MAKING A CASE
1. Burden of Proof: Crown must prove BRD elements of offence (AR.MR), and absence of any lawful
defence or justification that arises fr evidence. BRD is short of proof to absolute certainty, but stronger than
probably guilty (Lifchus). Golden Thread is presumption of innocence (s. 11(d)). Whether C meets burden
is Q of Fact (judge’s charge to jury on it Q of Law). Both C & D have evidential burden when they rely on
legal rule/defence, must intro sufficient evidence to support it, but on lower standard: enough evidence to
put the matter at issue. Whether evidential burden is met is Q of Law// persuasive burden (BRD) usually
just on C but in some cases of reverse onus, may be on D. BUT attracts charter scrutiny (s.11(d)) (ex.
Holmes house breaking tools); Re Boyle v The Queen offence infringed s11(d) b/c reverse onus (vehicle
obtained unlawful means) prescribed conviction; see s1
2. Actus Reus: AR = the prohibited conduct: Act /omission of a legal duty that is voluntary and causes
prescribed harm or occurs in prohibited circumstances.
(A) Was it an Act or failure to act?
If omission: Did the accused breach a legal duty outlined in statute or the CL ? (Thornton)
Thorton: Donated blood when knew he had HIV; omission was no disclosure; had MR. Ct said legal duty =
CC duty OR CL duty, breach of which creates CC offence// Ssenyonga: didn’t disclose status, gave 3
women HIV; not guilty b/c specific rships, women didn’t rep. “public” (reqt for common nuisance). No SA
b/c consent. s. 215: duty to provide necessaries (parent/guardian/spouse/CL partner/charge of incapacitated
person) BUT rebuttable with lawful excuse//CASES: see Naglik in MR/Instan: Niece legal/moral duty to
aunt b/c rcv’g gain by living w her//Beardsley: No legal duty to lover who dies from morphine overdose b/c
she was experienced, voluntary participant and level of rship not sufficient to impose duty (no moral duty
like H/W)//Urbanovich: Baby dies/father abused; mother didn’t know; Ought to have knowledge (obj), so
criminally negligent b/c of omission—willful & reckless disregard for child withholding info from Dr.
Dissent: parents were kids, mom not crim negligent b/c no ev. she knew and no omission b/c took to dr.
Family Services Act s 72(2) duty on persons who believe on reasonable grounds that child is in need of
protection (higher burden on professionals (s 72(3) who suspect child is/may be/has suffered/s 43
correction if the force does not exceed what is reasonable in the circumstance.
(B) Was the accused acting voluntarily (automatism – sane  acquittal OR insane  s16) (Rabey)?
(C) Was there factual and legal causation b/w accused’s act and the result/consequence?
Causation = q of fact; has both factual & legal components. Factual causation: did action of accused
contribute to harm in technical & physical sense? Legal causation: should we attribute moral resp. for
harm? If factual causation has been est’d, legal causation usually follows.
Impaired driving: impairment proven/assume contributed to accident unless innocent explanation (Whyte)
Was there an Intervening cause: Will negate legal causation for original act IF intervening cause is ind. of
original act AND not acting in concert (Whyte). BUT not if a direct result of original act (Blaue).
Is Thin skull relevant?: take victim as you find them – not intervening cause (Smithers, Blaue)
3. Mens Rea: “guilty mind”, moral blameworthiness; every crim offence w penal consequences needs MR
(SI/ GI), though not stated in CCC. Policy: can’t punish morally innocent (Sault St. Marie), and s.7, level of
moral fault must be proportionate to the seriousness / consequences of offence.
Specific Intent offence?(will say in CCC section): MR as focused on a particular consequence. (Aiding/
abetting, Arson, Attempt, Fraud, Murder, Possession stolen property, rcv’g stolen property, Robbery, Theft,
Sexual exploit) General Intent Offence? (everything else) MR to commit the immediate act, not to produce
specific consequence (Assault, causing BH, of PO, aggravated, indecent, harassment, incest, Mansl,
Mischief)  Judge det. Standard (q of law): Subj (knowingly)/ Obj (recklessly, negligently)?
If offence is silent, then classify as true crime, stigma offence or reg. offence: (Sault Ste Marie)
1) If true crime, presumption MR subj (Buzzanga) 2) If stigma offence (subset of true crime, ex.
murder/ theft), MR = subj. foreseeability of death, obiter Vaillancourt (affirmed for stigma, Martineau)
3) If NOT true crime (reg. offence, “public interest”), presume SL and obj MR, unless statute requires
MR (“willfully, knowingly”) or it clearly est’s AR as only reqt (so AL) (Sault Ste Marie), then no due
diligence defense avail (Ref re BC MVA) (Constitutionally valid to have AL for fine offence, even when
prov offences say imprisonment possible for default on payment, Pontes). Abs. Liability  Strict
Liability  Full MR (true crime) Absolute Liability: C proves AR only, “no relevant mental
element”/MR (Sault St Marie)//Strict Liability: defence of due diligence/reasonable mistake of fact (neg.
as MR constitutional, as per Wholesale Travel) Is it a predicate offence? If so, the MR relates to the AR
elements of the predicate offence (unlawful act manslMR/AR for unlawful act, obj. foresight of
consequence; assault causing bodily harmMR/AR for assault, Godin) Included Offence?:
RobberyMR/AR theft +MR/AR assault, Sorrell)// CASES: Ping Yuen: store owner guilty under AL for
having “near beer” higher % than bottle said// Sault Ste. Marie (Pre-Charter): city charged w civil offence,
disposing garbage polluted water. “Public welfare offence” not intended to punish for intentions, but to
prevent bad social consequences; presumption = public welfare offences fall under SL// BC MVA: Statute
creates AL for driving w/ suspended license, w or w/out knowledge (defence due diligence not avail)via
s7, cannot imprison w/out full MR//Wholesale Travel: sold vacation, lied in ad saying wholesale price;
charge w/ misleading ads; hybrid could lead to prison. Legis created SL but allow D of due diligence in Leg.
Reverse onus upheld 5-4//Martineau: robbed trailer w bb gun, friend had rifle, shot 2 ppl during robbery;
DeSousa: threw bottle; obj test for foreseeable harm (act objectively dangerous, RP realize created risk of
bodily harm)
SUBJ. FORMS OF MENS REA: includes #2 above, stigma offence MR (Vaillancourt; Martineau)
Wilful Ignorance: Accused suspects certain facts exist or certain consequences may ensue, but deliberately
refuses to consider or acknowledge risk—subj. (Sansregret)//CASES: Blondin: Drugs in his scuba tank
coming from Japan/ w drugs draw inference that he was wilfully blind.
Recklessness: Accused recognizes existing circumstance or aware that conduct creates risk but proceeds with
this knowledge (ex. s.229(a)(ii) murder when he knows conduct likely to cause death/s 433 arson) / test subj
(Naldzil). Proof of recklessness can be sufficient for conviction of offence w intention or knowledge as it’s MR
(Sault Ste Marie) BUT some offences cannot extend MR like this Buzzanga
Intention or knowledge: Desired/sought proscribed harm (direct intent) or desired/sought some other end,
but was certain/virtually certain that the proscribed harm would result (indirect intent) (Hibbert)
(229 (a)(i) murder requires proof that the accused meant to cause death to another)= Subj. Test Vaillancourt:
Accused commits robbery w knife/friend has gun, thought was unloaded, kills someone; Lamer says AL
unconstitutional when crim liability, cannot sub. intent to rob + intent to use gun for foreseeability of death. Need
subj. foreseeability of death./s.230 struck down by Martineau MR murder must be “subj. foresight of death”
OBJ. FORMS OF MENS REA:
Criminal Negligence s 219 Marked & substantial departure fr conduct of RP which shows wanton &
reckless disregard for the lives/safety of others (Tutton; Waite)
Penal Negligence: marked departure fr conduct of RP (regardless of whether there was risk to safety of others)
(Hundal). Obj standard, not considering personal characteristics of the accused but applying context of the
surrounding incident (Hundal, Crieghton). SCC affirmed the modified obj. test culpabilities measured against
knowledge and conduct of a reasonably prudent person in those circumstances for penal negligence offences
like driving offences (Beatty). UNLESS incapable of appreciating the nature of the risk (Beatty, Naglik)
//CASES: Beatty: truck crossed over line when there was curve in road not enough evidence to show marked
departure from what a normal driver would do//Browne: 2 drug dealers, one swallows drugs to evade police, gets
sick, friend says he’ll call 911 but calls cab: acquitted because no legal duty to care, no proof 911 would save her
(doesn’t fall under s217)//Naglik: 216(2)(a)(ii) failure to provide necessities of life- C must prove that the
circumstances gave rise to a duty were obj. foreseeable to the reasonable prudent parent AND unless they lacked
the capacity to appreciate the risk -- other personal characteristics like education, youth, and inexperience are
not relevant//Hundal: Dangerous Driving s249(1),(4) objectively looking at the circumstance facing accused
and whether they acted in marked departure from the standard of care of a reasonable driver but a person would
be acquitted by a modified obj. test if perhaps they had a sudden onset of illness, or a reaction to medication
//Gosset, Durham, Finlay: Careless storage of a firearm under s 86(2) carelessness is tested objectively but to
amount to crim. offence need to be a marked departure from the standard of care of the RP
DEFENCES
Defenses established thru CL or CC//Argue only if C proves AR + MR of offence BRD/Diff. categories of
defenses: 1) Negative Defenses (negates MR and/or AR) ie Mistake of Fact, Intoxication, Automatism
2) Positive/Affirmative Defenses (doesn’t negate MR/AR)  excuses or justifies
Positive Defenses: Excuses: never renders conduct lawful, provide some reason in law and policy not to punish,
or not to punish as severely = Concessions to human frailty (Duress, Provocation, Mistake of Law (if officially
induced), Intoxication, Automatism, Mental Disorder)  Can still be party to excused action
Justifications: conduct lawful (Self-D, D of prop, necessity, enforcing law)  Cannot be party to justified act
How to raise a defense; Accused must est to judge that air of reality to defence (Osolin, def’d in s 273.2)
Accused must show “there some evidence (evidentiary burden) on the basis of which a properly instructed jury
acting reasonably could acquit” (Cinous). Once AoR est’d, burden on C to disprove D BRD. Exceptions where
onus reversed (Osolin): Mental Dis., Automatism Daviault Intoxication, Mistake of law
CONSENT: may be framed as defence: Jobidon// Non-consent may be element of offence, such as assault, or
may be CL element of crime (Lemieux, B&E)// Cuerrier fraud vitiates consent if 3 things proven by C p572
CONSENT AND ASSAULT:Assault= s 265(1) directly/indirectly, intentionally applies force, or threatens
or attempts to apply force, to another w/out consent. A person also commits assault when accosts someone
while openly wearing a weapon (or an imitation weapon)/s265(2) applies to all forms of assault, s 265(3)
consent can be a D to assault if not given b/c of force (or threat of) to complainant or other person, fraud, or
exercise of authority. Jobidon A person cannot consent to death (s 14), or to violent force that is unreasonable
conduct in circumstances//Even if consent to a fight, cannot consent to other person using excessive force to kill
you// s 265 vitiates consent b/w adults intentionally to apply force causing serious hurt or non-trivial bodily
harm// CAN consent to intentional applications of force which cause only minor hurt or trivial bodily harm// s
265(4) if consent has been raised, and would be effective, the judge must ask the jury to consider whether the
accused had reasonable grounds for an honest belief in consent. D only needs to raise reasonable doubt w
consent by discharging evidentiary burden, ok w Charter (Osolin). SPORTING EVENTS: You CAN freely give
consent to participate in rough sporting activities, so long as the intentional applications of force are w/in
customary norms and rules of the game//sporting events have social value some intentionally applied force will
fall within the rules of the game and will be a part of “implied consent”//Look at whether express/implied
consent to the type of contact; whether contact was of nature that in any event no true consent could be given
Cey, Leclerc//s. 267(2) bodily harm= any hurt or injury to complainant that interferes with the health/comfort of
complainant and is more than merely transient or trifling in nature.
Jobidon: Manslaughter fist fight in parking lot, intended to cause harm but thought fair fight.
Cey: Hockey game injury, charged with s 245.1(1)(b).
Leclerc: aggravated assault in hockey game, no body contact allowed.
McSorely: NHL goon sent onto ice to start fight at end of game, hit opponent in head caused seizure/concussion /
Court heard evidence about ‘unwritten rules’ of NHL and got conditional 18
CORRECTION: S. 43 teachers, parents, standing in for parent can correct pupil/child under their care by force,
if purpose of force is correcting child//If child cannot be corrected, force is invalid (Ogg-Moss)/ Dependency
alone does not make person a child/“standing in place of parent” look for assumed parental duties (financial)
that go with authority and were the rights delegated by natural parent. Pupil is narrower than student (b/c implies
youth), and school teach narrower than teacher b/c implies academic direction. “Force by way of correction”
cannot be in anger/punishment must serve corrective function/must be reasonable amount of force under the
circumstances Ogg-Moss. Assessing reasonable force court looks at (obj’y and subj’y) nature of what is being
corrected, age/character of child, gravity of punishment, circumstances, emotions, seriousness of injuries; cannot
apply force with intent to injure child / Violent past of parent only plays role in sentencing.
Dupperon Badly behaved kid gets 10 whippings from step-dad
CFCYL challenged s.43 violates security of the person s.7 (security), s.15 (equality), s.12 (cruel). Violates s.7
but does not violate PFJ: 1) Adequate procedural safeguards - child’s best interest are protected by courts; 2)
Not PFJ that laws affecting child must be in best interest; 3) s.43 not too vague b/c creates acceptable risk zone;
4) Not discrimination against child b/c each has different needs and treatment needs to tailor to each (keeps
family sane)/does not infringe on child’s dignity / Not cruel/unusual bc requires reasonable force.
Binne (partial dissent): Would rather say it does violate equality (s.15) because it is an assault, but justify it
under s.1as “reasonable in the circumstances” for parents/Arbour (dissent): Strike down unconstitutionally
vague, offends s.7 and s.15, and rather use necessity or de minimis to protect parents who spank their children
(dissent): Strike down b/c discriminate equality (s.15) and s.1 cannot justify it because not minimally impairing:
DE MINIMIS: Law not concerned w trivial. Value judgment; Complaint should have been resolved w/out
taking up court time/minor irritant should have brushed off. Don’t use de min in domestic assault Stewart. de
minimis when no other defenses/no harm/consequence of conviction severe. (Matsouba)
LePage: xmas tree seller pushes past fire chief - chrg assault (doesn’t require harm) the real problem was a
ticket for the trees: Court says there is AR, MR for assault, but law does not deal with trifles—de minimis.
Matsouba: Teacher touched student, girl lacked cred. Judge: not sexualized, no harm and de minimis.
MISTAKE OF FACT: mistake to essential component of AR; negates MR/Mistake about the existence of
certain facts/For subjective MR crime must be honest (not intentional, reckless, wilfully blind), but does NOT
have to be reasonable. For Objective MR crime, must be honest and reasonable s.265(4) (assault context)
Judge decides whether there is enough evidence for mistaken belief, and if there is, he must instruct the
jury to consider the reasonableness of the claim.
Mistake of Fact & SA: changed s.273.2: mistaken belief in consent: a) cannot arise fr intoxication, b)
recklessness/wilful blindness, c) accused must take reasonable steps, in circ, to ascertain complainant consenting
Pappajohn: Can only put mistaken belief in consent defence to the jury if the claim is grounded in air of
reality/ Need more than testimony of accused/ If stories are diametrically opposite cannot be a mistaken belief
so cannot put to jury; either is or isn’t consent. MR for rape = intention or recklessness for all elements of the
crime, including absence of consent (rape gets same MR as other crimes) / subj standard (as long as honestly
held, need not be based on reasonable grounds – *overruled by new s 273.2(b): b/c already requires air of
reality, crim law req’s moral culpability so should be concerned with accused’s’ state of mind, unfair to convict
if woman really did lead him on/ Juries will still decide based on reasonableness anyways b/c they assess
credibility of claim// Sansregret: ex-bf ties her up and threatens to kill her, so she has sex w/ him and says they
will get back together; Ct: wilfully blind b/c this happened once before, so he did have knowledge she wasn’t
sincere// Seaboyer: Strikes down 1982 rape shield provisions saying s.276 infringes s.11(d) & s.7 (denies
right to fair defence and could be imprisoned)/ Not saved by s.1 b/c excludes probative evidence and right to
fair trial to protect reputation of complainant/ Applicable principles: not admissible solely to infer she was (1)
more likely to have consented or (2) more likely to have lied (“twin myths”), must weigh probative value vs.
unfair prejudice, judge must decide in voir dire, and then warn jury not to infer twin myths
LHD (Dissent): s.276 and s.277 do not infringe s.7 & 11(d) b/c this only considers the narrow constitutional
definition of trial fairness, but allowing the evidence would systematically exclude considerations of the harm
done by the evidence to the fairness of the victim/ SA law v prone to stereotyping and myths (sexual reputation,
knowing the D, reporting rape, emotions, spiteful, false claims, stereotype of the rapist) so letting judge det
relevance will only perpetuate the myths because of their subj experiences (& bias)/ Broader context shows that
the trial is just the final stage of the myth (reporting, police work, etc)/ Harm done to victim outweighs trial
fairness///Code before Seaboyer: blanket exclusion on sex history unless: rebuts an inference of the
complainant’s sexual history; establishes an actual identity of assailant; evidence of sexual activity that occurs at
the same occasion and relates to consent//Code after Seaboyer: s.276(1): Not admissible for purposes of
merely showing the complainant is more likely to have consented or is less worthy of belief s.276(2):
Evidence admissible if significant probative value that is not substantially outweighed by danger of prejudice,
and it must be relevant to the issue at trial and a specific instance (no general character)
s.276(3): Factors judge must weigh to determine balance: fair trial, encourage reporting, will evidence help
justice, discrimination and bias in fact-finding and jury, personal dignity and privacy, benefit of law, etc
Osolin: Can they use self-blaming statements to her therapist? Cory: Whether the evidence put forward is
such that, if believed, jury properly instructed could acquit/ mistake fact not available when both stories are
diametrically opposite/Cross-ex must not be focused on rape myths; only delve into woman’s lifestyle in rare
cases where woman is fraudulent/ LHD: No air of reality b/c of victim’s trauma/terror/ripped underwear/
bruises/ McL: Cannot argue consent & also mistaken belief in consent/ Can satisfy air of reality test with
diametrically opposite statements, but not here/ Sop: Agree w Cory’s general test, but only require “some
evidence” for jury to acquit/ Only need credible narrative/ Can use mistake fact w diametrically opposed stories
s.273.l: Consent = voluntary agreement of complainant to engage in sexual activity / No consent when:
consent is expressed by another person; incapable of consenting; consent induced by abuse of trust, power,
authority; lack of consent expressed by words or conduct; consent revoked// Esau: sex w cousin; Majority:
Even though accused did not argue mistaken belief in consent, there was an “air of reality” so TJ should put this
defence to the jury, but should not put s.273.2 (must take reasonable steps to ascertain consent) because Crown
didn’t argue it/ Dissent: TJ should not bring up defence of mistake because accused didn’t argue it, and if he did
it would have been defeated by s.273.2// Ewanchuk: rape 17 yr old in trailer at job interview; AR means in her
mind she consented / MR means accused thought he had obtained consent, not just that he thought she had
consented in her mind / Check s.273.2 (reasonable steps) only after air of reality test been met and defence of
mistaken belief has been put to jury/ LHD: Check if accused complied with s.273.2 (reasonable steps) before he
can try ‘air of reality’ test for mistaken belief in consent// Darroch: sex w ex-gf; Post-Seaboyer amendments
constitutional/ Don’t require accused to testify/ C must still prove all elements of offence/ Exclusion of sex
history also protects accused
MISTKE OF LAW: NOT DEFENCE Sec. 19 Code. BUT may be some EXCEPTIONS:
MOL: Goes to MR: where MR requires “knowingly” “without colour of right” BUT not for offences with
phrase “without reasonable justification or excused”. CASE Ex. R. v. Howson -- accused tow truck operator
acquitted of theft for towing and retaining car on bases he had an affirmative belief that he had a positive
right to retain the car until the towing charges had been paid. R. v. Docherty “wilfully refusing or failing to
conform” with a probation order, acquitted of breach charge because did know know it was DUI charge for
sitting in care and breach requires willful breach.
MOL: Officially induced error: CL exception where accused relied on legal interpretation given by
someone in authority charge with administration of the law (but not a lawyer). In Levis City v Tetreault
SCC accepted the defence established in Jorgensen: That an error of law or mixed law and fact was made,
That the person who committed the act considered the legal consequence of the action, That the advice
obtained came from an appropriate official, That the advice was reasonable, That the advice was erroneous
and That the person relied on the advice in committing the act. In R. v. Jorgenson porn store, charged for
selling obscene material -- section says knowingly without lawful justification or excuse, the term
knowingly applied to all element of the actus reus and the accused must know the materials were obscene,
this was a mixed law and fact b/c he relied on Ontario approved ratings would not necessarily negate the
mens rea but provided an excuse on the basis of “officially induced error” thus no evidence he know so no
mens rea.
MOL: Impossibility: physically impossible to ascertain the state of the law. Invoked were law has been
unpublished in any form, and the crown has been unable to prove that the accused had actual notice of the
law. R. v. Catholique (a new liquor law posted in two placed but was otherwise unpublished in Canada
Gazette). Re Unger tried the defence but was published in gazette the month before so impossibility was
rejected.
COLOUR OF RIGHT: assert legal justification or excuse and “colour of right” under s 429 of the Code
depends on the accused’s subjective honest belief in a state of facts or civil law, which if it existed would
negate the MR of an offence First, is there is evidence indicating that the accused believed that he was
authorized to do what he did and that that belief was honestly held does not matter whether the belief was
reasonable so long as it is honest but can consider reasonableness when deciding whether the accused
honestly believed that he had a legal justification or excuse (Watson). Moral conviction alone though
honestly held cannot transform illegal actions into legal ones, only the rule of law must prevail (R. v.
Drainville). The claim of colour of right is available for accused arguing D of property under s 41 of the
code R. v. Born with a Tooth. Generally prop issue.
R. v. Stevenson: burnt down reserve bridge, said colour of right. But court rejected, not honestly held.
Ashini: went on to runway, saying their prop, not trespassing under honest colour of right.
Watson: Environ activist, argued under COR he didn’t think Canadian law applied thought he had right.
Court said this is mistake of law, no defence.
INCAPACITY: Incapacity involves an argument that the accused did not have the capacity to form the MR
of the offence. Capacity is also relevant to the question of whether the accused is fit to stand trial or instruct
counsel.
INCAPACITY /AGE: S13 the age of criminal responsibility is 12 years old. Youth Criminal Justice
Act deals with criminal responsibility of young ppl 12 -18 yrs at time of offence (federal offences, including
the criminal code but NOT for provincial offences). Desginates Youth Court. Crown has onus of persuading
the judge that a youth requires an adult sentence (R. v. DB)
INCAPACITY/MENTAL DISORDER: can come into play for Fitness to Stand Trial OR an NCR
defence.
(A) FITNESS: The standard for fitness to stand trial is a limited cognitive capacity test, not necessary that
the accused be able to act in his own best interest in communicating with counsel (Taylor). Counsel has duty
to raise the issue of fitness with the court failure to do so amounts to basis of incompetence and allow appeal
(Brigham). s, 672.11/672.12 = court may order assessment of accused mental condition where reasonable
grounds to believe such evidence is necessary to determine whether they are unfit to stand trial. The issue
may arise at any point in proceedings including prior to determination with respect to interim release. S.
672.22-.33 framework for unfitness determination. BUT s. 675.25(2) at the preliminary inquiry court has a
discretion to postpone trial on the issue of fitness until the close of the case for the prosecution. Do not
decide if some is fit unless there is reason to put them on trial (Taylor, Brown) at min trial judge should
require the C to show that it is in a position to establish that the accused committed the acts alleged.
An accused found unfit to stand trial may or may not be detained ss 672.45-.63 and may be tried on the
charges once fit ss 672.33. R. v. Demers SCC declared unconstitutional provisions that governed situations
where there was no reasonable prospect of the accused ever becoming fit to stand trial. The new provision s
672.852 permits a court to stay the prosecution where the evidence is clear that the accused is unlikely to
become fit, the accused does not present a significant risk to public safety, and a stay is in the interest of the
proper admin of justice
R. v. Bain CA held that evidence that the accused did not act in his best interest or failed to act with good
judgment was not sufficient to warrant a finding of unfitness
B) NCR: s.16 Defence of mental disorder, requires proof on balance of probs of two elements (1) must
have suffered from a mental disorder, and (2) the disorder must have prevented them from
appreciating the nature and quality of the act or of knowing that it was wrong. OOmmen s 16(1)
embraces not only the intellectual ability to know right from wrong in an abstract sense but also the ability
to apply that knowledge in a rational way to the alleged act. A mental disorder is defined in s 2 of the Code
as a “disease of the mind” a Q of mixed Fact and Law, whether the accused in fact experienced the
condition and whether he or she was prevented from appreciating that the act was wrong is Q of Fact.
Psychiatrists may offer opinion, their views do NOT control their legal and factual resolution (Granbois). SCC
in Chaulk that the reverse onus is justified under s. 1. The issue can also be raised by C against the wishes of the
accused, BUT only where the accused raises evidence of mental impairment that the judge finds puts the
accused’s mental capacity at issue and capacity is only considered once elements of crime are proven (Swain).
BUT court in David clarified it is preferable for jury to be told to consider the s 16 D only if they are satisfied
that the accused committed the AR, they should consider mental disorder defence before attempting to determine
whether the accused possessed the MR since logically the accused mental capacity will be a condition precedent
to resolving the MR issue. ONCE NCR New legislative regime: Part XX.1 creates review boards each
province. Holds provision for reviews etc. but also the board must “take into consideration the need to protect the
public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society
and the other needs of the accused’ and must make the disposition that is “the least onerous and least restrictive
of the accused”. (Winko upheld new prov.)
INTOXICATION: CL defence (s.8(3)) that is partially codified under s. 33.1 (response to Daviault). Highlight
difference b/w general & specific intent crimes. Specific intent requires MR that is specifically focused on
producing a particular outcome (ex. murder = intent to kill, theft = intent to deprive another of property).
General intent only requires sufficient MR to commit the immediate act w/out intent to produce any particular
consequences, so only requires basic voluntariness (ex. manslaughter, assault). Intoxication is NOW a defence
for specific intent crimes if the accused incapable of forming req’d intent (negates MR) but onus is on C, BRD.
If successful, ct may convict of lesser included GI offence (murder to manslaughter). FOR Extreme intoxication
akin to automatism/ insanity (Daviault Intoxication) is a defence to general intent crimes w onus on D on BoP,
EXCEPT for general intent crimes which involve assault or threat of violence. NOT a defence to obj MR crimes
(ex. negligence) – RP is never intoxication.
Beard (HL, adopted): Rapes and murders little girl, claims so intoxicated had no control over actions //Leary:
Subs intention to get drunk for intent to rape, so intox is not a D to gen intent offences (overruled)//Bernard
(1988): keep Leary (intoxication not defence to GI) voluntariness of act is voluntariness to get drunk //Daviault
(1994): rape 65 y/o in wheelchair, drunk to automatism. Intoxication can be defence to GI offence if akin to
automatism, but: a) burden on accused to prove defence on BoP and; b) must be supported by expert evidence/
Cannot sub. MR for offence with MR for intoxication b/c violates s.7 and s.11(d) ( leaves reasonable doubt
pertaining to MR of offence)
AUTOMATISM: Will amount to denial of voluntariness of AR therefore if found =absolute acquittal (or go to
Mental Disorder determination). Classified as either sane or insane.
Insane Auto: Mental disorder defence and would likely result in detention or other order Stone. Sane Auto:
complete acquittal and is available for those who can show they went into dissociative state as result of
Intoxication: (King): involuntary intoxication; Physical Blow:(Bartlett): PO hit mans head seconds before
automatistic state/(Haslam): acquittal woman hit by blows to the head turned her aggression on the aggressor;
Psychological Blow: (Rabey): must be not b/c own frailty use obj standard/psych blow - rejection by female BUT
own internal frailties rather than the alleged blow – unsuccessful; Sleepwalking: (Parks): non-insane automatism
state (evidence). Approach to Automatism: 1. Trial judge (voir dire) must assess whether accused has met
evidentiary burden of rebutting presumption of voluntariness by reason of automatism on BoP /
Evidentiary burden requires accused to claim involuntariness at relevant time, and supporting expert psychiatric
evidence / Wrt automatism caused by psych blow, must require evidence of trigger equivalent to “shock” / Also
consider other evidence (appearance, history of involuntariness, motive) / If crime is explicable w/o alleged
automatism, will usually extinguish automatism claim / Main q: could a properly instructed jury find that the
accused acted involuntarily on balance of probabilities? If NOmay try for s.16 MD / If YES second step:
2. Judge must decide whether to instruct jury on alleged MD OR Non MD automatism (pick one) / Must
start with proposition that it is MD / Can decide it is non MD for psychological blow if passes external cause test
= whether a reasonable person might have also experienced automatism as a result of the alleged shock or
blow—if yes, it was external cause and non MD—if no, it was because of internal weakness and MD / Also
consider continuing danger because of MD or recurrence of triggering events, policy concerns, psychological
history / 3. Jury decides whether in fact there was automatism (charged with either MD or non MD, not
both): Stone (stabbed wife 47 times)
Rabey: Guy rejected by girl he liked so badly beats her / External/internal cause test for psych shock = RP would
not have become automatic = internal cause = MD automatism// Parks: Sleepwalker kills mother-in-law; accused
can introduce non-MD automatism and only needs to meet evidentiary burden; shifts to C to prove MD
automatism; continuing danger test: no history of violence, no motive, no recurrence of triggering
circumstances// Bleta: Guy with concussion stabs someone / deemed transitory blow so non-MD automatism
PROVOCATION: S.232: Provides excuse no vindication of the deeds of the actors. Provocation is available
ONLY for murder and, if successful, is a partial defence that reduces murder to Mansl. (CL provocation can be
part of sentencing consideration). s232(2) need to show judge there is some evidence to put to the jury (Thibert)
BUT:232(3) “no one shall be deemed to have given provocation to another by doing anything he had a legal right
to do”. The D is open to someone who is “insulted”. The words /act need not be specifically prohibited by law
(Galgay). Elements of the Defence: a) wrongful act or insult capable of depriving an ordinary person of selfcontrol, (Obj test: Q of fact)(Age, sex may be relevant); b) resulting loss of self-control on part of accused, and
(Subj test - Q of Fact)(may take into acct mental state & psych temperament), c) action “on the sudden” by the
accused (Q of fact). Threshold Obj test (survived constitutional challenge in Cameron). Thibert (shotgun
husband) is the most recent authority on this issue, and the court held that the jury may consider the
background of the rship & earlier insults that culminated in the final provocation, age, sex, and other factors
about the accused that are relevant to the significance of the provocation. The provocation d can be allowed
even if the insults incl a desire for revenge (pre-meditated), so long as immediately before the last insult the
accused did not intend to kill. Ordinary person: Normal temperament + level of self-control, not exceptionally
excitable, pugnacious or drunk (Hill). Hill (kills big brother for sexual advances) defined the ordinary man test in
the same way, saying the jury will be able to conceptualize the RP adeptly, and features such as age and sex can
be attributed to the accused, but are only necessary when they are relevant to the provocation in question//
Humaid (Arab family) said expert evidence about the accused’s culture is only admissible if the accused
actually shares the values of that culture, and only if those values are not antithetical to fundamental Cdn values
Terminating a rship CANNOT be characterized as wrong act/insult capable of constituting provocation to
kill Young fr Thibert.
DPP v Camplin: D killed vic w frying pan, D said gay advances// Carpenter: overturned provocation D, wife
murdered when she swung a vase at man’s head while in drunken fight, in the context described as history of
mutual violence// Brown: court held prior threats made by the accused to kill wife, tended to suggest not
provoked// Young: GF announcement rship over.. provocation rejected, dangerous precedent// Taylor: argued
drunk, met handicapped girl on street, engaged in what he said was sex intercourse, she became angry & kneed
him. He went crazy and hit her to death on head// Parent: killed wife during divorce separating assets, she said
she was going to take it all. Shot her - guilty// Humphreys: cumulative abuse could amount to provocation
(killed bf, long history of abuse/rape/beatings)// Thornton: recognized history of abuse and battering may be
relevant to defence of prov as mental characteristic of accused. Woman acquitted of murdering husband but
found guilty of mansl// Malott: Wife killed ex, she lived with his mom and he would come over with his gf.
SELF DEFENCES.34,35, 37. When left to jury: if ev. discloses an air or reality upon which properly
instructed jury acting reasonably may acquit Cinous. Complete defence even, potentially, to killing.
s.34 defines the extent to which force is justified in repelling an unprovoked assault. s.34(1) a person is
justified in using force to repel unprovoked assault, but the accused cannot have a) intended to cause death or
grievous bodily harm to the assailant, and b) the force can be no more than necessary to defend himself. s.34(2)
in cases where the force does cause the death or grievous bodily harm, the accused is justified in using the
force if a) he was under a reasonable apprehension that his death or GBH would result from the initial and
continuing assault and b) he believed on reasonable grounds that he could not preserve himself any other way
s.35 applies all the elements of s.34, but applies when the accused did provoke the attack. In order to use the
defence, the accused must retreat/decline as far as is feasible before he can retaliate. (cannot have started fight
intended GBH or Death)
Lavallee and McConnell say that ExpertEv. can be introduced to explain syndromes such as Battered women
and prison dynamics. Cinous said pre-emptively shooting his accomplice does not count as self-defense b/c
there were other alternatives available, even if not within contemplation of criminal subculture.
BATTERED WS: Lavallee: Lived with victim for 3 years, BWS, he gave her gun and she shot him in back as
he turned to leave / Judges are annoyed by juries’ interpretation of SD / Expert evidence about BWS admissible
because average juror doesn’t know about BWS and it is relevant to SD / Relevant in two ways: 1) Temporal
issue = did she reasonable apprehend death or BH from a threat to hurt her later? 2) Magnitude issue = did she
reasonably believe this was the appropriate force/no other alternatives? ExpertE can cast doubt on the usual
assumptions that one cannot reasonably apprehend danger and know how much force to use until assault is
happening. ExpE can explain woman’s heightened sensitivity, why she knows when it is a serious threat, why
she cannot leave, why she still loves him, etc / Must determine what the accused reasonably perceived, not
unbuttered reasonable perception / Requiring harm to be in motion would mean it is impossible for woman to
use SD at that point because no match for men / Imminence requirement is based on male-male violence
DEFENCE OF OTHER: Use s.34/s.35 but with respect of 3rd parties
NC and George: George was being beaten by PO, so NC drove bus into their path to save George / Court
accepts that he would have hit police if they didn’t move, but they find it appropriate amount of force and allow
SD / Credibility plays a role: George was not using vehicle for SD; he was using it as a weapon / NC was using
vehicle as means of 3rd party defence
Brotherston: City counselor chokes Taylor to death when defending his sons (drug scene) / Court applies s.35
test and finds accused is credible / Can consider evidence of sons’ situation / Acquitted
Mary Eberts Domestic Violence Police Report: ME is a litigator who argues many BW cases / Woman kills
violent partner / She had gone to police many times to report violence but police kept no records / Now SD
doesn’t work because without records she has to take stand to explain her police visits / Want to estop Crown
from examining her history when the reason she must take stand is to correct a police failure which forced her to
abandon her right to silence
Semenovitch: Convicted 73 year old BW of killing her abusive husband and helping daughter and grandson to
incinerate body / No particular moment of actual threat, but long history of abuse
Graveline: BW shoots her husband / Asks for non MD automatism, and does not argue SD at all because they
are conflicting defenses (either voluntary and justified or involuntary excuse) / TJ tells jury to consider SD
because there is an ‘air of reality’ / Jury acquit, but we don’t know why / Appeal to SCC because don’t know
what to do with conflicting defenses / SCC upholds acquittal
DURESS If you commit exempted offence  get nothing///If you aid/abet exempted offence  get CL
defence of duress///If you commit or aid/abet non-exempted offences  get CL defence of duress
CL defence of duress: Paquette CL Duress still available. s.8(3): CL defences continue to apply unless they are
altered by or are inconsistent with CCC. Requires: threat of death or serious bodily harm, can be future harms,
harm to third party, can work for principals of excluded stat offences, No defence for murder or treason /
Expectation to put up normal resistance to threats / Look for avenue of escape / Avenue of escape by objective
standard, but personal circumstances of accused are relevant / Does not negate MR / Need close temporal
connection between threat and harm / Don’t always need to seek protection of police / Once raised, BOP on
Crown to prove no duress / Threat of death or BH can be express or implied (requires conduct) / Accused cannot
be party to the conspiracy or voluntarily joined criminal activity (See Hibbert, Mena, Paquette, Ruzic)
Paquette: Forced at gunpoint to assist people in armed robbery / s.17 only applies to principals, CL duress still
available to parties / Restrictions on s.17 do not apply to CL duress
Hibbert: Leads killer to his friend’s apartment building because his life threatened if he doesn’t / Duress
can provide a defence only as an excuse / Duress cannot negate MR / MR does not require you to ‘desire’ an
outcome, just need to be aware of probable consequences / Duress and necessity share same juristic
principles, but target different situations: Necessity = accused is a victim of circumstance; Duress = accused
is victim of man’s wrongful acts
Stat defence: s. 17 elements: person who commits offence under compulsion by threats of death or bodily
harm is excused for offence IF (a) person believes that the threats will be carried out and (b) if the person is
not a party to the offence and (c) is not one of the excluded offences (See Gardiner, Robins, Ruzic)
Carker: No duress defence given against mischief when broke plumbing in his cell / Other inmates said
they would kill him when they got the chance / Immediacy and presence blocked defence
Gardiner: Sets up sting op with police / Accused is terrified of him at this point / Duress defence blocked
because: 1) Events arose from initially voluntary involvement in criminal activity and; 2) While the threat
was immediate and man was present, the unfolding of events was gradual so he had time to rationally reflect
and exculpate himself
Robins: BW is terrified of husband, gone to police several times, warned victim’s father he might hurt him /
Forced to help husband kidnap daughter / She gets away without ransom / Accused tells police / Kidnapping
(not excluded) not same as forcible abduction (excluded) / Threat of her daughter being kidnapped is not
threat of bodily harm so no duress / Rejects argument of party CL duress defence because says she coauthored the crime / s.18: Abolishes presumption that offence committed by wife in presence of husband
was coerced—can still find coercion, but based on facts and no presumption
Ruzic: Young Yugoslavian girl harassed by drug dealer and agrees to be drug mule into Canada when he
threatens her mother / Moral involuntariness (guilt, but excuse) and moral innocence (no guilt) are not the
same thing, but we need to make defence for moral involuntariness / PFJ: cannot imprison and stigmatize a
person when they had no realistic alternative / Requirement of immediate and present threat infringes s.7
because it makes morally involuntary actions criminally liable / CL defence of duress does not negate MR
or AR—it is an excuse to them / Use objective-subjective test to assess avenues of escape (similarly situated
reasonable person) / CL defence of duress does not require strict immediacy; question is “did accused fail to
avail himself of opportunity to escape?” / s.17 fails BW and countries where law has broken down / s.17
infringes CCRF because immediacy and presence is under-inclusive—does not account for threat of future
harm / No s.1 save
NECESSITYs.8(3): Permits CL defence of necessity to still exist. Requires 3 criteria: 1) Urgent situation
of imminent peril; 2) It was impossible to comply with the law / No legal way to exculpate yourself; 3)
Response must be proportionate between harm inflicted and harm avoided (Perka). Once raised by D with
air of reality, C must disprove. Limitations: 1) Do not require clean hands, but without clean hands will be
less likely to get defence because you should have foreseen imminent peril; 2) If situation was reasonably
foreseeable defence is unavailable; 3) Would normal instincts press you to commit act?; 4) Start with
presumption of voluntariness, but if necessity on table then Crown must disprove involuntariness (Perka) /
D is available ONLY if can frame as excuse – deprived them of voluntariness or free will.
Stephens: drove with suspended L= necessity worked. Son in accident drove to hospital.
Langdon: failure to leave when directed. Successful,
Dudley: Ate the sick cabin boy / Not yet dead so murder and cannibalism / Your highest duty may not be to
save your life, but to sacrifice it / Do not totally divorce law from morality
Holmes: Rules for eating people: Draw lots, any duties/obligations to others must come first
Southwark: Homeless families squatting in abandoned houses / Refuses to grant necessity by law because
allowing poverty/hunger to be an excuse would open the door to lawlessness
Morgentaler: Had to perform abortions because girls said they would kill themselves otherwise /Jury
bought necessity, but Dickson disallowed it saying CL necessity defence requires clear and imminent peril,
and impossibility to meet legal alternative
Latimer: Father mercy kills his disabled daughter and claims necessity / Judge tells jury that if they find
murder it has mandatory minimum of 10 years, if they find mansl no mandatory minimum / Jury charge
murder with reco of 1 yr / Judge cannot accept recommendation
Perka: Jury bought necessity for drug smuggling boat / CA said if jury acquits they must send to retrial
because cannot substitute acquittal with conviction / If using necessity as a justification your actions need to
have a strong utilitarian end (ex. speeding to hospital) / Necessity defence is an excuse (actions were wrong,
but excused on humanitarian grounds)
FACT PATTERNS:
Party Liability: s.21 liability of parties & principals
s.21(1)(a) principal will be liable for the offence if he actually commits the offence
s.21(1)(b) person may be liable as a party to an offense for acts or omissions which are done for the
purpose of aiding the principal to actually commit the offence. This requires AR (acts or omissions of
aiding the principal) and a MR (the purpose was to aid the principal).
s.21(1)(c) person may be liable as a party to an offense if the accused abetted the principal (encourages
principal to commit the offence=more than mere presence//unless the accused is present because he is
supporting the principal)
s.21(2) extends liability beyond the wrongful act originally intended. Parties will be liable for all other
offences that occur while carrying out the original intention, if parties knew or ought to have known that
the extra offences were a probable consequence of carrying out the original offence. BUT for offences
require a min MR, like murder need to still show subject cannot be ought to know Logan. BUT, parties
can still be liable for the included offence of manslaughter if the C cannot prove subjective MR for the
accused (Kirkness), but must still prove a reasonable person in all the circumstances would have
foreseen at least a risk of non trivial harm to another as a result of common intention (Jackson). Hibbert
tells us that the “common intention” only requires that the party and principal have in mind the same unlawful
purpose, but does not require them to have the same motives and desires.
s.22(1): counsel a party to an offence (procure, incite, solicit) you are a party to offence, even if it was carried
out in a different way than how you counseled it should be
s.22(2): If the party commits another offence (other than the one you counseled for) you are liable if you knew
or ought to have known the additional offence was a probable consequence of counseling.
Parties to Offence of Murder: Twigge woman party liability for 1st Deg murder. Jury should be instructed that
non-accidental presence at the scene of a murder may be a starting point, BUT must still be satisfied that the
accused possessed the necessary murderous intent and she intended her present to encourage the killing. For 1st
deg murder C must show either she aided in the planning or deliberation of murder, OR that she intended to abet
a planned and deliberate murder (s 231(5) Pare upheld on challenge).
Parties to Offence of SexAssault: Must be active role in action (s 21(1)) accused, more than mere presence,
even with pants down (Salajko). Even if enjoying it (Clarkson). Except presence is to prevent escape (Black).
Fact Pattern For Homicide: death+voluntary+causation=homicide
s.222 homicide is either culpable or non-culpable. The AR for homicide is causing death of another person,
directly or indirectly. The causation element is a q of fact that is decided by the jury. Requisite standard of
factual causation for homicide is a contributing cause outside de minimis range (Smithers). However, test
should be put to jury in positive terms (“significant contributing cause” rather than “not a trivial cause”) (Nette;
dissent says no reason to change Smithers test). Culpable homicide: murder, manslaughter, or infanticide.
Committed when person causes death of a human being by any means of an unlawful act, criminal neg, threats
or fears of violence causing that person to do anything that causes his death, or by wilfully frightening sick
person or child. Diff. MR and AR will be req’d depending on whether charge is a) murder, b) unlawful act
manslaughter, or c) criminal neg. manslaughter (distinguishing murder fr manslaughter is intention for death).
Murder mandatory life s 235 diff period of parole eligibility depending first 231 or second 747.
Ask Is there Intention? IF Yes=Murder or Infanticide OR No, Mansl (the lesser included offence)
b) Unlawful Act Manslaughter: s 222(5)(a) made out where the C proves / 3-part test (Creighton) (a) est AR
(act is marked departure fr RP care in circumstances) (b) est MR/“fault” (obj foreseeability of risk of
bodily harm which is neither trivial nor transitory – not death)(constitutionally affirmed) (c) est foresight
(would RP in circumstances, given relevant personal characteristics, were they capable of appreciating the
risk of harm flowing fr conduct.
c) Manslaughter by criminal neg. s 222(5)(b) is same as causing death by criminal neg. s 220 both require
proof of neg. as well as causation & proof of death; have identical sentences.
CASES: Blaue (thin skull) argued didn’t cause woman’s death b/c although he stabbed her, she was JW so no
transfusion//Smithers: (thin skull) hockey player kicked, died, b/c faulty epiglottis or kick? C proved BRD
contributing cause outside de minimis= guilty (no defence that death not normally result fr the unlawful act)//
Duncan: acquitted as lack of factual causation; stabbed, not life threatening, 58 hrs later died of cardiac arrest;
expert: death could have been heart disease not stab//Creighton: experienced drug user injected girl w cocaine
she died; MR violates s.7? NO//Johnson: taxi drove drunk girl, took 1 jacket payment, left 1 jacket, ensured had
keys, told dispatch to call PO, dies hypothermia; acquitted couldn’t prove less jacket was significant contribution
Fact Pattern: Murder
Martineau concluded that murder is a specific intent offence, and the requisite MR for murder
cannot be anything less than subjective foresight of death. // s.229 offence of murder. There are
three circumstances in which murder can occur. s.229(a) occurs when a person intentionally
causes the death of another person. Murder can also occur when a person means to cause bodily
harm to another that he knows is likely to cause death, and is reckless whether death ensues
or not. The MR elements of this offence are the intention to cause the requisite degree of bodily
harm, couples w/ the necessary recklessness as to its effect.// s.229(b) says murder can also occur
when the MR established in the above section exists, but the AR results in death to an unintended
victim. If the MR and AR are proved, it is irrelevant that the death was caused by accident or
mistake, and that the accused did not mean to cause death or bodily harm to that particular person.
s.229(c) says if a person does anything for an unlawful object that he knows or ought to know
is likely to cause death and death results, he is guilty of culpable homicide, even though he might
have intended to carry out the unlawful objective without causing death. // Standard of factual
causation for 1st deg murder is a “substantial and integral part” of killing (Harbottle).
Provocation can reduce to manslaughter
Facts Pattern: Regular assault: S 265-: AR= applies force intentionally (subj) without consent
(subj)// MR= intend ( with respect to force...dont have to intend consequences, just application) to
do so without consent (knowledge no consent). 265(4) where accused believed there is consent a
judge can, if find enough ev, instruct the jury to consider presence or absence of reasonable
grounds for that belief// Defences : Consent, correction, de minimus –if found will acquit
Consent-must be freely given with appreciation of all the risks Stanley / 265(3)(a-d) no consent
obtained when....Is vitiated in consensual fights Jobidon/Not vitiated in sports, stuntment, school
yard scuffles// Implied- can be in some sports but only to a degree Leclerc, Cey // Mistaken belief
in consent-accused bears a evidentiary burden Osolin See in SA// Correction –s 43 Must only
be to child (see section) for correction, cant be done out of anger or arbitrariness, person must be
capable of learning from correction (2.5 yo not capable) Ogg-Moss/Force cant be unreasonable (
look at offence calling for correction, age, character, effect of punishment, circumstances under
which it was inflicted, injuries suffered, if injuries may endanger life limb health or disfigure
=unreasonable) Dupperon// De minimus (trifling) if found, acquitted Lepage / not allowed in
context of physicality in relationship Stewart
Fact Pattern: Aggravated assault (s.268): The MR for aggravated assault is the same as the MR for assault
(265 intention to apply force without consent directly/indirectly) + objective foresight of the risk of bodily harm!
The AR is the same as for assault, but now requires wound, maim, disfigure or endangers life ((268(1)). The MR
and AR must coincide (Williams: no AR when he didn’t tell his girlfriend he was HIV positive because he didn’t
expose her to significant risk of harm because she probably already had HIV at that point).
Fact Pattern: Sexual Assault The court in Ewanchuk said the AR of sexual assault requires three things: 1.
Touching (objectively, was the action voluntary); 2. Sexual nature (objectively, don’t need MR); and 3. Absence
of consent (subjective according to complainant—does not need to actively protest, because no such thing as
implied consent in SA, the accused must actively obtain consent). The AR is only concerned with the events
from the perspective of the complainant. A reasonable doubt about consent can only arise in two ways: 1.
Complainant subjectively consented (conflicting stories) or 2. The accused claims he had an honest but mistaken
belief in consent because the complainant affirmatively communicated by words or conduct her consent,
although she didn’t actually consent in her mind. Therefore, the MR for sexual assault only arises if the
accused says he had an honest but mistaken belief in consent.
s.273.1 says consent is a voluntary agreement of complainant to engage in sexual activity in question. No
consent is given when: consent is expressed by another person; incapable of consenting; consent induced by
abuse of trust, power or authority; lack of consent expressed by words or conduct; consent revoked
s.273.2 says an honest but mistaken belief in consent is not a defence if: 1. The belief arose from self-induced
intoxication or recklessness or willful blindness OR 2. The accused did not take reasonable steps, in the
circumstances known to the accused at the time, to ascertain that the complainant was consenting.
Cuerrier: Accused had sex with women without disclosing HIV status—does fraud vitiate consent?
Dissent (Mc): Most restrictive because she is concerned that smaller deceits will vitiate consent (promise to
marry, buy diamond necklace?) and worried it will incentivize people not to get STD checks so they don’t have
to disclose / Fraud only vitiates consent if: 1. Deception as to sexual character of the act; 2. Deception as to
identity; 3. Deception as to seriously harmful STD
Dissent (LHD): Most expansive—fraud vitiates consent if: 1. Dishonesty induced person to consent, and but for
dishonesty no consent would be given (objective); 2. Accused designed dishonesty to induce consent
(subjective). No risk of harm necessary; protect autonomy!
Fact Pattern: Robbery s.343 says robbery can be committed in 4 ways. AR = theft + assault, and MR =
specific intent of theft and assault. Trial judge in Sorrell could not be sure MR of robbery was there b/c did not
know what their intent was.
Fact Pattern: Thefts.322 says theft is when a person, fraudulently and w/out colour of right, takes or converts
anything w intent of depriving the owner or person with property interest in it.
Fact Pattern on Corporate Homicide: usually prosecuted under reg offences (AL or SL)= obj. assessment &
onus on corp to prove due diligence (no MR required) BUT if wanted to go after them for true crime require
MR to corp as whole. Have to find person to attach mental element, THEN connect w/ corp itself.
Can use s 222 to go after Corp for homicide, Manslaughter by way of unlawful act or manslaughter by crim
neg. or simply s. 220 crim neg. causing death (these offences have obj MR so easier to apply to corps). s 2:
defines “org” & “representative”; 2003 Amendments (Bill C-45): s 22.1 corp party to offences; C must prove:
that a sr officer, acting w intent at least in part to benefit the org and acting w/in the scope of their authority
either (a) was party to offence, (b) had mental state to be party & directed a rep to commit the act or omission in
q, or (c) knowing that a rep was about to commit the offence failed to take all reasonable measures to stop the
offence. s 22.2: for crimes that use fault element other than neg. s 217.1: imposes a new legal duty on those who
undertake or have the authority to direct another person’s work - may allow for prosecution of omission offences
like crim neg. by corp by specifying a legal duty owed by employers// CASES: Soloman & Co: confirms sep.
existence as corp as person; // Re. Wholesale Travel Group: corps can challenge constitutionality of laws, even
if deal w rights of individuals// Ford Pinto: neg. mnft’g, 3 girls die, damages reduced substantially so neg. paid
off// Curragh “Westray mining disaster”: Pre-bill C45: Curragh charged with causing the death of 26 miners by
means of an unlawful act. The manslaughter charges are valid, but must be read as including in allegation that
the company failed to take every precaution that was reasonable in the circumstances against health or safety
hazards and both charges// Tammadge (OPG): Pre-bill C45: mngr of dam; dam operator released water onto
sun bathers, dismissed against OPG as no “directing mind and will” low enough in corp structure to have known
about risks at that site, & against Tammadge as he wasn’t “DM&W”, not morally culpable// Metron: high-water
mark of corp. crim. liability
EXTRAS
PROVING INCHOATE: crimes that are incomplete offences, such as conspiracy attempt, and counselling. AR
(not usually crime, ie shaking door in Sorrell) + MR (intent to commit crime, ie can be inferred fr AR); next step
after mere prep = attempt crime (Sorrell)
Attempts: 24(1) defines crim liability for attempts such that C must prove an act or omission (AR)
performed for the purpose of carrying out the accused’s intent (MR) to commit the offence,
whether or not the offence was possible under the circumstances/The AR must be more than mere prep =
when the prep to commit a crime is in fact fully complete, next step by the accused for the purpose and w the
intention of committing a specific crime constitutes an AR sufficient in law to est a crim attempt to commit that
crime (Cline)/s24(2) states that the q of whether act or omission went beyond mere prep or was too remote is a
Q of Law – appealable (Sorrell)//s 463 sets out general sentencing scheme for those convicted of attempts for
most offences. s 660: when complete crime not proved, can go w attempt; s661(1) charged w attempt, can go up,
s662(1) w divisible offences, can go down.//Sorrell: attempted robbery/fried chicken store, went to store w
concealed weapon, but closed early; shook doors, left, cops stopped & arrested them w masks and gun
Conspiracy: No crime if someone resolves or even plans to commit an offence w/out more BUT if 2+ ppl
agree or plan to commit an offence the agreement may amount to the offence of conspiracy.
s 465: general framework for conspiracy incl penalties that depend on classification of the offence that was
the subject of the conspiracy/also specific conspiracy offences, conspiracy in restraint of trade s 46(2)(c),
seditious conspiracy s 61.But have not extended it to capture conspiracy to commit an unlawful act that is
not the subject of a statutory prohibition Gralewicz//Dungey accused lawyer sought to make arrangements
with a client to potentially defraud the legal aid plan but court said he could not be convicted. Conspiracy is
meant to charge someone before they commit an offence, but not going to attach a penal sanction to
something that falls short of conspiracy to commit the substantive offence//Dery SCC affirmed Dungey.
Counselling: s464: offence to counsel another to commit an offence if the offence was not in fact
committed/ s22(3) defines counselling= “to procure, solicit or incite”//Once convicted an accused who
counselled an indictable offence has the same liability as someone who attempted the offence s 469(a)//An
accused who counselled a summary conviction offence, is liable for punishment available for summary
conviction offences s 464(b) //If the offence was committed the accused’s crim resp det’d by s 22// R. v.
Pereira: man counselled undercover cop to kill his ex-wife for a fee.
TRIAL PROCESS: s.603: Accused may inspect and have copies of their statement, evidence, indictment
(disclosure; obligation to disclose everything C has, C there to assist) Stinchcombe: (F: lawyer charged
with breach of trust) Crown has general duty to disclose whether inculpatory or exculpatory because
purpose is to ensure justice is done, not to win / Crown can refuse to disclose for privilege / Crown can
exercise discretion when to disclose to protect informers / Crown should err on side of disclosure when not
sure about relevance / Initial disclosure should occur before accused must elect mode of trial / Crown’s
discretion and privilege always reviewable by TJ
s.606:Plead guilty, not guilty, or special plea / Court must be satisfied plea is voluntary (Rajeafard) would
have to argue counsel was ineffective and failure to understand consequence of plea (Newman), accused
understands plea, court is not bound by agreements between prosecution and accused / Court doesn’t need
to fully comply with this procedure / Not guilty automatic plea if accused refuses to plead / Judge can
adjourn trial to give accused more time/even if plea bargain judge can refuse Butterwaorth
s. 625.1: pre-trial conference/s. 653 jury must be unanimous
s. 14 Charter includes right to have defence in either official language/R.v.Tran s. 14 includes right to
interpreter court is to adopt” generous and open-minded” approach to s 14./R.v.Haskin deaf needs interpreter
O’Connor: Bishop accused of SA in res schools, what must Crown disclose? Majority: Records in
Crown/police possession must be disclosed unless “clearly irrelevant”, without regard for privacy,
confidentiality / Records in 3rd party hands (rape crisis center), accused can ignore s7 and apply for
subpoena to TJ can decide if “likely relevant” and balance interests of full defence v. privacy
Dissent: Use higher standards of “likely relevant” to release to judge and “significant probative value” to
release to defence / Better protect privacy of victims / Don’t raise issues of credibility of victim
LLA: Court can override disclosure of privileged documents, and woman can contest up to SCC
Jaffe (USSC): Psychiatrists and social workers have absolute right to refuse disclosure to any court
Osolin: Victim raped, naked, pubic hair shaved, dumped on highway, and therapist reports had self-blaming
statements (“was it my fault?”)—court deemed relevant for defence of mistaken consent
Carosella: Rape crisis center shreds files if police get involved so don’t have to disclose / Court grants stay
on proceeding because they would have granted disclosure / Accused didn’t need to prove that shredding
actually prejudiced his case / Stay still available because irreparable damage to integrity of justice system to
charge him, and rape center is government funded so Charter applies. Minority: Duty of disclosure is owed
by the state, not private third parties that just get funding / Refusal to disclose would need to result in an
unfair, not just an imperfect trial
s.278.1: Records = reasonable expectation of privacy (not police records made for investigation)
dissent from O’Connor written into legislation s.278 applies only to SA cases/ Much more privacy for SA
victims / Only exception is record created by police for investigation / Privacy procedure applies to other
Crown records / Apply for production / Hearing in camera / Judge order production for review / Review by
judge / Judge order for production to accused / Judge record reasons (upheld in R. v. Mills)
s.717: Diversion out of criminal procedure to alternative measures (circle sentencing) / If accused fully
complies, other charges must be dropped / If doesn’t fully comply, at discretion of court / Accused must
plead guilty / Must be voluntary / Balance interests of victim, society, accused / Sufficient evidence to
prosecute / Statements in alternative measures cannot later be used in court
Hebbert: s.7 CCRF guarantees right to silence; Crown or judge cannot comment or draw inference
Morgentaler: Bad for lawyer to tell jury they can ignore the law / Juries do not explain themselves
Latimer: After conviction it was found that Crown helped RCMP put together jury against euthanasia, so
retrial ordered because of “flagrant disregard for justice”
s.629: Crown or accused can challenge entire jury (array) on grounds that sheriff was partial, fraudulent, or
showed willful misconduct when putting the jury together
s.638: Crown or accused can challenge specific juror for cause based on personal traits (unlimited)
s.634: Crown and accused have equal numbers of pre-emptor challenges that vary with charge
Biddle: Crown used all pre-empts and challenges to get all female jury for SA charge / Gonthier said jury
could be perceived to be biased / McL and LHD said often have all male juries
Parks: Court allowed for first time to challenge jurors by asking about racial impartiality
Koh: Court took judicial notice of racism in Ontario communities, so can challenge without proving
evidentiary basis of racism in community
Williams: Allowed to challenge without establishing evidentiary link of bias to his own trial
Find: No judicial notice of bias against men for SA crimes because of widespread nature of crime
Prelim inquiry: Purpose to determine whether or not there is any evidence upon which a reasonable jury
properly instructed could return a verdict of guilty (America v. Sheppard, Patterson)/To prepare for trial, D sees
C case and will acquire transcripts of evidence)/To plea bargaining
Rarely to preserve evidence in the event that a witness is unable to attend due to death or illness (s. 715)
s. 553 offence has NO right to a preliminary Inquiry /s. 469 offence MUST have a preliminary inquiry/ s, 536
offence have the OPTION of choosing a preliminary inquiry as part of trial process (request for one is s. 536(4))
and provides a statement that identifies the issues on which the defence wants evidence to be given at the prelim
and the witnesses the defence wishes to hear (s. 536.3)
S7 Charter: includes right to silence(Hebert).
Oakes-Sec. 1 Analysis: rights not absolute, Gvt can “save” Leg by showing on BoP that law “demonstrably
justifiable in a free and democratic society”. 2 part test: (1) obj must be pressing /substantial in free &
democratic society; (2) Proportionality: means chosen reasonable & demonstrably justified (a) Measures
adopted must be carefully designed to achieve obj. Must not be arbitrary, unfair or based on irrational
considerations, must be rationally connected to the obj (b) So, even if rationally connected to obj, should
impair "as little as possible" right or freedom in q (c) Must be proportionality b/w effects & obj which has been
id’d as of "sufficient importance" (i.e. R.v.Whyte- justified in drunk driving cases not require C to prove intention/
Downey v. R - “pimping presumption” shifted evid. burden w mandatory concl. guilt offended 11(d) but saved, as
sufficient obj. & “cruel & pervasive evil”; note: dissent on rational connection & casting net too wide)
R.V.OAKES=few vile of hash oil/money/say for own use/charged w/possession for purpose of trafficking s. 8
Narc Control Act= Presumption trafficking unless D established on BoP no intention traffic= Unconstitutional!
Failed rational connection: small qty does not infer trafficking.
SPACE FOR PRE-WRITTEN ESSAY!