CHAPTER 2: ACTUS REUS
s.9: All crimes must be in the CCC, and the only CL crime left is contempt of court
s.11(g) CCRF: Cannot be found guilty for any act or omission that at the time it happened was not a
crime under CCC or international law
AR requires: 1. Act or omission; 2. Common law voluntariness; 3. Causation; 4. Surrounding criteria
Omission: can be a crime if you have a positive legal duty (specified in code, legislation, or tort)
s.215: Duty to provide necessaries (parent/guardian/spouse/CL partner/charge of incapacitated
person), but rebuttable with “lawful excuse” (NB: reverse onus shift of mandatory presumption that is
rebuttable with discharge of evidentiary burden)
Instan: Niece had legal duty to care for aunt because she was receiving a gain by living with her
Beardsley: No legal duty to lover who dies from morphine overdose because she was an experienced,
voluntary participant and the level of relationship was not sufficient to impose duty (not spouse)
Urbanovitch: Baby dies from father’s abuse; mother says she didn’t know; represented together
Monin: Ought to have had knowledge, regardless of whether she actually did (objective, not
subjective), so criminally negligent because of her omission
Matthias: Showed willful and reckless disregard for child by withholding information from doctors,
so inconceivable that she did not know (stronger language than objective knowledge)
Hubband (dissent): Describes parents as children themselves, and says mother was not criminally
negligent because no evidence she knew and no omission because took baby to regular checkups
Thorton: Donated blood (not illegal act) when he knew he had HIV (omission about himself).
Problem because he did not have a legal duty not to donate blood, so court said legal duty = CCC duty
or CL duty, the breach of which creates a CCC offence: CL duty + CCC crim = legal duty
Ssenyonga: Man not convicted for passing on HIV to 3 women who he did not tell about HIV because
women were specific and could not fall under “public” nature of common nuisance. No SAconsent
-What must people disclose when having sex? HIV, herpes, marriage, age?
Volunatriness: Must be voluntary and chosen at very basic level (ex. automatism=no voluntariness)
CHAPTER 3: MENS REA
Every criminal offence needs AR + MR
Judge gets to decide if given MR requires objective or subjective test (can enforce “reasonable man”)
Subjective MR: “knowingly” “intention” “pretending” “belief” “willful”
Objective MR: “negligently” “recklessly” “carelessly”
Fact Pattern: Parties
s.21 deals with the liability of parties and principals in the commission of an offence.
s.21(1)(a) says the principal will be liable for the offence if he actually commits the offence
s.21(1)(b) says a person may be liable as a party to an offense for acts or omissions which are done
for the purpose of aiding the principal to actually commit the offence. This requires AR (the acts or
omissions had the effect of aiding the principal) and a MR (the purpose was to aid the principal).
s.21(1)(c) says a person may be liable as a party to an offense if the accused abetted the principal.
Abetting means encouraging the principal to commit the offense, and requires more than mere
presence (unless the accused is present because he is supporting the principal).
s.21(2) extends liability for the principal and parties beyond the wrongful act originally intended.
Parties will be liable for all other offences that occur while carrying out the original intention, if
parties knew or ought to have known that the extra offences were a probable consequence of carrying
out the original offence. This has come under constitutional attack because of the “or ought to have
known” part. Some offences require a minimum MR, so parties will not be convicted of offences like
murder and attempted murder that require subjective foresight if the Crown has not proved MR for the
accused. However, parties can still be liable for the included offence of manslaughter if the Crown
cannot prove subjective MR for the accused, but can prove a reasonable person in all the
circumstances would have foreseen at least a risk of harm to another as a result of carrying out the
common intention (Jackson). Hibbert tells us that the “common intention” only requires that the
party and principal have in mind the same unlawful purpose, but does not require them to have the
same motives and desires.
s.22(1): If you counsel a party to an offence (procure, incite, solicit) you are also a party to the
offence, even if it was carried out in a different way than how you counseled it should be
s.22(2): If the party commits another offence (other than the one you counseled for) you are liable if
you knew or ought to have known the additional offence was a probable consequence of counseling
Absolute Liability: proof of AR is enough for conviction, and only defences are AR defences
Ping Yuen: store owner guilty under AL for having “near beer” that had higher % than bottle said
Sault Ste. Marie (Pre-Charter): City charged with civil offence of pollution under penal statute in
CCC when a company they contracted garbage disposal to was very guilty of water pollution. “Public
welfare offence” are not intended to punish people for their intentions, but rather to prevent bad social
consequences of events. Dickson: AL has shown no heightened level of prevention, so changes tests:
Absolute Liability: Crown must prove AR beyond reasonable doubt, and only defence is AR defence
Strict Liability: Crown must prove AR beyond reasonable doubt, and conviction will follow unless
accused proves due diligence on balance of probabilities (objective standard)
Full Mens Rea: Crown must prove AR and MR beyond a reasonable doubt
-MR can translate identical outcome and act into different offences (“I am Sparta” kick off cliff)
-Presumption that public welfare offences now fall under strict liability, unless statute requires MR
(“willfully, knowingly, etc”) or statute clearly establishes AR as only requirement (AL)
Re: BC Motor Vehicle Act (Post-Charter): Statute clearly creates absolute liability for driving while
license is suspended, regardless of fault, because province is fed up with people saying “I didn’t know
it was expired” and it is hard to prove otherwise and expensive to ensure everyone knows.
LaMere: PFJ that innocent until proven guilty: AL + potential incarceration = s.7 violated
Wilson: PFJ that punishment must be proportional to crime: AL + disproportional punishment to
crime = s.7 violated
Pontes: Cannot have AL for offences which result in incarceration b/c violates s.11(d)
Strict Liability
Wholesale Travel: Legislation creates SL offence by prohibiting false advertising but allowing
defence of due diligence built into legislation (establish there was an error, prevent error, bring
attention of error to people, and timely retraction)
Lamer (dissent): “He establishes that” reverses onus to accused to prove due diligence on civil
standard, but still leaves possibility of conviction with reasonable doubt. PFJ should be available
under regulatory offences if there is a chance of incarceration. Justifiable infringement under s.1?
Objective: Crown says to promote competition, Court says to ensure false advertisers are punished
without losing convictions due to difficulties of proving guilt (valid objective). Rational Connection:
obviously convicting everyone who falsely advertises w/o proving MR will ensure objective is met
(valid). Minimal Impairment: Could use a mandatory presumption of negligence and evidentiary
burden on accused (invalid). Proportional: Even if it didn’t fail already, not proportional to imprison
someone for up to 5 years for false advertising (invalid).
Cory (dissent in part): Can remove MR from regulatory offences and replace with due diligence or
strict liability because purpose of reg offence is prevention of harm to vulnerable groups and purpose
of crim offence is punishment for individual wrong. Licencing (accepted terms of strict liability) and
vulnerability (need to protect public) justifications. Impossible for Crown to discharge all reasonable
doubt when such an information asymmetry exists, and the need to protect public great, so SL is good
middle ground: reverse onus and imprisonment do not infringe s.7 or s.11(d).
1. There can be offences where negligence is MR component and does not infringe s.7: Unanimous
2. The timely retraction provisions (s. 37.3(2)(c) and (d)) infringe s. 7, are not justified under s. 1, and
are accordingly unconstitutional: Unanimous
3. The reverse onus provision ("he establishes that" in s. 37.3(2)) infringes s. 11(d): Unanimous,
except for Cory/LHD who says it does not infringe, and if it did it would be justified under s.1
4. Infringement is justified: Iacobucci, Stevenson, Gonthier
5. Infringement is not justified: Lamer, Sopinka, La Forest, McLachlin
6. Overall, reverse onus provision is upheld 5-4
Fact Pattern: Homicide / Causation
s.222 deals with the offence of homicide. The AR for homicide is causing the death of another
person, either directly or indirectly. The causation element is a question of fact that is decided by the
jury. Causation has both a factual and legal component. Factual causation asks if the action of the
accused contributed to the harm in a technical and physical sense. Legal causation is concerned with
whether the accused should be attributed moral responsibility for the harm. If factual causation has
been established, legal causation will usually follow. The requisite standard of factual causation for
manslaughter is a contributing cause outside the de minimis range (Smithers). The requisite standard
of factual causation for murder during the commission of another offence is an action that is a
substantial and integral part of the killing (Harbottle). Nette tells us that the test should be put to the
jury in a positive light (“significant cause” rather than “not trivial cause”). Johnon: taxi—no sig cont
s.222 also tells us that homicide is either culpable or non-culpable. Culpable homicide is murder,
manslaughter, or infanticide. Culpable homicide is committed when a person causes the death of a
human being by any means of an unlawful act, by criminal negligence, by threats or fears of violence
causing that person to do anything that causes his death, or by willfully frightening sick person or
child.
Fact Pattern: Murder
s.229 deals with the offence of murder. There are three circumstances in which murder can occur.
s.229(a) says murder occurs when a person intentionally causes the death of another person. Murder
can also occur when a person means to cause bodily harm to another that he knows is likely to cause
death, and is reckless whether death ensues or not. The MR elements of this offence are the intention
to cause the requisite degree of bodily harm, couples with the necessary recklessness as to its effect.
s.229(b) says murder can also occur when the MR established in the above section exists, but the AR
results in death to an unintended victim. If the MR and AR are proved, it is irrelevant that the death
was caused by accident or mistake, and that the accused did not mean to cause death or bodily harm to
that particular person.
s.229(c) says if a person does anything for an unlawful object that he knows or ought to know is likely
to cause death and death results, he is guilty of culpable homicide, even though he might have
intended to carry out the unlawful objective without causing death.
Martineau concluded that murder is a specific intent offence, and the requisite MR for murder cannot
be anything less than subjective foresight of death. ‘Ought to know’ section of s.229(c) struck down.
s.230 deals with murder in the commission of an offence, but has been struck down by Vaillancourt
because murder requires MR of subjective foresight of death (which this section does not require).
Criminal Negligence: Do not punish morally innocent V punish the act of killing someone (body?)
Creighton: Experienced drug user injected girl with cocaine and she died; MR violates s.7?
*MR of “unlawful act” only requires objective foreseeability of risk of bodily harm which is neither
trivial nor transitory (McLachlin)
McLachlin: Lack of MR in manslaughter is already accounted for (not murder) / no minimum
sentence / MR for “unlawful act” combined with thin skull rule = symmetry between fault and
consequence / acknowledge the “body” / keep objective test and personal characteristics (experience,
education, etc) are only a defence when equate to incapacity to appreciate risk
Lamer: s.7 requires that manslaughter MR needs foreseeability of death because of stigma / use
subjective-objective test to account for personal characteristics
Browne: Two drug dealers, one swallows drugs so police don’t catch them, gets sick, friend says he’ll
call 911 but calls cab instead: acquitted because no legal duty to care, no proof 911 would save her
Naglik, Hundal: Consider circumstances of accused, but personal characteristics don’t matter unless
they prevent you from appreciating risk
Wilful Ignorance: Accused suspects that certain facts exist or certain consequences may ensue, but
deliberately refuses to consider or acknowledge risk—theoretically tested subjectively
Blondin: Drugs in his scuba tank coming from Japan—didn’t know what was in there, but court said
with narcotics you can draw inference that he was being willfully blind
Recklessness: Accused recognizes existing circumstance or is aware that conduct creates risk but
proceeds with this knowledge (ex. s.229(a)(ii) murder when he knows conduct likely to cause death) /
Complies with charter because tested subjectively
Intention or knowledge: Many offences in CCC require specific intent/knowledge
Vaillancourt: Accused commits robbery with knife, and friend has gun he thought was unloaded,
kills someone. Lamer says cannot substitute intent to rob + intent to use gun for foreseeability of
death. Not saved by s.1 and unconstitutional, would need at least objective foreseeability of death.
NB: s.230 is now struck down by Martineau because MR for murder cannot be anything less
than “subjective foresight of death”
CHAPTER 6: TRIAL PROCESS
s.603: Accused may inspect and have copies of their statement, evidence, indictment (disclosure)
Stinchcombe: Crown has general duty to disclose whether inculpatory or exculpatory because
purpose is to ensure justice is done, not to win / Crown can refuse to disclose for privilege / Crown
can exercise discretion when to disclose to protect informers / Crown should err on side of disclosure
when not sure about relevance / Initial disclosure should occur before accused must elect mode of trial
/ Crown’s discretion and privilege always reviewable by TJ
s.606:Plead guilty, not guilty, or special plea / Court must be satisfied plea is voluntary, accused
understands plea, court is not bound by agreements between prosecution and accused / Court doesn’t
need to fully comply with this procedure / Not guilty automatic plea if accused refuses to plead /
Judge can adjourn trial to give accused more time
O’Connor: Bishop accused of SA in res schools, what must Crown disclose?
Majority: Records in Crown/police possession must be disclosed unless “clearly irrelevant”, without
regard for privacy or confidentiality / Records in 3rd party hands (rape crisis center), accused can
ignore s.7 and apply for subpoena to TJ can decide if “likely relevant” and balance interests of full
defence v. privacy
Dissent: Use higher standards of “likely relevant” to release to judge and “significant probative value”
to release to defence / Better protect privacy of victims / Don’t raise issues of credibility of victim
LLA: Court can override disclosure of privileged documents, and woman can contest up to SCC
Jaffe (USSC): Psychiatrists and social workers have absolute right to refuse disclosure to any court
Oslin: Victim raped, naked, pubic hair shaved, dumped on highway, and thearapist reports had selfblaming statements (“was it my fault?”)—court deemed relevant for defence of mistaken consent
Carosella: Rape crisis center shreds files if police get involved so don’t have to disclose / Court
grants stay on proceeding because they would have granted disclosure / Accused didn’t need to prove
that shredding actually prejudiced his case / Stay still available because irrepearble damage to
integrity of justice system to charge him, and rape center is government funded so Charter applies.
Minority: Duty of disclosure is owed by the state, not private third parties that just get funding /
Refusal to disclose would need to result in an unfair, not just an imperfect trial
s.278.1: Records = reasonable expectation of privacy (not police records made for investigation)
Discussion: LHD dissent from O’Connor written into legislation s.278 / Much more privacy for SA
victims / Only exception is record created by police for investigation / Privacy procedure applies to
other Crown records / Apply for production / Hearing in camera / Judge order production for review /
Review by judge / Judge order for production to accused / Judge record reasons
s.717: Diversion out of criminal procedure to alternative measures (circle sentencing) / If accused
fully complies, other charges must be dropped / If doesn’t fully comply, at discretion of court /
Accused must plead guilty / Must be voluntary / Balance interests of victim, society, accused /
Sufficient evidence to prosecute / Statements in alternative measures cannot later be used in court
Hebbert: s.7 CCRF guarantees right to silence; Crown or judge cannot comment or draw inference
Morgentaler: Bad for lawyer to tell jury they can ignore the law / Juries do not explain themselves
Latimer: After conviction it was found that Crown helped RCMP put together jury against
euthanasia, so retrial ordered because of “flagrant disregard for justice”
s.629: Crown or accused can challenge entire jury (array) on grounds that sheriff was partial,
fraudulent, or showed willful misconduct when putting the jury together
s.638: Crown or accused can challenge specific juror for cause based on personal traits (unlimited)
s.634: Crown and accused have equal numbers of pre-emptor challenges that vary with charge
Biddle: Crown used all pre-empts and challenges to get all female jury for SA charge / Gonthier said
jury could be perceived to be biased / McL and LHD said often have all male juries
Parks: Court allowed for first time to challenge jurors by asking about racial impartiality
Koh: Court took judicial notice of racism in Ontario communities, so can challenge without proving
evidentiary basis of racism in community
Williams: Allowed to challenge without establishing evidentiary link of bias to his own trial
Find: No judicial notice of bias against men for SA crimes because of widespread nature of crime
CHAPTER 7: ASSAULT
Fact Pattern: Assault / Sexual Assault / Consent
s.265(1) explains what comprises an assault. A person who, directly or indirectly, intentionally
applies force, or threatens or attempts to apply force, to another person without their consent has
committed assault. A person also commits assault when accosts someone while openly wearing a
weapon (or an imitation weapon).
s.265(2) says this section applies to all forms of assault, including sexual assault, sexual assault with a
weapon, threats to a 3rd party causing bodily harm, and aggravated sexual assault.
s.265(3) says consent can be a defence to assault if was not given because of force (or threat of force)
to the complainant or any other person, fraud, or exercise of authority. Jobidon tells us that adults
cannot consent to intentionally applying force causing serious hurt or non-trivial bodily harm to each
other in the course of a fist fight or brawl…cannot consent to manslaughter. Can consent to sports.
s.265(4) says that if consent has been raised, and would be effective if adopted, the judge must ask the
jury to consider whether the accused had reasonable grounds for an honest belief in consent. The
defence only needs to raise reasonable doubt about consent by discharging an evidentiary burden, so
does not conflict with the Charter (Osolin).
The court in Cuerrier said fraud vitiates consent if three things are proved by the Crown: 1. The
accused was dishonest by act or omission; 2. The dishonesty led to a deprivation which exposed the
complainant to significant risk of serious bodily harm (harm does not have to materialize); 3.
Complainant would not have consented but for dishonesty.
Fact Pattern: Aggravated assault (s.268): The MR for aggravated assault is the same as the MR for
assault + objective foresight of the risk of bodily harm! The AR is the same as for assault, but now
requires the endangerment of the victim’s life. The MR and AR must coincide (ex. Williams: no AR
when he didn’t tell his girlfriend he was HIV positive because he didn’t expose her to significant risk
of harm because she probably already had HIV at that point)
Fact Pattern: Robbery
s.343 says robbery can be committed in 4 ways. AR = theft + assault, and MR = specific intent of theft
and assault. Trial judge in Sorrell could not be sure MR of robbery was there because he did not know
what their intent was.
Fact Pattern: Theft
s.322 says theft is when a person, fraudulently and without colour of right, takes or converts anything
with the intent of depriving the owner or person with property interest in it.
Fact Pattern: Sexual Assault
The court in Ewanchuk said the AR of sexual assault requires three things: 1. Touching (objectively,
was the action voluntary); 2. Sexual nature (objectively, don’t need MR); and 3. Absence of consent
(subjective according to complainant—does not need to actively protest, because no such thing as
implied consent in SA, the accused must actively obtain consent). The AR is only concerned with the
events from the perspective of the complainant. A reasonable doubt about consent can only arise in
two ways: 1. Complainant subjectively consented (conflicting stories) or 2. The accused claims he had
an honest but mistaken belief in consent because the complainant affirmatively communicated by
words or conduct her consent, although she didn’t actually consent in her mind. Therefore, the MR
for sexual assault only arises if the accused says he had an honest but mistaken belief in consent.
s.273.1 says consent is a voluntary agreement of complainant to engage in sexual activity in question.
No consent is given when: consent is expressed by another person; incapable of consenting; consent
induced by abuse of trust, power or authority; lack of consent expressed by words or conduct; consent
revoked
s.273.2 says an honest but mistaken belief in consent is not a defence if: 1. The belief arose from
self-induced intoxication or recklessness or willful blindness OR 2. The accused did not take
reasonable steps, in the circumstances known to the accused at the time, to ascertain that the
complainant was consenting.
Cuerrier: Accused had sex with women without disclosing HIV status—does fraud vitiate consent?
Dissent (Mc): Most restrictive because she is concerned that smaller deceits will vitiate consent
(promise to marry, buy diamond necklace?) and worried it will incentivize people not to get STD
checks so they don’t have to disclose / Fraud only vitiates consent if: 1. Deception as to sexual
character of the act; 2. Deception as to identity; 3. Deception as to seriously harmful STD
Dissent (LHD): Most expansive—fraud vitiates consent if: 1. Dishonesty induced person to consent,
and but for dishonesty no consent would be given (objective); 2. Accused designed dishonesty to
induce consent (subjective). No risk of harm necessary; protect autonomy!
Cey: Hockey players consent to certain levels of contact and the harm that comes from that: contact
within rules is consented to; contact outside of rules but within accepted standard may be consented
to; contact beyond this that are so violent that cannot impliedly consent to by playing sport
LeClerc: Agrees with Cey, and says evaluate objectively evaluate circumstances of sport / Deliberate
purpose to inflict injury will almost always be seen as outside scope of implied consent, but no
requirement for Crown to prove intent
McSorely: NHL goon sent onto ice to start fight at end of game, hit opponent in head and caused
seizure and concussion / Court heard evidence about ‘unwritten rules’ of NHL and got conditional 18
s.43: Schoolteachers, parents or those standing in place of parent can correct pupil or child under their
care by force, if purpose of force is correcting child / If child cannot be corrected, force is invalid /
Force must be reasonable in circumstances
Ogg Moss: 1) Not a child because not underage and not in care of parent, and also functionally
different because his condition is permanent; dependency does not make him a child; 2) Not “standing
in place of parent” because no assumed parental duties (financial) that go with authority and he right
were not delegated to him by natural parent; 3) Pupil is narrower than student because implies youth,
and schoolteacher is narrower than teacher because it implies academic direction in children’s school;
4) “force by way of correction” cannot be done in anger, punishment must serve corrective function,
person must be able to be corrected, and must be reasonable amount of force under circumstances
Dupperon: Badly behaved kid gets 10 whippings from step-dad / In assessing reasonable force court
looks at (objectively and subjectively) nature of what is being corrected, age and character of child,
degree of gravity of punishment, circumstances, emotions, seriousness of injuries; cannot apply force
with intent to injure child / Violent past of parent only plays role in sentencing
CFCYL: Does s.43 violate security of the person under s.7 (security), s.15 (equality), s.12 (cruel)?
McL: Violates s.7 but, but does not violate PFJ because: 1) Adequate procedural safeguards as child’s
best interest are protected by courts; 2) Not a PFJ that laws affecting children must be in their best
interest; 3) s.43 is not too vague because it creates acceptable risk zone; 4) Not discrimination against
children because each has different needs (substantive equality) and treatment needs to tailor to each
(keeps families sane), so does not infringe on child’s dignity / Not cruel and unusual punishment
because requires reasonable force built into s.43
Binne (partial dissent): Would rather say it does violate equality (s.15) because it is an assault, but
justify it under s.1as “reasonable in the circumstances” for parents
Arbour (dissent): Strike down because unconstitutionally vague, offends s.7 and s.15, and rather use
necessity or de minimis to protect parents who spank their children
Deschamps (dissent): Strike down because does discriminate equality (s.15) and s.1 cannot justify it
because not minimally impairing
LePage: Christmas tree seller pushes past fire chief at his office and now authorities are going after
him for assault (doesn’t require harm) even though the real problem was a ticket for the trees: Court
says there is AR, MR for assault, but law does not deal with trifles—de minimis and stupid
Matsouba: Teacher allegedly touched leg of student, and judge doesn’t believe credibility of girls.
Judge concludes it was not sexualized even if he did touch her, so no harm and de minimis. Often use
de minimis when no other defenses, no harm, and consequence of conviction is severe
Stewart: Do not use de minimis in cases of domestic assault
CHAPTER 8: MISTAKE OF FACT
Fact: Mistake about the existence of certain facts (ex. the composition of a chemical compound)
Law: Mistake about the relevance of the facts to the law (ex. those chemical compounds are illegal)
TIMELINE: 1976 Leg reform (sexual history of victim not admissible)1976 Vaillancourt (MR
attached to AR)1978 Sault St Marie/Smithers1980 Pappajohn1982 Leg reform (husband
rape)1985 Sansregret/Re BCMVA1990 Lavallee1991 Seaboyer/Wholesale1992 Leg
reform1993 Osolin/Creighton1994 Daviault1995 Park/O’Connor/LLA1997
Esau/Carosella/Leg reform1999 Ewanchuck2000 Darrach
Pickard Article: Accused must put forward more than a claim of absence of knowledge about
consent / Balance effect of rape on women V Man having to ask for consent / Mistake in consent
defence should only be accepted if reasonable
Pappajohn: Real estate agent meets client for lunch, get drunk, go to house, 2 hour interlude where
she says rape and he says amorous encounter, runs next door naked with bowtie: mistaken belief?
McIntyre (Maj): Can only put mistaken belief in consent defence to the jury if the claim is grounded
in an air of reality / Need more evidence than testimony of accused / If stories are diametrically
opposite cannot be a mistaken belief so cannot put to jury; either is or is not consent
Dickson (Maj): MR for rape = need intention or recklessness for all elements of the crime, including
absence of consent (rape gets same MR as other crimes) / When you get to pose mistake defence =
sufficient evidence presented by an accused, by his testimony or by the circumstances / Subjective or
reasonable standard = use subjective standard because already requires air of reality, crim law requires
moral culpability so should be concerned with accuseds’ state of mind, it would be unfair to convict if
woman really did lead him to believe she wanted it / Juries will still judge based on reasonableness
anyways because they assess credibility of claim
Dickson (Dissent): There was enough evidence for air of reality; put mistake to jury
CHANGED s.273.2: Now mistaken belief in consent requires: i. the belief cannot arise from
intoxication; ii. recklessness or willful blindness AND accused must take reasonable steps, in
circumstances, to ascertain the complainant was consenting
Plummer/Brown: After Plummer had already raped her, Brown came in without knowing and had
sex with her / Air of reality because she went along with Brown, and he didn’t know she was scared
Morgan: Husband told accused his wife would put up protest because it was part of the act / Mistake
defence was allowed because husband’s explanation gave it an air of reality
s.265(4): It tells judge to decide whether or not there is enough evidence for mistaken belief to work,
and if there is, he must instruct the jury to consider the reasonableness of the claim
Sansregret: Crazy ex-boyfriend ties her up and threatens to kill her, so she has sex w/ him and says
they will get back together / Happens twice / She says he believed it was consensual because she
needed him to believe it / Court: he was being willfully blind because this had happened once before,
so he did have knowledge she was just performing / Problem: one ‘get out of jail free card’ for SA?
Seaboyer: McLachlin (Majority): Strikes down 1982 rape shield provisions saying s.276 infringes
s.11(d) and s.7 CCRF because it denies accused the right to a fair defence and could be imprisoned /
Not saved by s.1 because it excludes probative evidence and right to fair trial > protecting reputation
of complainant / Applicable principles: Not admissible solely to infer she was more likely to have
consented or to discredit her, must weigh probative value against unfair prejudice, judge must decide
this voir dire, and then judge must warn jury not to infer first two things I mentioned
LHD (Dissent): s.276 and s.277 do not infringe s.7 and s.11(d) because this only considers the narrow
constitutional definition of trial fairness, but allowing the evidence would systematically exclude
considerations of the harm done by the evidence to the fairness of the victim / SA law is very prone to
stereotyping and myths (sexual reputation, knowing the defendant, reporting rape, emotions, spiteful,
false claims, stereotype of the rapist) so letting judge determine relevance will only perpetuate the
myths because of their subjective experiences / Broader context shows that the trial is just the final
stage of the myth (reporting, police work, etc) / Harm done to victim outweighs trial fairness
Code before Seaboyer: blanket exclusion on sexual history unless: rebuts an inference of the
complainant’s sexual history; establishes an actual identity of assailant; evidence of sexual activity
that occurs at the same occasion and relates to consent
Code after Seaboyer: s.276(1): Not admissible for the purposes of merely showing the complainant
is more likely to have consented or is less worthy of belief / s.276(2): Evidence is admissible if it has
significant probative value that is not substantially outweighed by danger of prejudice, and it must be
relevant to the issue at trial and a specific instance (no general character) / s.276(3): Factors judge
must weigh to determine balance: fair trial, encourage reporting, will evidence help justice,
discrimination and bias in fact-finding and jury, personal dignity and privacy, benefit of law, etc
Osolin: Can they use self-blaming statements to her therapist?
Cory: Whether the evidence put forward is such that, if believed, a jury properly instructed could
have acquitted / The defence not available when both stories are diametrically opposite / Crossexamination must not be focused on rape myths; only delve into woman’s lifestyle in rare cases where
woman is fraudulent / LHD: No air of reality because of victim’s trauma/terror/ripped
underwear/bruises / McL: Cannot argue consent and also argue mistaken belief in consent / Can
satisfy air of reality test with diametrically opposite statements, but non on these facts / Sop: Agree
with Cory’s general test, but only require “some evidence” for a jury to acquit / Only need credible
narrative / Can use mistaken belief with diametrically opposite stories
s.273.l: Consent = voluntary agreement of complainant to engage in sexual activity in question / No
consent when: consent is expressed by another person; incapable of consenting; consent induced by
abuse of trust, power, authority; lack of consent expressed by words or conduct; consent revoked
Esau: Majority: Even though accused did not argue mistaken belief in consent, there was an “air of
reality” so TJ should put this defence to the jury, but should not put s.273.2 (must take reasonable
steps to ascertain consent) because Crown didn’t argue it / Dissent: TJ should not bring up defence of
mistake because accused didn’t argue it, and if he did it would have been defeated by s.273.2
Ewanchuk: Major: AR means in her mind she consented / MR means accused thought he had
obtained consent, not just that he thought she had consented in her mind / Check s.273.2 (reasonable
steps) only after ‘air of reality’ test has been met and defence of mistaken belief has been put to the
jury LHD: Check if accused complied with s.273.2 (reasonable steps) before he can try ‘air of reality’
test for mistaken belief in consent
Darroch: Post-Seaboyer amendments are constitutional / Do not require accused to testify / Crown
must still prove all elements of the offence / Exclusion of sexual history also protects accused
/ Cannot substitute MR for offence with MR for intoxication because violates s.7 and s.11(d) because
leaves reasonable doubt pertaining to MR of offence
CHAPTER 11: INCAPACITY
Youth: s.13: Children < 12 are incapable of committing a crime / Children 12-18 are capable of
committing crimes but we treat them under YCC
DB: Presumptive offences (serious ones) so adult sentence automatically applies deemed
unconstitutional under s.7 / Crown bears burden of proving adult sentence should apply / Courts
consider seriousness, circumstances, age, maturity, character, crim record, background
Mental Disorder: Either fitness to stand trial (FTST) or not criminally responsible (NCR)
FTST: s. 672.22: Everyone is presumed to be FTST unless court is satisfied on civil standard they are
not / s.672.12: Assessment can only be granted at request of Crown if accused raises the issue of their
fitness and then Crown satisfies court there are reasonable grounds to doubt FTST
Taylor: Not FTST requires “limited capacity test” and means accused does not understand nature or
consequences of proceedings, and cannot communicate with counsel—best interests don’t matter
Demers: If there is no prospect of fitness, court can order stay of proceedings
NCR: s.16: Presumed not to suffer from mental disorder unless party evoking it proves otherwise on
civil standard / If suffering from MD that rendered incapable of appreciating nature and quality of act
or knowing it was wrong, deemed NCR / s.2: MD = disease of the mind
Cooper: Disease of mind excludes self-induced states caused by alcohol or drugs, transitory mental
states, and must be of such intensity to satisfy s.16(1), needs to be internal to you
Chaulk: “Wrong” means morally wrong, regardless of whether you know it is legally wrong
Oomen: “Wrong” is not abstract moral determination; it is about being able to apply the knowledge
rationally when committing the offence—inability to make rational choice b/c of MD?
Swain: Man breaks with reality and fights air, hits wife accidentally / Now in meds and wants to be
charged with assault because light sentence / Crown wants NCR (mandatory detention until deemed
fit) / Court: Constitutionally Crown cannot raise NCR unless accused puts his sanity at issue, or if he’s
already been found guilty and part of sentencing
Winko: Court upholds NCR designation as constitutional (no s.7 or s.15 violation): Least impairing /
Not too vague / Distinct sentencing treatment is not discriminatory / No stereotyping; individual cases
CHAPTER 13: AUTOMATISM
-“A state of impaired consciousness…in which a person has no voluntary control over their actions”
-Caused by: disease of the mind, drunkenness, sleepwalking, concussion, tumor, psychological blow
-MD Automatism = s.16, Non MD Automatism = acquit
Single Approach to Automatism: 1. Trial judge (voir dire) must assess whether accused has met
evidentiary burden of rebutting presumption of voluntariness by reason of automatism on
balance of probabilities / Evidentiary burden requires accused to claim involuntariness at relevant
time, and supporting expert psychiatric evidence / Wrt automatism caused by psychological blow,
must require evidence of trigger equivalent to “shock” / Also consider other evidence (appearance,
history of involuntariness, motive) / If crime is explicable w/o alleged automatism, will usually
extinguish automatism claim / Main question: could a properly instructed jury find that the accused
acted involuntarily on balance of probabilities? If NOmay try for s.16 MD / If YES second step:
2. Judge must decide whether to instruct jury on alleged MD OR Non MD automatism (pick
one) / Must start with proposition that it is MD / Can decide it is non MD for psychological blow if
passes external cause test = whether a reasonable person might have also experienced automatism as a
result of the alleged shock or blow—if yes, it was external cause and non MD—if no, it was because
of internal weakness and MD / Also consider continuing danger because of MD or recurrence of
triggering events, policy concerns, psychological history / 3. Jury decides whether in fact there was
automatism (charged with either MD or non MD, not both): Stone (stabbed wife 47 times)
Rabey: Guy rejected by girl he liked so badly beats her / External/internal cause test for psychological
shock = reasonable person would not have become automatic = internal cause = MD automatism
Parks: Sleepwalker kills mother-in-law / Accused can introduce non MD automatism and only needs
to meet evidentiary burden / Then shifts to Crown, who tries to prove MD automatism / Continuing
danger test / No history of violence / No motive / No recurrence of triggering circumstances
Bleta: Guy with concussion stabs someone / Deemed transitory blow so non MD automatism
CHAPTER 12: INTOXICATION
Fact Pattern: Intoxication
It is very important when talking about intoxication to highlight the difference between general intent
and specific intent crimes. Specific intent crimes require a MR that is specifically focused on
producing a particular outcome (ex. murder = intent to kill, theft = intent to deprive another of
property). General intent crimes only require sufficient MR to commit the immediate act without
intent to produce any particular consequences, so it only requires basic voluntariness (ex.
manslaughter, assault). Specific intent crimes are therefore harder for the Crown to prove.
s.33.1 limits the defence of intoxication that had been established in Daviault. Now the defence of
intoxication does not work for general intent offences if the accused markedly departs from the SOC
of society. A person departs from the SOC if, while in a state of self-induced intoxication that renders
the person unaware or incapable of controlling their actions, voluntarily or involuntarily interferes (or
threatens to interfere) with the bodily integrity of another. Basically, cannot use intoxication as a
defence to general intent offences that involve bodily harm. If you commit a GI offence that is not
violent, you can still get intoxication defence if akin to automatism. If you commit a SI offence you
can always use the defense of intoxication, and if successful, the charge can be dropped to a GI
offence if there is one in the included offences (murder to manslaughter).
Beard (1920 HL, adopted in Canada 1931): Rapes and murders little girl, claims so intoxicated he
had no control over his actions / What role does alcohol play? / Historically drunkenness was
aggravating factor, not mitigating / Three propositions: 1. Insanity is a defence (if alcohol is so
extreme as to produce insanity, but must plead insanity; 2. Evidence of drunkenness which makes
accused incapable of forming specific intent essential to commit crime goes to jury to decide; 3.
Drunkenness falling short of incapacity does not rebut presumption that man intends his actions
Leary (1978): Pigeon (Majority): Substitutes intention to get drunk for intention to rape, so
intoxication is not a defence to general intent offences/ Dick (Dissent): Always disclose intoxication
Bernard (1988): Mc/Beetz: Keep Leary (intoxication not defence to GI) because voluntariness of act
is established by voluntariness to get drunk / Wil/LHD: Modify Leary to allow intox defence for GI if
so extreme it is akin to automatism / Dick/Lam (Dissent): Always disclose intoxication as defence
because otherwise violate CCRF because not recognizing voluntariness and fault / LaForest: In
principle agrees with Dickson but in this case the Leary application is not miscarriage of justice
Daviault (1994): Accused goes to house of 65 year old family friend in wheelchair, drinks himself to
point akin to automatism, and rapes her / Sopinka (Dissent): Wants to keep Leary (intoxication not
defence to GI) / Lamer: Still wants to overturn Leary and always disclose intoxication / LaForest:
Only agrees with majority because inappropriate to undermine precedent / Co, LHD, McL, Iac:
Intoxication can be a defence to a general intent offence if akin to automatism, but: a. BOP is on
accused to prove the defence on balance of probabilities and; b. must be supported by expert evidence
CHAPTER 14: PROVOCATION
Justification (not really criminal) versus Excuse (done wrong, but not morally blameworthy)
Fact Pattern: Manslaughter / Provocation
The MR for manslaughter only requires objective foreseeability of risk of bodily harm which is
neither transitory nor trivial (Creighton). This is why manslaughter is an included offence in murder:
if the Crown cannot prove the requisite MR for murder, the charge can be reduced to manslaughter.
s.232(1) allows culpable homicide that would otherwise be murder to be reduced to manslaughter if
done in the heat of passion caused by sudden provocation. This is the big P provocation defence!
s.232(2) defines the elements of the defence. Provocation requires a wrongful act or insult that is
sufficient to deprive an ordinary person of the power of self-control (judged objectively), and the
accused must have acted on the provocation on the sudden and before there was time for his passion
to cool (judged subjectively, taking into account the background, temperament, idiosyncracies or
drunkenness).
s.232(3) says that the jury will determine questions of fact (whether the particular wrongful act or
insult amounted to provocation and whether the accused was actually deprived of self-control), but
first the judge will decide questions of law (whether there is any evidence which could amount to
provocation). This section also makes clear that it is not provocation if the victim did something
which he has a legal right to do, or if he does something resulting from incitement by the accused to
give the accused an excuse to kill him.
s.232(4) says an unlawful arrest might amount to provocation if the accused knew
The objective test for the “ordinary person” has been highly controversial. Thibert (shotgun
husband) is the most recent authority on this issue, and the court held that the jury may consider the
background of the relationship and earlier insults the culminated in the final provocation, the age, sex,
and other factors about the accused that are relevant to the significance of the provocation. The
provocation defence can be allowed even if the insults include a desire for revenge (pre-meditated), so
long as immediately before the last insult the accused did not intend to kill. Thibert also defined the
“legal right” which prevents the provocation defense as a right that is sanctioned by law, not just
something a person can do without incurring legal liability. Hill (kills big brother for sexual
advances) basically defined the ordinary man test in the same way, saying the jury will be able to
conceptualize the reasonable man quite adeptly, and features such as age and sex can be attributed to
the accused, but are only necessary when they are relevant to the provocation in question. Humaid
(Arab family) said expert evidence about the accused’s culture is only admissible if the accused
actually shares the values of that culture, and only if those values are not antithetical to fundamental
Canadian values.
Klassen: Can use informal provocation defence to mitigate sentence
Camplin: 15 year old kills Pakistani with chapatti pan after being sodomized and laughed at /
Diplock: Talks about provocation to allow for human frailties / “reasonable man” is person having the
power of self-control to be expected of an ordinary person of the sex and age of the accused / Morris:
Include race and color of origin
Thibert: Wife leaves him for co-worker, he can’t speak with her alone, 34 hours awake, shotgun /
Major (Dissent): Objective = Accused had no legal right to speak with wife alone or prevent breakup, so cannot use it as provocation / Subjective = Not acting on the sudden b/c he’d seen them
together earlier, carried gun, etc
Parent: 4 years of litigation about assets after divorce, he goes bankrupt, she goes to auction to buy
his shares, he brings loaded gun and shoots her 6 times when she says “I told you I’d wipe you out” /
Anger alone cannot constitute provocation defence / Anger can play a role in provocation / In extreme
cases might result in automatism, but would then get either acquittal or s.16 (not manslaughter)
Malotte: Accused already been in abusive relationship, now husband also abusive, but when she tells
police they relay it to him because he’s an informant, serious case of Battered Wife Syndrome (BWS),
brings gun to medical center, gets out of car when it’s closed, scared he would hurt her so shoots him,
and goes to shoot girlfriend / Jury had lots of questions and charged manslaughter and recommended
minimum sentence / OntCA: Even if TJ had adequately explained BWS, she did not act on the
sudden so provocation would have failed / Abella (Dissent): TJ erred in law because did not
adequately explain to jury how BWS would change how a person would reasonably perceive a
situation and react to events / Should have considered abuse prior to incident / If adequately charged
jury would have found self-defense
CHAPTER 15: SELF – DEFENSE
Fact Pattern: Self-Defence
s.34 defines the extent to which force is justified in repelling an unprovoked assault. s.34(1) says that
a person is justified in using force to repel unprovoked assault, but the accused cannot have a)
intended to cause death or grievous bodily harm to the assailant, and b) the force can be no more than
necessary to defend himself. s.34(2) says that in cases where the force does cause the death or
grievous bodily harm of the assailant, the accused is justified in using the force if a) he was under a
reasonable apprehension that his death or GBH would result from the initial and continuing assault
and b) he believed on reasonable grounds that he could not preserve himself any other way
s.35 applies all the elements of s.34, but applies when the accused did provoke the attack. In order to
use the defence, the accused must retreat/decline as far as is feasible before he can retaliate. Lavallee
and McConnell say that EE can be introduced to explain syndromes such as Battered women and
prison dynamics. Cinous said pre-emptively shooting his accomplice does not count as self-defense
because there were other alternatives available, even if not within contemplation of criminal
subculture.
(Jane Stafford): Very abusive alcoholic husband says he will kill her son if she leaves him, so she
shoots him while passed out in his van / TJ puts s.37 to jury and they acquit / CA overturns because
there was no immediate threat as he was passed out in a van, and not proportional amount of force /
Self-defense should not have been put to jury at all
Lavallee: Lived with victim for 3 years, BWS, he gave her gun and she shot him in back as he turned
to leave / Judges are annoyed by juries’ interpretation of SD / Expert evidence about BWS admissible
because average juror doesn’t have knowledge about BWS and it is relevant to SD / Relevant in two
ways: 1) Temporal issue = did she reasonable apprehend death or BH from a threat to hurt her later?
2) Magnitude issue = did she reasonably believe this was the appropriate force/no other alternatives?
EE can cast doubt on the usual assumptions that one cannot reasonably apprehend danger and know
how much force to use until assault is happening. EE can explain woman’s heightened sensitivity,
why she knows when it is a serious threat, why she cannot leave, why she still loves him, etc / Must
determine what the accused reasonably perceived, not unbuttered reasonable perception / Requiring
harm to be in motion would mean it is impossible for woman to use SD at that point because no match
for men / Imminence requirement is based on male-male violence
Defence of others: Use s.34/s.35 but with respect of 3rd parties
NC and George: George was being beaten by police, so NC drove bus into their path to save George /
Court accepts that he would have hit police if they didn’t move, but they find it appropriate amount of
force and allow SD / Credibility plays a role: George was not using vehicle for SD; he was using it as
a weapon / NC was using vehicle as means of 3rd party defence
Brotherston: City counselor chokes Taylor to death when defending his sons (drug scene) / Court
applies s.35 test and finds accused is credible / Can consider evidence of sons’ situation / Acquitted
Mary Eberts Domestic Violence Police Report: ME is a litigator who argues many BW cases /
Woman kills violent partner / She had gone to police many times to report violence but police kept no
records / Now SD doesn’t work because without records she has to take stand to explain her police
visits / Want to estop Crown from examining her history when the reason she must take stand is to
correct a police failure which forced her to abandon her right to silence
Semenovitch: Convicted 73 year old BW of killing her abusive husband and helping daughter and
grandson to incinerate body / No particular moment of actual threat, but long history of abuse
Graveline: BW shoots her husband / Asks for non MD automatism, and does not argue SD at all
because they are conflicting defenses (either voluntary and justified or involuntary excuse) / TJ tells
jury to consider SD because there is an ‘air of reality’ / Jury acquit, but we don’t know why / Appeal
to SCC because don’t know what to do with conflicting defenses / SCC upholds acquittal
CHAPTER 16: DURESS
s.8(3): CL defences continue to apply unless they are altered by or are inconsistent with CCC
s.17: Only concerned with committers (principals) / Not available for excluded offences / Need to
establish: 1) Immediate threat of death or BH; 2) Person threatening you must be present when
offence occurs
Carker: No duress defence given against mischief when broke plumbing in his cell / Other inmates
said they would kill him when they got the chance / Immediacy and presence blocked defence
Gardiner: Weird TV drama type case in Prince Rupert of man (since disappeared) convincing
sketchy guys he’s high up in CIA and Israeli intelligence / Sets up sting op with police / Accused is
terrified of him at this point / Duress defence blocked because: 1) Events arose from initially
voluntary involvement in criminal activity and; 2) While the threat was immediate and man was
present, the unfolding of events was gradual so he had time to rationally reflect and exculpate himself
Robins: BW is terrified of husband, gone to police several times, warned victim’s father he might hurt
him / Forced to help husband kidnap daughter / She gets away without ransom / Accused tells police /
Kidnapping (not excluded) not same as forcible abduction (excluded) / Threat of her daughter being
kidnapped is not threat of bodily harm so no duress / Rejects argument of party and CL duress defence
because says she co-authored the crime / s.18: Abolishes presumption that offence committed by wife
in presence of husband was coerced—can still find coercion, but based on facts and no presumption
Paquette: Forced at gunpoint to assist people in armed robbery / s.17 only applies to principals, and
CL duress still available to parties / Restrictions on s.17 do not apply to CL duress
Perka: Dickson introduces moral involuntariness to explain the defence of necessity and classify it as
an excuse / Excuse concedes that the act was wrongful, but withholds criminal attribution because of
the dire circumstances surrounding its commission
Hibbert: Leads killer to his friend’s apartment building because his life threatened if he doesn’t /
Duress can provide a defence only as an excuse / Duress cannot negate MR / MR does not require you
to ‘desire’ an outcome, just need to be aware of probable consequences / Duress and necessity share
same juristic principles, but target different situations: Necessity = accused is a victim of
circumstance; Duress = accused is victim of man’s wrongful acts
Ruzic: Young Yugoslavian girl harassed by drug dealer and agrees to be drug mule into Canada when
he threatens her mother / Cannot go to police / Moral involuntariness (guilt, but excuse) and moral
innocence (no guilt) are not the same thing, but we need to make defence for moral involuntariness /
PFJ: cannot imprison and stigmatize a person when they had no realistic alternative / Requirement of
immediate and present threat infringes s.7 because it makes morally involuntary actions criminally
liable / CL defence of duress does not negate MR or AR—it is an excuse to them / Use objectivesubjective test to assess avenues of escape (similarly situated reasonable person) / CL defence of
duress does not require strict immediacy; question is “did accused fail to avail himself of opportunity
to escape?” / s.17 fails BW and countries where law has broken down / s.17 infringes CCRF because
immediacy and presence is under-inclusive—does not account for threat of future harm / No s.1 save
1. If you commit exempted offence  get nothing
2. If you aid/abet exempted offence  get CL defence of duress
3. If you commit or aid/abet non-exempted offences  get CL defence of duress
CL defence of duress: No defence for murder or treason / Expectation to put up normal resistance to
threats / Look for avenue of escape / Avenue of escape by objective standard, but personal
circumstances of accused are relevant / Does not negate MR / Need close temporal connection
between threat and harm / Don’t always need to seek protection of police / Once raised, BOP on
Crown to prove no duress / Threat of death or BH can be express or implied (requires conduct) /
Accused cannot be party to the conspiracy or voluntarily joined criminal activity
CHAPTER 17: NECESSITY
s.8(3): Permits CL defence of necessity to still exist
Dudley: Ate the sick cabin boy / Not yet dead so murder and cannibalism / Your highest duty may not
be to save your life, but to sacrifice it / Do not totally divorce law from morality
Holmes: Rules for eating people: Draw lots, any duties/obligations to others must come first
Southwark: Homeless families squatting in abandoned houses / Refuses to grant necessity by law
because allowing poverty/hunger to be an excuse would open the door to lawlessness
Morgentaler: Had to perform abortions because girls said they would kill themselves otherwise /Jury
bought necessity, but Dickson disallowed it saying CL necessity defence requires clear and imminent
peril, and impossibility to meet legal alternative
Latimer: Father mercy kills his disabled daughter and claims necessity / Judge tells jury that if they
find murder it has mandatory minimum of 10 years, if they find manslaughter it has no mandatory
minimum / Jury charge murder with recommendation of 1 year / Judge cannot accept recommendation
Perka: Jury bought necessity for drug smuggling boat / CA said if jury acquits they must send to
retrial because cannot substitute acquittal with conviction / If using necessity as a justification your
actions need to have a strong utilitarian end (ex. speeding to hospital) / Necessity defence is an excuse
(actions were wrong, but excused on humanitarian grounds) / Necessity requires three criteria: 1)
Urgent situation of imminent peril; 2) It was impossible to comply with the law / No legal way to
exculpate yourself; 3) Response must be proportionate between harm inflicted and harm avoided /
Limitations: 1) Do not require clean hands, but without clean hands will be less likely to get defence
because you should have foreseen imminent peril; 2) If situation was reasonably foreseeable defence
is unavailable; 3) Would normal instincts press you to commit act?; 4) Start with presumption of
voluntariness, but if necessity on table then Crown must disprove involuntariness / Wilson: most
necessity cases are excuse based, but some might be justification based
The film “Unforgiven” was set over a century ago. While the circumstances in which we
live today are not very reminiscent of the Wild West, the struggle for justice has changed very little.
The players, the crimes, and the subjective ways in which society judges both, all remain. By tracing
the story of the devastating events in the little town of Big Whiskey, this essay will compare the
different ways in which mankind has, over the centuries, attempted to administer criminal justice.
The events begin when Quick Mike is provoked by Delilah’s laughter at the size of his
penis. Since Mike reacts by cutting her face with a knife (as opposed to killing her), there is no
official provocation defense available to him, as s.232 only allows provocation to reduce murder to
manslaughter. R v. Klassen does allow the “small p” provocation defense to mitigate the sentence,
but Little Bill does not seem too interested in these formalities. Instead, Little Bill dismissively asks
the boys “I guess you’d just as soon not have a trial. No fuss, huh?” As the Sherriff, Little Bill is “the
be all and end all” of the adjudication process.
Cases like R v. Deane highlight how inappropriate it would be if the police were also the
judges. In that case, the judge candidly found that Deane, a police officer, had shot George when he
was not justified in doing so (justification would have required a reasonable threat to other team
members or himself). It was crucial that the judge was present as an independent arbiter so that the
credibility of the police officer could be tested. Of course, many other cases show us that the judge
does not always succeed as a fair arbiter of the law. In R v. RDS, Judge Sparks elicits questions about
a reasonable apprehension of bias when she finds that the police officer did not necessarily lie or
overreact, but if he had, it would not have been surprising based on the prevailing attitude of the day.
The judge, defence counsel, and accused were all black; the Crown counsel and the witnessing police
officer were both white. The criticisms from the SCC are very interesting: both McLachlin/LHD and
Cory/Iacabucci acknowledge that the concept of judicial neutrality is an impossible, but unavoidable
test, yet the ladies say it is better for the judge to acknowledge he or she is contextualizing within the
racial dynamics of the local community when doing it, and the men seem to say the judge is allowed
to contextualize, but should not acknowledge it is happening. The latter argument uses colored
language such as “May create perception of bias” and “Give appearance of bias” which only confuses
an already tricky subject.
The s.718 sentencing principles try to attain a healthy respect for the law and the
maintenance of a just, peaceful, and safe society. The sentencing struggle that goes on between Little
Bill and the prostitutes is very reflective of the tension between normative and utilitarian values. The
sentence that Little Bill gives Davey and Mike (replacing damaged property) is intended to
specifically deter the boys and make reparations to the victim. He only uses general deterrence (when
he assaults English Bob and Munny) in an effort to maintain a safe society, free of firearms. The
women find these utilitarian sentencing principles to be inadequate because they believe Little Bill has
identified the wrong victim. Little Bill’s choice of Skinny as the victim reflects the discriminatory
way in which society defines crime. It is argued in R v. Memo-Levine and Caine that because the
wealthy and powerful create and enforce the law, the law reflects only crimes which the majority
deems to be socially unacceptable. The trial judge finds as fact that marijuana is not harmful, and yet
it is criminalized when alcohol and tobacco are not. Caine argues that it is contrary to the principles
of fundamental justice to imprison a person for a crime that is not harmful. While Arbour accepts that
the harm requirement is a principle of fundamental justice, the majority says harm is not necessarily a
principle of fundamental justice. Some crimes, such as cannibalism and bestiality, do not harm
humans, but social morality will nevertheless step in to denounce such actions.
Similar to the prostitutes in R v. White, the women of Greely’s believe the enforcement
of the law is discriminatory and in breach of their equality rights. They decided to take justice into
their own hands to make reparations to the real victims (Delilah, and the women collectively) by
employing a normative method of sentencing. The women are concerned with denouncing the
conduct of the boys and acknowledging the harm done to Delilah. These are normative values. R v.
M(CA) says that retribution—“objective, reasoned and measured determination of an appropriate
punishment which properly reflects the moral culpability of the offender”—is a valid sentencing
principle. The women’s retribution, however, has likely turned to vengeance, which R v. M(CA)
declares is an invalid sentencing principle. Their sentence would likely violate s.718.1 and the
restraint principle enunciated in R v. Hamilton because a death sentence is not proportional to the
gravity of an assault, and it also requires both cowboys to die, even though Davey was only a party to
the offence. Perhaps the best solution for Davey (who tried to give a good pony to Delilah as alms for
the assault) would have been sentencing under s.717. Dr. Tara Ney explained that the alternate
measures can often allow for a better result than incarceration produces, and are very successful when
the offender truly wants to make reparations for his actions. A good example of the alternate
measures is Hollow Water’s circle sentencing initiative. Circle sentencing truly does enhance the
experiences of Aboriginal offenders because it provides a type of sentence that aligns with their
culture, rather than forcing them into a European penal system that is largely lacking in rehabilitative
opportunities. Since the time of colonization, Europeans have been asserting their dominance over
Aboriginals by outlawing important cultural rituals such as the Sundance and the Potlatch. While the
intentions of the Europeans might have been good (trying to civilize the Aboriginals by teaching them
values such as industry, perseverance, and sobriety), the result has been a slow and painful ethnocide.
Since Aboriginals are far over-represented in the penal system, circle sentencing seems to be an
excellent way to promote the objective behind s.718.2(e). In order for this to be effective, however,
judges will have to respect circle sentencing as a legitimate and equal sentence to jail time. In R v.
Pauchey the judge, who was not bound by the circle sentence, decided that a lifetime of working for
the elders was not a harsh enough sentence, so he added a penal sentence of 3 years. It is worth
comparing how Munny leaves his young children alone on the farm for weeks and no one seemed to
blink an eye about it. Granted, Pauchey’s children wandered outside and froze to death, but even if
Munny’s children had been harmed, it is doubtful the European culture a century ago would have
charged him with criminal negligence.
When word about the reward reaches the Munny and Ned, they join up with the Schofield
Kid to hunt down and kill Mike and Davey. The first cowboy they kill is Davey. Although Munny is
the principal because he actually kills Davey, according to s.21(1) both Ned and the Kid would be
considered parties to the murder. R v. Vaillancourt requires the mens rea for murder to be nothing
short of “subjective foresight of death.” Since the three men set out on a joint venture with a common
intention of killing the cowboys they clearly have the requisite mens rea for murder. Moreover, R v.
Hibbert tells us that even if they had different motives (the Kid is trying to ‘prove himself’, whereas
Ned and Munny need the money), having in mind the same unlawful purpose will make each person a
party to the offence. Furthermore, the Kid would also be found as a party to the five homicides that
Munny commits in Greely’s because s.21(2) extends liability beyond just the originally intended
offence if the commission of other offences would be a probable consequence of the common
intention.
After the first cowboy is killed, the townspeople manage to arrest Ned. His death is an
accidental result of his refusal to comply with Little Bill while in custody. This is reminiscent of the
unfortunate death of Ashley Smith. At age 15 she was imprisoned for throwing crab apples, and by
age 19 she commits suicide in her cell after more than 80 infractions have continually prolonged her
sentence. R v. Carker is another example of how supremely out of touch the judicial system is with
the realities of prison life. The accused was denied the s.17 defense of duress for a charge of mischief
when he broke the plumbing in his cell. Other inmates were threatening to kill him if he did not
comply with their request, but because the inmates were not present in his cell and the threats would
not produce immediate harm to Carker, s.17 was held to be inapplicable. On the other hand, in R v.
McConnell the court allowed the s.34 defence for a pre-emptive strike. The court was quite astute to
apply the Battered Women’s Syndrome to an inmate, realizing that prisoners are attuned to when there
is a reasonable apprehension of danger. Again, R v. Whitford enforces the idea that perhaps the
prison system is adapting to realities of what is truly best for the prisoner as well as the community.
By allowing Whitford’s baby to be raised in prison with her, the child will likely have better access to
medical care and community support than it would in a foster home.
Ned’s death results in a killing spree. The first person Munny kills is Skinny, the owner
of Greely’s. His reason is almost a backwards interpretation of corporate homicide. Canadian
Dredge and Dock uses the “directing mind” identification theory of liability to shape the s.22.2
offence which holds organizations liable for offences that require proof of fault when the acts are
committed by a senior official acting in the scope of his authority in order to benefit the organization.
If Skinny did not want to die, he should not have “decorated his saloon with my friend,” says Munny.
Since Munny reverts to alcoholism when he hears of Ned’s death, the s.33.1 defence of
intoxication might be available to him. This defence is available for specific intent offences, or for
non-violent general intent offences. If successful, the five murders Munny commits could be reduced
to manslaughter. It is unlikely, however, that intoxication will be a successful defence considering
how controlled Munny’s actions were. The defence of non mental disorder automatism might be a
more successful avenue, since Ned’s death could be considered a one-time triggering event that
caused a psychological blow. Unfortunately, the murders can be explained without needing to include
automatism because Munny had plenty of motives and he had a very violent history, so non mental
disorder automatism will likely be ruled out.
In the 21st century there still exist many miscarriages of justice with devastating results,
such the wrongful convictions of Donald Marshall, Milgaard, Waudby, and many more. That being
said, it is clear from “Unforgiven” that our criminal law system has matured and adapted well over the
past century. While it might be unpleasant to consider the atrocities of the past, Canada’s history is
not something we can divorce ourselves from, and the struggles ahead will be better met if we
understand the battles that have already been fought.