Table of Contents
INTRODUCTION: LIMITS OF THE CRIMINAL LAW
6
RBHS, “VAGUENESS, OVERBREADTH, AND CERTAINTY IN THE CRIMINAL LAW” (26-37)
R. V. HEYWOOD [1994]
CANADIAN FOUNDATION FOR CHILDREN, YOUTH AND THE LAW V. CANADA (AG) [2004] (SPANKING
CASE)
BEDFORD V. CANADA, [2013] (PROSTITUTION CASE)
REFERENCE RE: SECTION 293 OF THE CRIMINAL CODE [2011] BCSC (THE POLYGAMY CASE)
R V MALMO-LEVINE; R V CAINE, [2003]
R V LABAYE [2005] (CRIMINAL INDECENCY BAWDY HOUSE CASE)
RBHS, “CODIFICATION: THE CRIMINAL LAW AS STATUTE,” (16-26)
AMATO V. THE QUEEN, [1982]
COMMON LAW OFFENCES
FREY V. FEDORUK, [1950] (PEEPING TOM CASE)
R V JOBIDON, [1991] (BAR FIGHT CASE)
CONSTRUCTION OR INTERPRETATION OF THE CRIMINAL CODE
UNITED NURSES OF ALBERTA V A.G. ALBERTA [1992]
R V PARÉ [1987]
6
6
7
7
8
8
10
10
11
11
11
12
12
12
13
COMPETING ACCOUNTS OF THE OBJECTIVES, PURPOSES, AND PLACES OF CRIMINAL
LAW
14
RBHS, “LIMITS OF THE CRIMINAL LAW” (45-57)
SIR PATRICK DEVLIN, “THE ENFORCEMENT OF MORALS”
H.L.A. HART, “IMMORALITY AND TREASON”
14
14
15
PROOF (INCLUDING PRESUMPTION OF INNOCENCE)
16
BURDEN OF PROOF
RBHS (279-297)
WOOLMINGTON V D.P.P., [1935] HOUSE OF LORDS
R V OAKES, [1986] SCC
R V KEEGSTRA, [1990]
R V DOWNEY, [1992]
R V LIFCHUS, [1997]
R V STARR, [2000]
16
16
16
16
17
18
18
19
ACTUS REUS
20
RBHS, (301-331)
CONTEMPORANEITY
FAGAN V COMMISSIONER OF METROPOLITAN POLICE [1969]
R V MILLER [1982]
R V COOPER, [1993] SCC
R V WILLIAMS [2003] SCC
VOLUNTARINESS
R V LARSONNEUR, [1933]
KILBRIDE V LAKE [1962]
20
20
20
20
21
22
22
22
22
1
R V KING, [1962] SCC
R V RUZIC, [2001] SCC
ACTION, OMISSIONS, AND STATUS
R V BROWNE [1997] ONCA
R V THORNTON, [1991] ONCA
R V MABIOR, [2012] SCC
RBHS (331-375)
CIRCUMSTANCES
CONSEQUENCES & CAUSATION
R V WINNING [1973]
SMITHERS V THE QUEEN, [1978] SCC
R V CRIBBIN, [1994] ONCA
INTERVENING CAUSES
PAGETT V THE QUEEN, [1983]
R V S.R.(J.), [2008] ONCA
R V BLAUE, [1975]
R V REID & STRATTON, [2003] NSCA
R V HARBOTTLE, [1993] SCC
R V NETTE, [2001] SCC
R V MAYBIN, [2012] SCC
23
23
23
24
24
25
26
26
27
27
27
28
29
29
29
30
30
31
32
32
MENS REA
33
RBHS, (419-449)
SUBJECTIVE STATES OF FAULT
R V TENNANT AND NACCARATO, [1975] ONCA
R V LEWIS, [1979] SCC
R V STEANE, [1947] UKCA
R V HIBBERT, [1995] SCC
R V ADH, [2013] SCC
R V BUZZANGA AND DUROCHER, [1979] ONCA
R V THEROUX, [1993] SCC
R V SANSREGRET, [1985] SCC
R V BRISCOE, [2010] SCC
OBJECTIVE FAULT
R V TUTTON & TUTTON, [1989] SCC
R V GINGRICH AND MCLEAN, [1991]
R V HUNDAL, [1993] SCC
R V CREIGHTON, [1993] SCC
R V BEATTY, [2008] SCC
R V ROY, [2012] SCC
33
34
34
34
35
35
36
37
38
38
39
39
40
40
41
41
41
42
ABSOLUTE AND STRICT LIABILITY
43
BEAVER V THE QUEEN, [1957] SCC
R V PIERCE FISHERIES, [1971] SCC
R V WHOLESALE TRAVEL GROUP, [1991] SCC
R V CITY OF SAULT STE MARIE, [1978] SCC
REFERENCE RE SECTION 94(2) OF THE BC MOTOR VEHICLE ACT, [1985] SCC
R V 1260448 ONTARIO; R V TRANSPORT ROBERT (ONCA)
43
43
43
44
45
45
2
HOMICIDE
45
MANSLAUGHTER
SECOND DEGREE MURDER
R V SIMPSON, [1981] ONCA
R V COOPER, [1993] SCC
CC 229(B): TRANSFERRED INTENT
R V FONTAINE, [2002] MBCA
CC 229(C): UNLAWFUL OBJECT
R V JSR, [2008] ONCA
VAILLANCOURT V THE QUEEN, [1987] SCC (NEEDS TO BE REDONE)
R V MARTINEAU, [1990] SCC
FIRST DEGREE MURDER
CC 231(2): PLANNED AND DELIBERATE
R V MORE, [1963] SCC
R V WIDDIFIELD, [1961] ONSC
CC 229(A)(II): RECKLESS KILLING
R V NYGAARD, [1989] SCC
CC 231(4): MURDER OF POLICE OFFICER, ETC.
R V COLLINS, [1989] ONCA
CC 231(5): “WHILE COMMITTING…”
R V PARÉ, [1987] SCC (REPEAT FROM SECTION: “CONSTRUCTION/INTERPRETATIONS OF THE CC”)
R V RUSSELL, [2001] SCC
CC 231(5): CONSTITUTIONAL CONSIDERATIONS
R V ARKELL, [1990] SCC
R V LUXTON, [1990] SCC
45
45
46
46
47
47
47
47
48
48
49
49
49
49
50
50
50
50
51
51
52
52
52
53
SEXUAL ASSAULT
53
R V CHASE, [1987] SCC
54
R V V. (K.B.), [1993] SCC
54
CONSENT: HONEST MISTAKEN BELIEF
55
PAPPAJOHN V THE QUEEN, [1980] SCC
55
CC 265(4): ACCUSED’S BELIEF AS TO CONSENT, MISTAKE OF FACT
55
OSOLIN V THE QUEEN, [1993] SCC
55
WILLFUL BLINDNESS
56
SANSREGRET V THE QUEEN, [1985] SCC
56
R V SEABOYER, [1991] SCC (NEEDS TO BE REDONE)
57
CC 273.2(B): REASONABLE STEPS TO ASCERTAIN CONSENT
57
R V DARRACH, [1998] ONCA
57
CHRISINE BOYLE AND MARILYN MACCRIMMON, “THE CONSTITUTIONALITY OF BILL C-49: ANALYZING
SEXUAL ASSAULT AS IF EQUALITY REALLY MATTERED” (1999)
58
R V CORNEJO, [2003] ONCA
58
R V EWANCHUK, [1999] SCC
58
R V MABIOR, [2012] SCC
60
R V J.A., [2011] SCC
60
HUTCHINSON DECISION (HOLES IN CONDOM CASE)
60
DEFENCES: PROVOCATION
60
RBHS, 737-760
61
3
GRANT, CHUNN, AND BOYLE, “THE LAW OF HOMICIDE”
61
BERGER, “EMOTIONS AND THE VEIL OF VOLUNTARISM: THE LOSS OF JUDGMENT IN CANADIAN CRIMINAL
DEFENCES”
61
HORDER, “PROVOCATION AND RESPONSIBILITY”
62
TAYLOR V THE KIND [1947] SCC
62
WRIGHT V THE QUEEN, [1969] SCC
62
INTERPRETING AND APPLYING THE PROVISIONS
62
R V HILL
63
R V THIBERT
63
R V TRAN
65
‘CULTURE’ AND PROVOCATION
66
RBHS, 766-776
66
R V NAHAR
66
R V HUMAID
66
R V MAYURAN, [2012] SCC
67
DEFENCES: MENTAL DISORDER
68
RBHS, 777-811
UNFITNESS TO STAND TRIAL
R V WHITTLE, [1994] SCC
WHO CAN RAISE THE MENTAL DISORDER ISSUE?
R V SWAIN, [1991] SCC
BURDEN OF PROOF
R V CHAULK AND MORRISSETTE, [1990] SCC
CONSEQUENCES OF MENTAL DISORDER AS A DEFENCE
WINKO V BRITISH COLUMBIA (FORENSIC PSYCHIATRIC INSTITUTE), [1999]
MENTAL DISORDER AS A DEFENCE: (A) MENTAL DISORDER OR DISEASE OF THE MIND
R V SIMPSON, [1977] ONCA
COOPER V THE QUEEN, [1980] SCC
(B) APPRECIATING THE NATURE AND QUALITY OF THE ACT
R V ABBEY, [1982] SCC
KNOWING THE ACT IS WRONG
R V CHAULK AND MORRISSETTE, [1990] SCC (REPEAT)
R V OOMMEN, [1994] SCC
R V BOUCHARD-LEBRUN [2011]
68
68
68
69
69
69
69
70
70
71
71
71
72
72
72
72
73
73
DEFENCES: INTOXICATION
74
RBHS, 839-878
THE COMMON LAW DEFENCE OF INTOXICATION
DPP V BEARD, [1920] UKHL
CAPACITY OR INTENT?
R V DALEY, [2007] SCC
INTOXICATION AND SPECIFIC INTENT
R V GEORGE, [1960] SCC
BERNARD V THE QUEEN, [1988] SCC
EXTREME INTOXICATION AND GENERAL INTENT
R V DAVIAULT, [1994] SCC
SELF-INDUCED INTOXICATION: CC 33.1
R V CHAULK, [2007] NSCA
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75
75
75
75
76
76
76
77
77
78
78
4
DEFENCES: NECESSITY
78
NECESSITY AND ABORTION
MORGENTALER V THE QUEEN, [1976] SCC
R V MORGENTALER, [1985] ONCA
NECESSITY AS AN EXCUSE OR JUSTIFICATION?
PERKA V THE QUEEN, [1984] SCC
R V RUZIC, [2001] SCC
LATIMER V THE QUEEN, [2001] SCC
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79
79
79
79
80
80
DEFENCES: DURESS
81
RBHS 903-929
PAQUETTE V THE QUEEN, [1977] SCC
R V MENA, [1987] ONCA
R V HIBBERT, [1995] SCC
R V RUZIC, [2001] SCC
R V RYAN, [2013] SCC
SHAFFER, “COERCED INTO CRIME: BATTERED WOMEN AND THE DEFENCE OF DURESS”
81
81
82
82
82
83
84
DEFENCES: SELF-DEFENCE
84
RBHS 931-975
R V BOGUE, [1976] ONCA
R V PAWLIUK, [2001] BCCA
REILLY V THE QUEEN, [1984] SCC
R V FAID, [1983] SCC
R V CINOUS, [2002] SCC
R V LAVALLEE, [1990] SCC
R V PÉTEL, [1994] SCC
R V MALOTT, [1998] SCC
NOTE ON 2012 CC AMENDMENTS: KENT ROACH (IMPORTANT)
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5
Introduction: Limits of the Criminal Law
RBHS, “Vagueness, Overbreadth, and Certainty in the Criminal Law” (26-37)
Nullum crimen sine lege, nulla poena sine lege
 “There must be no crime or punishment except in accordance with fixed, predetermined
law”
Equally, crimes cannot be created/punished on a retroactive basis; basis of ss.11 (g) and (i) of the
Charter
Also, Criminal Law must be certain
R. v. Nova Scotia Pharmaceutical Society [1992] SCC:
 SCC affirmed existence of vagueness doctrine under Charter s.7;
 Fair notice to the citizen
o Fair notice may not have been given when enactments are in general terms, in a way
that does not readily permit citizens to be aware of their substance, when they do
not relate to any element of the substratum of values held by society
 Limitation of law enforcement discretion
o A law must not be so devoid of precision in its content that a conviction will
automatically flow from the decision to prosecute
In most cases, like in Nova Scotia Pharmaceutical, challenges on vagueness have failed
Vagrancy: CC 179(b)
R. v. Heywood [1994]
Facts:
Case involved the breach of s.179(1)(b) of the CC which holds offence for a person with past history
of sexual violence to be “found loitering in or near a school ground, playground, public park…” etc. He
was found loitering in or near playground.
Issue:
Is the principle over vague?
Reasoning: (SCC Cory J)
A law may be unambiguous and not vague, but still be overly broad
o However, both are the result of a lack of precision by the legislature
Vagueness: means are not clearly defined
Overbreadth: means are too sweeping in relation to the objective
o Looks at the means chosen by the state in relation to its purpose
o Are those means necessary to achieve the State objective?
o Overbreadth results in some applications of the law that are arbitrary or disproportionate
s.179(1)(b) is overly broad, violates Charter s.7 (right to liberty)
o Too broad in terms of geographical scope, duration (life; no chance for review),
number of persons it covers, etc.
o The new Criminal Code at another section has limitations, etc. included, therefore it is clear
that the provision’s broadness is not necessary to achieve the State objectives
Dissenting: (Gonthier)
Restrictions are directly related to preventing reoffending
Ignorance of the law is not an excuse for breaking the law (CC s.19)
o Formal notice of s.179(1)(b) shouldn’t be necessary or relied upon as Cory J. has
Holding:
Overbroad; conviction overturned.
Correction of a child by force: CC 43
6
Canadian Foundation for Children, Youth and the Law v. Canada (AG) [2004] (spanking
case)
Facts:
Concerns a challenge to CC s.43 which allows use of force “by way of correction toward a pupil or
child…if the force doesn’t exceed what is reasonable under the circumstances”
Reasoning: (SCC McLachlin CJ)
o Challenge fails; provision is sufficiently precise; has limited area of application = only
exempts non-consensual application of force that results neither in harm nor in the prospect
of bodily harm and is corrective (mildest form of assault)
o Limited by “reasonability”
o S.43 will protect a teacher who uses reasonable, corrective force to restrain or remove a
child in appropriate circumstances
o Is not meant to apply to corporal punishment of children under 2 or
teenagers, cannot hit head, cannot use implements, must have corrective
purpose, cannot cause injury
Dissenting: (Arbour J.)
McLachlin’s analysis of restrictive interpretation of a statutory defence is inconsistent with the role
of the courts vis a vis criminal defences, statutory, and common law defences
o It limits the defence which is Parliament’s job not that of the courts
o Reading it down in this way creates new common law offences contrary to CC s.9
o This does not limit the courts’ role in assessing the constitutional validity of offenses, but this
doctrine cannot be extended to restrict the application of defenses (creates common law
offense by correlation)
Defence under s.43 violates the constitutional rights of children to safety and security; must be struck
down completely
Vagueness
o Corporal punishment “when the force used is reasonable under the circumstances” does not
give adequate notice to parents/teachers as to what is and is not permissible
o It is notable how much clarification is necessary in McLachlin’s ruling (age, area that can be
struck, implements prohibited, corrective nature, cannot cause injury, etc.)
Would amount to judicial rewriting of the legislation
“Reasonable under the circumstances” in s.43 violates children’s security of the person, and that
deprivation is not in accordance with the relevant principle of fundamental justice, in that it is
unconstitutionally vague
Holding:
The law is not vague.
Prostitution: CC 210, 212, 213
Bedford v. Canada, [2013] (prostitution case)
Facts:
B. are current or former prostitutes bringing action declaring CC ss.210 (bawdy house), 212(1)(j)
(living off the avails…) and 213(1)(c) (communicating in public for the purposes…) for breaching
Charter s.7. They argue that the restrictions put the safety/lives of prostitutes at risk, preventing
them from hiring security guards or screening potential clients.
Issue:
Do the provisions of the CC breach s.7 rights to liberty and security of the person?
Reasoning: (McLachlin CJ for unanimous court)
The 3 provisions infringe s.7 by depriving them of security of the person in a manner that is not in
accordance with the principles of fundamental justice
o Prostitution Reference [1990] dealt with vagueness, while this challenge deals with
arbitrariness, overbreadth, and gross disproportionality; stare decisis doesn’t come into play
Causal standard is “sufficient causal connection”
7
The prohibitions all heighten the risk that B. face in prostitution; they impose dangerous
conditions
o Causation is established
1. S.210 (bawdy houses):
o The negative impact of the provisions is grossly disproportionate to their objectives
2. S.212(1)(j) (living on the avails)
o The law includes some conduct that bears no relation to its purpose of preventing
exploitation of prostitutes, and is overbroad
3. S.213(1)(c) (communicating prohibition)
o The negative impact of the provision, preventing prostitutes from screening clients, is
grossly disproportionate to the purpose, preventing nuisance
* The gov may still impose limits on where/how prostitution can be conducted as long as it is done in
a way that does not infringe the constitutional rights of prostitutes
Holding:
All three provision violate B.’s Charter s.7 rights and are declared invalid.
o
Polygamy: CC 293
Reference re: Section 293 of the Criminal Code [2011] BCSC (the polygamy case)
Reasoning: (Bauman CJ)
Based on a strong basis for a reasoned apprehension of harm to many in society inherent in the
practice of polygamy, the criminal prohibition of polygamy stands
 Women in P-relationships at elevated risk of physical/psychological harm
 Children in P-relationships face higher infant mortality; tend to suffer more
emotional/behavioural/physical problems
 Early marriages to older men results in negative health implications; limited socio-economic
development
 Internalization by children of harmful gender stereotypes
 Negative impacts on society: impoverishment, large family sizes, etc.
Great many of its individual harms aren’t specific to any religion, culture, or region; they can be
generalized and expected to occur wherever polygamy exists
Possession: Controlled Drugs and Substances Act (CDSA) 4(1)
Trafficking: CDSA 5(1)
R v Malmo-Levine; R v Caine, [2003]
Facts:
Argument asking whether Parliament has ability to criminalize simple possession of marijuana and, if
so, whether it violates the Charter. C. challenges the criminality of simple possession, while M.
challenges the criminality of possession for purposes of trafficking.
Issue:
Does the criminalization of possession of marijuana violate the Charter?
Reasoning: (SCC Gonthier and Binnie JJ)
Appellants argue that a criminal sentence is a disproportionate penalty for the small harm caused by
marijuana
Advancing the protections of notable groups that are vulnerable to the affects of the drug is a
policy decision within the legislative scope of Parliament
 Prison sentence for simple possession is uncommon, and would be disproportionate if used,
reversible upon appeal;
 Mere fact of ‘availability’ of imprisonment in a statute dealing with a variety of prohibited
drugs doesn’t make the criminalization of possession of marijuana contrary to the principles
of fundamental justice
Relative harm/good of decriminalizing marijuana is not a judicial decision but a legislative
one
8
Is the prohibition on possession a valid use of the federal criminal law power?
For a law to be classified as criminal, has to possess three prerequisites:
 1. A valid criminal law purpose
o The criminal law purpose extends to laws designed to promote public peace, safety,
order, health, or other legitimate purposes
 2. Backed by a prohibition
o RJR-MacDonald Inc. v. Canada (AG) [1995]: held that some legitimate public purpose
must underlie the prohibition
 3. And a penalty
* Conclusion: the criminalization of marijuana and its possession is valid for the protection of
vulnerable groups
Does Parliament’s use of the power violate the Charter’s guarantees of rights and freedoms?
M. and C.’s liberty interests under Charter s.7 are engaged due to the chance of imprisonment
J.S. Mill’s Harm Principle:
 Rejects conduct that only harms the actor
 Rejects ‘morally harmful’ conduct
 Use of criminal law requires clear and tangible harm to the rights/interests of others
* Also includes exception for vulnerable groups
Was a general philosophical principle, not a legal one; even if it were a legal principle, it still wouldn’t
meet the requirements to get M. and C. off
 No consensus that harm principle is vital to our societal notion of Criminal Justice;
o There are a number of Criminal conducts that target social welfare and that are valid
without tangible harm to another individual
 Distinction between harm to self and harm to others isn’t one of controlling
importance
o Ex. laws about seat-belts, motorcycle helmets, etc.
 The harm principle isn’t a manageable standard against which to measure deprivation
of life, liberty, or security of the person under Charter s.7
Argument that non-criminalization of other harmful products like alcohol and tobacco makes the law
Arbitrary
 The choice to use the criminal law in a particular context does not require its use in any
other
Dissenting: (Arbour J. in Cain)
Appeal boils down to one fundamental question:
 Does the Charter require that harm to others/society be an essential element of an offence
punishable by imprisonment?
 Is harm a necessary component of the actus reus of any offence punishable by
imprisonment?
A person who “has not really done anything wrong” is person whose conduct caused little or
no reasoned risk of harm or whose harmful conduct was not his or her fault
 Therefore, Charter s.7 requires not only that some minimal mental element be an essential
element of any offence punishable by imprisonment, but also that the prohibited act be
harmful or pose a risk of harm to others
 Part of the debate between legal moralism (criminalization of immoral conduct) and Mill’s
harm principle
 A minimum of harm to others must be present in the offence for a criminal sanction to be in
line with principles of Fundamental Justice
Dissenting: (Lebel)
Harm Principle is not a principle of Fundamental Justice
Criminalization of simple possession is disproportionate to the societal problems at issue, and so
constitute an arbitrary breach of Charter s.7
Dissenting: (Deschamps)
Harm Principle is not a principle of Fundamental Justice for Charter s.7
9
The use of Criminal Law was arbitrary give the limited harm caused by marijuana use, availability of
less severe legislative tools to address the issue, etc.
Holding:
Appeals denied; validity of provisions of Narcotics Control Act upheld; criminality of offenses upheld.
R v Labaye [2005] (criminal indecency bawdy house case)
Facts:
Defendant accused of running a bawdy house within which acts of indecency were committed within
the meaning of he criminal law; swingers group.
Reasoning: (McLachlin)
Two things have to be met for indecent criminal conduct to apply:
1. Conduct by its nature causes harm/presents significant risk of harm to individuals or
society in a way that undermines/threatens to undermine a value reflected in and endorsed
through the Constitution or similar fundamental laws by
a) confronting members of the public with conduct that significantly interferes with
their autonomy and liberty
b) predisposing others to anti-social behavior
c) physically or psychologically harming persons involved in the conduct
2. The harm or risk of harm is of a degree that is incompatible with the proper functioning of
society
The autonomy and liberty of members of the public was not affected by unwanted confrontation with
the sexual conduct in question
- The fact that the club is a commercial establishment does not in itself render the
sexual activities taking place there commercial in nature
The only possible danger to participants on the evidence was the risk of catching a sexually
transmitted disease. However, this must be discounted as a factor because it is conceptually and
causally unrelated to indecency
Bastarache and Lebel dissenting:
The new approach to indecency proposed by the majority is neither desirable nor workable. Not
only does it constitute an unwarranted break with the most important principles of our past
decisions regarding indecency, but it also replaces the community standard of tolerance with a
harm-based test
- Whether or not harm is sustained is merely one of several indicators or contextual
factors that make it possible to gauge the degree of tolerance of the Canadian
community.
- “Do the impugned acts offend the standard of tolerance of the contemporary Canadian
community, having regard to the place and context in which they occurred?”
Holding:
Defendant acquitted.
* NB: Shifting of the court on weight given to the Harm Principle from Malmo-Levine to Labaye and
Bedford
RBHS, “Codification: The Criminal Law As Statute,” (16-26)
Alan Hewett, “The Criminal Law, 1867-1967”
First Codification of criminal law finished in 1878 (Sir James Stephen) was called The Draft Code
 Canada’s version came in 1892 with the Bill Respecting Criminal Law
 Described as “a reduction of the existing law to an orderly written system” (Sir John
Thompson)
 Not until 1953 that common law offences were abolished, thus making the Criminal Code the
all powerful criminal law document
10
However:
Criminal Code s.8(3): Every rule and principle of the common law that renders any circumstance a
justification or excuse for an act or a defence to a charge continues in force and applies in respect of
proceedings for an offence under this Act or any other Act of Parliament except in so far as they are
altered by or are inconsistent with this Act or any other Act of Parliament.
Common Law Defences: CC 8(3)
Amato v. the Queen, [1982]
Issue:
Can entrapment, a common law rule, be used as a defence?
Reasoning: (Estey J.)
If entrapment is to be allowed as a defence, it can only be allowed as through CC s.7(3) (now section
8(3))
 Provision only supports the application of such a defence if it has a continuing prospective
character when properly construed
 The CML is allowed to develop defences that aren’t inconsistent with the provisions of the CC
if the construction adopted was prospective
Impossible to foresee all possible circumstances that could befall a person, therefore equally
impossible to codify all reasonable defences
Other examples of new defenses: duress (R v Paquette), necessity (R v Morgenthaler), and due
diligence (R v City of Sault Ste. Marie)
Holding:
CC s.8(3) is the authority for the courts to adopt defences where it is appropriate acording to the
principles of fundamental justice
Common Law Offences

Even before the codification of the CC the SCC refused to add to the number of CML offenses
Trespassing at night: CC 177
Frey v. Fedoruk, [1950] (peeping Tom case)
Facts:
Frey was caught ‘peeping’ into a woman’s room in Fedoruk’s house. Fr was charged with peeping,
was overturned on the basis that it wasn’t an offence. Fr then brought a civil suit as a plaintiff against
Fe for false imprisonment; Fe argued that he was justified because Fr was committing a criminal
offence.
Issue:
Did Fr’s actions constitute a criminal offence?
Reasoning: (SCC Cartwright J)
The simple fact that the act is likely to provoke violence in retribution is not enough to make it
criminal, especially when it has never been recognized as criminal at any point in the past
 Actions should not be decided criminal based on the judge’s personal view; it must be found
in the code or in precedent
 Allowing a charge would introduce great uncertainty in the criminal law; would allow the
police/judiciary to decide what is/is not criminal
Holding:
Frey was not lawfully detained
NB: Does this represent the protection of the individual from the risk of oppression being given
precedence over the protection of the state from the risk of disorder?
 Parliament quickly followed by enacting CC s.177 “trespassing at night” to fill the gap
11
Re Regina and Gralewicz [1980]: SCC held that the conspiracy section CC s.465
“unlawful purpose means contrary to law, that is prohibited by federal or provincial legislation” (so
has to be in a Code)
 CC s.465(1)(d): every one who conspires with any one to commit an offence punishable on
summary conviction is guilty of an offence punishable on summary conviction.
Assault: CC 265
R v Jobidon, [1991] (bar fight case)
Facts:
J. accused of manslaughter by assault. Fought vic first in bar, then in parking lot. Vic was bigger, with
boxing experience; won the bar fight, then got knocked out, put in a coma in the parking lot fight,
eventually died. J. acquitted at trial of manslaughter on basis that victim had consented to the fight
(wording of CC s.265(1)(a) says assault has to be non-consensual). Crown successfully appealed. J.
appeals to SCC.
Issue:
Can one consent to an unlawful activity (assault)?
Reasoning: (SCC Gonthier J.)
Just because all criminal offences are defined in the Code does not mean that the CML no longer
illuminates/gives content to the principles of criminal responsibility those definitions draw from
 CC s.8(3) allows completely new defences to be created, so it must also allow the courts to
look to pre-existing CML rules to explain the outlines of an existing defence, indicating where
they will not be recognized as legally effective (provided there is not clear language in the CC
to the contrary)
 In this case, the CML serves as a guide to situations which the law will not allow a person to
consent
The limitation here vitiates consent between adults who intentionally apply force causing
hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl
 Stated this way, it won’t affect validity of giving consent for rough sports, as long as the
intentional application of the force is within the customary norms of the rules of the game
Dissenting: (Sopinka)
The absence of consent in the wording of the CC provision is clear and unambiguous, and it is not for
the courts to meddle with
 “Cannot be swept away by a robust application of judge-made policy”
 The effect of the majority’s approach is to create an offence where none previously existed;
violation of CC s.9(a)
Holding:
J. did commit a crime despite having vic’s consent; appeal denied
Construction or Interpretation of the Criminal Code

CC has historically been interpreted in a strict manner; is this still true?
Contempt of court (only permitted CML criminal offence not in the CC)
United Nurses of Alberta v A.G. Alberta [1992]
Facts:
Accused Union was fined 400,000$ for contempt of court by disobeying court directives not to go on
strike.
Issue:
Does the criminal offence of contempt of court violate Charter s.7 because of not being codified, or
because of being vague/arbitrary?
Reasoning: (SCC McLachlin J)
12
Argued by U. that criminal contempt violates Charter s.7 because it isn’t codified and is
vague/arbitrary
 Is mentioned at CC s.9, but both actus reus and mens rea are defined at CML
Absence of codification does not mean that a law violates the principle of offences having to be
codified
 Definition of elements of codified crimes often requires recourse to CML concepts (R v
Jobidon)
The crime of Contempt of Court predates codification and is expressly preserved by CC s.9
 * Lack of codification in itself doesn’t render the CML crime of criminal contempt of court
unconstitutional
 U. decided to defy the court openly and with full knowledge that it’s defiance would be
publicized and did not care that it brought the court into disrepute
They knew the punishment, and criminal contempt was not vague/arbitrary; a person can easily
predict whether his conduct will constitute a crime
Holding:
The fine for contempt of court stands.
Homicide: CC 222
Murder: CC 229
Murder 1st Degree: CC 231(2)-(6.2)
Murder 2nd Degree: CC 231(7)
R v Paré [1987]
Facts:
P. indecently assaulted and murdered a 7 year old boy, CC s.231(5)(b) holds that if a murder occurs
“while committing” an indecent assault it is 1st degree. P. admitted to indecently assaulting the boy
and then killing him afterwards.
Issue:
Did P. murder the child while the indecent assault was occurring?
Reasoning: (SCC Wilson J.)
At the QCCA:
 L’Heureux Dubé: strict interpretation; while committing must be contrasted with after
committing
 LeBel: did not agree that two acts had to be simultaneous; even if section were to be
construed restrictively, it must not be deprived of all effect; a “close temporal connection”
was required but needn’t be simultaneous
CC s.231(5): While Committing
 By a literal reading of the provision, P. didn’t murder S. while committing the indecent
assault
 This argument not decisive
 Case Law: (both supporting the strict approach in similar scenarios)
o R v Kjeldsen
o R v Sargent
 The other interpretation: (words “while committing” require a close temporal and causative
link but not simultaneity)
o R v Stevens: (Martin JA)
Doctrine of Strict Construction
Requires that the court strictly construe the provisions in favour of the accused if there is ambiguity
in their application
Is the narrow interpretation of “while committing” a reasonable one given the scheme/purpose of
the legislation? = NO

Very difficult to define the beginning/end of indecent assault
 Leads to distinctions that are arbitrary and irrational
 Look to the purpose of the legislation; general context
13
* Where the act causing death and the acts constitution the rape, attempted rape, indecent
assault or an attempt to commit indecent assault, all form part of oune continuous sequence
of ecents forming a single transaction the death was caused “while committing” an offence for
the purposes of s.231(5).
Holding:
The conviction of first degree murder is reinstated.
NB: R v Prevost [1988]
 P. kills on duty police officer during lunch break. CC 231(4)(a): irrespective of whether
murder planned/not, murder is first-degree when victim is a police officer “acting in the
course of his duties”
 ONCA applied Paré held that the officer was acting in the course of his duties
The Interpretation Act applies to all federal laws
 S.12: every enactment…shall be given…liberal construction and interpretation as best
ensures the attainment of its objects.
Can this be reconciled with the strict construction doctrine?
 Driedger’s modern approach, “words of an Act are to be read in their entire context and in
their grammatical and ordinary sense”, is the adopted approach, but the Interpretation Act
buttresses it
 Where there is “genuine ambiguity” the entire context of a provision must be taken into
account to determine its true interpretation
Competing Accounts of the Objectives, Purposes, and Places of
Criminal Law
RBHS, “Limits of the Criminal Law” (45-57)
What limits should be placed on the permissible scope of the criminal law?
 Respond only to harm?
 Enforce values/morals of a community?
Debating the Harm Principle
John Stuart Mill, “On Liberty”
 Power ought to be used as sparingly as possible
 “The sole end for which mankind are warranted, individually or collectively, in interfering
with the liberty of action of any of their number is self-protection… to prevent harm to
others. His own good, either physical or moral, is not a sufficient warrant.”
 This developed ‘The Harm Principle”
Wolfenden Report
 Report on the criminalization of prostitution and homosexuality
 Advised that homosexuality be decriminalized
Sir Patrick Devlin, “The Enforcement of Morals”
Does the legislature pick which sexual offences will be considered criminal haphazardly?
 Homosexuality between men is criminal but not between women for example
 Are there principles that can be used to determine what part of moral law should be
embodied in criminal?
What connection between crime and sin?
14
 Devlin thinks there is a fundamental connection between the two
Some crimes cannot be explained simply through physical harm, but through moral offence against
society
 There are standards of behavior/moral principles the breach of which is an offence not
merely against the person injured, but against society as a whole
If criminal law eliminated everything not designed to protect order, decency, and citizens, it would
end a number of specific crimes (ex. euthanasia, suicide, abortion, incest, etc.)
What makes a society is community of ideas
 Politics and morals that the individuals with that society share
 If the bonds of common thought are relaxed too much, society unravels; not things left up to
individuals to decide
For something to be criminal, it must be “beyond the limits of tolerance” that society has set in its
community of ideas
 A society’s morals are those standards of conduct which the reasonable man approves;
society cannot live without them
H.L.A. Hart, “Immorality and Treason”
Devin basis his argument for the criminal enforcement of morality completely on ‘feeling’
 What are the relevant feelings that may justify the use of the criminal law?
 A feeling of ‘reprobation’ which is, according to Devlin, the real force behind moral law
 Based on this, Devlin would raise morality and cut down individual liberty
For “Sir Patrick” there can be no ‘theoretical limits’ to legislation against immorality just as there are
no such limits to the power of the state to legislate against treason
Society and Moral Opinion
It is obvious that a consensus of moral opinion on some issues is necessary (ex. murder, theft, etc.)
 However, from this it does not follow that everything to do with morals is of equal
importance to society
 Nor will society fall to pieces if one moral issue goes unenforced by criminal law
We must ask a few questions first
 Is the practice harmful, independent of its repercussions on the general moral code?
 What about the moral repercussions? Will the failure to enforce this item of general morality
with criminal law result in the disintegration of morality and society?
Devlin’s analogy equating homosexual acts with treason is preposterous
 While there could never be a sphere of private treason, there could, based on all concepts of
logic and reason, be a sphere of private morality and immorality
In England they used to burn old women at the stake because they deeply thought witchcraft was
intolerable
In 1969, Canadian Parliament passed legislation making buggery/gross indecency no longer apply to
acts committed in private between two consenting persons over 21yrs of age
Pierre Trudeau: the state has no place in the bedrooms of the nation
1988, offence of anal intercourse restricted to gay men under 18
 Struck down by the court in R v M.(C.) [1995] and R v Roy [1998] for unjustifiably
discriminating against gay men under 18
R v Jobidon: Gonthier uses moral argument to establish vitiated consent when serious bodily harm is
a possibility
R v Brown [1993] HOL; R v Welch [1995] ONCA: discuss S&M; both courts held that consent could
not be a defence to a charge of sexual assault causing bodily harm
What limits on the Court’s presence in the bedroom?
15
Proof (including presumption of innocence)
Burden of Proof
RBHS (279-297)
Crown must prove “beyond a reasonable doubt” all the necessary elements of the offence; one of
strongest safeguards in the criminal justice system
Homicide: CC 222
Murder: CC 229
Murder 1st Degree: CC 231(2)-(6.2)
Murder 2nd Degree: CC 231(7)
Woolmington v D.P.P., [1935] House of Lords
Facts:
W. convicted of willful murder of his wife; nobody saw W. in the house, but neighbor saw W. go into
the house with a gun, heard shot, and saw him leave. W. says the gun slipped and that he was
threatening suicide, not murder. He was sentenced to death. Appealed on grounds that judge had
misdirected the jury by telling them that he was presumed to be guilty of murder unless he could
satisfy the jury that his wife’s death was due to accident. Dismissed on Appeal, now at HoL.
Issue:
Does the accused have to prove his innocence in some cases?
Reasoning: (Lord Sankey)
The statement of law as it was:
 “In every charge of murder, the fact of killing being first proved, all the circumstances of
accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they
arise out of the evidence produced against him; for the law presumes the fact to have been
founded in malice, until the contrary appears.”
While the prosecution must prove the guilt of the prisoner, there is no such burden on the prisoner to
prove his innocence; it is sufficient for him to raise a doubt as to his guilt
 If at the end of the trial there is reasonable doubt as to whether the prisoner committed the
murder with malicious intent, the prisoner is entitled to an acquittal
 The principle that the prosecution must prove the guilt of the prisoner is part of the common
law of England and no attempt to whittle it down can be entertained
In murder the Crown must prove:
1. Death as a result of a voluntary act of the accused and
2. Malice of the accused (expressly or by implication)
a. May be implied where death occurs as the result of a voluntary act which is (i)
intentional, (ii) unprovoked
Defence: accused can show that it was unintentional or provoked
Holding:
Appeal allowed, conviction quashed.
R v Oakes, [1986] SCC
Facts:
s.8 of the Narcotic Control Act provides that if the court finds the accused in possession of a narcotic,
he is presumed to be in possession for the purpose of trafficking. Unless the accused can establish the
contrary, he must be convicted of trafficking.
Issue:
Does this provision violate Charter s.11(d)? Is it a reasonable limitation on the Charter right?
16
Reasoning: (Dickson CJ)
Charter s.11(d) presumes innocence until proven guilty
s.8 contains a revers onus imposing a legal burden on an accused to prove on a balance of
probabilities that he was not in possession of a narcotic for the purpose of trafficking
 Once possession is proven, a mandatory presumption of law arises against the accused that
they had the intention to traffic
 The accused will then be found guilty of trafficking unless they can rebut the presumption
This violates the presumption of innocence at s.11(d)
A basic fact through the “rational connection test” may prove a presumed fact, but not prove its
existence beyond a reasonable doubt; an accused could then be convicted despite the presence of a
reasonable doubt
 The rational connection test is for Charter s.1, not here
s.8 is therefore in radical inconsistency with the values of human dignity and liberty which Canadian
society espouses
Is it a reasonable limit under Charter s.1?
Respect for s.11(d) is an inherent part of maintaining a “free and democratic society”
Rights can be limited in some scenarios
Party seeking to uphold the limitation must prove that a limit on a right or freedom guaranteed by
the Charter is reasonable and demonstrably justified in a free and democratic society
* Oakes Test
1. Pressing and Substantial: The objective which the limit is designed to serve must be of
sufficient importance to warrant overriding a constitutionally protected right or freedom
(pressing and substantial in concern)
2. Proportionate: If sufficiently significant, must show that the means chosen are reasonable
and demonstrably justified (a kind of proportionality test).
a. Rational connection: measures should be designed specifically to achieve the
objective in question
b. Minimal impairment
c. Proportionality between effects of measures and objective identified (the more
deleterious the effects, the more important the objective must be).
With respect to Oakes, court concluded that:
 Objective of protecting society from ills associated with drug trafficking was of sufficient
importance to warrant limiting Charter right.
 However, the means chosen to implement the objective (reverse onus) failed the rational
connection step of the proportionality test. No rational connection between possession of
small quantity of drugs and intent to traffic.
Holding:
No. Though the objective is of sufficient importance to warrant limiting a Charter right, the means
chosen to implement it (reverse onus) fails the rational connection stage of the proportionality test.
Public Incitement of Hatred: CC 319(1)
Wilful promotion of hatred: CC 319(2)
R v Keegstra, [1990]
Facts:
Involves hate speech spread about jews. K. argued that s.319(3)(a)- no person can be charged with
willful promotion of hatred if they establish that the statements communicated were true- violates
Charter s.11(d).
Issue:
Is it a Charter violation? Is it a reasonable limit?
Reasoning: (Dickson CJ)
Majority of the court ruled that it did infringe Charter s.11(d), but that it was a reasonable limit on
the presumption of innocence
17
The presumption of innocence is infringed whenever the accused is liable to be convicted despite the
existence of a reasonable doubt as to guilt in the mind of the trier of fact
 He can be convicted, even though there is reasonable doubt as to whether the statements
were true or not
 The willful promotion of hatred is hostile to parliament’s aims, so placing a burden on the
accused is rationally connected
 Having the accused prove the truthfulness is an understandable precaution against too easily
justifying the harm of hate speech, and is minimally impairing of the presumption of
innocence
Dissenting: (McLachlin)
Difficult to see a rational connection between aims of 319(3)(a) and requirement that accused prove
his truth
Minimal impairment also questionable
Proportionality also skewed; difficult to see the benefits arising from s.319(2)
 319(3)(a) is not saved by Charter s.1
Holding:
The limitation on Charter s.11(d) is reasonably justified.
R v Downey, [1992]
Cory J (SCC):
1. The presumption of innocence is infringed whenever accused is liable to be convicted
despite existence of reasonable doubt.
2. If by provisions of statutory presumption an accused is required to establish on a balance of
probabilities either an element of an offence or an excuse, then it contravenes s.11(d).
Provision would permit conviction in spite of a reasonable doubt.
3. Even if a rational connection existed between fact established and fact to be presumed, is
insufficient to make valid a presumption requiring the accused to disprove an element of the
offence.
4. The statutory presumption will be valid if the proof of the substituted fact leads inexorably
to the proof of the other. However the statutory presumption will infringe s.11(d) if it
requires the trier of fact to convict in spite of a reasonable doubt.
5. A permissive assumption from which a trier of fact may draw an inference of guilt will not
infringe s.11(d)
6. A provision intended to provide a minor role of possible defence may nonetheless
contravene the Charter if the provision must be established by the accused (see Keegstra)
7. Statutory presumptions that infringe s.11(d) may still be justified pursuant to Charter s.1
R v Lifchus, [1997]
Facts:
Trial judge told jury to use the phrase “reasonable doubt” in its “ordinary, natural every day sense.”
Issue:
Did the judge instruct the jury in error?
Reasoning: (SCC Cory J)
Definition of ‘reasonable doubt’ SHOULD explain:
 Connection with principle of presumption of innocence
 Burden of proof with prosecution
 Not based on sympathy/prejudice
 Based on reason and common sense
 Logically connected to the evidence
 Does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it
imaginary or frivolous doubt
 More is required than proof that the accused is probably guilty
18
Certain references to the required standard of proof should be avoided:
 Describing ‘reasonable doubt’ as an ordinary expression
 Inviting jurors to apply the same standard of proof they would use for important decisions in
their own lives
 Equating proof ‘beyond a reasonable doubt’ to proof ‘to a moral certainty’
 Qualifying the word ‘doubt’ with adjectives other than ‘reasonable’ such as ‘serious’, or
‘substantial’
 Instructing jurors that they may convict if they are ‘sure’ before explaining ‘beyond a
reasonable doubt’
Any charge consistent with the principles set out here and that misses the pitfalls mentioned will
suffice regardless of the specific words chosen.
(he then goes over a ‘model’ charge)
Holding:
Trial judge gave charge in error.
R v Starr, [2000]
Facts:
Trial judge told jury that “reasonable doubt” had no special connotations and did not require proof of
an absolute certainty (5-4 split decision)
Issue:
Did the judge charge the jury in error?
Reasoning: (SCC Iacobucci)
Instruction fails to explain that the beyond a reasonable doubt standard has special legal significance
and requires a significantly higher quantum of proof than the balance of probabilities
 Does not satisfy the Lifchus standard
 The judge did follow some of the other principles set out in Lifchus, but failed to impress the
importance of the reasonable doubt principle
Something less than absolute certainty, but more than probable guilt
 Lies much closer to absolute certainty than to balance of probabilities
 Fact that judge repeated reasonable doubt doesn’t cure the fact that he failed to define it
Dissenting: (L’Heureux Dubé)
Lifchus provides guidelines, not an iron-clad roster
In this case, despite not repeating the exact phrase that Cory J set out in Lifchus, the judge conveyed
to the jury effectively a proper understanding of the beyond a reasonable doubt concept
 Taken together as a whole, the direction given by the judge was sufficient to clear up any
misapprehension the jury may have had
Lifchus should be viewed as a broad template which the trial judge here complied with for the large
majority
Holding:
Appeal allowed; new trial ordered.
* But can the dissent support this as truth beyond a reasonable doubt?
* Elements of the offence must be proved beyond a reasonable doubt, and the absence of any
relevant defence
* Not every fact relevant to those defences must be proved
 Ex. Proving someone’s identity: you can base this on the person’s presence at the scene of
the crime = this factor doesn’t need to be beyond a reasonable doubt; as long as you
establish that he was there
 All the facts TOGETHER have to prove beyond a reasonable doubt that the person was
there
19
Actus Reus
RBHS, (301-331)
Conduct or Actus Reus
Besides having to be defined at law, and not be overbroad, vague, also requires ‘prohibited conduct’
(actus reus)
There can be no criminal liability unless a guilty mind expresses itself in the performance of
prohibited conduct
 Culpable mind: mens rea
Actus reus requires a:
1. Physically voluntary
2. Act or omission
3. Sometimes in prescribed circumstances
4. Sometimes causing certain consequences
Finding of guilt requires Crown to prove each point beyond a reasonable doubt
Principle of ‘Contemporaneity’ or ‘Coincidence’ examines relationship between actus reus and mens
rea
Contemporaneity
Offence cannot be proved unless actus reus and mens rea coincide
Fagan v Commissioner of Metropolitan Police [1969]
Facts

F drove onto a police officer’s foot, the car turned off, and F was slow to back off the foot, even
after police officer yelled at him
Issue
Is F guilty of assault?
Holding
Yes.
Reasons (James J)

Assault: act which intentionally or recklessly causes another person to apprehend immediate
personal violence.
 Distinction is between complete acts, where results to continue to flow, and continuing acts
 Mens rea can be imposed on an existing actus reus; it need not be present at the start, as
long as it becomes present before the action is finished
o However, subsequent inception of mens rea cannot convert an act which has been
completed without mens rea into assault
 Keeping the car on the officer’s foot continued the act of the car rolling onto the foot, so
the MR was superimposed on the AR when F didn’t back off right away.
Alternate Argument: Omission based on a duty to act; where you create the risk in the first place,
you have a duty to act to correct it
Dissenting: (Bridge J.)
The appellant’s only fault was that he omitted to move the car quickly enough
 An omission cannot constitute an assault
 The appeal should be allowed
Ratio
MR can be superimposed on continuing AR, as long as it has not been completed.
R v Miller [1982]
Facts
20


M was a squatter who fell asleep on a mattress
He dropped his cigarette into the mattress, and when he realized it was on fire, moved into
another room and fell asleep again
 He was charged with arson
Issue
Was M’s omission to do something about his unintentional dropping of a cigarette enough to ground
liability?
Holding
Yes.
Reasons (Lord Diplock)
 Court of Appeal
o Unintentional act followed by an intentional omission to rectify that act or its
consequences
o Whether the offender adopts what he has done earlier by what he deliberately or recklessly
fails to do later is an important consideration
o His failure with knowledge to extinguish the incipient fire had in it a substantial element of
adoption on his part of what he had unintentionally done earlier: set the fire
 Omission to counteract a danger the accused created attaches liability if there is the
requisite MR
o When a person becomes aware of a danger he created that presents an obvious risk, he has
a duty to fix it
Ratio
Duty to rectify a risky situation unintentionally created. Omission to do so will bring liability.
R v Cooper, [1993] SCC
Facts

C strangled a woman, but was not conscious at the point the strangulation caused death, only at
the start of it
Issue
Is C guilty despite not having intent at the time of death?
Holding
Yes.
Reasons (SCC Cory J.)

Once the accused had formed the intent to cause the deceased bodily harm, which he knew was
likely to cause her death, he need not be aware of what he was doing at the moment she actually
died.
 At some point the AR and MR must coincide
 Series of facts may form part of the same transaction
 Grabbing the neck there was necessary coincidence of wrongful act of strangulation and
intent to do bodily harm that C knew was likely to cause death
Dissenting: (Lamer J)
Intention to cause bodily harm by no means leads inexorably to the conclusion that the accused knew
that the bodily harm was likely to cause death
 It is this aspect that is essential to a finding of guilt of murder under CC s.212(a)(ii)
 There is “a point in time” when the wrongful conduct becomes likely to cause death; at that
moment the accused must have conscious awareness of likelihood of death, and it didn’t
exist here
Ratio
AR and MR must coincide at some point during the transaction; need not be at the precise moment of
death.
* Courts are willing to construe the act relatively broadly to coincide with a guilty mind
 See Fagan, Miller, Cooper, Paré
21
Assault: CC 265(3)(c)
Aggravated Assault: CC 268(1)
R v Williams [2003] SCC
Facts

W practiced unprotected sex with the victim for a year with HIV, and gave the victim HIC
Reasons
 Failure to disclose information that changes the nature and quality of the act vitiates
consent
o However, there was reasonable doubt as to whether, at the time he was aware of his HIV
positive status, he was endangering the victim’s life
You can’t prove beyond a reasonable doubt that after finding out, she didn’t have HIV already
from the time BEFORE he knew; to show that it endangered her life for aggravated sexual
assault, wouild have to prove beyond a reasonable doubt that she contracted HIV after he
found out about his condition, which was impossible
 Before the test, there was endangerment but no intent, after, there was intent but a reasonable
doubt as to the existence of endangerment
Ratio
Confirms Cooper, though the facts don't support guilt in this case.
Voluntariness
The prohibited conduct must he the product of the will of the accused; cannot be result of
involuntary action (Larsonneur)
 The voluntariness of a person’s conduct will be established if that conduct is the
product of conscious choice
Mental element of Actus Reus: it must be voluntary before court will consider the Mens Rea
(Kilbride)
 Required by Charter s.7 (Ruzic)
R v Larsonneur, [1933]
Facts

L was deported to Ireland and forbidden back in the UK
 Ireland deported L back to the UK
 On arrival in the UK at the hands of the Irish, L was convicted of being in the UK illegally
Holding
Conviction upheld
Ratio
Wrongly decided because it ignores voluntariness component of AR.
* Voluntariness of the Actus Reus is distinct from and must be established before considering the
Mens Rea
Kilbride v Lake [1962]
Facts

L parked his car and went into the store
 While he was there, someone stole the registration sticker off his car
 He was convicted of having a car without a registration sticker?
Issue
22
Is L liable of driving without a registration sticker?
Holding
No.
Reasons (Woodhouse J)

Lack of MR is no defence to absolute liability offences (strict liability)
 BUT: Accused must be shown responsible for the physical ingredient of the crime
o Until AR is established, no reason to discuss MR
o Liability for acts or omissions “in circumstances where there was some other course open
to him”
 AR must be voluntary
Ratio
AR must be voluntary before MR can be considered.
R v King, [1962] SCC
Facts:
K. charged with DUI after being injected with drug at dentist’s. He was warned not to drive by nurse,
drove anyway and lost consciousness at the wheel ran into parked vehicle. K. said he didn’t
remember the warning. His physical and mental state was consistent with after-effects of the drug:
state of amnesia followed by period of feeling fine, then sudden loss of consciousness.
Issue:
Was there sufficient voluntariness?
Reasoning: (SCC Taschereau J)
For Actus Reus there must be a willpower to do an act whether the accused knew or not that it was
prohibited by law
Ratio:
Re-enforcing the concept of free will and meaningful choice
Holding:
No. Crown’s appeal dismissed, conviction quashed.
* Physical voluntariness approached in R v Ruzic
R v Ruzic, [2001] SCC
Reasons (Lebel J)

Absence of volition with regards to the AR always brings complete and unqualified acquittal
 Would violate Charter s 7 otherwise (“life, liberty, security of the person”)
 Critical importance of autonomy in attribution of criminal liability
 Fundamental principal of criminal law: offenders are “rational, autonomous, choosing agents”
Ratio
Voluntariness is required by s 7.
Action, Omissions, and Status
Contemporaneity/physical voluntariness apply irrespective of the offence charged
In some circumstances, omissions or failures to act may also be punishable under criminal law
 Status offences: purport to punish absent an act or omission
 Are rare very problematic
Action
Is the norm for criminal offences; some prohibited ACTION
Most complications are definitional
 Ex. ‘break’ CC s.321, ‘communicating’ s.319(7), ‘operate’ s.214, sell ss.183, 462.1, ‘transfer’
s.84’
23
If there is no specific definition in the CC, look to CML to find judicial interpretation
Omissions
 Law is reluctant to punish omissions  sweeping liability
 No duty to intervene, prevent, or offer assistance unless the legislature says so
 Only liability for omission where there is a duty (Browne), parents (ss 215-16)
o Statutory duty – ex helping police CC s.129 (Nixon, below in Aiding and Abetting)
o Under s 180 (common nuisance): Common law duty, Criminal Negligence CC s.219–
Donoghue duty (Thornton)
o Under criminal negligence: undertaking – clear and binding intent (Browne)
Based on failure to perform a LEGAL DUTY
 Canadian law does not recognize common law offences (s 9) so no duty unless prescribed
by statute
Criminal Negligence causing death: CC 220
Criminal Negligence: CC 219
Duty of persons undertaking acts: CC 217
R v Browne [1997] ONCA
Facts

B is charged with criminal negligence causing death when he did not bring AG to the hospital
after he said he would and knew she was having a severe reaction to drugs. Charged with
Criminal negligence causing death for failure to do something that was his duty to do: CC 217, CC
219, CC 220
Issue
Did B’s words constitute an undertaking fixing him with a duty to do it?
Holding
No. Appeal allowed. Acquittal entered.
Reasons (Abella JA)
* If you undertake a duty the omission to do which could be dangerous to life (CC 217) you could be
found criminally negligent (CC 219) and imprisoned for life if it results in death (CC 220)

s 217: everyone who “undertakes to do an act is under a legal duty to do it if an omission to do
the act is or may be dangerous to life”
 Duty does not flow from relationship, as in s 215 (spouses, parents, etc)  duty flows from
undertaking
o Threshold must be high to justify serious consequences
 Civil standard: must be a commitment generally, though not necessarily, on which reasonable
reliance can be placed
 Criminal standard: undertaking must be “clearly made, and with binding intent”
 There was no undertaking
Ratio
Only liability for omissions where there is a duty.
Undertakings giving rise to a duty under s 217 must be clear and with binding intent.
* No legal duty, so the court is unwilling to impose the obvious moral duty that existed
* What about QC Charter s.2: good Samaritan provision? Does this impose a general moral duty?
Common Nuisance: CC 180
R v Thornton, [1991] ONCA
Facts

T had HIV, and lied on a questionnaire so he could give blood, knowing his condition.
Issue
Did T have, and fail to discharge, a legal duty not to endanger public safety?
24
Holding
Yes. Yes.
Reasons (Galligan JA)

s 180: common nuisance, 180(2) where by unlawful act or failure to discharge legal duty
endangers the public.
o “unlawful act” must be specifically proscribed by legislation
o “legal duty” can arise at common law
 Heaven v Pender (1883): “a duty lies upon him not to do that which may cause a person injury
to another”
 Donoghue: “the rule that you are to love your neighbour becomes in law, you must not injure
your neighbour”
* Legal duty requires everyone to “refrain from conduct which it is reasonably foreseeable
could cause serious harm to other persons”
o When the gravity of a potential harm is great, the public is endangered even when the risk
of harm actually occurring is slight
Ratio
Liability for breach of a legal duty can be founded on breach of a common law duty.
Everyone has a duty to “refrain from conduct which it is reasonably foreseeable could cause serious
harm to other persons”
Appeal to the SCC was dismissed by Lamer J for unanimous court with brief reasons explaining the
obvious common nuisance
* Compare to R v Williams another HIV case with the opposite holding
 How to come to terms with the acquittal in Williams vs the conviction in Thornton?
Criminal liability for non-compliance with legal duties should, generally, be restricted to statutory
duties enacted by Parliament
Assault: CC 265
Sexual Assault: CC 271
Aggravated Sexual Assault: CC 273(1)
R v Mabior, [2012] SCC
Facts:
M. charged with 9 counts of aggravated assault based on failure to disclose HIV-positive status to 9
complainants before having sex with them: CC ss.265(3)(c) and 273. None of the 9 contracted HIV.
JH:
Trial: convicted on 6 counts, acquitted on other 3 on basis that sex with condom when viral loads are
undetectable doesn’t place partner at ‘significant risk or serious bodily harm’ as required by Cuerrier
Appeal: convicted on 2 counts, acquitted on other 4 on basis that low viral loads or condom use could
negate significant risk
Issue:
What is necessary for M.’s omission to constitute a crime with regards to the 4 contended
convictions?
Reasoning: (McLachlin CJ)
In Cuerrier, SCC established that failure to disclose HIV may constitute fraud vitiating consent under
CC s.265(3)(c)
 HIV poses risk of serious bodily harm, so constitutes aggravated sexual assault CC s.273
To obtain conviction under these two provisions, Crown must show beyond a reasonable doubt:
1. A dishonest act (falsehood or failure to disclose HIV)
2. Deprivation (denying the victim knowledge which would have caused him/her to refuse sex
that exposed him/her to significant risk or serious bodily harm)
* Failure to disclose may amount to fraud where the complainant would not have consented
25
had he/she known the accused was HIV-positive and where sexual contact posed a significant
risk of or causes actual serious bodily harm
 The Cuerrier requirement of ‘significant risk of serious bodily harm’ should be read as
requiring disclosure of HIV status if there is a realistic possibility of HIV transmission
 If there is no realistic possibility of transmission, failure to disclose will not constitute fraud
vitiating consent to sex at CC s.265(3)(c)
Application:
Realistic possibility of transmission of HIV is negated if
a) The accused’s viral load at the time of sex was low AND;
b) Condom protection was used
4 complainants consented to sex with M, wouldn’t have if they had known about HIV-positive status
 In only 1 case did he wear condom and have low viral load; this conviction is reversed
 The other 3 are maintained as he had a low viral load, but didn’t wear a condom
Holding:
Appeal allowed in part; 3 convictions maintained. Appeal dismissed in part; 1 conviction reversed
* Mabior confirms the Cuerrier decision
* Thornton was supposed to be an anomaly of CML duties
 Do Cuerrier and Mabior show the creation of a CML duty?
o It refers to a duty relating to an omission that isn’t included in the CC
 While it is similar to other types of interpretation based on provisions of the CC, it goes
further with the interpretation of Fraud CC 268(3)(c)
RBHS (331-375)
Status Offences
‘Pure’ status offences are hard to find in Canadian criminal law
 Imposes liability for who the defendant is, not what he did
o Law is reluctant to do so
 Examples
o Possession offences: bawdy house etc (201, 210)
o Living off the avails of prostitution (212)
o Being nude in a public place (174)
 Strong case status offences offend the Charter (s 7)(CB 332)
 Parliament prefers to criminalize “participation in activities” of bad organizations, rather than
just being a member
 Ex. CC 83.18: Participation in activity of terrorist group
 Ex. CC 467.11: Participation in activities of a criminal organization
Circumstances


Common for legislature to include specific circumstances among the elements of an offence
Crown must prove circumstances for the conviction
o Ex being drunk for impaired driving  driving only becomes a crime when the
circumstance of drunkenness is added
o In Assault, have to prove that it wasn’t consented to
o Statutory definitions of statuses: CB 333-37
Excision: CC 268(3)
 Criminalization of cultural genital mutilation?
26
Consequences & Causation


Some offences are defined by the fact they cause certain consequences  dangerous driving
causing death
Requirements
o The prohibited consequence occurred
o The accused’s action caused the prohibited consequences
 Is it the factual cause? (can a logical link be drawn between the accused’s
conduct and the prohibited consequence?)
 Is the factual cause sufficient to qualify as the legal cause?
R v Winning [1973]
Facts
 W applied for credit with Eaton’s and made at least 2 false statement on the application
 Eaton’s did not rely on the application for anything but name and address, which were true on
W’s application
 Eaton’s relied on its own investigation to determine whether or not to give credit
Issue
Is W guilty of obtaining credit on false pretences?
Holding
No
Reasons (Gale CJO)

The credit was not given in reliance of the false statements, so it therefore was not obtained on
the false pretences
Ratio
Where a crime requires a result, the result must be caused by the actus reus for liability; in this case,
Eaton’s would have had to have given W. credit as a result of her false statements, which it didn’t.
There are no general provisions governing the test for legal causation
 Causation problems often come up in homicide cases
 There are often specific causation provisions where the prohibited result is death
* In most other cases, have to rely on the CML
Manslaughter: CC 234
Culpable homicide (murder) reduced to manslaughter; Provocation defence: CC 232
Smithers v The Queen, [1978] SCC
Facts

S got in a fight with C after a hockey game
 There was some question of provocation, etc
 S kicked C in the stomach when C was down
 Within 5 minutes C stopped breathing
 Cause of death was determined to be aspiration of vomit
Issue
Did S cause C’s death?
Holding
Yes. Guilty of manslaughter.
Reasons (Dickson J)

Defence of provocation only available for murder
 S submits trial judge minimized issue of causation in jury instructions
o Manslaughter only requires assault and person dying
 Causation is factual, has nothing to do with intention, foresight or risk
o Crown has the burden to prove causation beyond a reasonable doubt
27
There is evidence the kick was at least a cause of death outside the de minimis range
 that is all the Crown is required to establish
 * It is no defence to manslaughter that death was not anticipated or death would not ordinarily
result from the act
It’s up to the jury not the judge to decide if prosecution has met the correct standard; whether
the experts had convinced them
 If there were no evidence on which a reasonable jury could come to the conclusion, then the
court would step in; however in this case the jury had grounds for its finding
 Must take the assault victim as you find him  R v Blaue liability for a man convicted of
manslaughter where his victim would have lived had she not refused a blood transfusion on
religious grounds
o Thin skull rule applies in criminal law
Ratio
Causation must be more than de minimis. Liability for everything more.
o
Smithers Test (manslaughter)
 Crown must show beyond a reasonable doubt that the accused’s act was “at least a contributing
cause outside the de minimis range”
 For manslaughter, the faulty act must have been reasonably foreseeable to cause bodily harm
that is not trivial (from Creighton)
 Endorsed by majority in Nette for all forms of homicide, but can be rephrased when instructing
the jury as “significant contributing cause”
1. It’s the jury’s job to decide causation (or the trier of fact if it’s just the judge)
 Causation in fact (but for)
 Causation in law (even if there’s a malfunctioning epiglottis, if the kick was a contributing
cause, it is open to the jury to find the kick as a the cause of death)
2. Standard of causation is “contributing cause beyond de minimis”
3. Thin-skull rule applies in Criminal law as in Civil
 See R v Blaue: Jehovah’s witness stabbing
R v Cribbin, [1994] ONCA
Facts

C severely beat the victim and left him unconscious at the side of the road
 The victim drowned in his own bood
 C challenges Smithers causation for constitutionality
Issue
Is the de minimis causation too remote to attach criminal liability?
Holding
No.
Reasons (Arbour JA)

C claims the Smithers test is so low as to infringe upon s 7 (contrary to fundamental justice)
 Fault element of manslaughter requires objective foreseeability of bodily harm “which is
neither trivial nor transitory, in the context of a dangerous act, such that the most trivial assault,
not dangerous in itself and not likely to cause injury would not give rise to a conviction for
manslaughter if it did somehow cause death (R v Creighton)
o The Smithers test must be read in conjunction with this Fault factor
 C’s argument
o Causation involves moral judgment as to blameworthiness; fundamental justice requires
that the rule triggering criminal responsibility be commensurate with the moral
blameworthiness of the conduct that it prohibits  de minimis is too remote to attach
criminal liability, and infringes Charter s.7
o Definition is too vague
 Vagueness can be dismissed  standard of precision is to “provide guidance to legal debate”, this
28
does
Actus reus is the same for manslaughter and murder  difference is the degree of fault:
subjective foresight for murder, objective foreseeability of serious bodily harm for
manslaughter
Creighton: Unlawful act manslaughter requires objective foreseeability of bodily harm which is
neither trivial nor transitory arising from a dangerous act
 Causation is a principle of fundamental justice like mens rea  morally innocent shouldn’t be
punished
 Fault element articulated in Creighton removes any danger that de minimis is so broad as
to punish the morally innocent
* “If a person commits an unlawful dangerous act, in circumstances where a reasonable
person would have foreseen the risk of bodily harm which is neither trivial nor transitory,
and the unlawful act is at least a contributing cause of the victim’s death, outside the de
minimis range, then the person is guilty of manslaughter”
 Causation and fault element must be proven by Crown beyond a reasonable doubt
Ratio
Smithers test accords with fundamental justice.
* “If a person commits an unlawful dangerous act, in circumstances where a reasonable person
would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful
act is at least a contributing cause of the victim’s death, outside the de minimis range, then the person
is guilty of manslaughter”

* Smithers test requires only that the accused’s conduct be a non-trivial contributing cause;
recognizes that there can be multiple causes of a prescribed consequence
Intervening Causes
Pagett v the Queen, [1983]
Facts
 P shot at police officers
 Used a woman as a human shield
 Cops killed the woman shooting back at P
Issue
Did P cause the woman’s death?
Holding
Yes.
Reasons (Lord Goff)

Novus actus interveniens of the victim must be voluntary to break the causal chain – “Free,
deliberate and informed”
 The following don’t count as novus actus interveniens:
o Reasonable act performed for the purpose of self preservation is not a novus actus
o Attempt to escape the consequences of the accused act
o Maybe: act done in the execution of a legal duty
Ratio
Act must be voluntary to break the chain of causation
R v S.R.(J.), [2008] ONCA
Facts

SR and B were in a gun fight on Yonge Street
 B shot at SR and missed him, hit Jane Creba who died
Issue
29
Did SR cause JC’s death?
Holding
Yes.
Reasons

In a car race where a bystander is hit and killed, both drivers are liable for the death – “there is
one danger. Each driver bears equal responsibility for its continued life span subject to
withdrawal or an intervening event” (R v Menzes)
o Caveat: if one party withdraws and the other is aware and doesn’t slow down, no liability
for the withdrawing party
 Each shooter induced the other to engage in a gun fight on a crowded street. “but for” the
decision to engage in a gun fight on a crowded street and the resulting exchange of bullets,
Ms Creba would not have been killed
Ratio
Liability for everyone involved in the faulty event that caused death.
R v Blaue, [1975]
Facts:
B. stabbed young woman with a knife. Taken to hospital where she was told a blood transfusion and
surgery were necessary to save her life. She refused on religious grounds as Jehovah’s Witness and
died.
Issue:
Is the woman’s refusal a novus actus interveniens?
Reasoning: (British CA)
Those who use violence on other people must take their victims as they find them
 This means the whole person, not just the physical man
 Not the accused’s place to call a victim’s religious beliefs unreasonable
The question is what caused her death?
 The answer is B.’s knife, and the judge was right to tell the jury so
If there were a civil claim brought by victim’s family, then failure to mitigate dmgs would apply
 However, not appropriate to bring a principle of tortious liability into criminal law
Holding:
Appeal dismissed; conviction for manslaughter upheld.
R v Reid & Stratton, [2003] NSCA
Facts
 Everyone was drunk
 R & S got in a fight with M
 S put M in a sleeper hold and R kicked him
 M went unconscious
 The kids immediately began an attempt at resuscitation
 M was pronounced dead on arrival
 Cause of death was aspiration of stomach contents induced by resuscitation
Issue
Does the resuscitation break the chain of causation?
Holding
Yes.
Reasons (Saunders JA)

Trial judge was not clear enough when instructing jury on intervening events
o The resuscitation broke the chain of causation
 Different from subsequent surgical intervention causing death (usually won’t break the chain) –
rescue attempt was by young bystanders who were drunk
 Sleeper hold likely didn’t kill M; had they left him he would probably have come to
30

Judge should give jury examples of intervening acts (beaten unconscious in building, earthquake
causes building to collapse resulting in death)
 Instructions
o Was the act a significant contributing cause of death
o Were there any intervening causes resulting in the death? Are you satisfied beyond a
reasonable doubt that the actions are so connected to the death that they can be said to
have had a significant causal effect which continued up to the time of death, without having
been interrupted by some other act or event?
Ratio
Judge must be clear on intervening act. Actus reus must continue to have causal effect until death.
* Were the actions by those at the scene to resuscitate M. – which all the doctors say was what caused
his death – in your opinion an intervening event which broke the chain of causation between what R.
and S. are said to have done, and M.’s death, such that the actions of either of them are no longer seen
by you as being a significant contributing cause of his death?
1st Degree Murder (Murder while committing sexual assault): CC 231(5)
R v Harbottle, [1993] SCC
Facts
 H and R forcibly confined EB and brutally sexually assaulted her
 H restrained her while R strangled her
 H charged with first degree murder pursuant to s 214(5) – automatic first degree murder when
committed during sexual assault or forcible confinement
Issue
Did H cause EB’s death?
Holding
Yes.
Reasons (Cory J)

Ample evidence upon which the jury could have found the murder was planned and
premeditated by H and R
o Must determine the meaning of the words “when the death is caused by that person” at CC
s214(5) [now 231(5)]
 Charge was not correct so there must be anew trial
 Wording of the section, “caused”, is broad enough to include both perpetrators and those
who assist in the murder and come within the purview of Substantial Cause Test
o Physically caused test advocated by the CA is too restrictive
 Impossible to distinguish between the two in blameworthiness
 Test takes into account: consequences of a conviction, present wording of the section, aim
to protect society from the most heinous murders
 Accused may be convicted if Crown establishes accused’s act was a “substantial and
integral cause of the death”
 Accused must play a very active role: “essential, substantial and integral part”
o Higher than Smithers
 Accused can be the substantial cause of death without physically causing it
 * Test for causation under 231(5)
1. Accused guilty of underlying crime of domination
2. Accused was guilty of the murder
3. Participated in the murder such that he was the substantial cause of the death of the victim
4. No intervening act
5. Crimes of domination and murder were part of the same transaction
Ratio
Liability for those who did not physically kill but were still a “substantial and integral cause of the
31
death.”
* The standard of causation for CC 231(5) is the Substantial Cause Test
* First degree murder is an aggravated form of murder and not a distinct substantive offence; it is
only to be considered after the jury has concluded that the accused is guilty of murder by causing the
death of the victim
 So Smithers test stays the same in establishing all homicide cases; but once that is proved, it
must be shown that the accused’s conduct for 1st degree murder for CC 231 1st degree
murder is the Substantial Cause Test
* Nette:
 The standard of causation is the same; still using Smithers in homicide analysis; BUT then:
 Added element of requiring that the accused’s participation constituted a substantial
and integral cause to be found responsible for 1st degree murder
Is an extra step after passing the Smithers causation test under homicide
R v Nette, [2001] SCC
Facts
 L was robbed an hog tied
 Some time in the next 2 days before she was found, she fell from her bed to the floor and died
 N was seen robbing the house during the time, charged with first degree murder per 231(5) –
murder while unlawfully confining
Issue
What is the standard of causation for 2nd degree murder?
Holding
Smithers test. Can be reformulated as “substantial cause.”
Reasons (Arbour J)

Standard of causation expresses whether the fault is sufficient to base criminal responsibility
 Civil causation is of limited assistance
 Difference between first and second degree is essentially a sentencing distinction
o “Substantial cause” is particular to the language found in 231(5), as found in
Harbottle – establishes level of increased participation before accused can be
convicted of first degree murder
 Harbottle didn’t raise the standard of causation applicable to all homicide offences from the
standard expressed in Smithers
o Only one standard of causation for manslaughter or murder (all homicide offences)
o Need to distinguish between causation and the words used to explain it
o Smithers test is still applicable to all forms of homicide
 “Not insignificant” can be rephrased as “significant contributing cause”
o Cause must be more than de minimis, “more than a trivial cause”
Dissenting: (L’Heureux-Dubé)
“Significant cause” is a higher standard than “not insignificant cause”
 Smithers test should not be to “significant contributing cause”
 The current formulation as in Smithers of “a contributing cause that is not trivial or
insignificant” is better
Ratio
Confirms Smithers, but says it is possible to rephrase “not insignificant cause” as “significant
contributing cause.”
R v Maybin, [2012] SCC
Facts:
In a bar, T. and M. repeatedly punched victim in the head. T. struck blow that knocked vic
unconscious. Arriving on scene within seconds, bouncer struck victim in the head again. Medical
32
evidence inconclusive which blows caused death. Trial judge acquitted, CA ruled that the accused’s
assaults were factual contributions to the cause of death; “but for” their actions, victim would not
have died. The risk of harm caused by bouncer was reasonably foreseeable to the accused.
Issue:
When does an intervening act absolve the accused of legal responsibility for manslaughter?
Reasoning: (Karakatsanis J.)
Approaches to intervening acts grapple with the issue of moral connection between accused’s acts
and the death
 Intervening act that is reasonably foreseeable to the accused may well not break the chain of
causation, while an independent/intentional act by a third party may in some cases make it
unfair to hold accused responsible
 Depends on context
Causation test remains whether the dangerous/unlawful act or accused was a significant
contributing cause of victim’s death
 An accused who undertakes a dangerous act and contributes to a death should bear
the risk that other foreseeable acts may intervene and contribute to that death
* The time to assess the reasonable foreseeability is at the time of the initial unlawful act, rather than
at the time of the intervening act
 Intervening acts and ensuing non-trivial harm must be reasonably foreseeable in sense that
the acts/harm that occurred flowed from the conduct of the accused; if so, the accused’s
actions may remain a significant contributing cause of death
 Did the act of the accused merely set the scene, allowing other circumstances to
coincidentally intervene, or did the act of the accused trigger or provoke the action of the
intervening party?
If the intervening act is a direct response or is directly linked to the accused’s actions and
does not by its nature overwhelm the original actions, then the accused cannot be said to be
morally innocent of the death
Holding:
It was open to the trial judge to conclude that it was reasonably foreseeable that fight would escalate
and that bouncers would use force to gain control of the situation. Therefore, it was open to trial
judge to conclude that general nature of intervening act and accompanying risk of harm were
reasonably foreseeable and that the act was in direct response to accused’s unlawful actions.
Mens Rea
RBHS, (419-449)
Fault or Mens Rea
There is no single type of fault applicable to crimes in general; therefore important to pay attention
to the wording of the relevant provisions as well as the principles of interpretation that are
appropriate
 Not only important to ID the appropriate level of fault (intent, knowledge, recklessness,
willful blindness, negligence, etc.) but also the relationship of the fault to the actus
reus/prohibited act
This chapter focuses of ‘true’ criminal offences presumed to have a mens rea requirement
33
Legislative Definitions of Fault
No uniform definition of fault requirements that apply to offences
 Left mostly up to the courts to interpret
 Common words in attempts at legislation: Purposely, Knowingly, Recklessly, Negligently, etc.
Subjective States of Fault
Big difference between Fault standards exists between Subjective and Objective Fault
 Common sense inference: “a person usually knows what the predictable consequences of his
actions are, and means to bring them about “ (predictable = certain or substantially certain:
Buzzanga)
o Accused can disprove the presumption on a BOP
Murder: CC 229 subjective foresight of death
Manslaughter: CC 234 objective foresight of bodily harm not trivial or transitory
R v Tennant and Naccarato, [1975] ONCA
Ratio
“Where liability is imposed on a subjective basis, what a reasonable man ought to have anticipated is
merely evidence from which a conclusion may be drawn that the accused anticipated the same
consequences. On the other hand, where the test is objective, what a reasonable man should have
anticipated constitutes the basis of reality”
* The ‘Common Sense Inference’: a sane and sober person can usually be taken to intend the
natural and probable consequences of his actions
Intention and Knowledge
At the core of subjective standards states of liability
 Intent
o AR must be done with intent
o No intent where under subjection of enemy (Steane)
o Purpose = intend (Hibbert)
o Wilfully means intending the consequence, or subjectively foreseeing its certainty and
continuing for another purpose (Buzzanga)
o Recklessness  accused “sees the risk and takes the chance” (Sansregret)
 Knowledge
o MR is based on the facts as the accused knew them (Theroux)
o True belief (Dynar below in Attempt)
 Objective (true) and subjective components (belief)
o Wilful blindness will fix the accused with knowledge (Sansregret, Briscoe)
 Person has become aware of a need for inquiry and does not because he doesn’t
want to know the truth
 Does not define MR, but will substitute for actual knowledge whenever
knowledge is a component of the MR (Briscoe)
R v Lewis, [1979] SCC
Reasons
 1. MR relates to intent – exercise of a free will to use a particular means to produce a particular
result
 2. Motive – that which precedes and induces the exercise of the will
o (a) Evidence of motive is always relevant and admissible
o (b) Motive is no part of the crime and is legally irrelevant to criminal responsibility; not an
34
essential element of the prosecution’s case as a matter of law
There can be intent without motive
o (c) Absence of motive is always an important fact in favour of the accused and worthy of
note in charge to the jury
o (d) Proved presence of motive may be an important fact in Crown’s case as concerns
identity and intention when the evidence is purely circumstantial
o (e) Motive is always a question of fact and evidence
o (d) Each case is unique; motive is always a matter of degree
Ratio
Intent is different than motive. Law is only concerned with intent.

R v Steane, [1947] UKCA
Facts

S was a British subject who was trapped in Germany at the start of WWII
 The Germans tortured him and threatened his family so that he would read the news on German
radio
 S was charged with “doing acts likely to assist the enemy with intent to assist the enemy”
Issue
Did S have the specific intent required?
Holding
No.
Reasons (Lord Goddard CJ)

Where a particular intent is part of a crime, the Crown must prove its existence BARD
 Intention comes before any consideration of duress, because duress is a defence
 “It is impossible to say that where an act was done by a person in subjection to the power of
others, especially if that other be a brutal enemy, an inference that he intended the natural
consequences of his act must be drawn merely from the fact he did it. The guilty intent cannot be
presumed and must be proved.”
o Where the intent is innocent or circumstances show the act was done in subjection to
the power of the enemy, the presumption is unavailable.
Ratio
Specific intent must be proven BARD.
* Based on the purpose of the offence the courts will decide what level of intention/knowledge is
required
 Is it a ‘desire’, ‘knowledge that consequences are likely’, etc.?
Aiding and Abetting: CC 21(1)
R v Hibbert, [1995] SCC
Facts

H was friends with the victim
 X made H call his friend down to the lobby so X could kill the friend, threatening to kill H if he
didn’t
 H stood by while X shot the victim; charged with aiding/abetting attempted murder
Issue
Did duress negate H’s MR for attempted murder?
Holding
No.
Reasons (Lamer CJC)

Duress doesn’t necessarily negate MR, depends on particular mental element in the
circumstances of the case
 Intention: know what you are doing, are aware of the probable consequences
35
“Purpose equals desire” is problematic because some people are indifferent to committing
crimes
 Duress is a defence on its own, usually doesn’t strike at MR
 Purpose is intention, not desire
 If duress can negate MR, accused would be able to point to threats to raise a reasonable doubt
that he had the requisite MR
o Purpose of the provision would be frustrated by saying that it’ll only punish
aiders/abetters if they desired the result
 Duress is an excuse, and can be invoked even if the threats don’t negate MR
 MR for s 21(1)(b) (aiding) cannot be negated by duress
Ratio
Purpose means intent. Duress rarely will negate MR.
o
* This is the most typical interpretation of purpose (as opposed to Steane)
R v ADH, [2013] SCC
Facts:
A. gave birth in a public washroom not knowing that she was pregnant. She thought the baby was
dead upon birth, so left it in the toilet. Child was in fact alive, she was charged with unlawfully
abandoning a child under 10yrs old, thereby endangering his life contrary to CC 218. Trial judge
found actus reus, but could not find the subjective element of the mens rea, and dismissed charges.
CA agreed.
Issue:
What is the necessary mental element necessary for proving mens rea for CC 218?
Reasoning: (Cromwell J.)
Read in its full context, CC 218 requires subjective fault element for mens rea
 There is presumption that parliament intends crimes to have a subjective fault
element absent language to the contrary
 Plays an important role ensuring the scope of Criminal Law does not extend too far
 Conduct and people that fall within CC 218 is broad, and the subjective requirement ensures
that only those with a guilty mind are punished
Words ‘abandon’, ‘expose’, and ‘wilful’, all suggest subjective fault requirement
Text, context, and purpose of CC 218 shows that subjective fault is required; trial judge didn’t
err in acquitting
Concurring in the result: (Moldaver J.)
CC 218 targets abandonment of child under 10 where it is likely to cause risk of death or permanent
injury
 Offence is duty-based and penal negligence is the level of fault required to establish
guilt as regards the proscribed consequences
Parliament intended to guard against conduct that any reasonable person would foresee as likely to
endanger a child’s life
 Common sense suggests Parliament would not provide accused with a host of defences
based on their individual characteristics
 This would defeat the provision’s purpose of imposing a societal minimum standard of
conduct, since crimes of subjective fault require an assessment of personal characteristics to
prove/disprove an element of the offence
Doesn’t make sense to have an objective standard at CC 215 ‘duty to provide necessaries’ (R v
Naglik,[1993] SCC) and a subjective standard at CC 218
CC 218 can be read to apply only to persons who have a duty, whether pre-existing or
situational, to protect a particular child all of whom are properly subject to an objective
standard with respect to the consequences of CC 218
1. Those with pre-existing/ongoing legal duty to the child
2. Those who come to the aid of the child who is or is likely to be at risk of death or permanent
injury
36
3. Those who actually place the child in that situation
Under penal negligence, a mistake of fact both honest and reasonable afford a complete defence;
thus, the objective mens rea doesn’t punish the morally blameless
Holding:
The acquittal was the correct conclusion.
Ratio:
There is a presumption of subjectivity where there is not language to the contrary; the mental
element must be analyzed based on the context, text, purpose of the provision.
* Trauma and shock distinguished as circumstances not personal characteristics
Public Incitement of Hatred: CC 319(1)
Willful promotion of hatred: CC 319(2)
R v Buzzanga and Durocher, [1979] ONCA
Facts

B+D were sympathetic to francophones, but published pamphlets that were offensive to
francophones to combat apathy in a campaign about a French school
 They were charged with wilful promotion of hatred
Issue
Did the trial judge misdirect himself leading to finding wilful promotion of hatred?
Holding
Yes.
Reasons (Martin JA)

Wilfully: primarily means consequence of actions is intentional, but can also mean recklessly
 Recklessness = person foresees his conduct will cause the prohibited result, but nevertheless
takes a deliberate and unjustifiable risk of bringing it about
 Willmott v Atack  on the charge of obstructing a constable, it is not sufficient to prove the
accused intended to do what he did, which resulted in the obstruction; Crown must prove that in
doing it, he intended to obstruct the constable
 Wilfully  intention to bring about the proscribed consequence
o Inclusion of an offence in the Code imports a MR requirement in the absence of clear
legislative intention to the contrary
o Intention includes desire, as well as subjective foresight that the consequence is certain
or substantially certain
* “A person intends a consequence not only when his conscious purpose is to bring it about, but also
where he foresees that the consequence is certain or substantially certain to result from his conduct”
Ratio
Wilfully means intending the consequence, or subjectively foreseeing its certainty and continuing for
another purpose.
* Jury can make the Common sense Inference based on the evidence that if they’re handing out
hateful literature they intended to cause hatred
 Not something you can direct the jury to find
 B. and D. say no, they wanted the opposite reaction
Trial judge’s mistake was simply asking whether the fliers were handed out intentionally or
not; didn’t ask whether the hatred was being promoted intentionally
* Would also be enough if they would have subjectively foreseen that it would result in the
promotion of hatred
Fraud: CC 380(1)
37
R v Theroux, [1993] SCC
Facts
 T was convicted of fraud for accepting deposits from investors in a building project having told
them that he had purchased deposit insurance when he in fact had not
Issue
Did T have the requisite MR for fraud?
Holding
Yes.
Reasons (McLachlin J)

AR has a mental element – voluntariness
 Typically, MR is concerned with the consequences of the prohibited act
o MR = with the facts as the accused believed them to be, did he subjectively appreciate the
consequences or their possibility?
o Subjective awareness of the consequences can often be presumed from the act (common
sense inference)
 Prohibited AR in fraud is deceit, falsehood; prohibited consequence is depriving someone of
what is theirs, or putting it at risk
 MR is subjective awareness of deceit that would lead to deprivation or risk
 Test for fraud
o 1. AR
 Act of deceit or falsehood
 Deprivation caused by the deceit, or placing assets at risk
o 2. MR
 Subjective knowledge of the deceit
 Subjective knowledge of possibility of deprivation or risk
Ratio
MR is based on the facts as the accused believed them, must have subjectively appreciated the AR’s
consequences.
* Mens rea for Fraud: the subjective awareness that one was undertaking a prohibited act (deceit,
falsehood) which could deprive another person of property or put that property at risk
 This includes intentional or deliberate deceit (as opposed to careless) and knowledge of risk
of deprivation of property
R v Sansregret, [1985] SCC
Facts

S beat on his girlfriend and she consented to sex to stop the beatings twice
 S is charged with sexual assault, because he was wilfully blind to the fact that her consent was
vitiated by duress
Issue
Can S be fixed with knowledge of a defect in consent by his wilful blindness of it?
Holding
Yes.
Reasons (McIntyre J)

Recklessness – aware conduct could bring a prohibited consequence, and persists despite the
risk; “sees the risk and takes the chance”
o Wilful blindness is like recklessness; brings presumption of knowledge
 Different than Pappajohn, which held that honesty of belief will support mistake of fact even
where that belief is unreasonable
 Wilful blindness will bring a presumption of knowledge
 Arises where a person has become aware of a need for inquiry and does not because he
doesn’t want to know the truth
 Culpability is justified by deliberately failing to inquire when he knows there is a reason to
38
inquire.
Ratio
Wilful blindness will bring a presumption of knowledge.
Recklessness (Sansregret)
Willful blindness as distinct from recklessness
Recklessness: Conduct of one who sees the risk and takes the chance anyways
 Consciousness of risk and proceeding in the face of it
Willful blindness: a person who has become aware of the need for some inquiry declines to make
the inquiry because he does not wish to know about the risk
 He knows he should make an inquiry into whether a risk exists, and fails to
R v Briscoe, [2010] SCC
Facts

B charged with first degree murder
 Crown contends he drove the murderers to the scene, provided a weapon, held the victim, and
told her to shut up
 Trial judge acquitted because B did not know the crime would occur
Issue
Did the judge err in not considering wilful blindness?
Holding
Yes
Reasons (Charron J)

Wilful blindness will substitute for actual knowledge whenever knowledge is a component of the
MR
 Imputes knowledge to an accused whose suspicion is aroused to the point where he sees
the need for inquiry, but deliberately chooses not to make those inquiries.
 Looks away when he knows looking would fix him with knowledge
 B deliberately chose not to inquire about what the group was doing because he did not
want to know.
Ratio
Wilful blindness imputes knowledge were the accused’s suspicion is aroused but he chooses not to
inquire.
Objective Fault



Negligence is a controversial standard in criminal law.
Criminal negligence (CC 219)
o Objective test
o “marked and significant departure” (Tutton & Tutton)
Penal negligence
o “Marked departure” from the reasonable person standard, contextualized to the case
(Beatty)
o Negligence not rising to the level of criminal negligence (ex 249, 249.4)
o Test (Crown burden BARD) (Beatty)
 1. AR
 Measure conduct against wording of the statute (ex for dangerous driving)
 Not concerned whether it was a marked departure from the reasonable
person standard at this stage
 2. MR
39



Was the accused’s conduct a “marked departure” from the reasonable person
standard in the circumstances
Ought the reasonable person have been aware of the risk and danger in
accused’s conduct?
Manslaughter
o Objective foreseeability of bodily harm which is neither trivial nor transitory (Creighton)
Failure of parent to provide necessaries of life: CC 215
Criminal Negligence: CC 219
Culpable Homicide: CC 222(5)(b) – by criminal negligence
R v Tutton & Tutton, [1989] SCC
Facts

Accused are parents who believe in faith healing and didn’t bring their child to the hospital
 Court split 3-3, 1
Issue
Are T+T guilty of criminal negligence causing death even though they were not subjectively aware of
their negligence?
Holding
Yes.
Reasons (McIntyre J)
 Criminal negligence implies an objective standard, considering the accused’s actions, not
his mental state
o There is no difference between omissions and commissions
o Punishment for mindless action, not state of mind
 Actions that are wanton or reckless are negligent
 Contextual factors play a part
 Test:
o Proof of conduct “which reveals a marked and significant departure from the standard
which could be expected of a reasonably prudent person in the circumstances”
Lamer J (Concurring)
A “generous allowance” must be made for the accused’s particular factors: youth, mental
development, education
Wilson J (dissenting)
Crown must prove subjective awareness of the risk or departure
Objective element will result in conviction of the morally innocent
Ratio
Criminal negligence is marked and significant departure from the objective standard (3 of the judges,
3 said subjective)
R v Gingrich and McLean, [1991]
Facts

G+M were convicted of criminal negligence in operating a motor vehicle when a truck’s breaks
failed and caused a fatal accident. G was the driver and M was the owner.
Issue
Is the standard objective for criminal negligence?
Holding
Yes
Reasons (Finlayson JA)

MR for criminal negligence in operating a motor vehicle is objective
40
Ratio
Objective test for MR in criminal negligence
R v Hundal, [1993] SCC
Facts

H drove a dumptruck through an intersection and hit a car, because he thought he couldn’t stop
in time and would hit another car. He was charged with dangerous driving causing death.
Issue
Is H guilty because he violated the objective standard?
Holding
Yes
Reasons (Cory J)

To insist on a subjective MR for driving offences would deny reality: driving decisions are
automatic and with little conscious thought
 Objective test should be applied in the context of the events surrounding the incident
 Personal factors are taken into account by the licensing requirement
 Objectively BARD, “was the driving dangerous to the public having regard to all the
circumstances including the nature, condition and use of such place and the amount of
traffic at that time is or might reasonably be expected to be on such a place.”
Ratio
MR for driving offences is objective. Still not sure if SCC has endorsed objective standard for criminal
negligence.
Unlawful Act Manslaughter: CC 222(5)(a)
R v Creighton, [1993] SCC
Creighton
La Forest wrote his own reasons to tip the scales
Has trouble with negligence as standard for criminal liability
Issue:
1. What is the objective Mens Rea element in unlawful act manslaughter? (CC 222(5)(a)?
2. Who is the reasonable person? How much subjectivity?
Majority:
 1. Objective foreseeability of bodily harm that is neither trivial nor transitory
 2. Personal characteristics are irrelevant to objective MR
Dissent:
 1. Objective foreseeability of death
 2. Reasonable person should be invested with any human frailties which might have
rendered the accused incapable of foresight
Notes:
Creighton was clear but it was harsh
 Dissent tried to soften it, but majority rejects that
Personal characteristics vs Contextual factors?
 Creighton suggests that circumstances are important, but that personal
characteristics aren’t relevant
* Note: Trauma and shock distinguished in R v ADH as circumstances not personal characteristics
R v Beatty, [2008] SCC
Facts

B suffered a split second lapse in consciousness which caused his car to swerve and kill people
in the oncoming car
41
 There was no other element of negligence
Issue
Is B guilty of dangerous driving causing death for this moment of negligence?
Holding
No.
Reasons (Charron J)

Penal negligence is aimed at punishing blameworthy conduct
 Modified objective test is appropriate for establishing penal negligence
o Marked departure
o Reasonable person in the position of the accused must be aware of the risks arising from
conduct
 Short of incapacity, personal traits are not relevant; but the reasonable person must be in the
context of the accused
 Dangerous driving is concerned with the manner of driving, not the consequence
 Proof of subjective MR helps, but is not essential
 A momentary lapse of attention is not a “marked departure” from the reasonable person
standard.
Ratio
The test for penal negligence is “marked departure” from the reasonable person standard,
contextualized to the case (see R v ADH)
R v Roy, [2012] SCC
Facts:
R. driving back from work with passenger. Visibility limited due to fog, unpaved road they were on
was steep, snow-covered, slippery. R. stopped, proceeded onto highway directly into path of
oncoming tractor-trailer. R.’s passenger killed, R. survived, but lost memory of circumstances and
surrounding events. R. convicted of dangerous driving causing death, and appeal to CA was
dismissed.
Issue:
Do the driver’s actions constitute penal negligence? What impact should context/personal
characteristics have?
Reasoning: (Cromwell J.)
Dangerous driving causing death is a serious criminal offence punishable by up to 14yrs in prison;
consists of two elements
1. Prohibited conduct: operating vehicle in dangerous way causing death
2. Degree of Fault: marked departure from standard of care that reasonable person
would observe in the circumstances (Beatty)
Fault factor is to ensure that only those deserving of the stigma of criminal conviction are punished
How to determine whether the fault is present?
1. In light of all relevant evidence, would reasonable person have foreseen risk and taken steps
to avoid it if possible?
2. Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked
departure from the standard of care expected of a reasonable person in the accused’s
circumstances?
* Distinction between a mere departure (which can ground civil liability) and the marked departure
(necessary for criminal liability) is a matter of degree and must be identified by the trier of fact
 Personal attributes will only be relevant if they go to capacity to appreciate or to avoid the
risk
Application: trial judge erred in simply inferring from the fact that R. committed a dangerous act
while driving that his conduct displayed a marked departure
Holding:
Acquittal given.
42
Absolute and Strict Liability





Law presumes some MR requirement for true crimes
Liability for regulatory or public welfare offences can be based on AR only (absolute), or a
reduced fault requirement (strict)
Regulatory offences are presumed to have a defence of due diligence or reasonable mistake on a
BOP (Sault Ste Marie)
Absolute liability only were expressly stated (Beaver, Sault Ste Marie)
Absolute liability cannot lead to imprisonment (BC Motor Vehicle Reference)
*NB: differentiation between ‘True Crimes’ and ‘Regulatory Offences’
Beaver v The Queen, [1957] SCC
Facts

B was charged with possession and trafficking of heroin
 B did not know it was the drug, but thought it was lactose instead
Issue
Does it matter B didn’t know the drug was illegal (ie he lacked MR)?
Holding
Yes, criminal liability is presumed not to be absolute.
Reasons (Cartwright J)
 There is little similarity between a statute forbidding unsound meat and one making possession
and trafficking crimes
 Absolute liability only where Parliament expressly provides for it
 Conviction for possession quashed
 B still ‘held out the drug’ as heroin to the undercover cop, which counts as the MR for
trafficking, so that conviction is affirmed
Ratio
Absolute liability only where expressly stated in the legislation (NB pre-Charter)
R v Pierce Fisheries, [1971] SCC
Facts

PF was caught with 26 undersized lobsters in its traps, out of 60,000 lbs of lobster
Issue
Is PF liable though it lacked any MR?
Holding
Yes.
Reasons (Ritchie J)
 Regulations are to protect lobster and the public interest
 This regulation did not create a crime, because no stigma
 No analogy between lobster statutes and Beaver
 Language in the statute requires no MR, so it should not be interpreted as such (no words
like “knowingly” etc)
Ratio
Regulatory offences are interpreted as absolute liability (NB pre-Charter)
R v Wholesale Travel Group, [1991] SCC
Facts
Charged with false/misleading advertising contrary to the Competition Act; charges weren’t
43
“wholesale” at all. Charge carried a prison term of 1yr or fine.
Reasons
1. Is criminal liability based on a standard of pure negligence constitutional?
 YES
 Regulations
o The due diligence defence is available
o Enacted to protect the vulnerable
o Acts in the public interest protected under a penalty
o Don’t carry stigma of criminal conviction; just a fine
o No presumption of MR
o Sault Ste Marie created strict liability, which offers the defence of due diligence
o Different concept of fault: directed at the consequence, not the conduct itself
o Based on a reasonable standard of care
o Object is to induce reliance
Subsection (c) and (d) are struck out of the due diligence defence which made it impossible for
reasonable person to take the misleading ads down in time
2. Does the due diligence defence contravene the presumption of innocence by reversing the burden
of Proof?
 NO
 In regulatory context when there is a due diligence defence, it is ok to have the
evidentiary/persuasive burden rest on the accused
Ratio
Regulatory offences need no MR.
It is not an infringement of s.7 to create an offence for which the mental element is negligence
R v City of Sault Ste Marie, [1978] SCC
Issue
Are regulatory offences presumed to be absolute liability?
Holding
No, strict liability (no MR but defence of due diligence)
Reasons (Dickson J)

Criminal offences require MR
 Absolute liability means conviction on proof of AR
 Arguments for absolute liability
o Protection of social interests requires high standard of care
o Administrative efficiency because the Crown doesn’t have to prove MR in every regulatory
offence
o Penalty and stigma are insignificant
 Court rejects that the penalty is insignificant, and the loss to time etc means the innocent should
not be prosecuted
 Due diligence is already admissible in sentencing, so evidence to that effect should be
considered in considering guilt
 Woolmington doesn’t stand in the way of making regulatory offences strict liability
 Law Reform Commission concurs
 Onus should be on the defendant to establish due diligence on a BOP
 Three categories of offences
o MR required – true crimes, regulatory offences including “wilfully, knowingly,” etc
o No MR, but defence of due diligence (strict liability) – regulatory offences presumed to fit
here
o No MR required (absolute liability) – clearly indicated by the legislature
Ratio
Regulatory offences are presumed to be strict liability
44
Reference Re Section 94(2) of the BC Motor Vehicle Act, [1985] SCC
Facts

s 94(2) made driving with a suspended license an absolute liability offence, regardless if the
accused knew the license was suspended
 s 94(2) came with a mandatory minimum 7 day prison sentence
Issue
Does s 94(2) violate s 7 of the Charter?
Holding
Yes.
Reasons (Lamer J)

“absolute liability and imprisonment cannot be combined”
 ss 8 to 14 are key the meaning of PFJ – they are essential elements of a system of justice founded
on human dignity and worth, and the rule of law
 PFJ are the inherent domain of the judiciary as guardian of the justice system
 Absolute liability allows morally innocent to be imprisoned, so offends PFJ
 Imprisonment incudes probation orders
 Regulatory offences can be absolute liability
 s 1 can only save a violation of s 7 in exceptional circumstances (war, natural disasters,
epidemics, etc)
Ratio
Absolute liability cannot lead to imprisonment.
R v 1260448 Ontario; R v Transport Robert (ONCA)
Super high fines for wheel coming off of a truck; does this infringe s.7 security of the person?
NO: psychological stress is a factor of security of the person, but has to reach a very high level; not
enough to trigger s.7
Homicide
Manslaughter






CC 234: culpable homicide that is not murder or infanticide is manslaughter
CC 222 (5) a person commits culpable homicide where he causes the death of a person by:
o (a) unlawful act
o (b) criminal negligence
o (c) suicide caused by threats, fear of violence, deception
o (d) wilfully frightening a child or sick person
Residual charge to murder where subjective MR cannot be proven
Sentence: up to life (236(b))
o No less than 4 years where a firearm is involved (236(1))
AR requirement
o Causing the death of a human
MR requirement under 222(5)(a), unlawful act manslaughter (Creighton)
o MR for underlying unlawful act (cannot be absolute liability)
o Objective foreseeability that the unlawful act gives rise to a risk of bodily harm neither
trivial nor transitory
Second Degree Murder

s 231(7) all murder that is not first degree murder is second degree murder
45



AR requirement
o Causing the death of a human
MR requirement
o Subjective foresight of death  Principle of Fundamental Justice (PFJ) (Vaillancourt,
Martineau)
o Meaning to cause death (229(a)(i))
o Meaning to cause bodily harm that he knows is likely to cause death, and is reckless
(229(a)(2))(Cooper)
o Meaning to kill someone but killing someone else (229(b))
o For an unlawful object does anything he knows or ought to know is likely to cause death
(229(c))
 “Ought to know” read down to save a s 7 violation (R v Martineau)
 Most often used in cases where accused does not intend to harm the victim, but is
engaged in the pursuit of an unlawful object (R v JSR)
 Test (JSR)
 For an unlawful object (kill another gangster)
 The accused did anything (got in a gunfight)
 That he knew was likely to cause the death of a human being
 Caused the victim’s death
o Transferred intent – only within the same crime (Fontaine)
Section 230 (felony murder) is not valid (Vaillancourt)
R v Simpson, [1981] ONCA
Facts

S is charged with 2 counts of attempted murder under 229(a) (intentional or reckless killing)
Reasons (Martin JA)
 Either intent to kill, or recklessness satisfies the MR requirement
 Subjective MR, so accused must subjectively have knowledge the injury is likely to cause death
Ratio
MR for murder is subjective.
R v Cooper, [1993] SCC
Facts

C strangled a woman, but was not conscious at the point the strangulation caused death, only at
the start of it
Issue
Is C guilty despite not having intent at the time of death?
Holding
Yes; convicted of 2nd degree murder
Reasons (SCC Cory J.)

Once the accused had formed the intent to cause the deceased bodily harm, which he knew was
likely to cause her death, he need not be aware of what he was doing at the moment she actually
died.
 At some point the AR and MR must coincide
 Series of facts may form part of the same transaction
 Grabbing the neck there was necessary coincidence of wrongful act of strangulation and
intent to do bodily harm that C knew was likely to cause death
Dissenting: (Lamer J)
Intention to cause bodily harm by no means leads inexorably to the conclusion that the accused knew
that the bodily harm was likely to cause death
 It is this aspect that is essential to a finding of guilt of murder under CC s.212(a)(ii)
 There is “a point in time” when the wrongful conduct becomes likely to cause death; at that
46
moment the accused must have conscious awareness of likelihood of death, and it didn’t
exist here
Ratio
AR and MR must coincide at some point during the transaction; need not be at the precise moment of
death.
* Not enough to foresee the possibility of death, has to be foreseeability of likelihood of death
(that’s what makes it tantamount of meaning to cause death)
CC 229(b): Transferred Intent
R v Fontaine, [2002] MBCA
Facts

F was intent on committing suicide when he drove his car into a parked truck in the oncoming
lane
 He survived, but a passenger in his car was killed
Issue
Is F guilty of murder?
Holding
No.
Reasons (Steel JA)

s 229(b) says the specific intent for murder exists when intending to kill one person, the accused
kills another by mistake
 Parliament removed attempted suicide from the Criminal Code
 Transferred intent only applies within the same crime, because harm follows is the same legal
kind as that intended
 Attempted suicide is not attempted murder
 Strict construction of penal legislation rule mitigates in favour of the accused
 Principles on constitutionality of MR (Creighton)
o Stigma and penalty reflects nature of crime
o Punishment is proportionate to moral blameworthiness
o Intentional harm must bring more severe punishment than unintentional harm
 First degree murder is the harshest sentence and stigma known to the law
 Suicide means the person needs treatment
Ratio
Attempted suicide does not satisfy MR for attempted murder. Transfer of intent only within the
same crime.
* Fontaine can still be charged with manslaughter
CC 229(c): Unlawful Object
R v JSR, [2008] ONCA
Facts
 JSR was one of the shooters in the Young Street Boxing Day shootout that killed Jane Creba.
 JSR did not shoot JC, but still was in the gunfight
Issue
Is JSR guilty of murder under 229(c)?
Holding
Yes.
Reasons
47

Causation is analogous to the car race (R v Menzes)  each shooter consented to engage in a
gunfight, and but for that gunfight JC would not have been killed
 Test for murder under 229(c) (unlawful object)
o For an unlawful object (kill another gangster)
o The accused did anything (got in a gunfight)
o That he knew was likely to cause the death of a human being
o Caused the victim’s death (substantially contributed to JC’s death by engaging in a gunfight,
following causation rules from Menzes)
Ratio
Test for 229(c) liability.
Vaillancourt v The Queen, [1987] SCC (NEEDS TO BE REDONE)
Facts

s 213 (now 230) (felony murder) makes it murder when death is caused in the commission or
attempt to commit a list of crimes, if (d) he uses a weapon or has it upon his person
 V was an accomplice to a robbery, and thought his partner’s gun was unloaded. The partner shot
a client at the pool hall, and has never been found. V is charged with felony murder.
Issue
Is s 230 valid?
Holding
No. It must be severed.
Reasons (Lamer J)

PFJ require proof of a subjective MR
 Must be some special MR before homicide is murder  subjective foresight of death
 It would be possible for a conviction under s 213 despite the jury having a reasonable doubt as to
whether the accused ought to have known that death was likely to ensue
 Fails s 1 at minimal impairment
 A person has to have at least an objective foreseeability of death to be charged with
murder
Ratio
s 230(d) is not valid
R v Martineau, [1990] SCC
Facts

Deceased was deliberately shot by M’s accomplice during a robbery M only thought was going to
be a b&e
 M convicted under s 213 (now 230)
Issue
Is s 213 valid?
Holding
No.
Reasons (Lamer CJC)

Section removes Crown burden to prove subjective foresight of death
 It violates the PFJ that punishment be proportionate to moral blameworthiness
 Stigma and punishment for murder must be reserved for those who have intent
 Section fails Oakes test on minimal impairment
 Flexible sentencing scheme for manslaughter is more appropriate
 “Ought to know” in 229(c) is struck down
L’Heureux-Dubé (dissenting)
Subjective MR is not required by any PFJ, too much concern for stigma, misplaced compassion,
criminals can fuck themselves
Ratio
48
Conviction of murder requires proof of subjective foresight of death (confirmed in R v Sit)
* CC 230 officially completely invalidated
First Degree Murder


Sentence: life with no chance of parole for 25 years
CC 231(2) first degree murder when it is planned and deliberate
o (3) murder for hire is first degree
o (4) first degree when accused knows victim is a law officer on duty
 Accused must subjectively know it’s an on duty cop (Collins)
o (5) first degree when caused in commission or attempt of:
 (a) hijacking an aircraft; (b) sexual assault ((c) sexual assault with a weapon;
(d) aggravated sexual assault); (e) kidnapping and forcible confinement; (f)
hostage taking
 No same victim requirement (Russell)
o (6) during stalking where the accused intended to cause the victim to fear for his or
someone else’s safety
o (6.01) first degree when death caused by terrorist activity
o (6.1) first degree when death caused in commission of offence for the benefit of, at the
direction of, or in association with a criminal organization
o (6.2) intimidation of a “justice system participant” or journalist: CC 423.1)
Planned (Widdifield)
o Calculated scheme or design
o Carefully thought out
o Nature and consequences have been carefully weighed
o May be very simple
o Time involved in developing the plan is important, not the time between the plan and
the act
 Deliberate (Widdifield, More)
o Considered, not impulsive, slow in deciding, cautious
o Took time to weigh advantages and disadvantages
 Reckless killing
o Can be first degree murder when the recklessness is planned and deliberate (Nygaard)
o Planned to inflict bodily harm that the accused knew would likely result in death
(Nygaard)
CC 231(2): Planned and Deliberate
R v More, [1963] SCC
Facts

M was distressed about his financial affairs and planned to kill himself and his wife
 He led psychiatric evidence attempting to raise a reasonable doubt about it being planned and
deliberate
Ratio
Deliberate means “considered, not impulsive”
R v Widdifield, [1961] ONSC
Ratio
 Planned
49
Calculated scheme or design
Carefully thought out
Nature and consequences have been carefully weighed
May be very simple
Time involved in developing the plan is important, not the time between the plan and the
act
 Deliberate
o Considered, not impulsive, slow in deciding, cautious
Took time to weigh advantages and disadvantages
o
o
o
o
o
CC 229(a)(ii): Reckless killing
Combining 231(2) and 229(a)(ii): first degree murder for planned and deliberate reckless
killing
R v Nygaard, [1989] SCC
Facts
 N and his accomplice beat someone up with baseball bats, and he died
 Charged with first degree murder based on recklessness
Reasons (Cory J)

Vital element is intent to cause such bodily harm that the perpetrator knows that it is likely to
cause death and yet persists in the assault
 Planning and deliberate to cause bodily harm which is likely to be fatal must include
planning and deliberating to continue in that conduct despite the knowledge of the risk
 Recklessness acts in conjunction with the intentional infliction of terrible bodily harm
Ratio
Reckless killing can be first degree murder if the bodily harm likely to cause death and recklessness
were planned and deliberate.
CC 231(4): Murder of Police Officer, etc.
R v Collins, [1989] ONCA
Facts
C. charged with 1st degree murder for killing a police officer while he was on duty/in uniform. C.
challenged constitutionality of CC 231(4) under Charter s.7. He argued that only CC 231(2) (planned
and deliberate) satisfies the moral blameworthiness necessary for the penalty of 1st degree murder;
life and 25yrs without parole rather than life and 10yrs without parole which is 2 nd degree murder.
Issue
Can C be convicted of first degree murder without proof of planning and deliberation for killing a
police officer?
Holding
Yes.
Reasons (Goodman JA)

Vaillancourt – PFJ require at least objective foreseeability of death for murder conviction
 Stigma argument is much less relevant here; Crown has to prove all of the elements of 2 nd degree
murder still
 First degree murder is just a classification, after murder has been established
 There is no distinction in intent between first and second degree murder
o Once the primary determination has been made that the offence of murder has been
committed, there is then a secondary determination under CC 231 whether the
murder should be classified as 1st or 2nd degree murder; CC 231 is a classification
50
section for the purpose of sentencing
o CC 231 is subservient to CC 229 and CC 230 [invalidated by Vaillancourt and Martineau]
 Killing cops requires greater moral deterrent
 * Crown must prove BARD that the accused had subjective knowledge the victim was an on
duty police officer, or the accused was reckless as to whether the victim was such a person
so acting
 Charter is not offended because accused must have subjective knowledge that it is an on duty
cop, not objective knowledge
Ratio
Killing a cop is first degree murder
CC 231(5): “While Committing…”
R v Paré, [1987] SCC (Repeat from section: “Construction/Interpretations of the CC”)
Facts:
P. indecently assaulted and murdered a 7 year old boy, CC s.231(5)(b) holds that if a murder occurs
while an indecent assault is taking place, it is 1 st degree. P. admitted to indecently assaulting the boy
and then killing him afterwards.
Issue:
Did P. murder the child while the indecent assault was occurring?
Reasoning: (SCC Wilson J.)
At the QCCA:
 L’Heureux Dubé: strict interpretation; while committing must be contrasted with after
committing
 LeBel: did not agree that two acts had to be simultaneous; even if section were to be
construed restrictively, it must not be deprived of all effect; a “close temporal connection”
was required but needn’t be simultaneous
CC s.231(5): While Committing
 By a literal reading of the provision, P. didn’t murder S. while committing the indecent
assault
 This argument not decisive
 Case Law: (both supporting the strict approach in similar scenarios)
o R v Kjeldsen
o R v Sargent
 The other interpretation: (words “while committing” require a close temporal and causative
link but not simultaneity)
o R v Stevens: (Martin JA)
Doctrine of Strict Construction
Requires that the court strictly construe the provisions in favour of the accused if there is ambiguity
in their application
Is the narrow interpretation of “while committing” a reasonable one given the scheme/purpose of
the legislation? = NO

Very difficult to define the beginning/end of indecent assault
 Leads to distinctions that are arbitrary and irrational
 Look to the purpose of the legislation; general context
* Where the act causing death and the acts constitution the rape, attempted rape, indecent
assault or an attempt to commit indecent assault, all form part of one continuous sequence of
events forming a single transaction the death was caused “while committing” an offence for
the purposes of s.231(5).
Holding:
The conviction of first degree murder is reinstated.
51
R v Russell, [2001] SCC
Facts

Charged with first degree murder because he murdered someone while his girlfriend was
forcibly confined in another room
Issue
Do the victims of the crimes in 231(5) need to be the same as the victim to qualify the murder as first
degree?
Holding
No.
Reasons (McLachlin CJC)

Provision does not state the victims must be the same; strict interpretation
o Recognizing such a limitation would read into the provision a restriction that isn’t stated
 Other similar provisions explicitly state that it is the person targeted that has to have suffered
the underlying offence
o Ex. CC 231(6): for it to be 1st degree, the person murdered has to have been the one
harassed
 The ruling in Paré that the underlying offence and the murder must form part of one continuous
sequence of events forming a single transaction to be qualified as “while committing” does not
foreclose the application of s.231(5) to multiple victim scenarios
 Principle: where murder committed by someone already abusing his power by illegally
dominating another, it should be treated exceptionally seriously
 Killing must be closely connected, temporally and causally, to the enumerated offence
 The reason ‘murder’ isn’t enumerated under 231(5) is because Parliament expected multiple
murders to fall under 231(2); multiple murders that don’t fall under this “planned/deliberate”
provision will be the exception
Ratio
231(5) does not have a same victim requirement
CC 231(5): Constitutional Considerations
R v Arkell, [1990] SCC
Facts

A killed the victim while sexually assaulting her
Issue
Is s 231(5) contrary to the Charter?
Holding
No.
Reasons (Lamer CJC)

Answered in R v Paré; CC 231(5) is a classification section concerned with sentencing and not a
substantive offence
o Because of Martineau, no longer potential for classification of unintentional killings as 1 st
degree murder
o Subjective foresight BARD is required for all murder charges
 Classification of murder is for sentencing, and does not create two substantive offences
 Offences in the section are those of unlawful domination
 The distinction is neither arbitrary or irrational, and there is a clear connection between the
moral blameworthiness of the offender and the stricter sentence
Ratio
s 231(5) does not offend s 7.
52
R v Luxton, [1990] SCC
Facts

L forced a taxi driver to drive him to a field where he murdered her
Issue
Is the sentencing requirement for murder constitutional?
Holding
Yes.
Reasons (Lamer CJC)
 Involves interplay between CC 231(5) and CC 745(a) (“life imprisonment”)

There is some sensitivity in sentencing because convicts of first degree murder can apply to the
Chief Justice of the province for a reduction in the non-eligibility for parole, after 15 years
 Dangerous offender is OK because it fits with the moral turpitude of the offence, and protects the
public
 The sentencing provision is not arbitrary  narrowly defined; organizing principle (illegal
domination); specifically defined conditions under which it applies
 The combination of 231(5) and 745(a) clearly demonstrates proportionality between the moral
turpitude of the offender and the malignity of the offence
o The added offence of forced confinement markedly enhances the moral blameworthiness of
an offender
 Cruel and unusual requires gross disproportionality that outrages the standards of decency;
here, the punishment is appropriate considering the level of moral blameworthiness present
Ratio
For a punishment to be deemed cruel and unusual, it requires gross disproportionality to the offence
committed sufficient to outrage the standards of decency
Sexual Assault





Assault: CC 265(1); Sexual Assault: CC 271
Sexual (Chase)
o Objective standard
o Part of body touched
o Nature of contact
o Situation in which it occurred
o Words or gestures accompanying the act
o Intent of person committing act
AR of sexual assault (Ewanchuk)
o Touching (objective)
o Sexual nature of contact (objective)
o Absence of consent (subjective) – based on complainant’s state of mind
MR of sexual assault – crime of general intent (Ewanchuk)
o Must be subjective (Darrach)
o Intent to touch
o Knowledge of, wilful blindness to, or recklessness toward, lack of consent
 Not just when complainant says no, but when accused knew that the
complainant was essentially not saying yes
 Silence, passivity, ambiguous conduct are not consent
 When a person says no, the other person must wait for an unequivocal yes to
start again
Consent
o Vitiated by (CC 265(3))
 (a) Force
 (b) Threats or fear
53


 (c) Fraud
 (d) Exercise of authority
o No consent when (273.1(2))
 (a) Expressed by someone other than the complainant
 (b) Complainant cannot consent
 (c) Accused induces it by abuse of a position of authority
 (d) Complainant expresses lack of agreement
o Accused must take reasonable steps to obtain consent (s 273.2, Darrach)
o Where ambiguous, accused must have a clear yes (Cornejo)
Defence: honest mistake of fact (re: consent) (265(4))
o Accused honestly believed there was consent
o Negates MR
o Belief does not need to be reasonable (Pappajohn)
o Must have an air of reality (Osolin)
o Must be based on more than the accused’s statement (Osolin)
o Mistake must be honest, not sustained by wilful blindness (Sansregret)
o Accused must have taken reasonable steps to obtain consent (s 273.2(b), Darrach)
o Not available where belief arises from self induced intoxication or wilful blindness or
recklessness (273.2(a))
Evidence of complainant’s sexual history
o Cannot be used to claim the complainant was more likely to consent, or is less credible
(276(1))
o Can only be raised if it is of specific instances of sexual activity, is relevant, and probative
value outweighs danger of prejudice (276(2))
R v Chase, [1987] SCC
Facts

C grabbed the complainant by the shoulders and grabbed her breasts
Reasons (McIntyre J)
 Sexual assault is any assault under any description in CC 265(1) where the victim’s sexual
integrity is violated
 Test for sexual nature: “viewed in the light of all the circumstances, is the sexual or carnal
content of the assault visible to a reasonable observer”
 Factors
o Part of body touched
o Nature of contact
o Situation in which it occurred
o Words or gestures accompanying the act
o Intent of person committing act
Ratio
Defines “sexual”
R v V. (K.B.), [1993] SCC
Facts:
Father grabs genitals of 3yr old son as disciplinary response to child’s having done this to another.
Reasoning: (Iacobucci J.)
Although purpose was not sexual gratification, it was open to the trial judge to conclude that the
assault was one of a sexual nature and violated son’s sexual integrity.
Dissent: (Sopinka)
Father’s lack of intent for sexual gratification was decisive factor weighing against finding a sexual
assault
Ratio
54
Intent to get sexual gratification is not necessary for sexual assault
Consent: Honest Mistaken Belief
Pappajohn v The Queen, [1980] SCC
Facts

P and the complainant got drunk at lunch and went to his house
 Later, she ran out naked with her arms tied behind her back
 Clothes weren’t damaged, they were folded, jewelry was in another room
 P claimed mistaken belief in consent
Issue
Can an honest mistake of fact be exculpatory even if it is unreasonable?
Holding
Yes.
Reasons (McIntyre J)
 Defence of mistaken belief in consent must bear an Air of Reality, there was none here
o Court reads ‘willfully/intentionally’ into CC 265
o Requires knowledge of the absence of consent
 There must be some evidence beyond mere assertion of the belief by counsel
 Belief does not need to be reasonable, adopts Dickson J’s reasoning on this aspect
 All the elements used to show mistaken consent, are the same elements used to show that there
was consent
o All judges agree that these factors were relevant to consent
o Judges disagreed which were relevant to the creation of an honest/mistaken belief
defence
o * Torn clothes are a positive sign that there was a lack of consent; lack of torn
clothes does not mean there was consent
Dissent (Dickson J)

Intention or recklessness must be proven for all the elements, including absence of consent
 Mistake is a defence because it negates MR
 Defence must meet the air of reality test
 Reasonableness of the belief is not conclusive
 Circumstantial evidence in the case supports an honest but mistaken belief in consent
Ratio
Honest mistaken belief negates MR of sexual assault. Belief does not need to be reasonable, must
have an ‘air of reality’.
CC 265(4): Accused’s belief as to consent, Mistake of Fact
Osolin v The Queen, [1993] SCC
Facts

s 265(4) was introduced after Pappajohn, provided that when mistaken belief in consent is
alleged, the defence must meet an air of reality
Issue
Does s 265(4) offend s 11(d)?
Holding
No.
Reasons (Cory J): Majority on question of constitutionality
 CC 265(4) applies to all assaults, not just sexual assaults
 Defence for which there is no evidentiary foundation should not be put to the jury
 Mere assertion by the accused is not enough
55
Defence of mistaken belief in consent can only be put to the jury if there was an adequate
and evidentiary foundation found for it = “Air of Reality”
 Does not create a statutory presumption, only a tactical evidentiary burden
 Crown must still prove elements of the offence BARD
o Actus Reus: accused engaged in sexual intercourse without the consent of the woman
o Mens Rea: He intended to engage in sexual intercourse without the consent of the woman
 It is possible for the jury to accept parts of both parties’ stories in accepting a defence of honest
mistake
 Requirement that the testimonies must be the same could lead accused to lie
Reasons (McLachlin J.): Majority on question of application
Cory J. accepts argument that defence of honest mistake in consent cannot arise when the evidence of
the complainant and accused are diametrically opposed (one says there was consent, the other says
there wasn’t)
 Still requires Crown to prove BARD that there was lack of consent, but mistake defence can’t
exist in these circumstances
 Majority disagrees
Notwithstanding lack of actual consent, the accused could still honestly believe that there was
consent
 The defence of honest but mistaken belief should be open to the accused
Ratio
Mistake of fact must have an air of reality. Mere assertion by accused is not enough.
o
Willful Blindness
Sansregret v The Queen, [1985] SCC
Facts
 S beat on his girlfriend and she consented to sex to stop the beatings twice after being threatened
with weapons
 She complained after the first time, and police took no action; accused’s probation officer told
her to drop it because it would affect accused’s probation
 Second time accused threatened victim with knife, victim consented to calm him down
 S is charged with sexual assault, because he was wilfully blind to the fact that her consent was
vitiated by duress
Issue
Can S plead honest but mistaken belief in consent?
Holding
No, because of wilful blindness belief wasn’t honest.
Reasons (McIntyre J)
 Recklessness:
o Knowledge of a danger and persistence in a course of conduct which creates a risk that the
prohibited result will occur
o Culpability: consciousness of the risk and proceeding in the face of it
 Wilful Blindness:
o Where a person who has become aware of the need for some inquiry declines to make the
inquiry because he does not wish to know the truth
o Culpability: Deliberately failing to inquire when he knows there is reason for inquiry
 Wilful blindness precludes honest mistaken belief
o The accused was clearly aware that the complainant had made a complaint of sexual assault
to the police
o To continue with intercourse in such circumstances is self-deception to the point of wilful
blindness
o If cases like this, the court presumes knowledge of lack of consent on part of accused
* S was aware of the likelihood of the complainant’s reaction to his threats, so to proceed with
56
intercourse is self-deception to the point of wilful blindness.
Ratio
Mistake must be honest, not sustained by wilful blindness.
R v Seaboyer, [1991] SCC (NEEDS TO BE REDONE)
Facts
 s 276 created a rape shield whereby complainant’s previous sexual activity with anyone other
than the accused could be introduced as evidence if it rebutted evidence of sexual activity
adduced by the Crown, it established the identity of the actual rapist, or it was evidence of sex
that took place on the same occasion.
Issue
Does s 276 violate ss 7 and 11(d)?
Holding
Yes. It is not saved by s 1.
Reasons (McLachlin J)
 s276’s purpose is to abolish outmoded and sexist evidence based on ‘sexual conduct evidence’; in
this purpose it overshoots its goal and renders inadmissible evidence which may be essential to
the presentation of the legitimate defence of honest but mistaken belief
o Concern is not with the legislation’s purpose, but its effect
o Evidence excluded will not necessarily be of trifling weight
o Can form the basis of honest but mistaken belief
 Real risk an innocent person could be convicted
 The purpose of 276 has been served and it is now common knowledge and law that evidence
about a woman’s previous sexual conduct is not admissible as evidence
L’Heureux-Dubé (dissenting)
 The provision only excludes evidence that would be irrelevant and prejudicial to the integrity of
the trial
Ratio
Old rape shield law unconstitutional
NB: law in response to Seaboyer, CC 273, is constitutional (R v Darrach)
* Parliament reacted to Seaboyer by amending s.273 (consent)
CC 273.2(b): reasonable steps to ascertain consent
R v Darrach, [1998] ONCA
Facts

s 273.2 requires the accused to demonstrate he took reasonable steps to ascertain whether the
complainant consented
Issue
Is s 273.2 constitutional?
Holding
Yes.
Reasons (Morden J)

Sexual assault must have a subjective MR component because:
o General intent; can be prosecuted by summary conviction; generic offence covering minor
to severe offences; no minimum penalty; maximum penalty of 10 years; sentence can be
tailored to reflect the moral opprobrium of both the offence and the offender
 The section still allows for subjective fault, because he must take reasonable steps in the
circumstances known to the accused at the time to ascertain that the complainant was
consenting
o Provision requires reasonable steps, but does not require that all reasonable steps be taken
57
o Does not require belief to be reasonable
If the accused believes consent is ambiguous or unclear, he has a duty to abstain or obtain
clarification.
Ratio
Defence of honest mistake only if accused took reasonable steps to ascertain consent

Criticism of the ‘Reasonable Steps’ interpretation of CC 273.2(b)
Chrisine Boyle and Marilyn MacCrimmon, “The Constitutionality of Bill C-49: Analyzing
Sexual Assault as if Equality Really Mattered” (1999)
Reasonable Steps provision is confusing because of its linkage to the mens rea concept of mistaken
belief, but wording in terms of behavior rather than belief
 The mistaken belief defence labels as morally innocent, based on subjective belief, men who
do not understand consent and see women as being in a perpetual state of consent that can
only be withdrawn, if at all, by vigorous physical resistance
 Maintains self-interested misconceptions about women’s sexual accessibility
Court in Darrach would allow sexual assault where the accused took some reasonable steps to
ascertain consent but made an unreasonable mistake about that consent
 Why should a man who does not take sufficient steps to avoid an unreasonable mistake be
construed as morally innocent?
As the law stands after Darrach, the man has only to take some steps to ascertain consent, but doesn’t
necessarily need to take enough steps to avoid an unreasonable mistake
 Fundamentally at odds with constitutional guarantee of equality between men and women
R v Cornejo, [2003] ONCA
Facts

C was drunk and alleges that by lifting her pelvis for C to take off her panties when she was
passed out drunk, the complainant consented to sex
 Trial judge left the defence of honest but mistaken belief to the jury
Issue
Does C’s defence of honest mistake have an air of reality?
Holding
No.
Reasons (Abella J)
Trial judge erred in leaving the defence of honest mistaken belief to the jury
 Movements of the pelvis were not sufficient evidentiary basis to give the defence to the jury 
giant leap of imagination on the part of C
o No air of reality
 Complainant told C on many occasions she didn’t want to have sex with him, including that night
o Circumstances cried out for reasonable steps to ascertain consent
C. argues that he ran his fingers through her hair, kissed her on the forehead, kissed her on the
mouth, the complainant lifter her pelvis when he removed her clothing
 This is a submission that permits C. to transform his own acts into reflections of consent
 C. had to take steps BEFORE engaging in any sexual activity to ascertain whether she was
consenting
 In this case, no steps of any kind, let alone reasonable ones, were taken
Reasonable steps must be taken before engaging in intercourse
Ratio
Reasonable steps must be taken if consent is ambiguous.
R v Ewanchuk, [1999] SCC
Facts
58

E sexually assaulted the complainant in the back of his van in the context of a job interview
 Complainant said no but did not show her fear, which E claims supports honest mistake
 Trial judge said consent was implied
Issue
Is consent objective? Can it be implied?
Holding
No. No.
Reasons (Major J)
The Law
 AR of sexual assault
o Touching (objective)
o Sexual nature of contact (objective)
o Absence of consent (subjective) – based on complainant’s state of mind
 MR of sexual assault – crime of general intent
o Intent to touch
o Knowledge of, wilful blindness to, or recklessness toward, lack of consent
 Not only when complainant says no, but when accused knew that the complainant was
essentially not saying yes
 Silence, passivity, ambiguous conduct are not consent
 When a person says no, the other person must wait for an unequivocal yes to start again
Application
 Trial judge misdirected himself when he considered the complainant’s actions, and not
her subjective state of mind, when determining consent
o Consent is based purely on the complainant’s subjective state of mind
o The complainant either consenter or she didn’t; no third option
o There is no defence of ‘Implied Consent’
* If the complainant’s testimony establishes the absence of consent BARD, the actus reus
analysis is complete and the trial judge should have turned his attention to the accused’s
perception of the encounter and the question of requisite mens rea
 Complainant’s fear vitiated her consent (s 265(3)(b))
Defence: honest mistaken belief of consent
 Negates MR
 Consent in honest mistake
o Considered from the subjective perspective of the accused based on all the evidence before
the court
o L’Heureux Dubé in Park: Mens Rea for sexual assault is not only satisfied when it is
shown that accused knew the complainant was saying ‘no’, but also when it is shown
that the accused knew that the complainant wasn’t saying ‘yes’
o In order to cloak the accused’s actions in moral innocence, the evidence must show that he
believed that the complainant communicated consent to engage in the sexual activity in
question
In this case, the accused knew the complainant wasn’t consenting on four different occasions when
she said No
L’Heureux-Dubé (concurring)
Rips on the trial judge for suggesting the complainant was promiscuous and was asking for it
Ratio
Consent is analyzed purely from the subjective PoV of the complainant for the purposes of the actus
reus; in the context of mens rea, the honest but mistaken belief in consent defence may be raised only
if the complainant had affirmatively communicated by words or conduct her agreement to sexual
activity.
Assault: CC 265
Sexual Assault: CC 271
Aggravated Sexual Assault: CC 273(1)
59
R v Mabior, [2012] SCC
Facts:
M. charged with 9 counts of aggravated assault based on failure to disclose HIV-positive status to 9
complainants before having sex with them: CC ss.265(3)(c) and 273. None of the 9 contracted HIV.
JH:
Trial: convicted on 6 counts, acquitted on other 3 on basis that sex with condom when viral loads are
undetectable doesn’t place partner at ‘significant risk or serious bodily harm’ as required by Cuerrier
Appeal: convicted on 2 counts, acquitted on other 4 on basis that low viral loads or condom use could
negate significant risk
Issue:
What is necessary for M.’s omission to constitute a crime with regards to the 4 contended
convictions?
Reasoning: (McLachlin CJ)
In Cuerrier, SCC established that failure to disclose HIV may constitute fraud vitiating consent under
CC s.265(3)(c)
 HIV poses risk of serious bodily harm, so constitutes aggravated sexual assault CC s.273
To obtain conviction under these two provisions, Crown must show beyond a reasonable doubt:
1. A dishonest act (falsehood or failure to disclose HIV)
2. Deprivation (denying the victim knowledge which would have caused him/her to refuse
sex that exposed him/her to significant risk or serious bodily harm)
* Failure to disclose may amount to fraud where the complainant would not have consented
had he/she known the accused was HIV-positive and where sexual contact posed a significant
risk of or causes actual serious bodily harm
 The Cuerrier requirement of ‘significant risk of serious bodily harm’ should be read as
requiring disclosure of HIV status if there is a realistic possibility of HIV transmission
 If there is no realistic possibility of transmission, failure to disclose will not constitute fraud
vitiating consent to sex at CC s.265(3)(c)
Application:
Realistic possibility of transmission of HIV is negated if
1. The accused’s viral load at the time of sex was low AND;
2. Condom protection was used
4 complainants consented to sex with M, wouldn’t have if they had known about HIV-positive status
 In only 1 case did he wear condom and have low viral load; this conviction is reversed
 The other 3 are maintained as he had a low viral load, but didn’t wear a condom
Holding:
Appeal allowed in part; 3 convictions maintained. Appeal dismissed in part; 1 conviction reversed
* Cornejo and Ewanchuck establish that passivity and silence are not examples of consent
R v J.A., [2011] SCC
Hutchinson decision (holes in condom case)
Poking holes in a condom constitutes fraud which vitiates consent = Sexual assault
Defences: Provocation


CC 232(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an
ordinary person of the power of self control is provocation for the purposes of this section if the
accused acted on it on the sudden and before there was time for his passion to cool
Reduces murder to manslaughter
o Not available for attempted murder (Campbell)
60



As with all defences, there must be an ‘air of reality’ to the claim that the accused acted
with provocation before the matter is left to the jury (Thibert)
Test for provocation (Hill)
o Would an ordinary person be deprived of self control by the act or insult?
o Was the accused in fact provoked, regardless if the ordinary person would have been or
not?
o Was the accused’s response sudden and before there was time for his passion to cool?
Ordinary person standard
o Average temperament and level of self control (Hill)
o Considered
 Any non-idiosyncratic factors that would give the wrongful act special
significance to the accused (Thibert)
 History of the relationship between the accused and victim (Thibert)
 Age, sex, race
 Cultural background (Nahar)
 Jury does not need to be instructed on age, sex (Hill)
o Not considered
 Drunkenness (Hill)
 Beliefs that are irreconcilable with fundamental Canadian values (Humaid)
 Mental disorders (Mancini)
RBHS, 737-760
Defence of provocation has deep roots in the CML and has its origins in prevailing conceptions of
male honour
 D.P.P. v Camplin [1978]: three circumstances envisioned
o 1. Chance medley or sudden falling out between men
o 2. Discovery by a husband of his wife in the act of committing adultery
o 3. Discovery by a father of someone committing sodomy on his son
Lots of criticism these days
 Gendered defence
 Privileges emotion of anger as a potentially excusatory factor
Grant, Chunn, and Boyle, “The Law of Homicide”
Concession to human frailty for homicidal rage
 But there is no defence for a killing of compassion
 Not even a partial defence for euthanasia, so if the killer is motivated by pity, she is still
guilty of murder which cannot be reduced to manslaughter
Love is not a defence to murder
 Duress isn’t a defence under s.17; even where the accused killed to save the threatened life
of a loved one
Self-preservation isn’t a defence
 Necessity is probably not a defence to murder (unless it’s self-defence)
Despair is not a defence to murder
 A battered woman may not use despair as a defence for killing her husband
* If provocation as a defence is a compassionate response to human frailty, why is rage the
privileged emotion?
Berger, “Emotions and the Veil of Voluntarism: The Loss of Judgment in Canadian
Criminal Defences”
Does provocation recognize emotions that society really doesn’t want to recognize as legitimate or
tolerable?
61

Recent SCC mentality has taken a turn for the voluntarist; result is criminal law that has
considerable conservative inertia rather than being contestable
1. Emotions are responses to thoughtful reflection on what is good or bad in the world around us
 Embedded in each emotion is a value-based commitment that is open to examination and
potentially condemnation
2. emotions can be mistaken; we can err in our emotions
 Flies in the face of the mechanistic view of human agency; thus, emotions are open to outside
scrutiny and criticism; emotions can be evaluated
 We can object to emotions based on the value judgments upon which they are based
3. When the law turns to the human actions that flow from emotion, in defences of duress,
provocation, etc., it ought not ignore the thoughtful element of emotions and the possibility of valueerrors
 Insufficient when faced with a circumstance in which a person reacts to strong
emotion to state simply that the individual’s choice was constrained and therefore his
conduct was not morally voluntary
Horder, “Provocation and Responsibility”
It is threats to values commonly thought by men, in particular, to be central to their conceptions of
self-worth that are most likely to produce the desire of retaliation which would result in the need for
a Provocation defence
 45% triggered by possessiveness or sexual jealousy
 Shows that possessiveness with regard to women who are partners or wives is most central
trigger of men’s self-worth
 Control of woman’s sexual fidelity, labour, presence, love, and attention is at centre of
men’s conceptions of self-worth
Use of provocation defence is dominated by men
Thus, largely from male-centered perspective that the reduction of an intentional killing from murder
to manslaughter is capable of being regarded as a compassion to human infirmity
 From feminist perspective, such mitigation only reinforces in the law that which
public institutions ought in fact to be seeking to eradicate = acceptance that there is
something natural and inevitable, and forgivable about men’s violence against
women, and their violence in general
Taylor v The Kind [1947] SCC
Ratio:
Drunkeness is not a factor to take into consideration for the objective ‘ordinary person’ analysis at
the first step of the provocation test
Wright v The Queen, [1969] SCC
Facts:
Son charged with shooting death of his father while we was drunk
Ratio:
Character, background, termperament, indiosyncrasies, or drunkenness of the accused are matters to
be considered in the second branch of the provocation enquiry (subjective part); they are excluded
from the consideration in the objective part of the test
Interpreting and Applying the Provisions
62
R v Hill
[1986] 1 SCR 313  CB 742
Facts

P was H’s Big Brother
 H claims that P tried to have sex with him, so H resisted and struck him in the head in the
process; H left but returned to the apartment a short time afterwards, whereupon P threatened
to kill him, so H killed P
 Crown claims that H and P were gay lovers, and H struck P in the head while he lay in bed, then
stabbed him with knives when he tried to escape to the bathroom
 Appeal on whether the ONCA erred in law in holding that Trial judge erred in failing to direct the
jury that the ‘ordinary person’ for purpose of CC 232(2) meant “an ordinary person of the same
age and sex as the accused.”
Issue
Should the ordinary person in relation to provocation be of the same age and sex as the accused?
Holding
Yes; appeal allowed; ONCA reversed.
Reasons (Dickson CJC)
Test for provocation
1. Objective: Would an ordinary person be deprived of self-control by the act or insult?
2. Subjective: Was the accused in fact provoked, regardless if the ordinary person would have
been or not?
3. Was the accused’s response sudden and before there was time for his passion to cool?
 Jury cannot consider drunkenness when assessing reasonableness
 Ordinary person has a normal temperament and level of self control
 Has any characteristics to the relevant provocation in question (ex is black if it’s a racial slur
against blacks)
o Can ascribe “sex, age or race” to the ordinary person  any characteristics that are
not peculiar or idiosyncratic can be ascribed to an ordinary person without
subverting the logic of the objective test
o Some characteristics will be irrelevant; ex. race of a person will be irrelevant if the
provocation involves an insult regarding a physical disability
o The judge doesn’t need to charge the jury about this, the jury will naturally assume the
ordinary person to be of the age and sex of the accused
Wilson J (dissenting):
The judge needs to specifically charge the jury to consider the accused’s age and sex when judging
reasonableness
 Age: ONCA was correct in identifying the young age of the accused as a special factor which
can be incorporated into the ‘ordinary person’ standard
o This recognizes the reduced standard against which young accused are measured;
recognizes that the law does not attribute to individuals in the developmental stage
of their youth the same degree of responsibility as is attributed to fully adult actors
 Sex: ONCA also correct in identifying age of accused as a factor in order to put the wrongful
act/insult into context for purposes of assessing its gravity
o It is the reaction of the ordinary person who is a male subjected to a homosexual
assault that must be considered
Ratio
Accused’s particular characteristics should be ascribed to the reasonable man, as long as the
characteristics aren’t idiosyncratic. The jury need not be instructed on the matter.
R v Thibert
[1996] 1 SCR 37  CB 750
63
Facts
o
T killed his wife’s lover, S. T. and wife had been having rough time, were in the middle of
breakup. T. followed wife to work with gun in the car; didn’t intend to use it, but had it
loaded with him. Wife came out along with the deceased. S. started walking towards T
taunting him to shoot him, upon which T did kill him.
T charged with Murder 1st degree
T claims provocation
o

Issue
Was there an air of reality to the defence of provocation? Was the trial judge correct in leaving
provocation to the jury?
Holding
Yes.
Reasons (Cory J)

Provocation defence should be left to the jury if it bears an air of reality:
 Some evidence to suggest the insult would cause the ordinary person to be deprived of
self control
 Some evidence showing the accused was actually deprived of his self control by the
insult
Objective Element
 Based on Hill, Background of the relationship, including earlier insults, is relevant to the
ordinary person analysis
o Ordinary person shares such factors as would give the act or insult special
significance to the accused
 Taking into account the past history between the T and S a jury could S’s action
taunting and insulting; it might be found that under the same circumstances, an
ordinary person who was a married man facing the breakup of his marriage would
have been provoked by S’s actions so as to cause him to lose his power of self-control
Subjective Element
 Background and history of the relationship between accused and deceased should be taken
into consideration
o Particularly applicable if there is a long history of insults
o This is so even if the insults might induce a desire for revenge, so long as
immediately before the last insult the accused did not intend to kill, and was
triggered by the sudden provocation
 Rejection in the context of a romantic relationship will not constitute a basis for the
provocation defence; cannot simply be dumped, brood a bit, then go looking for your ex’s
lover and kill him
 However, here rejection was not the most significant or overriding factor; T sought to
avoid S and talk to his wife; confrontation with S wasn’t expected, and T even went to
great lengths to avoid meeting S
o There was evidence upon which a reasonable jury could have concluded that the
defence of provocation was applicable
Were the acts of the deceased ones which he had a legal right to do but which were nevertheless
insulting?
 The insult cannot be something the victim has a legal right to do – difference between
something a person can do without incurring liability (free speech), and a right which is
sanctioned by law
 The words or act put forward as provocation need not be words or act which are specifically
prohibited by the law
 Thus, while the actions of the deceased in the parking lot were clearly not prohibited
by law, they could nonetheless be found by a jury to constitute insulting behaviour
There was an air of reality to the defence
Major J (dissenting)
The ordinary person would not have lost control in the situation, so the defence had no air of reality
64

The breakup of a marriage due to an extramarital affair cannot constitute such a wrongful
act or insult sufficient to ground a provocation defence
 There was no element of suddenness on the facts of the case; planned and deliberate
As such, neither objective nor subjective element has been met; the defence should not have been left
with the jury
Ratio
Ordinary person considers any non-idiosyncratic factors that would give the wrongful act special
significance to the accused
R v Tran
Facts:
T had knowledge that estranged wife involved with another man. T walked into ex’s home
uninvited/unannounced found her in bed with boyfriend. T attacked them both, killed the boyfriend.
Trial judge accepted provocation defence, convicted him of manslaughter.
Issue:
Was the standard of provocation met?
Reasoning: (Charron)
Objective Element
Ordinary person standard for the first step of the provocation test is informed by contemporary
values such as the commitment to equality provided in the Charter.
 Accused must have a justifiable sense of being wronged
 Central concern is extent to which accused’s personal characteristics and circumstances
should be considered
 Sudden act/insult must be proactive on part of victims; here, victims didn’t do anything; T.
invaded their space
Important distinction between contextualizing the objective standard, which is necessary, and
individualizing it, which defeats the purpose
Subjective Element
Focuses on accused’s subjective perceptions of the circumstances
 Accused must have killed because he was provoked and not merely because the provocation
existed
 Requirement of suddenness serves to distinguish response taken in vengeance from one that
was provoked; suddenness applies both to the act and accused’s reaction to it
Application
There was no ‘air of reality’ to the defence of provocation
The discovery of ex with another man doesn’t amount to insult for purposes of CC 232, and doesn’t
meet suddenness requirement
 T’s cultural view of wife’s sexual relationship with the deceased cannot be sufficient to
excuse a loss of control in the form of homicidal rage and constitute an excuse for the
ordinary person of whatever personal circumstances or background
 T knew about his wife’s boyfriend long before the incident; it didn’t strike him unprepared
Holding:
Appeal dismissed.
Context in Tran
 Context important to set the appropriate standard
 Important not to subvert the objective standard by including particular feelings, etc. that
better belong in the subjective test
 Ex. Fact that accused lost his job is taken into account, but not how the accused felt
about it
Would Thibert have been decided the same way after Tran?
 Provocation only applies to the human frailties that we would apply to the ordinary
person
65


Don’t make room for human frailty outside of the reasonable person
Ex. sexism, misogyny, racism, etc.
‘Culture’ and Provocation
RBHS, 766-776
‘Culture’ and Provocation
Since Thibert, strictly objective approach to determining what standard of self-control we require of
accused when considering the gravity of the provoking insult
 However, attributes giving the insult its particular significance are ascribed to the ‘ordinary
person’
 If the accused claims that insult was particularly provoking to him because of conventions,
assumptions, norms of his particular cultural community, should the reasonable person be
thought of as belonging to that particular culture?
R v Nahar
(2004), 181 CCC (3d) 449 (BCCA)  CB 766
Facts

N stabbed and killed his wife Mrs N because she smoked, drank, socialized with men, and was
generally not a good Sikh in his opinion
Issue
Was there an air of reality to provocation?
Holding
No.
Reasons (Lowry JA)
 Provocation is a wrongful act or an insult that is of such nature as to be sufficient to deprive an
ordinary person of the power of self control
 The ordinary person must have experienced the same series of insults as experienced by the
accused, as well as age, sex, and any other factors that would give the wrongful act or insult
special significance to the accused.
o * Factors can include cultural background
o The ordinary person must have been one who shared Mr. Nahar’s cultural
background so that the implications of being a Sikh, and having been raised in the
Sikh tradition, were to be taken into account in measuring the gravity of the insult
which is said to have caused him to stab his wife
 Even considering this, open to the trial judge to conclude there was no reasonable doubt, even
taking into account N.’s cultural background, that the ordinary person would not have been
provoked here.
Ratio
Ordinary person can consider accused’s cultural background.
R v Humaid
(2006), 208 CCC (3d) 43  CB 770
Facts

H killed his wife because he either wanted out of the marriage or he thought she was cheating on
him
 Argued provocation and specifically that H.’s Islamic cultural background placed great
significance on family honour, and made infidelity, particularly by a female member of a family, a
very serious violation of the family’s honour worthy of harsh punishment by the male members
of the family
Reasons (Doherty JA)
66

There was no air of reality to a provocation defence here
o It is not enough to lead evidence that Muslims, or any other group, have certain religious or
cultural beliefs that could affect the gravity of the provocative conduct in issue and that the
accused is a member of that group – extent to which any one Muslim would act depends on
many factors
o Must avoid stereotyping – verdicts that rely on stereotyping are no less offensive because
they benefit the accused
 Thibert: one’s religious/cultural beliefs can give a special significance to the acts/insult said to
have constituted provocation
o However, here: “The alleged beliefs which give the insult added gravity are premised on the
notion that women are inferior to men and that violence against women is in some
circumstances accepted, if not encouraged. These beliefs are antithetical to fundamental
Canadian values, including gender equality.”
o The ordinary person cannot be fixed with “beliefs that are irreconcilable with
fundamental Canadian values.”
Ratio
The ordinary person cannot be fixed with “beliefs that are irreconcilable with fundamental Canadian
values.”
R v Mayuran, [2012] SCC
Facts:
M. convicted of 2nd degree murder of sister in law who had been stabbed 45 times. Family testified
that accused confessed to them how she had killed deceased after she had ridiculed her for learning
ability/level of education. M. denied the confession, offered conflicting account. Family’s story
corroborated by independent witness, receipts, and cellphone records. M.’s clothes found in bucket of
bloody water in bathroom, her blood mixed with blood of the victim on the blade of knife said to be
murder weapon, M.’s DNA found on knife’s handle, cuts she suffered consistent with injury caused
while stabbing someone. On appeal, QCCA set aside conviction ordered new trial based on trial’s
failure to put provocation before the jury.
Issue:
Is there an air of reality to M.’s provocation defence?
Reasoning: (Abella J.)
Provocation
 Requires that there be a wrongful act/insult of such a nature that it is sufficient to deprive an
ordinary person of the power of self-control and that the accused act on that insult before
there was time for her passion to cool
Objective element
1. Wrongful act or insult
2. Sufficient to deprive an ordinary person of the power of self-control
 Evidence must be capable of giving rise to a reasonable doubt that ordinary person in
accused’s circumstances would be deprived of self-control when hearing insults about her
level of education
Particular characteristics that are not peculiar/idiosyncratic can be ascribed to an ordinary person
without subverting the logic of the objective test of provocation (ex. sex, age, race)
 These characteristics are only relevant to the extent that they help determine how an
ordinary person would react in the circumstances; can’t be conflated with personal
circumstances which are relevant for the subjective test, but do not shift the ordinary
person standard to suit the individual accused
* A properly instructed jury could not conclude that an ordinary person in the circumstances would
be deprived of self-control when ‘scolded’ about her level of education sufficient to stab a person 45
times in a responsive rage
 It has no air of reality
 Therefore, no duty on the trial judge to instruct the jury on the defence
67
Holding:
Appeal allowed; conviction restored.
Defences: Mental Disorder
RBHS, 777-811









CC 16(1) No person is criminally responsible of 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 knowing that it was wrong
CC 16(2) presumption of sanity
CC 16(3) party seeking to raise insanity must do so on a BOP
Crown can raise evidence of insanity if accused brings it up, or post-verdict independently
(Swain)
Mental disorder includes mental and physical problems: mental disease, psychoses, minor forms
of mental disorder, disorders of the development of the personality (psychopathic personality),
hardening of the arteries, psychomotor epilepsy (Cooper)
Unable to appreciate the nature and quality of the act (Cooper)
o Cognition, emotional and intellectual awareness of the significance of the conduct
o Perceive the consequences, impacts, and results of an act
o The “legally relevant time” is the time when the act was committed
o Lacking remorse is not sufficient to invoke the defence (Kjeldson)
o Failure to appreciate legal consequences cannot ground the defence (Abbey)
Unable of knowing that it was wrong
o Wrong must mean contrary to the ordinary moral standards of reasonable men and women
(Chaulk)
o Must know the particular act in question was morally wrong (Oommen)
Consequence
o Accused must be discharged unless the Review Board/court finds him to be a significant
public threat (Winko)
Unfit to stand trial
o Test: on account of a mental disorder, accused cannot (s 2)
 Understand the nature or object of the proceedings
 Understand the possible consequences of the proceedings
 Communicate with counsel
o Different from the s 16 defence – much lower threshold when considering fitness to stand
trial (Whittle)
* Mental disorder defences used to be very rare because it resulted in automatic indeterminate
detention; in R v Swain, SCC ruled this to be an unjustified infringement of ss. 7 and 9 of the Charter
 Now a person found to be not criminally responsible on account of mental disorder
shall be discharged absolutely if they are “not a significant threat to the safety of the
public”
Unfitness to Stand Trial
R v Whittle, [1994] SCC
Reasons (Sopinka J)
 Section 16 means those suffering a disease of the mind are sick as opposed to blameworthy,
should be treated rather than punished, and should be exempted from criminal liability
o Not exempted from being tried
 Fitness to stand trial is predicated on the existence of a mental disorder and focuses on
68
the ability to instruct counsel and conduct a defence
o Requires limited cognitive capacity to understand the process and communicate with
counsel
 Provided the accused possesses this limited capacity, it is not a prerequisite that he or she be
capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in
coming to a decision that best serves her interests.
Ratio
Defence of mental disorder available to those who are nonetheless fit to stand trial.
* Very low threshold
 Someone doesn’t have to be capable of analytical reasoning, etc., just have to be
capable of limited cognitive capacity to communicate and understand
Who Can Raise the Mental Disorder Issue?
R v Swain, [1991] SCC
Issue
When is the Crown allowed to raise mental disorder?
Holding
Only after the accused leads evidence of it, or after guilt is determined.
Reasons (Lamer CJC)

Crown raising evidence of mental disorder against the accused’s wishes interferes with his
ability to conduct his defence
 1. Crown can bring evidence of mental disorder after the accused’s own evidence puts his
mental capacity into question
o Reasons to let the Crown raise evidence  so the system does not label insane people as
criminals, to protect the public from dangerous people who require hospitalization
 2. Crown can also independently raise the issue of insanity after Crown has proved actus
reus/mens rea of the offence and the accused is found guilty
o This way Crown’s submissions on insanity question will not interfere with accused’s
defence
Dissenting: (Wilson J)
 Crown should not be allowed to raise evidence of insanity independently
 Even the conditional ability to raise ability infringes on the accused’s right to control his
defences, infringes on Charter s.15 right to equality for mentally disabled
o Wilson agrees with Crown’s ability to raise the insanity issue at the end of trial, but not
during, after the essential elements of the offence have been established BARD and all other
alternatives have been exhausted
Ratio
Crown can raise evidence of mental disorder after the accused brings it into question, or after guilt is
determined.
* Indeterminate detention for mental disorder cases that pose a risk to the public is still available
under CC 672.54
Burden of Proof
R v Chaulk and Morrissette, [1990] SCC
Facts
Appeal from Manitoba CA dismissing appeals from convictions of 1 st degree murder. C. and M.
69
entered victim’s home, plundered it for valuables, then stabbed/bludgeoned the sole occupant to
death. They suffered paranoid psychosis that made them believe they were under divine charge to
kill victims.
Issue
Does the s 16(4) presumption of sanity violate s 11(d) of the Charter?
Holding
Yes, but it is saved under s 1.
Reasons (Lamer CJC)

“Fact” of insanity precludes a verdict of guilty
 The presumption in 16(4) allows a factor which is essential for guilt to be presumed, rather than
proven by the Crown BARD
 It also requires an accused to disprove it (or prove insanity) on a BOP
 The accused can be convicted despite the existence of reasonable doubt WRT an essential
element of guilt
 The limit on 11(d) passes proportionality and minimal impairment, and passes s 1
McLachlin J (concurring)
 No infringement of s11(d) at all
 The attribution of criminal responsibility and punishment is morally and legally justifiable only
for those who have the capacity to reason and thus to choose right from wrong
 There is no violation to 11(d) because sanity is not an element of guilt, but rather a precondition
to criminal liability
o Presumption of innocence at Charter s.11(d) is just another way of expressing the principle
that the Crown must prove an accused’s guilt BARD
o Therefore, presumption of sanity does not alter any of Crown’s obligations to prove
elements of offence BARD
Wilson J (dissenting)
 The violation cannot be justified by s 1, it should just be an evidentiary burden
 There is no pressing/substantial concern; doesn’t pass stage 1 of Oakes
Ratio
Presumption of sanity does not violate the Charter. Accused must prove insanity on a BOP.
* But maybe there isn’t a large amount of fake insanity pleas exactly because of the existence of CC
16(2)?
Consequences of Mental Disorder as a Defence
Winko v British Columbia (Forensic Psychiatric Institute), [1999]
Issue
Do the sentencing provisions for mental disorder (Part XX.1) violate the Charter?
Holding
No.
Reasons (McLachlin J)
 Requires an absolute discharge be granted unless the court or Review Board is able to
conclude that the offender poses a significant risk to public safety
 Significantly better for the accused than the old system of detention at the Lieutenant Governor’s
pleasure
o Swain struck down the provision for automatic indefinite detention
 Twin goals: fair treatment and public safety
o Psychiatric treatment can only be carried out if the offender consents and the court or
Review Board considers it reasonable and necessary
o Further reviews every 12 months
o There is a provision for appeal on a question of law or of mixed law and fact
70
 Part XX.1 does not presume the mentally ill are inherently dangerous
 The provisions are a new alternative for the NCR-MD based on assessment and treatment
Ratio
Assessment and treatment scheme for NCR-MD is constitutional.
Mental Disorder as a Defence: (A) Mental Disorder or Disease of the Mind
R v Simpson, [1977] ONCA
Reasons (Martin JA)

Determining the accused suffers from a disease of the mind is a question of law for the judge
 Personality disorders or psychopathic personality are capable of constituting a disease of the
mind
o Concept is capable of evolving with medical knowledge
 Existence of a disease of the mind alone does not constitute insanity, only if the disease of
the mind has such a severe effect that the accused is incapable of appreciating the nature
and quality of the act or that it is wrong.
Ratio
No liability if the accused is incapable of appreciating the nature and quality of the act or that it is
wrong.
Cooper v the Queen, [1980] SCC
Reasons (Dickson J)
(A) Mental Disorder or Disease of the Mind

R v Kemp rejected the idea that when considering a disease of the mind, the law should
distinguish between mental and physical diseases
o “Any mental disorder which has manifested itself in violence and is prone to recur is a
disease of the mind”
o Includes mental disease, psychoses, minor forms of mental disorder, disorders of the
development of the personality (psychopathic personality), hardening of the arteries,
psychomotor epilepsy
 Trial judge can permit a psychiatrist to be asked directly if something is a disease of the mind,
but the answer is not conclusive; it remains a question of law for the trier of fact
o No reason to give a narrow or limited interpretation to disease of the mind
o Disease of the mind embraces any illness, disorder or abnormal condition which impairs the
human mind and its functioning, excluding however, self induced states caused by alcohol
or drugs, as well as transitory mental states such as hysteria or concussion
(B) Appreciating the Nature and Quality of the Act
 To support a defence of mental disorder, the disease of the mind must be severe enough to
render the accused incapable of appreciating the nature and quality of the act or that it is
wrong.
o Appreciating the nature and quality: cognition, emotional and intellectual awareness of the
significance of the conduct
o Distinction between mere knowledge and appreciation
 Mental capacity to foresee and measure the consequences of the violent action
 At the time of the act, could he appreciate the nature, character and consequences of the act
 Requirement is to perceive the consequences, impacts, and results of an act.
Ratio
1. Disease of the mind is a legal term of art that must be determined by the trier of fact; medical
evidence can support it but is not conclusive
2. To support a defence of mental disorder, the disease of the mind must be severe enough to render
71
the accused incapable of appreciating the nature and quality of the act or that it is wrong; this is a
higher standard than mere knowledge
(B) Appreciating the Nature and Quality of the Act
R v Abbey, [1982] SCC
Facts

A brought cocaine back from Peru knowing it was against the law but thinking a higher power
would protect him from the law’s consequences
 He suffers from hypomania
 BCCA dismissed Crown’s appeal on finding of not guilty for insanity
Issue
Is A criminally responsible for importing a narcotic?
Holding
Yes. Appeal allowed.
Reasons (Dickson J)

Appreciate means knowing more than the mere act being committed
 Inability to appreciate the nature and quality of the act negatives the MR for the crime
 A delusion which renders an accused incapable of appreciating that the penal sanctions
attaching to the commission of the crime are applicable to him does not to go the MR of
the offence, does not render him incapable of appreciating the nature and quality of the
act, and does not allow the insanity defence.
 “Wrong” means according to law – A knew what he was doing was forbidden by law
 Borg denied the defence of irresistible impulse, though it may be a manifestation of a disease of
the mind
Ratio
Inability to appreciate penal sanctions is no defence; “appreciation” applies to the ‘wrongness’ of the
offence, not the punishment for that offence.
* See Beaver v the Queen
Knowing the Act is Wrong
R v Chaulk and Morrissette, [1990] SCC (repeat)
Facts
Appeal from Manitoba CA dismissing appeals from convictions of 1 st degree murder. C. and M.
entered victim’s home, plundered it for valuables, then stabbed/bludgeoned the sole occupant to
death. They suffered paranoid psychosis that made them believe they were under divine charge to
kill victims. They knew the law but thought themselves above it.
Issue
Did the accused appreciate the act was wrong?
Holding
No.
Reasons (Lamer CJC)
 Appellants suffered a paranoid psychosis that made them believe they were under divine charge
to kill the victims
 Schwartz is wrong in concluding “wrong” only means against the law
o Wrong must mean contrary to the ordinary moral standards of reasonable men
and women
 Criminal liability predicated on the ability to tell right and wrong
o Knowing an act is wrong either according to the law, or to the standard of moral
72
conduct society expects of its members
Incapacity to make moral judgments must be causally linked to a disease of the mind
Accused will not benefit from substituting his own moral code for that of society
Defence is open to a person who knew the act was against the law, but was unable to
comprehend that the act was a moral wrong
McLachlin J (dissenting)
 Only thing that should matter is whether the accused knows the act is legally wrong
Ratio
Defence of insanity is open to a person who knew the act was against the law, but was unable to
comprehend that the act was a moral wrong.



R v Oommen, [1994] SCC
Facts

B lived in O’s house
 O was under a paranoid delusion that B was trying to kill him, so he killed her
Issue
Did O appreciate it was wrong to kill B?
Holding
No; new trial ordered.
Reasons (McLachlin J)
 1. There is no doubt O’s insane delusions provoked the killing
 2. On the night of the killing, his delusions deprived him of the capacity to know killing B
was wrong; on the contrary he thought it was necessary and justified
 CC 16 embraces not only the intellectual ability to know right from wrong, but the capacity to
apply that knowledge to the situation at hand
Ratio
Accused must know the criminal act in question is morally wrong for a criminal conviction.
R v Bouchard-Lebrun [2011]
Facts:
B brutally assaulted 2 people while in psychotic condition caused by drugs he had taken. B charged
with aggravated assault. Trial judge convicted based on elements of CC 33.1 which prevents selfinduced intoxication from being a defence to an offence against bodily integrity of another person. B
then tried unsuccessfully to get a NCR verdict for mental disorder under CC 16. Court of appeal held
that CC 33.1 should apply in this case.
Issue:
Does self-induced state of mental incapacity render CC 16 an applicable defence?
Reasoning: (Lebel J.)
Two stage test for CC 16 insanity defence:
1. Was the accused suffering from a mental disorder in the legal sense at the time of the alleged
events?
2. Was the accused, owing to their mental condition, incapable of knowing that the act or
omission committed was wrong?
Here, all that is on appeal is whether the psychosis resulted from a ‘mental disorder’ for purposes of
CC 16
Toxic psychosis does not always result from a ‘mental disorder’; to distinguish toxic psychosis that
results from mental disorder from those that do not:
1. Internal Cause Factor: comparing the accused with a normal person
a. Objective test; may be based on the psychiatric evidence
b. The more psychiatric evidence suggests that a normal person, suffering from no
disease of the mind, is susceptible to such a state, the more justified the courts will
be in finding that the trigger is external
73
2. Continuing danger factor: the need to ensure public safety
Application
In this context, application of first factor suggests that drug-taking is an external cause; reaction of a
normal person would be to develop toxic psychosis
 Strongly suggests that B wasn’t suffering from mental disorder
Provided that B abstain from drugs in the future, which he is capable of doing voluntarily, his mental
condition poses no threat to public safety
 B wasn’t suffering from a mental disorder for purposes of CC 16 at the time he committed
the assault; malfunctioning of the mind as a result of self-induced intoxication cannot be
considered a disease of the mind in the legal sense
CC 33.1 applies where three conditions are met:
1. Accused was intoxicated at the material time of the offence
2. Intoxication was self-induced
3. Accused departed form the standard of reasonable care by interfering or threatening to
interfere with the bodily integrity of another person
* CC 33.1 applies to any mental condition that is a direct extension of a state of intoxication
Holding:
Appeal dismissed; there was no mental disorder for CC 16 and CC 33.1 applies.
Defences: Intoxication
RBHS, 839-878



Canute charge on drunkenness (approved in Daley)
o Drunken intent is still intent
o When considering intent, you should take into account his consumption of alcohol or
drugs along with other factors on intent
Common law defence
o Only available for crimes of specific intent (Beard, George)
o Daviault exception
 If accused proves on a BOP that he was so drunk that he was in a state of noninsane automatism, he will be found not to have had the requisite MR
 Only available in extreme cases
o Daviault does not apply where: (s 33.1)
 By reason of self-induced intoxication, lacks the general intent or voluntariness
required to commit the offence; AND
 Departs from the standard of care set out in s.33.1(2) (i.e., the accused, while in
a state of self- intoxication rendering him/her unaware of, or incapable of
consciously controlling, his/her behaviour, voluntarily or involuntarily
interferes with, or threatens to interfere with, another person’s bodily
integrity).
o Daviault exception still applies to
 Property offences
 Specific intent offences
Self-induced intoxication
o Substituted for MR of the general intent crime if the accused was too drunk to draw the
common sense inference (Bernard)
o Test (Chaulk)
 Accused voluntarily consumed a substance
 He knew or ought to have known it was an intoxicant
 The risk of becoming intoxicated was or should have been within his
contemplation
74


Specific Intent Crimes
o Murder 1/2
o Attempt, Conspiracy, Incitement
o Theft
o Fraud
General Intent Crimes
o Assault (incl sexual)
o Manslaughter
o Arson
o Negligence
The Common Law Defence of Intoxication
DPP v Beard, [1920] UKHL
Reasons

19th C voluntary drunkenness was no defence
 Crimes of specific intent can have their MR negated by drunkenness if he was so drunk he
was incapable of forming the specific intent
 1. Insanity, whether produced by drunkenness or otherwise, is a defence
 2. Evidence of drunkenness should be taken into consideration with other facts to determine
intent
 3. Evidence of drunkenness falling short of proved incapacity to form the necessary intent does
not rebut the presumption of intention
Ratio
Drunkenness is a defence to crimes of specific intent
Capacity or Intent?
There is a difference between ‘incapacity to form intent’ and ‘absence of intent’
 Beard focused on intoxication to the point of not having the capacity to form the intent
R v Daley, [2007] SCC
Facts

D murdered his common law wife while he was drunk
Issue
Did he have the requisite MR?
Holding
Yes; appeal dismissed, 2nd degree murder conviction upheld.
Reasons (Bastarache J)
 Canute charge on drunkenness
o Drunken intent is still intent
o In considering whether the Crown has proved BARD that the accused had the required
intent, a jury must take into account his consumption of alcohol or drugs along with other
factors on intent
o If, after taking into account the consumption of alcohol, etc. along with other relevant facts
jury is left with reasonable doubt, must acquit; if not, convict.
 MacKinlay charge makes an explicit difference between capacity to have intent and actual
intent
 When there is evidence of drunkenness there must be a direct link drawn between the effect of
intoxication and the common sense inference
o Common sense inference about intent to cause consequences of ones’ actions cannot be
drawn if the jury has a reasonable doubt about intention due to drunkenness
75

Trial judge must instruct on the link between foreseeability and intoxication, but it need not be
expressly charged as such
 A separate charge on capacity, like in MacKinlay, is not necessary, but the judge can charge on
capacity if there has been expert evidence concerning it, or if the accused specifically requests it
o Two step charge confuses the jury – should use a one step Canute type charge
Fish J (dissenting)
 It was an error that the judge made no mention at all of the possibility of intoxication negating
MR
Ratio
Intent can consider intoxication.
Intoxication and Specific Intent
R v George, [1960] SCC
Facts

G got drunk and beat up and robbed an old man.
Issue
Can intoxication negate MR for theft? For common assault?
Holding
Yes. No.
Reasons (Ritchie J)

Theft is a specific intent crime
 G violently manhandled the old man and knew he was hitting him
 Voluntary drunkenness cannot be a defence for common assault because there was no
permanent or temporary insanity, and G clearly knew he was hitting a man.
Fauteux (concurring):
 Must differentiate between offences that require specific intent (ex. Murder, Theft) and offences
that only require general intent (ex. Assault, Manslaughter)
 There is no specific intent required for assault; drunkenness is a defense to theft but not assault
Ratio
Drunkenness is only a defence for specific intent crimes, not general intent.
Bernard v the Queen, [1988] SCC
Facts

B beat a girl and had non-consensual sex with her
 Claims that he was drunk when he did it so he didn’t realize what was going on, and when he did
he got off her
 Accused argues that inability to use drunkenness as defence is contrary to Charter s.7
Issue
Does drunkenness provide a defence?
Holding
Drunkeness is not a defence to crimes of general intent
Reasons (McIntyre J)

Difference between general and specific intent is for drunkenness
 Specific intent = intent or purpose going beyond the mere performance of the act in question
o The distinction isn’t artificial; there’s a world of difference between the man who in
frustration/anger strikes out at his neighbour in a public place with no particular purpose
or intent in mind, other than to perform the act of striking, and the man who strikes a
similar blow with intent to cause death or serious injury
 Drunkenness is no defence to general intent, except maybe if someone gets so drunk he is an
automaton
76
Can find MR in two ways:
 1. common sense inference (which might not fly if the accused is too drunk);
o Person presumed to have intended the natural consequences of his actions
 2. Invoking voluntary self-induced intoxication = evidence of self-induced intoxication as
evidence of the guilty mind
o The recklessness in getting drunk is substituted for the particular MR
o Proof of voluntary drunkenness is proof of a guilty mind
o By getting drunk, the accused was no longer morally innocent
Wilson J (concurring)
 Sexual assault doesn’t require an intent or purpose beyond the intentional application of force
 Not convinced of the “intentional self-induced intoxication” mens rea evidence enunciated as the
2nd option by McIntyre
o The HoL in Majewski stated that not even self-induced intoxication producing
automatism can be a defence to general intent crimes, but Canada doesn’t go so far
o Should allow for defence of drunkenness when the accused is so drunk the state is akin
to automatism
Dickson J (dissenting)
 The specific/general intent dichotomy is an artificial one, and voluntary drunkenness should not
substitute for MR because it basically creates absolute liability for drunk people
 The dichotomy between this rule and Pappajohn is too confusing
o Where intoxication is a factor in inducing a mistaken belief in consent, the jury must be
instructed that while an honest but unreasonable belief will negate mens rea
(Pappajohn) they are to disregard the effect that intoxication might have had in
inducing that mistake (Leary)
Ratio
Intoxication isn’t a defence to sexual assault or crimes of general intent
Extreme Intoxication and General Intent
R v Daviault, [1994] SCC
Facts
 D raped a handicapped woman when he was drunk
 He claims to have no recollection, and the amount of liquor he drank (8 beers and a 40 of
brandy) would kill any normal person who is not an old alcoholic like D
Issue
Does extreme drunkenness negate MR for the general intent crime of sexual assault?
Holding
Yes.
Reasons (Cory J)

Charter requires that there must be an exception to the general rule drunkenness does not
provide a defence to general intent crimes when the level of drunkenness is so extreme that the
accused’s actions were not voluntary; amounted to automatism/disease of the mind as per CC 16
o McIntyre’s drunkenness as guilty mind doesn’t work
 Substituted MR to get drunk cannot establish the MR for sexual assault
 Link must exist between minimal mental element and prohibited act
o In cases of intoxication to this extent, it doesn’t exist
o Violation cannot be saved under s 1
 The defence is still only available to those whose drunkenness is so severe they enter a
state akin to insane automatism
 Extreme intoxication should be established on a BOP by the accused
o Reversal of Burden of Proof to the accused; justified under s.1 because accused is only one
who can realistically prove it
Sopinka J (dissenting)
77

The Leary rule precluding a defence of voluntary intoxication should be maintained even in cases
such as this
Ratio
Extreme intoxication can negate MR for crimes of general intent.
* CC 33.1 added as response to Daviault (pretty much affirming Sopinka’s dissent)
* Defence of Intoxication:
 For specific offences: YES
 General Intent: if they’re listed in CC 33.1 then NO
o If they aren’t listed in CC 33.1 then YES (if you can prove an air of reality of extreme
intoxication)
o Ex. breaking and entering
 General intent offence not listed under CC 33.1
 Not specific intent offence
 So covered by Daviault; if it has air of reality of extreme intoxication
Self-Induced Intoxication: CC 33.1
R v Chaulk, [2007] NSCA
Facts

C was drunk and assaulted Mr M and a girl
 He claims that he took a pill someone gave him that he thought was a caffeine pill, but was clearly
something else because it made him go crazy
Issue
Was C’s intoxication self induced, thereby not providing a defence?
Holding
No.
Reasons (Bateman JA)

Section 33.1 says it is no defence if the accused’s intoxication was self induced
 Voluntary self-induced intoxication means the consuming of a substance where the
person knew or had reasonable grounds for believing such might cause him to be
impaired
o The accused need not contemplate the extent of intoxication, nor must he intend a certain
level of intoxication
 Test for self induced intoxication
1. Accused voluntarily consumed a substance
2. He knew or ought to have known it was an intoxicant
3. The risk of becoming intoxicated was or should have been within his contemplation.
Ratio
Test for self induced intoxication.
Defences: Necessity



Common law defence, recognized in Canada since 1984 (Perka)
o Specifically for crimes committed in urgent situations of clear and imminent peril in
which the accused has no safe avenue of escape or legal way out of the situation
Excuse, doesn’t attack mens rea
Test (Perka)
o Imminent peril or danger (modified objective standard)
78

o No reasonable legal alternative (modified objective standard)
o Proportionality between harm inflicted and harm avoided (objective standard)
Does not apply to
o Murder (Dudley and Stephens, Latimer)
Necessity and Abortion
Morgentaler v The Queen, [1976] SCC
Facts

M performed an illegal abortion
 He claimed necessity because without the abortion the woman “might do something foolish”;
woman was foreign student in Canada, no money, no family, hospitals had all turned her down
Issue
Can he use necessity as a defence?
Holding
No
Reasons (Dickson J)

Necessity cannot justify: killing (R v Dudley and Stephens), the starving stealing food, squatting
by the homeless
 If a necessity defence does exist, it only does so to justify non-compliance in urgent situations of
clear and immediate peril when compliance with the law is demonstrably impossible
 Test for necessity
o In good faith the accused considered failure to abort could endanger life or health
o Upon a reasonable view of the facts compliance with the law was impossible
 Necessity cannot arise out of purely economic circumstances
 There was no urgent medical need here; argument that there wasn’t a legal alternative is weak
Laskin: (dissenting)
 There was urgency and serious medical issue present
 It was for the jury to say whether, in such circumstances, the harm sought to be avoided by
performing the abortion was an immediate and physical one, and whether there was
enough of an emergency in this respect facing the accused as to make it certain there
could be no effective resort to cope with the emergency
Ratio
Introduced the possibility for necessity defence.
R v Morgentaler, [1985] ONCA
Reasons

Necessity must be based on truly involuntary action
 Compliance with the law must be demonstrably impossible – no legal way out
 Here, the accused consciously agreed to violate the law
 Defence is not premised on dissatisfaction of the law
 Law cannot create necessity, only the facts can
Ratio
Necessity only available where there is no legal way out.
Necessity as an Excuse or Justification?
Perka v The Queen, [1984] SCC
Facts

P was an officer on a ship that was forced to port in a storm
 The ship was carrying 34 tons of marijuana from Colombia to Alaska
79

The officers and crew were charged with importing a narcotic and possession for the purpose of
trafficking
Issue
Is necessity a defence for the charge of importing?
Holding
Yes.
Reasons (Dickson CJ)

Necessity is an excuse – realistic assessment of human weakness
 Compliance with the law must be demonstrably impossible – action must be involuntary
 Situation must be urgent and peril imminent
 Must ask: was there a legal way out? – reasonable legal way out invalidates the defence
 Response must be proportional
 Onus on the crown to disprove BARD where there is an air of reality
Wilson J: (concurring in the result)
 Necessity might be used as a justification sometimes, and this would reduce the imminence
requirement
 She wants the defence to be: because it was the right thing to do
 Doesn’t depend as much on being squeezed, imminence of the danger
 She wants it to be possible where there is a conflicting positive obligation
 Ex. in Morgentaler: it is my moral obligation to help this person
Ratio
Necessity is available in “an urgent situation of clear and imminent peril when compliance with the
law is demonstrably impossible”
* Not yet settled whether the fault of the accused bringing about a necessitous situation ought to
disentitle the accused from claiming necessity
 In Perka, Dickson CJ said it probably would
R v Ruzic, [2001] SCC

Held that where someone has no choice, it would be unconstitutional to assign them criminal
liability
Latimer v The Queen, [2001] SCC
Facts

L killed his critically disabled daughter
 Claimed necessity because she was in pain and would have undergone more horrible surgery
Issue
Was there an air of reality to the defence of necessity?
Holding
No.
Reasons (The Court)

Necessity requires true involuntariness
Perka test:
1. Imminent peril,
o Not enough that peril is foreseeable or likely, must be on the verge of transpiring or
virtually certain to occur
2. No reasonable legal alternative,
o If there was a reasonable legal alternative, there is no necessity
3. Proportionality
o Two harms must be, at minimum, of comparable gravity
 Modified objective test for first two steps – objective evaluation taking into account
80
situation and characteristics of the particular accused
Proportionality is assessed with an objective test
o Gravity of act is matter of community standards infused with constitutional considerations
 Jury is only left with the defence if there is an air of reality
Ratio
Peril must be imminent, not just foreseeable.

Defences: Duress
RBHS 903-929

1. Codified in restrictive form in CC 17
o Offence committed under compulsion by threats of immediate death or bodily harm
from a person who is present when the offence is committed is excused if the person
believes the threats will be carried out
o Does not apply to treason, murder, piracy, attempted murder, sexual assault (with
a weapon, aggravated), threats causing bodily harm, forcible abduction, hostage
taking, robbery, assault with a weapon (causing bodily harm, aggravated), arson,
abduction of young persons
o Only for principals; the persons who actually committed the offence as principal
offenders (Paquette)
o “Immediate” and from a person who is “present when the offence was committed” are
read down (Ruzic)
o Accused must believe the threat will be carried out.
 2. Common law defence of duress
o Legitimate because the Code preserves common law excuses and justifications (s 8(3))
o Available for parties to an offence (Paquette)
o Available for parties to murder (Paquette) and attempted murder (Hibbert)
Test
1. Threats (serious)
2. No safe avenue of escape in accused’s perception of the facts
 Objective standard, considering context and accused’s human frailties
(Hibbert)
 Defence can raise a reasonable doubt about whether the accused has MR
 Duress does not negate intent to be a party to a crime (Hibbert)
 Not available where there is a safe avenue of escape (Mena)
Paquette v The Queen, [1977] SCC
Facts

C told P to drive him to the Pop Shoppe, and threatened to kill P with a gun to his head
 The robbery went bad, and resulted in murder
Issue
Is duress available for P?
Holding
Yes; appeal allowed.
Reasons (Martland J)

Section 17 is limited to principals; those who actually committed the offence
 Duress is available to a person who aided and abetted a murder, and it is also available as a
defence to charges under 21(2)
Ratio
Common law defence of duress available for parties to crimes; s 17 only available for principals
81
R v Mena, [1987] ONCA
Reasons

Section 17 is only available for principals, not for liability under aiding/abetting: 21(1)(b) or (c),
or 21(2)
o Section 17 requires subjective assessment of the accused’s belief
 Where on the facts not in dispute the accused had an obvious safe means to escape and no
reasonable jury could come to any other conclusion, the judge is entitled to hold, as a matter of
law, that the defence of duress is unavailable
o In this case, the defence should have been left to the jury
Holding:
Conviction quashed, new trial ordered.
Ratio
Duress only available where there is no safe means of escape
R v Hibbert, [1995] SCC
Facts

H was friends with the victim
 X made H call his friend down to the lobby so X could kill the friend, threatening to kill H if he
didn’t
 H stood by while X shot the victim
Issue
Did duress negate H’s MR for attempted murder?
Holding
No.
Reasons (Lamer CJC)

Paquette says duress can excuse conduct or negate MR
 Situations where duress negates MR will be exceptional
o Structure of the offence requires a specific MR which duress can negate
o In these situations, accused can point to duress when guilt is being assessed
 Purpose does not mean desire in 21(1)(b), synonymous with intention
o Cannot be negated by duress
 Duress is a freestanding offence, it does not negate AR or MR
o Invoked despite being found guilty of the crime
 Particular variety of necessity
 Safe avenue of escape
o Existence of safe avenue of escape means compliance with the law was not demonstrably
impossible
o Determined objectively taking into account circumstances and human frailties of the
accused
o Must consider accused’s perception of the facts
Ratio
Duress does not negate the MR in most cases, but operates as a freestanding excuse after guilt is
established.
R v Ruzic, [2001] SCC
Facts
R. caught bringing heroin into Canada from Belgrade. Charged with possession and unlawful
importation of narcotic. R. claims she was forced to do it through threats to her mother back home by
mysterious paramilitary guy who stalked her, harassed her. She didn’t tell anyone else about the guy
because she was afraid he would harm them. She believed the only way to protect her mother was to
82
not talk to anyone.
Reasons (Lebel J)

Notion of moral voluntariness first brought up in Perka
o In that case it was necessity that was discussed; Dickson pointed out that it was an excuse
o Extending that reasoning to duress, court found in Hibbert that duress too rests on notion of
moral involuntariness
o Like necessity, it is an excuse; doesn’t negate mens rea, but forgives the offence
* Not a firm enough ground to establish principle of fundamental justice
However, relation of moral involuntariness to the AR has more weight
 Absence of moral voluntariness with regards to the AR always brings complete and
unqualified acquittal
 Would violate Charter s 7 otherwise (“life, liberty, security of the person”)
 Critical importance of autonomy in attribution of criminal liability
 Fundamental principal of criminal law: offenders are “rational, autonomous, choosing agents”
 The ‘immediacy’ and ‘presence’ requirements for duress no longer apply
 Common law defence does not have the immediacy requirement
 Threats of future harm are sufficient to invoke common law defence
o Must be a close temporal link between the threat and the commission of the offence
o Proportionality and lack of safe avenue of escape are central to the defence
Holding
Appeal dismissed, acquittal confirmed.
Ratio
Voluntariness is required by s 7 for offences to attract criminal liability; the old immediacy and
presence requirements for duress no longer apply for CML defence
R v Ryan, [2013] SCC
Facts:
R. was victim of violent, abusive, controlling husband. She believed that he would kill/seriously harm
her and her daughter and that she didn’t have a safe avenue of escape other than having her killed.
She tried to hire undercover cop to kill her husband, charged under CC 464(a). Trial judge acquitted
on duress, CA upheld acquittal.
Issue:
Is the defence of duress available?
Reasoning: (Lebel and Cromwell)
Duress only available when person commits an offence while under compulsion of a threat made for
the purpose of compelling them to commit the offence
 This was not R.’s situation; duress isn’t available to her
 If an accused is threatened without compulsion, their only defence is self-defence
Duress:
 Like necessity, it is an excuse
 Law excuses because it is committed in a morally involuntary manner where there was
realistically no choice but to commit the act
Self-Defence:
 A justification based on principle that it is lawful to resist force/threat of force with force
 The victim/attacker is the author of their own misfortune; generally, will be more readily
available than duress
* Duress must remain applicable only in situations where the accused has been compelled to
commit a specific offence under threats of death/bodily harm
1. There must be an explicit/implicit threat of present or future death/bodily harm directed at
accused or third party
2. Accused must reasonably believe that the threat will be carried out
3. There must be no safe avenue of escape, evaluated on a modified objective standard
4. There must be a close temporal connection between the threat and the harm threatened
83
5. There must be proportionality between the harm threatened and the harm inflicted
by the accused, also on modified objective standard
6. Accused cannot be a party to a conspiracy whereby they are subject to compulsion and
actually knew that threats/coercion to commit an offence were a possible result of this
criminal activity, conspiracy, etc.
These are exceptional circumstances; R. suffered enormous abuse and long trial process and the
unclear law of duress exacerbated this
 This warrants a stay of proceedings, although the appeal should be allowed
Fish: (dissenting in part)
The defence of duress wasn’t available to R. and acquittal should be set aside; stay of proceedings
also not warranted
 New trial should be ordered, leaving it to Crown to decide whether the public interest
requires a new trial
Holding:
Appeal allowed; however, stay of proceedings ordered.
Ratio:
There must be proportionality between harm threatened and harm inflicted by accused
There must be objective reasonable belief that threats would be carried out
Shaffer, “Coerced into Crime: Battered Women and the Defence of Duress”
Increasing evidence that battered women are coerced into committing criminal offences by their
abusers
 In these situations, defence of duress has almost unanimously been rejected by the courts
Why?
1. Disbelief of story or of existence of duress
2. Evidentiary concerns regarding admissibility of evidence of battering outside the self
defence context
3. Doctrinal requirements of defence of duress itself
Serious inadequacies in existing law of duress from standpoint of gender equality
Defences: Self-Defence
OLD PROVISIONS: (see “Not on 2012 Amendments” below for new provisions)
 CC 34(1) Everyone who is unlawfully assaulted without having provoked the assault is
justified in repelling force by force if the force he uses is not intended to cause death or
grievous bodily harm and is no more than is necessary to enable him to defend himself.
Test for 34(1) (R v Kong)
1. Unlawful assault
2. Assault was not provoked
3. No apprehension of death
4. Lack of intent to kill or cause grievous bodily harm
5. Force used is no more than necessary for self defence


34(2) everyone who is unlawfully assaulted and causes death or grievous bodily harm in
repelling the assault is justified if
o he is under a reasonable apprehension of death or grievous bodily harm
o he believes on reasonable grounds that he cannot otherwise preserve himself from
death or grievous bodily harm
Test for 34(2) (Pétel, Cinous)(each step has a subjective and an objective component, and both
must have an air of reality)
o Unlawful assault
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Reasonable apprehension of a risk of death or grievous bodily harm
 Danger does not need to be imminent (Lavallee)
o Reasonable belief it is not possible to preserve oneself from harm except by killing the
adversary
Can be provoked
Can have the intention to kill
Excessive force can disentitle the accused the ability to raise the defence (Faid)
o



RBHS 931-975
R v Bogue, [1976] ONCA
Facts

B’s boyfriend M was beating on her
 The neighbours came up to see what was happening and found B on the floor and M beating her;
they left to call the police
 When the police got there B had stabbed M, claiming self defence
Issue
Is self defence an available excuse?
Holding
Yes; appeal allowed, guilty verdict set aside, new trial ordered
Reasons (Howland JA)

34(1) is for when the accused repels unprovoked assault, but doesn’t intend to kill
o No more force than necessary
 34(2) is for intentional killing – no specific requirement for proportionality if other factors are
satisfied
o Reasonable apprehension of death or grievous bodily harm (objective)
o Reasonable belief the accused cannot preserve himself otherwise (subjective-objective) –
can be a mistaken belief
 34(2) realizes sober reflection is impossible where life is in the balance
 Must consider accused’s state of mind
Ratio
Must consider 34(2) from the accused’s point of view, compare it to reasonable person
R v Pawliuk, [2001] BCCA
Facts

P saw Pr running across the street at him, P thought Pr was armed and intended to kill him
 P shot Pr and claimed self defence
Issue
Is either 34(1) or 34(2) available?
Holding
Only 34(2).
Reasons (Ryan JA)

Sections are differentiated by a reasonable apprehension of death or grievous bodily harm; lack
of intention to kill is not determinative
o An accused may resort to the self-defence provisions at CC 34(2) whether or not he or
she intends to cause death or grievous bodily harm
 P’s entire defence was premised on a belief the victim was going to kill him
o Improper to focus on intent in differentiating the sections
 Pintar held that if there is a reasonable apprehension of death, the response need not be
proportional
Ratio
34(2) applies where there is a reasonable apprehension of death; intention of accused to cause death
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is not a requirement. There is no proportionality requirement.
Reilly v The Queen, [1984] SCC
Facts

Accused claims trial judge erred in not instructing the jury to consider evidence of his
intoxication when considering his claim of self defence
Reasons (Ritchie J)
 Apprehension of death must be reasonable and his belief must be based upon reasonable and
probable grounds
 Must consider accused’s appreciation of the situation and his belief as to the reaction it required,
so long as there is an objectively verifiable basis for his perception, defence stands
o Mistaken perception still grounds self defence, as long as the mistake is one the
reasonable man would have made in the circumstances
 Intoxication can be a factor in inducing honest mistake, it cannot induce a mistake which must be
based upon reasonable and probable grounds  the reasonable man isn’t drunk
o An intoxicated man may still hold a reasonable belief, but that would be held in spite
of his intoxication
Ratio
Apprehension of death must be reasonable and his belief must be based upon reasonable and
probable grounds (which does not take drunkenness into account)
R v Faid, [1983] SCC
Ratio
Excessive force in self defence does not leave open a partial defence, nor does it reduce murder to
manslaughter. The difference between murder and manslaughter is determined with reference to
intent described in s 212.
 Once jury decides that excessive force has been used, the defence of self-defence is lost
Still necessary to prove necessary AR and MR for manslaughter/murder, etc.
* But how does this jive with the ruling in Pawliuk?
R v Cinous, [2002] SCC
Facts

C was a gangbanger who thought the other guys he was working with were going to kill him
 He shot one of them in the back of the head at a gas station, and claims self defence
Issue
Was his apprehension of death reasonable enough to ground a defence in 34(2)?
Holding
No.
Reasons (McLachlin CJC & Bastarache J)

Three conditions of self defence were not met, so the defence lacked an air of reality
 Test for 34(2)
1. Unlawful assault
2. Reasonable apprehension of a risk of death or grievous bodily harm
3. Reasonable belief it is not possible to preserve oneself from harm except by killing the
adversary
 All three steps must have an air of reality for the defence to be put to the jury
 Accused’s perception is subjective, but must be reasonable based on his perception of the
situation
o Each step has a subjective element, then an objective analysis of reasonableness  each
must have an air of reality
 Existence of unlawful assault is not necessary, just a reasonable perception on the part of the
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
accused
The defence here fails on the objective branch of the third step – it was not reasonable for
the accused to believe he had no alternative except to kill Mike
o For the claim to appear reasonable, the reasonable man would need to think like a member
of a gang, which is the antithesis to public order
o C could have called the police, the only reason why he thought this was unreasonable
was because he was a criminal, which doesn’t fly
R v Lavallee, [1990] SCC
Facts

L lived with her boyfriend R, who often beat her
 One night after their friends had left after a party, R told L he was going to kill her that night
unless she killed him, he handed her a shotgun
 L shot R in the back of the head as he was leaving the room
Issue
Can L claim self-defence?
Holding
Yes.
Reasons (Wilson J)

Expert evidence about domestic violence is relevant and necessary  “battered wife
syndrome”
o No man has a right to abuse a woman under any circumstances
o Jury’s common sense cannot apply to a battered woman, because they cannot know her
psychological situation
 The definition of reasonableness must be adapted to the circumstances of the case, which
can only be done with expert evidence in cases of battered women
o 34(2)(a) does not require imminent danger, but case law has read that requirement in
o Time lag between assault and self-defence often leads one to suspect revenge rather than
self defence
 Battered women tend to be able to anticipate their partner’s violence better than a
stranger can anticipate violence
o Expert testimony can help the jury understand whether an apprehension of death is
reasonable
o Law does not require the fear to be correct, just reasonable
 Society gains nothing by requiring the accused to wait until the beatings began to respond
o Environmental factors impair a woman’s ability to leave an abusive relationship
o Situation of a battered woman is like that of a hostage
Ratio
Danger need not be imminent, but there must be air of reality that assault was coming in some way
* Easing of the imminence requirement as was done in the defence of Duress
Objective standard, but the objective standard reflects the views of old white men
Lavallee
 To correct for that: subjectivized reasonable person
 What would the reasonable person in an abusive relationship who had this set of
experiences reasonably perceive?
 Not a blanket ‘battered woman defence’; you still have to ask whether it was reasonable in
the context
R v Pétel, [1994] SCC
Facts

P lived with her daughter and granddaughter and her boyfriend E, who frequently threatened
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and beat her
E worked with R, and one day went to P’s house and forced her to weigh some cocaine, hide a
weapon, and he threatened to kill her, her daughter, and her granddaughter
 P did some coke, shot and wounded E and shot and killed R when she perceived him to be
lunging at her/
Issue
Was the trial judge in error when not relating evidence of past abuse to the elements of 34(2)?
Holding
Yes.
Reasons (Lamer CJC)

Elements of 34(2)
1. Unlawful assault
2. Reasonable apprehension of death or grievous bodily harm
3. Reasonable belief it is not possible to preserve oneself from harm except by killing the
adversary
 Apprehension must be a reasonable one and belief must be based upon reasonable and
probable grounds
o Honest but reasonable mistake as to the existence of the assault is permitted
o Accused (not the victim) must be given the benefit of a reasonable doubt when considering
if there was an assault
 Danger does not need to be imminent (Lavallee)
 Judge erred in not relating earlier threats to the elements of self defence – relevant to
determining reasonable apprehension and belief – integral part of the circumstances on
which the accused’s perception might have been based
Ratio
Confirms Lavallee, belief there is no way out must be reasonable.

There is a duty to retreat in CC 34(2)
 How else can you say there was no other way to preserve yourself if you have an
opportunity of escape?
R v Malott, [1998] SCC
Facts

Mr M was a police drug informant who often abused Mrs M emotionally, psychologically,
sexually, and physically
 Mrs M shot Mr M when they were at a drugstore, and then shot and stabbed his girlfriend S
Reasons (Major J)
 Expert evidence on battered woman syndrome is admissible
 Jury must understand
o Why a woman might remain in an abusive relationship
o The nature and extent of the violence that may exist in a battering relationship
o Accused’s ability to perceive danger from her abuser
o Whether the accused believed on reasonable grounds that she could not otherwise preserve
herself from death or grievous bodily harm
 Jury was properly charged, and it still found murder, not self defence
L’Heureux-Dubé (concurring)
o Admission of expert evidence in Lavallee is the court recognizing women have been
unfairly treated
o “Battered woman syndrome” is not a defence in itself
o Perspectives of battered women must inform the defence
o Possible women who can’t fit themselves within the stereotype of a victimized, passive,
helpless, dependent, battered woman will not have their claims to self defence fairly
deicided
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o
Focus must remain on the reasonableness of a woman’s actions, not whether she can
claim to be a battered woman
 Focusing too much on “battered woman syndrome” reinforces societal stereotypes of
women.
Ratio
Focus on reasonability of actions, not battered woman syndrome.
Note on 2012 CC Amendments: Kent Roach (IMPORTANT)
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or
that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting
themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall
consider the relevant circumstances of the person, the other parties and the act, including, but not
limited to, the following factors:
(a ) the nature of the force or threat;
(b ) the extent to which the use of force was imminent and whether there were other means available
to respond to the potential use of force;
(c ) the person’s role in the incident;
(d ) whether any party to the incident used or threatened to use a weapon;
(e ) the size, age, gender and physical capabilities of the parties to the incident;
(f ) the nature, duration and history of any relationship between the parties to the incident, including
any prior use or threat of force and the nature of that force or threat;
(f.1 ) any history of interaction or communication between the parties to the incident;
(g ) the nature and proportionality of the person’s response to the use or threat of force; and
(h ) whether the act committed was in response to a use or threat of force that the person knew was
lawful.
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