (duress, pressure) is also a matter (if I hadn't brought these drugs in
Canada, I would have been killed).
Point being: in every definition of criminal liability, there is a number of variables: a
conduct, a fault.
The question of public policy are also always to be borne in mind. In common
law, intoxication is not a defence for assault because it is a general offence and not a
specific offence (e.g. intent to kill). The SCC said that you cannot convict a morally
innocent person. Consequently the hocus-pocus of common law doesn't mean anything
anymore. So the SCC n 1990 said that intoxication could work for general offences: put
bluntly, drugs can get you protected because of the Charter7.
Recap. The element of conduct, that is the voluntary behaviour on part of the accused
coupled with a certain result (thus causation where it is prohibited), is a very complex
issue. very complex element.
–2–
3


Fault. It is an element that can be constituted by a culpable mental state or, in
certain cases, an element of negligence.
So conduct + fault = guilt, unless there is an element of defence or excuse
(which, of course, has to be adequate).
The elements are there, but there is no valid definition of these elements. Must
there be an element of fault in the definition of the offence, and why? Since 1997, the
SCC says it is not possible to have an offence of murder without an intention to kill (it
would go against the Charter).
When is it appropriate or legitimate for there to be negligence (and how is it to
be defined) to be the standard? Can some criminal offences include no element of fault?
How is the construction of a criminal offence justified?
III. Sources of the Criminal Law.
1. A BIT OF HISTORY…
History 1. 1. One Criminal Law for All of Canada
Historically, the Quebec Act (1774) decided that the common law of England
would apply in what was to become Canada. The Confederation brought up the
question of the organisation of criminal law. John A. MacDonald decided it would be a
federal matter8, so it would be uniform nation-wide. However, the provinces have the
ability to set up the machinery of Justic (and prisons for up to two years minus one
day), but Parliament decides of the offences (and administrates the penitentiary, two
years and above).
Quote
1. 2. But What is Criminal Law?
The Constitution allocates Parliament the jurisdiction over criminal law (s.
91.27 CL67). But what is criminal law anyhow? How can criminal law be distinguished
from the rest (penal law, mostly)? In penal law, there is a prohibited conduct and this
conduct can bring a penalty. This applies to murder as well as to breaches of the
Highway Traffic Act, of provincial jurisdiction. So penal law is wide, but the
Constitution (s. 91 and 92) obliges us to make the difference between criminal law and
non-criminal law. Is criminal law only a mask to take away provincial jurisdiction? In
the mid-20th century, Lord Atkin said: "criminal law means prohibition with a sanction"
attached. We have seen this is not enough. In the Margarine Reference in the 50s, it
was said criminal law was concerned with public safety and so on. Subsequently, the
SCC did discuss it, but did not reach a decision as to, for constitutional purposes,
criminal law is. .
Eg. In the mid-80s, Parliament enacted anti-tobacco legislation. The SCC found
it valid in part because it felt under criminal law: was this really criminal law?
So, there is a notion of penal liability, which has a real meaning in the
constitution set-up, provinces can create penal offences on property, f. ex. (92.15
CL67). p. 18.
p. 18.
CCRF
2. TODAY'S SOURCES.
2.1. The Canadian Charter of Rights and Freedoms.
Another side (the dark side, shall we say) is the Charter: ss. 8 to 12 are the truly
–3–
4
relevant provisions: they are concerned with "adjectival" law, i.e. matters of procedure
and evidence. Legal rights are as follows:
 s.7: Life, liberty and security of person (in accordance with principles of
ss. 7 to
fundamental justice)
14
 s. 8: All searches or seizures must be reasonble
 s. 9: no arbitrary detention or imprisonment
 s. 10: when arrested or put in detention you have the right to (a) be
informed (b) silence (c) habeas corpus.
 s. 11: proceedings in criminal and penal matters
 s. 12: no cruel or unusual treatment or punishment
 s. 13: no self-incrimination (except perjury)
 s. 14: right to an interpreter
s. 7
p. 18
p. 31
S. 7 has a scope that encompasses both adjectival law and substantial matter.
Why is that? In the BC Motor Vehicle Reference, one of the questions that came up was
about the scope of s.7, mostly as to matters of substance (p. 18). At the first go-round,
the law officers of the Crown said it was only matters of procedure and evidence. The
SCC said no: if there is a right to life, security, etc., it means the Courts are empowered
to review the content of the criminal law and decide if it is compatible with principles
of fundamental justice. So yes Courts can review the substance of criminal law,
whether common law or statutory law. Constitutionally-speaking, this means, the
Courts can review virtually anything Parliament enacts. This would also give the
Courts to define the ambit of defences (as well as offences, as seen above).
It is this power that was self-given to the Courts that made them say you
couldn't commit murder without the intent to do so (it'd be against fundamental justice).
As an illustration of this, came the cases of Vaillancourt and Martineau (p. 31), about
constructive murder: applying the conclusion of the BC Motor Vehicle Reference,
someone argued constructive murder made no sense for there was no intent to kill. The
SCC said: that's right.
But then people started looking at all that could be struck down, but except
felony murders, there have been very few instances. So s. 7 is not the runaway engine
some thought it'd be.
This doesn't mean s.7 was rendered useless: it was used in other circumstances.
Take duress and intoxication, it is always there.
2. 2. Statutory Law: the Criminal Code and more!
While the Constitution is the first source, first as in supreme, there is afterwards
statutory law. What does it include? First, the Criminal Code, though it doesn't contain
everything (it is a corruption of the civilian idea of a code containing virtually
everything). There are also scattered statutes all over federalia (think Income Tax,
Customs, Bankruptcy Act). The Criminal Code is the consolidation of the traditional
core of criminal law: offences against the Crown, the person, property, etc.
Hist.
2. 3. Common law.
The criminal law that came from the UK came mostly with common law. It is
still the case for most part of the English criminal law (there is a common law murder,
–4–
5
for instance). In Canada, there was somewhat of a necessity to clean up common law
on crimes, that came with the Confederation (because the common law wasn't the same
anywhere and MacDonald thought there had to be a consensus on criminal law).
Between 1867 and 1892 a few attempts were made to make the criminal law thorough,
but nothing as ambitious as the Act of 1892.
In the 50s, however, there was a vent nouveau which led to today's Code (even
if there have been thousands of amendments, the structure and the outline remain the
same).
This doesn't mean the common law was completely displaced: while in Canada,
there are no more common law crime, the history remains relevant. While it prohibits
new common law offences, the Code preserve the ability for the Courts to find common
law defences (necessity, for instance, Dudley v. Stevens sailors on the open see who ate
the sailor boy to stay alive: the SCC only answer this in 1994 in Perka where is was
said necessity exists, but no it the Perka case). There is also the defence of entrapment:
not an acquittal but a stay of proceedings. Entrapment on part of public authority,
Courts decided, is sufficient to bar culpability.
Finally, even if you have some sort of statutory definition of defence, common
law can be invoked to modify the scope of the statute. It is problematic mostly as to
duress and self-defence.
Recap
Recap.
 Whereas ss. 8 to 14 are more procedural, s. 7 of the Charter encompasses the very
broad principles of fundamental justice, thus enabling the Court to review virtually
anything Parliament has enacted.
 Statute-wise, the main source for the description of offences is the Criminal Code,
but it's just a big statute because other offences are scattered throughout other
statutes.
 Finally, common law offences have been repealed (and when relevant included in
the Criminal Code) but defences remain (which could be problematic where the
common law and the statutory defence don't coincide).
B. BASIC PRINCIPLES.
I. The Principle of Legality.
Pple
1. PRINCIPLES AS SUCH.
The basics proceedings attached to all criminal offences are found in the
principle of legality. It applies to all criminal offences, though it too has evolved over
the years. It states that nothing can be considered a crime unless it was a crime at the
time it was committed (no retroaction on the definition of crimes9).
Also, whatever the definition of criminal liability is it must be sufficiently clear
so one can now what his offence is. It doesn't mean all the citizens are supposed to
know the extent of the law (though ignorance of the law is no defence), it means the
definition has to be made in terms that are clear, definite, not vague or too broad.
–5–
6
Illus.
In Nova Scotia Pharmaceuticals, the Court was asked to see if it the offence of
lessening competition unduly was incompatible with the principle of legality. The SCC
stated that the principle dealt with vagueness (not clear as to what is wrong) and
overbreadth (reaching too far). One can lead to the other, but in the Marijuana Case,
there was overbreadth, not vagueness.
In Heywood [C. 27] previously convicted for a sexual offence was, by law,
prohibited from being in a park. He was found there, obviously taking inappropriate
pictures. The Court stated that the overbreadth must be judges in relation with the
object of the legislation. Does the legislation overshoot the legitimacy of its purposes?
But does park mean only municipal parks or also natural parks, say, in Banff? In this
case, the reach is extreme.
Of course, the overreach is not always geographical; it could also mean reaching
too many people or a period of time that's too long. In Nova Scotia, Gonthier J.
described a principle. However, in Heywood (and others), he dissents from the majority
on the application of the principle he himself set. Does this mean the principle of
legality is vague (how ironical)? But it doesn’t take away from the importance of the
principle itself and its three components.
There is yet another principle, not always used, but sometimes, yes. It is the
principle of strict construction, that is, if a question of interpretation arises, the more
favourable one shall be preferred (because the power of the State could go against the
liberty and freedom of an individual). This is part of a larger, yet rather undiscussed,
principle: the State must define the terms of the liability that can be imposed upon an
individual as precisely as possible. Decided in the 14th-century Parlington??? case (a
taxation matter).
Limits
2. LEGITIMATE LIMITS.
Architecture of the criminal law: what are the legitimate limits of criminal law?
How should the fundamental values of a given society be included to the law? Think
prostitution, pornography, simple possession of marijuana, hate speech. So, what is the
legitimate use of criminal law? Can the Constitution help?
The Malmo-Levine case raised the question of there being a legitimate use of
criminal law only if Parliament could identify direct harm made to others flowing from
the breach of the prohibition (aka the Harm principle).
In Zundel and the other (Keergstra), some fundamental questions about the
freedom of expression where asked. Was the kind of speech they used protected by the
Charter? Yes, for virtually all forms of speech are protected10. This is where s. 1 kicks
in. Think CHOI-FM.
Recap
Recap. The principles of legality can be summarised as follows:
 Criminal law is not retroactive: what is considered a crime has to be considered a
crime at the moment it was committed.
 A criminal offence must be understandable in its scope, that is, it cannot be vague
or overreaching (Nova Scotia Pharmaceuticals).
–6–
7


Of two equally plausible interpretations, Courts should favour the one that is less
restrictive of the people (because the power of the State is to infringe on the liberty
of individuals).
The Harm Principle: criminal law can be used only is Parliament can identify a
direct harm made to others flowing from the breach of the prohibition (MalmoLevine; Caine).
II. Presumption of innocence.
1. GENERAL STATEMENTS
Presumption of innocence is the central topic of criminal law. There isn't really
an order, a hierarchy of the principles of criminal law (values move around according
to times and places, take, f.ex., homosexuality, abortion, prostitution). However, within
the principles of fundamental justice, there are conditions that are to be met, though we
are not to be tied to a closed list.
2. LEADING CASE: WOOLMINGTON
Woolmington marks the first time the House of Lord makes a general statement
about the presumption of innocence. It also looks at the way the trial is done: jury and
everything.
CASE
Woolmington v. D.P.P. [1935] A.C. 462 (UK) [C. 261]
Facts. Violet left Reg to live with her mother. Reg, who worked on a farm, wanted to threaten her to
commit suicide so she'd come back (there was a letter that could be understood as a suicide note).
Reginald Woolmington killed his wife Violet with a sawed-off [this could involve forethought]
shotgun. He claims it went off by accident and that he never intended to kill her. There was a witness
(a neighbour who was the aunt of Violet): Reg gave her the bad eye. Arrested he told the police: "I
did it [does this say he killed or murdered her?]: jealousy [sounds like a motive], her mother took her
away from me, I wanted to get her back and did all I could."
History. A first trial (it was brought on very rapidly) was aborted; a second trial was set (doublejeopardy!). And then he appealed. Avery J. did say he should have been happy to be represented by
the Poor Prisoner's Relief Fund (especially since the penalty was death). He went into appeal
because the instructions to the jury made him "guilty unless proven innocent".
Questions. Did the trial judge err in putting this burden of proof on the defendant and by inducing
this idea of malice in the jury?
Holding. Yes (acquittal).
Reasoning. The jury was misdirected. It is the Crown that must prove that a voluntary act of the
defendant resulted in the death. For there to be murder, it must also be proven –by the Crown still–
that there was malice on the part of the defendant. And this must be proven beyond reasonable
doubt.
Ratio. Defendant can hold the Crown in shackles by providing contrary evidence but the burden is
never on him, otherwise the "beyond reasonable doubt" concept would be useless and, even 50-50%
case, the defendant would loose.
Comments. Think Oakes test.
This brings us to Woolmington. The judge said: "If you are satisfied that Violet
Woolmington died as the result of Reginald, the law of England makes the act
voluntary unless Reg's side proves otherwise." Or, we have seen that two things must
be proven: first that the gun killed Violet, second that the killing was intentional. The
proof of intention is thus on the Crown, not the defence as the judge told the jury: the
–7–
8
presumption is necessary to the offence, it cannot be removed. It goes further than that
because in the end, it's the whole of the verdict that'll be changed: ok for an accident,
but what if it's duress? Self-defence? If the Defence has to prove everything, the Crown
wouldn't have to prove everything, which is contrary to the principle that's the golden
thread of criminal law [C. 265 2e par., l.8] "Throughout the web of the English
Quote
Criminal Law […] it down can be entertained".
So those instructions in Woolmington would be inconsistent with the provisions
of
the
Charter
(s. 11(d))
Charter
One of the first cases brought up in criminal law under the Charter was a case
(Oakes) of narcotics where unless proven otherwise the accused was presumed of
having had the drugs for traffic. This is not too Charter-y, but if the Charter hadn't
been there, Courts would probably have used Woolmington, where the principle states
that the jury must be satisfied with the fact that the Crown's evidence disproves the
Defence's thesis. Only exception at common law: insanity and statutes.
What's changed under the Charter is that any mandatory presumption or
reversed onus is going to be incompatible with the Charter (unless justifiable by s.1,
which is usually the case11).
ItoJ
Recap
P&E
3. WHAT IS REASONABLE DOUBT?
There is no real definition of the reasonable doubt. In R. v. Lifchus (1997) [C.
280], the SCC tried to provide trial judges with a model jury instruction on reasonable
doubt (which led to a fear that Lifchus be cited word for word). However, there was a
contradiction in Cory's judgement: he said that the reasonable doubt should be based on
common sense (layman's term) and, later says it should not be treated as everyday,
ordinary language (distinct legal meaning). Pour rendre justice, it was decided that the
reasonable doubt wasn't the layman's because that would be a gut feeling and that you
require a reason. But in the end, their definition looks pretty much like what a layman
would think.
Recap. Very important also is the presumption of innocence that is, that one is innocent
until he is found guilty beyond a reasonable doubt. It is only in Woolmington that the
House of Lords affirmed this principle, stating it was "running through criminal law
like a golden thread". Today, this principle is entrenched in s. 11d) of the Canadian
Charter, and was applied in many cases, for example Oakes, or Vaillancourt and
Martineau.
That being said, what is a reasonable doubt? There is no definition though in
Lifchus, the SCC tried to provide one
3. A TRIAL: PROCEDURE AND EVIDENCE
What makes bits of information evidence? Witnesses: the police officer (what
Reg said afterwards), the neighbour/aunt (that Reg went in, and out, that meanwhile:
identification –crucial!, something was shot), possibly the mother, the farmer
(behaviour, identification of gun), autopsy (death caused by shotgun that couldn't have
been self-inflicted). Facts don't exist by themselves, they exist because of evidence.
Without evidence, there is no case: it must be admissible and meet the conditions of the
law of evidence: then you might get a verdict of guilt.
–8–
9
La valse des interrogatoires et contre-interrogatoires. Crown cannot compel
accused to testify (self-incrimination). However, the Defence can bring him up (bring
up an equally possible theory: he can be cross-examined and it is not said he'll be
believed).
In this case, the only possible defence (as a tactical matter) it two-fold: first,
there's still a reasonable doubt; second, the doubt looks better if there's an equally
probable theory. This could lead to the jury finding a reasonable doubt.
A criminal trial goes as follows…
 After the judge has made his introductory remarks to the jury, it is opened to the Crown (and also to
the Defence, though they usually wait) to give preliminary remarks to set the points which will be
assessed (there are limits, of course).
 Witnesses of Crown
 Cross-Examination by Defence
 If needed, Defence can call witnesses (amongst them, the accused, usually the first one to testify)
 Cross-Examination by Crown
 In Canada, if the Defence doesn't call evidence, it can address the jury last, if it does, it must
address the jury first.
 Final address to jury by both parties, pressing their position, but cannot be inflammatory 12.
 If judge only: decision (or deliberations). If jury, final directions (summing up) to the jury by the
judge: overview of facts, issues of law, attention to im/permissible use of evidence, consider the
burden, unanimity (here, otherwise, mistrial). Lawyers are present (though they have often already
asked the judge to focus on some things, they are sometimes asked: "Did I forget anything" by the
judge – if that's not said and you're the defence lawyer, you can easily use it to file an appeal), so is
the accused (unless he agreed not to be present or was disruptive).
Two mains appeals: error in law by judge or misdirection of the jury.
C. ELEMENTS OF GUILT.
I. Conduct: the Actus Reus.
Def.
1. INTRODUCTION.
Apart from removing the menace of thought crimes (think that Tom Cruise
movie), the element of conduct is there to promote responsible agency. That involves
an element of conduct over which there is a certain conscious control (two elements).
[C. 289] Conduct or actus reus must be voluntary, i.e. deliberate, chosen in the
sense that the accused must have the ability to control his actions. Consciousness alone
is not sufficient for there to be criminal liability because one can be conscious of
something and unable to control it.
¡! In cases of strict liability, you cannot use unintentionality as a defence but
you can use involuntariness.
2. ACTS, OMISSIONS AND STATES OF BEING: VOLUNTARINESS.
2. 1. Voluntariness: introduction
Voluntariness: sometimes, one will hear about moral involuntariness [R. v.
Ruzic, C. 291, p. 50]: what does it mean?
Quote
"Punishing a person whose actions are involuntary in the physical sense is unjust
because it conflicts with the assumption in criminal law that individuals are
autonomous and freely choosing agents: […]. It is similarly unjust to penalize an
individual who acted in a morally involuntary fashion. This is so because his acts
–9–
10
cannot realistically be attributed to him, as his will was constrained by some
external force. [Emphasis added]
2. 2. Assessing Contemporaneity
Though there might seem to be a choice, under duress, for instance, there is no
choice. But there is a difference between physically involuntariness and other types of
involuntariness (mostly moral), though there are similarities.
The extract of Ruzic makes it clear that the idea of voluntary conduct has been
recognized by the SCC as a principle of fundamental justice. Of course, it didn't take
the SCC to discover that: it has been embedded for many years in criminal law, but it
was made formal.
2. 2. 1. Dealing with acts, continuing acts and omissions
[C. Intro:] Action: most offences require a positive act. Inaction (omission) can
lead to an offence but policy-wise it is trickier, always this reluctance to say what to do.
Sometimes, there is a general duty (everyone must do x and it is an offence to not do so,
art. 2 of Qc Charter) or a statute says so (the Criminal code for instance, s.219).
CASE
Reas.
Fagan v. Commissioner of Metropolitan Police [1969] 1 Q.B. 439 (UK) [C. 292]
Facts. Fagan drives car on constable’s foot by accident. Constable tells him to get off and Fagan, to
wait (in much harsher words). Car engine at some point turns off without apparent reason, is started
again by Fagan who backs off.
Question. Can Fagan be charged with assault by the constable, as he was in first instance?
Holding: yes (guilty).
Reasoning: Defence argued that there was no intent to drive onto foot: leaving the car on the
constable's foot was an omission: an assault involves some kind of performance of an intentional act,
so a mere omission cannot be an assault and mens rea did not coincide with actus reus. Majority sets
the "continuing act theory": it's the whole of the sequence of events that constitutes the AR, as long as
the MR occurred at some time during the sequence (according to the Courts, it did when he switched
off the ignition and told the officer to wait), there is contemporaneity (and an action) and thus, liability.
Dissent. Fagan's waiting was an omission, not an act. And omission and no duty recognised by law
amount to nothing: acquittal.
Ratio. A series of events can be treated as one long actus reus, so that even if the mens rea appears
only at one point, there can be the indispensable element of contemporaneity. Dissent. If there's an
omission but no duty recognised by law, there can be no criminal offence.
Comments. R. v. Cooper (1993) [C. 271]: guy strangles his wife and fall asleep. Courts say he saw it
coming at some point before falling asleep and that is enough for AR to coincide with MR.
There are many ways to see this. Fagan was asked to move the car and moved it
onto the Constable's foot (accident). Note that at some point, there is awareness of
Fagan's car being on the Constable's foot.
However, this innocent act could become culpable if a mens rea is
superimposed (in the staying over the foot): this only works if all of this is pictured as a
series of continuing events.
Another theory is the one of an omission: the problem is with not taking the car
away, not the series of events, just one mean omission13. Assault by omission? Doesn't
sound too Christian to me: as far as we're aware, there is not general proposition of law
that creates a duty of care, so omissions are pretty much out.
So these two theories lead to different results though they both deal with the
problem of contemporaneity.
–10–
11
Between realizing he's on the Constable's foot and refusing to move, there is a
very short moment for a choice to be made. This would come closer to the one
continuous event theory.
Danger of thought crime: can an accident (actus reus) result in an assault? No
because there is no contemporaneity though the account satisfies a prior mens rea.
But how can doing nothing be culpable?
So far, for the omission theory, we have a mental act on Fagan's part: he
chooses to stay on the foot. What's missing to make this culpable? A duty, for instance,
a duty not to cause harm… So if there's no duty recognized by law and an omission,
end of case: acquittal.
CASE
Reas.
R v. Miller [1982] 2 All E.R. 386 (UK) [C. 295]
Facts. Miller was an idiotic squatter who lit a cigarette and fells asleep. Upon waking up, he
realises the mattress was ablaze. He simply changed rooms and went back to sleep. Obviously, the
house caught fire.
Question. Can Miller be charged with arson, as he was in first instance?
Holding. Yes (guilty).
Reasoning. The Court of Appeal used the "continuing act theory": unintentional act followed by
intentional omission to rectify amounts as an intentional act. Mens rea is the recklessness and a
reckless omission is faulty enough for charges of arson. House of Lords said the "duty theory",
though similar as to the conclusion was better in terms of judicial logic: who creates the danger
has the duty to counteract.
Ratio. An unintentional act followed by intentional omission to rectify amounts as an intentional
act
Comment. Liability out of omission without statue? Déguiser en accident.
When breaking down the frames, Miller is somewhat similar to Fagan. Here,
the actus reus is setting fire to property. The mens rea for arson would be to want to set
fire to destroy property. In this case, the burning down was an accident: no mens rea.
How can this be made "fit" arson? The only conscious act that ever took place is the
lighting of the cigarette and the leaving the room. There is nothing criminal in both
these acts. Unless the voluntary act is redefined as to fit the requirement of an act:
either by finding the omission is made culpable by statute or by
Always a problem of opening liability for omission to an infinite series of event
(with no duty): whatever act could be followed by an omission to do something else.
The creation of duties for "creating a risk" could make Miller culpable but it would also
open floodgates.
Reasonable person standard: in Canada, there exists such a provision for arson
by negligence [C. 326, s. 436(1)], but in Miller, there is no equivalent.
Both theories in Fagan are to be sorted out by the jury. Both the continuing act
and the omission theory have problems, the former superimposed something
blameworthy on something that was blameless at first, the second could make anything
change into an omission, which is rather limitative (presence of legal duty, themselves
limited).
What would suffice for a legally defined duty? Does it have to be imposed by
the Criminal Code or another federal statute? Is non-compliance with a provincial
statute? And common law duties (such as the ones found in negligence)? Hey– it has to
be discernable, be public (which makes us go back to the principles of legality)! But if
this is enough for tort law, is it enough for criminal liability also?
–11–
12
(case)
(case)
In Cuerrier [1998] 2 SCR 371 [C. 315] where the guy did not tell the woman he has
sexual intercourse with that he was HIV positive. They consented with part of the
information: could he still be held liability for sexual assault? If a duty of disclosure is
to be understood in the Code, yes. But the problem is it doesn't say so. Whatever, the
SCC has decided to do some reading in. But it creates a duty were not existed before:
this goes back to a common law crime! How such a condition be justified in light of s.
9 of the Charter? So finding a duty out of common law, which could lead to culpability
for an omission, wouldn't this go against the whole idea of s. 9?
So, what's the scope of judicial authorities to create not only new offences but
also new duties? Also, the Jobidon story of the friends who consented to fight, but one
died: so there was full consent of application of force [obbiche: as far as I'm concerned,
he stopped consenting as he became unconscious]. However, the SCC said you can't
consent to your own death. And you can't give a valid consent for the application of
force to cause bodily harm. Hey, the Code says nothing. The SCC says: no, it's
reprehensible. Same problem. Is that a duty not to engage in certain types of conduct?
Student question: an offence is always accompanied by a sanction, which is usually set
in the form of a maximum.
[omissions] it is part of the law that there is no duty to report a crime (at
common law there was misprision of felony and treason). There is also no obligation to
come to somebody's assistance (unless in P.Q., art. 2 of the Quebec Charter). So duty
for failing to act…
2. 2. 2. Omission + Duty of Care = Offence = Sanction
So, we said that the element of voluntariness has to be there for omissions as
well. It has to be demonstrable that the conduct was within the conscious control of the
accused.
We also saw that you needed a duty, but what is a sufficient duty?
CASE
Moore v. the Queen [1979] 1 SCR 195 [C. 301]
Facts. Moore biked through a red light and was stopped by a police officer to whom he refused to give
his name.
Question. Did the BC Appeal Court err in charging Moore with unlawful and wilful obstruction to a
Peace Officer?
Holding. No. Appeal dismissed (guilty).
Reasoning. The bicycle is not a vehicle by the means of the Motor Vehicle Act, but a cycle, the owners
of which have the same rights and duties as drivers of a vehicle (this is all about interpretation, baby).
This means Moore wasn't supposed to go through a red light and the officer did have a duty to find out
his name. Moore, in refusing to collaborate, created an obstruction to the process. And this has nothing
to do with the Charter. Dickson's dissent. Any duty to identify oneself must be found either in
common law –I'm not going to create one [C. 307 par. 42]– or in a statute –the majority's reasoning
doesn't convince me. Since the omission put forward in this case isn't included, it cannot give rise to
liability (the policeman's duty did no imply a duty for Moore).
Ratio. The Motor Vehicle Act creates a duty and all vehicle, whether motored or not, have the same
rights and duties.
Comments. Fagan and Moore are both rude. But I think this is far-reaching for an omission: if it is a
crime to refuse (or omit) to give our name, address to police, can it truly be said that we have the right
to remain silent in Canada?
–12–
13
P&E
CASE
Disc.
For there to be an offence, the Crown has to prove a number of things: was there
a duty to identify oneself to a police officer. If no such duty exists, then Moore has to
be acquitted. There could be a duty in a statute, such as the one of the Motor Vehicle
Act but we saw a bike was not a vehicle (but that's all interpretation). The majority
created a "statutory scheme" so that a statutory provision could be extended to bike
riders and make Moore have a duty to identify himself. But the dissent doesn't find this
convincing and says it doesn't find a duty at all. Now, if statutes don't provide anything,
as is the case here, does the common law give you a duty? Common law: is there a
general common law obligation to identify yourself to a peace officer? Of course, this
duty could be narrowed down or made wider: it's all in the definition of the duty. If
there's a duty, there's a power on the part of the State: frrrrrrreedom!
R. v. Thornton [1991] 3 CR (4th) 381 (Ontario CA) [C. 307]
Facts: Thornton donated blood knowing he was HIV positive. He knew it and donated blood anyway.
He was charged under s.180 Cc under common nuisance [C. 308] (which requires an unlawful
act/failure to discharge a legal duty and endangers the public/obstructs the public enjoyment). The trial
judge found a duty within s. 219 (criminal negligence).
Question. Is this correct?
Holding. No.
Reasoning. Legal duties are found within statute or common law. Giving contaminated blood isn't
prohibited by Parliament, but there's the Donoghue v. Stevenson principle of “refraining from conduct
that will injure another” and that duty was breached. Of course, the duty is much broader than the
actual problem (it doesn't create a new offence, it takes what's there).
Ratio. “S. 216 imposed…a duty of care in giving his blood to the Red Cross. This duty of care was
breached…this common nuisance obviously endangered the life, safety, and health of the public.”
[actually, it's Lamer of the SCC that says it in dismissing a further appeal in five lines]
Comments. Does this establish larger principles of criminal responsibility for omissions?
ALTERNATIVE
Same problem of interpretation that arose in Moore arises in Thornton. You can
only have liability is you have a duty. There is no statutory duty, but you can find a
duty at common law, and here, you can, and it will suffice for an assessment of
criminal negligence, which would suffice for common nuisance. So, what would the
duty be: RP, Donoghue v. Stevenson or art. 1457 of the civil code (but is that criminal
law or civil law: tortuous liability). So: non-criminal law can be a sufficient foundation
for criminal liability. But this is very broad, blurs the line between criminal and civil
wrong and all torts could lead to criminal liability. This raises a serious question as to
the scope of duties that'll suffice for criminal liability.
There is not yet a satisfactory solution in criminal law to the problem of
knowing whether common law duties are sufficient to create duty that could lead to
criminal liability. He thinks it's dangerous: it takes you very close to the judicial
creation of crimes, it makes you very close to the Charter principle of legality, and it
could also have ramification as to retroactive criminal liability as well.
But what about provincial statutory duties, are they "enough"? There is some
authority for that, tough maybe somewhat dubious today (because decided in the mid50s), and the answer is yes, a breach of provincial duty in hunting manner could give
rise to liability for manslaughter.
The SCC was obviously trying to punish Moore and find a way to do so 14. And
–13–
14
once again, the question is: what are the limits of the duty.
There is no Cc provision regarding "intolerable behaviour" with a duty of care
(per s. 219). That being said, another problem in Thornton is that the Red Cross
checked the blood and the HIV+ blood didn't go through, so there was no bodily harm,
so you can't use s. 220, 221. (Of course, you could argue that the potential
transmission…) There is both a problem with duty and causation.
2. 4. States of being
2. 4. 1. Status Offences
Can you have an offence for being there? Say, being found in a gambling house or
taking part in a group that has criminal activities (whether biker gangs or terrorist groups)? If
so, you have to redefine the actus reus so that more than status there be conduct. [C. 316 on
terrorism: is there an element of conduct? Actual act and knowing it'll be terrorist-linked? Isn't
it broad?] Take Charkoui, immigration case at the FedCA where the language is very strong.
Charkoui argued that whatever the concerns of security may be, there is no way we'll throw our
values overboard. And the Court says: "Things have changed: the level of individual protection
from the State has diminished, get it?" Prof's being heated about the slipping away from the
presumption of innocence. Same issue raised in December 6th by a House of Lord sitting 9
lawlords (instead of 5, and the government lost 8:1).
[C. Intro:] Status can sometimes lead to problems: R. v. Larsonneur [1933] 24
Cr. App. R. 74 (C.C.A.) (UK), [C. 316]. Larsonneur was given a leave to enter the UK.
When her visa was revoked, she went to Ireland. She was ordered deported and,
forcibly, returned to England where she was charged and convicted as an alien to whom
leave to land in the UK had been refused. However, she did not re-enter UK voluntarily
(no actus reus), but since it's a statute, that wasn't a defence. Terrorism, gambling
houses, brothel, vagrancy (repealed) are treated the same.
2. 4. 2. Possession
Usually, when talking about possession, we mean control. But do we
necessarily mean manual manipulation or just easy reach? What is the relationship with
the mental state? If you are found guilty of, say, possession of cocaine, voluntary
possession is an actus reus, which you can negate by proven you didn't know you had
it. You can also contest the mens rea by saying you didn't know it was dope (Beaver).
Possession in deterrence goes further than manual control; Cc s. 4 [3 as it was
then]. Consent is more of a notion of acquiescence; you cannot have possession
withouth physical control. Questions sartriennes sur le libre-arbitre et l'absence de choix et
l'acquiescement à cette absence de choix. Question: possession in criminal law is a federal pan Canadian
matter, whereas possession in civil law...
CASE
R. v. Terrence [1983] 1 SCR 357 [C. 317]
Facts: Terrence was a passenger in a car which turned out to have been stolen. He says he didn't
know that he was only invited for a ride in a new car and discovered only on the 401 15 where the
driver was speeding (the Court heavily doubts this).
Question. Is it indictable for theft?
Holding. No (taken he didn't know at first). Acquitted.
Reasoning. Ritchie J. and the Ont. C.A. He was not in possession of a stolen vehicle, for he didn't
know it was stolen. He was a mere passenger, having no control over the car.
Ratio. Knowledge and consent (requiring control) are needed for constructive possession.
–14–
15
Comments. This is the first time the proposition of the Cc (my ratio) is approved of by the SCC.
P&E
Recap
2. 5. Circumstances [C. 322]
Elements of fault in the offence have to be proven. This is why we looked at
statutory provisions where the context mattered or not (this context has to be proved).
Some offences have specific ingredients built-in, e.g. assault needs absence of consent.
Recap.
 The first element of guilt is the actus reus, that is the guilty conduct (1) over which
there is a certain conscious control (2). This voluntariness is necessary (some
defences will negate this element, such as extreme intoxication, duress or accident),
as a matter of fundamental justice (Ruzic). Also, the MR must coincidence with the
AR.
 This contemporaneity problem is interesting because sometimes, an act followed by
an omission –which is not considered AR at common law, unless there is a duty of
care– can be treated as a continuing act, thus making the AR and the MR coincide
at some point (Fagan, Miller, Moore).
 What is a sufficient legally defined duty? It has to be found at common law or in a
statute: if there is no such duty (and it's not for judge to create them, per Moore), no
omission to act can give rise to a guilt verdict (Moore). There is, however, still
some ambiguity as to what is a duty (Currier), and doubtful use of s. 218 in
Thornton (where the Ont. C.A. took the Donoghue v. Stevenson thus making noncriminal law a sufficient foundation for criminal law and the the SCC dismissed the
appeal in five lines saying there was a duty of care in donating blood per common
nuisance).
 Finally status offences can only be found if the actus reus is redefined in such a
way that it includes an element of conduct, (even if it's vague, but control is more
than mere acquiescence: Terrence). You could, of course say you didn't know
(attack the MR: Beaver).
 It is the definition of the offence that determines whether the offence is to be
assessed objectively or if the context has to be taken into account.
3. CAUSATION.
3. 1. A (rare) question of fact
[C. 326 to 372]. Sometimes causation is dealt with only upon completion of harm,
sometimes, it is the conduct in itself (drunk driving, even if there's no accident, means a marked
departure from the RP standard). The causal connection is not always easy to make, sometimes
for lack of proof, sometimes because the fault is not a concrete as is a murder.
(quote)
Causation is a question of fact. It is usually not a problem: in Smithers, Dickson
said it is obviously so obvious that the action (or omission) directly and clearly leads to
the charged result that it doesn't even have to be considered. It is only considered when
there is some sort of variable that makes the outcome uncertain. Also, in some offence,
only an element of conduct has to be proven, no causation: say, in fraud, do you have to
prove causation, i.e. an element of economic loss? But this doesn't mean the discussion
should be minimised.
–15–
16
PoL?
CASE
Déf.
PoL
3. 2. What is the standard of causation?
There are two ways of talking about causation. The long way is about tangents
that are the product of feverous professorial minds and are rather disconnected from
reality (intervening causes, multiples causes: it happens but it's rare). The short way is
to state that the standard of causation in Canadian law is extremely low. It had for a
long time, been set by Smithers, but have we might moved away from that standard
with Cribbin, Nette and others. The SCC said that causation will be established if the
actions of the accused have contributed beyond the de minimis range, but a question
remains as to what the "de minimis range" means.
Smithers v. the Queen [1978] 1 SCR 506 [C. 327]
Facts. Cobby and other members of his hockey team racially insulted Smithers who said he'd "get at
him". This made Cobby very upset and he might have been right because despite the fact that he was
escorted by many friends and players after the game, Smithers managed to punch him once or twice.
As he was pushed back by Cobby's friends, but managed to kick him in the stomach. Cobby dies from
choking on his vomit. [Smithers punched, stopped, and kicked Cobby, who died from choking on his
vomit]. The pathologist says the vomiting could have been induced by either the kicking or fear and he
died because of a rare epiglottis malfunction.
Questions. Is Smithers guilt of manslaughter (i.e. act of assault that causes the death but not intention
to cause death)?
Holding. Yes.
Reasoning. Though causation is for the jury to decide (not limited to expert medical evidence), the
rapidity of the death made the causal link stronger.
Ratio. The Crown only has to establish the kicking contributed to the death, outside the de minimis (a
contributing cause that is not trivial or insignificant) range [threshold test]. One cause doesn't have to
be isolated.
Comments. An unlawful act may not be objectively dangerous but one may still guilty of manslaughter
if death follows. Also the other person's poor condition ("thin skull") cannot truly be brought up as an
excuse. How about this is an assault (mens rea for assault), but it ends up being manslaughter, but
constructive manslaughter.
Constructive manslaughter: causing death by means of an unlawful act.
Construction effect: is creating something more out of something less (ex. car,
consent, gun). Any element of fault bearing on the result, even if the fault wasn't meant
to lead to that result. E.g. Constructive murder: intention to rob the bank, kills teller:
before, it was (constructive) murder for all robbers even if only one shot that teller. The
SCC said between 1987 and 1990 said that this was incompatible with the Charter:
there can be no "murder" if there is no intent to kill.
Going back to Smithers, and to Dickson's de minimis threshold. Usually,
causation is a low threshold: not a problematic issue. This case is about causation in the
actus reus.
CASE
R. v. Cribbin [1994] 89 CCC (3d) 67 (Ont. C.A.)
Facts. Cribbin and Reid beat Ginell up and leave him unconscious. His injuries were non-life
threatening but he choked on his own blood and died. Cribbin was accused of manslaughter and
appealed.
Questions. Is the de minimis test of Smithers so low that it infringes on s. 7 of the Charter for it could
lead to a morally innocent's punishment (culpability without foreseeability)?
Holding. No.
Reasoning. Is the de minimis test too vague? The Court says it isn't any vaguer than the but-for or the
–16–
17
causa causans test: it is a substantial connection. Is it too remote? The Court says the actus reus of
murder and of manslaughter are indistinguishable, but that the threshold cannot be said to be too low
because there's a difference in the MR (contra Harbottle). There was objective foreseeability of a risk
of major bodily injury and there is causation (Creighton's think skull rule). No morally innocent would
be punished. And it's fine under s. 7 because the Crown must still prove the act (causation) and the
fault (objective foreseeability).
Ratio. Unlawful act manslaughter is based on objective foreseeability and causation outside the de
minimis range. If court concludes a higher standard of fault then you’d need a higher standard of
causation, so since standard of causation is low in this case, so the element of fault should remain as
objective.
(case)
PoL
(cases)
CASE
(cases)
This case is built on the fact that Cribbin says his action is too remote: but that's
all about evidence. But he decided to argue s.7 of the Charter. Causation: the Smithers
test would be too poor to fit the culpable homicide theory; it's too low for culpable
homicide: maybe it's ok for assault with bodily harm but not culpable homicide.
The Court said that the standard of causation couldn't be raised, no matter the
fundamental liberties.
The Motor Vehicle Reference (p. 21) said that you cannot impose a prison term
if there's no fault. In Vaillancourt and Martineau (p. 32), the Courts ruled that murder
involved a certain notion of foresight (these cases lead to the striking down of
constructive murder, and the same argument was used for constructive manslaughter;
however in Creighton, the SCC said constructive murder was ok even though it
required only foreseeable harm not death – so there could be homicide even if there's
no fault: the SCC rejected these arguments constructive manslaughter exist, so any
lesser liability will exists). Cribbin is the same, but instead of focusing on fault, the
SCC is focusing on causation.
R. v. Nette [2001] 158 CCC (3d) 486 (S.C.C.)16
Facts. Mrs. Loski, 95 years-old, was hog-tied and robbed. She had a red garment around her head and
neck and died of asphyxiation.
Questions. What is the standard of second-degree murder (and how should it be explained to the jury):
what should we change "beyond the de minimis range" for?
Holding. It is that of "significant contributing cause", which means the same as "a contributing cause
that is not trivial or insignificant".
Reasoning. L'Heureux-Dubé CJ. (dissent) Thinks there is major difference between "a contributing
cause that is not trivial or insignificant" and "a significant contributing cause" (perceived as more
direct), the former being the equivalent of the "beyond the de minimis" articulated in Smithers (so she's
affirming Smithers). Arbour J. Though a factual causation and a legal causation standard exist, it is not
appropriate in jury charges to formulate a separate causation test for second degree murder. The
causation standard expressed in Smithers is still valid and applicable to all forms of homicide. The
standard, of "a contributing cause of death, outside the de minimis range" means the same as
"significant contributing cause" and the latter should be preferred because it is positive and, thus, less
abstract (so while she thinks she's sticking to Smithers, she's actually raising the standard of causation).
«In a homicide trial, the question is not who or what caused the victim’s death but whether the accused
caused the death, the other factors are insignificant. […] Whatever the jury’s reasons for acquitting the
accused of first degree murder, the jury’s verdict of second degree murder is unimpeachable.»
Ratio. Smithers still applies, even thought the reinterpretation slightly changes what Smithers said.
Comments. So what do we do now? «…a cause that is significant, significant meaning not
insignificant»?!
Harbottle involved a case in which two people, one strangled, the other was
–17–
18
holding the legs down. Was the second guy guilty of first degree murder (substantial),
i.e contra Smithers; but you can also see it about as a case not about causation but
about participation: the standard of cause is still Smithers' but the scope of participation (aggravating element of participation)  not about causation, about participation17.
Recp.
Recap. Causation.
Causation is a question of fact and it's a rare one. In Smithers, Dickson said it
was usually "so obvious that the action (or omission) directly and clearly leads to the
charged result that it didn't even have to be considered" unless something makes the
outcome uncertain. That being said, the standard test for causation as set by the SCC in
Smithers is pretty low: contributing cause beyond the de minimis range. There was an
attempt to raise the standard though s. 7 in Cribbin, but the test was deemed
constitutionally satisfactory.
Then came Nette, where the SCC rephrases the standards, wanting (in majority)
to make it plain English and not plain Latin, but in doing so, they changed the standard,
even if they wanted to stick to Smithers (as pointed out by the minority): by the
majority, because the de minimis range means "significant" (which means "not
insignificant", but judges shouldn't instruct juries with negations): the paradox to the
effect that Smithers is affirmed in a language that modifies Smithers has yet to be
solved…
D. FAULT
I. Fault and Criminal Law: No Fault
1. INTRODUCTION.
[C. 373 TO 410]. Absolute and strict liability, i.e. liability beyond the requirement of a
cognizable act: "should there be more than voluntary act or omission on the part of the accused in order
to establish liability?" More than proof, especially with the Charter, there has got to be a guilty mind. We
oppose "true criminal offences" (mala in se, requiring a presumption of mens rea) to "public welfare
offences" (no fault, mala prohibita, usually ok, but bad because of public interest), the latter behind the
product of provinces and territorial authorities: they are regulatory offences.
Moving away from the actus reus, onto fault, in the criminal context, we are to
see the minimal requirements imposed by the Charter, the meaning of the elements of
the different mental states, and their being read-in if the definition of the offence is
silent about them. We have already seen in Fagan and Moore (pp. 10, 12): whatever
(PoL)
the element of fault it, it has to be contemporaneous with the offence.
Another major question: given that negligence encompassed no mental state
Q
(that is, it's an objective characterization, without regard to the subjective mental state),
under what conditions could there be criminal liability for criminal negligence?
Con
2. THE CONSTITUTIONAL SOURCES OF PENAL LIABILITY (NOT JUST CRIMINAL)
There's s.92(15) CA67 gives provinces the possibility to "give teeth" to the
matters falling under s.92. There's also the big s. 91(27), which gives express power to
Parliament for creating criminal offences. But does this exhaust the possibility of
federally-created offences? No, no, no: you can be convicted under the Food & Drugs
Acts for the mislabeling of drugs. But it isn't criminal law per se (no real "moral"
element and it doesn't give you a criminal record, the procedure is different and
–18–
19
lighter); it's another penal-like offence. Like a s.92(15) for a government that already
has the power to create criminal law: problem is that there is no justification for this
out-of-91(27) penal power whereas there is for s.92(15). That's the problem,
constitutionally-speaking.
92 (15)
Disc.
91 (27)
91other
Fault-base liability
a. Knowingly hunting
without
license,
drinking underage 
true crimes.
d. "True crimes": mens
rea + actus reus, fault,
your classical scheme.
g. By parallel with
92(15).
Strict liability
b.
"Strict
liability":
requirement of proof of
actus reus and disprovment
of fault to the defense.
"Strict liability" blend: the
accused is presumed to be at
fault and has to disprove it.
e. ???
Absolute liability
c. "Absolute liability": the
proof of the mere actus reus
is enough. The defense:
disprove actus reus, for
involuntariness, or mental
illness, for instance; but no
defense of absence of fault.
f. NO
h. By parallel with 92(15).
i. By parallel with 92(15).
Difference between first and third column is that there is no proof of the mental
element (well, fault) in the third one.
p. 21
a. If these are "true crimes", what is the relevance, exclusion-wise, of s. 91(27)? To
which I answer: it's not because there's "true crimes" that they're criminal law
(contra penal law) –they can be labeled so for "analytical purposes" which
doesn't automatically make them 91(27) offences.
b. OK, see table.
c. Rare
d. OK, see table.
e. (1) Can you have a strict liability criminal offence? Wouldn't that be "goddam
unfair" (or rather, since this is labeled a 'normative reason': isn't that inconsistent
with the principles of fundamental justice laid out in s. 7): there is a difference
between littering and murder. There is something fundamentally repugnant in
using the principles of fundamental justice for the enforcement of absolute
liability offences (he says). (2) Can a strict liability offence nonetheless be
enacted upon Parliament under s. 91(27)? It's not settled by authorities, but one
can find there a marked opposition between the presumption of fault and the
presumption of innocence…
f. See e(1). (2) No, it's settled by authorities (BC Motor Vehicle Act p. 21)
g. See a; no real case law (no civil or administrative offences in Canada)  you
still get a criminal record (so not penal), which is, in *his* respectful opinion,
absurd because these "regulatory provisions" are about POGG, econonmy and
not values of criminal law. On the other hand, you can make the argument that
91(-27) should be true crimes and be the same as criminal negligence.
h. See b.
i. Rare
There is no satisfactory distinction between criminal law stricto sensu and
regulatory offences: all we have is a mess arising from Wholesale Travel (p. 21)
p. 21
–19–
20
permitting prison for strict liability offences. The difference is essential: we need a
difference, for coherence and tolerance's sake.
Old L
3. THE EMERGENCE OF STRICT LIABILITY IN CRIMINAL LAW
3.1. The Law Before Sault Ste.Marie
In Canada, before Sault Ste. Marie, there was only a choice between "true
crimes" and absolute liability (not 91(27)) where only actus reus was needed.
3. 2. Sault Ste.Marie: The Recognition of Strict Liability
CASE
p. 28
R. v. City of Sault Ste. Marie (1978), 40 CCC (2d) 353 (SCC) [C. 384]
Facts. The Municipality had contracted out with Cannon Creek and Root River, waste management
companies that dumped pollutants into the river, in violation of the Ontario Water Resources Act.
Issue. Does the offence under the Act require mens rea or is it an absolute liability offence?
Holding. It is a strict liability offence.
Reasoning. Dickson J. Since the aim of the Act is the protection of the environment, that dumping
pollutants in the river wouldn't be a problem if it didn't cause a hazard to public wellbeing, the offence
is regulatory and, thus, requires no mens rea. However, the SCC finds liability cannot be absolute
either because it wouldn't be faire: this is where strict liability comes in, i.e. the mens rea is presumed
and the defendant has to disprove it. Dickson J. thus provides a blueprint for the difference between the
three categories [C1. Offences in which mens rea must be proved by prosecution [the end?
Inference…]  the separation is this passage is analytical and not constitutional (i.e. it's about criminal
MR and that MR only).
]. C. 388-389. «I conclude, for the reasons…». The
Ratio. We now have three offences with regard to mens rea: (1) “true crimes”: the Crown must prove
mens rea; (2) “strict liability”: the accused is presumed to have the requisite mens rea and has the
burden of proof to disprove fault; (3) “absolute liability”: the accused is deemed to have the requisite
mens rea and cannot disprove it.
Comments. Presumption of innocence?
Also, there is, here, an assumption that for something to be a true crime, there had to be an element of
MR. But we've moved beyond that: there can be true crimes with no fault, just criminal negligence (p.
28).
PoL
One of the most important achievements of SSM is the recognition of strict
liability: the Crown will win on proof of the AR alone, but the defense can exculpate
itself by bringing up reasonableness standard, mistake, error, etc. The creation of that
category gave expression to the view that there should be no penal liability in the
absence of fault (idea of fundamental justice): it destroys the stark dichotomy between
absolute liability and true crimes, by introducing strict liability.
s. 11d)
However, the reversed burden of proof cannot be consistent with Woolmington
(and that is assumed, wrongly, here): the court is consciously creating an exception tot
the presumption of innocence (prof. thinks it's indefensible, especially, latter on, with s.
11d) of the Charter?)
Cc
trick
WORDING18. If a statute reads:
• “If X causes harm Y to occur…”  strict liability; burden of proof on accused.
• “If X permits harm Y to occur…”  strict liability.
• “If X knowingly permits Y to occur…”  mens rea; burden of proof on the crown.
• “If X recklessly permits Y to occur…”  mens rea.
–20–
21
• “If X wilfully permits Y to occur…”  mens rea.
Con
CASE
PoL
Pment
4. AND THEN CHARTER KICKS IN.
4. 1. Can a prison term be associated with absolute liability?
Short answer: NO!
Reference re Section 94(2) of the BC Motor Vehicle Act (1985) 23 CCC (3d) 289 [C. 390]
Issue. Is s. 94(2) of the BC Motor Vehicle Act consistent with the Canadian Charter since it creates an
absolute liability offence?
Holding. CA: no. SCC affirms.
Reasoning. About strict liability and MR. If there's no element of blameworthiness, there can be no
deprivation of security, life, liberty: "A law that has the potential to convict a person who has not really
done anything wrong offends the principles of fundamental justice and, if imprisonment is available as
a penalty [as is the case here], such a law then violated a person's right to liberty under s. 7." About the
principles of FJ: principles of FJ are both substantive and criminal (grâce à a broad interpretation of
the principles of fundamental justice); ss. 8 to 14 of the Charter are illustration of the larger concept of
fundamental justice, as of s.7; s. 7 is broader than 8 to 14 so yes, you could argue principles of
fundamental justice under s. 7 if you can't do it under 8 to 14.
Ratio. In other words imprisonment and absolute liability cannot be combined: no mens rea no prison.
But also: s. 7 is applicable to procedural due process and substantive criminal law
Comments. He says corporations can still be found guilty of absolute offences, as s. 7 offers only
protection to human persons (but corporations can't go to prison). Also, can't you violate 8-14 without
violating 11 and 13 (evidence).
Of course, today, it seems pretty obvious, but back then, you couldn't be
satisfied that the BC Motor Vehicle Act was (or not) consistent with the principles of
fundamental Charter, but you also have to be certain s. 7 is applicable to the case.
Before the Reference, we though s. 7 was only about procedural fairness, not the
substance, but the SCC decided otherwise even if all of the testimony given on the
records supported the idea that s.7 was intended for due process only, not substance (as
to which the doctrine of parliamentary sovereignty would remain intact).
Lamer J. said it's not an acceptable argument, s.7 is not restricted to due process,
it has to be extended, which involves that it allows for substantive review of the powers
of Parliament to create different types of offences.
It's up to the Courts to decide if the offence created is consistent with the
principles of fundamental justice. The Courts first have to determine what the
principles of fundamental justice are! But they don't really answer (blahblah, go see the
basic tenants of our system). But s. 8 to 14 have to be regarded as particular instance of
fundamental justice (autrement dit, as examples), they are derived from the idea that
there are principles of FJ. This could mean s. 7 is a sort of residual power for s.8 to 14,
mostly because the Charter has to be adaptable19.
Flowing from this case: since there has to be some sort of blameworthiness for
there to be prison (infringement on ss. 8 to 14) and since the default punishment, in the
absence of sanction, is six months in prison, Parliament cannot have absolute liability
in the Cc or in 91(27). And, as a general rule, if it's in the Cc, it's usually a true crime.
4. 2. Can a prison term be associated with strict liability?
Short (and problematic) answer: YES.
R. v. Wholesale Travel Group (1991) 67 CCC (3d) 193 (SCC) [C. 403]
–21–
22
CASE
Facts. WTC was charged with several accounts of false advertising in violation of s. 37.2 (2) of the
Competition Act, which creates an offence for negligence as mens rea and that shifts the burden of
proof: strict liability. If it was prosecuted by way of indictment, it could lead to 6 years of prison, or by
xxx. The Trial Court said that it did because it established that the accused could exculpate himself by
showing due diligence. Ont. CA said that it imposed a a persuasive burden on the accused to establish
that he exercised due diligence – this violates 11(d) of Charter.
Issue. Does the relevant provision of the Act infringe on s. 7 (FJ) or 11(d) of the Charter (presumption
of innocence)?
Holding. The Act stays 5 (2:3):4.
Reasoning. The legislative objective makes sense; it is more of an evil offence or a matter of public
regulation? The latter: the Act is there to control the integrity of the transactions in the market. Cory
(+1) J.: there is no violation of s. 7, 11d) and therefore, there is no question about s. 1 on either. It's a
regulatory offence and, unlike purely criminal matters, it has to be looked at in context, and the degree
of protection can be lower (presumption of innocence, yes, but it can be applied with less rigor).
Iacobucci (+2) J.: there is violation of 11d) (Lamer's right), but it can be justified under s.1 (for Cory's
reasons: it's regulatory). The difference between the contexts is enough for s. 1 to be applied. Dissent.
Lamer (+3) J.: there is violation of 11d), cannot be justified under s.1, so no need to talk about s. 7.
Says this is crime, no matter the kind, it's criminal and the levels of protection cannot be different
according to the context [406].
Ratio. Not one ratio: because of the weird split, the majority of the reasons is Lamer CJ's, especially
since the reasons of Iacobucci's and Cory's reasons really cannot be reconciled. But the holding makes
that reasoning a dissent as to its conclusion.  There is no coherent principle about the nature of fault
in regulatory matters.
Comments. Wholesale Travel is a mess that permitted prison for strict liability as long as it was not in
the Cc (which seems pretty shallow).
The Theory. If is goes under s. 7 and 11d), it's fine  prison.
If is there's a problem with s. 7 or 11d), then we move on to s. 1: if it doesn't
save it, no prison, if it saves it, then  prison.
Con Q
The Antakiesque Question.
[please carry a dramatic tune]
Q: Is it possible to have a breach of the principles of FJ (which are both
substantial and procedural) that is consistent with s.1? With s.11d), sure, but s. 7?
Wouldn't it be an oxymoron to save a violation of s.7? Same, to a certain extend, for ss.
8 to 14? However, Courts have flip-flopped over that.
[tune fades as student wonders]
Summary of judges' reasons.
s. 11d)?
Is there a violation of: s. 7?
Cory (+1)
Lamer
Iacobucci
Recap
No
N/A
No
Yes
Yes
Saved by s. 1?
N/A
No
Yes.
Result.
Stays
Should be struck down.
Stays.
Recap. Sault Ste.Marie laid down the three types of liability: (1) "true crimes", which
require both MR and AR, (2) strict liability (the AR is presumed and the accused is
guilty unless he can disprove it, by showing due diligence, mistake of fact or no
negligence) and the very rare (3) absolute liability (AR is guilty unless the accused can
prove there was no AR, by attacking, f.ex., voluntariness). The latter cannot give rise to
imprisonment: deprivation of security and liberty cannot be given to the morally
blameless (BC Motor Vehicule Act). It is however consistent with the principles of
–22–
23
fundamental justice and the presumption of innocence to have strict liability leading to
prison (Wholesale travel), as long of the offence is "regulatory" (penal and not
criminal), that is (because such offences are to be looked at in their context and the
presumption of innocence can be applied with less rigor).
Déf.
&
PoL
(déf.)
1. INTRODUCTION.
It used to be thought that mens rea was the only element of fault in criminal
law. Mens rea is a concept of fault, an element of culpability that accompanies the
prohibited act (actus reus): it adds to the AR alone, otherwise, liability would be
imposed for accidents. Typical faults of MR are wilful blindness, knowledge, intention,
and recklessness, states of mind that have to be proven against the accused20 and all
reflect a form of choice (wilful blindness is an alternative to the knowledge, say of
buying stolen property for a very low price).
However, fifteen years ago, Courts found that criminal negligence is a fault: in
the absence of MR, it could be a sufficient standard of fault.
Fault is wider than MR. Criminal negligence is a term, defined in s. 219 of the
Cc. Just as the characteristic of MR is the subjective fault, criminal negligence is an
objective standard or fault, i.e. a marked departure from the reasonable behaviour. That
led to a big change in the perception of fault. This leads to "objective MR": whereas
subjective MR must be proven at the moment of the crime, objective MR means a RP
would have known.
So fault is either MR or criminal negligence. Usually, which goes when is clear,
but not always. What's clear however, is that where the criminal negligence is defined,
is applies as soon as the words "criminal negligence" appears in criminal law.
Philosophically, one could wonder if criminal negligence causing death, causing bodily
harm, causing death by criminal negligence (historically, because of jury reluctance to
convict for dangerous driving), creating dangerous openings in ice, dangerous carrying
of arms, dangerous driving/causing bodily harm is truly all the same, even if the
standard is. A single standard everywhere, that of a marked departure. But what is a
marked departure? Otherwise said, what's the distinction between torts and criminal
law?
II. Faults of the mens reas
2. INTENTION AND KNOWLEDGE [C. 419 TO 444]
[C. 419 to 444] Fault or Mens Rea: the requirements of fault must be defined
crime per crime. Of course, strict and absolute liability are out of order here. I.
Legislative definition of Fault: There is no definition in Canada. A definition has been
codified in the US in 1962, in the UK in 1970, but at best, the (now defunct) Law
Reform Commission of Canada made an attempt.
Déf.
2. 1. Intention and motive
Are motive and intention the same thing? No.
Intention can be either being aware of the virtual certainty, or wanting to, in
which case it looks like motive.
Ex. someone puts a bomb on a plane to call attention to a certain political cause;
–23–
24
bomb goes off. This is the requisite mens rea –perhaps that person really didn’t want to
kill them, but s/he knew the passenger would die if they went ahead (a false alert could
have been enough). This mens rea is culpable. Or see R v. Lewis.
Motive is often a corollary of the intention: as a practical matter, evidence of
motive will always help the inference of culpable mental state. It's not an essential
element of the offence, but it's a tactical element. But it's not often that you have direct
evidence of a mental state –you can't really hear them, see them, they are rarely
spoken21: they have to be inferred –and motive is really helpful, though not necessary.
However, motive and intent are often confused in daily parlour and the
following case might just show why…
CASE
(PoL)
R. v. Steane [1947] 1 KB 997 (UK) [C. 422]
Facts. British actor Steane, living in Germany during WWII, was coerced by the Gestapo into making
radio propaganda for the Nazis. Back to Britain, he charged with treason and convicted of doing
something that is likely to help the enemy (either with desire or just meaning: it's unclear and that's the
problem). He appeals because the trial judge told jurors, basically, that by looking at the act, they were
to find the intention (doesn't work, it's like working backwards: requirement of intent is presumed!)
Issue. Did Steane do something to assist the enemy? Did he intend to do so: what does “…with the
intent to assist the enemy…” mean?
Holding. Conviction quashed.
Reasoning. The problem is that Steane did have the intent to make the broadcast, knowing it would
help the enemy, even if, as Lord Goddard puts it, he did so with the intent to protect his family (that's
his motive).
Ratio. The guilty intent cannot be presumed on the basis of the act being committed: it must be proved
by the Crown.
Comments.
 Duress can't be argued because the offence is treason (which is a shame because it would have
done a much better job, after all, there is a differend, as Glanville Williams points, between a man
who helps enemy to save his family and to earn a pack of smokes).
 Steane seems to be promoting motive in relation to duress more than intent (and does duress
negate intention? is another question). But it's intent we're concerned with.
 Lord Goddard could have done better by requiring “desire to help the enemy” to the offence,
instead of saying he had no intent when he clearly did (it is unlikely Goddard would have ruled the
same way if Steane had done it to get some cocaine because he was a drug addict).
 The Court states that “duress is a matter of defence and the onus of proving it is on the accused”
[425] is incorrect. Inconsistent with Woolmington. The accused never has the obligation to prove
an offence! 22
 Also, it is wrong to say a person is presumed to have the intent of the consequences of his acts in
criminal law (this inference goes against the presumption of innocence – though I guess, as a
synecdoche, we could take Théroux's "Typically, the MR is concerned with the consequences of
the AR"); however, it is OK to leave it to the jury to answer: would common sense lead a man to
intent the consequences of his acts?
2. 2. Desire and Wilful Blindness
CASE
R. v. Buzzanga and Durocher (1979) 49 CCC (2d) 369 (Ont. C.A.) [C. 418, 430]
Facts. Two French Communists activists really wanted a French-language school. In order to make
people react and have the government do something, they made pamphlets promoting hatred towards
French Canadians. Violation of s. 319 of the Cc, mens rea offence. Problem is: they didn't want to
promote hatred, just make people react.
Issue. Since the mens rea wasn't there but the result is the same, are they guilty of the wilful promotion
of hatred?
Holding. Yes.
Reasoning. The word "wilfully" is written, black-letter 281.2(2)23, unlike in genocide [431 bottom],
–24–
25
but like in 386(1) [434]: the meaning should be the same for all offences, but what does "wilful
promotion of hatred" mean? Intentionally doesn't necessarily mean wilfully. À mon sens, ça part du
fait qu'il y avait un choix, mais que les raisons qui ont poussé à ce choix sont les conséquences
logiques qu'on reproche et qu'en bout de ligne, c'est assimilable, même si le trajet a été incident.
Ratio. They had the knowledge of the result (most foreseeable outcome: hatred), and that is enough to
prove intent. If we do not want something to happen, but know it will and do the thing anyhow, we
have intent. Wilfully doesn't necessarily mean recklessly or voluntarily; it can mean with intention
towards consequence. Desire and virtual certainty can both lead to wilful conduct: "wilful blindness"
means "intention".
Comments. From R. v. Tennant and Naccarato (1975), we get that liability can be subjective: the
accused and the reasonable man are deemed to come to the same conclusions or objective, the
reasonable man's anticipation constitutes the basis of liability. For mastermind schemes, think
Bilingual Today, French Tomorrow. And it's written by Martin J.A. said to be the greatest criminal
jurist in Canada.
2. 3. Subjective knowledge and recklessness
CASE
PoL
R. v. Théroux (1993) 79 CCC (3d) 449 (SCC) [C. 438]
Facts. Théroux accepted deposits from investors in a project, telling them he has purchased deposit
insurance. He hasn't and was convicted for fraud. He appeals, saying he committed a deceitful act, but
believed no harm would result (he though that in spite of the absence of insurance, he would do well).
Issue. What is the mens rea for fraud (s. 380 Cc)? Is it objective or subjective? Does there was to be an
intention to defraud?
Holding. You needn't prove the desire to defraud (intention).
Reasoning. MR: "Typically, the MR is concerned with the consequences of the AR". Recklessness
presupposes the knowledge of the consequences and assuming them. A mere suggestion of subjective
knowledge that the property of another is at risk is sufficient to find a mens rea in recklessness: this
means there needn't be an intention to defraud. The problem between element of risk and the actual
intention is it's not very strong: recklessness will do, knowledge isn't necessary24.
Ratio. A mere suggestion of subjective knowledge that the property of another is at risk is sufficient to
find a mens rea in recklessness.
Comments. Once again, the Court defined the mental element for a particular offence. In the definition
of the offence, there is no mention of knowledge, no notion of intention. The AR of fraud is producing
information to lead to thinking something that is not what the other person thinks it is. S. 380 is rather
circular: if you defraud people, by deceit, falsehood or other fraudulent means, you have a fraud. Then
what is the MR? Knowingly defrauding the public (whereas the AR is simply defrauding the public) to
make it differ from misinformation by mistake? Would it make a difference if the word "dishonest"
appeared in the offence?
What is the difference between risk and crime? It's pretty low, the Court says.
What's the difference between criminal fraud and fraud in a contract or in civil law? In
the offence, you have the word "deceit", but the difference between the possibility and
the actual thing is light-years away25.
Difference with Buzzanga is that Buzzanga says "would", Théroux says "could"
(lower threshold).
3. RECKLESSNESS AND WILFUL BLINDNESS.
CASE
R. v. Sansregret (1985) 18 CCC (3d) 223 (SCC) [C. 444]
Facts. Sansregret was a very jealous man. He thought there was another man in his ex-gf's life. So he
broke into her house. Twice. Both times, he threatened bodily harm and had sexual intercourse with
her. The first time, she consented, out of fear (he had a knife), but called the police afterwards
(Sansregrets knew about this), the second time, as he was threatening her, she proposed to “make love”
thinking it would calm him down.
Issue. Is there mens rea (necessary for sexual assault), by means of wilful blindness?
–25–
26
Déf.
Déf.
ItoJ
(recap)
Holding. Yes.
Reasoning. Trial judge said no rational person could believe the victim was truly consenting the
second time, but that the accused was not rational (however disgraceful this could be, Sansregret did
believe in the consent, as a fact). SCC said that the accused knew about the complaint and that there
was wilful blindness. It is important to make the difference between wilful blindness (wfb) and
recklessness (rln) because if Sansregret really though she wanted to make love, honestly, it can be a
defence in recklessness (Pappajohn p. 34) but not in wilful blindness.
Ratio. «Wilful blindness arises where a person who has become aware of the need for some inquiry
declines to make the inquiry because h does no wish to know the truth. He would prefer to remain
ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in
the fact of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to
inquire when he knows there is a reason of or inquiry.»
Comments. [grey = not in the casebook]
Recklessness is perception of the risk but going on anyways. As a matter of
plain logic, if the trial judge finds, as a matter of fact, that Sansregret believe in the
existence of consent, can the accused act recklessly or with wilful blindness? No! So if
the SCC finds there was wilful blindness, it overturns (if I may say), a fact, the finding
of Sansregret's thinking there was consent and the SCC can't find facts, can it? [444]:
negligence often mixed with recklessness (more subjective than civil negligence,
awareness of accused and not RP's conduct). If Sansregret was reckless, he needs have
known about the absence of consent and have done it anyways. Difference between
knowing there is no consent (knowledge) and knowing there might be a risk that there
be no consent (recklessness): the object of the awareness is different. And there's also
wilful blindness (awareness of the all the contextual elements that would lead to
knowledge are there but the conclusion is, wilfully, one supposes, ignored), which the
Courts also equate to knowledge and intention. [back to 444-445]: wilful blindness and
recklessness often get down to the same thing but they should be kept separate. If one
believes there was consent, there can be no recklessness. Now, are the honest belief and
wilful blindness compatible? Subjectively? Objectively ("if no one could have thought
there was consent", it comes close to negligence: it doesn't keep negligence and wilful
blindness apart (if a test is to be created), and the difference between both wilful
blindnesses, next para.)26?
So we have intention, knowledge (which equals wilful blindness to the fact of
no consent) and recklessness. But McIntyre J. (aka "Big Man") says recklessness could
equate wilful blindness to the fact that there is a risk of no consent.
Strict ratio of the case is that the trial judge made a mistake by failing to
consider wilful blindness number two, so there should be a new trial. But this new trial
means Sansregret could be convicted (bad man rule: if you know you're dealing with a
bad man, the law will follow accordingly, of course, this rule doesn't exist).
This is the conclusion the SCC decides as a matter of law. But the trial judge
thought, as a matter of fact, there was a true belief at the time of the act. So can there
truly be wilful blindness.
Recap. Sansregret confirms that can be taken as the same thing as long as the
element of MR is met. However, and this is a departure from previous jurisprudence,
the SCC said the wilful blindness could be an alternative to recklessness: knowledge
–26–
27
refers to the awareness to particular facts, if you shift it to knowledge of the risk, if
recklessness can be an alternative to an awareness of the facts, why shouldn't wilful
blindness be an alternative to knowledge of the risk.
There's also a discussion about being an accessory to murder in R. v. Duong:
you can have wilful blindness in establishing the liability for the accessory (here,
Duong).
CASE
CASE
Def.
(case)
Recap
R. v. Duong (1998) 124 CCC (3d) 392 (SCC) [C. 447] not really discussed in class
Facts. Lam is wanted for murder. Duong lets him stay in his apartment, though the media had made a
frenzy over this and Lam said "I'm in trouble for murder".
Issue. Can Duong be charged for being an accessory after the fact to murder, with wilful blindness as
the mens rea?
Holding.
Reasoning. The defence says Duong didn't know and blind himself to the truth, that he could only
suspect and not reasonably infer (and thus, that there's no wfb).
Ratio. You can have wilful blindness in establishing the liability for the accessory
R. v. Cooper (1993) 124 CCC (3d) 392 (Ont. C.A.) [C. 450] not really discussed in class
Discussion of offence of s. 212 [now s. 229]. Break it in three parts (to explain to the jury, say) 
does this makes RF of death objective? But the (second) there the bodily harm must be likely to cause
death (which is more subjective). And does likely mean "probability" or "possibility", the latter being a
lower threshold, the former probably being closer to the notion of murder (which involves intent).
Subjectively, there was want of bodily harm and (third element) recklessness as to whether death
ensues or not.
Three elements: bodily harm, probability of death ensuing and recklessness as for the final choice of
going on: if it's not said, recklessness will be assumed in most cases. However, Cory J. says there are
only two aspects [451, bottom]: a) subjective intent to cause bodily harm and b) subjective knowledge
that bodily harm might cause death, but Prof. thinks trial judges should go for three elements anyways.
That being said, of course you'll want to compare it to the RF, but the Cc asks to take the mental
state of the accused into account.
Reasoning. "The aspect of recklessness can be considered an afterthought since to secure a conviction
under this section [s. 212] it must be established that the accused had the intent to cause such grievous
bodily harm that he knew it was likely to cause death […] [450-1].
Ratio. Recklessness might not be intention, but it's darn close. In any case, it's not negligence.
Recklessness is a subjective mental state, the state of being indifferent as to a
particular circumstance or consequence but being aware of it. The evidentiary path you
might take can involve inferring from the reasonableness of the belief or behaviour, but
it is not a RP test as such, it's not negligence, though in UK, there was, for long, an
apparent equivalence [452, middle], per Lord Diplock in Caldwell: he made an
equivalence between ignorance –where there is no mental state27– and recklessness
(and also between recklessness and negligence, between the presence and the absence
of a mental state!)  created a mess in the UK because wherever there was Caldwell
recklessness, the standard was lowered. In R. v. G., 2003, the HL reverses Caldwell,
saying it's wrong in law and policy for four reasons [C.452].
Recap. The "traditional" faulty mens rea requirement can be attained through:
knowledge, intention, wilful blindness and recklessness, all four have to do with a
certain form of choice.
Intention and knowledge: motive and intention are similar (and often confused, as
in Steane), but motive is a tactical element of the offence: proving it can lead to proof
–27–
28
of the intention, which is the being aware of the virtual certainty or wanting to.
Buzzanga and Durocher tells us that desire and virtual certainty lead to wilful conduct
and that wilful blindness means intention, for our MR purposes. The threshold of
"knowing it would" (crime) is later lowered to "knowing it could" (risk), in Théroux,
where a mere suggestion of the subjective knowledge that something bad might happen
is sufficient to find a MR in recklessness.
Wilful blindness and recklessness: recklessness is the state of being indifferent as
to a particular circumstance or consequence (perception, consciousness of the risk but
going on anyways). It's not the same thing as negligence (which is assessed by the RP
standard whereas recklessness is a subjective state).
Wilful blindness is, as put in Sansregret, "where a person who has become aware
of the need for some inquiry declines to make the inquiry because he does no wish to
know the truth" (there's a reason for inquiry and he doesn't inquire). It is interesting that
Sansregret found a difference by adding an objective requirement (something like the
"air of reality" (see p. 35): if no one could have believed…), but it might also have
found a fact. This being said, it departs from the traditional jurisprudence by setting that
wilful blindness could be an alternative to recklessness: knowledge refers to the
awareness to particular facts, if you shift it to knowledge of the risk (Théroux) and if
recklessness can be an alternative to an awareness of the facts, why shouldn't wilful
blindness be an alternative to knowledge of the risk? These wilful blindness concepts
also apply to the accessory (Duong).
III. Criminal Negligence [C. 454 to 474]
Disc.
1. OPENING QUESTIONS
Fault is the first standard of criminal liability. The second is criminal
negligence. For a long time, scattered through the Cc were a variety of negligencerelated offences. (eg. furious driving, dangerous storing of arms, opening holes in ice,
negligent handling of explosives) and then s. 219 grouped them, so to speak. Then 220,
221 and 222 use the words "criminal negligence" for murder-related offences.
A few objective offences
 Common intent for accessories s. 21(2)
 Careless use of firearms or ammunition s.
86(2)
 Criminal negligence s. 219
 Criminal negligence causing death s. 220
 Criminal negligence causing bodily harm s.
221





Dangerous driving s. 249(1)(a)
Dangerous driving causing bodily harm s.
249(3)
Dangerous driving thereby causing death s.
249(4)
Wilful damage to property s. 430
Arson s. 433
So what does "criminal negligence" mean? What does "wanton" and
"recklessness" mean? If "wanton" involves the fact that everyone –including less
"observant" people– should know it, then is "criminal negligence" objective or
subjective?
If it's objective, the standard is that of the RP (but you could send someone
careless or stupid to prison and that wouldn't be consistent with principles of fundamental justice); if it's subjective, the person did it and the offence includes the word
"reckless" with should mean what is means elsewhere (but this isn't said anywhere and
the word "shows" could involve it should be measured objectively). But criminal
–28–
29
negligence would be closer to recklessness rather than to negligence, wouldn't it?
2. HISTORY
How do you distinguish both offences of dangerous driving and criminally
negligent operation of motor vehicle? SCC didn't answer for a long time but there has
to be an element of culpable mental state (later on, it said the standard was the same,
see Creighton)
Hst
CASE
R. v. Tutton and Tutton (1989) 48 CCC (3d) 129 (SCC) [C. 454]
Facts. Tutton and Tutton were accused of manslaughter (s. 205 Cc, now 222) through criminal
negligence (s. 202, now 219) for not giving insulin to their child, for it was against their religious
believes (faith-healing?!  omitting to provide the necessaries of life, s. 197 now 215). They were
convicted at trial, but the Ont. C.A. send it back to trial, saying that RP is good for act, but there has to
be a subjective element for omission.
Issue. Is the standard for criminal negligence causing death objective or subjective?
Holding. Objective but not RP (or deeply-religious RP).
Reasoning. McIntyre (+2). (objective test). The standard for criminal negligence is one of a marked
departure from the objective standard of care –only defence is reasonable mistaken belief and that can
in no way contradict Sansregret. Lamer (modified objective test). OK with McIntyre but the test has to
be modified in the sense that there is “generous allowance” for specific factors (view and perception of
facts, youth, mental development, education, etc. of accused 28). Wilson (+2) J. (subjective test).
Criminal negligence should be interpreted like recklessness. The degree of subjective intent is lower
than in murder for this particular case.
Ratio. Objective but not RP (or deeply-religious RP): marked departure from RP.
Comments. Three-three split, the Court is obviously concerned with taking culpability away for
obviously bad choices. The knot was resolved in Creighton where McLachlin J. said the test was:
marked departure from the standard of reasonable care/standard of reasonably prudent behaviour,
without allowing for the particular circumstances of the accused.
In 1992, four cases went to the SCC at the same time: Creighton, Finlay, Naglik
and Gosset29 (the Creighton quartet, he says). These cases dealt with criminal
negligence for major and minor crimes. The question was two-fold:
Q
 is there a place in Canadian Criminal Law for an objective standard of fault
o and if so, how should it be defined?
o and if there isn't place, should that same standard apply wherever there
is criminal law (whether causing death or not, capitalized or not)?
o autrement dit, is there a single standard?
And the answer was clear in Creighton:
CASE
R. v. Creighton (1993) 83 CCC (3d) 346 (SCC) [C. 463]
Facts. Creighton was an experience cocaine addict. He didn't dose it properly and a thin-skull girl had
a heart attack and –guess what– choked to death on her own vomit. He was charged and conviction of
unlawful (narcotic traffic) act leading to manslaughter.
Issue. Can something that is less than subjective foreseeability be a sufficient element of fault (since
manslaughter is less serious than murder)? Is the objective standard for MR in manslaughter
compatible with s. 7 of the Charter?
Holding. Yes (5:4).
Reasoning. There is a place for an objective standard of fault and that standard is the marked
departure from RP, which applies across the board (s. 219 Cc everywhere). There is no allowance for
Lamer's Tutton "context" (which he reiterates in Creighton, and to which McL says the only exception
is someone unable to conform to a standard of reasonable behaviour [C. 473]).
–29–
30
PoL
Note in dissent. The MR standard should be “objective foresight of death” and not “objective foresight
of bodily harm”.
Ratio. The test is an objective one: all required for manslaughter is objective reasonable foreseeability
of the risk of bodily harm (and not death), with no regard to the particular circumstances. The thin
skull rule is maintained.
Once again, only the word "marked" makes a difference between the civil law
(mostly ECO) standard and the criminal law.
And the SCC said the objective standard was appropriate, but it also said it was
constitutionally sufficient for the imposition of criminal liability even if you are talking
about homicide (criminal negligence causing death), i.e. not inconsistent with
principles of fundamental justice.
Question: what should a trial judge say? Should a judge really tell a jury not to take age/other
characteristics into account? Diplock? Let's look at what might have been the mental state of the accused,
even if we don't really care? Does this decision mean that guilty/non-guilty is objective but the
characteristics are taken into account in sentence (so judge and not jury)? A "fit" offence per the Cc must
be both fit to the offence and the offender.
C.ex. (1984): bunch of young people partying. Barron, the accused was 17-18. Was
drunk and ready to "streak the girls", was gently pushed (a "go, do it" push), stumbled down the
stairs and broke his neck. Negligence… Incapacity (drunk  proof?) RP wouldn't have been
afraid of the push, right? Or maybe it would be a marked departure (since the guy's obviously
drunk). Sure this looks like Caldwell recklessness but Diplock made an equation between the
risk and the giving no thought (negligence and recklessness running together). And Ewanchuck
J. applied it. The Ont. C.A. reversed the conviction saying that Caldwell recklessness has no
place in Canadian Law and recklessness and negligence are not the same (you need a culpable
mental state in the form of recklessness in one case and not the other).
Now, (fast-forward to today) take it to 2004 (i.e., if I may be pardoned for
saying so, after 1993), the standard of negligence, i.e. marked departure from RP,
would have to be applied to his case: as in Smithers, p. 17 and Nette, p.18, there is no
doubt about causing death. Problem as to what "marked" departure means. If the
subjective element is removed from Creighton, he is guilty. Defence compare to show
it's not a marked departure. Is there no proof that the accused caused the death: the push
caused the fall and the fall caused the death: criminal negligence causing death depends
only on: is this a marked departure (1) from the RP standard (2, means you must use the
RP)30.
ItoJ
Directions to the jury – Marked departure from the RP standard in Criminal
Negligence
Don't take into account the intention (for the test is objective) but do take into
account the circum-stances (while trying not to open the door to the former and the
particular characteristic of the person) for this is a RF requirement. The RP standard is
an objective one, but there might be subjectivity involved in assessing the meaning of
"marked": given that the AR (in plain language) is complete, and that this is a departure
from the RP standard, if the defence has, succeeded in proving this isn't a marked
departure, then the accused must be acquitted.
Recap
Recap.
–30–
31




Con
First: The standard of fault for negligence is objective (brings clarity to that area of
law, and takes a stand at policy: doesn't lie in bad choices but in bad conduct):
Creighton (where McL said it couldn't be altered by taking into account the
characteristics of the accused: (a) doing so would make the standard subjective and
(b) the law is concerned with setting a minimum standard [C. 470]; others judges
say that the evidence will show what the individual characteristics will be, so it has
to be taken into account)
Second: no matter where the words "criminal negligence" appears, it means the
same thing.
Third: Two-fold. First, the adoption of a single standard might seem like lowering
the threshold in big crimes (s. 219 et s.), but it's raising it in small crimes (careless
storage of firearms, openings in ice, dangerous driving, etc.).
Fourth: What does a marked departure mean? If the subjective element is removed
from Creighton, he's guilty: the defence has to compare to show it's not a marked
departure. Is this about taking circumstances but not intention into account?
Doesn't, per se, assessing what "marked" means? The problem is assessing marked
(and that might involve subjectivity).
IV. Constructive Liability and Constitutional Aspects of Fault31
1. ILLUSTRATIONS OF THE PRINCIPLE.
Under 222 Cc, there was unlawful act/constructive manslaughter.
Déf.
Construction effect: is creating something more out of something less (ex. car,
consent, gun). Any element of fault bearing on the result, even if the fault wasn't meant
to lead to that result. E.g. Constructive murder: intention to rob the bank, kills teller:
before, it was (constructive) murder for all robbers even if only one shot that teller. The
SCC said between 1987 and 1990 said that this was incompatible with the Charter:
there can be no "murder" if there is no intent to kill. See also fn7.
Eg. You kill someone in the course of that offence where bodily harm was RF.
Killing was not your intention; Smithers is a case of unlawful act (assault)
manslaughter.
Hst
Before the Charter, for there to be constructive manslaughter proof needed be
done by Crown only of (1) the first criminal offence, and that (2) that very offence
could result in bodily harm, and that (3) death ensued. The element of fault was the
objective foreseeability of bodily harm (not death, and the SCC said it was acceptable –
i.e. constitutionally valid, the gap isn't relevant– in Creighton). But this was less than
criminal negligence causing death, so it was struck down as being inconsistent with the
principles of fundamental justice and how they relate to the standard of fault: we know
it isn't open to Parliament to create an absolute liability offence that leads to prison
(blameless behaviour cannot deprive you of your liberty: this is constitutionally
impermissible).
At the other end of the spectrum, there was constructive murder (Vaillancourt,
confirmed in Martineau): the SCC said it was inconsistent with the Charter and had to
(recap)
–31–
32
be struck down also. The idea is that since this is the highest of crime, to be consistent
with principles of fundamental justice, there has to be a subjective foreseeability of
death (ze stigma, again). This includes what we saw in Cooper p. 28, but it's not the
same as intention to cause death, though they're all mental states.
2. CASES
Cases were not discussed in class as such, simply referred to at pp. 4, 9 and 18.
(case)
(case)
Vaillancourt v. The Queen (1987) 39 CCC (3d) 118 (SCC) [C. 709]
Facts. Vaillancourt, armed with a knife, and accomplice, with a gun, committed an armed robbery in a
pool-hall. Accomplice struggled with a client, shot him, escaped, but Vaillancourt was caught. He
testified that he told his accomplice to discharge the gun and that he had given him three bullets (found
where told). Vaillancourt convicted of second degree murder, appealed saying s. 213(d) (felony
murder, now s. 230), which says culpable homicide is murder whether or not it was meant to cause
death (it enumerates acts that substitute for proof of subjective or even objective foreseeability of
death), was inconsistent with s. 7 or 11 of the Charter for he had no intent to kill and didn't know the
gun was loaded.
Issue. Are they?
Holding. Yes. Not saved by s.1.
Reasoning. Majority (per Lamer J.). Murder requires at least objective foreseeability, otherwise, it
goes against the presumption of innocence because as long as you can establish intent for the
underlying offence from which death flowed, you can be found guilty. S. 213 doesn't meet the
threshold test for objective foreseeability of death. Obiter. Proportionality of the stigma attached to
murder/manslaughter, but that doesn't mean the SCC cannot, eventually, establish subjective
foreseeability as the standard for murder.
McIntyre J. (dissenting). Now that there’s no death penalty, it's merely semantics to object about a
conviction for "murder" when the Court would have upheld one for the same acts if called
"manslaughter".
Ratio. The SCC has the right to review the elements of any crime that is established by Parliament to
ensure that they are in accordance with s.7 of Charter.
Comments. If Vaillancourt had had the gun in his hand with the same facts, it'd be "secondary
participation" (s. 21 Cc). Constitutionally bad because murder conviction possible even though jury
might have reasonable doubt as to the foreseeability of death: someone who would otherwise be
acquitted of murder.
R. v. Martineau (1990) 58 CCC (3d) 353 (SCC) [C. 717]
Facts. Martineau's accomplice intentionally shot to kill victims. Martineau, who didn't know their
robbery would result in murder, is now charged with 213(a).
Issue. Is the provision consistent with ss. 7 or 11d) of the Charter? Is it proportionate with the moral
blameworthiness of the crime?
Holding.
Reasoning. Lamer CJ. (always happy to help criminals): To be guilty of murder, the accused must
have specific intent or subjective foresight of death. The stigma of murder should only be imposed on
those who chose that path deliberately. Subjective foreseeability of death –by intent to kill of
recklessness– is necessary for a conviction of murder. Sopinka J. (concurring). Since the Vaillancourt
objective foresight rule would have led to the same result for Martineau, we shouldn't be concerned
about this Martineau guy. L'Heureux-Dubé J. This is policy matter (deterrence) and if Parliament
wanted this to be the mens rea requirement, they would have listened to Lamer's Law Reform
Commission Report.
Ratio. To be guilty of murder, the accused must have specific intent or subjective foresight of death.
No more felony murder at all (s. 213 completely struck down).
Comments.
3. EXTENSION OF THE PRINCIPLE?
–32–
33
Of course, people tried to strike everything down on the basis of "subjective
mental state of intention" and no less. And then in the Creighton quartet, manslaughter
was said to be ok with objective culpability. And that turned off the Charter challenges
as to the sufficient element of fault as to particular offences. If these lower standards of
fault can stand (marked departure), then the ultimate affront to s.7 is conviction of the
morally innocent –and the SCC said no, thus accepting that constructive liability is not
morally innocent conduct. Thus the significance of the sequence of decisions and of the
objective standard of fault as alternative to subjective mental state. The notion of guilt
is very different from the one of guild through bad choices (intention, knowledge,
wilful blindness, recklessness).
Recap – Constructive liability and Constitutional aspects of fault [C. 709 to 722; 462 to 480]
Certain offences require that one's behaviour lead to a specific result: unless the
law states that the subjective state of mind is necessary, it needn't be proven (DeSousa).
12-52 I Proof that the RP would have RF was enough (no matter the accused's state of mind).
However, this objective foreseeability of the consequences was deemed inconsistent
with the principles of fundamental justice with regard to crimes with a very high stigma
attached to them. As such, the constructive murder offence was struck down in
Vaillancourt and Martineau. A floodgate of litigation then followed, but Creighton
put an end to it by stating manslaughter could be treated objectively.
Also, when the standard is objective, there is no difference between RF of death
and RF of bodily harm, but there only RF of death can be used for "stigmatizing
offences" (Martineau, obiter in the Creighton dissent).
Recap
V. Sexual assault [C. 637-690]
Sexual assault is assault (intentional
application of force without consent) of
sexual nature as assessed in the context.
Déf.
Pment
See p. 31
ExmQ
Hst
1. INTRODUCTION
This area of law has been absolutely transformed in the last 25 years. While
remaining faithful to the idea that there must be a culpable subjective mental state for
there to be assault (and thus, sexual assault), there has been increased reliance on
objective factors.
The thing is all these changes were enacted by Parliament before Creighton in
which the SCC said there was a place for an objective standard of fault (marked
departure from the RP standard). If Parliament were asked today to reconsider the
definition of sexual assault, would it be possible to apply a different standard of fault
than the one that we have? Could you, in assessing the relationship people, in sexual
"aggression" be objective? Would it be a good idea? Would it be constitutional? Of
course, there are still some difficulties: how is sexual assault different from assault?
What is a valid consent to sexual activity? what is mistaken belief?
2. THE STRUCTURE OF THE PROVISIONS DEALING WITH SEXUAL ASSAULT: HISTORY
2. 1. Evidentiary changes: Can you get the records of the complainant32?
Under the common law, the defence could raise the evidence of previous sexual
–33–
34
Hst
(case)
(case)
Déf.
CASE
conduct against the complainant, to challenge the complainant's credibility as a witness
and to go after the likelihood of consent. Parliament started to reverse this in 1983
(after Seaboyer33). S. 276.1 et s. have changed: such evidence is now inadmissible in all
cases, but the rarest (it could only be used to establish the inconsistency of the witness
over time, and not the content of her testimony).
Also, starting in 1990, the SCC decided in Stynchcomb that the accused, as a
matter of constitutional law, the accused was entitled to disclosure of prosecution, in
order to have a full-answer defence in a fair trial (it had been proposed by the Reform
Commission, but Parliament hadn't seen fit to introduce it). This included some
background info on the complainant including private information, so eventually some
people figured it was going too far: in 1994, Parliament said the accused was not
allowed to have the complainant's records (school, employment, medical, therapeutic),
but in the rarest cases (such an application being very hard to make) and only to show
such things as inconsistency (Mills).
2. 2. With regard to the substance of sexual assault
Also, 1983 saw the old offences of "rape" and "indecent assault" replaced by a
variety of offences based on the core of "sexual assault" (as such, with a weapon,
aggravated and a bunch of other sex-related incest: obscene material, prostitution, etc.).
Now was is sexual assault?
 First, it's an assault, that is: intentional (1) application of force (2) without
consent (3).
 Second, it's of sexual nature (that is determined by facts, having regard to
all the circumstances), as decided in Chase. .
R. v. Chase [1987] 2 SCR 293 [C. 638]
Facts. Chase entered in the complainant's house without invitation and grabbed her breast. He tried to
grab her genitalia but was unable to.
Issue. Is that a sexual assault?
Holding. Yes. CA was wrong in saying no genitalia touching no sexual assault.
Ratio. It doesn't matter what part of the body is touched, what matters is the sexual intention behind it
(the idea of pleasure or gratification of a sexual nature).
Comments. So you could have sexual assault for a foot fetish? Things get complicated with regard to
invitation to touching of sexual nature (AR and MR don't coincidence so well…). A greeting kiss in
the hallways could be understood as non-consensual, but it's not sexual either.
3. THE MENS REA FOR SEXUAL ASSAULT
3. 1. Consent
 AR: application of force without consent (a factual circumstance, it has to take
place).
 MR: intentional application of force and awareness of the absence of consent,
(whether communicated or not, or recklessness).
The problem arising from all of this is the difficulty to figure out whether there
was consent or not. There's also the question of "accidents", that is, mistaken believes.
3. 2. Mistaken belief and the "air of reality"
Pappajohn v.The Queen (1980) 52 CCC (2d) 481 (SCC) [C. 639]
Facts. Pappajohn had lunch with the complainant. They drank a little too much and went to his house.
–34–
35
CASE
PoL
Three hours later, the complainant runs outside, bound and gagged (and with a bow-tie). She says she
had resisted the whole time (but her clothes were neatly hung in the closet). He says the gagging and
the binding was done as a preliminary before the sexual intercourse 34. The jury wasn't told to consider
mistaken belief so this went to the SCC.
Issue. 1. Can the accused raise a defence of mistaken belief in consent if that belief, though honest,
was unreasonable? 2. What is the evidentiary threshold that must be met for such a defence to be
considered by the trier of facts (pre-reform)?
Holding. 1. Yes he can, but Pappajohn doesn't qualify. 2. "Air of reality"
Reasoning. The MR for sexual assault (rape) includes awareness of the existence of non-consent, not
just the act of sexual intercourse. No conviction can arise from an honest mistake, no matter how
unreasonable. Dickson J. dissenting: mistake of fact need not stem from third party (as was the case in
Morgan) and an honest belief doesn't need to reasonable, though evidentiary, jury more likely to
believe a reasonable belief. McIntyre J. (majority for the threshold part). There is a difference between
the proof of consent and mistake in consent.
Ratio. An honest (and unreasonable) mistake in consent is valid, but claiming it with no proof will no
suffice: there must be proof of an "air of reality" as proof.
Comments. This subjective mental state, unreasonable but with an "air of reality" cannot work in
criminal negligence were the standard is one of a marked departure: it would be inconsistent.
Pappajohn's lawyers argued that there was mistake in belief (he truly believed
she consented), hence no culpable state of mind (since the MR for what was then rape
included the non-consensual element, not just the sexual intercourse).
Evidence-wise the question was: should the jury have been told to consider the
(issue)
defence of mistaken belief; legally, is it a defence?
And the SCC said: yes, you can, as a RP, believe there was consent if the evidence
(held)
would lead a RP to think so.
The Crown can only prove knowledge and recklessness, and can't do that if
there's honest belief. Mistaken belief obviously takes away both: there was no
(reason knowledge and the accused cannot have been reckless about it: he truly believed (not
ing)
matter how mistakenly) there was consent (Sansregret, p. 26 is another good example:
See p. 26 the trial judge having decided that there was belief, there could be no recklessness or
knowledge as to absence of consent).
This is the other problem. RP, sure, but if it's an honest belief, it means it's
subjective, if it's subjective, it could be highly unreasonable35: if you accept subjective
(ratio)
standards of culpability, you have to accept subjective exculpation.
But this doesn't mean the reasonableness is irrelevant because you can reassess
the unreasonableness (the belief can be unreasonable, but assessing the reasonableness
in the circumstances). Autrement dit, what would the mental state of the average person
be in the same persons to draw an inference on the accused's behaviour (but the
difference is slight with an objective standard). Basically, there is a limit to the
unreasonableness of a belief and that is the "air of reality".
(case)
(facts)
Déf?
Q?
More changed dealing with consent [C. 656-657], s.273.1 were derived from the
case law (in effect, they restate the position of the SCC). We suggested the introduction
of some sort of objectivity makes the standard more objective, now does s.273.2
suggests that (i.e. changing Pappajohn and Sansregret)? It the belief arose recklessly
or by wilful blindness, does it make the mistake in belief reasonable? And subs. 2 does
have the word "reasonable".
–35–
36
Recap
Recap – Sexual Assault, Mistaken Belief and the "Air of Reality" [C. 637-690]
Sexual assault is an assault (i.e. intentional application of force without consent)
of a sexual nature, no matter the parts touched (Chase). A "no" means "no", no matter
the previous sexual conduct (Ewanchuck), which, in any case, cannot be accessed by
the accused (Darrach), unless a very high evidentiary standard is met (chances are
close to nil). Same for records (Mills, reversing Seaboyer and Darrach were it was said
that "evidence must be relevant and more probing than prejudicial").
Also, as per the Cc, the defence of mistaken belief in consent cannot be raised
unless all the reasonable steps were taken or if the mistake in belief arose (Pappajohn)
out the accused's own wilful blindness or recklessness (this is a codification of
Sansregret). These amendments have the effect of narrowing down the scope of the
mistaken belief: the mistaken belief/"air of reality" defence will not go to the jury
unless the judge is satisfied it could find a reasonable doubt on the belief of the
accused.
More precise translation of “air of reality”: The judge must ask the jury to
consider a defence if the evidence is sufficient that a properly instructed jury could find
a reasonable doubt on the whole of the evidence. And it doesn't violate the presumption
of innocence (Osolin, all defences have some kind of threshold before they can be
admitted; a statement of the accused like "I believed she was consenting" will not
suffice).
36
E. ASPECTS OF INNOCENCE.
I. General Introduction: What Is A Defence?
Déf.
(P&E)
1. WHAT IS A DEFENCE?
Loosely, it's anything that would destroy the prosecution's case:
 Some defences work to destroy an element of the offence: say, attack the
MR or AR(usually by negating it behind reasonable doubt);
o Eg. Automatism, mental disorder, intoxication,
 Others will offer a justification, which proceeds on the idea that the
inculpatory elements of the prosecution are justified: it is "good behaviour"
in the context – approval of excuse
o Eg. Self-defence, necessity (Wilson)
 The third defence is an acquittal "where the law provided an excuse": it's a
more normative defence – recognition of the non-blameworthiness.
o Eg. Duress, necessity (Dickson)
They all lead to an acquittal (but it can be an acquittal to the major offence and a
reduction of the guilt verdict to a lesser offence), but the difference between excuse and
justification is criticised as arbitrary (one's excuse can be another's justification).
2. THE REQUIREMENTS OF PROOF
Also, sometimes, the defence can be anticipated by the Crown (in which case it
will have a bearing on its presentation of evidence), but not always. Of course, the
accused is not required to prove any matter of defence: a mere infusal of a reasonable
doubt will (and must) lead to an acquittal. There are exceptions, however, typical found
–36–
37
in statutes, some of them at common law however: think back to Woolmington –
exception to the standard of proof and, thus, the standard of innocence.
3. AN AREA OF THE LAW THAT CRIES FOR LEGISLATION.
Is has been said in Hibbert, p. 50 by Lamer with regard to duress, and it has
been said, in general: there is a need for a revision of the Cc, mostly in defence. Yet,
the government hasn't undertaken anything but no undertaking from the government.
In relations to the principles of legality, if you want liability, you need some sort
of definition. Also, there are no common law offences with, perhaps, the exception of
contempt with courts37. The general principle remains true. But a lot of defences remain
common law defences: the Cc expressly preserves the possibility that judges develop
new claims of defences: you might take Daviault as such, or non insane automatism, or
entrapment (1998, Mack).
II. Automatism and Mental Disorders
Automatism is an unconscious, involuntary act
where the mind does not go with what is being done
(impaired, altered, dissociated consciousness)
Déf.
(P&E)
1. MENTAL DISORDER (S. 16 CC)
A proven mental disorder negates the MR and, often, also the voluntariness of
the AR, for it prevents the person from assessing correctly the consequences of his acts.
It requires proof on the balance of probability that the accused "suffers from a disease
of the mind". It is a reversed proof in the sense that you cannot raise it unless there is
expert psychiatric evidence.
The outcome under s. 16 is a special verdict of "non-guilty by reasons of mental
disorder [we used to say insanity]" to which is attached an order of confinement in a
psychiatric hospital (to her majesty's pleasure38).
2. AUTOMATISM
Automatism not a defence stricto sensu: conceptually it is more a subset of
voluntariness, a part of the actus reus said LaForest in Parks.
2. 1. Insane Automatism
Of course, automatism can arise from a disease of the mind (insane automatism
as the common law puts it), and then leads back to the outcome for mental disorders. Of
course, the distinction is pretty murky sometimes.
In insane automatism the cause is internal whereas it must be external in non
insane automatism.
2. 2. Non-insane Automatism
That non-automatism defence isn't a mental disorder, but there still isn't
voluntariness in the AR. The outcome is drastically different: it's a "real" acquittal: i.e.
the accused walks out. Stone is really the case that changed everything.
2. 2. 1. Non-insane automatism before Stone:
Before Stone, there were two major decisions in this field: Rabey and Parks.
–37–
38
(CaSE)
PoL
Rabey v.The Queen [1980] 2 SCR 513 [C. 817] discussed but not read
Facts. Rabey, student at the UofT who had a crush on girl and found a letter that the girl had written
saying he was a loser. And in the geophysics lab, Rabey smashed the girl in the head with a stone (thus
becoming a homicidal loser). The evidence showed that his hopes and expectation had been
disappointed for quite a time. The accu-sed argued non-insane automatism (he said he'd suffered a
“psychological blow” caused by an external factor).
Issue. Is there a place in Canadian law for a defence of non-insane automatism?
Holding. Yes, but Rabey doesn't qualify for it.
Reasoning. Martin JA. Yes non insane automatism exists but it must arise out of very strong external
causes. The dissociative state was a result of Rabey’s internal psychological make-up, there’s no way
such slight comments would cause someone to become an automaton (internal causes lead to a disease
of the mind). Also, disease of the mind is a legal-fact finding, not medical (the evidence didn't find
mental disorder in Rabey0. The SCC upholds, except Dickson objects to Martin’s conclusion that
extreme emotional shock might constitute an external factor, but that it’s an objective test to see if the
shock is substantial enough and would thus restore acquittal for non-insane automatism and release
accused as mentally healthy.
Ratio. Non insane automatism can only be proven with strong expertise as to the externality of the
cause (the essence of the claim is that the accused had no control even if s/he was conscious, i.e. a
diminished form of consciousness: a dissociated mental state).
Then came Parks.
(CaSE)
(PoL)
R. v. Parks (1992) 75 CCC 287 [C. 834] discussed but not read
Facts. Park is the sleepwalker that drove 23 km to kill his parents-in-law, "woke up" and turned
himself in. The expert psychiatric evidence was uncontested39.
Issue. Is this a case of non-insane automatism?
Holding. Yes. Straight acquittal40.
Reasoning. Whatever the cause was, it was internal (contra Rabey) and not related to a mental disease.
His "poor sleep hygiene" was a result of a stressful time of life, and with the right changes the
automatistic episode would never happen again.
Ratio. Internal/external cause, who cares since, conceptually, both negate the MR? The real matter is:
is the automatism related to a disease of the mind or not?
Comments. This contradicts Rabey but is overruled in Stone (it is not clearly an external cause, then it
will be considered mental disorder as under s.16, unless evidence to the contrary).
As for, finally, Stone that settled everything.
CASE
R. v. Stone [1999] 2 SCR 290 [C. 837]
Facts. Stone was charged with killing his wife. He explained that at the time of the killing, she had told
him "mean things" while driving down the Fraser valley [C. 838 par. 8]. He felt "whoosh-y" and
realises he's stabbed his wife 47 times (though he can remember, at best, stabbing her twice before the
"whoosh" took him over). He stuffed his wife in a toolbox and the following day, he flew to Mexico41.
Then, he dreamt of the killing... He argues the insulting words could induce an automatistic state that
has nothing to do with mental disorder.
Issue. Is this non-insane automatism?
Holding. No. Guilty.
Reasoning. Bastarache. The law assumes that people act voluntarily42 so that a defence of automatism
involves a reverse burden on Defence, which infringed on s. 11d) of the Charter but is justified under
s. 1 (doesn't say why, though). Sure he was angry, but anger doesn't explain killing. Was he in a frenzy
of anger43? You might have the theory of provocation 44, but that's another matter. Whatever the
"whoosh" was, it was internal (the cause are left undefined if not related to insanity). That being said,
three points: (1) No expert evidence, non-insane automatism; (2) The evidence must be very
convincing (great deal of persuasiveness) before the jury can hear it; (3) The SCC decided that noninsane automatism, if it gets to the jury, will not succeed unless proven on the balance of probability 
that's shifting the burden on the defence!
–38–
39
Ratio. Unless there is a clear external cause as per the evidence, a claim of automatism will be
categorised as a mental disorder under s.16.
Comments.
PoL
ItoJ
ItoJ
So a claim of non-insane automatism will succeed only where the automatistic
involuntariness of the accused in the act was a mental state that any normal person
would experience (which means the cause has to be exterior), provided that there is no
danger of recurrence.
Also, the SCC decided to "clarify" the law, thus changing it dramatically in a
significant exercise of judicial authority (prof. thinks it was uncalled for and
unnecessary45):
(1) No expert evidence, no non-insane automatism.
(2) The evidence must be very convincing (great deal of persuasiveness) before
the jury can hear it.
(3) Non-insane automatism, if it gets to the jury, will not succeed unless proven
on the balance of probability  that's shifting the burden on the defence! (1) The SCC
decided to infringe on the presumption of innocence of s. 11d) of the Charter… (2)
Having decided that, the SCC goes one step further and says it's ok with s. 1 (but it
doesn't really say why).
For further Stone-type cases, the trial judge determines what should be left with the trier of fact –
two-stage test:
(1) He must find that there is the proper evidentiary burden that would support the defence of
automatism i.e. on the balance of probabilities, is there enough evidence for the jury to find a state
of automatism? This can be found if
(a) the accused claim the AR was involuntary,
(b) expert evidence finds this plausible,
(c) other evidence: the trigger (a "shock" or the victim?), a medical history of dissociation, if
available, witnesses (glaze seen by bystanders, though they could confuse rage with
automatism), motive (can the crime be explained without automatism? If yes, the credibility
is decreased, contra Parks).
If these criterions are no met, the presumption of voluntariness is to be used and automatism cannot,
thus, be used (but you could use s.16 for mental disorders, still).
(2) Now that non/insane automatism may be put to the jury, the judge must begin with the presumption
of disease of the mind (unless there is major contrary evidence) using
(a) Internal Cause Theory (comparison with RP: if it's extremely shockin by nature, the RP
could enter into an automatistic state)
(b) Continuing Danger Theory (if the underlying condition present a continuing danger, that is,
will the automatistic behaviour happen again?, then the judge must find mental disorder).
Only after completion of this test can the judge leave one automatism or the other to the jury,
instructing it that a guilty verdict may only be returned on basis of automatism being proved on a balance
of probabilities.
In Fontaine (2004), the SCC had the occasion to reconsider Stone. Fish J.
slightly modified it but has, in no way, reversed it: it changed the reversed burden of
proof, but the effect remains somewhat unclear46.
Recap
Recap – Of Automatisms, Whether Insane or Non-Insane
Stone [par. 92 et s.]. Basically, if there's expert evidence, insane automatism
will succeed, but Bastarache is very suspicious of non-insane automatism (that's why
–39–
40
it's pretty severe overall: significant demands are put on the defence): you need
compelling evidence. Non insane automatism is an exception to insane automatism:
there must be evidence, it must be convincing before the jury can hear it and it must be
proven on the balance of probabilities (yes, it infringes on s. 11d), but is justified [C.
868 et s.]).
In Rabey, Courts clarified some of the basic principles: there are more chances
to have non-insane automatism if the source of automatism seems to arise from an
external cause (i.e. external to the mental make-up of the accused). Then Parks said:
you can have internal causes that don't deal with insanity but it was practically
overruled in Stone (it's not rejected but the evidence for internal causes will have to be
extraordinary). This is used both for the MR and the voluntariness of the AR.
III. Intoxication [C. 887 to 919]
Disc.
(CaSE)
1. INTRODUCTION
This is a defence that has mostly evolved as a matter of common law. Given the
inculpatory elements of criminal law (that is AR and MR), what is the significance of
intoxication? [Intro C.:] To what extent can intoxication negate the voluntariness of the
AR or the MR? Of course, if there is no voluntariness in the AR, there should be an
acquittal, but for reasons of policy, if the intoxication is self-induced, this wouldn't be
fair (worry not, Bernard says self-induced47 intoxication may substitute for fault in
crimes of general intent).
We all deplore the idea of the morally innocent, but how is it possible that you
approximate innocence by progressive stages of self-intoxication/irresponsibility?
Shouldn't intoxication be an aggravating factor? The common law position way back in
the 16th, 17th century was to the effect that it wasn't a defence; it was an aggravating
situation (you created the conditions of the offence), close, even, perhaps, to
recklessness. And yes, alcoholism can be considered a mental disease (see p. 37).
Of course, there are degrees of intoxication, depending on the intoxicant, on the
person's stature, and when very far in intoxication, a state verging on automatism
(Daviault), which will negate both the MR and the voluntariness of the AR (thus
providing an acquittal).
But is not remembering the next day (lack of recollection) not the same as not
being able to form the mental element (MR): the effect of the intoxicant is to be looked
at the moment the AR took place.
2. 20TH-CENTURY EVOLUTION OF THE INTOXICATION
2. 1. Beard and the general/specific intent dichotomy
The theory about the defence of intoxication was, for our purpose, set out by the
House of Lord in 1920. There were three propositions set down by Lord Birkenhead in
Beard48 [C. 888]. It discusses the effect of intoxication on the formation of the mental
state and, most importantly for our purposes, the difference between general and
specific intent.
That evidence of drunkenness which renders the accused incapable of forming the specific
intent essential to constitute the crime should be taken into consideration with the other facts
proved in order to determine whether or not he had this intent.
–40–
41
That evidence of drunkenness falling short of a proved incapacity in the accused to form the
intent necessary to constitute the crime, and merely establishing that his mind was affected by
drink so that he more readily gave way to some violent passion, does not rebut the
presumption that a man intends the natural consequences of his acts.
PoL
(case)
This passage (which was received at common law like Parliamentary language)
could be understood in two ways: either "the specific intent essential to constitute the
crime" meant the "MR requirement" either it meant "that there are two different types
of offences". The latter was chosen and the rule in Canada was received as: if the
offence is a specific intent one, the defence of intoxication can be raised. The real
conceptual problem is that specific intent offences have been described as such for the
purposes of determining if the defence of intoxication is available (it's a little circular).
A definition has been given in R. v. George. Specific intent crimes: “acts done
with the specific and ulterior motive and intention of furthering an illegal object on the
other hand”). General intent crimes: “acts done to achieve an immediate end”).
Also, most specific intent offences include offences of general intent: a success
of the defence of intoxication will bring it back to the general intent offence (lessen it).
To make the difference, you have to go through case law (there is no common thread
and it fluctuates), but here are a few examples:
 Murder (specific) includes manslaughter (general);
 Arson for fraud (specific) includes arson (general);
 Theft is a specific-intent offence but it has no general intent offence
attached to it.
 Attempts, aiding and abetting a crime are specific intent crimes.
 Common assault is general intent.
 Rape is general intent (Leary, Bernard)
 Oh yeah: intoxication isn't a defence to a crime of which it's the offence
(Penno)49
R. v. George (1960), 128 CCC 289 (SCC) [C. 897] not covered in class
Facts. George robbed a man of 84 but was so drunk the defence argued he could not form the intent
for robbery (theft+assault) and was acquitted (because theft is a specific intent offence). The Crown
appealed.
Issue. Given the nature of robbery, can intoxication lead to an acquittal?
Holding. No, it'll lead to the lessen offence of common assault (general intent).
Reasoning. First, there is no evidence that George was so drunk as to suffer permanent or temporary
insanity, especially since he had admitted that he knew that he was applying force. Second, there is a
distinction between specific intent crimes (“acts done with the specific and ulterior motive and
intention of furthering an illegal object on the other hand”) and general intent crimes (“acts done to
achieve an immediate end”).
2. 2. Absence of intent/Incapacity to form intent
(case)
R. v. Robinson [1996] 1 SCR 683 [C. 891] not covered in class
Facts. Robinson killed a man but claimed he had no intent because he was intoxicated. After having
been instructed on provocation, self-defence and intoxication, the jury found him guilty of seconddegree murder. The instructions to the jury as to the defence of intoxication were erroneous.
Issue.
Holding.
Reasoning. Lamer C.J. Before the trial judge leaves the defence of intoxication to the jury, he must be
–41–
42
satisfied that it might have impaired the accused's foresight as to raise a reasonable doubt. The issue
then put to the jury is: has the Crown satisfied beyond a reasonable doubt, that the accused had the
requisite intent to kill?
Ratio.
Comments. It's not a good idea to say: did he have the capacity to form intent and did he have the
actual intent (this is undesirably confusing, the latter necessarily involving the former and the former
leading to a fear that only this will be used for conviction.
There is a difference between "absence of intent" and "incapacity to form
intent". Beard speaks in the terms of the latter. In Young v. The Queen, the trial judge
had stated: "if you have any reasonable doubt as to his capacity to form intent, then
give him the benefit of the doubt". The SCC wasn't too happy that.
2. 3. Is this specific/general intent division nonsense?
CASE
Bernard v. The Queen (1988), 45 CCC (3d) 1 (SCC) [C. 901]
Facts. Bernard charged with sexual assault causing bodily harm [now s. 272(c) Cc]. Says he was very
drunk but that upon realising what he was doing (i.e. having sexual intercourse and beating her up) he
got off her. The trial judge said that based on Bernard, the level of intoxication could make the offence
go from general (which sexual assault was) to specific. The CA was asked to consider the validity of
the reasonable doubt acquittal of the trial judge (based on the question on intoxication), which means
the trial judge as a matter of law, could consider intoxication, which he did and acquitted.
Issue. Is the former offence of rape a "general intent" crime for which no intoxication defence is
available?
Holding. Yes. Guilty.
Reasoning. McIntyre (majority) Specific intent offences require the mind to focus on an objective
further than the immediate one at hand, while general intent offences require only a conscious doing of
the prohibited act. Voluntary drunkenness may substitute for fault element in crimes of general intent.
Wilson J. concurring finds doubtful that self-induced intoxication can substitute for the required
mental element. The evidence of intoxication can only go to the trier of facts in general intention
offence if there is evidence that the intoxication is so extreme that it's akin to automatism. Dissidence.
Maintains the Leary dissent: dislikes language of "defence" of drunkenness: the evidence of selfinduced intoxication should be put to trier of fact who'll have to determine whether Crown has proved
beyond a reasonable doubt the necessary MR. Leary should be overruled post-Charter50.
Ratio. Sexual assault is a general intent crime for which intoxication is not a defence; voluntary
drunkenness may be a substitute for fault element in crimes of general intent.
But that's not very important. We all knew that rape/sexual assault was a general
intent crime. There also somewhat of a Charter discussion, but it could be raised
because no notice had been sent to the AG, no argument was raised, not in the memo,
not in the oral argument.
So the real discussion is the questioning of the Leary rule about the defence of
intoxication being available only for specific intent crimes.
 McIntyre J. (majority). The rule has always been the rule: Beard, Leary:
sexual assault is a general intent offence and such offences do not allow for
a defence of intoxication. McIntyre also said that this was policy: even if it
were conceivable that intoxication by alcohol could negate the MR, that
defence should be denied (after all, he got himself into the situation). –
"choosing between principle and policy, I'll choose policy". But Daviault
had changed this.
 Wilson J. (dissenting but concurring) Maybe the rule is too inflexible and
maybe in extreme intoxication, maybe the defence should be extended to
–42–
43
(CaSE)
Quote!

offences of general intent.
Dickson (dissent). I cannot disagree with myself in Leary: the rule is
rubbish and should be abandoned.
Despite these three very different opinions, the SCC was convinced that the
evidence in Bernard was too shallow to support the defence51: so, basically, the
decision is a huge obiter dicta because nothing changed with Bernard! However,
Wilson's comments about intoxication is so extreme as to lead to a state neighbouring
automatism (in which case it'll work for general intent crimes) will lead to Daviault and
the tremendous changes it brought to the defence of intoxication.
3. AS ANNOUNCED: THE TREMENDOUS CHANGE OF DAVIAULT
3. 1. The Reasoning
Is there a limit to the effect of the intoxicant of a person's intent? Paf! Daviault.
The defence said Wilson's opinion gave way to a defence of extreme intoxication in
general intent crimes (CS found he didn't have sufficient MR, that there was a doubt as
to the mental state). The CA said no (as a matter of stare decisis, Wilson's dissent was
not open to the trial judge). And then the SCC decided to have fun.
CASE
R. v. Daviault (1994), 93 CCC (3d) 21 (SCC) [C. 912]
Facts. The complainant, an elderly woman in a wheelchair, friend of his wife, phoned Daviault, a 68year-old chronic alcoholic, and asked him to pick of a 40 oz. bottle of brandy for her. He had drank 7
or 8 beers during two and a half hours (and said he'd only drank one glass of brandy, she hadn't
touched hers, but at the crime scene, the bottle was empty – but this is an inference on the black-out).
Complainant fell asleep and woke up to violence: Daviault threw her out of her wheelchair and fondled
her, calling her by another's name (shocking!), forbade her to go to the bathroom. She managed to
squeeze his genitals so hard they turned black (he didn't react: dissociate state, perhaps?). Daviault left,
got up, got home, and to bed (his wife noted that usually, when he was intoxicated, he usually passed
out in the living room). Daviault is charged with sexual assault. Evidence showed most people would
go in a coma or die with the quantity of alcohol he had in his blood. Of course, he doesn't remember
anything.
Issue. Beard? Leary? Can a state of drunkenness so extreme as to be similar automatism or mental
disease (s.16 Cc) be a defence for a crime of general intent?
Holding. Yes.
Reasoning. Majority. Forbidding the use of such a defence is unconstitutional (it would be convicting
the morally innocent person), substituting intent to get drunk to the MR offends the principles of
fundamental justice. However, extreme intoxication must be proven on the balance of probabilities
(this contradicts s. 11d) of the Charter but is justified under s.1). Dissent: The Charter relies on moral
responsibility, that people accept the consequences of their voluntary intoxication. The sentence is
flexible enough to reflect blameworthiness as appropriate. Link Creighton p. 30: to self-induce such a
level of intoxication is a marked departure from the RP person.
Ratio. The accused can raise a defence of intoxication for general intent offences if the intoxication
was so severe that it constituted automatism or mental disorder.
Comments. Cory J. also said: "If Parliament doesn't like it, it just has to change it". It took a few cases,
but eventually, Parliament implemented s. 33.1, depriving the accused of the intoxication defence for
general intent crimes where the crime contains an element of assault or battery.
And the SCC says what we know.
 Even though no argument had been made on this question, the SCC said the
CA's finding was inconsistent with the principles of fundamental justice
guaranteed by s. 7 of the Charter: the rationale, said Cory J. was that to
–43–
44

ConL
Prob.
Déf.?
Prob.
deny the defence would allow for the conviction of the morally innocent
(negation of the MR, as a matter of fact):
The defence of intoxication was rephrased as follows: intoxication will be
limited to offences of specific intent (and the intoxicant will have to be
checked as to whether it can lead to negation of the MR) unless the state of
intoxication is so extreme it verges on automatism or insanity, in which
case, the defence is opened for general intent offences also. He must do so
on the balance of probabilities: even if it violated the presumption of
innocence guaranteed in s.11d) of the Charter, this is justified under s.1.
3. 2. Problems with Daviault.
So basically, the SCC said the common law defence of intoxication was
unconstitutional for it was inconsistent with principles of fundamental justice (because
conviction of the morally innocence people): i.e. chances of acquittal go up with the
level of intoxication established; the chances of being morally innocent go up as you
drink up (which is probably a reason why Parliament enacted an anti-Daviault
legislation).
Also, on a more technical level, as a factual matter, what is "extreme
intoxication"? Of course, it suggests a severe state, but how can the degree be assessed?
When are we "verging on automatism or insanity" mean?
Finally, the Court's conclusion as to a general principle with extreme
intoxication as an exception is incoherent (in his respectful opinion, it's more like an
abandonment of the general/specific intent rule): is it a question of law (judge) or
question of fact (jury)? The instructions could go something like: if you believe he was
extremely intoxicated, then use the general-intent crime standard of persuasion (balance
of probabilities); if you don't think he was think intoxicated, use the normal BRD rules.
Alternative instructions? Expert witness defences? Strange, strange…
There is finally the problem that self-inducing such a level of intoxication is a
marked departure form the standard of reasonable care generally recognised in
Canadian society (Creighton, p. 30): such a marked departure can be taken as a
substitute for fault, otherwise required for general intent offences.
Law?
Pment
PoL
This goes might go back to the Robinson and Seamore discussion about the
difference between the absence of intent and the absence of the capacity to form the
intent. In Daviault, it was not about the capacity to form, rather about the intent itself,
that is, was it present in the commission of the AR? As an evidentiary matter, it can be
useful to consider capacity, but it's not the point in itself.
3. 3. Parliament, Daviault, principles and policy.
The traditional restrictive specific-intent-only rule of common law was policybased. In Daviault, the SCC deviates from that. Will this open the door to a flood of
acquittals based on self-induced intoxication, especially since intoxication is often a
factor in assault on the person, notably in domestic violence (so very real concern about
safety of vulnerable people)? At first, the government of Canada first though nothing
–44–
45
PoL
ConL
s. 33.1
would happen (so much for the dialogue between executive and judicial): Allan Rock,
then Minister of Justice, said this didn't ask for a response. But then, in PEI (amongst
other, a few cases) an accused was acquitted on drunkenness but not on the balance of
probability. And then something very harsh (drunk + stone) happened in Calgary. And
only then did Allan Rock decide to introduce an "Anti-Daviault" legislation [C. 917]
implementing s. 33.1 which deprived the accused of the intoxication defence for
general intent crimes where the crime contains an element of assault or battery.
The problem with s. 33 is that the SCC said the common law defence had to
give way to defence of extreme intoxication with regard to principles of fundamental
justice, thus making a decision about the Charter. Consequently, contradicting
Daviault without affecting the constitutional part of the decision was really hard
(especially since using the notwithstanding clause can't be done politically). It was a
writing challenge52, which might explain why s. 33.1 [bill C-72] doesn't fit very well. It
gave "Self-intoxication":
When defence not available
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of
self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence,
where the accused departed markedly from the standard of care as described in subsection (2).
Criminal fault by reason of intoxication
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care
generally recognized in Canadian society and is thereby criminally at fault where the person, while in a
state of self-induced intoxication that renders the person unaware of, or incapable of consciously
controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the
bodily integrity of another person.
Application
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that
includes as an element an assault or any other interference or threat of interference by a person with the
bodily integrity of another person. 1995, c. 32, s. 1.
Basically, it says the extreme intoxication defence for general intent crime can
only work if there's no bodily harm: so simple arson (setting fire to property) is fine
(providing the evidence is there) but not arson causing danger to bodily integrity?
ConL
Recap
Finally, constitutionally-speaking, there are a few constitutional problems: the
Court says s.1 saves the violation of s. 11d): probably the reasoning is, something is
given to the defence (which the law had previously denied), the price to pay for it is the
reversed burden. But this is judicial activism. s. 33.1 has been in the books for 9 years
but there has been no real SCC Charter challenge. See fn. 53
Recap – The Defence of Intoxication [C. 887 to 919]
The point Canadian law had insisted on for many years was to the effect that the
defence of intoxication was only available where there was an offence of general intent
(since the only point of such a categorisation is figuring out whether or not such a
defence is available, one must go through case law to find the genre of the offence):
Beard said it, George affirmed it. It started to be contested (Dickson), but was
reaffirmed in Leary and in Bernard. Ah, the weight of precedent!
But then, along came Daviault, using Wilson J.'s semi-dissent in Bernard. Cory J.
said intoxication will be limited to offences of specific intent unless the state of
–45–
46
intoxication is so extreme it verges on automatism or insanity, in which case, the
defence is opened for general intent offences also. This is about the absence of intent
(and not necessarily the capacity to form intent). This was the law, as a matter of
fundamental justice. Eventually Parliament thought is was wrong so it implemented
s.33.1 Cc saying that extreme intoxication for general intent crimes involving bodily
harm could not be a defence.
So now, in specific intent crimes, intoxication is a defence, negating the MR (old
common law rule). In general intent crimes involving bodily integrity, it doesn't (s. 33.1
Cc). If there's no bodily harm, intoxication is only a defence if it's extreme in which
case it negates both the MR and the voluntariness of the AR (Daviault).
There are many problems with this provision, though it has been written with a
lot of Charter-proofing, mostly because the decision in Daviault was based on the
principles of funda-mental justice, which you can't openly contradict –and, of course,
you can't use the sunset clause.
IV. Self-Defence and Domestic Violence [C. 969 to 1014]
Hst
CASE
1. HOW LAVALLÉE CHANGED THE LAW.
1. 1. Introduction
The old law didn't recognise self-defence. Statutory provisions have opened in
(and it remains relatively unchanged since 1892), but the evidence must support it.
Self-defence: a justification for taking life or inflicting bodily harm. Imminence
is important ( duress p. 49). Do we overthrow it or reinterpret it? Wilson reinterpreted it
in R. v. Lavallée.
R. v. Lavallée (1990), 55 CCC (3d) 97 (SCC) [C. 993]
Facts. Over four years53, Line Lavallée and conjoint Kevin Rust (aka Rooster) had been fighting
(words and assault). Friends (namely Herb) knew about this situation and the doctor in the local
hospital didn't believe her excuses (she had been there eight times). After a party where they argued,
Herb came to console but, she hid in the closet. Rust found her, gave a gun. First shot went off,
through a screen, he reloaded the gun, she pointed it at herself, but he said "Once everybody's left, you
kill me or I get54 you". She shot him as he was leaving the room (he was walking away but got shot in
the back of the head…): she admits she shot it [admission of the AR of the homicide, perhaps even a
confession: C. 994], but says she aimed out (accident), that "she was so scared" "as usual" and that
everything went "so fast"
Issue. Can she be acquitted for self-defence, esp. given that Rust was leaving the room?
References. R. v. Whynot [1983] 9 CCC 449 (NS C.A.) when Jane Stafford, also a battered wife, "shot
her sleeping common law husband as he lay passed out in his truck". She was convicted because the
self-defence was "unprovoked", you cannot have anticipatory self-defence [C. 997]: self-defence can
only be used under an imminent threat (now, is imminence a temporal matter or can there be a notion
of perception?)
Holding. Acquitted.
Reasonning. A battered woman might be able to recognise a lethal threat (reasonable apprehsion of
death, per s. 34(2) [C. 996]) that a RP wouldn't. A woman does not forfeit her right to a defence of
self-defence by staying in the abusive relationship. "Ultimately, it is up to the jury to decided whether,
in fact the accused's perceptions and actions were reasonable" (i.e. the jury doesn't have to buy the
evidence).
Comments. This case is remarkable with regard to the legal work of all parties. See 1.2.
1. 2. As Crown/Defence what would you do?
–46–
47
P&E
Strategy: First we have to deal with the old law that says there is no defence in these
circumstances. Then we have to build up enough evidence to justify a new law.
Testimony
[C. 994]55
Questions
as to the
MR
Witness
Argument
Syllogism




PoL
Crown (against her)
She admits she did it (AR): all
that is left is the MR.
She did say she aimed above his
head, but she meant to shoot: motive
is there, intention to shoot is there
Now, is there intention either to kill
of to cause bodily harm with
recklessness as to whether death
ensues of not?
The police officer
Provocation and intentional shot.
Was she reckless? She was a bad
shot.
Whynot: "Homicide is not Canada's
answer to domestic violence", there
was no imminent threat (necessary
per doctrine) thus is it not opened to
the jury to consider self-defence.
Defence (for her)
AR admitted, can't do anything about it –it
doesn't start very well.
(can't invoke accident, this concedes the lower
offence of unlawful act manslaughter)
(after Stone there's no real way this can be
automatism.)
Dr. Shane (aka "Jukebox") about the battered
woman syndrome (identification of a
phenomenon the court doesn't know about)
Local doctor about her being beaten or Herb
or another partygoer.
Police statement: first-hand evidence about
her state of mind: scared, confused, scared
(not Lavallée herself, who could be her own
worst enemy under cross-ex, but the mere
statement56!)
We should stretch the concept of
"imminence".
Plus she's an abused woman: even if Whynot
says you can't invoke self-defence if there was
another way out, psychiatric evidence might
so there was no such way out in her head,
given her relation with Rust (psychiatric
evidence of a pattern).
She did it.
She wanted to do it.
Law doesn't recognise this as "selfdefence" for lack of imminence.
She's guilty.
BWS exists.
Lavallée was a BW and she was in the throes
of an episode when she shot. Then, the
meshing of the theory and the facts must be
done: there is evidence to the effect that being
a battered woman, Lavallée could fall in an
episode of the battered woman syndrome
(conclusion) and thus do weird things at the
very moment the trigger was fired.
But no one can no that she was in an episode
for sure, which is why it should be left to the
jury to consider the RP-under-thesecircumstances.
This case also had to do with the extent to which an expert can give evidence based on hearsay.
You can do it if the hearsay is already admissible evidence.
Subject of imminence was reconsidered in this context based on scientific evidence.
It would make sense to characterize this as an excuse, although it might be unpalatable.
Battered woman syndrome has been criticised, in the US notably but not only.
2. OF AFFIRMATIVES DEFENCES IN GENERAL.
Self-Defence, and affirmative defences in general, must have an "air of reality"
to them before the evidence can be passed on to the trier of facts (Pappajohn, p. 34).
The whole "mistake of fact" discussion deals with this issue as well.
–47–
48
P&E
ItoJ
ConL?
(CaSE)
Recap
The role of the trial judge: he must sum up all the case and tell the jury what
they have to take into account and want they can't. In a jury trial, there is an oral record
of the instruction, in a judge-only trial, the same process should take place but the only
evidence available will be the reasons of the judge: until very recently, judges didn't
have to explain. But since Braich and Sheppard, the SCC gives more importance to the
reasoning: this is not only about the credibility of witness or evidence; it has to do with
the quality of reasons throughout the trial and until the end. The judge's reasons must be
sufficient as to give the "appellant" to understand why the verdict was what it is
(support the essential findings). It's still pretty loose, but the idea's there. What's ironic
about it: the duty to give reasons has long been recognised by the Minister of Law as
part of due process and only later did the SCC recognise this.
Is there a basis for a constitutional defence in the fact that the trial judge didn't
leave a certain defence to the jury? Some say juries won't even consider it, other fear
it'll confuse or "un-focus" them57. As we know, the prosecution cannot succeed if not
behind the reasonable doubt. There's something called a motion for non-suit
(judge)/dismissal (jury): that the case should be withdrawn from the trier of fact
because as a matter of law the evidence is so weak that no trier of fact, no matter how
well instructed, could ever convict –and it's a question of law for the judge.
R. v. Cinnous (2002), 162 CCC (3d) 129 (SCC) [C. 986]
Facts. A career thief involved with narcotics decided to take temporary retirement, feeling that he was
in danger from former colleagues. Pressured to go back into business, he noticed his "partners-incrime" had put rubber gloves, which is an indication in the trade of impending violence. He assumed it
would be aimed at him, so he shot them and pleaded self-defence.
Issue. Is there such a thing as anticipatory/preventive self-defence? If so, was the evidence sufficient
("air of reality"-wise) in this case (and this is the constitutional question)?
Holding. It is not enough that the accused thought there was an imminent threat; a reasonable person in
the same circumstances must perceive the threat.
Reasonning.
Comments. This constitutional question is real: it's what lead to the redefinition of intoxication, in
Daviault, p. 43 This is not a question of evidence, it's substantive criminal law. Judge decides about
evidence, and jury decides about facts.
Prof. thinks "air of reality" is an evil phrase that should be replaced with (or translated by), for more
precision: the judge must ask the jury to consider a defence if the evidence is sufficient that a properly
instructed jury could find a reasonable doubt on the whole of the evidence.
Recap – Self-Defence [C. 969 to 1014]
The old law didn't recognise self-defence. Then came a few statutory provisions,
but the evidence has to support it and the threat had to be imminent time-wise
(Whynot). But the, the law was reinterpreted in Lavallée, by asking the jury whether as
a fact (of course, given the evidence about her situation, scheme of mind, and the
notion of imminence, perhaps distorted), if it the accused's perceptions and actions were
reasonable. In Lavallée, her actions were deemed reasonable, not in Cinnous where
"anticipatory self-defence" did not succeed.
As a matter of general law, affirmative defence must have an "air of reality" to
them before the evidence can be passed on to the trier of facts (Pappajohn). And if the
trier of fact is a judge, he must explain himself properly. It is not a basis for a
constitutional challenge (again, there is a certain threshold, Osolin).
–48–
49
V. Duress and Necessity
(cases)
(CaSE)
PoL
1. DURESS [C. 945-968]
It is a very complex defence in common law. The form of duress depends on the
offence charged. [Casebook:] In Hébert, the SCC stated that perjury (or any other
offence for that matter) could not call for a defence of duress if the respondent could
have easily escaped the threat. The question as to whether the defendant could have
escape duress or not is left to the jury (as per Mena). Very complex defence codified in
s. 17 Cc. In Paquette (1976) the SCC decided duress was only a good defence for
people who committed the offence.
If you look at Hibbert, CJ Lamer expresses a bit of despair as to the state of the
law and the need for Parliament to clean it up.
Hibbert v. the Queen (1995) 99 CCC (3d) 193 (SCC) [C. 426] not to read, not really seen in class
Facts. Hibbert was forced to accompany soon-to-be-murderer to the victim's apartment. He rang and
asked the victim to come down even if he knew his friend was waiting for him and has a gun. The
victim was shot. Argues duress. Is acquitted of attempted murder, but convicted of aggravated assault.
Issue. Can the accused use the defence of duress for 21(1)(b) where he does or omits to do something
for “the purpose of aiding” anyone to commit it? Does it mean desire or knowledge?
Holding. Desire.
Reasoning. This was a mens rea offence and the Crown had to prove that the outcome was desired not
foreseen by Hibbert, who was under duress for he couldn't have escaped his friend (well, ex-friend, I
suppose): he's excused under duress, but the conduct was still there.
Ratio. Lamer CJC spends a lot of time discussing the meaning of “purpose of aiding” and says that
this phrase does not mean that the accused has to find the offence he is aiding as desirable in itself.
Therefore, MR for aiding under 21(1)(b) cannot be negated by duress.
Comments. Major ruling in Canada on duress. Desire is the highest form of mens rea but knowledge is
close second.
Basically, duress is an excuse to blameworthy conduct. In the traditional view, it
doesn't negate the MR of the offence. But one could argue the force is so overwhelming
that it makes you act like a robot (close to automatism) or that it negates the
voluntariness of the AR (say in fraud there can hardly be dishonesty as an MR and
duress). Once again, this is all very ambiguous. In any case, there must be an element
of constraint.
2. NECESSITY [C. 921 TO 944]
CASE
Perka v. The Queen (1984) 14 CCC (3d) 385 SCC [C. 927]
Facts. Colombian ship full of narcotics has engine difficulties and weather's real foul. It stops in cove
off Vancouver Island to avoid sinking and starts to unload the ship. They are arrested and charged with
importing a narcotic and possession of a narcotic for purpose of trafficking. They claimed a defence of
necessity –they had narcotics, but had no choice other than to stop.
Issue. Is there a place for such a claim in Canadian criminal law?
Holding. They can but not here.
Reasoning. Court discusses the difference between justification and excuse (justification suggests
invalidly that a system of positive law may recognize the principle that a person may violate the law
because in his subjective view the law conflicted with a higher social value, see e.g. Dickson in
Morgentaler [1976]): necessity can be any, according to the circumstances 58: what counts is the
position of “moral involuntariness59” [Wilson talks about the unpunishable nature]. “At the heart of
this defence is the perceived injustice of punishing violations of the law in circumstances in which the
person had no other viable or reasonable choice available; the act was wrong but it is excused because
–49–
50
it was realistically unavoidable.” Punishment of such involuntary conduct is pointless and wasteful
because it cannot deter
Ratio. This case recognizes necessity as a defence in Canadian law with a broader scope than duress.
Dickson lays out 10 criteria of the defence (C. 859-60) of which we'll remember that the situation must
be urgent and involved a clear and imminent peril, that the harm inflicted must be less than the harm
sought to be avoided (proportionality) but that prior illegal activity doesn't deprive an accused of the
defence.
The SCC, importing from the American scholar George Fletcher, that there can
be no culpable mental state where there is moral involuntariness, that is no the absence
of choice in the absolute (duress) but the absence of choice opened to a reasonable
mind under the circumstances (that is, most probably, as rather panic-striken mind):
duress could be considered a limited form of necessity.
Overall: there is a place for necessity in Canadian law (contrary to the
conclusion reached in Dudley v. Stephens where a cabinet boy was eaten raw so the
crew could survive –the Court held it was their duty to die), but what is its place? Its
nature will pose its limits. Both Dickson and Wilson60 use the concept of moral
involuntariness but he sees it as an excuse, she sees it as a justification, sometimes. The
problem with Wilson's reasoning is that by saying it's a justification, you involve the
idea of a greater good (protection of one's self, in self-defence) whereas moral
involuntariness doesn't fit with the idea of (higher) choice. On the other hand,
sometimes think lack of choice can result of the necessity "blocking", so to speak, a
choice (than, it can be seen as a good reason): if you bust every red light to Ste-Justine,
will you be told that you're guilty because the Royal Vic was closer? Of course not.
Example of a single mother with two children, the father doesn't pay alimony despite court
orders; she finds a job part-time but still receives her BS cheque. She's charged for fraud, she argues
necessity. Can she? Is it a justification? An excuse? Since it was premeditated, it has good chances of
being a justification. As an excuse, proof will have to me made that it was extremely pressing (but Ruzic
showed that some concepts could be extended) – duty of feed her kids, as mandated by the Cc. **
** How could this finish? Very soft probation (ok, this is a sentence solution)? Fraud is there –
and many people are in the same situation (but fraud and poverty is a big problem). Why did they charge
her in the first place? Third solution of yes but complete discharge: against deterrence. Court acquitted.
3. SELF-DEFENCE, DURESS AND NECESSITY
3.1. Duress and necessity
CASE
PoL
R. v. Ruzic [2001] 1 SCR 687 [C. 958]
Facts. Ruzic smuggled heroin in Canada, fearing for her mother who was held captive in Serbia. Had
she told the authorities what her position was, she would have aggravated her mother's situation.
Issue. 1. Since the menace of death was not immediate and the person putting pressure wasn't present,
is the defence of duress available? 2. Is s. 17 Cc constitutional for the scope of duress at common law
is larger than what s. 17 grants?
Holding. 1. 2.
Reasoning. Ruzic's act wasn't voluntary (AR) and it wouldn't be fair to punish her for what wasn't
done of her free will: morally involuntary acts cannot give rise to criminal liability, the involuntariness
of the act being disculpatory. To condemn her would be going against the values of criminal law and,
of course, fundamental justice (and s. 1 doesn't justify this). But she could have turned herself in at
anytime between Athens and Toronto and there's also a problem as to the imminence of the menace (or
its remoteness), which led the court to a wider discussion on duress and the fundamental principles of
criminal liability and the analogy between duress and necessity (infra p. 49)
Ratio. Duress applies only where there is a threat of bodily harm or death and that the victim has
–50–
51
strong reasons to believe they'll be used (and cannot escape, but that is left to the jury to decide, as per
Mena), whether or not the aggressor is present (this concept of imminence was deemed too restrict
and inconsistent with the principles of fundamental justice). The genuineness of the belief in the threat
must be left to the jury.
Comments.
Con
Lebel J. say for every criminal offence, there must be an element of voluntary
conduct on part of the accused (MR): if the conduct is involuntary, than that person
cannot be responsible for the conduct involved. This makes perfect sense in the
physical involuntariness in the commission of acts. But the Court goes on and adds
what it had added in Perka, that is, that you cannot have voluntary conduct if there is
moral involuntariness.
Finally, it was said in Ruzic that if, on the evidence, it was found that she
genuinely believed the threat was real even if it wasn't imminent, it should be put to the
jury (otherwise, it might lead to the conviction of the one acting with morally
involuntariness).
Nature. But it doesn't answer the question as to the nature of moral
involuntariness: is it an excuse or a justification? Even if we accept this idea of moral
involuntariness are there limits in which this concept can run in a criminal trial? But if
there is really a definition of moral involuntariness, what could support a limitation of
this claim?
Constitutional problem. The constitutional problem in Ruzic is as to the outer
limits of duress, mostly related to the element of imminence: even if the "threatener" is
far away, geographically-speaking, if she subjectively acts under constraint, then the
MR is negated. In any case of defence, it is not opened to be considered by the trier of
facts unless there is a sufficient evidentiary foundation. The Court has to be satisfied
there is at least an "air of reality" to the evidence, that is could (not would, could) find it
plausible.
3. 2. Adding self-defence and the table's complete.
Necessity
"Duress"
circumstances.
of
Duress perhaps a little more complex
Response to the eminent threat imposed by
another person
Excuse: the act is reprehensible but as a
matter of policy, no RP is expected to act
otherwise.
Theoretical underpinning: sometimes, the
MR and the AR are conceited; sometimes
the MR is contested altogether. Hibbert is
an example of this (see below).
Not an defence to murder
Self-Defence
Justification: conduct that
the law approves
Excuse to murder61
Always a question of relativism62, for the extension of the limits of a given
claim. To what extend must there be homogenisation and pasteurisation63 of the
claims64? Subjectivity/objectivity (Creighton in the context of defences? But defence
are both RP and the accused's belief)… Relativistic65 claims: danger! How many open
doors can one tolerate? He says it's a bomb: constitutional exemptions66?
4. CONCLUDING REMARKS SOMEWHAT RELATED TO THE SUBJECT.
–51–
52
Little puzzle: man and woman go into this suicide pact. Shot was supposed to go
through both hearts. However, he survives… He wasn't charged with offence of assisted
suicideA67, rather murder (and they're not alternative offences). So: can we use Jobidon and s.
14 Cc? Alterated state of mind? Motive? Accident (his survival)? Maybe –she was going to
commit suicide anyways, so there was a form of "duress". Also, this might seem a little harsh,
but I have a problem with the fact that he didn't shot again and, supposedly, turned himself in?
Fear of staging suicides pact if this accepted. Now what if this is seen as a cooperative MR (and
AR)? Sadly, this doesn't exist, for it would recreate all of agency, but it’s a cute stretch.
Capsule pacte de suicide Gendreau J. Une histoire affligeante que celle de Bertrand Gagnon et Annie Asselin.
3 Gagnon a connu Annie Asselin, une mère de deux enfants, au moment où elle sortait de son divorce. Ils sont tombés
follement amoureux et se sont rapidement mis en ménage. L'intimé avait alors 30 ans et cette union était pour lui, véritablement, la
première; sa personnalité, fortement dépendante, trouvait beaucoup de gratification dans la réponse de sa compagne à ses élans.
Mais les choses se gâtèrent: Mélanie, la fille de 12 ans de Mde Asselin, acceptait mal la nouvelle union de sa mère au point où elle
devenait une menace à la stabilité du couple. Bertrand Gagnon tenta de se rapprocher de la jeune fille, sans succès. On consulta des
travailleurs sociaux, en vain. Graduellement, leproblème prit des proportions si considérables que la rupture était même envisagée.
Cette idée était intolérable à Gagnon et, semble-t-il, aussi à Mde Asselin qui songea au suicide et fit même une première tentative
infructueuse.Elle s'en ouvrit à son compagnon. Gagnon fut atterré par cette révélation. L'idée de perdre sa compagne lui était si
insupportable qu'il décida que sielle devait partir, il devait l'accompagner. Ils décidèrent donc de se donner la mort. C'est Gagnon
qui décida des moyens et conduisit les préparatifs.
4 Le lendemain de la nuit de la prise de cette décision, les deux conjoints agirent comme si de rien n'était: Mde Asselin se rendit
à son travail, comme à l'accoutumée, et son compagnon vaqua à ses affaires; entre autres, il paya leloyer. Cependant et
parallèlement à une conduite apparemment normale, il mittous les détails du projet au point: il trouva d'abord un pistolet de
fortcalibre qu'il chargea et écrivit trois lettres à l'intention de leurs procheset des policiers qu'il plaça dans des enveloppes non
cachetées. En fin dejournée, peu avant le retour de sa compagne, il dépose l'arme chargée sous lelit mais à portée de main pour une
personne allongée, les lettres sur une tabletout près, s'étendit et attendit. Lorsqu'il ntendit Annie Asselin entrer de sontravail, il
l'invita dans la chambre. Elle se coucha sur lui. Cela n'avait riend'exceptionnel pour eux et faisait partie de leurs habitudes. Ils ne
firent, audépart, aucune allusion au projet de la nuit précédente et échangèrent quelquespropos banals sur les activités de leur
journée. Après un moment, il lui montrales trois lettres: "C'est à ce moment-là qu'à ... qu'à ... là ... c'est ...c'est à ce moment-là qu'à
... qu'à ... qu'à l'a su que ... que le plan était àexécution", explique-t-il (m.a., vol. 4, p. 606). Et, pour éviter que lesenfants Asselin ne
les découvrent morts et baignant dans leur sang, BertrandGagnon, sans que l'un et l'autre ne se déplacent, prit le téléphone tout
prèset appela les policiers. Son appel fut reçu par Marc Larouche, un agent de sesconnaissances. Il l'invita à se rendre
immédiatement chez lui. La suite estainsi relatée par Gagnon (m.a., vol. 3, p. 607 - témoignage de BertrandGagnon):
On a continué à parler un peu. Je lui ai demandé: 'On n'a pas changé d'idée' Pis'a m'a fait signe de tête que non. Là on
s'est ... On s'est serré, on ... ons'est embrassé, pis on s'était dit qu'on ... qu'on s'aimait ... Et puis, quandl'policier est arrivé, il a frappé
à la porte. J'ai ... J'ai dit: 'Oui'. J'aidit ... J'ai dit: 'C'est Marc?' Y'a répondu: 'Oui.' J'ai dit: 'Rentre.' J'aiattendu qu'y fasse quelques pas
dans la maison, pour qu'y soit bien rentré, pisj'ai ... j'ai pris l'arme pis j'ai tiré ... (Le témoin pleure)..
5 La balle traversa leurs deux corps, de part en part, pour se loger dans lematelas. Le coup fut mortel pour Annie Asselin,
touchée au coeur. BertrandGagnon, bien que grièvement blessé, s'en tira, "un miracle", dira le docteurVoisine (m.a., vol. 4, p. 705).
Jury acquitted and the CA upheld the acquittal. The specific reason is that there is
something different about a genuine suicide pact, where he was only the instrumentality of her
will. But there is a just solution (what's the point of prosecuting him?) and a legal solution (it
was murder).
Recap – Of Duress and Necessity [C. 921 to 968]
Both defences are very complex in common law, necessity being some sort of
"duress of the circumstances". It is unknown whether they are justifications or excuses
(well, duress is an excuse for blameworthy conduct, Hibbert, but there's a debate over
necessity, Perka), what is sure is that criminal offences require voluntariness and that
(morally) involuntary conduct cannot give rise to criminal liability. This being said,
Parliament should clean it up.
Duress can only be used for someone who committed the offence (Paquette), it
is up to the jury to determine whether there was a possibility of escaping (Mena).
Necessity is accepted in Canadian criminal law (Perka) and the nature of the
circumstances will pose its limits with regard to moral involuntariness and its nature as
a defence. Necessity negated the MR, while duress could negate both the MR and the
AR if one is so fearful as to act almost like an automaton (Ruzic).
Duress applies only where there is a threat of bodily harm or death and that the
–52–
53
victim has strong reasons to believe they'll be used and the presence of the aggressor is
not necessary if a jury finds that the accused really thought she was under duress
(Lavallée, "air of reality").
NOTES
1
Crime to frighten the Queen.
National crim law: Goal of John A. MacDonald.
3
And other forms of terrorism.
4
Difference between use of product on purpose and intention to harm in using harmful product.
5
Before it was struck down by the Charter, there existed constructive murder, i.e. if in the course of a major criminal
offence, someone dies, there could be a charge for murder even if there is no intention. Drunk driving and
manslaughter is another example.
6
This last conduct point can be debated. Is there a requirement of positive action, like throwing a Molotov cocktail,
or can it be negative, for example, parents who forget to feed a child that needs to be fed? In the latter can, does the
presence of a relationship make a difference?.
7
Can then self-intoxication be the fault? It had been left to the Parliament (1995), but it seems like yes.
8
This is not the model of the US, where criminal law is mostly a state matter. Same in Australia. Je note que ce sont
deux pays où les pouvoirs résiduaires vont aux états.
2
11
Of course reasonable limitation is only a nice name for reasonable violation. And of course, the re-evaluation
becomes difficult. But think Sept. 11th where the collective security has been able to erode certain liberties. To what
extend will it be inconsistent with the Charter: yeah, but those are reasonable limitations, are they not?
12
In one of the Torontonian Morgentaler case, the lawyer said: if you don't like the law, acquit him. But you cannot
say that to the jury. In a SCC judgement, Dickson went out of his way to slap that Council. See fn57.
13
But this could be seen as an omission: failure to remove or an act: continuous application of force.
14
The unspoken rule of the bad man.
15
These things always happen on the 401.
16
R v. Nette [2001] 3 SCR 488
17
:Tthere are offence in which manslaughter is included in murder, i.e. if manslaughter is proven, the verdict is open:
you can't really have different standards: juries would die in confusion.
18
Based on Adam Goodman's summary for Criminal Law PUB491-111B, gr. 01, Prof. Sklar, Winter 2002, available
on PubDocs.
19
Ex. until very recently, a man couldn't rape his wife (and for 300 years): the rationale stayed long (it was a basic
tenant of our legal system).
20
Discussion about what is littering intentionally, knowingly, recklessly, wilfully blind? Intentionally: wanting to
litter. Knowingly: I know I'm littering (I did, didn't particularly want to, but did). With wilful blindness: I truly
believed it would fall in the trash can –yeah, you were 10 ft. away. Recklessly: I threw it and didn't care about it
falling on the floor or in the trash can. Difference between knowing there is no consent (knowledge) and knowing
there might be a risk that there be no consent (recklessness): the object of the awareness is different. And there's also
wilful blindness (awareness of the all the contextual elements that would lead to knowledge are there but the
conclusion is, wilfully, one supposes, ignored).
21
22
Adam Goodman's Summary. Supra note 18.
Now 319.
24
Then again, this is the stock market as a whole. Though, one might say, there is an element of deceit of falsehood,
but with the actual definition of MR, it's hard to define.
25
Example with plagiarism in the Student Handbook. But why the presumption, and the question of bad printing that
chops off the reference + idea of recklessness.
26
Student says there is an objective standard in assessing wilful blindness.
23
–53–
54
27
This was for long after called "Caldwell recklessness". And the Cambridge LJ, amongst others, said after that case
that the Courts should close its criminal chamber.
28
What about cultural considerations? Say, guns. In Creighton, In Lamer's approach what should we take into
account: age, experience, physical abilities? What about culture? McLaughlin says it doesn't matter because that's
rejected (you can't take into account the characteristic of the accused) but can that make sense, wouldn't it happen
anyhow (in the sense that there is a cultural consensus as to what is reasonable behaviour)? Is it possible to have a
single standard of marked departure? How can you instruct people to disregard their view of what is reasonable?
Unless the standard is so high that ça brouille les différences. The only exception McL. allows is where someone is
incapable of conforming to a standard of reasonable behaviour. What would be accomplished by that idea, he
doesn't know (severe mental deficiency? not insanity), in any case, it's a very narrow idea, a very small exception.
Prof. thinks as a practical matter (and perhaps as a matter of principles) it is inevitable that the characteristics of the
accused will be taken into account because by definition, the standard of marked departure depends on the
circumstances of the case: the trier of facts has to take it into account. This issue hasn't been litigated yet (and hasn't
gone to the SCC).
29
Of Augustus v. Gosset.
30
R. v. Hundal [C. 460], dangerous driving causing death, said in the intro and that's it. For the rest, he talks about
the element of fault in dangerous driving, driving being a regulated activity [461 milieu]. The oddity is that maybe
there's some element of regulation, but this isn't a regulatory offence (dangerous driving causing death). And a
regulatory offence of homicide is kinda hard to swallow.
31
Constructive liability [C. 709 to 722 and 462 to 474] and Constitutional aspects of fault [C. 474 to 480].
32
We call her (it's usually a she) the "complainant" because the presumption of innocence makes her not a victim yet
33
(1992) 66 CCC (3d) 321 SCC [C. 652]
34
(consent withdrawn though none of the parties say that: he says she snapped; she says she never consented)
35
And what would happen with intoxicated mistakes.
36
V. Extension of Guilt: 1. Participation [C. 483-537]; 2. Inchoate offences [C. 539-592]; 3. Corporate Liability [C.
593-613]  will not be covered.
37
And in Thornton/Cuerrier, the SCC said the common law duty of care was included in s. 215, thus making the
offence statutory. So, out of this question. As for the other (HIV)… Take Jobidon, where the SCC redefined the
scope of assault by saying that not only could you not consent to death, but also to grievous bodily harm.
38
R. v. Swain?
39
This is not considered –and it is, as the SCC puts it, "a problem with sleep hygiene"– to be a mental disorder –I
kinda disagree.
40
Though Lamer wanted a peace bond (an 8-10 order): «You are bound over to keep the peace under the following
conditions» and it you can keep it for usually 12 months, the charges will not be proceeded with. In Quebec, it's
usually for domestic violence (in Toronto, it's not). However, the LaForest for the majority said, even if he was
acquitted, there should be no penal sanction whatsoever.
41
Unlike Parks who turned himself in.
42
Contra Woolmington, C. 261 a); but see Steane p. 27.
43
And let's forget the causation (which blow caused her death, the 1st, the 2nd or one of the 45 following?)
44
This is a partial defence that mitigates murder to manslaughter: rage that a reasonable person could not control. Of
course, the scope of this defence is, again, highly controversial.
45
Actually, and to be more specific, he thinks these policy decision based on fear of having this defence extended
too far are overreaching (juries are not that stupid + he is disturbed by the degree of suspicion towards the trier of
facts: he think it's a constraint uncalled for + he's anxious about the SCC deciding on its own to recognise a breach
of the Charter and invoke s.1 on its own: they have the power constitution-wise, but he thinks it was not used
properly: the common law defence of non-insane automatism could succeed if there was a doubt on the whole of this
evidence).
46
A David question: what is harsher: the suspension of the MR in Creighton or this?
47
If it's not self-induced, you automatically have a defence. Would addiction come here as well? He doesn't know, it
looks like no, but it could have significant importance proof-wise.
48
D.P.P. v. Beard [1920] A.C. 479 (HL, UK)
49
Hey the guy tried!
50
Taken from the summary of Chris Canavan, Criminal Law Summary,doc (2000), available on Pubdocs.
–54–
55
51
The evidence was pathetically weak as in, when arrested, he told the police officer: "I was all drunked up, I guess"
and that's it. All of the evidence lies in that sentence –it was probably so weak it shouldn't have been given to the
jury.
52
Marked departure  is chronic alcoholism. In Vickberg, - being called Professor in the courtroom is a sign you've
lost. Attempted murder is specific intent. This case said s. 33.1 was against s.7 but ok with s.1 in BC but it hasn't yet
gone to the SCC! And there isn't even a major body of appellant jurisprudence in Canada. But there was SEVERAL
constitutional weaknesses in this provision  the weakness is not as much as the substitution, but the extent. In the
1990 (Penno f.ex.) in which the SCC said extreme intoxication negated both the MR and the voluntariness of the AR
(he thinks it makes sense for narcotics where there can be dissociation, but alcohol, he doubts) → s. 2 says the
involuntariness of the AR is no good (that's a very severe measure: the denial of the defence compels a guilt verdict
even where there was involuntariness of the accused – he says this scream for a Constitutional challenge say if a
drunk partygoer accrochers another who falls down the balcony).
The writing was a lot of "Charter-proofing": there was a preamble (of course, it's nice, but the preambule can
explain Parliament's intention and awareness of this being s.1-saved) + long series of witnesses in favour (this gives
you a record) + Department of Justice prepared a model argument in any jurisdiction in response to a constitutional
challenge (that never came).
Suppose the charge sheet has several offences: two offences of general (damage to property, Daviault + physical
integrity of another person s.33.1) + offence of specific intent (for which the old rule applies)  now imagine the
instructions to the jury.
54
Is "get" to be understood as "kill"? or "beating up as usual".
Prof. qualifies this as “Spontaneous tragic poetry”.
56
He qualifies this as a "metaphysical challenge".
57
Long student discussion on the idea that a jury might find a defence that wasn't put forward by the judge. This is,
called by jury nullification (from the 17th century forward, and during the 18th and 19th century, it was the only
defence, in the UK, there were over 200 offences that carried the death penalty until 1820…). The jury is the solemn
trier of facts: his decision is sovereign. But he has to follow instructions of the judge. Jury nullification is: we don't
care at what the judge said. Take The People v. Goetze [C. 970] or all the Morgentaler cases. However, what is not
permissible is for a member of the bar to tell the jury: "If you don't like the law, acquit". This happened in the last
trial of Morgentaler (and Dickson's freaked out). Same happened in Latimer. Of course, since here and in the UK the
jury deliberations are secret (it's part of their oath), we'll never know whether or not the jury disregarded the
instruction: the only rules are made for the judges to respect (state all the law, premium of plain language). Very
recent decision of the HL: R. v. Smith. Smith is a spectacular case in which a member of the jury sent a letter to the
judge saying what was going on in the jury room is disturbing (some members are talking about disregarding the
instructions, some say "if he's prosecuted, he's guilty, if not, there's a CA" and some were bullying around): and
what was the judge supposed to do having receive this letter (assuming it's accurate and truthful)? More than the
ability to understand the instruction, there's also the issue of the wilful disregard. And no, he didn't say what the HL
said.
58
«Necessity conceptualized as merely an excuse is much less open to criticism: realistic assessment of human
weakness: liberal and human criminal law cannot hold people to strict obedience in emergency where normal human
instincts overwhelmingly impel disobedience»
59
Draws on George Fletcher: necessity goes to voluntariness of actus reus: not physical voluntariness, obviously,
since physically capable of abstention from the act; but realistically the act may not be a ‘voluntary’ one. His
‘choice’ to break the law is no true choice at all; it is remorselessly compelled by normal human instincts. ... Moral
or normative involuntariness
60
Which was later used for a separtion of conjoined twins [C. 932].
61
So is provocation, its lesser cousin: they are indirectly related but provocation leads to a mitigation of the charges
of murder (un cousin mongol, comme dirait l'autre), though as a a matter of policy, it has been suggested (not
proposed) that perhaps we should get rid of it altogether, rage not being a real excuse, usually because it usually
came up in domestic violence. See C. 749+, ch. 14.
.
63
His words.
64
Say kirpan and all comparable claims – does this means you're being intolerant?
55
–55–
56
65
Au sens commun.
There is a provision in the Code obliging the judge to put a ban on firearms. But what if the offender is an
aboriginal who depends on this to live (I guess you can't have an injunction for archery classes).
67
In Rodriguez, the SCC said there was no right to assisted suicide.
66
–56–