Crim Outline – Berger – Spring 2009
Critical Issues/Broad Themes
- does the law lead (create) or follow (reflect) social norms?
o Reflective or aspirational
 “reasonable person” standard = reflective
 HR Codes = aspirational
 Legislation/Constitution tends to be aspirational
 Common law tends to be more reflective
 Crim law has tended to be reflective, esp. defences
 Should it seek to do more? If yes, using violence of the
state to show how society should be (on body of
accused)
 BUT if you neglect aspirational duty of crim law, you
neglect body of the victim
3 components of criminal liability:
1) Actus Reus
- “bad thoughts can’t be punishable” – Lord Mansfield in Scofield
- criminal law does not usually punish omissions
2) Mens Rea
- “actus non facit reum, nisi mens sit rea” (an act does not make a person guilty
unless his mind is also guilty)
3) Absence of Defence
Criminal liability premised on (Ruzic):
i)
rationality – ability to reason right from wrong (know what you’re doing)
ii)
autonomy – capacity to choose right from wrong (choose what you’re
doing)
Principle of Contemporaneity (Coincidence)
- MR and AR must be sufficiently connected in time and in deed as part one of
continuous transaction (idea in Meli, Miller) (term and law adopted by SCC in
Cooper)
R. v. Meli 1954
- accused lured man to cabin, beat him, thought he killed him, and threw him over
cliff
- cause of death actually exposure at bottom of cliff
- Held: continuous transaction = guilty of murder
Fagan v. Commissioner of Metropolitan Police 1969 JCPC
- accused drives car onto foot accidentally, “fuck you, you can wait”
- Fagan argues no coincidence of MR and AR
-
-
Held: assault was continuing, the act was never complete until after he drove
off foot
o Events not separate enough to offence principle of contemporaneity
MR can be superimposed on an existing act
AR can be an act or an omission
R. v. Miller 1982 JCPC
- cigarette on mattress = house burns down, charged with arson
- unintentional act followed by an intentional omission to rectify = continuous
transaction = guilty
- alternative theory: accused had duty to rectify situation
R. v. Cooper 1993 SCC
- accused strangled someone to death while blacked out
- if doctrine of contemporaneity were strictly upheld, accused can’t be guilty of
murder
- an act may be innocent at the outset, but can become critical later when accused
acquires knowledge of act but still refuses to change course of action
- SCC held: adopts Miller approach of continuous transaction = guilty of murder
- expressly adopts Fagan and Meli
Actus Reus
4 Elements of Actus Reus
1) physical voluntariness
2) act or omission
3) sometimes involving certain circumstances
4) sometimes involving causing certain consequences
*fine line b/w circumstance and consequence*
1) Physical Voluntariness
- not mentioned in the Code, strictly common law
- fundamental principle of justice system that conduct cannot be criminal
unless done voluntarily (Rabey, Parks, Daviault, Stone)
- Oliver Wendell Holmes in The Common Law 1881: “the act involves a choice
b/c it is unjust to make a man answerable for harm unless he exercised that
choice” (Larsonneur)
- SCC: punishing someone for an involuntary act is unjust b/c it conflicts with the
assumption that people are autonomous, freely choosing agents (Ruzic)
- has to be “your” act = bare mental element of Actus Reus
- involuntary act can be
o conscious – twitch, spasm, fall, etc
o unconscious – mental disorder, sleepwalking, intoxication
R. v. Larsonneur 1933 JCPC
- woman in England deported, then physically placed back in England
(prohibited, but not her voluntary action)
- found guilty for being in England illegally
- case now inconsistent with principle of voluntariness
R. v. Rabey 1980 SCC
- “a defence that the act is involuntary entitles the accused to a complete and
unqualified acquittal
R. v. Ruzic 2001 SCC
- woman in Serbia forced by threat to her mother’s life to smuggle drugs into
Canada, caught at border
- Accused acts are physically voluntary but morally involuntary
- but moral involuntariness is a defence under duress, does not negate AR
and MR
- also studied under Duress
2) Act or Omission
- General principle: a person will not be criminally liable for an omission unless she is
under a legal duty to act
- legal duties to act arise in 2 situations (see Berger’s handout):
i) specific omission offences (designated and criminalized in Code)
ii) general omission offences (act as place holder for any duty you can
find)
 Criminal Negligence (s. 180)
 Public Nuisance (s. 219)
- status offences no longer exist, if they did they’d be unconstitutional
- Duties imposed by the law – either common law or statute (Popin)
a) Federal Statutes
 Most duties come from Code (see back of handout)
 Tort law also available here, but Code makes a
statement about what society thinks
 These situations involve voluntary physical omissions
in certain situations with certain consequences
b) Provincial Statutes
 apparently can be used in general omission offences, however
provinces don’t have the power to substantively create criminal
law
 in Quebec, the positive duty to act imposed by … is left open
for questioning
c) Common Law
 s. 9 of Code abolishes all common law offences except
Contempt of Court

BUT, cases have imposed common law duties as part of
Criminal Negligence (Popin) (though could have been
interpreted to fit within Codified duties - see back of handout)
Popin OCA
- duty regarding Criminal Negligence causing death can come from statute or
common law
- imposes common law duty to protect your child from illegal violence
- could have used s. 215 (1) (duty to provide necessities of life to dependents)
Coyne NBCA
- imposes common law duty to take reasonable care with dangerous items =
Criminal Negligence
- could have used s.79 (duty of care with explosives)
- alternatively could have used s. 216 duty (those undertaking dangerous lawful
acts to take care and use skill)
Nixon BCCA
- imposes common law duty to provide care and assistance to inmates in police
custody
- could have used s. 215 (1) (duty to provide necessities of life to dependents)
- alternatively could have used s. 217.1 (duty of those directing work to
reasonably prevent bodily harm of workers)
Thornton 1991 Ont CA
- donated blood to Red Cross knowing he was HIV+
- charged with Common Nuisance failure to discharge legal duty
- OCA: relied on common law duty to take care of your neighbor (Donoghue)
- SCC: doesn’t need to address common law issue b/c use duty from s. 216 of
Code (duty for those undertaking to administer medical treatment to use
reasonable knowledge and skill) = Thornton convicted
- does this really apply? He’s not administering the medical treatment
3) Circumstances
- must be tested to ensure MR matches them
- must be proven
- no requirement that a specific harm must be caused
- circumstances can turn a legal act into an illegal one
- ex: driving + circumstance of impairment = crime
- ex: s. 265 Assault: applying force isn’t a crime in itself – the lack of consent
makes it a crime
4) Consequences
- if consequence is an element of AR, must be proven by Crown BRD
- issue of causation: did actions cause consequences?
- nothing about causation mentioned in Code = entirely common law
- Need both:
- Factual Cause – necessary but not sufficient
- need a factual causal link, no matter how small
- rarely ever a problem (Winning, White)
- Legal Cause
- test for Smithers Causation used for almost all criminal law:
o
o
o
o
-
“whether or not accused’s actions were a non-trivial or not
insignificant cause of the prescribed result”
“contributing cause of death outside the de minimus (trivial)
range”
above test reworded in Nette to a “significant contributing cause”
(Now BOTH wordings are legally correct – in terms of charging a
jury)
 L’H-D in dissent says this changes the meaning of Smithers
and increases the threshold
 Majority says rewording does not change Smithers
 above test is constitutionally just (Cribbin)
Smithers implies that there may be multiple causes of death
Chain of Causation:
 An intervening cause will only break chain of causation where
it is so overwhelming as to render the accused’s cause trivial
 Chain is rarely broken (Pagett, Blaue)
Thin Skull Rule applies
 Threshold for causation is low (lower than tort standard of “but
for”) = must take victims how you find them
**Special Case for Causation** s. 231 (5) (6) (6.01) (6.1)
o specific language in Code where Smithers Causation does NOT apply
 “The murder is caused by the person while committing…”
o threshold for causation is higher (Harbottle Causation) – requires
actual physical involvement in killing:

“action of accused must form an essential, substantial, and
integral part of the killing of the victim”
o Harbottle Causation applies only to the 4 Code offences in s. 231
(above) (Nette)
R. v. Winning OCA 1973
- accused applied for credit card, used proper name and address (only info used by
creditors) but other info on application false
- information used by creditors was real = no causal link
- rare instance where no factual causation
White (Eng.)
- son poisons mother, she dies of independent heart attack before poison kicks
in = no factual causation
Smithers v. The Queen 1978 SCC
- boys fight post-hockey game
- Smithers kicks boy, but triggers malfunctioning epiglottis
- Accused is guilty as long as his action is a contributing cause of death outside
the de minimus range
- Test: whether or not accued’s actions were a non-trivial or not insignificant
cause of prescribed result
R. v. Blaue 1975 Eng. CA
- accused stabs woman, she refuses blood transfusion at hospital and dies
- decision to refuse blood does not break chain of causation – accused put her in
position to refuse blood
R. v. Pagett 1983 Ct. of Crim. Appeal (Eng.)
- accused uses pregnant woman as shield when police are shooting
- immediate (intervening) cause of death was gunshot by cope, but intervening
cause was because of accused’s unlawful actions
R. v. Harbottle 1993 SCC
- accused and other perp forcibly confine victim, other perp sexually assaults her, they
discuss ways of killing her, other perp strangles her while Harbottle holds her legs to
prevent her struggle
- Held: holding legs considered a substantial cause of death = guilty
R. v. Cribbin OCA 1994
- accused beat victim and left him with non-life-threatening injuries, victim drowned in
his own blood
- accused challenges constitutionality of Smithers causation
- Held: smithers causation is constitutional = accused is guilty of manslaughter
R. v. Nette 2001 SCC
- accused robs house then hog ties woman, 48 hours later she dies of asphyxiation, Dr.
says her hog tying contributed to her death
- Held: accused guilty
- reworded Smithers
- reaffirmed that Harbottle causation only applies to those 4 offences (above)
Mens Rea
-
-
-
“Mens rea exists to prevent conviction of the morally innocent” – McLachlin
in Theroux
Tolson J. says MR is not about evil, not a moral concept (Berger disagrees)
Principle of Symmetry (Creighton)
o MR must attach to every element of AR (Pappajohn)
o NOT a PFJ, can be relaxed in following situations (predicate, resultdriven offences) (Creighton – McLachlin)
 assault causing bodily harm
 Aggravated assault (Godin)
 Unlawfully causing bodily harm (DeSousa - Sopinka)
 Unlawful act manslaughter
Forms of MR – see chart
o Major difference b/w subjective and objective forms of MR (Tennant
and Naccarato)
o Distinction b/w True crimes and regulatory offences:
 True Crime
 In Code = presume subjective MR (Prue & Baril)
 Not in Code = look at nature and seriousness of crime
and severity of penalty (SSM)
 Regulatory Offence
 99% of time, if not in code it’s a reg. offence
Determining the proper MR:
**subject to constitutional restraints;**
1) Has Parliament/legislature told us MR?
 look at language: willful, reckless, etc.
2) If statute is silent, have to classify
i) For True Crimes, presume subjective MR (Buzzanga, Prue &
Baril)
- can be any of the 4 subjective categories of MR (Buzzanga,
SSM)
- this is only a presumption (although usually followed),
wouldn’t necessarily be unconstitutional to lower the MR bar
- exception for stigma offences the MR MUST be
subjective (Martineau)
ii) If Not a True Crime, presume strict liability (Sault Ste. Marie)
 3 step test (Prue & Baril) look at:
1) nature of offence
2) seriousness of offence
3) seriousness of penalty
Prue & Baril 1979 SCC
- if an offence is in the Code, presumption that it’s a true crime = presumption
of subjective MR unless there is a clear intention to the contrary
-
3 step test to determine whether an offence not in the Code is a true crime
Subjective forms of MR
Intent
-
-
highest form of MR
only required if the following words are explicitly stated in Code:
o intent
o willfully - **s. 429 ONLY exception**
 special definition for that section in Part 11 classifies
“willfully” not as intent, but as recklessness
o for the purpose of
o means to
distinction b/w motive and intent in Steane is rejected in Canada
o desire is irrelevant
2 meanings of intent:
1) direct intent: usual case, straightforward
2) oblique/indirect intent: if goal is something else, but knows
another dire consequence is virtually certain/will occur, implied
intent for the dire consequence
- these definitions confirmed for s. 281 in Chartrand
R. v. Steane 1947 Eng. Crim CA
- radio announcer physically threatened into broadcasting nazi propaganda
during war
- highlights difference b/w motive and intent
- backed away from in UK, and NOT followed in Canada on issue of intent
R. v. Tennant and Naccarato 1975 OCA
- distinguishes b/w subjective and objective MR
Buzzanga and Durocher 1979 OCA
- accused charged with ‘willfully’ promoting hate in Quebecois community
- distributed pamphlets to raise awareness, not to promote hate, but must have
known hate would occur
- Martin J: a person who foresees a consequence is certain or substantially
certain to result from an act which he does in order to achieve some other
purpose…in order to achieve his ultimate purpose”
o ex. of indirect intent
Hibbert v. The Queen 1995 SCC
- accused had gun held to head, gunman made him buzz down a friend,
knowing gunman would kill friend, which he did
- accused charged with aiding and abetting murder
-
Statute of Aiding and Abetting murder uses “for the purpose of” = requires
only subjective MR
Knowledge
- did you subjectively know a fact?
- Very similar to intent, difference is semantics
- Only other FULL subjective form of MR (in addition to intent)
Recklessness
- when someone is subjectively aware of the risk that his conduct could bring
about a result prohibited by criminal law, nevertheless he persists despite risk
(Sansregret)
o emphasis is on risk of consequence, not certainty (distinct from intent)
 = a lesser subjective form of MR
o emphasis on subjective awareness of risk, not objective risk (distinct
from negligence)
- definition of risk is underanalyzed, risk is usually obvious
Willful Blindness
- person becomes subjectively aware of need for inquiry, declines to make
inquiry because he does not wish to know the truth (Sansregret)
o accused didn’t actually have knowledge, but knowledge is imputed
- words “knows” or “knowingly” in statute will include willful blindness
o essentially constructive knowledge (Duong)
- emphasis is on deliberate ignorance, rather than action (distinct from
recklessness)
Sansregret 1985 SCC
- victim had complained previously of sexual assault
- she consented to sex under duress – feared her own safety
- Held: accused was willfully blind to lack of consent
Duong 1998 Ont. CA
- accused let murderer into apartment after hearing about a murder
- accessory after the fact requires that accused “receives, comforts or aids a
person knowing they’ve commited an offence”
- accused argues he doesn’t know anything
- Held: Duong was willfully blind
Objective forms of MR
Criminal Negligence
- Decidedly objective MR in Creighton
o Personal characteristics irrelevant
-
-
o Creighton upholds constitutionality of objective MR standard except
for stigma offences (see below)
ONLY applies where Code explicitly specifies
Defined in
o s. 219 explicitly states definition, defines state of mind
o Tutton: MR: showing through actions a “marked and substantial
departure from conduct of a reasonable person that shows wanton and
reckless disregard for the life or safety of others”
Distinct from civil negligence
o Civil negligence arises when there’s any deviation from standard of
conduct (reasonable person)
o Criminal negligence requires a MUCH greater deviation
 “marked and substantial” – SCC says both words matter
R. v. Tutton & Tutton SCC 1989
- accused convicted of manslaughter for failing to provide necessities of life to 5-yr-old
son
- refused to give insulin to diabetic son b/c of religious views
- SCC split on whether MR for criminal negligence is subjective or objective standard
= goes to lower court (OCA) = objective
R. v. Waite 1989 SCC
- criminal negligence = driving too fast while intoxicated, killed 4 people
- SCC divides again on objective/subjective MR
Penal Negligence
- strictly objective MR (Creighton)
- ONLY requires a marked departure, from conduct of reasonable person
o More than civil negligence, less than criminal negligence
o Arises rarely
-
**Constitutional Bar**
o constitutionally, penal negligence is lowest MR standard for a true
crime (Hundal)
o PFJ: degree of moral fault required is proportionate to the gravity of
the crime and seriousness of the penalty (Hundal)
-
Code uses words “dangerous” and “careless” and “negligent”
o Ex: dangerous driving, careless use of a firearm, arson by negligence
R. v. Hundal 1993 SCC
- Accused charged with dangerous driving causing death = penal negligence
- applied modified objective test (later affirmed as STRICTLY objective in Creighton
Creighton SCC 1993
- Stabbed needle of drugs into girl’s arm and accidentally killed her
- About unlawful act manslaughter (not criminal negligence)
- for crimes with MR based on negligence (crim or penal), test is purely
objective, takes into account NO personal characteristics of accused
- objective MR is not unconstitutional as an MR standard except for stigma
offences (and offences where language is clear)
- manslaughter only requires objective MR
- Lamer’s dissent:
o Maintains view that personal characteristics should be used to imagine
‘reasonable person’
MR and the Charter
- pre-Charter, only presumptions of subjective MR for murder, etc
- s.7 of Charter = most important section for development of criminal law:
i) minimum MR for true crimes is penal negligence Hundal above)
ii) subjective MR for stigma offences (see Vallaincourt, Martineau,)
-
**Constitutional Bar** - Stigma Offences
o constitutionally, a stigma offence requires subjective MR
(Vallaincourt in obiter, Martineau)
o Only 4 recognized stigma offences (no specified criteria)
1) murder
2) attempted murder
3) crimes against humanity (Finta)
4) theft
o court has not been keen to expand this list
R. v. Vallaincourt
- felony/constructive murder (s. 230) does not require MR = unconstitutional
- Held: gets rid of felony murder (= accidental killings cannot result in murder
conviction, only manslaughter?)
o Uses PFJ: “must be some special element with respect to the death
before a culpable homicide can be treated as murder”
- Notion of a ‘stigma’ offence mentioned in obiter
R. v. Martineau 1990 SCC
- deceased deliberately shot by accused’s accomplice during a robbery
- adopts obiter from Vallaincourt re: stigma offences
- s. 230 Felony murder offends PFJ of proportionality
o - “to label and punish a person as a murderer who did not intend and
foresee death unnecessarily stigmatizes and punishes those whose
moral blameworthiness is not that of a murderer”
- L’H-D dissents
o Says the act was so bad that it shouldn’t require subjective MR
o Majority lets MR carry too much weight
o Misplaces compassion
Finta 1994 SCC
- Crimes against humanity (senior officer at concentration camp)
- Held: accused was subjectively aware that it would shock the conscience of
the community
o = adopts Martineau
o crimes against humanity are a stigma offence
R. v. DeSousa SCC
- Unlawfully causing bodily harm (s. 269)
- ONLY need objective MR
- result-driven/predicate offences…
Strict and Absolute Liability
Regulatory Offences vs. True Crimes (not in Code)
-
-
-
3 step test from Prue & Baril look at:
1) nature of offence
2) seriousness of offence
3) seriousness of penalty
o General penalty for regulatory offences (unless otherwise stated) is
from s. 4 of BC Offence Act:
 $2000 fine or 6 months in jail or both
o over 2 years in jail = much more serious
Determining nature of prohibited conduct – 3 tools: First 2 from Wholesale
Travel, 3rd from Berger:
1) mala in prohibita vs. mala inse
 mala in prohibita = bad b/c its prohibited = regulatory offence
 mala inse = bad in and of itself = true crime
2) purpose of legislation
 to establish standard of conduct/prevent future harm (forward
looking) = regulatory offence
 condemnation/punishment (backward looking) = true crime
3) moral disapprobation
 failure to act up to standard of conduct = regulatory offence
 conduct has high moral stigma = true crime
*Note: these tools useful for new legislation, but issue doesn’t often arise*
Absolute Liability: Upon proof by the crown BRD that AR is made out,
accused is found guilty = NO requirement of MR
-
Strict Liability: Upon proof by the crown BRD that AR is made out, burden
shifts to accused to prove due diligence on BOP (developed in SSM)
o Reversal of burden of proof is constitutional (Wholesale Travel)
 2: doesn’t breach s. 11(d)
 3: breaches s. 11(d) but is justified under s. 1
Development of law re: Absolute and Strict Liability
- Late 50s, for true crimes, absolute liability is unfair (Beaver)
- But for regulatory crimes, absolute liability is imposed (Pierce Fisheries)
- By late 70s, for regulatory crimes, unless otherwise stated, presume strict
liability: (SSM) b/c:
o If purpose of statute is to establish higher standards of care, absolute
liability goes too far
o Should be general proportionality b/w punishment and moral
blameworthiness (not yet a PFJ b/c pre-Charter)
- 1982 Charter - s. 7 makes it no longer permissible to expose someone to loss
of liberty without some element of MR (PFJ) (BCMV)
***Constitutional Bar***
o imprisonment from Absolute Liability = unconstitutional (BCMV)
 = affirmed and made constitutional the presumption from SSM
of strict liability for regulatory offences
 Absolute liability is still okay as long as there’s no
imprisonment (Pontes)
-
Legislative response to constitutional bar in BCMV is:
o s. 6 of BC Offence Act: Despite s. 4 (general rule) or provision of any
other act, no person is liable to imprisonment with respect to an
Absolute Liability Offence
 essentially a catch-all fix that takes imprisonment off the table
and keeps existing legislation within constitutional boundaries
 Absolute liability still okay as long as no imprisonment Pontes
-
Shouldn’t fines be considered a loss of liberty?
Beaver 1957 SCC
- charged with possession of heroin, didn’t think he had it but Crown argues he
did
- Crown pushes for Absolute liability = requires NO MR
- Held: For true crimes, if there’s silence, MUST be subjective MR
Pierce Fisheries 1970 SCC
- charged with fishing undersized lobsters = regulatory offence
- Held: Absolute Liability imposed
Sault Ste. Marie 1978 SCC
- accused polluted stream
- Held: absolute liability is too harsh
- Introduces halfway house of strict liability
- For regulatory offences, unless otherwise stated, presume strict liability
Pontes 1995 SCC
- Absolute liability is still okay as long as it doesn’t involve a loss of liberty
Wholesale Travel 1991 SCC
- SCC unanimous:
o It is NOT an infringemenf of Charter (s.7) to create an offence for
which the mental element is negligence (in strict liability cases)
o Reverse onus to prove due diligence is upheld as constitutional
Sexual Assault
-
-
-
-
Criminal Law deals with social breakdown, but at the point crime has been
committed, so much has already gone wrong
women are disproportionately at a higher risk of violence because of their
gender
o isn’t this a bigger gender equity issue than pay equity, etc?
fundamental disconnect: reality of historic gender roles vs. assumption of
neutrality in criminal law
o rather criminal law is expressive of a particular history
can’t take expressiveness out of criminal law, but we must change what we
are expressing
Berger’s 3 ideal goals for reform:
o 1) target at systemic structures that allow gendered violence
o 2) protect dignity/privacy/security of complainant
o 3) not make it any more likely that the innocent will be convicted
2 objectives of sexual assault laws:
o 1) eradicate hidden myths/assumptions stereotypes that conflict with
gender equality
o 2) presumption of innocence
 because sexual assault happens in private = very difficult to
prosecute
Development of Sexual Assault Laws
- Rape Shield Laws: Prior legislation
o Waiting before making complaint = presumption of fabrication
o Could not convict on uncorroborated evidence
o Twin Myths – a woman with a past sexual history is:
 More likely to consent – once a woman is sexually active she’s
sexually available
 Less believable – links chastity to honesty
-
-
Legislative amendments 1983
o s. 276 – past sexual history is inadmissible as evidence (twin myths
not acceptable
o Rape no longer about personal property, now about personal integrity
o Canada no longer has “rape”, now only “sexual assault” and degree of
assault is addressed in sentencing
 Rape rooted in notion of theft – should we bring back that
terminology?
Response to legislative amendments
o McLachlin for the court says s.276 is overbroad
 While twin myths don’t have a place in our laws, past sexual
history may be relevant in certain cases (Seaboyer)
o Legsilature amends s. 276 with Bill C-49 (1992) to eliminate twin
myths, but sexual history may be admissible evidence if it’s highly
relevant
o SCC supports new legislation in Darrach
 Fair trials are about truth seeking and fair process
Elements of Sexual Assault:
- Actus Reus:
o i) unconsented to
o ii) touching
o iii) of a sexual nature
- Mens Rea:
o i) intent to touch
o knowledge (or willful blindness) as to lack of consent
*Note: consent arises in both AR and MR – this will become important for
defence of Mistake of Fact*
R. v. Chase 1987 SCC
- test to be applied in determining whether conduct has requisite sexual nature is
OBJECTIVE (reasonable observer)
- Not necessary that sexual touching was done for sexual gratification
R. v. Seaboyer 1992 SCC
- SCC majority (McLachlin):
- rape shield provisions unconstitutional
R. v. Darrach 2000 SCC
- supports Bill C-49
Defences
Several categories of defence
- Negative Defences (negates MR and/or AR)
o Ex: Mistake of Fact, Intoxication
- Positive/Affirmative Defences (does NOT negate MR or AR)
o Excuses: Concessions to human frailty
 Ex: duress, provocation
 Civil liability
 CAN be party to an excused action
o Justifications: Acting rightly, though illegally
 Ex: self-defence
 NO civil liability
 Can NOT be party to justified action
*Note: in most countries defences are split
into excuses and justifications*
o Procedural Stops: (penalties assigned to government)
 Doesn’t change culpability of accused, but case mishandled by
government
 Ex: entrapment, abuse of process, unfit to stand trail (ish)
o Exemptions: (not subject to criminal liability)
 Ex: mental disorder, children under 12, foreign dignitaries
How to raise a defence:
- Accused must establish to a judge that there is an air of reality to the defence
(Osolin)
o Accused must show some evidence (evidentiary burden) = very low
threshold
o “Is there some evidence on the basis of which a properly instructed
jury acting reasonably could acquit?” (Cinous)
- Once air of reality is established, burden is on Crown to disprove defence
BRD
o Exceptions where the burden is reversed (Osolin):
 Insanity
 MD
 Automatism
 Daviault intoxication
Fontaine
Mistake of Fact
-
-
-
The Defence:
o Made an honest mistake
o Negates MR = negative defence
o Applies to any crime where an awareness of a fact is involved
o Ex: Beaver – honestly thought heroin was milk powder
Requirement for standard of belief (subjective or objective) mirrors requisite
MR:
o If required MR is subjective, only need an honest belief
o If required MR is objective, need both honest and reasonable belief
**Now an exception to this rule re: sexual assault**
 even though MR for sexual assault is subjective, belief in
consent must be both honest and reasonable (s. 273.2)
Development of Defence of Mistaken belief in consent re: sexual assault
o In 1980 SCC confirmed that general rule applies for sexual assault:
since MR for sexual assault is subjective = only need an honest belief
(Pappajohn)
 Decision heavily criticized:
 Boyle: gives full reign for people to rely on their myths
and stereotypes
 Pickard: it is not onerous to ask people to act
reasonably in sexual relations – it makes good sense
and protects women
o In 1985 SCC limits (but does not change) the rule in Pappajohn –
although there is NO requirement of a reasonable belief, the honestly
held belief must NOT be from willful blindness (Sansregret)
o Legislative response in 1992 had two effects:
 1) defined consent in 3 sections (273.1(1)(2) and (3))
 requires an affirmative consent
 lists examples of where consent is NOT obtained
 can withdraw consent at any time
 no consent where application of force/power or abuse
of authority
 2) creates special rule re: standard of belief for mistake of fact
as applied to sexual assault (s. 273.2)
 belief in consent is NOT a defence where:
o belief arose out of self-induced intoxication,
recklessness or willful blindness (codification of
rule in Sansregret)
o accused did NOT take reasonable steps to
ascertain consent
*an example of Criminal Law being used to shape behaviour
and achieve greater equality
- In 1999 SCC holds that as long as victim is believable, if she says there
is no consent, that is proof BRD that there was no consent
(Ewanchuk)
Pappajohn 1980 SCC
- confirms general rule that standard of belief mirrors requisite MR
o since sexual assault requires subjective MR, only need an honest belief
in a mistaken fact
- Held: no air of reality to defence = guilty
Sansregret 1985 SCC
- trial judge applied Pappajohn and acquitted
- SCC puts limit on subjective belief of consent:
o Did NOT change rule in Pappajohn (still don’t need a reasonable
belief) but put a limit on it:
 Honest belief can NOT be from willful blindness
Ewanchuk 1999 SCC
- leading case on consent
- accused lures victim into van, makes several advances even though she
protests
- Held:
o No such thing as implied consent
o If victim says there’s no consent (and is believed by judge), that is
proof enough, Crown discharges burden of proving lack of consent
Darrach Ont. CA
- upholds C-49
- subjective ONLY for belief in consent
Mistake of Law/Ignorance of Law
General Rule s.19 of Code: “Ignorance of the law is not an excuse for committing an
offence”
- codification of common law rule
- can be harsh and unjust:
o Bailey 1800: at sea when law changed
o Esop 1836: foreign sailor engaged in act legal in his own country but
not in England
o Dalley 1957 Ont CA: relied on lawyer’s advice that something was
legal, it wasn’t = prosecuted under Securities Act (provincial offence)
o Brinkley 1907 Ont CA: relied on lawyer’s advice that first marriage
was dissolved, re-married, charged with bigamy = guilty
 Note: today this case would be resolved under Prue & Baril
o Campbell 1972 Alta DC: relied on Alt SC decision that nude dancing
was allowed (it wasn’t, decision was overturned)
 But did act BEFORE decision overturned

-
-
-
Held: doesn’t matter, trial judge was wrong, law never changed
= shouldn’t trust a trial judge?!?
o Molis 1980 SCC: makes drug that’s legal, druge later restricted by
Regulation, published in Gazette = due diligence in knowing law at
outset not enough – need to know when it changes too
o Jones & Pamajewon 1991 SCC: bingo on Indian reserve without a
provincial license – their belief that CC didn’t apply was a mistake of
law and no defence
o Gunn 1997 Alt. CA: lawyer interfered with client’s arrest b/c he
thought it was illegal (it wasn’t) = charged with obstruction of justice
 Distinguished Docherty: here lawyer’s mistake of law did not
negate the MR of “willfully” obstructing a peace officer
 Widely criticized
Rationales for harsh rule:
o 1) Defence would involve impossible evidentiary burden for Crown
o 2) Encourage ignorance
o 3) Anarchy
o 4) Ignorance of the law is blameworthy in itself
Fine line b/w mistake of law and fact
o In criminal law, provincial laws are treated as facts IF they form
part of Criminal offence = mistake of provincial law = use Mistake of
Fact defence (Prue & Baril)
o BUT in MacDougall he was in realm of provincial laws, with
provincial effects, but found guilty: law is law
 Obiter in Pontes seemed to side with MacDougall and criticize
Prue&Baril’s distinction b/w provincial law as fact and
Criminal law as law as incorrect
 BUT P&B NOT overruled = still out there
4 Exceptions:
1) If government didn’t publish law in the gazette (Ross)
2) MR requires knowledge of the law (Docherty)
3) If Theft, Colour of Right (Howson)
o s. 322(1) – everyone commits offence who takes item without colour
of right
 basically, you don’t have the right but it looks/seems like you
do
 if you have honest but mistaken belief that you have a right to
that property, then you have colour of right = can’t be charged
o to claim, must be in provision in Code
4) Officially Induced Error (Jorgensen, adopted in Levis) (allowed in
Cancoil)
o 1) an error of law or mixed fact/law was made
o 2) considered legal position
o 3) consulted appropriate legal official (someone in charge of
administering law)
o 4) reasonable reliance on advice

-
Clarified that reliance must be “objectively reasonable” and
factors considered (Levis):
 Clarity of obscurity of law
 Position and role of official who gave info
 Clarity, definitivenesss/reasonableness of opinion
 Efforts made by accused to obtain info
o 5) Reliance has to be on an erroneous legal opinion of an official
o 6) Must demonstrate ACTUAL reliance
 advice given before actions
 were questions poses specifically tailored to circumstances
successful defence in 4) limited to stay of proceedings/procedural stop
o similar to entrapment – state has disentitled itself from a conviction
Prue & Baril SCC
- charged with Code offence driving with a suspended license
- had been charged with provincial offence = his license had been suspended
but he didn’t know that
- mistake of law or fact?
o Fact: didn’t know license was suspended
o Law: didn’t know it’s illegal to drive with a suspended license
- Held: mistake of FACT = not guilty
- Effects of provincial law will be considered facts IF they are part of Code
offence
o If they are part of provincial offence, then NOT mistake of fact, but a
mistake of law
MacDougall SCC
- charged with provincial offence of driving with suspended licence
- prior: had been charged with prov. Offence, had received notice of license
suspension, appealed = license reinstated
- lost appeal = license revoked, sent new notification
- thought license was valid until he received notice, but it was suspended the
moment he lost appeal
- Held: mistake of law = no defence = guilty
- Law is law
Pontes
-
-
Held: ignorance of automatic suspension of licence under provincial Motor
Vehicle Act is a mistake of LAW (different than P&B though doesn’t overrule
it since in that case accused was charged under Code)
BUT P&B is still alive and well
Cast doubt on decision in P&B
o P&B and MacDougall are irreconcileable
Obiter:
o Suggested P&B is wrong – law is law
Docherty SCC
- While on probation, found drunk in car but car turned off
- accused charged with willfully not following order of probation officer
- accused said didn’t know it was illegal to just be drunk in his car
- Held:
o Defence allowed
o Offence required “willful” breach of law – since he didn’t know it was
illegal, couldn’t fulfill the MR requirement
Howson
- tow truck driver charged with theft of car when he refused to give back towed
car without payment
- Held: had colour of right = has a defence in mistake of law = acquittal
Jorgensen
- Affirms OIE in Cancoil
- did accused sell obscene material without excuse?
- Held: Film Board approval is sufficient authority for reasonable
reliance/officially induced error
Levis v. Tetreault
- Adopted scheme in Jorgensen
- Clarified that reliance must be “objectively reasonable” and factors
considered:
o Clarity of obscurity of law
o Position and role of official who gave info
o Clarity, definitivenesss/reasonableness of opinion
o Efforts made by accused to obtain info
- took reasons from Jorgensen
- similar to entrapment
- procedural stop – accused is still morally blameworthy but a stay should be
entered for the following reasons:
o 1) an error of law or mixed fact/law was made
o 2) considered legal position
o 3) consulted appropriate legal official (someone in charge of
administering law)
o 4) reasonable reliance on advice
o 5) Reliance has to be on an erroneous legal opinion of an official
o 6) Must demonstrate ACTUAL reliance
Intoxication
-
When using intoxication as a defence, it doesn’t matter what substances you
used and whether or not they’re legal is irrelevant
Can’t use intoxication as a defence when intoxication is an element of the
offence (ex: impaired driving) (Penno SCC 1990) duh!
Important distinctions:
1) normal intoxication vs. extreme/Daviault intoxication/akin to automatism
- BCCA in Robinson : jury must acquit if accused did not have MR
- The dissents in several cases (including Daviault) prefer to use the
blameworthiness of getting belidge to substitute MR
2) general intent vs. specific intent offences – ONLY relevant to defence of
intoxication (see Handout) (Beard in England, George in Canada, Bernard postCharter)
- general = a knee-jerk reaction, momentary passions
- specific = requires a plan/agenda/strategy/motive
o distinction has been heavily criticized as being arbitrary and
interchangeable depending on wording
o Berger thinks distinction serves as an excuse to make policy decisions
re: intoxication
Rules:
1) For specific intent offences, normal intoxication is a defence (Beard, George)
2) For general intent offences, normal intoxication is NOT a defence
- a successful defence requires Daviault intoxication, and
- burden is on accused to prove this extreme state of intoxication (Daviault)
3) BUT if the offence interferes with bodily integrity = NO DEFENCE (s. 33.1)
- language of “marked departure” of standard of reasonableness – sounds
like Penal Negligence
- legislative response essentially codifies the dissent in Daviault that
substitutes MR for the offence with the moral blameworthiness of getting
that drunk
- Since the burden of proof is reversed, is this an imposition of absolute
liability?
- some lower courts have ruled s.33.1 unconstitutional, but no SCC or CA
judgments on it yet
D.P.P. v. Beard 1920 HL
- made this rule and made up vocabulary of “specific intent” offences
- death penalty in effect, so incentive to use rule and lower charge to manslaughter
R. v. George 1960 SCC
- accused charged of robbery (assault with intent to steal)
- Canada adopts the specific intent from Beard and creates distinction from general
offences
- rationale: where mental element is so low (general intent), normal intoxication is
not a defence
R. v. Bernard 1988 SCC
- sexual assault causing bodily harm (general offence)
- court confirms specific/general distinction post-Charter
- court split on whether extreme intoxication can be used as defence in general offences
- 2 judges: getting that drunk is blameworthy enough = substitute MR
R. v. Daviault 1994 SCC
- medical testimony that his blood alcohol was between .4 and .6 and that he should have
been dead = incapable of any sort of intent = automatism
- Held: for extreme intoxication, defence available to general intent offences BUT burden
of proof is on accused
- dissent: use blameworthiness of getting that drunk as substitute MR
Mental Disorder
At end of trial 3 things happen:
1) verdict rendered: guilty or not guilty
2) verdict entered (conviction or acquittal)
3) sentence may be imposed
Unfit to Stand Trial
- refers to mental state of accused at time of trial
- described in s.2 of the Code:
o “on account of MD person cannot conduct a defence…esp.
a) understand nature/object of proceedings
b) understand possible consequences
c) communicate with counsel”
- if any of these 3 criteria are not met, accused is UST
- relatively low threshold: bare mental ability to go through
trial (Whittle)
- accused is presumed fit to stand trial unless court is convinced on BOP that
they’re unfit
o burden is on whichever party raises the issue
- issue of UST can be raised at any time, up until the finder of fact renders
(says) the verdict
- Procedure:
o Prosecutor or accused applies to judge to have issues of fitness
determined
o If judge is convinced on reasonable grounds of UST (is this like air of
reality?), judge orders trial for fitness (672.23)
 Psych. Assessment ordered by court (672.11-19)
- Trial for fitness either with judge and jury or judge alone
o If found fit, trial continues (672.28)
o If found unfit
 Disposition hearing is held (672.31)
 Jury let go, new jury when trial resumes (672.26)
- If accused is found UST, a stop on proceedings and NOT a defence
o restarts when person recovers
- Disposition Hearing (672.54): either judge or review board decides whether
accused will be:
-
o released on conditions until recovery, or
o detained in a hospital
 treatment/medication can only be imposed in very limited
circumstances (distinct from NCRMD) (s. 672.58)
 max. 60 days
 only for purpose of helping them become fit for trial
 expert medical opinion must address 4 criteria (s.672.59):
 i) person UST
 ii) treatment recommended will work in 60 days
 iii) risk of harm not disproportionate to benefit
 iv) least intrusive treatment possible
Basis for decision at Disposition Hearing (672.54):
o Protect public
o Mental condition of accused
o Reintegration of accused
o Other needs of accused
NCRMD - ***missed first 20 minutes of 2nd class on NCRMD – get notes!!***
- codified in s. 16
o presumes sanity unless proven otherwise (since M’Naughten 1840s)
o “disease of mind” is a legal term, to be determined by JUDGE and
NOT the medical profession/medical evidence (Simpson, upheld in
Cooper)
- twin goals (McLachlin in Winko)
1) protect public
2) treat mentally ill
- Development of law:
o Pre-1991, if found NCR by reason of insanity = acquittal
 Rationale: if you don’t have bare mental capacity at time of
offence, can’t be morally blameworthy = can’t punish
o Presumptions of dangerousness of mentally ill breach s. 7 =
unconstitutional (Swain) – have to treat them not punish them
o Code Amendments 1991 (constitutionality upheld by Winko)
 Renamed not-guilty by insanity to NCRMD to reduce stigma
 Accused no longer acquitted or convicted = brand new
dispositions
 Go through disposition hearing (much like UST), if found
NCRMD can give 1 of 3 dispositions
 1) released unconditionally
 2) released with conditions
 3) detained in custody in psych. Institution (could be
held longer than if sentenced!!)
 Disposition will turn on factors in s. 672.54 (same 4 criteria as
UST)
 i) need to protect public
 ii) mental condition of accused
-
-
-
 iii) reintegration of accused into society
 iv) other needs of accused
 Treatment of accused can ONLY be ordered as part of
disposition with consent of accused (672.55) (different than
UST)
 If not released unconditionally, review board must reconsider
conditions of release/detention every 12 months (672.81) or at
requires of any person including accused (672.82)
Now: Test and Procedure
o “mental disorder” means a “disease of the mind” (s. 2)
o Test for NCRMD in s. 16:
 1) MD rendered someone “incapable of appreciating the nature
and quality of act or omission (first branch) OR incapable of
knowing that it was wrong (second branch)
 2) presumed non-MD until proven otherwise on BOP
 3) burden of proof for MD on party that raises issue
 = burden of proof is reversed if accused raises issue –
its constitutional (Chaulk & Morrissette)
o When can issue be raised?
 Accused: any time, even after verdict is rendered but BEFORE
conviction is entered
 Crown: 2 choices
1) AFTER verdict rendered but BEFORE entered
 rationale: evidence of MD may sway jury and/or render
wrong verdict
2) If accused puts mental capacity at issue (Swain) ex:
automatism akin to intoxication
First Branch – “…appreciate the nature and quality of act or omission”
o “appreciate” test: Was the accused (by reason of MD) deprived of
capacity to know what they’re doing and ALSO deprived on the
capacity to measure and foresee consequences (Cooper)
o “appreciate” test has since been narrowed:
 does not require appropriate feelings of guilt or remorse
(Kjelcken 1981)
 appreciation of penal consequences NOT required (Abbey)
 narrowing upheld in Landry
Second Branch – “…knowing that it was wrong”
o “wrong” could be:
 illegal and/or,
 immoral
 do YOU view it as wrong
 do you appreciate that society views it as wrong?
o old common law from Schwartz says wrong = illegal (though strong
dissent from Dickson)
o Chaulk & Morrissette – expanse of the defence from Schwartz

wrong means more than just illegal, also means society’s view
of morality (NOT an individual’s morality = avoid floodgates)
 Rationale:
 French word is “mauvais” which means more than
illegal
 M’Naughten more about good v. evil as opposed to
legal v. illegal
 Parliament could have used “unlawful” but they didn’t
 Purpose of s.16 is to protect morally blameless – if
someone is incapable of understanding morality,
shouldn’t be punished
o someone’s incapacity to appreciate that something is illegal or viewed
by society as immoral must stem from a disease of the mind (Chaulk
& Morrissette) = another way to stave off floodgates
o even if someone has the capacity to know right from wrong, must be
able to apply this capacity to make a rational choice (Oomen)
o summary of 2nd Branch:
 “Determining whether an accused was incapable of knowing
that it was wrong means asking whether, owing to a disease of
the mind (Chaulk), an accused was incapable of rationally
evaluating and making a rational choice (Oomen) whether the
act was wrong in either a legal sense or as a matter of society’s
moral views (Chaulk)
- Ultimately judges decide what is criminal and what is mental health = problematic
R. v. Whittle 1994 SCC
- s.16 means these people are sick, NOT blameworthy, should be treated rather than
punished
- Test for UST is much different (very low threshold to be able to stand trial) than for
NCRMD
R. v. Swain 1991 SCC
- common law rule that Crown can raise defence of insanity during trial against wishes of
accused in unconstitutional
- violates s. 7 and 9 and NOT saved by s. 1
- infringes on accuses’s right to control her defence
- New Rules:
- A can raise defence any time
- Crown can only raise during trial if A has raised it/made it an issue
- can be raised after verdict of guilty but before verdict entered (bifurcated trial)
Chaulk v. Morissette 1990 SCC
- 2 youths accused of B&E and killing occupant
- knew acts were illegal, but believed they were above law and ruled the world
-
o killing on an order from God made accused believe that society would
NOT view their actions as morally wrong
reversal of burden of proof in s. 16(3) IS constitutional (offends presumption
of innocence but is justified under s. 1)
Justification in s. 1 – would put unreasonable burden on Crown (but doesn’t
Crown always have a tough burden?)
Main reason: been this way for centuries
Wilson’s dissent: burden on Crown works well in US
McLachlin’s dissent: would have stuck with Schwartz (knowing it’s illegal is
enough)
o Would convict accused
o **Society’s moral views can be disputed**
o if person is trying to decide what society thinks then they have the
capacity to know right from wrong
Winko v. BC (Forensic Psychiatric Institute)
- accused argued new regime still violated s. 7 and 15
- Majority:
o Upheld constitutionality of new regime
Simpson Ont. CA 1977
- term “disease of mind” is a legal concept – what it means is a question of law for judge
and NOT for medical profession
Cooper SCC 1980
- Confirms Simpson
- Accused choked victim to death – must know he was choking and that is
could cause death
- “appreciate” is more than knowing that you’re committing act, but also
calculating the consequences of act
o knowledge and capacity to measure and foresee
- “appreciate” test: Was the accused (by reason of MD) deprived of capacity
to know what they’re doing and ALSO deprived on the capacity to measure
and foresee consequences
- the word “appreciate” is cognitive and mechanical
R. v. Abbey 1982 SCC
- accused charge with possession/trafficking/importing cocaine
- appreciation of penal consequences NOT required
- mention of defence of “irresistible impulse”
- NOT a freestanding defence
- volitional impairment does NOT count – only cognitive impairment rationalizes
the defence
R. v. Oomen 1994 SCC
- accused is paranoid psychotic: heard buzzer at appt, thought it was the signal for GF to
kill him so he shot her
- accused generally had capacity to know right/wrong BUT must also be able to apply
this and reason in the circumstances (make a rational choice)
R. v. Landry 1988 SCC
- applied narrow definition of “appreciate” after QCA gave it a wider meaning
Automatism
-
Defence based on concept of voluntariness
Not conscious of actions (impaired consciousness), dissociative state
Ex: Daviault intoxication
Major distinction: b/w MD automatism and non-MD automatism
o MD automatism = NCRMD
o Non-MD automatism = acquittal
Non-MD Automatism
- can arise from:
o physical blows (Bleta)
o physical conditions (ex: Diabetes in Quick, stroke in Hill)
o psychological blow (Stone) = very controversial
Development of Law
- defence of automatism firm recognized in Rabey
o external/internal test to distinguish b/w non-MD and MD automatism
o Internal = MD automatism
 Can be psychological blows as slight as the dissapointments of
everyday life
o External = non-MD automatism
 Can be from physical blow
 Can be from a psychological blow (new in Rabey!) BUT must
be an extreme event
 Ex: watching a loved one die in front of you
- Parks adds a 2nd test
o Internal/external doesn’t apply neatly to sleepwalking (held to be
NON-MD)
o LaForest adopts continuing danger test from Dickson’s dissent in
Rabey– more applicable to facts of this case
- after Rabey and Parks there are 2 tests out there to distinguish b/w non-MD
and MD automatism
- Stone restricts the defence of automatism and expands NCRMD defence –
CURRENT LAW
o 2-Stage Test
 1) Judge must assess whether a proper foundation is laid for a
defence of automatism (essentially air of reality test)

-
-
2) Determine whether condition is MD or non-MD
 i) If dissociative state is from disease of mind/internal =
MD
 ii) presumption that it IS from disease of mind, which
must be rebutted by accused to be considered non-MD
(reversal of burden of proof)
 iii) new holistic approach informed by:
o internal/external test
o continuing danger test
o when unclear, look at policy concerns
 easy to feign
 reputation of justice system
 acquittal = no mechanism of control
 iv) psychological blow (non-MD) will be VERY
RARE, requires an extremely SHOCKING trigger that
would cause a NORMAL person to become an
automaton
o contextual objective test
state of the defence post-Stone
o Still possible to claim non-MD automatism = full acquittal
 Graveline: abuse + battered woman syndrome = psychological
blow
 Jiang: falling asleep behind wheel, chronic insomnia
o Sleepwalking IS a disease of the mind (Campbell Ont. SCJ) = goes
against decision in Parks
 shows restriction of automatism and expansion of NCRMD
 based mostly on continuing danger and policy concerns
o Sleepwalking sexual assault is rejected as non-MD automatism
(Luedecke)
In 1993 Parliament proposed (but never passed) a law restricting automatism
defence to NCRMD only
o This policy concern seems to have been addressed in Stone
Issues with the Defence
- How to distinguish b/w non-MD and MD automatism?
- Burden of Proof
- Dangers of allowing defence:
o Ease of fabrication
o Difficulty of Crown disproving automatism
o If found to be a non-MD automaton, NO basis for holding them =
MAIN policy concern is the unqualified acquittal
- Social aspects of the defence
o Tends to be claimed by men being violent towards women
 What is it about our society that an insult to a man’s virility is
enough to raise a defence of automatism?
-
as in NCRMD, judges are the ones deciding what is NCRMD and what is
non-MD but they are NOT experts in field, concerned only with legal
definitions = problematic
Rabey 1980 SCC
- U of T boy called a “nothing” by his girlfriend, hits with geology rock,
doesn’t kill her
- Maj: MUST be mental disorder – applies s.16
o Based on internal/external test
 If dissociative state arises internally it is MD
 Psychological blow (normal disappointments of life)

 If dissociative state arises externally it is non-MD
 Can only arise from EXTREME psychological blows
o Ex: seeing a loved one die in front of you
- Dickson dissent: objects to internal/external divide
o Says majority CANNOT apply an objective test
o Prefers a continuing danger test (OBITER, but idea is now out there)
 If there’s a chance of recurrence, then accused is MDautomatism
Bleta 1964 SCC
- accused hit head and automaton then killed
- Held: defence allowed – physical blow
Parks 1992 SCC
- accused sleepwalks, drives 23 km and kills mother-in-law
- psych evidence: sleepwalking NOT a neurological illness
- trial judge
o puts non-MD automatism to jury, but Crown pushes for MD
- SCC unanimous
o Sleepwalking NOT a disease of the mind = FULL acquittal
o LaForest: says external/internal not really applicable
 Adopts Dickson’s continuting danger test
Stone 1999 SCC
- Stabbed wife to death after long drive, she told him she’d been cheating,
attacked his virility
- Bastarache (majority)
o Wants 1 test to draw line b/w non-MD and MD automatism
o Defines automatism: “a state of impaired consciousness, rather than
unconsciousness, in which an individual, though capable of action, has
no voluntary control over that action”
o The moment accused raises defence of automatism, Crown can raise
issue of NCRMD
o Reversal of burden of proof


-
-
Instead of “air of reality”, accused must prove automatism on
BOP
JUSTIFIED under s.1, rationale (same reasons as for Daviault
reversal):
 Don’t want impossible burden on Crown esp. b/c
automatism is easy to feign
 Accused in better position to prove
 Presumption of voluntariness unless otherwise proven
o Dissent vigorously objects to this point
Dissent
o HUGELY objects to burden reversal
o Esp. presumption of voluntariness
o Even though already reversed onus in Daviault, self-induced
intoxication seen as being more blameworthy than automatism
Now a 2-part test for automatism (see above)
Effects of test:
o Hugely narrows automatism defence
o Expands NCRMD defence
Graveline 2006 SCC
- accused abused by husband for 32 years, shot him with rifle but didn’t
remember
- psych. Evidence said she snapped, battered woman syndrowm + abuse can be
considered a psych. Blow
- jury acquitted, SCC affirmed decision
Campbell 2000 Ont. SCJ
- sleepwalking is a disease of mind = NCRMD
Luedecke 2005
- sleepwalking sexual assault
- trial: non-MD automatism
- CA: sent trial back, if anything, NCRMD
Provocation
-
-
an offence-specific defence – ONLY FOR MURDER
o (other offence-specific defence is the “colour of right” for theft)
Affirmative Defence – an excuse – concession to human failty (Thebert)
PARTIAL defence only – a sentencing provision - reduces murder to
manslaughter which has no minimum sentence and a maximum of life
o = if there wasn’t a minimum sentence for 2nd degree murder, this
defence wouldn’t exist
Historically applied to 4 situations:
o 1) sudden falling out b/w men (chance medley)
o 2) spontaneous fight (barroom brawl)
o 3) discovery of wife engaged in adultery
o 4) father finding son being sodomized
The Statute
- s.232(1): “Culpable homicide that would otherwise be murder may be reduced
to manslaughter if the person who committed it did so in the heat of passion
cause by sudden provocation”
- s.232(2): “A wrongful act or insult that is of such a nature as to be sufficient
to deprive an ordinary person of self-control is provocation…” (objective part)
o So need to determine 2 things from objective part:
 1) gravity of insult
 2) given gravity, whether an ordinary person would lose selfcontrol
o Does NOT have to be an illegal act to be a wrongful act! = very broad
o Who is an ordinary person?
 Ireland uses purely subjective standard – only looks to mind of
accused = constitutionally barred by statute in Canada
 Australia is purely objective – imputes no personal traits to the
ordinary person
 Canada, of course, takes middle road = modified objective test
- s. 232(2) cont’d: “…if the accused acted on it on the sudden and before there
was time for his passion to cool” (subjective part)
- s. 232(3): “…no one shall be deemed to have given provocation to another by
doing anything that he had a legal right to do, or by doing anything that the
accused incited him to do in order to provide the accused with an excuse for
causing death or bodily harm to any human being”
o No provocation where
 1) person alleged to have provoked had legal authorization (a
positive right) to do something
 2) can’t prod someone until they insult, then claim provocation
(can’t be incited)
The Test
- 3 elements of provocation drawn from statue:
1) wrongful act/insult was sufficient to deprive an ordinary person of selfcontrol (objective)
o excluding situations where:
 provoker had legal authority to act
 provoker was incited by accused to provide an excuse
o wrongful does NOT mean illegal
o Canada’s ordinary person established through a modified objective
test:
 Ordinary person + certain features of accused that inform
ONLY the gravity of the insult (NOT the standard of control)
 But what traits can be considered?
 Personal history (Thebert)

Age and sex do NOT need to be told to jury b/c they
will consider them regardless (Hill)
 Culture (Nahar) = VERY CONTROVERSIAL
o Criticized in Humaid – ordinary person can’t
have beliefs that are antithetical to Cdn. Values
o Privileging culture over gender?
2) accused did, in fact, lose self-control in response to this wrongful
act/insult (subjective)
3) it happened “on the sudden, and before there was time for passion to cool”
(subjective)
Critiques of Defence
- defence limited to murder, which is a gendered offence
- turns on EMOTION – but privileges emotion of anger over others
(compassion/Assisted suicide?)
- allows for homophobia? (Hill)
- what traits do you impute to the ordinary person?
o What about intersectionality???
o Isn’t the modified objective test artificial?
o Nahal decision privileges culture over gender, but the Constitution
says there’s no hierarchy of rights
Thebert 1996 SCC
- defence does no more than recognize human frailties
- Establishes the modified objective test for ordinary person ONLY to
determine gravity of insult and NOT to determine standard of conduct
o looks at personal history of accused (how it would affect gravity of
insult)
Hill 1986 SCC
- 16 yr old killed someone who was hitting on him (gay older guy)
- ordinary person is not pugnacious or intoxicated
- breaks down the first part of provision into
1) wrongful insult would provoke a reasonable person and (objective)
2) must have actually been provoked (subjective
- Held: NOT necessary to tell jury to consider age and sex (they will anyway)
R. v. Nahar BCCA
- man murders wife, claims her conduct was particularly provoking b/c of his culture
(Muslim)
- Held:
- “whether having regard for the cause and duration of the couple’s trouble
relationship, an insult that carried the same emotional impact for an ordinary young
married man of the same cultural background as it apparently carried for Mr. Nahar,
would cause such a man to lose his power of self-control”
= imputes
- personal history
- martial status
- cultural background = VERY controversial
R. v. Humaid OCA
- Doherty (majority)
- in obiter: ordinary person cannot be fixed with beliefs that are irreconcilable
with Canadian values = questions culture as a factor
- don’t want to privilege culture over gender equality
Self-Defence
-
ancient, universal defence
affirmative, justification (acting rightfully but illegally)
See Berger’s Chart for the state of the law now!
Development of Self-Defence
- pre-Code, at common law you can respond proportionately to prevent your
own death
- for a long time Baxter was law (referred to in Pawliuk) that distinguished b/w
34(1) and 34(2) based on INTENTION to cause death/GBH
o 34(2) allows for intention, while 34(1) does not
o problem: if 34(2) is more permissive, then this distinction doesn’t
make sense – give more concessions to those who apply more force
- Pawliuk 2001 BCCA changes law
o KEY distinction is the nature of apprehended risk
o If you apprehend more harm (death), you are given more concessions
to protect yourself/react = much more logical
- Pinter notes that intention is still very important
o 34(1) can NEVER be a defence for murder
- Botteril – defines GBH has serious hurt/pain
- Cinous – a subjective and objective element to EVERY aspect of 34(2)
o Note, proportionality aspect of 34(1) is the only purely objective
element of s.34(1) or (2)
- For a while, 34(2) did NOT apply to provoked assault, but now it does
(McIntosh – LLP)
o This makes s.35 a Dead letter (it’s more strict to accused than 34(2) so
no reason to ever use it)
- Since self-defence is a reasonable person test, intoxication is irrelevant
(reasonable person is not intoxicated) = needs to act up to reasonable
standards (ie self-defence and intoxication are not compatible defences)
Development of Law re: Violence against Women
- Whynot in 1983 represents the old-fashioned approach (threat not imminent)
- Lavalee = major shift
-
-
o Gets rid of imminence (which had been read in as a requirement for
34(2)) as a requirement, now only a factor to be considered
o Expert evidence CAN be admitted at the “no other alternative” stage,
especially for Battered Spouse Syndrome
o “reasonable person” takes into consideration the circumstances of
abuse (“reasonable battered woman”)
Petel in 1994
o SCC officially expands “reasonable person” to a contextualized
approach based on a range of factors including personal history
Malott in 1998
o judge should instruct jury that evidence should be used for:
i) why women stay
ii) nature and extent of violence and impact on accused
iii) accused’s ability to perceive danger (she knows his patterns)
iv) whether accused believe on reasonable grounds that she could
not otherwise preserve herself from death or grievous bodily harm
State of the Law (See Chart)
- Now: core and periphery provisions:
o Core – s.34(1) and 34(2)
o Periphery (read down) – s. 35, s.37
 S.35 is dead (see above)
 s. 37
 alive and well for defence of others
 interpreted very broadly to be a general protection of
others = very rational
 BUT, a component of s.37 can be used as a gap-filler
o ONLY if 34(1) and (2) don’t apply (VERY rare)
- Distinguishing b/w 34(1) and 34(2)
Can accused have provoked
assault?
What kind of force is
accused responding to?
34(1)
No
34(2)
Yes
Unlawful assault
Unlawful assault with
reasonable apprehension of
death/GBH
Force causing death/GBH
IF this was reasonably
believed to be the only
option
Yes
How much force is
permitted?
No more than is reasonably
necessary
Can accused have
INTENDED grevious
bodily harm or death?
No
*34(2) is for apprehension of death/GBH so given more allowance in your
behaviour b/c scarier circumstances (can be provoked, can cause death, can
INTEND to cause death)
Critiques
- Written very hurriedly = sloppy, confusing and complicated. Reform?
o German law makes self-defence LEGAL/lawful
o Don Stuart’s “Recommendations for a General Part” lay out same law
in very basic, straightforward language
- Requirements based on barroom brawl scenario = doesn’t consider violence
against women
o Imminence had been read into provisions, but not universally
applicable (Wilson in Lavalee rejects the imminence standard that had
been added as a judicial gloss)
 Imminence is still a factor, but NOT a requirement
- Though Lavalee is progressive for women, there are several critiques:
o Isabelle Grant: syndromization of woman’s experience (not believable
until evidence of a syndrome is put before court?)
o L’H-D and McLachlin in Malott: don’t want ‘battered woman’ to
become a woman’s identity – don’t’ victimize her, she was acting
rightly
 Don’t want to turn self-defence into a concession to human
frailty
- If reasonable person is contextual (as in Lavallee) then shouldn’t it apply to
Cinous = shouldn’t he get off?
o Clearly a policy decision: don’t want to encourage sociopathic
behaviour/organized crim
- constitutional imperative that ‘reasonable person’ must be constructed genderequally
Cinous 2002 SCC
- participant in criminal activity/organization
- shooting in van at gas station
- Binnie:
o Fails air of reality test for 34(2) and 3rd state (no reasonable
alternatives) – passes subjective test but fails objective test = no
defence
o Can’t give leeway to members of criminal organizations
R. v. Whynot 1983 NSCA
-accused killed common law husband who had threatened to kill her son, shot him when
passed out in truck from drinking
- Trial: jury acquitted
- CA: ordered new trial
- “no person has right in anticipation of an assault that may or may not happen, to
apply force to prevent the imaginary result”
Lavallee1990 SCC
- Accused 22, history of abuse, had suffered multiple injuries from partner
- Mand drunk, angry, after party she hid in closet
- He said “either you kill me or I’ll get you”
- She shot him in back of head when he was leaving the room
- Trial Judge:
o Admitted evidence of Battered Spouse Syndrome
o Jury acquitted
- Man. CA:
o Ordered new trial, said expert evidence should NOT be admitted
o (normal rule is only bring in expert evidence when jury/judge NOT an
expert – juries/judges supposed to be experts on assessing credibility
of human behaviour)
- Wilson (Majority):
o Allowed evidence
o Allowed acquittal
o Judges/juries have preconceived ideas about abusive relationships and
need expert evidence to educate
o Historical barroom brawl scenario produces requirements that don’t
apply to battered women:
 1) temporal connection (imminent risk is not present)
 2) no other reasonable alternative = problematic and goes to
systemic/cyclic nature of abusive relationships
o “reasonable man” is not able to inform a battered woman, must be
“reasonable in circumstances of battered spouse”
 is NOT relaxing reasonable/objective standard, simply
contextualizing it
o 1 legal change
 pushes back on idea of imminence that was read in by judges
(but not part of statute) – says the rationale was understandable
but not universally applicable
Petel 1994 SCC
- woman forced to weigh/do coke and hide weapons
- shot man and partner
- jury asks for clarification: whether threats and acts leading up to incident
should be considered
- SCC:
o Contextual approach MUST be taken at every step
o Expands range of factors to be considered under “reasonable person”
 Look at history, etc.
R. v. Malott 1998 SCC
- 19yr relationship of abuse
- man couldn’t get pills, she knew he’s be pissed, she shot him, reloaded gun, took taxi
and killed his mistress
- appeal regarding jury instruction
- SCC:
- about jury instructions (see above)
Duress
-
Duress = compulsion from a person (vs. Necessity = compulsion from a
circumstance)
Central feature: a person is less blameworthy if they commit an offence from
pressure from another person
Duress concedes to AR and MR = a stand alone defence (affirmative)
(Dunbar)
o Confirmed in Hibbert in the Ruzic decision
o MR is THAT you meant to do it, not WHY you meant to do it
Party Liability
A person can be guilty of an offence in 4 ways:
1) person actually commits crime (Principal Offender)
2) aids another in committing a crime ---------------------------3) abetting/encouraging someone to commit a crime -----------Secondary Offenders
4) counseling/procuring/inciting someone to commit a crime –
- punishment is exactly the same for all 4 scenarios
- distinction b/w primary and secondary offenders if what we’re concerned with
in law of duress
Development of Law
- 2 different defences: common law and s. 17
- Elements of Common Law Defence:
o 1) “accused must be subject to threat of death or serious injury to
himself or to another (doesn’t have to be immediate but must have
temporal connection)
o 2) must commit offence as product of threat (must believe threat will
be carried out
o 3) gravity of threat that a reasonable person would commit act
o 4) must have reasonable belief that there’s no reasonable alternative
o 5) accused must not be a voluntary member of criminal association
 This is very broad
 Normal criminal burden of proof
- Elements of Statutory Defence of Duress (s. 17)
o Imposes 3 restrictive requirements on common law defence of duress
1) requires immediacy of bodily harm
2) person posing threat must be present
3) duress not available for 22 offences including murder, sexual
assault, robbery, arson (“excluded offences)
-
-
SCC in Carker 1967 says s.17 is supreme & only defence of duress (s. 17
replaced common law defence) = NO DURESS AT COMMON LAW
SCC in Paquette 1976 = revival of common law duress
o s.17 applies only to principal offenders (have to us it or nothing)
o common law duress applies to secondary offenders (s.17 doesn’t
apply)
 makes consequences of distinction b/w principal and secondary
HUGE
 Mene says you have to charge jury with both possibilities
Charter = BCMV = laws can be tested for their substantive fairness
Post-Charter = Ruzic
o PFJ: the morally involuntary cannot be punished
 Justified via analogy to physical voluntariness requirement for
AR
o Held: immediacy and presence requirements of s.17 are
unconstitutional = strike our s.17(1) and (2), leaving ONLY s.17(3)
intact
Law Now
- Common Law Duress applies to ALL claims of duress except for principal
offenders accused of one of the 22 excluded offences in s.17(3)
Carker 1967 SCC
- Threatener wasn’t present = not considered an ‘immediate’ threat
- Accused tried to argue common law duress
- s. 8(3) of Code preserves common law defences = rejected
- Held: s. 17 is only duress defence (s.17 replaced common law defence)
Mena Ont CA
- there can be more than one principal offender
- about distinguishing b/w principal and secondary
- ordered new trial – open to jury to find on facts whether accused was principal
or secondary offender
Paquette 1976 SCC
- Pop Shop robbery
- Paquette was asked to give friends a ride, refuses, gets held up at gunpoint,
threatened with revenge if he didn’t wait until they were done – they ended up
killing someone during robbery
- Paquette charged with murder
- BUT murder is one of excluded offences for duress
- Held: s. 17 ONLY applies to principal offenders = secondary offenders can
use common law duress
o Interprets “a person who commits” in statute to mean a principal
offender only
Hibbert 1995 SCC
- friend of victim forced at gunpoint to call him down from apt, knowing he’d
be shot
- whether a safe avenue of escape existed is to be determined on a
subjective/objective standard
Ruzic 2001 SCC
- Belgrade, woman forced to smuggle drugs to Canada upon threats to her
mother’s life
- Arrested in Toronto
- She’s a principal = subject to s.17 BUT no immediacy or presence of
threatener
- Ruzic argues immediacy and presence requirements breach PFJ: The moral
involuntary cannot be punished
o First justification: if you don’t have a choice, can’t be blameworthy –
looks to BCMV
 Rejected by court
o Analogize moral voluntariness to physical voluntariness – strong
notion in law that we won’t punish involuntary behaviour, respect for
human agency, NOT your act (though this does NOT negate AR)
 Accepted by court
Necessity
-
-
-
Necessity is an excuse (Dickson in Perka) – though Wilson disagrees =
heated academic debate
o “rests on realistic assessment of human weakness, recognizing that a
liberal and humane criminal law cannot hold people to this strict
obedience of laws in emergency situations where normal human
instincts, whether of self-preservation or of altruism, overwhelmingly
impel disobediences” 928
3 legal requirements (from Perka, flowing from Morgentaler, expanded on in
Latimer) with normal burden of proof
o 1) Situation must be urgent and peril must be imminent such that
counsel of patiences is unreasonable
 forseeability is not enough (Latimer)
o 2) compliance with law must be demonstrably impossible
 no reasonable legal alternative (Latimer)
o 3) proportionality b/w harm intended and harm avoided
 “no rational criminal justice system could excuse the infliction
of a greater harm…”
 2 harms must be of comparable gravity (Latimer)
requirements refined in Latimer
o 1) and 2) standard is modified-objective test: “honestly believe on
reasonable grounds”
o 3) is purely objective: “does community view 2 harms as comparable”
Perka
-
-
-
storm puts ship in peril – was importing SHIT TONS of marijuana to Alaska
but had to stop on Vancouver island
o didn’t MEAN to stop in Canada but had to b/c of weather
Dickson distinguishes b/w justification and excuse
o Justification: acting rightfully
 Often praised as motivated by some great object
 Punishment incompatible with social approval
o Excuse: concession to human frailty
 Wrongful conduct but circumstances make it understandable
 No implicit vindication of deed
 Not to be praised, only pardoned
Wilson
o Nervous about necessity being an excuse
o Weighing b/w 2 conflicting legal duties
 Excuse – makes it look like a much more imminent situation
 Justification – involves a choice b/w lesser of 2 evils
Latimer 2001 SCC
- father kills daughter who’s debilitated with CP
- father charged with 1st degree murder, convicted of 2nd degree, ordered new
trial
- we read 2nd trial – charged only with 2nd degree murder
- trial judge did NOT put defence to jury b/c no air of reality
- jury comes back to ask judge about penalty – judge says you might have input
(he thinks they want a higher sentence, but really they want below the
minimum sentence)
- jury returns verdict of guilty (minimum = life, 10 yrs parole) and recommends
1 yr. eligibility
o = pseudo jury nullification
 *note: juries can nullify but you can’t tell them that they can,
they have to do it on their own
- Judge accepts 1 yr parole – gives a constitutional exemption and grants 1 year
ineligibility b/c 10 yrs would be cruel and unusual punishment
o SCC rejects this
- held: trial judge was right that there was no air of reality, but wrong to lower
to 1 yr parole = gives minimum sentence
- Latimer released this year
o Denied parole first time through b/c didn’t show sufficient remorse
- SCC says gov. always has Royal Prerogative of Mercy at its disposal
o Used to be used when we had death penalty