Contents
Trial Process ............................................................................................................................................................................................................................................. 4
Evidence and Proof .............................................................................................................................................................................................................................. 4
Woolmington v. DDP ........................................................................................................................................................................................................................ 4
R. v. Oakes
RBHS 284-289 ....................................................................................................................................................................................................... 4
R. v. Lifchus
RBHS 292-294 ..................................................................................................................................................................................................... 4
R. v. Starr RBHS 294-297 ................................................................................................................................................................................................................ 5
The Role of Counsel ............................................................................................................................................................................................................................. 6
Elements of an Offence............................................................................................................................................................................................................................ 8
Contemporaneity ................................................................................................................................................................................................................................. 8
Elements of Actus Reus ............................................................................................................................................................................................................................ 9
Voluntariness ....................................................................................................................................................................................................................................... 9
Omissions, Status, and Circumstances............................................................................................................................................................................................... 10
Acts:................................................................................................................................................................................................................................................ 10
Omissions ....................................................................................................................................................................................................................................... 10
Specific Omissions Offences .......................................................................................................................................................................................................... 10
General Omission Offences............................................................................................................................................................................................................ 11
Other Common Law Duties ............................................................................................................................................................................................................ 11
Status Offences: ............................................................................................................................................................................................................................. 11
Circumstances ................................................................................................................................................................................................................................ 12
Causation ........................................................................................................................................................................................................................................... 12
Factual Cause ................................................................................................................................................................................................................................. 12
Legal Cause..................................................................................................................................................................................................................................... 13
Special Causation for Homicide ..................................................................................................................................................................................................... 13
1
Intervening Cause .......................................................................................................................................................................................................................... 14
Mens Rea ............................................................................................................................................................................................................................................... 15
What mens rea applies to: ............................................................................................................................................................................................................. 15
Five Types:...................................................................................................................................................................................................................................... 15
Determining the Mens Rea ............................................................................................................................................................................................................ 16
Full Mens Rea: SUBJECTIVE ............................................................................................................................................................................................................ 16
Criminal Negligence/Penal Negligence .......................................................................................................................................................................................... 19
Strict Liability.................................................................................................................................................................................................................................. 20
Absolute Liability ............................................................................................................................................................................................................................ 20
Mens Rea and Charter Considerations .......................................................................................................................................................................................... 20
Defences................................................................................................................................................................................................................................................. 21
Air of Reality ....................................................................................................................................................................................................................................... 21
Mistake of Fact ................................................................................................................................................................................................................................... 21
Mistake of Law/Ignorance of the Law ............................................................................................................................................................................................... 22
Seven Exceptions ........................................................................................................................................................................................................................... 23
Ignorance of the Law and the Charter ........................................................................................................................................................................................... 25
Intoxication ........................................................................................................................................................................................................................................ 26
Insanity/Mental Disorder ................................................................................................................................................................................................................... 29
Procedure ....................................................................................................................................................................................................................................... 29
How The Defence Works................................................................................................................................................................................................................ 30
Substantive Aspects ....................................................................................................................................................................................................................... 31
Defence of Automatism ..................................................................................................................................................................................................................... 33
Provocation ........................................................................................................................................................................................................................................ 36
Self Defence ....................................................................................................................................................................................................................................... 39
Sexual Assault ........................................................................................................................................................................................................................................ 42
2
Evidence ............................................................................................................................................................................................................................................. 42
Complainants Sexual History: Rape Shield Law ............................................................................................................................................................................. 42
Complainants Personal Records..................................................................................................................................................................................................... 43
Actus Reus .......................................................................................................................................................................................................................................... 44
Mens Rea ........................................................................................................................................................................................................................................... 46
3
Trial Process
Evidence and Proof
Woolmington v. DDP
“Golden thread” of the presumption of innocence and the requirement of proof beyond a reasonable doubt are intertwined and foundational to our system of
criminal law.
R. v. Oakes
RBHS 284-289
Section 11(d): Any person charged with an offence has the right… (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by
an independent and impartial tribunal.
KEY FACTS: s.8 of the Narcotic act places the burden of proof on the accused (balance of probabilities that they are NOT guilty of trafficking once found guilty of
possession. The court holds that s.8 of the Narcotics Act breaches s.11(d) of the charter
PURPOSE OF PRESUMPTION OF INNOCENCE: protects life liberty and security. Reflects faith in humankind. The consequences of conviction are very serious,
therefore need to avoid wrongful convictions which the presumption of innocence helps. The presumption of innocence is “essential in a society committed to
fairness and social justice”. The presumption can be rebutted if the crown proves the accused’s guilt beyond a reasonable doubt.
R. v. Lifchus
RBHS 292-294
ISSUE: What does “beyond a reasonable doubt” mean?
HELD:







“Beyond a reasonable doubt” is the standard of proof due to the presumption of innocence.
The crown bears the burden of proof—never the accused
A reasonable doubt is based on reason and common sense, not sympathy or prejudice.
It must be logically connected to the evidence or lack of evidence provided by the crown.
It is not absolute certain, the doubt is not imaginary or frivoulous, but is more than probably or likely guilty.
If the jury decides the accused is ‘likely’ guilty, they must acquit.
It is not the ordinary sense of ‘reasonable doubt’ but rather is a highly specialized term in the criminal law context. No other adjective besides
“reasonable” will suffice.
RATIO: No specific words need to be used when describing the burden of proof to the jury as long as the above principles are explained.
4
R. v. Starr RBHS 294-297
HELD: The trial judge erred when instructing the jury on what the standard of proof is.
RSNS: Beyond a reasonable doubt is not something that is encountered in everyday life. It is not appropriate to analogize this standard to everyday or moral
decisions, or even the most important decisions in an individual’s life. Reasonable doubt falls much closer to absolute certainty than to a balance of probabilities.
RATIO: The judge must instruct the jury on the special legal significance of “reasonable doubt”, the principles as set out in Lifchus. The judge must explain “how
much less” than absolute certainty is enough to satisfy beyond a reasonable doubt requirement.
DISSENT: the charge to the jury must be examined as a whole to see if they would have understood the burden of proof. It is not required for every element of
Lifchus to be stated by the judge—just that the sense of the burden of proof as a whole was communicated. Lifchus is merely a touchstone not a checklist.
5
The Role of Counsel
Person/Issue
Prosecution
Case
Boucher v. The
Queen
Disclosure by
Crown
R. v. Stinchcombe
Ratio
The role of the crown is to act as a “quasi minister of
justice”. NOT to win. Put all the credible evidence before the
court, act fairly and press the case to its legitimate strength.
Acts only in the interest of society.
The crown must disclose all relevant information to the
defense, even evidence the crown does not intend to
present to the court. Relevance is at the discretion of the
crown, but they must err on the side of inclusion.
Exceptions:
a) information protected by the law of privilege, unless judge
says this is not reasonable limit on accused’s rights
b) delay disclosure of witness if there are safety or
harassment concerns
c) delay if early disclosure may impede investigation (this
should be used sparingly)
d) things that are clearly irrelevant.
All Statements: must be disclosed even if the person isn’t a
crown witness. If a statement does not exist, other
information including notes, name and address, what they
likely know etc. should be produced. (subject to above
exceptions)
Defense
Counsel
Ferguson Jan. 9th
2013


Generally

To vigorously, fearlessly, lawfully and ethically defend
their client.
Present everything that may lead to an inference of
reasonable doubt.
Not concerned with the factual guilt of the accused, but
rather ensuring their rights are protected through
proper state conduct.
6
Notes
Obligation is triggered by a request by or on behalf of the
accused. If accused is self-represented, crown needs to
explain to the accused their right to disclosure. A plea
should not be taken unless judge is satisfied this has been
done.
Crown decision to not disclose can be reviewed by trial
judge if:
A) Defence must bring it to the trial judge’s attention
ASAP
B) Onus is on the crown to justify refusal of
disclosure—must be one of the listed exceptions
C) Trial judge may hold a ‘voir dire’ (break from trial to
investigate, can’t be considered in trial)
D) Information should be disclosed if non-disclosure
impedes accused’s ability to make full answer and
defense.
Appeal court can review failure to disclose and must
consider whether the failure impeded the accused’s
ability to make full answer and defense.
All this only applies to Indictable Offenses but appellate
courts have held it also applies to summary charges.
 However can’t consider the social or policy
implications.
 Have to follow the rules themselves i.e. can’t tell a
client to lie.
 Must disclose expert evidence they intend to bring as
well as any alibi to the prosecution. Does not have to
disclose otherwise.
Defense
Counsel
If you know
your client is
guilty.
Defense
Counsel
Law Society of
Upper Canada
“Defending a
Criminal Case”
RBHS 255-259
Same as above
Client/Lawyer
privilege
Adversarial
System
Ferguson Jan 9th
2013
Defense Counsel may represent a client who confesses they
are guilty and they are not to reveal the contents of the
clients confession unless in extraordinary circumstances.
Rather they are to make full defense of what options are
available: technicalities, wrong offense, indictment/summary
etc. They just can’t lie and present evidence they know to be
false i.e. a false alibi that may lead to an acquittal.
Defense counsel has a duty to maintain lawyer-client
confidentiality. Lawyer-client privilege can be breached if A)
if that is the only way to demonstrate the innocence of the
accused B) if the client’s communication was criminal in
nature C) public safety reasons if the information relates to a
clear and serious risk to an identifiable person or groups of
people.


Doesn’t mean the other side is the enemy
Concern that the bar is getting impersonal—treatment of
the other side as an enemy.
7
Risk of false testimony: If a client insists on taking the
stand to give a false story, the lawyer cannot prevent him
from testifying (but should try to dissuade them, perhaps
by removing themselves from the case) nor can they
prejudice the testimony by saying “this is against my
judgment” etc. However, if a lawyer knows that a client
has committed perjury, they may report this.
Accused is not a compellable witness at common-law.
Elements of an Offence
An offence contains THREE elements: (1) actus reus (1a) concurrent at least in part with (2) mens rea (3) absence of any lawful defence.
Contemporaneity
 Criminal liability only arises if the actus reus and mens rea are ‘concurrent’ or coincide at some point. Without concurrence, there can be no guilt.
Issue
Case
Ratio
Notes
When is the actus reus Fagan v Police CA Eng 1969
An act which lacks mens rea and is therefore not criminal Used “continuing transaction” idea
complete?
because harm was continuing—therefore
 Fagan instructed to park can become criminal if the offender formulates the mens
rea and does not desist—if it is possible to construe the
actus reus continues until the harm stops.
by PO
Does the mens rea
act
as
‘continuing’.
Mens
rea
does
not
have
to
come
 Accidentally drives onto
need to be formulated
before actus reus, just at some point before the act is
PO’s foot
before the actus reus?  Initially refuses to move
complete.
car, but eventually does
move the car just really
slowly.
 Convicted of assault
Can inaction or an
R. v. Miller (HL 1982)
Actus Reus can be a positive action or an omission to do a This would not really work in Canada
omission to act
because the SCC cannot create new
 Squatter falls asleep with legal duty.
constitute actus reus?
offences, so in Canada an omission is not
lit cigarette.
Here the English court created a legal duty to rectify an
enough unless it is codified.
 Wakes up, the mattress
unintentional criminal action once you become aware of
is smoldering, but just
it. If you do not do this, you are guilty of the offence as by
goes to another room
not acting you adopt the unintentional action as intended.
 House burns down
 Convicted of arson.
Does mens rea have to R. v. Cooper SCC
If an accused formulates the mens rea at any time during
Actus reus and mens rea DO NOT need to
be present at the time  Man strangles GF to
a series of events which constitute actus reus, even if they be fully concurrent, just concurrent at
of completion of the
lack the mens rea at the completion of the actus reus, it is some point in time.
death.
actus reus?
sufficient to support a conviction.
 Claims that he ‘blacked
Based partially on Privy council decision of
out’ way before she died,
Meli, where accused thought victim was
so didn’t have the mens
dead, but victim actually died of exposure:
rea when she actually
still convicted of murder b/c found to be
died.
‘continuous transaction’
 Convicted of murder:
bodily harm where death
is a likely result
s.229(a)(ii)
Example of nonR. v. Williams SCC 2003
The first time they had sex, there was no mens rea as the
When you are charged with a full offence,
8
concurrence.



HIV positive man doesn’t
know, has unprotected
sex.
Later finds out, but has
unprotected sex again
with same partner.
Convicted of attempted
aggravated assault b/c
couldn’t meet full charge
due to lack of
concurrence.
accused did not know that he was HIV positive.
Afterwards, when he was aware of his HIV status, it is not
conclusive that he was actually endangering her life
because there was a reasonable doubt that she already
had HIV and therefore was not in danger.
you are put on notice that you may be
convicted of just the partial offence, such
as “attempted”. Otherwise, can’t change
the conviction to something not charged
for.
Elements of Actus Reus
voluntary
Act,
omission of
legal duty,
or both
causes
Prescribed harm
Or
both
OR
Occurs in
Prohibited circumstances
Voluntariness


Primarily refers to “physical” involuntariness (either conscious or unconscious)
Mental involuntariness, from duress or compulsion, is sometimes referred to as ‘moral voluntariness’ (from Ruzic) but this complicates this section of the
analysis and duress/compulsion is a valid defence so can be examined in that part instead.
 Examples of physical involuntariness when unconscious: (1) sleepingwalking (parks) (2)concussion (Bleta, SCC) (3)delirium (4) epileptic seizure (plus
things like intoxication, insanity—dealt with under defences)
 Examples of physical involuntariness when conscious: spasm, twitch, reflex action, unexpected mechanical failure of a vehicle, trip and fall, physical
compulsion (someone else manipulates your body or hits you into something), physically impossible to fulfill a legal duty (i.e. pinned down so can’t
move)
Issue
Case
Ratio
Notes
Doesn’t address
R. v. Larsonneur
Example of what happens
Even jury recognized the
voluntariness: WRONG
when a court does not
unjust reasoning, brought
 French lady told she
consider voluntariness a
back verdict of “guilty for
must leave the UK
requisite component of
reasons beyond her
 She goes to Ireland
actus reus. Lady had no
control”
 Irish officials arrest her
9
and take her back to
the UK
 Found guilty of being in
the UK w/o permission
Kilbride v. Lake (NZSC)
R. v. Ruzic
choice but to come to UK—
they brought her here
under arrest!
Omissions, Status, and Circumstances
Acts:
 The criminal code may set out a prohibited Act that creates an offence
 Sometimes unclear what the code means or what the scope is.
 If so check: (1) for a definition (2) then examine case law which may interpret (3) then apply rules of statutory interpretation if still unclear.
Omissions
 An omission is a failure to act
 In order to be guilty of an omission therefore, you must have a positive legal duty to act
 There is no general duty to be a good Samaritan
 Before the code the common law recognized 3 legal duties (1) relationships of dependency (2) undertaking to do something (3) duty to use reasonable
care in dealing with dangerous objects or performing dangerous tasks.
Specific Omissions Offences
Section Offence
s.215(1) Duty to provide “necessaries of life” to certain dependents
s.216
Duty of persons to use reasonable care in undertaking acts that may endanger life
s.217
Duty of persons undertaking an act to actually do the act, if omitting to do it may be dangerous to life
R. v. Browne (ONCA): “undertaking” is a high threshold, more than willingness. Needs to be a “binding” commitment made by the accused. (in this
case no binding commitment when accused told dying GF he would take her to the hospital and then called a cab)
s.217.1 Duty on persons who direct the work of others to take reasonable steps to prevent bodily harm to other persons arising from that work
s.50(b) Fails to report to the police a high treason (s.46(1) that is about to be committed
s.80
Breach of duty in regard to the care of explosives (s.79)
s.127
Failing to obey a court order
s.129(b) Omitting to assist a police officer when requested
s.252(1) Failing to stop and render assistance after being involved in an accident
s.254(5) Failing to provide a sample of your breath
10
General Omission Offences
Section Offence
s.180(2) Common Nuisance--Everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers
lives, safety, health, property or comfort of the public
Thoronton (ONCA): liability for common nuisance can arise out of breach of a common law duty. Relied on Donoghue v. Stevenson to hold individual
liable for failure to disclose that he was HIV positive when donating blood. Created a duty to disclose.
Section
Offence
s.220/221 Criminal Negligence Causing Death/Bodily Harm—this is defined under s.219(1) which states: everyone is criminally negligent who: (a) in doing
anything or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives of safety of other persons (2) for
the purposes of this section “duty” means a duty imposed by law
Coyne (NBCA): duty in regard to crim negligence can arise out of statute or common law. Convicted accused based on common-law duty to take
reasonable care when dealing with dangerous object (rifle).
Popin (ONCA): duty in regard to crim negligence can arise out of statute or common law. In this case relied on common-law duty of parent to take
reasonable steps to protect their child from violence (parent stood by while other parent committed physical abuse—guilty of crim neg.)
Other Common Law Duties
R. v. Nixon (BCCA): Officer in charge of police lock-up was guilty of aggravated assault on the basis of his breach of legal duty to provide care and protection to
inmates—inmate in this case was assaulted by other police officers and officer in charge knew, did nothing to stop it. Court held this duty arose out of commonlaw and statute.
Cuerrier (SCC): Non-disclosure of HIV status vitiates consent for sexual conducttherefore turns what was consensual sex into aggravated sexual assault. Duty
to disclose. They did not say where this duty came from, could be from common-law duty in respect to dangerous acts OR could argue it arises out of s.216.
Status Offences:
 Criminalizing a “state of being” rather than some positive act or omission.
 Ex. “it is an offence to be female”
 There aren’t really any of these in code—would likely violate s.7 especially if the status is involuntary.
 Some people argue ‘keeping a common bawdy house’ is a status offence—however this still does involve some conduct.
 Parliament recently rejected the option to make it an offence to belong to a criminal organization (which would have been a status offence)
11
Circumstances
 Some offences require the accused’s conduct to occur in certain prescribed circumstances
 For example, driving while impaired. Prohibited circumstances is “while impaired” conduct is “driving”.
Causation
 The Crown must prove LEGAL causation beyond a reasonable doubt.
0— No causal connection at all. No factual Cause.
5—Factual cause, but not legal cause. Not enough to convict.
6—Legal Cause. Beyond a ‘de minimis’ range (Smithers level)
25—Significant Cause. Seems to be place for legal cause advocated in Nettie.
40—Substantial Cause. Used for 1st degree murder (Harbottle)
51—Main or Primary Cause.
Factual Cause
 Some type of connection between defendant and the criminal harm. Physical, mechanical, scientific. Very basic.
 Can be quite small, so the question always is, is there enough factual causation to constitute legal causation
 “but for” question—but for mother and father’s act of procreation, the murderer wouldn’t have existed and the murder wouldn’t have happen.
Therefore factual cause between procreation and murder.
Case
Winning (1973
ONCA)
Wilmot (1940)
Fisher (1992
BCCA)
White (1994
NSCA)
White (1910 UK)
Held
The store did not rely on the false pretense when issuing the defendant a credit card: therefore no factual cause and def. not guilty of
obtaining credit under false pretense.
Impaired driving causing death. Impairment must be a cause, not just a circumstance. Accused acquitted of manslaughter where a cyclist
suddenly and unexpectedly swerved into his path.
Same as Wilmot—no proof impairment caused the accident.
If impairment is proven, causation will be assumed unless there are special circumstances that explain the accident.
Accused poisoned mom, mom then died of an independent heart attack. No factual causation—not guilty of murder.
12
Legal Cause
Issue
Standard for Legal
Causation
Does the Smithers
standard violate the
charter?
Standard for Legal
Causation reworded, but not
changed?
Legal Causation
standard for 1st
degree murder
Thin Skull
Indirect legal cause
Case
Smithers (SCC 1978)
Accused kicks victim in stomach,
who then suffocates on his own
vomit. Guilty.
Ratio
Legal cause is “any contributory cause that is
beyond the de minimis range”
Cribben (ONCA 1998)
The smithers test is constitutional.
Accused beats victim, but nonlife threatening. Victim drowns in
his own blood while unconscious.
Nette (SCC 2001)
Legal cause is a ‘substantial cause’
Harbottle (SCC 1993)
Legal cause is “substantial and integral”
Shanks (ONCA 1996)
Just need to prove causation beyond de minimis,
so even if victim didn’t died unexpectedly or
unforeseeably due to some illness or ‘thin skull’
can still be found guilty.
If def’s actions are contributing factor beyond de
minimis that caused the person who committed
the direct legal harm to act—def will also be guilty.
R. v. S.R.(J) (ONCA 2008)
Notes
No need to be sole cause—so there can be
more than one person held liable.
Malfunctioning epiglottis irrelevant—must take
victim ‘as you find them’
-not too vague
-mens rea element required will ensure morally
innocent are not found guilty.
-thought the smithers wording was confusing
for juries
-claimed they weren’t changing the test.
This ONLY applies to first degree murder under
s.231(5) b/c of the specific wording which says
“the death is caused”.
In this case: def. was in a gun fight on busy
street in Toronto. His opponent shot, missed
him and killed an innocent bystander. Def
guilty of her death.
Special Causation for Homicide
s. 222(1), 5(c) & (d) - causation re the offence of homicide
s. 224 - prevention of death by proper treatment
s. 225 - when immediate cause of death is proper or improper treatment
s. 226 - acceleration of death
s. 227 - death within a year and a day [repealed in 1999]
s. 228 - no person causes death of a human being solely by influence on the mind (i.e. scaring someone to death) except where a person causes the death of a
child or a sick person by wilfully frightening him/her (see s. 222(5)(d)).
13
Intervening Cause
 When a subsequent event takes what might have been a legal cause and puts back to just a factual cause or is so overwhelming that the original act
ceases to be even a factual cause, this is called an “intervening cause”.
 Subsequent event or act that breaks the chain of causation
 You are ALWAYS asking the standard of legal causation testjust looking at the intervening event to determine if that standard has been met.
R v. Maybin
KEY FACTS:Brothers punch victim at bar. Bouncer comes over, is told victim started the fight, so he also punches the victim (who is unconscious) and the v dies.
ISSUE: Did the brothers legally cause the victim’s death or was the bouncer’s punch an intervening act that relieves them of legal causation?
HELD: Brother’s legally caused the death.
RSNS: There are TWO factors to examine to determine if legal causation met.
1) Forseeability
- If the subsequent event is reasonably foreseeable it will not break the chain
- b/c if it is foreseeable it is fair to blame the original actor
- extraordinary events break the chain
- objective test
- it isn’t the specific event that has to be foreseeable, but rather the risk of non-trivial harm
2) Independent Acts
- Is the intervening act independent, voluntary—breaks the chain
- If the act is related to or in response to the original act then the chain is not broken.
RATIO: The foreseeability and independence are two important factors to consider when determining if legal causation has been met in situation of intervening
acts.
Issue
Case
Ratio
Notes
Harm caused by person
Pagett
a response of self-defense or an attempt to escape which then
Accused uses GF as shield while shooting
acting in self defence
(EngCA 1983) causes harm does NOT constitute an intervening act and therefore
at police, police shoot back and kill her.
does NOT negate legal causation of the original actor.
Suicide committed by victim
after deadly injury
Refusing treatment on
religious grounds after nondeadly injury
Doctor’s turning off
respirator of brain dead
victim
Criminal code provision on
intervening acts
Lewis (1899)
Blaue
Kitching and
Adams
s.222(5)(c)
Still liable for the death of someone who kills themselves to avoid
the pain of a slow death from injury
Def liable for death of victim they stabbed, despite the wound being
non-life threatening, b/c victim refused blood transfusions on
religious grounds.
Def. still liable because there can always be more than one cause of
death.
If the victim does anything that causes their own death due to
threats, violence or deception by the accused, the accused has in
law caused the victim’s injuries.
14
Whole reason victim was brain dead in
first place was def’s fault—so clear
connection beyond de minimis
Victims conduct is NOT an intervening
cause which relieves the accused from
criminal liability.
Mens Rea
“Actus non facit reum, nisi mens sit rea” (The act is not criminal unless the mind is also criminal) – Lord Coke, 3rd Institute (1641).
What mens rea applies to:
Sault Ste. Marie: the mens rea applies to each element of the actus reus.
Pappajohn SCC: “must be proved in relation to all elements of the offence, including absence of consent”
**note parliament has changed the code in cases of rape, so that only objective knowledge or consent is required.
Creighton SCC: This is called the “Rule of Symmetry”
EXCEPTION: Predicate Offences.
Case
Held
De Sousa (SCC)
“there must be an element of personal fault in regard to a culpable
s.269 unlawfully
aspect of the actus reus, but not necessarily in regard to each and
causing bodily harm.
every element of the actus reus”
Notes
This was in contradiction to the general principle that the mens
rea must attach to each element of the actus reus. Seemed very
broad… but gets restricted below.
Unlawful act =
underlying offence
Bodily harm =
aggravating
circumstances
Creighton SCC 1993
This applies to all predict offences.
s.267
s.222(5)(a)
s.268
Therefore, the mens rea need only to be proved for the underlying
offence (i.e. assault) and not the aggravating circumstances (i.e.
bodily harm)
General rule that the mens rea must attach to each element of the
offence.
However, there are exceptions as the rule of symmetry is not a
principle of fundamental justice.
Assault causing bodily harm
Assault causing death
Unlawful act manslaughter
Aggravated assault
Therefore, the mens rea is required for the underlying offence and
ONLY an objective foreseeability of non-trivial harm is required for
the aggravating consequences.
Five Types:
1. Full mens rea: intent, knowledge, recklessness, willful blindness. Subjective test.
2. Criminal Negligence: ss.219, 220, 221, 222(5)(b). Marked an substantial departure from the conduct of a reasonable person—Waite. Subjective or
Objective test.
3. Penal Negligence: lower standard of criminal negligence: s.86(1), s.249, s.436. Objective test.
4. Strict Liability. Crown proves actus reus, accused has reverse onus to prove (bofp) that they acted with reasonable care or due diligence. Objective test.
5. Absolute Liability. Crown proves actus reus. Cannot have the possibility of jail time.
15
Determining the Mens Rea
Expressly Stated
 Sometimes, the criminal code expressly states what the mens rea is. Look for: willfully, intentionally,knowingly, for the purpose of, recklessly, carelessly
or negligently.
 If the Code states the mens rea—you are done this part of analysis. Use it and go on.
Silent
 Sault Ste. Marie: if the offence is a “true crime” = Full mens rea. If it is a “regulatory offence” = strict liability.
True Crime
 Buzzanga: If the offence is in the Criminal Code, it
is a ‘true crime’ UNLESS there is clear intention to
the contrary
 True crimes use FULL MENS REA—ANY of the four
and NOT negligence.
 Sault Ste. Marie: If an offence in a statute OTHER
than the Criminal Code seems like it might be a
true crime, you must examine the nature of the
offence and the severity of the penalty.
 Basically, any penalty OVER 2 years imprisonment
will likely constitute a ‘true crime’
 Argue how similar the offence seems to criminal
code provisions
 The Narcotics Act contains mostly true crimes, but
not very many other statutes do.
 Beaver: Test for true crime is “nature of the crime”
and the “penalty”. Crimes that are ‘mala in se’
(bad in themselves) are likely true crimes.
Imprisonment also indicates it is a true crime.
Held: Narcotics act had mandatory imprisonment
for possession, therefore full mens rea required.
Regulatory Offence
 Offences in statutes OTHER than the Criminal
Code.
 Generally punishable by 2 years or less.
 Uses STRICT LIABILITY and NOT absolute liability
 Pierce Fisheries SCC: before sault ste marie, so
there were only two choices: full or absolute.
Illustrates application of nature of crime/penalty
test. Guilty of possessing under-sized lobsters—
crime not bad in itself, and just a fine = regulatory
offence.
 Sault ste marie SCC: if there is an offence in a
statute other than the Code and it is not a true
crime (nature/penalty test) and the offence is
silent on the mens rea, it is PRESUMPTIVELY strict
liability.
Full Mens Rea: SUBJECTIVE
 Unless it specifies, any true crime can be satisfied by any type of full mens rea: Buzzanga, Sault Ste. Marie
 SUBJECTIVE
 Willfully, intentionally, recklessly, willfully blind, knowingly
16
Proving Full Mens Rea
Case
Issue
R v. Buzzanga
How to prove
subjective mens rea?
R v. Tennant and
How to prove
Naccarato
subjective mens rea?
Ratio
The accused’s testimony is very important. If the accused is believable, this is the best evidence of what was in
their mind at the time of the crime.
Can make an inference from what a reasonable person ought to have anticipated that the accused subjectively
anticipated as well. Called a “common sense inference” and can be used if the accused was sane and sober.
Motive does not necessarily prove intent, BUT it can be used as evidence to infer intent. However motive is not
party of the crime nor necessary for liability.
Intent
= Willfully (Buzzanga), with intent to (Chartrand SCC), for the purpose of (Hibbert SCC) **note willfully has different meaning in Part XI of the code pursuant to
s.429 where it includes recklessness as well as intent.
Two Types:
1. Direct intent
A does an act with the intent, purpose or desire of bringing about the prescribed harm. In this situation, intent exists regardless of whether the act will
certainly, probably or only possibly cause the harm (Buzzanga)
2. Indirect or “oblique” intent
A does an act with the intent, purpose or desire of bringing about something other than the prescribed harm, however A knows that the prescribed
harm is certain or substantially certain to occur. “highly probable” is NOT sufficient to constitute indirect intent. (Buzzanga)
R. v. Buzzanga and Durocher
Facts
Issue
Charged with willfully
What does “willfully” mean?
promoting hatred against
Francophones. Claimed
What does “intentionally
they did so to combat
mean?”
apathy in the French
speaking community
towards fighting for a
new school to be built.
s.281.2(2) (now s.319(2)
Ratio
 Willfully means intention, but NOT recklessness or
negligence.
 Intention means desired or resolved to bring about the
consequences.
 Generally, if the person foresees the consequences, they
intend the result.
 Result must be “substantially certain” not just “highly
probable”.
17
Recklessness
A does an act where A knows or foresees that the prescribed harm may “possibily” or “probably” occur, but is not “certain”. A has no desire or is indifferent
towards the prescribed harm, but nevertheless does the act and takes an unjustifiable risk of causing the harm.
R v. Sansregret
Facts
s.143(b)(i)—rape w/o consent.
Accused broke into ex-girlfriend’s house twice. Out of fear she consented to sex with him
both times and both times reported it as a rape. He was aware of this after the first time.
Guilty b/c determined he was willfully blind as to whether she consented or not—knew
there was a consent issue after she reported the first rape.
Issue
What is
recklessness?
Ratio
Recklessness is not the same as negligence
because it is a subjective standard and NOT
objective.
Accused must have knowledge that the
prescribed harm is probable (but not certain)
and persists in their course of conduct despite
this knowledge.
Knowing
Used where the crime requires the accused to have knowledge of a certain fact. Subjective.
Ex. s.354(1) “possession of property, knowing it was stolen”
Willful Blindness
Case
Facts
Sansregret
See above
Duong
Briscoe SCC
2010
Accused let’s friend stay at his house, knowing he might be implicated in
murder but deigns not to ask him questions b/c he doesn’t want to know the
truth—classic example of willful blindness, guilty of s.23(1) accessory after the
fact”knowing that a person has been a party to an offence”
Accused assisted group to the crime scene, provided them a weapon and held
victim down before she was murdered by the group.
Issue
What is willful
blindness?
Ratio
Willful blindness is where A realizes the
need to make further inquiry, but
declines to do so because they do not
want to know the truth.
Is willful blindness it’s
own type of mens rea?
No. Willful blindness serves as a
substitute for actual knowledge.
What is the threshold
for willful blindness
and what is its
purpose?
It means “deliberate ignorance”
Willful blindness must be “deliberate
ignorance” thus more than a simple
failure to inquire.
Willful blindness serves as a substitute
for actual knowledge, is not mens rea
on its own.
18
Criminal Negligence/Penal Negligence
 Crim neg = “criminal negligence”
 Penal Neg = “dangerous, careless”
Case
Tutton
SCC
Creighton
SCC
Facts
Accused refused to give diabetic son insulin on the
basis of religious beliefs. Son died. Charged with
manslaughter (s.222) through criminal negligence
(s.219)
Accused, an experienced heroin user, injected
victim with drugs and then she died.
F.(J.) SCC
Hundal
SCC
Issue
What is criminal
negligence?
Ratio
But all agree that criminal negligence is “wanton and reckless”
or “substantial and marked” looking for a gross departure from
what a reasonable person would do. Seriously endangering
others.
Is a reasonable person
subjective or objective?
Is a reasonable person
subjective or objective?
3/3 split –half want subjective test and half want objective test.
Does it have to be
objective for crim neg?
Accused was driving a dump truck, runs a red light,
kills victim who proceeded on a green. Charged
with s.249 dangerous driving.
Beatty SCC Accused charged with 3 counts of dangerous
driving causing death. Killed three people after
crossing midline for no apparent reason—no
mechanical failure or intoxication.
What is penal negligence?
Is the test for reasonable
person in penal negligence
subjective or objective?
Objective. No individual factors of the accused (short of
incapacity to perceive the risk) should be taken into account.
BUT you do consider the circumstances that the accused was
in—thus slightly modified.
Factors such as age, inexperience, lack of education are NOT to
be taken into account.
No. Criminal negligence may be proven by either subjective or
objective disregard of an obvious and serious risk to the lives or
safety of others.
“a marked departure from the standard of care that a
reasonable person would observe in the accused’s situation”
1) Objective test is applied in the context of the events
2) For driving offences, no personal factors need to be
taken into account as licensing requirements ensure a
minimum standard.
What the test for a
Modified subjective/objective test: What a reasonable person in
reasonable person in penal the circumstances of the accused would have done. No personal
negligence?
attributes, short of incapacity, of the accused are considered.
HELD: Mens rea not made out b/c it was just a
momentary distraction—not a marked departure
from reasonable conduct.
19
Strict Liability
o For regulatory offences
o Created in Sault Ste. Marie SCC 1979. (before this the Court’s only had two choices: full or absolute)
o The Crown proves actus reus beyond a reasonable doubt.
o The accused is then guilty, UNLESS they can prove on a balance of probabilities that they acted with reasonable care and due diligence: reverse onus is
constitutional (argument of efficiency, too hard to put the burden on the crown)—R v Wholesale travel SCC
Absolute Liability
o Reference Re s.94(2) Motor Vehicle Act SCC: an absolute liability offence will be unconstitutional if it carries any possibility of imprisonment.
o The Crown proves actus reus beyond a reasonable doubt and the accused is convicted no matter what.
o Only exists where Parliament makes it clear that absolute liability was intended—can make an inference IF it is minor and with no stigma-- parking ticket.
o Levis SCC: if there are no express words of mental fault, there is a presumption of strict liability. Absolute liability only occurs if it is made clear that
absolute liability is intended based on: 1) the overall regulatory pattern of the statute 2) the subject matter of the legislation 3) the importance of the
penalty and 4)the precision of the language used. Factor four is the most important/determinative.
o Or can create an absolute liability offence via clear implication: R v. Pontes. If the legislative provision in question eliminates the defence of due
diligence, then the legislature has created an absolute liability offence.
Mens Rea and Charter Considerations
Type of Crime
Case
Murder, attempted murder,
Vaillancourt and Martineau
theft
crimes against humanity or war
Finta
crimes.
True Crimes in General
Dangerous Driving s.249
Hundal
Careless use of a weapon s.86(1) Gosset/Findlay
Unlawfully causing bodily harm
De Sousa
s.269
Aggravated Assault s.268(1)
R v. Godin SCC
Unlawful Act Manslaughter
s.222(5)(a)
Strict liability regulatory offences
Creighton
Absolute liability offences
Ref re s.94(2) Motor
Vehicle Act
R. v. Wholesale travel
Held
The severity of the stigma for these offences is such that constitutionally a subjective mens rea
is required.
Usually have a subjective mens rea requirement, but this is not constitutionally required.
Objective test constitutionally valid.
Objective test constintuitionally valid.
Objective foreseeability of risk constitutionally valid b/c coupled with the subjective mens rea
of the underlying offence.
No subjective intent or recklessness required to wound/maim.
Consequences do not need to be foreseen—just risk of non-trivial harm. Constitutionally valid.
Only objective foresight of non-trivial bodily harm required. Constitutionally valid.
Civil negligence satisfies s.7 for strict liability offences.
The reverse onus is not an unreasonable violation of the accused’s presumption of innocence.
If it involves the possibility of imprisonment—unconstitutional. Violation of s.7.
20
Defences
Air of Reality








Once the Crown proves actus reus, mens rea and concurrence, the case is over UNLESS there is some evidence of a defence.
The Crown doesn’t have to prove that all defences don’t exist beyond a reasonable doubt
The Crown only needs to disprove any defences for which there is evidence.
This evidence can arise from the Crown or Defence.
Evidence must have an “air of reality” before it can be considered.
“Air of Reality” = sufficient evidence, if it were believed, to constitute the defence in question. Cinous SCC 2002
Once there is an “air of reality” the Crown must prove beyond a reasonable doubt that the defence doesn’t exist.
There are a few exceptional defences where the onus is shifted to the accused.
Mistake of Fact
 Works to negate the required mens rea for one or all elements of the actus reus.
 Thus it is a ‘mens rea’ defence
 If the offence requires subjective mens rea, then the accused cannot have the requisite mens rea if they honestly are mistaken about an essential
element of the offence. i.e. they honestly thought the property they were taking belonged to them.
 For FULL MENS REA crimes, need only be subjectively honest, not objectively reasonable.
 However if the offence requires an objective mens rea (crim neg, penal neg, regulatory offence) then the mistake of fact must be both honest and
reasonable.
 See sexual assault for application.
21
Mistake of Law/Ignorance of the Law
The Rule: s.19 of the CCC: “Ignorance of the law is not an excuse for committing an offence” – also existed at common-law.
Case
Facts
Result
Bailey 1800
Sailor at sea when a new law was passed. Committed a crime in
Still guilty. Ignorance of the law is no excuse.
contravention of this new act while at sea.
Esop: 1836
Foreign sailor engages in consensual homosexual act while at English
Not guilty on other grounds, although ignorance of English law is no
port. It is legal in his country—not in England.
excuse while in England no matter where you are from.
R v. Dalley:
Accused relied on the advice of his lawyer that something was legal,
Guilty.
1957
but the lawyer was wrong. Accused didn’t know that he was trading in
a ‘security’ and therefore by law needed to be a ‘registered broker’
which he was not.
Brinkley: 1907
A relied on advice of lawyer that his firt marriage was dissolved, and
Guilty of bigamy.
then remarried.
Campbell: 1972 Accused relied on an Alberta Supreme Court judgment that declared
Reliance on incorrect supreme court trial judgment is still an error
nude dancing in a bar in not prohibited by CCC. Dances nude in a bar.
of law and is therefore no defence.
Meanwhile, the case goes to appeal and the Court of Appeal reverses…
accused is convicted. After conviction, the SCC goes back to Supreme
Court decision but it is too late for accused anyway.
Molis: 1980
Accused checks to see if drug is legal, it is, so begins manufacturing.
Due diligence in ascertaining the law does NOT make ignorance of
After this point the drug becomes restricted—new restriction is
the law a defence. Guilty.
published in the Gazette.
R v. Gunn: 1997 Accused, a lawyer, interfered with police who were in the process of
A mistake of law does not negate the “wilfull” mens rea
Alta CA
arresting the accused’s client. The lawyer interfered because he
requirement.
mistakenly thought the arrest was illegal.
This is because he still ‘intended’ to block a ‘police officer’ which is
the actus reus of the crime. Just b/c he thought he was entitled to
do this doesn’t mean that he didn’t intend to do exactly what he
did. No requirement that he must intend to do something illegal,
just must intend to do the actions that make up the crime.
Jones and
Pamajewon:
1991 SCC
Accused operated a bingo on an Indian reserve without a provincial
licence, contrary to s.206 CCC. The accused renounced the legitimacy
or power of the government to regulate bingos on reserves.
22
Mistake of fact in this case would be if the lawyer thought the
person they were blocking wasn’t a police officer not argued here
clearly knew it was a police officer.
Believing the law does not apply to you is a mistake of law and
therefore no defence.
Seven Exceptions
1. Mistake of Fact or Mixed Mistake of Law and Fact
 No SCC Decision on this.
 Basically, if you have a mistake of mixed fact and law, there is a defence because there still is a mistake of fact.
2. Regulation NOT published in the gazette
 Statutory Instruments Act s.11(2): No person shall be convicted of an offence set out in a Regulation unless it was published in the Canada Gazette.
 B.C. Regulation Act s.3(2): same thing.
3. Mistake as to Civil Law in Criminal Law Context
Case
Issue
Ratio
Prue & Baril SCC
Mistake of Civil law that Ignorance of the civil law, when that law makes
1979
is an essential element
up an essential element of the criminal code
of a crim code offence
offence, will be treated as a mistake of fact and
therefore is a valid defence.
MacDougall SCC
Mistake of civil law for
Ignorance of the law is no defence
1982
civil law offence.
R v. Forster
Mistake of Defence Act
Ignorance of the law is no excuse.
law for Defence Act
offence.
Hammerbeck
Mistake of Civil law in
Ignorance of the civil law is a defence to a
BCCA 1992
criminal code offence.
criminal code offence.
R. v. Metro News
Ltd. Ont CA 1986
Pontes SCC
4.




Mistake of Civil law
negating mens rea for
criminal law.
Throws doubt on Prue
and Baril exception in
OBITER.
Notes
Here it was the mistake that the accused had a valid
provincial drivers license. (it had been automatically
suspended and therefore this was a mistake of law). Not
guilty of crim code offence of driving w/o a license.
The exception only applies to mistake of civil law for
CRIMINAL code offences.
Mistaken belief as to your rights under the civil
law can be a defence to criminal law offence.
Here it was taking child w/o contrary to custody order (which
is civil law). Accused mistakenly believed the custody order
had no force or effect.
Mistaken belief in the relevant criminal law is no defence—
except for the officially induced error.
Suggested that prue and baril is wrong in
classifying ignorance of civil law as a mistake of
fact for criminal law.
Obiter which is confusing… says irreconcilable but it actually
makes sense to have this exception… require more for crim to
convict that for civil offences.
Colour of Right
The old remedy to the rule, applied only to “theft”
S.322 “theft” : fraudulently taking… without colour of right.
Colour of right is an honest but mistaken belief that you have a right in law to the property taken.
Applied in Howson ONCA 1966: Accused refused to release a car to owner w/o the owner paying certain fees. The accused had no right to do so, but
believed that he did. Charged with theft. Acquitted because there was NO absence of colour of right and therefore the actus reus was not met.
23
 Jones and Pamajewon: 1991 SCC: Colour of Right can only be used where the offence EXPRESSLY requires the absence of ‘colour of right’ in the actus
reus of the offence.
5.




Negate the Mens Rea
Sometimes Court wrongly hold that mistake of law negates some forms of mens rea such as ‘willful’.
But this is confusing, b/c mens rea isn’t about intending to break the law, it is intending to do the act or omission which then happens to be prohibited.
It is NEVER mens rea requirement that you KNOW the act or omission is forbidden.
Example: Docherty SCC: Accused did not ‘willfully’ violate his probation order ‘to keep the peace’ because he did not know that he was committing an
offence of ‘impaired care and control’ of an automobile when he was in a parked vehicle in an impaired condition but he believed the car was broken
and could not be started.
 Contrast: Gunn (above): where mistake of law did not negate mens rea in ‘willfully’ obstructing a police officer.
6. Officially Induced Mistake of Law
Case
Ratio
Test
Notes
Cancoil Ont. If an official from that area of law informs
1. Regulatory statute.
CA 1986
you that it is legal to do something which
2. The erroneous official advice must come from an official who is responsible for the
turns out to be wrong, it is a defence.
administration or enforcement of that law.
3. The accused’s reliance must be reasonable.
The accused must prove on a balance of probabilities.
Jorgensen
Majority holds that in this case, no
Relying on film censor board approval is not an officially induced error as to whether the film
officially induced mistake of fact
contains obscene material for the purposes of the criminal code and therefore no mistake of law
available.Minority recognizes and defines defence is available
the defence.
Levis v.
Adopts the minority rules from
(1) An error of law or of mixed law All directly from Jorgensen except for the italics in the test.
tetrault SCC Jorgensen.
and fact was made
2006
1. The defence is an excuse not a
(2) That the person who
The reasonableness is objective: would a reasonable
justification.
committed the act considered person in situation similar to the accused have relied on
2. It is a limited exception to the
the legal consequences of their the advice? Consider: clarity or obscurity of law, the
rule that ignorance of the law is
actions
position and role of the official, clarity definitiveness of
no excuse.
(3) Advice obtained came from an information.
3. It applies not only to regulatory
appropriate official
offences but also to CCC
(4) The advice was reasonable
Criticism: Blindly following the minority judgment of Lamer
offences.
(5) The advice was erroneous
in Jorgensen—not really though through.
4. The accused must prove the
(6) The person relied on the
A) Why is it a stay of proceedings? Mistake of fact is
defence on a balance of
advice in committing the act
an acquittal why is this different?
probabilities.
and that it was reasonable for
B) Burden of proof should not be on the accused if it
5. It is a question of law (or mixed
that person to rely on the act.
is a true crime (ok for regulatory b/c normally on
fact and law) for the JUDGE (not
accused in that situation)
24
jury) to decide whether officially
induced error has been proven.
6. If the defence is proven, the
proper remedy is for a stay of
proceedings.
7. Mistake of Law while Enforcing the Law
 Example: Devereaux Nfld. CA 1996: correctional officer using force to detain someone when the detention was no longer lawful. Honest and reasonable
mistake as to legal authority to detain. Accused could rely on s.25 as a defence: persons administering the law are justified and legally protected for their
actions in enforcing the law if they act in good faith and on reasonable grounds.
Ignorance of the Law and the Charter
 A manifestly unjust rule would offend principles of fundamental justice under s.7 of the Charter
 If ignorance of the law were to be construed as a type of absolute liability, it would offend s.7 as per Reference re s.94(2) of the Motor Vehicle Act.
 Lamer C.J.C. in minority of Jorgensen recognized that there are exceptions to ignorance of the law principle and says that the rule can’t be applied where
the conviction would be manifestly unjust… although he does not refer to the Charter.
25
Intoxication
 A Mens Rea defence.
Case
Issue
Beard HL
Can intoxication be
1920
used as a defence?
Daley SCC
2007
What question is the
Court asking when
considering the
defence of
intoxication as laid
out in Beard?
R v. George
1960 SCC
What crimes are
specific and what
crimes are general?
Ratio
Notes
(a) If insanity is produced by
- ‘a’ disappeared over time.
excessive drinking, the
- This case was adopted by the SCC by MacAskill 1931.
proper defence to plead is
insanity, not intoxication.
(b) Drunkenness which renders
the accused incapable of
forming the specific intent
essential to constitute the
crime is a defence.
(c) Drunkeness, short of
incapacity to form the
necessary specific intent, is
no defence merely because
it caused the accused to
more readily give way to
some passion or inclination
which he may not have
given way to, except for the
alcohol.
The focus is, as always Did the
- Therefore, it doesn’t matter how drunk you are—the Court is just concerned
accused actually have the required
with whether you had the intent.
intent. Not concerned with a
- Of course, if you are so drunk that you were incapable of having the intent
question of capacity, although if the
then the Crown won’t be able to prove its case.
accused lacked capacity to have the
- However possible to be less drunk than this and still prove that the intent is
intent then they would be acquitted
negated.
as they clearly didn’t actually have
the required intent.
General intent = “acts done to
achieve an immediate end”
-
Specific Intent = “acts done with the
specific and ulterior motive and
intention of furthering or achieving
26
See Gerry’s notes for a list of offences that have been categorized as
specific or general.
There is really no moral or logical reason to separate these offences. If
someone is too drunk to be responsible for one, there is no reason they
should be held responsible for the other.
Gerry thinks that it should be a defence for all or for none.
an illegal object” i.e. an ‘additional’
intent.
R v Bernard
SCC 1988
Daviault v. R
SCC 1994
Section 33.1
(1995)
Should the
distinction between
general and specific
crimes continue for
intoxication
defences? Yes
Basically, if there are words “with
intent to” or “for the purpose of” =
specific intent.
Very split Court…
-
2 want to keep rule as it is
3 want to abolish rule and apply
intoxication as a defence to all.
2 want to keep rule, but modify it
by saying it can be used for general
intent where the intoxication is so
extreme it equates automatism.
Intoxication is a defence for specific
intent crimes.
-
However, it may be used as a
defence for general intent crimes
where the intoxication is so
extreme the accused was in a state
of automatism.
- In the case of general intent,
the onus rests on the accused
to prove the defence on a
balance of probabilities.
Can intoxication be
Abolishes the rule from Daviault
used as a defence to where the crime involves an
crimes containing the element of assault.
element of assault
(which is a general
intent crime)?
-
Can intoxication be
used as a defence to
general intent
crimes?
-
-
-
27
Those who wanted to abolish or modify the rule, held that it was
unconstitutional.
This is because it is contrary to the principles of fundamental justice to
convict someone who lacks mens rea for general intent crimes.
It is also unconstitutional to substitute the intent to get drunk for the
required intent for the crime i.e. ‘forcible entry’.
Later appellate courts held that you could combine the judgments by
adopting the rule with the exception.
This was a case of sexual assault, and the accused was acquitted b/c there
was at least a reasonable doubt that he was in a state of automatism when
he committed the crime.
Held it violated section 7… but of course there was no section 1 analysis b/c
there was no law against it.
Reacted quickly to negative press after Daviault.
However, Daviault still applies where the crime has a general intent and
does NOT involve the element of assault.
See Watt 1995 Alta Prov Ct. where intoxication was used as a defence for
forcible entry (a general intent crime)
Note that this problem doesn’t really come up in sexual assault cases
anyways, b/c ‘consent’ is now on an objective standard and the reasonable
person is not drunk therefore irrelevant the intoxication level of the
accused for consent.
Thus this defence in Daviault was really just used to negate a different part
of the actus reus, to say the accused didn’t realize they were ‘touching’
R v BouchardLebrun SCC
2011
Does s.33.1 breach
s.7 of the Charter?
Can intoxication
render an individual
insane?
R v. Curtis
R v. Penno
Moreau Ont
CA 1986
Does intoxication
defence apply to
drugs as well as
alcohol?
What about the
offence of driving
while impaired?
Intoxication and
mistake of Fact
Wasn’t considered by the SCC,
although s.33.1 was applied and the
accused could not rely on the
defence of intoxication for the
crime of assault.
-
Temporary abnormal functioning of
the mind solely caused by voluntary
consumption of alcohol or drugs
does NOT constitute a “disease of
the mind” and therefore does not
qualify for the defence under s.16
NCRMD.
Intoxication may occur via alcohol
or narcotics.
-
Intoxication is not on policy grounds
a defence to the offence of driving
a vehicle while impaired and this
ruling does not violate the Charter.
A mistake of fact caused by selfinduced intoxication will not be
permitted on policy grounds as a
defence to a general intent offence.
-
-
-
-
28
someone.
Several trial courts have decided BOTH ways—constitutional (Dow) and
unconstitutional (Flemming).
No appellate courts have decided this issue.
Unclear why these cases were not appealed
When this comes to the SCC… then likely s.33.1 would come down to a s.1
analysis
Problem here: does a literal intent still count i.e. I am on drugs and a
literally intend to kill you b/c I think you are an evil sorcerer…. Insanity
would render the accused not morally culpable but if the delusion is caused
by drugs/drinking then you CAN’T rely on insanity… intoxication is asking if
the accused actually DID have the intent so it seems it wouldn’t be possible
in this scenario.
Insanity/Mental Disorder
Procedure
Unfit to Stand Trial
 Fundamental principle of Anglo-Canadian criminal law that the accused is entitled to be physically and mentally present at their trial.
 If accused is not mentally fit to stand trial, the criminal proceedings are postponed until the accused is fit.
Issue
Section/ Case Ratio
Notes
What is unfit to s.2
Unable on account of mental disorder to conduct a defence…
stand trial?
or to instruct counsel to do so, and in particular, unable to on
account of mental disorder to:
a) Understand the nature of the proceedings
b) Understand the possible consequences of the
proceedings, or
c) Communicate with counsel.
‘mental
s.2
“disease of the mind”
See definition of this statement under the insanity defence
disorder’?
section below.
test for fitness
Whittle SCC
“limited cognitive capacity to understand the proceedings
The accused does not need to be capable of making
to stand trial
1994
and communicate with counsel”
beneficial or rational decisions for themselves, or exercise
analytical reasoning when making choices.
What is the
s.672.22;
The party raising the issue must prove on a balance of
The prosecutor has a duty to raise this if they believe the
burden of
672.23(2)
probabilities
accused is unfit.
proof?
When can it be s.672.23
Any stage of the proceedings prior to verdict.
If there are reasonable grounds the judge shall order that
raised?
the issue of fitness be tried.
When shall the s.672.25
Judge can postpone until after the Crown’s case at the
If Crown doesn’t have a prima facie case, the accused will be
issue of fitness
preliminary inquiry or trial, to ensure the Crown has a prima
discharged/ acquitted and no fitness trial will be held:
be tried?
facie case before trying the issue of fitness.
s.672.30
Who tries?
s.672.26
Judge before trial, judge or jury during the trial depending on the type of trial.
evidence
s.672.11 to
A judge may order a psychiatric assessment of the accused in order to assist in determining the accused’s fitness.
s.672.19
found fit?
s.672.28
The criminal proceedings will proceed.
Although it can always be raised again if there is a material
change in the accused’s state of mind
found unfit?
s.672.54 (c);
i) be detained in custody in a hospital
The disposition under (i) and (ii) must be automatically
(b); 672.58 to ii) be discharged into the community subject to conditions
reviewd every 12 months while they remain in force:
672.62
(ii) be subject to a compulsory mandatory treatment order of s.672.81
60 days in the hospital or community where there are
29
reasonable medical grounds to believe a treatment order will
render the accused fit
How The Defence Works
Issue
Case/ Section
Who can raise the
Swain SCC
mental disorder
1991
defence?
What is the burden of
proof for the defence?
M’Naghten
1843 HL
Codified In
s.16(2), (3)
Is the burden of proof
constitutional?
Chaulk SCC
1990
What is the verdict after
a successful insanity
defence?
What are the
consequences of being
found NCRMD?
s.672.34 and
672.1
OLD RULE:
STRUCK
DOWN:
Swain SCC
1991
If the accused is found unfit and still untried after two years,
the court must hold an inquiry (every two years) to
determine if there is sufficient evidence at that time to put
the accused on trial. If not, the judge shall acquit:
s.672.33(1) and (6)
Ratio
(a) The insanity defence may be raised during the trial by
the accused; or
(b) During the trial by the prosecutor IF in the trial judge’s
opinion the accused has somehow put his or her mental
capacity for criminal intent in issue; or
(c) By EITHER the accused or the Crown after the trier of
fact has concluded that the accused was guilty of the
offence, BUT before a verdict of guilty is formally
entered.
(2) Ever person is presumed not to suffer from a mental
disorder so as to be exempt from criminal responsibility by
virtue of subsection (1), until the contrary is proved on a
balance of probabilities
Notes
- For option (b) this is when the accused raises some
kind of defence about incapability i.e. automatism,
so they are bringing in to question their own
mental state.
(3) The burden of proof is on the party that raises the issue.
Presumption of sanity and reverse onus violates the
presumption of innocence in s.11(d) BUT is justified under
s.1
“committed the act or made the omission but is not
criminally responsible on account of mental disorder”
“NCRMD”
Automatically confined indefinitely at the pleasure of the
L.G. No rules of due process: Unreviewable, no reasons
given.
- This replaced the old criminal code “not guilty on
account of insanity” in 1992
Violates s.7 and 9 and not justified under s.1
-
30
-
NEW RULE:
ss.672.45
and 672.54
UPHELD:
Winko SCC
1999
A hearing is given to make a decision, taking into
consideration, amongst other things, the need to protect the
public from dangerous persons and either:
(i) Release unconditionally
(ii) Release upon conditions of supervision
(iii) Detained in custody in a hospital
The new regime does not result in an automatic, indefinite
detention and balances fair treatment to the NCRMD person
with the need for public safety.
- Conditional release or detained, subsequent
decisions about the continuation are made by an
independent review board which is bound to
follow rules of due process: s.672.47
- Review of the orders in 2 and 3 must be held at
least every 12 months while the orders are in
effect.
- There is no compulsory treatment order
- Decisions are subject to appeal.
Substantive Aspects
s.16(1) of the Code states: No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered
the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
s.2 defines “mental disorder”: a disease of the mind.
SO there are two requirements to access this defence:
1) Have a ‘disease of the mind’
2) Incapable of ‘appreciating’ the nature/quality OR incapable of knowing it was wrong
Issue
Meaning of
“disease of the
mind”
Case
Simpson 1977
ONCA
Cooper SCC
Meaning of
“appreciate”
BouchardLebrun SCC
2011
Cooper/
Barnier SCC
Ratio
- ‘disease of the mind’ is a legal term and should be
given a definition by the courts NOT medical
experts.
- Expert medical evidence is not determinative
whether the accused had a disease of the mind or
not.
“ANY illness, disorder or abnormal condition which
impairs the human mind and its functioning .
EXCLUDING voluntary consumption of drugs/ alcohol
(go to intoxication for that) OR hysteria/ concussion (go
to automatism)
A temporary psychotic state caused by voluntary
consumption of alcohol or drugs does NOT constitute a
disease of the mind.
INCLUDES:
- Intellectual AND emotional awareness of the impact
31
Notes
- This does not constitute the complete defence, is just a
necessary prerequisite.
- More concerned with the effect of the disease of the mind
on the accused. i.e. step two.
- Go to the defence of intoxication instead.
- Appreciate is a wider meaning than the old common law
rule of “know” from M’Naghten
Kjeldsen 1981
SCC
Abbey SCC
1982
Kirkby/ Swain
ONCA
Landry Que CA
Meaning of
“wrong”
Schwartz SCC
1976
Chaulk &
Morrissette
SCC 1990
Oommen SCC
1994
What if it falls
short of these
definitions?
Ferguson
Intoxication
BouchardLebrun SCC
2011
and consequences of the act.
- Ability to perceive, estimate and understand the
consequences, impact and results of a physical act.
ONLY requires:
- Know the nature of his act and its physical
consequences
- NOT the ‘emotional’ awareness.
- Appreciating the physical consequences is restricted
to ONLY those that are an essential element of the
definition of the offence.
- Therefore DO NOT need to be aware/ understand the
penal consequences of your actions.
- Tried to draw back from the Kjeldsen/Abbey
modifications
- Tried to draw back from the Kjeldsen/Abbey
modification
- OLD RULE: incapable of knowing the act was legally
wrong.
- New Rule: Incapable of knowing the act was morally
wrong in the circumstances according to the moral
standards of society.
- APPLICATION of NEW RULE: the accused must lack
the capacity to rationally decide whether the act is
right or wrong and hence to make a rational choice
about whether to do it or not.
- Conflicting case law indicates that if the mental
disorder falls short of insanity defence, it can still be
considered in regards to whether the Crown has
proven mens rea intent beyond a reasonable doubt.
- “disease of the mind” definition from Cooper
excludes mental impairment caused by voluntary
drug consumption
32
- NOW OVERRULED slightly ***see cases below***
- This was to deal with the problem of psychopaths, who
knows exactly what they have done but lack the emotional
awareness.
- Psychopathy is therefore NOT an available ‘disease of the
mind’ that entitles an accused to the NCRMD defence.
- Accused was still held guilty b/c although he believed a
higher power was protecting him from being CAUGHT or
held responsible for smuggling drugs, he was fully aware of
the fact that he was smuggling drugs and what that was.
- SCC shut them down! Narrower definition of ‘appreciate’
stands.
- ‘moral standards’ are the ‘ordinary moral standards of
reasonable members of society’.
- This definition of ‘wrong’ is more expansive than the old
rule, as sometimes things are morally wrong but not legally
wrong.
- If you can’t rationally consider if your act is right or wrong,
then you lack the capacity to know your act was wrong by
the standards of the ordinary person and are entitled to an
insanity defence.
- If successful, this ‘new’ defence usually results in
convictions of a lesser included offence that doesn’t require
proof of intent i.e. manslaughter instead of murder.
- The accused can rebut that presumption if there is evidence
that the psychosis arises from internal, psychological
weakness of the accused—that will normally be difficult to
prove and depends on the facts.
Defence of Automatism
 Common-law defence (s.8(3) of CCC permits)
 Negates ‘voluntariness’ element of the Actus Reus (Stone SCC 1999)
 The result of a successful defence is a complete and unqualified “not guilty”
Issue
Case
Ratio
Definition of
Rabey SCC “unconscious, involuntary behaviour, the sate of a person
Automatism
1980
who, though capable of action, is not conscious of what he is
doing. It means an unconscious involuntary act, where the
mind does not go with what is being done.
Stone SCC “unconscious” just means “impaired” consciousness and
1999
doesn’t have to be “total”.
Burden of Proof Stone SCC The accused is presumed to act voluntarily and therefore
1999
bears the burden of proof on a balance of probabilities to
rebut this assumption.
Does this apply to all voluntary defences or just those
involving automatism?
Fontaine
SCC 2004
When does it
apply?
Rabey SCC
However, the evidentiary burden has not changed… the judge
decides, as a matter of law IF a reasonable jury could decide,
based on the evidence, that the accused’s actions were
involuntary due to automatism “air of reality”. THEN the Jury
decides, if the persuasive burden has been met, which is a
question of fact: Did the Accused prove on a balance of
probabilities that their conduct was involuntary.
If caused by ‘disease of the mind’ = insanity defence.
If caused by intoxication = intoxication defence (Hartridge SK
CA 1966)
33
Notes
To combine the two decisions:
“Impaired consciousness in which an individual , though
capable of action, has no voluntary control over that action”
Stone
The accused MUST:
- Call expert psychiatric or psychological evidence, along with
supporting evidence
- Psychiatric/psychological evidence alone will not meet
burden if that opinion is based only on an assumption of the
truthfulness and accuracy of the accused’s account f the
event, without other supporting evidence
- If accused meets the burden, the trial judge must then
decide as a matter of law whether the evidence indicates
insane automatism or non-insane automatism. If ‘insane’
automatism, based on disease of the mind and so the
proper defence is INSANITY.
Likely should not be applied to non-automatism involuntary
conduct defence, however it is possible/ there is some doubt
that it does.
Judge can’t confused the evidentiary burden with the
persuasive burden, while they are both on the accused, the
evidentiary burden is NOT a new or different burden than
normal and the trial judge does NOT weigh or assess the
evidence, that is left for the jury  just decides whether there
is an air of reality.
How to
distinguish
automatism
from Insanity
Rabey SCC
1980
Rabey SCC
1980
Parks SCC
1992
Stone SCC
1999
USE THIS
TEST
Examples
Stone
If caused by something else, then you can rely on automatism.
A transient malfunctioning of the mind caused by some
EXTERNAL factor, such as a concussion caused by a physical
blow constitutes automatism.
If the psychological blow arises out of the ordinary stresses
and disappointments of life, then resulting automatism will be
attributable to an INTERNAL psychological weakness of the
accused and classified as a DISEASE OF THE MIND  must use
insanity.
(Result in this case)
If the accused’s mental state is unlikely to reoccur and
therefore is not a ‘continuing danger’ to the public, the
accused may use the automatism defence. Example in this
case: Sleepwalking
FACTORS to consider:
1. If the impairment arises from a disease of the mind, then
the accused must use insanity.
2. It is a question of mixed law and fact which mental
conditions are included in the term disease of the mind.
3. Disease of the mind is informed by the ‘internal cause’ test
and the ‘continuing danger’ test AS WELL AS POLICY:
a. Fear of fabrication
b. Public disillusionment by an outright acquittal
c. No monitoring for an automatism acquittal like with
insanity defence
4. Only rare cases where automatism is NOT caused by a
mental disorder, trial judge should start with the
presumption that a condition constitutes a disease of the
mind and then decide if evidence takes it out of that
category.
5. Psychological blow automatism requires evidence of ‘an
extremely shocking trigger’ as opposed to simply stressful
situation
Amnesia does not necessarily mean that the accused was
unconscious at the time of the act  may arise after the
event.
34
Therefore, any malfunctioning caused by an INTERNAL factor
constitutes a disease of the mind and the accused must rely on
insanity defence instead.
However, obiter:
If the psychological blow arises from an extraordinary event
that may cause an ‘average, normal person’ to go into shock or
disassociation, the blow is successful classified as EXTERNAL 
can use automatism
Additional factors:
- The severity of the triggering stimulous
- Corroborating evidence of bystanders
- Corroborating medical history of automatistic-like
dissociative states
- The presence of absence of motive
- The relationship between the alleged trigger of
automatism and the victim of the automatistic violence
Graveline
SCC 2006
Parks
Luedecke
ONCA
2008
Canada v
Campbell
Bleta SCC
1964
Jiang BCCA
2007
Rabey SCC
1980
SCC seemed to approve of a finding of automatism from thirty
years of abuse  triggering event itself wasn’t extreme
psychological blow automatism maybe not so ‘dead’
Sleeping Walking = automatism
Sleeping Walking = Disease of the mind
Sleeping Walking = Disease of the mind
Concussion from a physical blow to the head = automatism
Falling asleep while driving due to undiagnosed insomnia =
automatism
Girl referring to accused as ‘nothing’ NOT sufficient triggering
event for psychological blow.
35
Provocation
s.232:
o only a defence to the charge of murder, and not any other offence (not even attempted murder): Campbell
o only a partial defence: if it is proven, the charge will be reduced to manslaughter: s.232(1)
o Three elements:
1. The accused must be provoked by a wrongful act or insult
2. The wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control [objective]
3. The accused must be acting in response to the wrongful act or insult on the sudden and before there is time for their passion to cool [subjective]
Issue
Case
Ratio
Notes
How it works
Cameron
The defence does not negate intention or the actus reus and therefore arises after the It functions as a partial excuse,
OnCA 1992
Crown has proven both beyond a reasonable doubt.
NOT a justification
Air of Reality
Thibert SCC
The trial judge decides as a matter of law whether there is some evidence of each
1996
element, “an air of reality” but it is not the trial judges job to decide at this stage
whether that evidence is credible or sufficient to raise a reasonable doubt.
If there is an air of reality, the trial judge puts the defence of provocation to the jury,
the jury must then decide whether that evidence on each element is sufficiently
credible to raise at least a reasonable doubt that the killing was provoked.
Burden of Proof
The crown must prove beyond a reasonable doubt that there was no provocation
1. Wrongful Act Thibert
“injuriously contemptuous speech or behaviour, scornful utterance, or action intended
or Insult
to wound self-respect; an affront; indignity”
s.232(2)
(a) No provocation from something the victim had a legal right to do
ex. no provocation when the
(b) No provocation where the accused incited the victim to do something in order to
victim was acting in self-defence:
give themselves an excuse to cause bodily harm or death
Haight OnCA 1976
Legal right to do
Thibert
A right which is sanctioned by law, such as the execution of a lawful warrant or acting
in self-defence, NOT things that are just ‘not prohibited’ i.e. you are allowed to insult
someone but you don’t have a legal right to insult them.
Tran
Entering into a new intimate relationship with another man is not a wrongful act or
insult: you are perfectly entitled to do so.
36
Issue
2. Sufficient to
deprive an
Ordinary Person
Personal
characteristics to be
considered
Case
Carpenter
ONCA 1993
Circumstances to be
considered
Thibert
Sufficiency of the
insult:
Cultural or ethnic
considerations
Nahar BCCA
2004
Hill SCC
1986
Humaid
ONCA 2006
Ratio
The question is: whether an ordinary person may have
lost the power of self-control under such provocative
circumstances
(i) The ordinary or reasonable person has a normal
temperament and level of self-control: is not
exceptionally excitable or drunk
(ii) General characteristics of the accused that are
relevant to the gravity of the wrongful act or insult
may be considered.
(iii) Young age is relevant to the degree of self-control
expected of an ordinary person.
(iv) “Also consider the background of the relationship
between the deceased and the accused, including
earlier insults which culminated in the final
provocative actions or words”
Cultural background can be taken into account in the
‘ordinary person test’  helps in assessing the gravity
of the insult but NOT relevant to the degree of selfcontrol expected.
As a matter of criminal law policy, the “ordinary
person” cannot be fixed with beliefs that are
irreconcilable with fundamental Canadian values.
Provocation not available for “honour killings” nor
homophobia a consideration to be considered when
deciding if accused who has killed gay person was
provoked.
37
Notes
i.e. race is considered if it was a racial slur, however if the
insult was about intelligence and not linked to race then it
would be relevant.
ex. in this case, accused claimed that b/c of cultural
background, wife’s actions were sufficient to cause ordinary
person to lose control rejected by judge as matter of fact,
but was rightfully considered.
ex. in this case, couldn’t say that b/c accused was muslim and
claimed the insults from his wife were exceptionally grave, b/c
his culture believes women are inferior to men and violence
against them is accepted.
NO PROVOCATION
Issue
3. Suddenness
Case
Salamon
SCC 1959
Tran
Ratio
Must happen “on the sudden, before there is time for
his/her passion to cool”. Therefore, if the accused left and
thought about the matter, the requirement of suddenness
is not met.
Applies to both the insult or wrongful act and to the
accused’s reaction to it. The insult/wrongful act must take
the accused by surprise, or when the accused is
unprepared mentally for it.
Friesen
Alta CA
1995
38
Notes
In Tran, the wrongful act did not meet the requirement of
suddenness b/c the accused was actively investigating his wife
for infidelity, so his mind was not ‘unprepared’ when he found
his wife and lover together.
Accused’s act was not ‘on the sudden’ b/c there were several
minutes and possibly longer from the victim’s homosexual
advance and the accused’s actions.
Self Defence
Harm to self, other than GBH.
Pawliuk BCCA 2001
Section
Requirements
34(1)
1. The accused must reasonably
believe that she is subject to an
unlawful assault but does not
apprehend death or grievous bodily
harm from that assault. (or a
reasonable but mistaken belief that
he/she is, or is about to be, assaulted
Petel)
2. The accused must not have
provoked the assault. (provocation
includes blows, words or gestures: s.
36 of the Code);
3. The accused must not have
intended death or grievous bodily
harm; however, if death or grievous
bodily harm unintentionally occurs, s.
34(1) still applies. Pawliuk
4. The force used must have been no
more than necessary to defend
against the unlawful assault.
Requirements
Not Met:
Retreat
What kind of harm do you apprehend?
Harm to yourself Harm to another under your
when you are
protection
the initial
aggressor
34(2)
35
37
1. The accused must reasonably believe
Cannot rely on s. 1. The accused must reasonably
that she is subject to an unlawful assault. 35 unless A
believe that the person under her
(or a reasonable but mistaken belief that
retreated as far
protection is subject to an unlawful
he/she is, or is about to be, assaulted
as feasible
assault.
Petel)
before using the
additional force. 2. The force used must be no more
2. The accused must reasonably
than is necessary to prevent the
apprehend that this attack poses a threat
Since McIntosh:
assault or repetition of the assault.
of death or grievous bodily harm.
virtually useless.
3. The accused must reasonably believe
3. The willful infliction of any hurt or
that there was no alternative but to
mischief must not be excessive,
respond as she did.
having regard to the nature of the
 Note that the accused could have
assault that the force used was
provoked the attack. McIntosh
intended to prevent.
 Note that the accused could have
 Note that the accused could have
(though need not have) intended
provoked the attack.
death or grievous bodily harm.
 Note that the accused could have
Pawliuk
(though need not have) intended
4. s. 34(2) expressly states it only applies
death or grievous bodily harm.
if the accused actually caused death or
grievous bodily harm—although this
requirement not mentioned in Pawliuk or
Cinos--these cases were murder cases.
Death or GBH to self
Pawliuk BCCA 2001
If none of these sections apply, Go to s.37 to see if it can provide a ‘gap filling’ defence. McIntosh
Self-defence not available.
when in one's home, there is no obligation to retreat or flee one's home before relying on self-defence: Jack (1994), 91 C.C.C. (3d) 466
(B.C.C.A.) and Irwin (1994), 49 B.C.A.C. 143; Lavallee (S.C.C., 1990)
o No positive duty or obligation to retreat
except in s. 35, the possibility of retreat
39
Intoxication
Mental
Disability
Excessive
Force
[at least outside the home] is one factor
that can be considered in s. 34(2)(b) as
to whether the accused believed "on
reasonable grounds that he/she could
not otherwise preserve him/her self
from D/GBH": Malott (S.C.C., 1998)
o In Cinous (2002) [RBHS: 951, para. 123]
the majority of the S.C.C. looked at the
fact that the accused did not
flee/retreat as a relevant factor in
deciding that the third element of selfdefence under s. 34(2)(b) was not met.
The accused's beliefs as to the nature and degree of the assault and the necessary response must be "reasonable", the accused cannot rely on
intoxication as a factor in arguing that his/her beliefs were "reasonable in the context of his/her intoxicated state": Since a reasonable person is
a sober person, the accused's intoxication is irrelevant in deciding whether his/her apprehension and belief were reasonable. This does not
mean that an intoxicated person can not rely on self-defence. If an intoxicated person's beliefs are reasonable, in spite of his/her intoxication,
then he/she can rely on self-defence: see Reilly v. The Queen (S.C.C., 1984)
The diminished intelligence of an accused
should be taken into account in the
application of s. 34(2) in deciding whether
the accused’s apprehensions and beliefs
were reasonable. Nelson ONCA 1992
s. 34(1): "no more force than is
The force used may be more than is actually necessary [and
s. 37: "no more force than is
necessary to enable him to defend
in that sense, therefore, not objectively proportionate],
necessary to prevent the assault or its
himself"
provided the accused reasonably believed that the force used repetition"
o Objective Test
was necessary: Baxter
o Objective Test
o Whether a reasonable person in
o Whether a reasonable person in
the accused's circumstances
the accused's circumstances
would believe that the force used
would believe that the force used
was no more than necessary.
was no more than necessary.
o If accused was mistaken about the
o If accused was mistaken about the
circumstances and therefore
circumstances and therefore
about the necessary degree of
about the necessary degree of
force, PROVIDED THE MISTAKE
force, PROVIDED THE MISTAKE
WAS REASONABLE, base the
WAS REASONABLE, base the
objective assessment on the
objective assessment on the
accused’s mistaken perception to
accused’s mistaken perception to
determine if force was no more
determine if force was no more
40
Domestic
Violence
Imminence
Prison Context
than necessary.
than necessary.
Kong (SCC, 2006)
Kong (SCC, 2006)
o If the accused uses more force than justified under ss. 34-37, then the accused is criminally liable for the excess force: s. 26 of the Code. If
the excessive use of force is accompanied with an intent to cause death or bodily harm likely to cause death, and death ensues, then the
accused who was initially acting in self-defence is guilty of murder.
o There is no partial defence for excessive use of force in self-defence reducing murder to manslaughter: Faid (S.C.C., 1983)
o
Lavallee SCC 1990
o
o
o Expert testimony about battered
women can be used to determine
whether the accused had a
‘reasonable’ apprehension of death or
GBH and ‘reasonable grounds’ that it
was her only option.
o Contextual approach that may help
explain why a battered woman felt her
only option was to act in self-defence
rather than moving out etc.
o Factors: history, circumstances,
perceptions of accused. Petel
o
Imminence of threat is only ONE factor in
o
o
determining whether the accused
apprehended D/BGH Lavallee
o
Pre-emptive strike is not pre-cluded,
o
o
although the victim must have the
‘present ability’ to carry out the threat,
don’t have to have it at that immediate
moment. McConnell SCC 1996
41
Sexual Assault
Code Provision
s.271
Actus Reus: Chase SCC
(1) An assault as defined under s.265(1):
(a) Touch
(b) Without consent
(2) In circumstances of a sexual nature whereby the sexual integrity of the victim is violated.
Mens Rea
Subjective with objective component.
Evidence
Complainants Sexual History: Rape Shield Law
Case/Provision Ratio
s.276 (1983)
Provided a blanket exclusion of evidence of sexual activities of a complainant with
people other than the accused.
Seaboyer
The three exceptions of s.276 are too narrow, there are other instances where a
complainant’s sexual history might be relevant.
Notes
There were 3 exceptions.
Example: as evidence that the accused honestly but
mistakenly believed the complainant was consenting.
Guidelines:
Prior sexual conduct with others or the accused is not admissible solely for the
inference:
(i) That the complainant is thereby more likely to have consented to the sexual
conduct in issue, or
(ii) Is less worthy of belief as a witness.
Six exceptional situations where prior sexual conduct should be admitted.
s.276(1) (1992)
s.276(2) (1992)
s.276(3) (1992)
The question of whether the evidence is admitted shall be made in an in camera
hearing by way of a voir dire. If admitted, a jury must be instructed as to the limited
use of the evidence.
Categorically prohibits evidence of a complainant’s sexual history if it is being used
to support either of the two myths (i) more likely to have consented or (ii) less
worthy of belief.
Before admitting evidence of the complainants prior sexual history, the judge must
determine that the evidence is (i) relevant to an issue at trial and (ii) has significant
probative value that is not substantially outweighed by the danger of prejudice to
the proper administration of justice.
In determining whether such evidence is admissible the judge must take into
42
Essentially codifies Seaboyer.
According to procedure of s.276.1-276.2 : Voir Dire
Factors attempt to balance the accused’s, the
Darrach SCC
2000
account at least eight listed factors
s.276 is most often used to substantiate honest but mistaken belief in consent. To do
so, must show that he believed the complainant communicated consent through
words or actions. Therefore, to utilize evidence of past sexual history must provide
evidence of what he believed at the time of the alleged assault.
Complainants Personal Records
Case
Ratio
Stinchcombe
The prosecutor must disclose to the accused all
SCC 1991
‘relevant evidence’ which is in the prosecutor’s
hands.
O’Connor SCC
Duty to disclose includes any personal records of
1995
the complainant which the prosecutor has copies
of.
s.278.1-s.278.9
1996
Darrach SCC
2000
Mills 1999
complainant’s and society’s interests.
s.276 is NOT a blanket prohibition but rather tries to
eliminate the twin myths of likelihood of consent and
worthiness of belief. Accused’s s.7 rights will win out if
relevant for some other reason.
Notes
Any personal records the prosecutor does not have copies of may be subpoenaed
subject to a judicial inquiry:
(a) The accused must convince the judge that there is a reasonable possibility that
such records will provide information which is logically probative of ‘an issue at
trial or the competence of a witness to testify’ AND
If the relevance test is met the second stage involves a balancing of the competing rights
of the accused to make a full answer and defence and the complainants privacy rights.
Changed rules due to criticism of O’Connor.
Two step procedure for a defence to gain access to
the complainant’s personal records:
(1) Defence must apply in writing under
s.278.3 to establish that the record is
‘likely relevant’. AND
(2) Is necessary in the interests of justice.
A majority of the SCC upheld the constitutional
validity of s.278.1-278.9.
If two step procedure satisfied, judge reviews the evidence on a voir dire and decides
whether or not to produce the evidence to the accused.
The code contains a list of factors to help the judge determine the relevance.
43
Actus Reus
Case/Provision
s.265(1)
Touch
(a) intentionally apply force to another
person…. 
Without Consent
… without that person’s consent (s.265(1)(a) con’td)
Sexual Context
or
(b) attempt or threaten, by acts or
gestures, to apply force to another if
the person has or causes the other
person to reasonable he has, the
present ability to carry out the threat.
Chase SCC
s.265(2)
“sexual nature” is
determined objectively
and may be inferred from:
1. The part of the
body touched
2. The nature of the
contact
3. The situation in
which it occurred
4. The words and
gestures
accompanying the
act
5. And any other
surrounding
circumstance
** NOT dependent solely
on the area of the body
touched.
s.265(1) applies to all assaults
including sexual assault
s.265(1) applies to all assaults including sexual assault.
R. v. V. (K.B.)
SCC 1992
Does NOT need to be for
sexual gratification
44
Case/Provision
s.273.1
Ewanchuk SCC
1999
Touch
Affirmed as element of actus reus:
determined on an objective basis.
Without Consent
Consent is “the voluntary agreement of the complainant to engage in
the sexual activity in question”.
(2) No consent is obtained where (a) the consent is expressed by
someone other than the complainant (b) where the complainant is
incapable of consenting to the activity (c) where the activity is induced
by an abuse of position of trust, power or authority (d) where the
complainant expresses, by words or actions, a lack of agreement or (e)
the complainant express, by words or conduct, a revocation of her/his
agreement.
Determined by assessing the complainant’s subjective state of mind.
-
s.265(3)
ONLY concerned with the complainants perspective at the actus
reus stage.
- Where the complainant testifies that they did not consent, it is
open to the accused to raise at least a reasonable doubt as to the
truth of the complainants assertion.
- If a reasonable doubt exists, the Crown has not proven their case.
- There are only two conclusions: consent or no consent.
- No third option of implied consent, b/c only concerned with the
complainants perspective at this stage.
- Need a POSTIVE AFFIRMATION to constitute consent.
- No need to expressly reject the activity to find no consent.
Silence or ambiguous conduct does NOT equal consent.
Ostensible consent is of no force and effect.
No consent is obtained where the complainant submits or does not
resist due to (a) force (b) Threats of force (c) fraud or (d) the exercise of
authority.
45
Sexual Context
Affirmed as element of
actus reus: Determined
on objective basis.
Mens Rea
Case/Provision
Pappajohn SCC
1980
Ratio
The mens rea for sexual assault (rape at the time) is full mens
rea—any kind.
Sansregret SCC
1985
If lack of knowledge of consent is due to the accused’s own
willful blindness, the mens rea requirement is met as actual
knowledge is substituted for willful blindness.
It is not a defence to charge under s.271,272 or 273 that the
(a)(ii) is consistant with pappajohn and sansregret
accused believed that the complainant consented to the activity
that forms the subject=matter of the charge where:
(a)(i) was consistent with the law of intoxication at the time
(a) The accused’s belief arose from the the accused’s
(i)
Self-induced intoxication, or
NEW (b) altered the law by required the accused to subjectively AND
(ii)
Recklessness or willful blindness
objectively obtain consent.
(b) The accused did not take reasonable steps, in the
circumstances known to the accused at the time, to
So mistake of fact now must be both HONEST and REASONABLE.
ascertain that the complainant was consenting.
s.273.2 (b) is constitutionally valid as it is not one of the ‘very few’ offences which carries such a stigma or penalty that its mens rea MUST be
subjective. Regardless, mens rea of sexual assault is still largely subjective, esp. b/c it is reasonable steps within the circumstances of the
accused which must be taken.
The reasonable steps test under s.273.2(b) is “quasi-objective”.
If the answer is yes, then the accused cannot claim ‘mistake of fact’.
First: ascertain the circumstances known to the accused.
Second: if a reasonable person were aware of the same
If the answer is no, then the accused also would not be required to take
circumstances, would they have taken more steps to ascertain
further steps and mistake of fact will apply.
consent before proceeding with sexual activity?
Two mens rea elements for sexual assault:
Mistaken belief in consent is therefore simply a denial of mens rea. The
(1) An intention to touch
accused must honestly believe the complainant communicated by words
(2) Knowing of, or being reckless of or willfully blind to, a
or conduct her agreement to engage in the sexual activity. Must honestly
lack of consent on the part of the person touched.
believe the complainant said ‘yes’ by words or actions.
To successfully claim, the accused must meet the ‘reasonable steps’ test,
but this does not mean there is an evidentiary burden shift to the
accused.
To continue to initiate sexual conduct after someone has said
A belief that silence, passivity or ambiguous conduct constitutes consent
‘no’ is at a minimum reckless conduct which is not excusable.
is a mistake of law and therefore cannot be considered as evidence for
mistake of fact—it lacks an ‘air of reality’.
s.273.2
R v. Darrach Ont.
C.A. 1998
Malcolm Man.
C.A. 2000
Ewanchuk SCC
R. v. M.(M.L.)
SCC 1994
46
Defence: Mistake of Fact
Therefore an honest mistake of fact that the complainant consented is
valid defence, even if that mistake is unreasonable or grossly
unreasonable.However mistake of fact not available b/c no ‘air of reality’
However mistake of fact not available here b/c the accused was willfully
blind.