Definition of Crime
Westendorp v. R. (1983) – Calgary by-law regarding
prostitution unconstitutional
Reference Re B.C. Motor Vehicle Act offence w/
possibility of imprisonment must require MR
R. v. Vaillancourt (1988) – only for those offences that
carry serious social “stigma” will the Court require that fault
be assessed subjectively
R. v. Wholesale Travel Group (1991) – legislature can
use an objective measure of “fault” & a reverse onus of
proof for regulatory offences
R. v. Banks – squeegee case, Safe Streets Act
Gardiner v. A.H. Robins (Dalkon Shield) – IUD caused
serious health problems to 9000 women injured – no
prosecution
Bhopal Disaster (India) – corporate crimes killed 3787,
$470M settlement; dealt in civil, not crim
R. v. C. (M.) (1985) s. 159 higher age of consent for
sodomy than other sex acts, violates s. 15
R. v. Rehberg (1994) s. 21(1)(ii) Family Benefits Schedule
required reporting of cohabitation and disqualified
cohabiting applicants -> violates s. 7 & 15, risk of
imprisonment if convicted and discriminated against single
moms in poverty
R. v. Clay (2000) constitutionality of Narcotic Control Act
Marijuana Provision →act violates s.7 of Charter: “harm”
principle can only deprive someone’s liberty if harming
others -> fails, marijuana not as harmful as other but still
has a reasoned apprehension of harm - legislation not
arbitrary or unfair
R. v Malmo-Levine; R. v. Caine weed in car –harm
principle not PofFJ
Colonization and Aboriginal People
R. v. Fiddler (1907) Aboriginal shaman and brother kill
possessed woman, convicted of murder -> rigid application
of law, FN culture not considered (possessed woman turn
into cannibal)
Kikkik – Ootek goes crazy. Kills Halo (husband of Kikkik).
Kikkik kills Ootek. Not convicted, self defence. Trial not
done in her language.
Sioui (1990), Sparrow (1990), Sundown (1999) – quasicrim prov. laws prohibiting uses of park lands & trafficking
in wildlife w/o a license unenforceable against treaty
beneficiaries -> 35(1) protection of treaty rights
Delgamuukw v. British Columbia (1997) lower court
Judge criticized for racism - concludes prior to contact,
native people in B.C. led a life that was “nasty, brutish and
short” decision overturned by SCC
T.C. Smokehouse , Gladstone & Marshall recognition of
limited commercial fishing interests
Anuga rule – only statements given freely, voluntarily, with
full appreciation of one’s legal rights are admissible; abrg
problem with exercising their right to remain silent - answer
out of politeness, or misunderstanding of their right
(differing concepts of t, #, dist., locat.)
Marshall 17yo FN walking with black friend. Try to
panhandle from drunk. Drunk kills friend. Marshall 15 yrs in
jail. Unprofessional police, unreliable witnesses,
incompetent defense attorney, Crown fail to disclose
evidence, judge made errors of law
Enforcement of Law
R. v. White prostitute arrested. Claims equality rights
breached b/c exclusive use of “decoy” system to enforce s.
213 results in more females being charged -> No, more
women solicit; worries of danger or entrapment when going
after men.
Leo Lachance murdered by Aryan nation member,
police/prosecutors failed to investigate racism
Wilson Nepoose Cree convicted by all white jury 1987,
intimidation of witness, perjury by police (demoted, not
fired) -> N served 5 yrs
David Milgaard/Guy Paul Morin – convicted of murder,
served 22yrs/16mos; DNA test exonerated; police
fabrication of evidence
Sentencing
R v. C.A.M. sexual assault of father to child over extended
pr. of time -> max. sentence, retribution is a legitimate
principle of sentencing
Marlene Moore – Canada’s 1st female dangerous offender;
Lisa Neve – 2nd; R v. REG – first man to be declared
dangerous offender for persistent violent behaviour to wife
Thomas Claridge – jailed 28 yrs for petty offences finally
released
Squamish 5 (1984) politically motivated crimes (antiporn/pro-environment+ poor) caused 8 million in damages,
injured 10 ppl -> 6yr-life in prison, sentences
disproportionate given youth/remorse/lack of record.
Manchester Plastics - failing to guard a potentially
dangerous machine -> conditional sentence as alternative
to fines (which studies show are not effective for corporate
crimes).
Miloszewski - 5 white supremacists convicted of
manslaughter for beating death of Sikh.
Hamilton – two African-canadian women smuggling
cocaine from jaimaca in latex gloves in stomach – judicial
notice, conditional sentence b/c they were particularly
vulnerable
Brown blacks in Canada more likely to receive harsher
Macooh (1993) SCC expanded powers of warrantless
sentences in equivalent circumstances-unemployment,
arrest by holding that police officer in hot pursuit of
pretrial detention, prosecution by indictment
someone found committing a provincial offence may enter
Naqitarvik – Abg man sexual asslt 14yo girl. Trial: light
a private dwelling house to affect that arrest.
sentence w/ abg counselling; CA overturns: harsh sentence Detention
for harsh crime
Detention = restraint of liberty, need not be physical; when
Gladue (SCC) – 19yo abg. girl stabs and kills fiancé.
officer assumes control over the movement of a person by
a demand or direction
Doesn’t live in abg. community.
Morin – Sask CA overturns due to little evidence for circle Therens (1985) asked to accompany officer to station for
sentencing prerequisites
breathalyzer. Not offered counsel. →qualifies as detention
Inwood – assault on wife & infant son+history of abuse -> Grafe (1987) stares at cop car, cop asks name -> not
non-custodial sentence, no specific deterrence
detention, could have ran
Hebb – Woman steals cigarettes, imprisoned for inability to Yorke: an accused who reluctantly agrees to accompany a
pay fine. ct quashed sentence b/c no fine opt program, age- police officer to the station for questioning is not necessarily
limited phrase violates s.15.
detained such that his 10(b) rights are triggered.
Policing
10b rights triggered: (1) the manner of asking the
police methods challenged: R v. Paternak interrogation; R accused to attend at the station was such to create an
v. Wolfe entrapment – alcohol offered to abg. on reserve; apprehension of detention; (2) the police in fact regarded
R v. Boucher high-speed chase – police fired at car
the accused as a suspect at the time of questioning; and
→assault; R v. Dunn use of force – police violently
(3) the accused had reason to belief he was being detained
assaulted African Canadian who refused to identify himself; Shafie Actions that, at the hands of governmental agents,
R v. Brown racial profiling
would be a detention, do not amount to detention within the
Patricia Williams not buzzed into store by white teenager meaning of s. 10(b) when done by private persons. So
interrogation by the accused’s employer’s private
– interests of society (prevent robbery) enacted in racist
investigator was not a detention -> no right to counsel
manner.
Eleanor Bumpers elderly woman shot by police in Bronx triggered.
Hufsky – SCC, random roadside stops by the police OK:
during attempt to evict her
Thompson racial fight in a N.S. high school, 3 black dfds violated s.9, but upheld under s.1
convicted, only 1 of 8 statements was from a black person Fosseneuve warrantless arrests violates s.9 when based
– challenge on s.15 of Charter -> fails, lack of thoroughness solely in “public interest”
Simpson CRACK HOUSE: Hunch insufficient; car stopped
≠ discrimination
R v. RDS black kid obstructs cop with bike, judge
after driver seen leaving a crack house.
challenged b/c believes black testimony over cop -> test of Need “articulable cause”: objectively discernable facts
reasonable apprehension of bias fails, some subjectivity is which give the detaining officer reasonable cause to
allowed.
suspect that the detainee is criminally implicated in the
R v. Melaragni two white officers acquitted of charges of activity under investigation.
shooting Wade Lawson by all-white jury. R v. Durham – Ferris (1998) (BCCA) The right to this search was confined
officer charged with shooting Sophia Cook, careless use of to the search for weapons as an incident of investigative
firearm- stay of proceedings arguing violates s.7 of Charter detention and was said to be contingent on the
circumstances of the detention.
Deane – cop kills abg. protester, claims he saw a gun;
Johnson (2000) (BCCA) – police searched two pillowcase
Deane and the other officer fabricated evidence
carried by the accused after they briefly interrogated him as
Brown – black Raptor pulled over, fails breathalyzer ->
to the contents of them. Like Power, this was a lawful
racial profiling & bias by judge
detention – but the search was unreasonable under s. 8.
Richards – officer checked the licence while waiting
outside service stn, saw an “oriental” name and called for Peck – Cops see black man put sth in pocket. Ask him to
show pocket, found crack. →evidence not admitted.
backup -> found improperly assessed credibility
Jane Doe – raped by serial rapist, cops failed to inform her warrantless arrest must be established by objectively
viewable facts; if based in subjective belief could easily
though they knew risk -> negligent investigation (yes);
mask discrimination.
violated s.7 and 15 (yes, systematic sexism)
Rape Trauma Syndrome sexist stereotypes about women
Burden of Proof
who report rape: lie about being raped, not reliable
reporters of events, prone to exaggerate, falsely report rape legal burden – persuasive burden on the Crown to
convince trier of fact that the accused is guilty beyond a
to get attention
reasonable doubt. evidentiary burden – bore by both
Search and Seizure
Crown and defence; requires the party who wishes to rely
Hunter v. Southam search of newspaper office using
Combines Investigation Act →violates s.8 of Charter, ex- upon a legal rule or defence to introduce sufficient evident
to support the proposed argument.
post facto rationalization of evidence not reasonable
R. v. M.R.M – vice-principal searches student for drugs w/ mandatory presumption – failure of the accused to meet
police present -> no violation of s. 8, modified std of search the burden results in a mandatory conclusion of guilt.
permissive presumption – merely makes such a
in school 1) no need for prior auth (warrant), 2) need
reasnbl grounds (not credibly based probability)
conclusion permissible.
s.11d values – liberty and human dignity; fairness and
Gogol – elderly woman handcuffed while police search
house for coke -> unreasonable and violates s.9. Wanton social justice; faith in humankind; presumption that ind. are
destroying of house, handcuffs before evidence found, no decent and law-abik--ding.
Oakes - Oakes busted with 8 1G-vials of hash-oil. Charged
evidence of accused obstructing search
Edwards kept drugs at girlfriend’s house – Edwards has no with unlawful possession of a narcotic for the purpose of
trafficking. s.8 of Narcotics Control Act states that anyone
right of privacy in her house
caught with narcotic must establish that it wasn’t for
Limits on strip searches incident to arrest (Cdn Civil
Liberties Ass) 1. Strip searches should be prohibited when purpose of trafficking; otherwise it is assumed it was for
trafficking. H: s.11d violated and not justified -> no rational
less intrusive steps are available; 2. police must have
reasonable grounds to conduct strip searches; 3. warrant connection b/t possession & prpt of trafficking.
Woolmington – Vis. Sankey: golden thread of crim law is
required except in rare exigent circumstances
prosecution’s duty to prove guilt.
Golden police arrest after strip search in subway, found
bag of crack cocaine -> search unreasonable, less intrusive Whyte – s. 237(1)(a) violated s. 11(d) but was justified
under s. 1 due to the important obj. of punishing drunk
methods available
driving and the impracticality of requiring the Crown to
Collins cop grabs woman w throat-hold, found heroin
prove intention.
balloon in mouth -> unreasonable search under s. 8 +
Downey – pimping prosecution in s.212(3) presumes ppl
remedy under s. 24(2)
Hornick all-women event. women cops see liquor violation. cohabitating w/ prostitute to be living on the avails of prst.
unless acc. show evidence to the contrary. H: violates
call in male cops to boob count
Stillman accused of brutal murder of teenage girl, search s.11d but justified
not authorized by law, not incident to arrest. discarded
Actus Reus
Kleenex used against him
Act or omission to do something the accused had a legal
Arrest
duty to do
Whitfield (1970) SCR 46: “Arrest consists of the actual
1. Legal duty: inc. criminal code/leg/common law duty
seizure or touching of a person’s body with a view to his
detention. The mere pronouncing of words of arrest is not (Instan, Thorton); not moral obligation (Beardsley, Browne)
an arrest, unless the person sought to be arrested actually s.215 failing to provide necessaries of life
submits to the process and goes with the arresting officer.” s.218 abandoning child
s.220(1) crim. neg. causing death/bodily harm
Biron Resisting (unlawful) arrest appears to be illegal
s.86 store firearms w/o reasonable precautions
(authorized police raid on bar)
Moore (1979) SCC further expanded s.495 – police have 2. Voluntary: automatism; physical blow (Barlett, Haslam);
involuntary intoxication (King); psychological blow (Rabey);
right to arrest and charge under s.129 for failure to give
sleepwalking (Parks: MIL killed)
one’s name and address when asked, if the officer has
3. Factual/Legal Causation:
witnessed the commission of even a prov summary
- physical contribution to harm v. proximate cause
conviction offence.
- manslaughter: objective foreseeability of non-trivial bodily
harm (Creighton)
- 1st D murder: significantly contributing or
substantial/integral cause of death (Harbottle)
- 2nd D murder: > contributing cause beyond de minimus
range (Smithers)
- no thin skull excuse (Blaue, Thorton)
Trial Process
- s.11(d) or 15 of Charter does not require accused to be
crown election for hybrid offence -> summary or indictment tried by a jury composed of substantially member of their
-> acc. plea or elect mode of trial -> pre. inquiry -> pre-trial culture/race (R v. F.(A.))
conference -> jury selection -> opening address -> crown’s - can ask juror whether they can be impartial given acc.’s
case -> defense may request a directed acquittal from
race (Parks) if there is wide-spread bias (Ly: Vietnamese
judge -. defence case -> closing addresses -> summing up acc.)
and charge to the jury -> verdict -> sentence
- same question allowed for case involving homosexuals
Disclosure (s. 603)
(Musson), aboriginals (Williams), not opinion on sexual
Mens Rea
- crown must disclose all relevant info whether or not they perv. (B.(A)) or violence against women.
Subjective std: knowingly, willfully, intentionally,
intend to introduce it as evidence
R. v. Chipesia- Accused tried, without success, to
recklessness
- crown may refuse disclosure on grounds of privilege; or challenge the array on the basis that no members of the
Objective std: careless, negligence
exercise discretion in the timing and manner of disclosure panel were of Aboriginal ancestry. He failed because there
1. Absolute Liability
to protect informers (Stinchcombe)
was no evidence of efforts to exclude such persons from
only need to prove AR; need clear language; cannot carry - potentially relevant -> err on disclosure
the list.
jail sentence -> violates s.7 of Charter (Motor Vehicle
- record held by 3rd party: acc. apply for records w/ grounds R. v. Born With A Tooth – Sheriff contacted org. to ensure
Reference).
for production -> notice given to record holder and those w/ that Aboriginals would be represented in the array. H: array
Arguments for: a) strict protection of social interest b)
privacy interest -> 3rd P subpoenaed to bring record to court not prepared in a random fashion.
administrative efficiency. Against: a) should not punish the -> judge determines whether records are “likely relevant” R v. Musson – sexual assault man on man
morally innocent b) assumption of guilt may be false
(O’Connor)
R. v. B.(A.) – father convicted of sexually assaulting his
2. Strict Liability (created in Sault St. Marie)
Stinchcombe – new trial ordered for lawyer charged w/
daughter.
default for regulatory offences; crown proves AR ->
breach of trust + fraud. Crown refused to disclose dfc stm. R. v. Gareau – accused charged with 18 counts of violence
accused may rebut w/ proof of due diligence on BOP; no Wiseman and Beausejour – rape crisis records no longer against a woman with whom he was involved.
jail sentence? (Re Wholesale Travel) – dissent: a) protect available -> proceedings stayed, ordered costs against
R. v. Find – H: no evidentiary basis that men accused of
vulnerable public from companies b) people chose to be
record-holder
sexual assault face bias: widespread nature of crime and
licensed
O’Connor – pervy old archbishop
strong views about the crim do not meet the test.
3. True Crime
Jaffe v. Redmond – US held psychiatrists and social
crown must prove AR+MR; AR/MR symmetry; MR
workers have absolute right to not disclose confidential
Assault
proportional to crime (Vaillancourt)
counselling info.
- AR of assault: a) applies force b) intentionally c) w/o
- objective std: std of care (Naglik, Hundal, Gosset Finlay); Carosella – proceedings stayed when sex assault centre consent
willful ignorance (Sansregret, Blondin)
shredded records.
- AR of aggravated assault: a) wounds or endangers life b)
- subjective std: manslaughter (Creighton); recklessness; McKinney v. University of Guelph – held universities are intentionally c) w/o consent
intention/knowledge
not state actors -> not subject to Charter scrutiny
Sexual relations can ground agg. assault where accused
Liepert – informants not to be identified unless acc. show endangered life of victim or intentionally applied force w/o
People v. Beardsley – girl dies while partying at married info necessary
consent (Cuerrier: vitiated consent made out agg. assault
man’s house. H: acc. only had moral obligation, not legal. Wickstead – founder of Barrie Rape Crisis Centre charged offence)
Blaue – stabbed a Jehovah’s Witness who later refused w/ fraud. Stay of proceeding not granted when investigation - AR of sexual assault: a) touching – obj. b) of sexual
blood and died. H: take your victim as you find them.
officer claimed notebook lost to hide investigation on other nature – obj. c) w/o consent – sub. (cannot have implied
Blondin – acc. paid to bring scuba tank from Japan. knew centre members.
consent; acc. perception of the complainant’s state of mind
sth. illegal in it, not what.
becomes relevant)
Plea Bargaining (s.606(4))
Browne – victim died after swallowing bag of cocaine when - crown may repudiate plea agreements made be
- not intentional if careless or reflex
searched by police. Acc. did not call 911, just a cab to
predecessors (R v. R.M.)
- consent: not always part of the AR to be disproved by the
hospital. H: no duty to care for victim in emergency. duty - judge not bound by joint submission (Butterworth)
Crown, only when serious bodily harm is both intended and
only owed to family member.
- acc. to renege plea bargain must show they had
caused (Jobidon)
Creighton – injected sub-std. coke into victim who died of incompetent counsel causing their failure to appreciate the a) sports: implied consent based on obj. norms of the game
heart attack. Acc. had no knowledge that it was a bad
consequences (Newman)
(Cey) game rules not permitting bodily contact not
batch.
R v. Rajaeefard – acc. charged w/ assaulting wife. Crown determinative (Leclerc)
Duncan – vic recovered after stabbing, then died of heart chose to proceed summarily -> acc. cannot get legal aid. TJ b) lack of resistance  consent (Ewanchuk)
attack. H: no causation
improperly pressured acc. to plead guilty
c) fights: consent is vitiated for serious hurt or non-trivial
Gosset Finlay and Durham – careless storage of firearm. R v. Burlingham – bargain struck w/ acc. before letting him bodily-harm (Jobidon) – policy: deter socially useless
obj. std. of carelessness
talk to counsel. H: evidence obtained during negotiation
practice, cannot sanction bodily harm
Harbottle – held victim by leg, said be careful don’t kill her, inadmissible.
d) fraud vitiates consent (Cuerrier) in 3 circumstances: 1.
while other strangled her to death. H: substantial
Preliminary Inquiry
duty to disclose increases with increase of risk; 2.
participation enough to establish AR.
Purpose: 1) determine whether there is sufficient evidence dishonesty result in deprivation (actual harm or riskki of
Hundal – medication induced sudden illness caused driver upon which a reasonable jury properly instructed would
harm); 3. complainant would have refused contact had she
to crash. H: rea. driver would’ve been careful w/ med’s
could find acc. guilty (Patterson, Sheppard); 2) preserve
known
Instan (UK) – negligence caused aunt to die of gangrene. evidence in case witness die to get sick (s.715)
e) can consent to socially beneficial activites: sports,
H: failed to discharge C/L duty to feed aunt food. Aunt paid R. v. Sazant – SCC held “where more than one inference medical treatment, stuntmen
her + blood relations.
can be drawn from the evidence, only the inferences that Jobidon – fist fight causing death. Gonthier: there are
Johnson – cabby took coat from drunk lady as payment, favour the Crown are to be considered.”
certain cases in which consent may be nullified; Sopinka:
died from hypothermia. H: cannot prove loss of coat
R. v. Sterling – Direct indictment before PI not violation of consent cannot be read out of the offence.
significantly contributed to death.
accused’s rights since full disclosure was made by
Ewanchuk – acc. sexually assaulted vic during pretended
Naglik – young uneducated mom charged w/ failure to
prosecution.
job interview. Vic did not struggle or stream, paid vic $100.
provide necessities of life -> held to reasonable parent std. R. v. Parades – prosecutor offers nothing more in the
Alta CA: case dismissed b/c acquittal based on fact +
Nette – tied up 95-yr-old woman during robbery. woman subsequent prosecution than the transcript of evidence
crown failed to prove BRD acc. intended to commit assault.
died. H: affirmed Smithers, beyond de min.
taken at the PI where accused was discharged -> an abuse H: implied consent doesn’t exist for sexual assault.
Sansregret – held gf at knifepoint. H: rea. person would’ve of process that triggers a Charter remedy of stay of
(see code p.572)
known no conse43nt.
proceedings.
Cey – injury at amateur hockey game
Smithers – fight bt hockey players. Acc. kicked victim who R. v. Nelles – Nurse charged with 1st degree murder of 4 Cuerrier – HIV-positive man knowingly had unprotected
aspirates, chokes and dies. H: must prove act was
babies in intensive care at Sick Children’s Hospital in 1982, sex with 2 women. Convicted s.268 aggravated assault.
contributing factor for death beyond de minimus range.
after 43 infants died in cardiac unit in 1981. Discharged at Doesn’t need to prove actual harm, only life
Thissen – transvestite, HIV man bites cop. H: agg. assault. PI because evidence shows she was not even on her shift endangered. Consent vitiated b/c no disclosure of HIV.
Thorton – HIV positive man knowingly donated blood. H: when one of the 4 babies died. SUSAN later sues
Leclerc – hockey game; the fact that rules do not allow for
legal duty inc. C/L duty of care -> s.180(2a)
government for malicious prosecution.
bodily contact is not itself determinative.
Urbanovich – mother failed to obtain med. assistance for Nelles v. Ontario (AG) – Suit against crown for malicious McSorley – there is an unwritten code of conduct in NHL
prosecution not barred by the immunity doctrine. BOB RAE hockey, therefore action was sanctioned.
infant after dad hit baby many times. H: child in need of
med. care + mother knew of risk -> mother showed wanton gave the bitched $30gz from government for grief that
Williams – uncertainty over whether the complain. was
and reckless disregard by not fully informing doctors. Dis: wrongful accusation caused her. ALSO $20,000
already infected by the time accused became aware of his
baby showed no physical sign of injury. Mother careless but scholarship in her name at Queen’s, and $10,000 to Nelles HIV status. Crown didn’t prove that acc. behaviour posed a
not wanton/reckless -> not crim. neg.
Family Endowment Fund at Belleville General Hospital.
further significant risk to complaint’s life -> not guilty of
Also paid $225,000 for legal fees.
assault.
Proof of Inchoate Crime
Right to Silence
s.43 Correction of Children
- silence cannot be used as evidence of guilt (Noble), but - a) intended for educative or corrective purposes; b) force
s.24 Attempt
- does not need unequivocal act
crown can make comments (Crawford)
must be reasonable under the circumstances (see code for
- if intent proven on extrinsic evidence, equivocal act can Jury
definitions)
- Although jury may disregard bad law, it is not a right
be attempt (Cline, Sorrell)
- does not violate s.12 or s.15 of Charter: punishment not
(Morgentaler)
R v. Sorrell – failed robbery at fast food restaurant that
cruel and age-based distinction not discriminatory (Cdn Fdn
closed early. Men wearing masked, rapped on the door. H: - jury cannot be compelled to render a verdict against its for Children, Youth and the Law v. Canada)
acquittal of attempted robbery -> mere preparation, intent conscience (Bushnell)
Ogg-Moss – s.43 does not apply b/c Mental Retardation
R. v. Latimer – Turned out RCMP sent out questionnaires Counsellor is not a “person standing in the place of a
not proven.
s.465 Conspiracy
to try and filter jurors to be anti-euthanasia ppl. H:
parent or schoolteacher”, and a mentally retarded adult is
- when 2 or more ppl agree or plan to commit an offence, interference = flagrant interference w/ administration of
not a “child or pupil”
justice and an abuse of process.
agreement=conspiracy
Dupperon – father strapped son w/ leather belt on bare
- attempt to conspire is not a crime (Dungey, Dery)
R. v. Krieger – judge who directs a conviction usurpes the buttocks. Force was applied for correction b/c father
R v. Jean Talon Fashion Centre – fd. guilty of conspiracy function of the jury -> denied the accused their right to trial honestly believed that son’s behaviour (running away,
by jury under s. 11(f) of Charter.
to breach municipal bylaw
swearing, stealing) deserved severe punishment in order to
R v. Dungey – acc. lawyer tried to make arrangement w/ Jury Selection
teach him to behave. Reasonable: a) both obj. & sub. pt of
client to defraud legal aid
view b) nature of the offence calling for correction,
age/character of child, gravity of punishment, injuries
evidence, sex. history relevant for: a) mistake of fact
inflicted, surrounding circumstances. H: force not
defence; b) motivation (Jalo: dad found daughter/son
reasonable b/c motivated by anger.
having sex -> dgt. accused dad of sex. assault; c)
Cdn Fdn for Children, Youth & Law – s.43
establishing pattern of behaviour. Also didn’t give judge
constitutionally valid. Child’s security violated. McLachlin: a) right to decide when evidence may be relevant ->
adequate procedural safeguards; b) “in best interests of the overbreadth. Fair trial > privacy rights. Dis: sexual assault
child” is not a PofFJ b/c it’s not a foundational requirement unlike other crime: gendered, underreported
for justice. Three requirements for PofFJ: 1. a legal
Park – vic. touched acc. before, let him in her apt. in
principle; 2. sufficient consensus that the pcp is vital or
bathrobe, was passive during assault. H: evidence of vic’s
fundamental to notion of justice; 3. prp capable of being
previous behaviour not enough to find air of reality
identified w/ precision and applied in a manner that yields unless they influenced acc.’s perception at assault.
predictable results. c) not too vague. Force must be
Darrach – s.273.1 and rape shield provisions valid b/c they
reasonable and intended for educative or corrective
do not exclude evidence that violates rights to fair trial or
purposes (not anger or frustration); child must be capable acc.’s ability to make full answer and defence.
of benefiting from it. d) doesn’t violate s.12 b/c does not
R.B. – man gets into bed w/ sleeping woman who snuggles
permit cruel and unusual punishment. e) doesn’t violate
up to him. H: no need to check for further consent.
s.15 b/c equal treatment isn’t identical treatment. Arbour
Osvath – acc. had sex w/ passed out woman. H: new trial dis: s.7 infringed and is not justified. Binnie dis: s.15
TJ should’ve consider MoF def.
violated but justified for parents, not teachers. Deschamp Ecker – new trial – TJ should admit evidence that vic. sat in
dis: s.7 and s.15 violated b/c it encourages view of children acc. lap weeks before.
as less worthy of protection and respect for their integrity. Malcolm – should ask whether a reasonable man faced w/
s.15 violation not justified under s.1 b/c provision permits same circumstances would have taken further steps to
more than minor force.
ensure consent (quasi-objective test) -> if yes, no MoF
De Minimis: courts generally do not take trifling and
def.
immaterial matters into account: De minimis non curat lex
can be used as a defence in these cases
Mistake of Law
Lepage – should not turn breach of a provincial statute
- s.19 “ignorance of law…not an excuse,” therefore mistake
(Fire Prevention Code) into a criminal offence on a trifling of law is NOT a defence
incident
- policy:
Matsuba - if touch incidental could not be criminally liable  don’t want to encourage willful blindness
under s.265(1)
 accepting MoL as defence -> uncertainty
Stewart - doctrine of de minimis does not protect against a - except in following 3 circumstances
clear case of intentional assaultive behaviour within the
Campbell – acc. unlawfully took part in immoral
domestic context; no implied consent
performance. Relied on trial level judgment that was
reversed on appeal. H: It was a MoL which is not a
Mistake of Fact
defence unless malicious intent is required for offence ->
- due to accused’s error, Crown is unable to prove MR
not the case here. Guilty.
beyond reasonable doubt.
Aryeh – acc. believed Customs Act allowed him to bring
- not available when vic. and acc. have opposite facts
jewelry into country
(Papajohn, Osolin)
Campbell – acc. relied on lower court interpretation. H:
- must have “air of reality”: if believed, a jury properly
not a defence
instruct could have acquitted.
MacIntyre – reliance on erroneous judgment of lower
- must be honestly held belief, but no requirement for belief court not excuse for failure to provide breath sample
to be reasonable.
Potter – not a defence even when employer checked w/
- belief that passivity = consent is a mistake of law,
customs official re legality of imports & RCMP condoned
therefore not a defence
behavior for yrs.
- sexual history may be used (s.276(1))
ONE. when MR of an offence requires acc. to know
- consent invalid if (s.273.1):
conduct was illegal “knowingly” “without colour of right”
a) given by someone other than vic.
Howson – tow truck driver acquitted of theft for affirmative
b) vic. incapable of consent
belief of right to tow
c) acc. abused position of trust/power/auth.
Docherty – s.666 “willfully refusing/failing to conform w/
d) vic, by word or conduct, showed disagree.
probation order” acc. acquitted b/c didn’t know sitting in
e) vic showed disagreement to continue
car while over .08 was illegal
Papajohn – real estate agent went to house w/ client after Jorgensen – s.163 “knowingly selling obscene matter”
drinking. she ran out naked and tied up half an hour later. TWO. error of law was induced by an official charged w/
She claimed rape; man claimed consensual sex. TJ didn’t admin of law
tell jury of MoF defence. H: TJ must put before jury any
MacLean – acc. ascertained that his conduct was lawful
defence which may be open to Acc. upon the evidence, by asking Registrar of Motor Veh.
whether raised by counsel or not. There must be
Bauman – planner w/ municipality told him wife could
sufficient air of reality. Min: MoF requires subjective std. work out of home w/o rezoning
Dis: mistaken belief must be honestly held, need not be
Cancoil Thermal Corp – relied on opinion of safety
reasonable -> jury will decide on credibility of story. There inspector
were sufficient evidence for MoF – minor injury, long time in Johnson – defense will only work once in small
house, cloths neatly folded…
community
Plummer and Brown – vic assaulted by sb. else first.
Dubeau – relied on firearms officer’s advice
When 2nd man arrived, vic didn’t protest out of fear. H:
Levis v Terault – test for officially induced error of law:
mistaken consent.
1. error of law or mixed fact + law
Morgan – husband invited friends to have sex w/ wife,
2. acc. considered legal consequences
assured them she’d pretend.
3. advice obtained from appropriate official
Osolin – acc. ripped her cloths off, drove her 40km, shaved 4. advice was reasonable
her pubes and left her naked on highway. H: woman’s
5. advice was erroneous
admission to therapist “it was her fault” supports acc.’s
6. acc. relied on advice in committing act
mistaken consent. Cory, Major, Iac: MoF not available
Further considerations: efforts acc. made to get info,
when acc. & vic. have opposite stories. Cross-exam must clarity of law, position of official.
be respectful and not employ myths. L’H-D: should deny
THREE. Physically impossible acc. to know state of law.
cross-exam and MoF defence for failure to meet AoR test. Unpublished or no notice.
McLachlin, Forest, Gonthier: no new trial for cross-exam
Catholique – liquor regulation posted in 2 places in town
b/c acc. said consent at trial, inconsistent w/ now raising
but unpublished in Gazette
MoF. But in other cases AoR test may be satisfied where
Molis – defence invalid if just too difficult to keep up w/
stories oppose. Sopinka, Lamer: must point to evidence on new regulations
which jury could acquit; agree w/ McLachlin MoF available Unger et al. – defence failed when drug was banned 1
for opposing stories if has credible narrative.
month before – published.
Esau – man sexually assaulted cousin who was
Colour of Right
unconscious but said she never would’ve consented. MoF - honest belief in a state of facts or civil law which, if
available. New trial (see code p575)
existed, wld negate MR of offence
Weaver – acquittal based on MoF b/c vic. so drunk she
- subjective test
was incapable of consenting
- belief need not be reasonable but reasonableness goes
Letendre – acquittal b/c non-consent not clear even though to credibility
vic. pushed acc. away and said no. TJ: “mating practice is - moral belief not sufficient
not precise.”
Stevenson – Peguis band burned down old bridge
Wald – retrial b/c acc. had mistaken belief based on
claimed honest belief that bridge belonged to band. H:
woman’s sexual history. Despite use of gun, strangulation, belief was not honestly held. Chief knew of history,
meat cleaver.
demanded govt to fix bridge.
Seaboyer – repeal of old rape shield provisions (s.276,277) Ashini – Indians protest at Cdn air force base. TJ: there
– under old CC: sexual history only allowed for a) rebuttal was honest belifef that ancestors predate Cdn claims to
evidence, b) evidence going to identity; c) evidence of
land. Reversed on appeal.
consent. H: violates charter by excluding important
Drainville – priest protest in roadblock. acc. knew land
belonged to province, just disagreed w/ it. H: Defence
cannot succeed on moral conviction alone.
Manuel – 2 aboriginals obstruct highway. TJ: accepted
honest belief of legal right to block but it was belief in
moral right
Jones – acc. conducted bingo against s. 206 H: colour of
right only available for offences that include concept
as definition
Watson – environmental activist asked fishing boat to
leave then threw butyric acid at boat to prevent hauling-in
of nets. argued that honest belief that Cdn law didn’t apply
to int’l waters.
Intoxication
- voluntary intoxication is a defence for specific intent
offences (murder, theft) -> must be so intoxicated that
capacity to form intent is removed (Beard)
Leary – not a defence to general intent offences
(manslaughter, assault, sex. assault) – pre-Charter
Bernard – MyIntyre: not a defence, intoxication is enough
intent; Wilson: can be a defence for GI if extreme to pt of
automatism/insanity; Dickson (dis): Leary violates Charter,
cannot substitute MR to get drunk for MR to assault
Daviault – chronic alcoholic drank enough to cause coma
in others, woke up naked in vic’s bed. H: intent for GI
offences is so minimal that intoxication must be to the pt
of automatism/insanity to raise RD for ability to form
intent.
Acc. has onus to prove extent of intoxication
s.33.1 Intoxication not a defence for GI offences – Daviault
limited to sexual assault
Automatism
a) Insane automatism -> mental disorder
b) sane automatism: unlikely to recur, result of blow to
head/sleepwalking/psychological blow -> acquittal Test:
whether a reasonabl. person might have also experienced
dissociation as a result of the alleged shock
Rabey – man nearly kills woman after rejection. H: not
response of rea. person.
Falconer – long history of marital violence, wife murdered
husband on discovering he had sex. assaulted daughter.
H: new trial
Parks – acc. killed mother-in-law while sleepwalking
Stone – acc. stabbed wife to death during argument, hid
body in truck and flew to Mexico.
STEP 1: Acc. has evidentiary burden to rebut the
presumption of voluntariness. Must provide corroborating
expert evidence. For psych blow, must prove trigger was
equivalent to shock. Lack of motive can be strong proof.
STEP 2: Whether it is mental disorder.
a) Internal cause theory (Parks) – whether a normal
person would have reacted as severely as the accused
b) continuing danger theory – likelihood of violence
recurring (psychiatric history of acc. + whether trigger is
likely to recur)
Focus is on voluntariness, not unconsciousness ->
whether evidence suggests an impaired state of
consciousness leading to no control over actions.
Luedcke – acc. had 12 beer and sex. assaulted sleeping
woman, argued “sexomnia.” H: TJ erred in not considering
MD, only sane automatism
Graveline – wife subjected to 32 yrs of spousal abuse,
charged w/ 2nd murder of husband. H: automatism defence
succeeds.
Incapacity
Age – 12 yrs old (s.13 of CC)
Mental Disorder – unfit to stand trial (s.672.22) or not
criminally responsible (s.16) -> see code
Chambers – mental disorder provisions used to keep an
HIV-positive prostitute off the streets. She was
schizophrenic but stable at the time of hearing. Overturned
by CA b/c detention was based on disease rather than
posing sig. threat of crim. conduct.
Self-Defence
s.34, 35, 37 of CC
- a complete defence, even to murder
- elements for self-defence:
a) unlawful assault on acc.
b) reasonable apprehension of risk of death/gbh; need not
be immediate risk, especially in case of battered woman
(Lavallee) or prisoners (McConnell)
c) reasonable belief by acc. that it’s not possible to
preserve oneself from harm except by infliction of
death/gbh on other. (i.e. no alternative)
- evidence has an “air of reality” (Cinous, Currie)
- reasonable force (obj.) (Faid)
Cadwallader – 14 yr old boy killed dad using 5 shots,
believed he was coming up stairs to kill him. H: obj.
element in s.34 should be generously weighted in favour
of accused.
Bogue – woman suffered injuries to protect herself,
inflicted fatal stab wound. H: new trial b/c TJ should’ve
asked whether she believed it was necessary to stab him
(emphasized sub. element)
Whynot – C/L husband threatened to kill everyone in her
family if she left him. Battered wife’s acquittal overturned
b/c no person has right to apply force in anticipation of an
“imaginary assault.” neglected def. of assault which
includes threat of force. -> OVERTURNED by Lavallee
Lavallee – deceased threatened to kill acc. after everyone
leaves, she shot him instead. In case of battered women,
acc. does not have to apprehend imminent danger
when she acts. Expert: battered woman has heightened
sensitivity to partner’s acts -> will recognize threat as
potentially lethal where others don’t. Take into account
cumulative effect of brutality + battered woman’s ability
to predict the violence due to the cyclical nature of
abuse. Subjective test: what the acc. reasonably
believed, given her situation and experience.
1) Expert opinion is admissible if relevant, even if it is
based on second-hand evidence; 2) This second hand
evidence (hearsay) is admissible to show the information
on which the expert opinion is based;
3) Where psychiatric evidence is comprised of hearsay,
the problem is the weight to be attributed to the opinion;
4) Before any weight can be given to an expert’s opinion,
facts upon which the opinion is based must be found to
exist.
McIntosh – provocation by acc. does not preclude selfdefence argument
McConnell – prisoner in Drumheller pen. killed another
inmate in anticipation of being killed.
Plain – max. security inmate stabbed another in preemptive strike, owed money to vic, vic sharpened knives.
H: acquittal.
Jacko – court considered violent character of vic
“Bearwalker” Acc. feared rep/power.
Chan – acquittal upheld for inmate who stabbed another.
Acc. faced subj. apprehension of danger.
Kerr – acquittal of murder/poss. of weapon. Accepted
necessity of arming oneself in prison in anticipation of
attacks.
Cinous – pre-emptive killing of criminal accomplice not
SD b/c alternatives available
Mousseau – acc. provoked response by going to vic’s
home w/ knife, slashing tires
Spidel – acc. landlord stabbed tenant in altercation
claiming vic dangerous and attacked him in the past. H: no
air of reality
Boucher – armed robber killed police b/c he feared he’d
be killed by police pursuing him. H: no air of reality.
could’ve surrendered.
N.C. – acc. drove bus into police line to stop police beating
of protesters. H: justified.
Duress
s.17 Defence of compulsion
- requirements:
a) threat of immediate bodily harm (Robbins)
b) person making threat present at crime
c) threat was sudden (Gardiner)
d) acc. didn’t voluntarily expose himself to compulsion
(Gardiner)
e) not party to the conspiracy (Mena)
C/L defence of duress
- only available to someone aiding a crime
Immediacy and presence requirement deemed to be
UNCONSTITUTIONAL in Ruzic.
s.17 replaced by C/L defence of duress.
- obj.-subj. std: whether a reas. person similarly situated
would feel compelled.
- consider: acc.’s background, characteristic,
circumstances, ability to see an alternative
- threat must be proportionate to crime
- threat must be to personal integrity of acc
- no safe avenue of escape
- does not negate MR
C/L defence of coercion
- presumed that presence of husband creates compulsion
for wife -> abolished by s.18
Carker – acc. damaged prison plumbing under threat from
inmates. H: no immediate danger since prisoners locked.
Gardiner – acc. sold firearm to undercover police under
threat by police informer. H: acc. voluntarily exposed
himself to compulsion by getting involved in gun sales.
Robins – acc. kidnapped girl out of fear of abusive
husband. H: a) kidnapping not excluded from s.17
protection, even though forcible abduction is. b) acc.
feared daughter would be kidnapped by husband -> not an
immediate threat of bodily harm. c) had chance to leave
husband
Mena – acc. tied/blindfolded victim during robbery. H: not
principle, duress applies
Hebert – notary committed perjury under threat of death.
H: defence not available.
Prosper – woman driving while disqualified argued that
Indian husband threatened her.
Ruzic – 20 y.o. Yugoslav girl trafficked heroin into Canada
under threat to harm her mom. Charter challenge.
- morally involuntary  morally blameless; still has choice:
be harmed or commit crime
- It is a PofFJ that act must be voluntary to be criminally
liable - includes morally vol.
H: s.17 overly restrictive -> unconstitutional -> replaced by
C/L defence of duress.
C. (T.L.) – woman told to forge cheques by abusive C/L
partner. H: battered woman syndrome relevant in duress
defence
Hibbert – acc. forced by B to lure friend downstairs. B
killed friend. acc. charged w/ attempted murder. H: duress
is available to person party to the crime.
Necessity
- C/L defence – an excuse
- acc. must show 1) an urgent situation of imminent peril;
2) compliance with the law is demonstrably impossible
(Morgentaler)
- peril must not be foreseeable (Gourlay, John Doe, CWV)
- generally not available to protestors
- or divorced parent trying to get access to children (CAV)
unless truly believed children in imminent peril (Adams,
Sole)
- defence bring evidence to raise the defence -> crown
has the onus to prove BRD
Perka (p.36) – ship carrying marijuana forced to land on
Vancouver Island due to engine failure. H: being engaged
in criminal acitivities when the emergency arose does not
disallow defence of necessity. Wilson (min): necessity can
be a justification if action based a need to fulfill a
conflicting right or duty.
Stephens – A woman driving while under suspension b/c
son was in accident
Gourlay – impoverished accused stole medication for his
severe asthma. H: acc. should have foreseen his failure
to obtain fulltime employment/social assistance would lead
to the very emergency faced.
John Doe – man fasting in woods for 2 mos. became
disoriented, hypothermic and hungry, tried to steal food. H:
peril was foreseeable and avoidable.
CWV – 17 y.o. boy tried to retrieve a stolen keg of beer
from party -> surrounded by mob of 20-40 ppl -> hit 2 ppl
while trying to escape. H: should’ve foreseen this danger.
CAV – mothered absconded children to Mexico in fear
that ex-husband would cut off her access to the kids. H: no
air of reality. there were other legal avenues. no
proportionality of harm to danger.
Stevenson – Indian band destroyed bridge in despair to
bring attention to conditions on the reserve. H: defence
failed.
Langdon – Indians protested at consulate for low-flying
military exercises that wre destroying their livelihood.
Young – demonstrators opposing testing of cruise
missiles. H: defence denied.
Bridges – anti-abortion activists breached an injunction
restraining picketing.
McKay – prisoners escaped through prison riot after being
hosed down, locked wet in unheated cells, and assaulted
by guards. H: defence denied.
Latimer – farmer murdered daughter severely disabled by
cerebral palsy. H: acc. action was neither unavoidable nor
necessary to avert an imminent risk of peril
Adams - mother acquitted of abduction b/c she believed
her children were in imminent danger. H: action
reasonably given her history as a battered spouse, her exhusband’s conviction for molesting her daughter, and the
failure of the courts to protect her and her children in the
past.
Sole - father acquitted of abduction of his children b/c of
his belief that the children were in imminent danger,
despite lack of evidence of potential physical risk.
Parnerkar – vic told acc. she won’t marry him b/c he is
black. H: acc. cultural, religious background irrelevant.
Daniels – should take into account all external events
putting pressure on accused.
Kendall Thomas article – “homosexual panic” allows ind.
to assert that their act stems from a violent reaction to
their own latent homosexual tendencies; “homosexual
advance” allows provocation dfc.
Thibert – wife left husband for coworker. Husband shot
lover after he held wife and said “come on big fellow,
shoot me.” Major dis: no evidence of insult sufficient to
deprive ordinary person of control + not sudden (knew of
the affair in advance) -> neither obj. and sub. branches of
the threshold is met -> need not put the dfc. to jury. Cory
maj: obj. test – take into acc. history of relationship; ord.
married man faced w/ break-up of marriage; sub. test –
lover was testing acc.’s limit, acc. tried to avoid the lover
so confrontation at parking lot was unexpected. Both
branches met. see code p.456
Humaid – Muslim man overheard wife “a little pill can
make a whole big difference”, thought it was admission of
infidelity, stabbed her to death. H: no evidence that acc.
shared the beliefs attributed by the expert to Muslim faith.
Admission of infidelity doesn’t amount to provocation. “ord.
person” can’t be fixed w/ beliefs that are irreconcilable w/
fundamental Cdn values. Cultural/ religious beliefs only
relevant if they are target of insult.
Parent – acc. in divorce proceedings, wife came to buy his
shares, said “told you I would wipe you out completely.”
Acc. bought a gun and shot her. H: anger only plays a role
after all elements of provocation has been met (sudden
insult causing loss of control, then acting in anger b/c
control recovered). In extreme, anger can cause
automatism (Stone)
Malott – acc. subject to serious abuse, husband
threatened her and choked her. She shot him (1st deg.
murder) and his lover Ms. Sherwood (attempted murder).
Abella: jury must be informed as to how the evidence of
battering could explain her perception and subsequent
acts. Majority: took a gun and put it in her purse -> not a
sudden act.
Defence of Conscience
Dunlop – police officer reported a priest and a probation
officer suspected of being child abusers to the Children’s
Aid Society. H: acc. action was not malicious or w/o
reasonable ground. Acquitted of misconduct and breach of
confidence.
Vanunu – convicted of treason and espionage for
revealing the secrets of Israels nuclear strength,
sentenced to 18 yrs.
Ponting – violated Official Secrets Act by turning over
documents to an opposition member of gov, revealing the
cover-up surrounding the sinking of Argentinean warship
General Belgrano. H: acquitted b/c 1) it was a cover-up to
mislead Parliament; 2) no breach of national security
Nuremberg Trials – prosecution of prominent Nazi
members after WWII. Tenets of int’l law: a) gov’t
themselves can become criminal gov’t; b) when one gov’t
becomes an outlaw, it is the duty and obligation of other
nations to protect the citizens of that nation; c) every
individual is responsible for his/her actions (acting
pursuant to orders is not an excuse)
Politically-motivated crimes
- should be treated as:
a) ordinary crimes – focus on intention
b) Mere incidents or aggravation of the political offence –
focus on motive
c) acts qualified by reference to both intention and motive,
punishable on principles founded on special views of
political expediency.
Suffragettes – sentenced to 3 divisions. forcibly fed, hard
Provocation
labour. led to massive hunger strike -> Home Office
s.232 three elements (see code) reduces murder to
passed the Prisoners Temporary Discharge for Ill-Health
manslaughter
Camplin – 15 y.o. killed Pakistani man with a pan. Origin: Bill to set the women free
Nelson Mandela – “The law…is immoral, unjust, and
law’s compassion to human infirmity (man finding wife
intolerable. Our consciences dictate that we must protest
cheating; father finding sb. committing sodomy on son).
against it, that we must oppose it, and that we must
Diplock: reasonable man is an ordinary person of either
attempt to alter it.”
sex, not exceptionally excitable or pugnacious, but
Robert Sobukwe – founder/president of Pan Africanist
possessed of such powers of self-control as everyone is
Congress. “We felt we had no moral obligation to obey the
entitled to expect that his fellow citizens will exercise in
laws made by a white minority. An unjust law cannot be
society as it is today. Age should be considered b/c it
applied justly.”
affects temperament and physique. So should other
Bram Fischer – “when laws themselves become immoral
characteristics that may affect the gravity of the
and require the citizen to take part in an organized system
provocation on accused. Morris: test is whether acc.
of oppression—if only by his silence or apathy—then I
reacted as any reasonable man in his situation would or
believe that a higher duty arises.”
might have reacted.
Hill – Hill stabbed Pegg to death, allegedly b/c of Pegg’s Lubicon – protestors charged w/ contempt for blockading
uninvited homosexual advance. Test of reas. man -> see roads in N.AB. challenged the court’s authority to pass
judgment.
code, p.454
Oglala shootout – 2 FBI agent and young Indian killed
Wright – son charged w/ shooting death of father. Ct.
during firefight on reserve. Falsified fire ID specialist
rejected relevance of father’s past abuse, or accused’s
report.
possible drunkenness.
Clark – “morbid jealousy and slight mental degeneration” Ipperwash – OPP killed Indian at protest; sentenced to 2
yrs.
suffered by acc. not relevant