LAW
120
CRIMINAL
Condensed
Annotated
Notes
TABLE OF CONTENTS
1.
INTRODUCTION TO CRIMINAL LAW ...................................................................................................... 4
R v MOYER (1994) SCC .......................................................................................................................... 5
2. PROVING THE CRIME ............................................................................................................................ 5
R v LIFCHUS [1997] SCC ........................................................................................................................ 6
R v JHS [2008] SCC ................................................................................................................................. 7
R v STARR [1997] SCC ............................................................................................................................ 7
R v OAKES (1986) SCC............................................................................................................................ 7
R v DOWNEY [1992] SCC ....................................................................................................................... 8
R v WHYTE [1988] SCC ........................................................................................................................ 10
3. ELEMENTS OF THE OFFENCE ............................................................................................................... 10
4. THE ACTUS REUS ................................................................................................................................. 11
A. The Principle of Legality ...................................................................................................................... 11
FREY v. FEDORUK [1950] SCC .............................................................................................................. 11
B. Statutory Interpretation and the Actus Reus ..................................................................................... 12
R v. MOQUIN [2010] MBCA................................................................................................................. 12
C. OMISSIONS.......................................................................................................................................... 12
R v. FAGAN [1968] UK CA .................................................................................................................... 12
R v. MOORE [1978] SCC....................................................................................................................... 13
R v. THORNTON [1991] Ontario CA ..................................................................................................... 13
D. VOLUNTARINESS ................................................................................................................................. 14
R v JIANG [2007] BCCA ........................................................................................................................ 14
R v LUCKI [1955] BCCA ........................................................................................................................ 14
5. CAUSATION ......................................................................................................................................... 14
R v SMITH [1959] UK CA ...................................................................................................................... 15
R v. SMITHERS [1978] SCC ................................................................................................................... 15
R v. HARBOTTLE [1993] SCC ................................................................................................................ 15
R v. BLAUE [1975] UK CA ..................................................................................................................... 16
R v. NETTE [2001] SCC ......................................................................................................................... 16
R v. JSR [2008] SCC .............................................................................................................................. 16
R v. MAYBIN [2012] SCC ...................................................................................................................... 17
6. MENS REA ........................................................................................................................................... 17
R v BEAVER [1957] SCC........................................................................................................................ 18
R v BUZZANGA & DUROCHER [1980] Ont. CA ..................................................................................... 18
R v THEROUX [1993] SCC..................................................................................................................... 19
R v BLONDIN [1971] SCC ..................................................................................................................... 19
R v. BRISCOE [2010] SCC ..................................................................................................................... 20
R v. LEWIS [1979] SCC ......................................................................................................................... 20
R v. GORDON [2009] SCC .................................................................................................................... 20
7. MENS REA AND THE CHARTER ............................................................................................................ 21
REFERENCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT [1986] SCC .......................................... 21
R v VAILLANCOURT [1987] SCC ........................................................................................................... 22
R v MARTINEAU [1999] SCC ................................................................................................................ 22
R v SHAND [2011] ONT CA .................................................................................................................. 23
R v DESOUSA [1992] SCC ..................................................................................................................... 23
R v CREIGHTON [1993] SCC ................................................................................................................. 24
8. DEPARTURES FROM SUBJECTIVE MENS REA ...................................................................................... 25
1
R v SAULT STE. MARIE [1978] SCC ....................................................................................................... 25
R v CHAPIN [1979] SCC ........................................................................................................................ 25
R v RAHAM [2010] ONT CA ................................................................................................................. 26
R v TUTTON (1989) SCC ....................................................................................................................... 26
R v JF (2008) SCC ................................................................................................................................. 27
R v HUNDAL [1993] SCC ...................................................................................................................... 27
R v BEATTY [2008] SCC ........................................................................................................................ 28
R v ROY [2012] SCC.............................................................................................................................. 28
9. MISTAKE .............................................................................................................................................. 29
A. MISTAKE OF FACT ........................................................................................................................... 29
R v KUNDEUS [2012] SCC .................................................................................................................... 29
R v PAPPAJOHN [1980] SCC................................................................................................................. 30
R v LETENDRE [1991]........................................................................................................................... 30
R v EWANCHUK [1999] SCC ................................................................................................................. 31
R v DARRACH [2000] SCC ................................................................................................................... 31
B. MISTAKE OF LAW ............................................................................................................................ 31
R v CAMPBELL & MLYNARCHUK [1973] AB DC ................................................................................... 32
LÉVIS (CITY) v TÉTREAULT; LÉVIS (CITY) v 2629-4470 QUÉBEC INC [2001] SCC .................................. 32
10.
INTOXICATION & PROVOCATION .................................................................................................... 33
A. INTOXICATION................................................................................................................................. 33
R v BERNARD [1988] SCC..................................................................................................................... 34
R v DAVIAULT [1994] SCC .................................................................................................................... 34
R v DRADER[2009] BC PROV CT........................................................................................................... 35
R v PENNE [1990] SCC ......................................................................................................................... 35
B. PROVOCATION ................................................................................................................................ 35
R v HILL [1985] SCC ............................................................................................................................. 35
R v THIBERT [1996] SCC....................................................................................................................... 36
R v TRAN [2010] SCC ........................................................................................................................... 37
R v GILL [2009] ON CA ......................................................................................................................... 37
R v NEALY [1986] ON CA ..................................................................................................................... 38
11.
MENTAL DISORDER ......................................................................................................................... 38
A. THE DEFENCE OF MENTAL DISORDER ............................................................................................. 38
R v COOPER [1980] SCC ....................................................................................................................... 39
R v CHAULK [1990] SCC ....................................................................................................................... 40
B. AUTOMATISM ................................................................................................................................. 40
R v RABEY [1977] SCC .......................................................................................................................... 40
R v PARKS [1990] SCC .......................................................................................................................... 40
R v STONE [1999] SCC ......................................................................................................................... 41
C. RELATIONSHIP WITH INTOXICATION .............................................................................................. 42
R v BOUCHARD-LEBRUN [2011] SCC ................................................................................................... 42
D. FITNESS TO STAND TO TRIAL........................................................................................................... 42
12.
SELF-DEFENCE ................................................................................................................................. 43
6 ELEMENTS OF SELF-DEFENCE ............................................................................................................... 43
R v LAVALLEE [1990] SCC..................................................................................................................... 44
R v PÉTEL [1994] SCC ........................................................................................................................... 45
R v MALOTT [1998] SCC ...................................................................................................................... 45
INCONSISTENT SELF-DEFENCE PROVISIONS ........................................................................................... 46
R v McINTOSH [1995] SCC ................................................................................................................... 46
2
R v CINOUS [2002] SCC........................................................................................................................ 46
DEFENCE OF NECESSITY & DURESS ................................................................................................. 47
NECESSITY ....................................................................................................................................... 47
R v PERKA, NELSON, HINES & JOHNSON [1984] SCC .......................................................................... 48
R v LATIMER [2001] SCC ...................................................................................................................... 48
R v UNGAR [2002] ONT CJ ................................................................................................................... 49
RE A (CHILDREN) (CONJOINED TWINS: SURGICAL SEPARATION) [2001] UK CA ................................. 49
R v WALDNER [2001] MB Prov Ct........................................................................................................ 49
MCMILLAN BLOEDEL v SIMPSON ET AL [1994] BCJ ............................................................................ 49
B. DURESS............................................................................................................................................ 49
HIBBERT v THE QUEEN [1995] SCC...................................................................................................... 50
R v RUZIC [2001] SCC........................................................................................................................... 50
R v RYAN [2012] SCC ........................................................................................................................... 51
14.
PARTICIPATORY LIMITS: ATTEMPTS & PARTIES .............................................................................. 52
A. ATTEMPTS ....................................................................................................................................... 52
R v ANCIO [1984] SCC.......................................................................................................................... 52
USA v DYNAR [1997] SCC .................................................................................................................... 53
B. PARTIES ........................................................................................................................................... 54
R v. BRISCOE [2010] SCC ..................................................................................................................... 54
R v FRASER [1984] BCCA ..................................................................................................................... 55
R v DUNLOP & SYLVESTER [1979] SCC ................................................................................................ 55
R v. JSR [2008] ON CA.......................................................................................................................... 56
R v THATCHER [1987] SCC ................................................................................................................... 56
R v LOGAN [1990] SCC......................................................................................................................... 57
15.
SENTENCING PRINCIPLES AND PARAMETERS ................................................................................. 57
A. PRINCIPLES OF SENTENCING ........................................................................................................... 57
R v SWEENEY [1992] BCCA .................................................................................................................. 58
B. MANDATORY MINIMUM SENTENCES ............................................................................................. 59
R v FERGUSON [2008] SCC .................................................................................................................. 59
C. MAXIMUM SENTENCES ................................................................................................................... 59
R v M(L) [2008] SCC ............................................................................................................................. 59
16.
SECONDARY SENTENCING PRINCIPLES ........................................................................................... 60
A. ABORIGINAL PEOPLES AND SENTENCING PRINCIPLES.................................................................... 60
R v GLADUE [1999] SCC ....................................................................................................................... 60
R v IPELLEE; R v LADUE [2012] SCC ..................................................................................................... 61
B. PARITY AND TOTALITY..................................................................................................................... 61
R v AKEPEW ......................................................................................................................................... 61
C. MITIGATING CIRCUMSTANCES ....................................................................................................... 61
R v NASOGALUAK [2010] SCC.............................................................................................................. 61
R v DRAPER [2010] MBCA ................................................................................................................... 62
13.
A.
3
1. INTRODUCTION TO CRIMINAL LAW
Sources of Criminal Law:
- Federal statutes
- Constitution (1867 & 1982)
Unlike America, there is one criminal law for the entire country, and not for separate
provinces/states. What happens if a province passes a law against assault? If you're charged under
that statute, you could challenge its constitutionality and argue that the provincial law is ultra vires
- outside the legislative competence of the provincial government.
s 91 (28) of BNA
The federal government has jurisdiction over penitentiaries.
s 92 (6) of BNA
The provincial government has jurisdiction over prisons and jails.
How does this work? Depending on the length of your sentence, you will go to a different
institution. For sentences of less than 2 years, go to provincial jail. For sentences of more than 2
years, go to federal penitentiary. Judges will often give sentences of 2 years less a day for this reason.
s 92 (13) BNA
Provinces has jurisdiction over laws of property and civil rights in the province.
There is overlap with the powers of the federal government - there may be areas of dual
competences. Laws governing driving and motor vehicles have both provincial and federal origin.
Federal law prohibits driving with BAC above 0.08 and driving while impaired. BC and AB have
recently passed laws prohibiting driving with BAC above 0.05. BC also gave the police and crown
the option to go the criminal code route or by an administrative regime which didn't have criminal
record ramifications but had no option of appeal (this aspect was later overturned). The
administrative regime was preferred while it was in operation.
The Province can't create true criminal offenses (if you're convicted you get a provincial record,
but not a criminal one). What happens if there's a conflict between provincial and federal law?
Federal law supersedes provincial law = federal paramountcy. Canadian criminal law is codified in a
centralized statute - the Criminal Code. There are a few serious indictable offenses in other statutes
such as the Controlled Drugs Act and the Income Tax Act. The first Criminal Code came into effect
on January 1, 1893 - abolished common law offenses.
s9
Notwithstanding anything in this Act or any other Act, no person shall be convicted or
discharged under section 730 (a) if an offence at common law, (b) of an offence under an Act of the
Parliament of England, or of Great Britain or of the United Kingdom of Great Britain and Ireland, or
of an offence under an Act or ordinance in force in any province, territory or place before that
province, territory or place became a province of Canada.
This prevents the arbitrary application of the law by judges and allows Canadians to know
what criminal offenses are simply by looking up the Criminal Code - no need to check common law.
One exception to s. 9 - contempt of court. Contempt of court is widely understood, and is defined in
common law rather than the Criminal Code.
4
s 8 (1)(3)
Common law defenses are still allowed. This allows the courts and judges to create common law
defenses to charges. This allows for more flexibility and fairness - this ability can only help the
accused, and not hinder them. Sometimes, legislatures will step in after the creation of a new
common law defense and codify it in one statute or another.
Charter gives accused a number of basic rights which they can exercise before the court for
remedies. One of the most common: if police obtained evidence in a manner that infringed on the
accused's charter rights, that evidence may be excluded from the trial. The Charter also gives
accused some positive rights - the right to a trial in English or French, or an interpreter in the event
that the accused speaks neither language.
R v MOYER (1994) SCC
FACTS
A took photos in a Jewish cemetery pretending to pee on identifiable
RULING
RATIO
gravestones, and supplied the props. Charged with offering indignities to human
remains contrary to s. 182(b) of the Criminal Code. The Court of Appeal
overturned his conviction. Does `offering indignities' requires physical contact
with human remains? Can indignities be offered to monuments? Criminal Code,
R.S.C., 1985, c. C-46, s. 182(b).
Ruling for Crown (C) – physical interference with a dead body or human
remains is not necessary under s. 182(b) and the indignities must be offered to
the dead body or human remains (as opposed to monuments per se). However,
where monuments mark the presence of human remains, offering indignities to
the monuments constitutes offering indignities to the human remains that are
marked by the monuments.
Physical interference with a dead body or human remains is not necessary
under s. 182(b), and offering indignities to the markers of human remains
constitutes indignities to the human remains themselves.
2. PROVING THE CRIME
CRIMINAL PROCEDURE
1. Begins with police officer responding to a complaint or witnessing a crime
2. Swears in information: basic document that summarizes the evidence which is presented to
a Justice of the Peace, who, if they decide there is sufficient evidence to proceed, will sign
the bottom of document, compelling the accused to attend court
3. Crown lawyers screen charges: is there sufficient evidence for a criminal charge?
4. At the time of arrest, many individuals are not detained indefinitely but served with an
appearance notice compelling them to appear. If charged individual cannot be found, an
arrest warrant will be issued.
THREE KINDS OF OFFENSES
1. Summary conviction
Maximum penalty of 6 months and $5000 fine (unless there is a specific maximum, eg. Sexual
assault = 18 months). Summary conviction offense will have a trial by judge alone in provincial
court and the accused will not be entitled to a preliminary inquiry, while…
2. Indictment
5
Maximum penalties range from a year to life imprisonment. Some also have minimum penalties that used to be more unusual but the current government has increased the number of offenses
with minimum penalties.
Indictable offense will allow the accused to choose between 3 options of how to proceed: (1) like a
summary conviction offense; (2) go to superior court and have a trial by judge alone with a
preliminary inquiry; or (3) go to superior court, before a judge and jury and preceded by a
preliminary inquiry.
3. Hybrid offenses
Prosecutor can choose whether to proceed by summary conviction or indictment. Eg. Sexual
assault. How do they decide which? Based on the procedure:
TWO EXCEPTIONS IN INDICTABLE OFFENSES
Section 469 offenses (includes murder) must be tried by a superior court and must have a
preliminary hearing. Can be heard by a judge alone, or by a judge and jury with the consent of the
Crown.
Section 553 indictable offenses are in the absolute jurisdiction of the provincial court and
will not have a preliminary hearing and will be heard by a judge alone.
PROOF BEYOND A REASONABLE DOUBT
BARD is higher than 50% certainty, but not 100% certainty - somewhere between probable and
absolutely certain.
R v LIFCHUS [1997] SCC
FACTS
The A, a stockbroker, was charged with one count each of fraud and one of theft,
RULING
RATIO
6
both over $1000. It was alleged the A defrauded his employer of a large sum of
money by misrepresenting the value of a bond in his personal Canadian margin
account.
The accused’s main ground of appeal was that the trial judge erred in
instructing the jury on the meaning of the expression “proof beyond a
reasonable doubt”. The Court of Appeal allowed the appeal, set aside the
conviction and ordered a new trial.
Ruling for A – appeal dismissed, order for new trial. Issues with the W.(D.)
instruction: attempt to avoid the credibility contest error.
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in
reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask
yourself whether, on the basis of the evidence which you do accept, you are
convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
Defined BARD in Canada:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based
upon sympathy or prejudice. Rather, it is based on reason and common sense. It
is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not
sufficient. In those circumstances you must give the benefit of the doubt to the
accused and acquit because the Crown has failed to satisfy you of the guilt of the
accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove
anything to an absolute certainty and the Crown is not required to do so. Such a
standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the
accused committed the offence you should convict since this demonstrates that
you are satisfied of his guilt beyond a reasonable doubt.
R v JHS [2008] SCC
ISSUES WITH THE W(D) INSTRUCTION
1. Evidence of the accused may not be exculpatory, but inculpatory. Furthermore, evidence of
the accused may be a mix of inculpatory and exculpatory elements
2. If the jury believes sufficient exculpatory evidence to prove each element of the offense,
then they should convict
3. As to the second question, some jurors may wonder how, if they believe none of the
evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable
doubt. Of course, some elements of the evidence of an accused may raise a reasonable
doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they
do not know whether to believe the accused's testimony or not. In either circumstance the
accused is entitled to an acquittal.
R v STARR [1997] SCC
FACTS
The A was convicted by a judge and jury of two counts of first-degree murder
RULING
RATIO
for shooting to death Bo Cook and Darlene Weselowski by the side of a
Winnipeg highway in the early morning hours of August 21, 1994. An appeal to
the Manitoba Court of Appeal was dismissed, Twaddle J.A. dissenting. The
Crown’s theory was that the killing of Cook was a gang-related execution, with
Weselowski an unfortunate victim who happened to be in the car when Cook
was lured out to the highway. The defense argued that the Crown had failed to
prove identity, and that the evidence adduced by the Crown did not dispel the
real possibility that other gang-related individuals were the killers.
Ruling for A – Crown’s appeal dismissed, order for new trial upheld.
Reasonable doubt must be defined as a special legal term, and in relation
to both absolute certainty and the balance of probabilities.
Burden of proof in criminal cases and the presumption of innocence mean that credibility
contests between witnesses are problematic. If jury isn't sure who to believe, they should acquit.
But! There is an exception to the rule... for some offenses, some elements have a reverse onus the accused must disprove some fact. Often the Crown has to prove some substitutive fact, some
fact is then presumed and this shifts the burden of proof to the accused, who must then disprove
the existence of that presumed fact. How much must the accused disprove the fact? Not beyond a
reasonable doubt, just on a balance of probabilities.
R v OAKES (1986) SCC
FACTS
A was charged under s. 8 of the Narcotic Control Act - possession of a narcotic
for the purpose of trafficking. Following this finding,A brought a motion to
challenge the constitutional validity of s. 8 of the Narcotic Control Act, which he
7
RULING
RATIO
maintained imposes a burden on an accused to prove that he or she was not in
possession for the purpose of trafficking. He argued that s. 8 violates the
presumption of innocence contained in s. 11(d) of the Charter, as s. 8 would
allow him to be convicted despite the presence of reasonable doubt on one of
the elements of the offense. Section 8 creates a presumption and a reverse onus.
If the court finds that the A was in possession of the narcotic contrary, then
burden of proof shifts to A to prove that they were not in possession for the
purposes of trafficking in order to be acquitted - the purpose of trafficking is
presumed.
The Court was unanimous in holding that the shift in onus violated both Oakes'
section 11(d) rights and indirectly his section 7 rights, and could not be justified
under section 1 of the Charter, and section 8 of the Narcotics Control Act was
struck out as a remedy.
Legal or persuasive reverse burdens on the defendant violate s. 11 Charter
right to a conviction beyond a reasonable doubt, and are often difficult to
justify under s. 1.
The Court also sets out the Oakes part test for a reasonable limits on
Charter rights:
1. Is there a pressing and substantial objective?
2. Is there both internal (rational connection between substituted fact and
presumed fact - this is used less in future cases) and external rationality
(means employed rationally connected to that objective)?
3. Is there minimal impairment of the Charter right in question? (This is
where criminal statutes generally fail)
4. Is there proportionality between the impairment of the right and the
substantial objective?
R v DOWNEY [1992] SCC
FACTS
The A was jointly charged with his companion with two counts of living on the
RULING
8
avails of prostitution. They were convicted at trial and their appeals were
dismissed. Appeal argued that reverse onus violated the A's Charter rights
under s. 11. Under s. 195(2), if the Crown proves the A was living with
prostitutes, then the statute presumes the A was living on the avails of
prostitution "in the absence of evidence to the contrary." – fact of living with
prostitutes substitutes for presumed fact of living on the avails of prostitution.
The Court's majority ruled that while s. 11 (d) was infringed, the
presumption set out in s. 195(2) passes the test set out in Oakes.
The presumption contained in s. 195(2) of the Code infringes s. 11(d) of the
Charter since the statutory presumption can result in the conviction of an
accused despite the existence of a reasonable doubt in the mind of the trier of
fact as to his guilt. The fact that someone lives with a prostitute does not lead
inexorably to the conclusion that the person is living on avails. Court argues that
there could be situations in which the presumption leads to the acceptance of a
fact which has not been proven beyond a reasonable doubt.
The presumption is justified, however, because it passes all four components
of the Oakes test - it is directed at a substantial objective, it is rational because of
the difficulty of adducing evidence in the matter (reluctance of prostitutes to
testify) and because it only imposes an evidentiary burden (raise a reasonable
RATIO
doubt), it satisfies minimal impairment and is proportional.
Some reverse burdens can be justified under s. 1 of the Charter, despite
the fact that they violate s. 11(d).
DISSENT IN DOWNEY
Iacobucci and McLachlin argue that s. 195(2) fails the proportionality test and the rational
connection test, on an internal basis - "at a minimum, proof of the substituted fact must make it
likely that the presumed fact is true." Spouses, lovers, friends, children, parents or room-mates may
live with or be habitually in the company of a prostitute, which is not a criminal offence, without
living on the avails of prostitution. Any presumption which has the potential to catch such a wide
variety of innocent people in its wake can only be said to be arbitrary, unfair and based on
irrational considerations. La Forest argues that s. 195(2) fails the proportionality test.
REVERSE ONUSES
In Oakes, there was a reverse onus on the accused to prove that they were not in possession of
drugs on the balance of probabilities (a legal and persuasive burden). SCC found this violated s.
11(d) of the Charter and was not allowable under s. 1.
In Downey, there was a reverse onus on the accused to prove that they were not living on the
avails of prostitution, but they were only required to raise a reasonable doubt (an evidentiary
burden). SCC found this violated s. 11(d) of the Charter, but that it was allowable under s. 1 because
it passes all 4 elements of the Oakes test.
Why is there an 11(d) violation in Downey when the reverse onus only requires them to raise a
reasonable doubt? The presumption forces a conviction if the accused does not raise a reasonable
doubt even if the trier of fact has a reasonable doubt.
MOST COMMON GROUNDS FOR APPEAL AGAINST CONVICTION
(Relevant section varies by type of charge – i.e. indictment or summary.)
Ground
Crown
Defence
If successful
Error in law
√
√
Verdict overturned if there is a reasonable
possibility of a different result. Court may
substitute new verdict, or order new trial.
Unreasonable verdict
unsupported by the
evidence
X
√
Conviction overturned and acquittal entered.
Miscarriage of justice
X
√
Court may order a new trial or substitute an
acquittal.
Errors in law are the most common grounds for appeal (eg. judge mistakenly allowed evidence,
left defense with jury in error or neglected to, etc.). Most of the time, appeals cannot be
interlocutory - there must be a judgment prior to an appeal. Why? Because trials are expensive and
time-consuming to organize, and so it's not practical to appeal prior to a verdict.
9
Even if the appellate court finds that there was an error in law, they might find that it is
insufficient to overturn the verdict. The curative proviso, s. 686, describes the burden of proof
necessary to maintain or overturn a verdict.
Defendant can also appeal on the grounds that it was an unreasonable verdict unsupported by
the evidence - criticism that appellate court is reweighing the evidence.
Miscarriage of justice occurs when there is improper behaviour on the parts of the police,
lawyers, judge, etc. Most rare form of appeal.
Q: What is the difference between a legal/persuasive burden and an evidential burden?
A: A legal/persuasive burden forces the accused to prove something on a balance of probabilities
while an evidentiary burden only requires the accused to raise a reasonable doubt.
R v WHYTE [1988] SCC
FACTS
The evidence disclosed that when the investigating constables came upon the
RULING
RATIO
A's vehicle, it was in a parked position along the roadside, its hood was warm,
the dashboard ignition light was on, keys were in the ignition, but the engine
was not running. The A was seated in the driver’s seat with his body slumped
over the steering-wheel. Counsel for the defence concedes that the D's ability to
operate a motor vehicle was impaired by alcohol when he was found by the
police. Presumption that triggered the reverse onus and legal burden on the
accused:
where it is proved that the accused occupied the seat ordinarily
occupied by the driver of a motor vehicle, he shall be deemed to have
had the care or control of the vehicle unless he establishes that he
didn’t enter…the vehicle for the purpose of setting it in motion;
The Court's majority ruled that while s. 11 (d) was infringed, the
presumption set out in s. 195(2) passes the test set out in Oakes, and ruled
against A's appeal.
The presumption contained in s. 195(2) of the Code infringes s. 11(d) of the
Charter because while it does not force a reverse burden on the accused to
disprove an element of the offense, the Court held that this distinction was
irrelevant because "the real concern is not whether the accused must disprove
an element or prove an excuse, but that an accused may be convicted while a
reasonable doubt exists. When that possibility exists, there is a breach of the
presumption of innocence," and therefore, a violation of s. 11(d). But the court
found that this violation passed the Oakes test and so was justifiable under s. 1.
Some reverse burdens can be justified under s. 1 of the Charter, despite
the fact that they violate s. 11(d) – including evidentiary burdens.
3. ELEMENTS OF THE OFFENCE
Information, or charging document, will list offenses the accused is charged with. Look up offense in
Criminal Code and interpret it by carefully reading its terms to determine the:
Actus reus: physical element
Mens rea: mental element
10
Doing this will not answer every question, but it will answer many of them. Terms in the AR may be
ambiguous - there are definitions in the sections and appendices in the CC. If there are no
definitions to be found there, then look it up in the case law.
ACTUS REUS
MENS REA
Conduct
Intentional or reckless act or omission
Circumstances
Knowledge or willful blindness of
circumstances
Consequences
Intend or be reckless as to the consequence
Causation
s. 347(1)(b)
Conduct: receiving interest
Circumstances: at a criminal rate (60%+ of credit advanced)
Consequences: n/a
s. 218
Conduct: abandoning a child
Circumstances: under 10 years of age, life or health likely to be endangered
Consequences: n/a
4. THE ACTUS REUS
The actus reus is always specified in the CC.
QUESTIONS TO ASK
1. What are the physical elements of the prohibited act?
2. Are there are any presumptions which place a reverse burden on the accused?
You can only be convicted of what's charged - EXCEPT there are offenses that are embedded in
other offenses. Statute may specify that an offense is included in another offense, attempt-based
offenses are included in offenses, and some offenses may be necessarily included in other offenses
(assault within robbery, assault within assault causing bodily harm, etc.).
A. The Principle of Legality
You can't be convicted of something that wasn't criminalized at the time of the act's commission.
Criminal law in Canada is entirely contained in CC - s. 9 abolished common law offenses.
Constitutionalized in s. 11(g) of the Charter.
FREY v. FEDORUK [1950] SCC
FACTS
At the time, peeping was not specifically prohibited. The appellant Frey had left
his truck to look into a window of a house at 11:15 P.M. A woman saw him
looking in, and shouted, and her adult son took a butcher knife and went
outside. He chased Frey, caught him, and called the police. The police, seeing
11
RULING
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footprints near the house, arrested Frey. Frey also alleged the police constable
attacked him, although in court Frey mainly fought his arrest as false
imprisonment.
The British Columbia Court of Appeal found the imprisonment was not false
imprisonment, since Frey had, in the words of Justice O'Halloran, "disturbed
their tranquillity and privacy in a manner that he would naturally expect to
invite immediate violence against him." Frey appealed to SCC, arguing that he
did not commit a criminal offense and so the imprisonment was false.
Appeal allowed with costs – if any course of conduct is now to be declared
criminal, which has not up to the present time been so regarded, such
declaration should be made by Parliament and not by the Courts
No new common law offenses should be created - criminal law in Canada
includes only those offenses in the Criminal Code and those existing
common law offenses.
In 1955, s. 9 of Criminal Code abolishes common law criminal offenses, except contempt of
court. Why? Because of inherent jurisdiction of Courts to control their own process that is
constitutionally granted - can't rescind via statute.
B. Statutory Interpretation and the Actus Reus
R v. MOQUIN [2010] MBCA
FACTS
Moquin moved in with Ms. W and assaulted her on five occasions, on a number
RULING
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of which she suffered bruising and soreness on her hands and her throat, as well
as lost hair. Trial judge found Ms. W credible and held that there was assault but
none of the harm suffered by Ms. W rose to the level of "bodily harm." Crown
appealed, arguing that the trial judge erred in applying the facts to the law,
which is an error of law.
Appeal held - acquittal set aside and conviction entered. Held that trial judge's
analogies were irrelevant. Examined definitions of trifling and transient in prior
case law, as well as serious bodily harm. Appellate decisions were found to have
defined bodily harm more broadly than trial judge - not only interference to
health, also interference to comfort.
Bodily harm in "assault causing bodily harm" is broadly defined.
C. OMISSIONS
In general, only positive actions are criminalized. But there are exceptions:
- When the Criminal Code specifically criminalizes an omission (eg. Failing to stay at the
scene of an accident)
- Situations where the law places a duty to act (eg. Criminal negligence causing bodily harm)
- Duties can be imposed by statute and by common law
R v. FAGAN [1968] UK CA
FACTS
Fagan was pulled over, accidentally parked on police officer's foot. Police asks
him to move, Fagan says, "Fuck you, you can wait." Car was off, and officer
repeated his request. Fagan slowly reversed the car off the officer's foot. Fagan
was convicted of assault and appealed, arguing there was reasonable doubt that
the act of driving the car onto the foot was intentional and not accidental.
12
RULING
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The court found for the Crown and dismissed the appeal. The Court argued that
the actus reus was not merely the possibly accidental act of driving the car onto
a foot, but the entire act of driving the car, leaving it on the foot, turning the car
off, etc. As such, the mens rea was crystallized in the moment that Fagan refused
to move the car and assault did take place.
1. Mens rea and actus reus must occur at the same time.
2. An omission on its own cannot constitute assault. An omission can
constitute assault if that omission can be tied to a sequence of positive
actions.
DISSENT
No mere omission to act can amount to an assault… But at every attempt I have encountered the
inescapable question: after the wheel of the appellant's car had accidentally come to rest on the
constable's foot, what was it that the appellant did which constituted the act of assault? However
the question is approached, the answer I feel obliged to give is: precisely nothing. The car rested on
the foot by its own weight and, remained stationary by its own inertia. The appellant’s fault was
that he omitted to manipulate the controls to set it in motion again.
R v. MOORE [1978] SCC
FACTS
Moore ran a red light on his bicycle. A police officer tells him to identify himself
RULING
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and pull over, but Moore refuses. Moore is charged with obstructing a peace
officer, not with failing to stop at a red light, because of his failure to provide his
name.
Court finds for the Crown and dismisses the appeal. There is no statutory duty
that applies to Moore in these circumstances, but the Court finds a common law
duty to identify yourself as a correlate of the police officer's statutory duty to
request identification in certain circumstances.
Statutory duties to act can impose reciprocal common law duties
(probably not anymore).
DISSENT
"Explicit statutory provisions may impose a duty upon a person to identify himself to police officers
in certain situations, but in this appeal the Court is being asked to impose such a duty in the
absence of any statutory underpinning whatever...The criminal law is no place within which to
introduce implied duties, unknown to statute and common law, breach of which subjects a person
to arrest and imprisonment."
If case were decided today, dissent would likely have been majority because of the Charter right not
to self-incriminate.
In other words, probably not good law.
R v. THORNTON [1991] Ontario CA
FACTS
Thornton, knowing he had tested positive twice for HIV antibodies, donated
RULING
blood to the Canadian Red Cross without disclosing this to them. He was tried
and convicted of a violation of s.180 (Public nuisance endangering the health of
the public) of the Criminal Code. He appealed.
Court dismissed Thornton's appeal. Court finds that it was not an unlawful act
because there is no statutory provision criminalizing the donation of
13
RATIO
contaminated blood. Court then considers whether there was a legal duty to act,
and cannot find a legal duty in statute either. Then Court looks for legal duty at
common law and finds "a broad fundamental duty which, although subject to
many qualifications, requires everyone to refrain from conduct which could
injure another. It is not necessary to decide in this case how far that duty
extends. At the very least, however, it requires everyone to refrain from conduct
which it is reasonably foreseeable could cause serious harm to other persons."
There is a common law legal duty to refrain from actions which are
reasonably foreseeable to cause injury to those around you.
SCC heard this appeal, and found legal duty not in common law but in s.
216 of Criminal Code (reasonable care in administering medical
treatment) instead because they are not comfortable with common law
basis for legal duty entailing criminal liability.
D. VOLUNTARINESS
Actus reus has to be voluntary in a physical sense in order to be valid. NOT the same as intent - it is
possible for an act to be voluntary in the sense of under your physical control, but not intentional in
that you did not intend its consequences.
Involuntary intoxication falls under this concept - voluntary intoxication is a specific kind of
defence.
R v JIANG [2007] BCCA
FACTS
The A was charged with dangerous driving causing death. While driving home
RULING
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from Stanley Park with her family, she fell asleep behind the wheel. Her car
mounted the curb and struck two children in a parking lot, killing one of them.
Ruling for A – she introduced evidence that she had a sleeping disorder and fell
asleep involuntarily.
Actus reus must be voluntary.
R v LUCKI [1955] BCCA
FACTS
A’s car skidded into opposing traffic due to road conditions.
RULING
Ruling for A – not guilty because act was involuntary.
RATIO
Actus reus must be voluntary.
5. CAUSATION
Relevant when there is a consequence as an element of the actus reus. Most often, issues of
causation arise in offenses that cause bodily harm or death.
Legal question: when does an act cause a particular consequence? What is the test for
directness/remoteness?
Related question: should the standard of causation in cases of murder be different?
Factual Causation
An inquiry about how the victim came to his or her death, in a medical, mechanical, or physical
sense, and with the contribution of the accused to that result - "but for" test.
14
Legal Causation
Inquiry into moral blameworthiness - whether the accused person should be held responsible in
law for the death that occurred.
R v SMITH [1959] UK CA
FACTS
Two soldiers got into a fight. A stabbed the victim with a bayonet. Victim didn't
RULING
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die immediately - he was carried to the surgeon's tent and dropped a few times
and there received treatment which contributed to his death.
Ruling for the Crown – A is still responsible for causing the death of the victim
even though there were other contributing causes.
If an initial cause remains a significant cause when the prohibited outcome
occurs, then it is said to be the cause of the outcome even if there are other
causes acting towards the outcome, unless the subsequent causes are
"overwhelmingly" to blame.
This was the test for causation in Canada up until Smithers.
R v. SMITHERS [1978] SCC
FACTS
Playing a game, racial epithets launched between teams. A kicked victim in the
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stomach, and victim fell over and died. Later determined that victim had
malfunctioning throat which contributed to his death. A argued that his kick did
not cause the victim's death.
Ruling for Crown – court upholds conviction and sets out the test for causation
for manslaughter in Canada.
1. Take your victim as you find them (thin skull rule).
2. TEST FOR CAUSATION
Were the actions of the accused a contributing cause of death
outside the de minimis range?
R v. HARBOTTLE [1993] SCC
FACTS
2 A were charged with first degree murder under s. 231(5) after sexually
RULING
assaulting and killing a young woman. Section 231(5) provides that murder is
first degree murder if the death was “caused by that person while committing or
attempting to commit” one of a number of offences, including sexual assault.
Harbottle’s role in the killing was to pin down the victim’s legs while his coaccused strangled her (after both had sexually assaulted her). While it was clear
that Harbottle was guilty of murder for aiding and abetting the killing, he argued
that he was not guilty of first degree murder because he did not personally
cause the victim’s death.
In defining the word “cause” in this context, the Supreme Court of Canada
applied a higher standard than the Smithers test because of the seriousness of a
first degree murder conviction. The Court held that the Crown had to prove that
Harbottle “committed an act or series of acts which are of such a nature that
they must be regarded as a substantial and integral cause of death.” This is
clearly a stricter test than the “contributing cause” test of Smithers. Despite this,
the accused was found to have met this stricter standard and the conviction was
upheld.
15
RATIO
TEST FOR CAUSATION IN FIRST-DEGREE MURDER
Were the actions of the accused a substantial and integral cause of death?
After Harbottle, it is not clear whether Smithers test does not apply to first-degree murder or to all
forms of murder. This is the question raised in Nette.
R v. BLAUE [1975] UK CA
FACTS
Blaue stabbed and sexually assaulted Jacolyn Woodhead. She went to the
RULING
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hospital, but refused a blood transfusion because she was a Jehovah's Witness.
Ruling for the Crown – the victim's refusal of life-saving treatment did not break
the chain of causation. A argues there must be a reasonableness standard for
this thin skull rule. Court notes that reasonableness is not a sufficiently objective
standard - reasonable according to whom? An atheist? A Jehovah's Witness?
Court holds that it doesn't matter, take your victim as you find them regardless.
Take your victim as you find them (thin skull rule).
Refusal of life-saving treatment does not break the chain of causation,
regardless of the reasonableness of the behaviour.
R v. NETTE [2001] SCC
FACTS
A, acting with another, robbed 95 year old widow and left her hog tied in her
RULING
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bedroom. Victim fell off bed and asphyxiated, dying. A is charged with first
degree murder on the basis that he had committed murder while unlawfully
confining victim. Crown’s position at trial was that the act of causing death and
the acts comprising the offence of unlawful confinement all formed part of one
continuous sequence of events making up a single transaction, and that A was
guilty of first degree murder. Judge tells the jury that the test for 2nd degree
murder and manslaughter is the Smithers test and for 1st degree murder is the
Harbottle test. The jury returned a verdict of second degree murder and A
appeals, arguing the latter test applies to all kinds of murder.
A's appeal is dismissed - relevant test for all manslaughter and homicide
convictions is Smithers test and for 1st degree murder is the Harbottle test.
Causation is related to mens rea - high standard of mens rea corresponds to
higher standard of legal causation.
Test for all manslaughter and homicide convictions is the Smithers test
(significant and contributing cause).
Higher test for 1st degree murder is the Harbottle test (substantial and
integral cause).
CONCURRENCE
L'HEUREUX-DUBE J: Beyond de minimis cause =/= significant contributing cause.
R v. JSR [2008] SCC
FACTS
A, the southbound shooter, got into a shootout on Yonge street. Victim was
killed in the crossfire, but by a bullet from the northbound shooter. Not clear
whether it was first bullet or second or third, etc. A’s counsel argued it was a
reasonable possibility that the first bullet from the northbound shooter's gun
killed the victim and therefore it would not be possible to determine beyond a
16
RULING
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reasonable doubt that A was a significant cause of the murder.
Court finds for the Crown - A agreed to engage in a gun battle on Yonge St. and
so can be found to be engaged in a dangerous joint enterprise that could be a
significant and contributing factor to the victim's death. Nor is the act of the
northbound shooter an intervening cause.
Application of Smithers test.
Acts by a third party who is not acting independently but is acting in
furtherance of a joint activity undertaken by the accused and that third
party will not sever the legal causal connection.
R v. MAYBIN [2012] SCC
FACTS
Late at night, in a busy bar, the A brothers, T & M, repeatedly punched the victim
RULING
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in the face and head. T eventually struck a blow that rendered the victim
unconscious. Arriving on the scene within seconds, a bar bouncer then struck
the victim in the head. The medical evidence was inconclusive about which
blows caused death. As a result, the trial judge acquitted the accused brothers
and the bouncer. The Court of Appeal was unanimous that the accused’s assaults
were factually a contributing cause of death – “but for” their actions, the victim
would not have died. Furthermore, the majority of the Court of Appeal
concluded that the risk of harm caused by the intervening actor could have been
reasonably foreseeable to the accused. The dissenting judge did not agree that
the accused could have reasonably foreseen the conduct of the intervening
actor, and also concluded that the intentional act of a third party (bouncer)
acting independently severed legal causation. The appeal was allowed, the
acquittals were set aside and a new trial was ordered.
Court dismisses the appeal and order for a new trial is upheld. Both the
“reasonable foreseeability” and the “intentional, independent act” approach may
be useful in assessing legal causation depending on the specific facts. These
approaches grapple with the issue of the moral connection between the
accused’s acts and the death; they acknowledge that an intervening act that is
reasonably foreseeable to the A may well not break the chain of causation, and
that an independent and intentional act by a third party may in some cases
make it unfair to hold the A responsible. These approaches may be useful tools
depending upon the context. However, the analysis must focus on first
principles and recognize that these tools are analytical aids and do not alter the
standard of legal causation or substitute new tests.
The court can consider whether there are intervening acts or whether
causation is severed, but Smithers is still the relevant test.
6. MENS REA
Actus Reus
Assault
Mens Rea
Conduct
Application of force
Intention
Circumstances
Without consent
Knowledge
Consequences
Bodily harm
17
How do we know what mental elements are attached to an offense? Read CC carefully, research
case law and make arguments.
Recklessness (Subjective)
A person foresees that their conduct may cause the prohibited result but, nevertheless, takes a
deliberate and unjustifiable risk of bringing it about.
Intention
A person who foresees that a consequence is certain or substantially certain to result from an act
which he does in order to achieve some other purpose, intends that consequence.
Willfulness (Subjective)
The word “willfully” does not have a fixed meaning, but in the context of s.281.2(2) it means with
the intention of promoting hatred and does not include recklessness.
R v BEAVER [1957] SCC
FACTS
Charged with possession of a narcotic and attempt to sell. A claimed he had no
RULING
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knowledge that narcotics were narcotics - thought it was milk sugar and was
attempting to defraud someone rather than traffic narcotics. At trial, the judge
treated the offense as one of absolute liability, which therefore has no mental
element. A appealed.
Ruling for A – possession of a narcotic has a requisite mental element. The Court
held that Beaver did not know the character of the substance, and he was
acquitted of possession. However, he did represent the substance as a narcotic
and therefore was convicted on the charge of selling a narcotic.
Beaver rule: Unless the statute states otherwise, there is a mens rea
requirement.
R v BUZZANGA & DUROCHER [1980] Ont. CA
FACTS
Proposed construction of a French high school in Essex County. In order to
RULING
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18
encourage sympathy for the French, defendants released an anti-French flyer.
Charged with willfully (i.e. with intent) promoting hatred under s. 319.
New trial ordered – court holds that the mental element must attach to the
consequences, and willfulness required either knowledge of the likely
consequences or intention, not just recklessness. The trial judge erred in
equating "intent to create controversy, furor, uproar" with "intent to promote
hatred". There must be a new trial to decide what intention existed, since courts
of appeal cannot decide matters of fact. Intent can be inferred from objective
circumstances.
1. An accused's evidence of their state of mind at the time of the offence is
accepted, but it is not always conclusive as sometimes it is not
believable, or there is stronger evidence to the contrary.
2. Generally, mens rea can be satisfied by intention or recklessness.
Including the term "willfully" implies that recklessness is insufficient
on its own, unless recklessness is also mentioned in the provision.
R v THEROUX [1993] SCC
FACTS
A is a real estate developer who accepts deposits from prospective buyers. Lies
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about having deposit insurance. Project fails, money is lost, A argues that he had
an honest belief that deposit insurance was not necessary and so did not fulfill
the subject mens rea of fraud.
Ruling for Crown. The A knew his actions carried a risk and risk can be
conceptualized a form of deprivation.
Mens rea is comprised of subjective knowledge of at least one element of
the actus reus.
MAJORITY
There is a distinction between earnest hope that everything will turn out alright and lack of
knowledge of risks.
CONCURRENCE
No such distinction.
Willful Blindness
Deliberate ignorance or failure to inquire.
When knowledge isn't present, what is enough to replace it? Willful blindness is sufficient.
A subjective test which requires that the Crown to prove beyond a reasonable doubt that the
accused suspected something was true but chose not to investigate.
Negligence =/= Willful blindness
OBJECTIVE
SUBJECTIVE
Motive
The goals underlying the specific intent. You don't need to have a motive so long as you have
intention. Motive is evidence, which may or may not be relevant to the case.
Transferred Intent
If one intends to kill one person, but accidentally kills another, intent can be transferred.
Two types: mistake as to identity of victim, mistake as to execution of intent.
R v BLONDIN [1971] SCC
FACTS
A flying into Canada from Japan w/diving tank, is stopped by customs. 23
RULING
RATIO
pounds of hash is found in a secret compartment of the tank. Police asked A if he
was aware what was in the tank (NO), if he knew what hash is (NO), if he knew
that the tank contained something illegal (YES).
Ruling for Crown. Which does the Crown have to prove to make out the mens
rea?
Knowledge of hash
Knowledge of narcotic = √ subjective knowledge of actus reus
Knowledge of illegal items
Did Blondin possess (2)? No, but Crown can prove willful blindness of (2).
Subjective knowledge requirements are specific to the element of the
actus reus to which they attach.
Willful blindness can substitute for knowledge.
19
R v. BRISCOE [2010] SCC
FACTS
Group of varied ages (from young offenders to eldest, the A, who was 34)
RULING
RATIO
randomly targeted an adolescent girl, took her to a golf course where she was
sexually assaulted and murdered. A drove the car to the golf course and opened
the trunk to provide weapons. A said he expected something bad to happen, but
did not directly participate in the sexual assault and murder, though he
restrained the victim at one point and witnessed the crimes. TJ finds enough
evidence for a charge of aiding and abetting murder, but not for a charge of 1st
degree murder. Crown appeals, and Court of Appeal finds an error in law in the
trial judge's failure to consider willful blindness and orders a new trial. A
appeals as of right to SCC.
Holding for the Crown - order for a new trial upheld. Briscoe was convicted at
the new trial. Willful blindness can provide sufficient mens rea for 1st degree
murder.
Willful blindness is equivalent to knowledge, even in very serious
offenses.
Note:
If Briscoe had not assisted in the commission of the offense, he would not have possessed the actus
reus of the offense and would likely not have been convicted. Recall the criminal law's reluctance to
punish omissions.
R v. LEWIS [1979] SCC
FACTS
Parmjeet K. Sidhu and Gurmail Sidhu, to whom she had been recently married,
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were killed when their kettle exploded. The mystery surrounding their deaths
remained unsolved until January, 1976, when information obtained by the
police resulted in the arrest of Lewis and, subsequently, the arrest of Sidhu's
father, Tatlay, who was angry over the marriage and had constructed the bomb.
Crown argues Lewis knew he mailed a bomb to the victims while Lewis argues
he had no idea it was a bomb. Crown argues that there was a financial incentive
for Lewis, but is inconclusive.
Holding for the Crown – no obligation to charge the jury on motive. Motive is a
question of evidence, but not an essential element of the offense. Most of the
time, a complete lack of evidence of motive should be brought to the jury's
attention, but in this case there was evidence and it was inconclusive - therefore,
up to the Judge's discretion what to charge the jury with regard to motive.
Mens rea does not include motive.
R v. GORDON [2009] SCC
FACTS
Attempted murder case. A attempts to shoot Thompson while he is hanging out
RULING
20
at a café. A fires 3 blasts from the sawed-off shotgun. Thompson escapes, but
three innocent bystanders are hit and are seriously injured. A is charged with
four counts of attempted murder – one for Thompson, and one for each of the
three bystanders. Jury finds Thompson guilty and he is convicted of four counts
of attempted murder.
The Court finds that the doctrine of transferred intent doesn't function well in
cases of attempted murder - transferred intent is designed to transfer intent
from one victim to the other. In this case, insufficient actus reus in inchoate
murder like attempted murder to justify the application of transferred intent.
RATIO
Transferred intent requires sufficient actus reus.
Principle of transferred intent does not apply to attempted murder.
How much AR is enough?
Attempted Murder
Actus reus
Mens Rea
Some act beyond mere
preparation
Actual intent to kill - not
recklessness
"some act" is very broad - low AR
"Actual intent" is narrow - high MR
7. MENS REA AND THE CHARTER
Recall that mens rea is subjective and Parliament must expressly create absolute liability offenses
with clear language. At the time of Beaver there was nothing preventing Parliament from creating
absolute liability criminal offenses. But post -1982, all legislation must accord with the Charter, and
s. 7 of the Charter limits the ability of Parliament to create absolute liability criminal offenses.
Section 7 of the Charter
Everyone has the right of life, liberty and security of the person, and are not to be deprived of these
rights except in accordance with the principle of fundamental justice.
Is principle of fundamental justice a substantive principle or only a procedural one? This mirrors a
debate in US over the due process rights in the 14th amendment (Roe v Wade is an example of the
SCOTUS using a substantive conception of due process).
How do these principles interact with more serious offenses, like murder? See R v Martineau:
consideration of felony murder/constructive murder - death of a person caused by another but
while accused is in the process of committing another criminal offense.
NOTE s. 231(5) is NOT a constructive murder provision - it is concerned with causation.
Constructive murder
There is mens rea for the other offense, but not for subjective or objective foresight of death.
PRINCIPLES OF FUNDAMENTAL JUSTICE
That the morally blameless not be punished.
That the level of moral blameworthiness has to be proportionate to the punishment and the stigma.
REFERENCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT [1986] SCC
FACTS
BC asked the SCC whether s. 94(2) of the MVA, which created an absolute
liability offense with a punishment of imprisonment, was constitutional w.r.t the
21
Charter.
No, s. 94(2) is not constitutional. It's a substantive principle of fundamental
justice that society not punish the morally innocent. Combining absolute liability
and imprisonment creates this possibility, and therefore violates the principle of
fundamental justice. Even the possibility of imprisonment would be sufficient to
render this section unconstitutional. Administrative efficiency is not sufficient to
justify a violation of s. 7.
Absolute liability offenses cannot carry prison terms, as this would violate
s. 7 of the Charter.
Fundamental justice has both substantive and procedural aspects.
RULING
RATIO
R v VAILLANCOURT [1987] SCC
FACTS
Armed robbery, accomplice had gun, client killed. A convicted of second degree
murder. A explicitly told his friend beforehand that he did not want to have guns
involved. During the robbery, his partner fired a shot and someone was killed.
Ruling for A –test for constitutionality: would it be possible for a conviction for
murder to occur under s. 230 despite the jury having a reasonable doubt as to
whether the accused ought to have known that death was likely to ensue. SCC
holds that it is a violation of s. 7 of the Charter to convict someone of murder
without AT LEAST objective foresight of death ("ought to have known"). Section
230(d) is unconstitutional and "ought to have known" is read out of s. 229(c).
Crimes with significant stigma, such as culpable homicide and constructive
murder, require at least proof of objective foresight of death, and
sometimes subjective foresight as well.
RULING
RATIO
R v MARTINEAU [1999] SCC
FACTS
A’s partner killed two people during a robbery. A convicted of murder by s. 230
which raises culpable homicide to murder where A intends to inflict bodily
harm to facilitate a crime. Martineau testified that he intended to commit a
crime but not to commit murder.
Constructive murder provisions (sections 230 and 229(c)) are unconstitutional.
Martineau acquitted.
Murder requires intention to cause death or inflicting bodily harm
subjectively knowing death is likely to ensue: SUBJECTIVE FORESIGHT OF
DEATH.
RULING
RATIO
Homicide is not necessarily an offence - the general descriptor of causing the death of a human
being. Homicide can be culpable or not culpable - the latter is not an offence.
Culpable Homicide
AR
MR
Conduct
Unlawful act OR
criminal negligence
Intent to kill OR
recklessness
Consequence
Causing death of a
human being
22
R v SHAND [2011] ONT CA
FACTS
A shot the victim while attempting to steal some marijuana. Evidence from a
RULING
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variety of witnesses was contradictory as to whether the shooting was
intentional. The trial judge charged the jury that A could be convicted of murder
under s. 229(c) even if the shooting was unintentional, if it could be shown that
in pursuit of an unlawful object, he committed a dangerous act that he knew was
likely to cause death. A was convicted of second degree murder, appealed on
basis that a conviction for murder requires at a minimum intent to cause death,
or bodily harm that is known to be likely to cause death, in order to comply with
the Charter. An unintentional killing cannot be murder.
Appeal dismissed - based on the wording of s. 229(c), only the object must be
unlawful, and that the act causing death need only be sufficiently dangerous that
a reasonable person would know that doing it was likely to cause death.
Martineau should be interpreted as holding that subjective foresight of
death is the constitutional minimum mens rea for murder, and not intent
to cause death.
R v DESOUSA [1992] SCC
FACTS
A was involved in a fight in which a bystander was injured when a bottle
RULING
RATIO
allegedly thrown by the appellant broke against a wall and a glass fragment
from the bottle struck the bystander. Trial judge holds that s. 269 violates s. 7 of
the Charter because the "unlawfully" aspect of the offence applies to any
violation of the Criminal Code, and creates a possible absolute liability offence.
Appeal dismissed - so long as underlying unlawful act is not absolute liability, s.
269 is constitutional.
1. Underlying unlawful act can’t include absolute liability offences if that
interpretation would combine imprisonment and absolute liability.
2. Not all offences require subjective foresight - Martineau requirement of
subjective foresight is confined to murder. Objective fault can be
constitutional for less serious offences.
3. Not a principle of fundamental justice that every element of the actus
reus requires mens rea - only that there is sufficient mens rea for the
offence overall.
Unlawfully Causing Bodily Harm
AR
MR
Conduct
Unlawful act
[not absolute
liability]
MR of the
unlawful act
Consequences
Bodily harm
Objective foresight
of bodily harm
23
R v CREIGHTON [1993] SCC
FACTS
A injected himself and his two consenting companions with cocaine. Martin
immediately began to convulse and stopped breathing. They were unsuccessful
in resuscitating her. Caddedu tried to call 911 but A’s threats prevented him
from doing so. They cleaned any signs of fingerprints from around the house
and then left. Caddedu came back several hours later and called the police. A
was an experienced drug user.
Creighton was charged under s. 222(5)(a) and (b) of the Criminal Code of
Canada for manslaughter. Two types of manslaughter: unlawful act
manslaughter and manslaughter by criminal negligence.
Ruling for Crown – offence of unlawful act manslaughter does not violate s 7 of
the Charter. The majority dismissed the proposition that there be symmetry
between all the elements of the offence and the mental elements. Symmetry
would require that the accused could foresee death. This would require the
courts to abandon the thin skull rule, and so cannot be the case. Rather
symmetry remains a rule with clear exceptions and cannot be a principle of
fundamental justice.
1. The mens rea of unlawful act manslaughter is composed of the mens
rea of the underlying offence and objective foresight of bodily harm
2. There is no personalization short of incapacity in the test for objective
foresight of bodily harm.
RULING
RATIO
Unlawful Act Manslaughter
AR
MR
Unlawful act
Associated MR
Causing death
Objective foresight
of bodily harm
CONCURRENCE
LAMER CJ: There should be at least objective foresight of the actual consequence as defined in the
actus reus which, in the crime of manslaughter, is death. Lamer CJC stressed the importance of
symmetry, i.e. the idea that the fault requirement should correspond to the precise elements
defined by the actus reus. Rejects thin skull argument. The objective standard should take into
account the experiences of the accused and their particular "human frailties" that are out of their
control.
Decision Politics
McLachlin
Lamer
LaForest
4
4
1
LaForest concurs with McLachlin because of the clarity of her test, despite his preference for a
subjective standard for fault.
24
8. DEPARTURES FROM SUBJECTIVE MENS REA
Absolute liability offences
No mens rea required.
Strict liability offences
No mens rea required, but defense of due diligence is available.
Full Mens Rea
Objective Fault
Strict
Liability
Absolute
Liability
Burden
Crown BARD
Crown to prove fault BARD
Accused on n/a
a BoP
Standard
Subjective (this is the
presumption, can at
times be displaced)
Fault is measured objectively
(like Creighton, offences of criminal
negligence)
Objective
“marked and significant departure
from the standard which could be
expected of a reasonably prudent
person in the circumstances”
Due
diligence
defence
n/a
R v SAULT STE. MARIE [1978] SCC
FACTS
The city is charged as a corporation with offence of violating the Ontario statute
RULING
RATIO
Water Resources Act - causing or permitting pollutants to be discharged into a
clean water source.
Ruling for Crown - no mens rea required, but there is availability of due
diligence defence for accused. Concern with requiring full mens rea when
applying offences to a legal person [a corporation] that is composed of multiple
real people. Further, offence is designed to apply to incompetent persons who
might lack subjective fault - not designed solely for deliberate pollution. Court
holds not appropriate for public welfare offences to require full mens rea.
1. Strict liability offence has a burden of proof on the Crown to prove the
actus reus only.
2. Accused can make out defence of due diligence by proving on a balance
of probabilities either:
i. they acted with an honest and reasonable belief they would not
break the law; or
ii. they took all reasonable steps to avoid breaking the law.
R v CHAPIN [1979] SCC
FACTS
A is charged with shooting birds within a quarter mile of where bait has been
deposited under s. 14 of the Migratory Birds Regulations. The penalty is a fine
of between $10 and $300, possibility of up to 6 months in jail and loss of her gun
and hunting privileges. Ambiguous what level of mens rea is required by this
regulation.
25
RULING
RATIO
Crown's appeal dismissed with costs (which are generally not awarded against
the Crown in a criminal context) - s. 14 creates a strict liability offence
Public welfare offences are presumed to be strict liability.
The Crown can try to demonstrate that a public welfare offence is absolute
liability by showing that allowing the defendant to have a rebuttable
defence would severely limit the desired application of the legislation.
R v RAHAM [2010] ONT CA
FACTS
A is charged with stunt driving - going more than 50 kph over the speed limit -
RULING
RATIO
which is punishable by a fine of $2,000 to $10,000, suspension of driving license
and imprisonment up to 6 months. But A was trying to pass a tractor trailer in
an oncoming lane when she was clocked at 131 kph in an 80 kph zone.
Crown's appeal allowed, new trial ordered. A argued that the offence was
absolute liability as speeding is an absolute liability offence and therefore
unconstitutional. Crown rebuts that not all speeding offences must be absolute
liability, and that stunt driving is one of them based on its drafting. The Court
agrees with the Crown but also notes that just because imprisonment is a
possibility does not mean that an offence is strict liability.
Presumption of constitutionality requires that when both strict and
absolute liability interpretations are possible for an offence with a
possibility of imprisonment, the constitutional one is preferred.
CCC s 219 (Criminal Negligence)
** note that criminal negligence itself is not an offence... need a consequence to have an offence ie.
“causing death” or “causing bodily harm”
-criminal negligence causing death is another way of describing manslaughter
R v TUTTON (1989) SCC
FACTS
A believed that their diabetic son had been cured by divine intervention so they
RULING
RATIO
26
did not give him his insulin and he died. They had attempted this in the past and
their doctor had told them that if their son did not receive his insulin then he
would die. They honestly believed that he had been cured by divine
intervention. They were charged with manslaughter by criminal negligence
under current s 222(5)(b). A were convicted at trial but the Court of Appeal
ordered a new trial which the Crown appealed to the Supreme Court.
An odd case with even number of judges (6, split 3 and 3). The appellant loses if
there is not majority, therefore in this case, the tie resulted in appeal dismissed.
A argued that standard was subjective and a mistake of fact defence – court
disagrees and finds that the test is objective because negligence implies a
reasonable person standard. Therefore, A’s subjective belief is not a defence.
Modified Objective Standard: The test is that of reasonableness, and proof
of conduct which reveals a “marked departure and significant
(substantial) departure from the standard which could be expected of a
reasonably prudent person in the circumstances” – to justify a conviction
of criminal negligence.
Justice Lamer concurring, wants to personalize the test, but Creighton later settles this without
personalization. Justice Macintyre’s version is decided by the court eventually and is now the law.
This “reasonableness” (p 7-20) is measured by how fault is inferred from the “conduct” which is a
little strange because it begins to sound like part of the actus reus. You must take all of the
circumstances into account, including what the accused knew at the time.
By punishing people for mindless or thoughtless behaviour the court could be heading toward
possible Charter problems. However, objective fault is acceptable for offences without serious
stigma and punishment (DeSousa).
R v JF (2008) SCC
FACTS
A is charged because he failed to prevent/intervene in the conduct of his spouse
RULING
RATIO
which caused the death of the child. A is charged with 2 counts: manslaughter,
criminal negligence causing death; and death by failing to provide the
necessities of life. A is acquitted on one count and convicted on the other despite
the fact that the offences are based on the same facts and have the same
requirements (actus reus and mens rea).
Appeal dismissed and acquittal entered. The verdicts rendered at trial are
inconsistent – while the two counts alleged different underlying offences, A’s
guilt depended on exactly the same failure to perform exactly the same duty: the
duty to protect his foster child from foreseeable harm from his spouse. The only
difference between the offences is possibly in the mens rea: failure to provide
the necessaries of life is objective standard based on a “marked departure”,
while criminal negligence causing death is objective standard based on a
“marked and significant departure”. As such, logically impossible to convict of
the latter and not the former.
Generally, crimes which have an external element of negligence require a
standard of a marked departure from the standard of care; manslaughter
by criminal negligence requires a standard of marked and substantial
departure from the standard of care.
R v HUNDAL [1993] SCC
FACTS
A was driving overloaded dump truck, runs a red light in downtown Vancouver
RULING
RATIO
and hits a car passing through the intersection on their green light at around 50
to 60 kph. TJ finds A guilty of dangerous driving based on objective fault. CA
upholds conviction but on advertent (subjective) negligence.
Ruling for Crown - conviction reinstated. Rejects subjective negligence in favor
of objective fault. Not constitutionally necessary to have subjective fault because
it is not in special category like murder. SCC gives four reasons standard is
objective: (1) the licensing requirement means RP standard is imposed to get a
driver's license in the first place; (2) driving is an automatic and reflexive
activity, often doesn't require specific intent at any moment; (3) the wording of
the CC: "in a manner that is dangerous to the public, having regard to all the
circumstances" suggests that an objective standard is required; and (4) statistics
that show "all too many tragic deaths and disabling injuries flow from the
operation of motor vehicles indicate [a] need to control the conduct of drivers."
The test for the required mens rea of dangerous driving is a modified
objective test - circumstances determine if the accused committed a
"marked departure" from what reasonable person standard.
27
R v BEATTY [2008] SCC
FACTS
A is driving his pickup on the highway with good weather. Approaching a
RULING
RATIO
corner, he momentarily crosses the center line and kills 3 people in the
oncoming lane. Not much evidence about what caused the accident. Evidence
that A was driving responsibly up until the moment of the accident - a
momentary lack of attention. TJ acquits A because his driving was not a marked
departure from RP conduct. CA disagrees, argues that crossing the center line is
objectively dangerous and therefore a marked departure from the RP standard.
Ruling for A, acquittal reinstated.
To determine objective fault, must be satisfied on the basis of all the
evidence, including evidence about the accused's state of mind, if any, that
the conduct amounted to a marked departure from the standard of care
that a reasonable person would observe in the accused's circumstances. If
the A offers an explanation, then in order to convict, must be satisfied that
a reasonable person in similar circumstances would have been aware of
the risk involved in A's conduct.
FACTUAL DIFFERENCES FROM HUNDAL
 Lack of subjective fault
 Driving according to RP standard prior to accident
R v ROY [2012] SCC
FACTS
Two friends staying in a motor home. Foggy conditions. A pulls onto highway
RULING
RATIO
28
with his friend in the motor home and has to pull into the oncoming lane in
order to do so and is hit by a tractor trailer, killing his friend. A's license has
been suspended at the time of the accident. Convicted at trial and Court of
Appeal, but appealed to SCC because Beatty occurred in the interim.
Overturned conviction and acquitted A. Reiteration that it is essential not to
collapse actus reus and mens rea and thereby reason backwards from the
consequences to a marked departure from the RP standard and then to
objective fault. Acquits A because this was a bad judgment call, not a marked
departure from RP.
It is essential not to collapse actus reus and mens rea and thereby reason
backwards from the consequences to a marked departure from the RP
standard and then to objective fault.
9. MISTAKE
A. MISTAKE OF FACT
Mistake of fact is a common law defence, which applies to all offences and offers a full defence. The
burden is on the A to meet the air of reality of threshold for the judge to charge the jury on the
defence.
The air of reality test requires that the defence be plausible and have some basis in the evidence,
in order for the TJ to charge the jury. Simply, is there enough evidence, if believed, for the defence to
function? Once the air of reality test is met, then the Crown will have the burden of trying to
disprove the relevant evidence. The jury can convict if they do not believe the D's evidence, or
believe the Crown's argument disproving the relevant evidence.
R v KUNDEUS [2012] SCC
FACTS
A sold drug to undercover cop, drug he actually sold was a less serious drug
(mescaline not LSD). How does this differ from BEAVER? A knew he was
trafficking something he knew was illegal in some way. From BLONDIN? We
RULING
RATIO
have two different classes of drugs, not a situation where he suspects a
restricted drug, and the A believes it’s a lesser category he’s selling. A argues he
should have defence of mistake of fact.
Majority rejects this defence. Presumption is that you intend consequences of
your actions. Not interested in a claim unsupported by tangible evidence. Finds
enough mens rea to convict.
DISSENT (LASKIN)
The dissent is important [it’s why we’re reading this case]. Early statement
that Mens Rea and Actus Reus have to match. Prepared to accept defence of
mistake of fact. Can’t rely on generalized claim to sell drugs. Need MR and AR of
the same crime. Holds mistaken belief need only be honestly held (reasonable
isn’t the test). Laskin claims A should be charged with attempting to traffic
mescaline. (Attempt = intent + some act beyond mere preparation).
Mistake of fact can arise anytime knowledge forms some part of the
circumstances (but is mainly invoked in the context of sex assault).
RAPE & SEXUAL ASSAULT
In 1983, rape was replaced by sexual assault in the CC. New sexual assault in CC differed from old
rape definition in key ways:
 Stopped making rigid distinctions between kinds of acts (heterosexual intercourse formerly
viewed as most severe)
 Marital exemption was abolished
 Offence became gender neutral (not just against women by male offenders)
 Requirement of non-consent retained from old offence of rape
This can raise the question of whether A knew the victim wasn’t consenting, or was mistaken that
they had. But there was a push to change old notion of consent (where not fighting back could be
construed as consent) to “voluntary agreement to participate in consensual activity”.
Claim of mistake of fact under new sexual assault provisions means that for the A to argue mistaken
consent, A is essentially saying the victim wanted contact to occur. How did mistake of fact work
under the old regime? See PAPPAJOHN.
29
R v PAPPAJOHN [1980] SCC
FACTS
A charged with raping a real estate agent. Victim testifies she resisted his
RULING
RATIO
advances throughout. A testified that he believed victim consented until
bondage, and no intercourse took place thereafter.
Held for the Crown - the jury should be instructed that reasonableness can only
go to credibility of Accused’s assertion in an honest belief. On these facts, there
was no “air of reality” to the defence of mistake of fact. A must directly assert
mistaken belief in order to engage the defence. Conviction affirmed.
Policy concern = Case from a time when female rape complainants were
routinely cross-examined about their personal sexual history. On the stand,
their credibility would be undermined by any reported sexual activity. Court
also held myths and stereotypes about women which were perpetuated by the
SCC at 9-15 (women claiming rape because they’re ashamed they were slutty).
Old test for mistake of fact: the mistake must be honestly held, but need
not be reasonable. Only need reasonable evidence of honest belief.
The court was not saying there has to be a third party to corroborate assault, just that there must
be admissible evidence beyond merely a statement by defence counsel to invoke the defence of
mistake of fact. However, a statement by the A while under oath is sufficient.
After this case, introduction of statute which requires instruction that reasonability is related to
honesty of belief. In 1983, rape is replaced by sexual assault provisions.
AR
MR
Application of force
Intentional
Circumstances of a sexual nature None
Without consent
(subjective state of mind)
Knowledge
Shift in judicial attitudes regarding proving consent, from a resistance requirement to broader
understanding: no means no, silence means non-consent, etc.
R v LETENDRE [1991]
TJ found Crown had failed to prove non-consent, said: "no may mean no, but sometimes it may
mean maybe, or try again in a little while.”
But, things start to change in 1992:
Consent was defined as voluntary agreement. Section 273.2(b) of the Code, enacted in 1992, states
that it is not a defence to a charge of sexual assault, sexual assault with a weapon, or aggravated
sexual assault that the accused believed that the complainant consented where the accused “did not
take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the
complainant was consenting.”
30
R v EWANCHUK [1999] SCC
FACTS
A brought a 17-year-old woman into his van for a job interview. After the
RULING
RATIO
interview A invited the woman to his trailer, where he made a series of
advances. Each time she would say "no" to his advance and he would stop but
then start again. She testified at trial that during her time in the trailer she was
very afraid and thus tried to project a confident attitude. Before she left, A paid
her $100 and told her not to tell anyone.
At trial, A successfully argued that, although the woman had initially said "no" to
his sexual touching, because he had continued and she had failed to object
further this constituted "implied consent". The acquittal was upheld at appeal
on 2-1 basis, with Justice John McClung commenting that "it must be pointed out
that the complainant did not present herself to A or enter his trailer in a bonnet
and crinolines" and that A's conduct was "less criminal than hormonal". The
Crown appealed as of right on the issue of an implied consent defence.
Held for the Crown. Major, writing for the majority, defines non-consent as a
subjective state of mind of the complainant, and that's all the Crown has to
prove as an element of the actus reus. This is proven by the testimony of the
complainant, and the question is the credibility of their testimony. As for the
mens rea of the offence, the Court argues that the definition of consent as
voluntary agreement means that for the defence of mistake of fact to work, the A
has to have had a belief in the complainant's voluntary agreement. Consent can
be shown in one of two ways:
1. the "complainant in her mind wanted the sexual touching to take place"; or
2. "the complainant had affirmatively communicated by words or conduct her
agreement to engage in sexual activity with the accused".
As such there was no air of reality to the A's belief in the complainant's
voluntary agreement based on the facts, and thus there is no requirement to
consider s 273.2(b).
L'Heureux-Dubé, in a concurring judgment, held that the defence could not be
used unless the A took sufficient steps to ascertain consent. Here, the A did not
make any attempt to ensure that there was consent when he moved from a
massage to sexual touching. She also castigated McClung's opinion severely,
arguing that it relied on myths and stereotypes about women and sexual assault.
1. Non-consent is determined based on the complainant’s subjective state.
2. There is no defence of implied consent in sexual assault.
What kind of actions say "yes"? Stereotypes can offer protection to the A. However, the s 273.2(b)
"reasonable steps" provision militates against this.
R v DARRACH [2000] SCC
An unsuccessful s. 7 Charter challenge to constitutionality of reasonable steps provision establishes
that this provision is constitutional.
B. MISTAKE OF LAW
What about mistakes of law? What if you don't know what the law is? What if you've researched the
law but are confused as to what is actually prohibited?
31
According to Section 19 of the CC, ignorance of the law is no defence. This seems to disallow a
mistake of law defence. This is often described as a rule of policy, and not of fairness. What policy?
 Discourage ignorance of the law - allowing it as a defence incentivizes it. If it's not allowed,
then learning about the law is encouraged.
 Proving knowledge of the law would be very difficult for the Crown - unlike MR, can't really
be inferred from behaviour, given that the A broke the law.
R v CAMPBELL & MLYNARCHUK [1973] AB DC
FACTS
A is charged with giving an immoral performance at a strip club in Edmonton.
RULING
RATIO
Boss told her she can go totally nude without breaking the law due to a decision
called Johnson. She gets naked and is charged, even though at the time of the
performance Johnson stands. But then the Court of Appeal reverses Johnson by
the time her case has come before the court.
A's mistake was thinking that a decision from a TJ makes law, when only Court
of Appeal and Supreme Court decisions can make law. Can't acquit the A, but can
give her an absolute discharge - admission of guilt, but no penalty and no
criminal record (there is a record of the discharge however). IRONY: SCC
reverses Johnson again, and A actually broke no law.
Mistakes of law are no defence for criminal offences - for reasons of policy,
not of fairness.
But what about regulatory offences, where s 19 of the CCC does not apply? Is there a common law
defence of mistake of law? Courts will often trace mistake back to mistaken advice from a public
official, and from that use estoppel to prevent prosecution. But there have to be limits on this
approach - how much officially induced error is necessary?
LÉVIS (CITY) v TÉTREAULT; LÉVIS (CITY) v 2629-4470 QUÉBEC INC [2001] SCC
FACTS
One A is charged with driving without a license, another with driving without
RULING
RATIO
paying a fee. The company was told that they were to get a notice of renewal.
Levis thought that the date on his license was a payment date, not an expiry
date. Both As argue they should be able to rely on a defence of officially induced
error of law.
SCC does recognize the existence of this defence, and sets out the following
definition:
1. that an error of law or of mixed law and fact was made;
2. that the person who committed the act considered the legal consequences
of his or her actions;
3. that the advice obtained came from an appropriate official;
4. that the advice was reasonable;
5. that the advice was erroneous; and
6. that the person relied on the advice in committing the act.
The SCC eventually rejects this argument in both cases, based on the facts.
There is a common law defence of officially induced error of law for
regulatory offences.
Q: Could this apply to the CC, s 19 notwithstanding?
32
A: The 6 elements of this defence come from the concurrence in JORGENSEN, a criminal code case.
The concurrence argues that this defence should apply for criminal code offences in cases where
the officially induced error amounts to an abuse of process and the A should receive a stay of
proceedings. The fact that the SCC endorsed JORGENSEN suggests that they might be open to
allowing this defence for criminal offences, given an appropriate fact pattern.
Q: What about if your error is induced by your lawyer?
A: Then they are civilly liable.
So mistake of law is a common law defence, which applies to all offences (possibly). It offers a full
defence, and the burden is on the A to prove it on a BOP.
10. INTOXICATION & PROVOCATION
A. INTOXICATION
Most people that arrive before the criminal justice system are intoxicated. When, if ever, can you
raise your self-induced intoxication as a defence?
POLICY CONCERNS
 We want to convict the morally blameworthy, and intoxication undermines MR. The court
can't convict without MR due to the Constitution
 We don't want to incentivize intoxication as a defence to offences, as this would induce
carelessness and intoxication
 The consequences that flow from intoxication should remain the responsibility of the
individual who induced their own intoxication
 Certain criminal acts are associated with intoxication (eg. drunk driving, sexual assault,
violent offences)
TRADITIONAL COMMON LAW RULE (LEARY RULE)
Draws a distinction between offences of general intent and offences of specific intent, and allows
a defence of intoxication only for the latter. This avoids acquittals because A can always still be
charged with lesser included general intent offence of specific intent offence, and have no defence
of intoxication.
General intent
Intent to commit the act itself (eg. Assault, Manslaughter)
Specific intent
Adds an additional purpose requirement beyond the intent to commit the
act itself (eg. Robbery, Murder) "for the purpose of", "with an intent to"
EXAMPLE:
Assault
Intentional application of force
Robbery
Assault w/ an intent to steal
33
R v BERNARD [1988] SCC
FACTS
A is trying to raise defence of intoxication to charge of sexual assault causing
RULING
RATIO
bodily harm. Court needs to determine whether Leary rule should be
maintained and if it applies to sexual assault.
Majority holds that Leary rule should still hold because it is a logical distinction.
Rule does not help the A however, as sexual assault is a general intent offence.
What about the very rare case where someone is so intoxicated that they are
basically in a state of (self-induced) automatism? Maybe there is a possibility
that this should be a defence for all offences, both general and specific. In
concurrence, McIntyre J disagrees, arguing that the blameworthiness for
inducing that high level of intoxication can substitute for the minimal mens rea
required for general intent offences. Court has to resolve this question in
DAVIAULT.
The Leary rule still holds. Opens a possibility of a defence of intoxication
to general intent offences if intoxication was sufficient to create
automatism, but there is also a possibility that the blameworthiness of
getting that drunk can substitute for the MR of the general intent offence.
DISSENT
Dickson J wants to get rid of the Leary rule because it is artificial and there should be a defence of
intoxication for all offences, in order to remain consistent with PAPPAJOHN (which allows the A to
argue that they had a mistaken belief).
Today, the CC (in the same provision as "reasonable steps") holds that an A cannot use selfinduced intoxication as a basis for belief in the complainant's consent.
R v DAVIAULT [1994] SCC
FACTS
A was an alcoholic who argued that he was so drunk as to be in a state of
RULING
automatism and that this should function as a defence to a charge of sexual
assault. TJ acquits, and SCC splits 5-4
MAJORITY: If the intoxication is sufficiently extreme you ought to be able to
invoke the defence of intoxication even with offences of general intent. Argues
that the Charter requires that we not convict the morally blameless.
DISSENT: Crown does not need to prove precise symmetry between AR and MR.
This was a very controversial decision, public thought it would lead to a lot of acquittals in sexual
assault cases – in response parliament drafts Section 33.1 of CC. This section removes defence of
extreme intoxication in general intent offences that are assault based (if someone markedly
and substantially departs from standard of care – getting intoxicated to the point where they can’t
consciously control their behaviour and then intentionally interferes with bodily integrity of
another person). Here the blameworthiness of getting intoxicated can substitute for the MR of
sexual assault.
Defence has a persuasive burden to prove intoxication on a balance of probabilities.
34
Q: What about the defence of intoxication for offences of specific intent?
R v DRADER[2009] BC PROV CT
FACTS
Case deals with breaking and entering with intent to commit indictable offence.
RULING
RATIO
TJ finds that Drader has been drinking until 5am and then entered a home and
stole mail. Drader testifies that he did not remember anything until he got home.
The issue is what level of intoxication is needed to establish the defence in the
context of an offence of specific intent, in this case breaking and entering with
intent to commit an indictable offence.
Court says you must be at a medium level of intoxication in order to use defence.
Here, Drader was acting in a foolish but not irrational way. He was able to enter
house and immediately run when confronted by the owner. He was not so
intoxicated as not to possess the minimal MR needed for the offence.
Behaviour must be irrational to satisfy medium level of intoxication
necessary in order to use defence successfully to a crime of specific intent.
R v PENNE [1990] SCC
Intoxication is not available as a defence if intoxication is an element of the offence itself.
B. PROVOCATION
Provocation is a limited defence, whose sole function is to reduce murder to manslaughter. It
applies to 1st and 2nd degree murder. If successful, the A will move to a much more flexible
sentencing scheme in manslaughter, as there is a mandatory life sentence for murder.
This defence requires circumstances in which an ordinary person would be so provoked by an act
or insult as to respond by violence. How much personalization is there in this test? How much do
the biases of the accused enter into this assessment?
Provocation can enter into sentencing for other crimes, but it doesn't function as a defence there.
R v HILL [1985] SCC
FACTS
A is charged with 1st degree murder, found guilty of 2nd degree murder. A
RULING
RATIO
given the minimum sentence of life in prison with no parole for 10 years. At the
time of the crime, A is only 16 years old, but is tried as an adult. No dispute over
the fact that A stabbed Pegg to death, but Crown and defence had very different
theories over why it happened. The Crown argued that the two were involved in
a sexual relationship and the A decided to kill Pegg. Defence argued Pegg made
unwanted sexual advances on A, who resisted and in doing so killed him.
Held for the Crown. It's not necessary for the judge to instruct the jury on the
personal attributes of the A, as the jury will already do that. So the fact that the
judge didn't do that is not an error of law, and Hill's conviction was upheld. Fact
that A came back undermines the probability that he acted "on the sudden" in
response to the provocation.
1. The ordinary person test for provocation is a modified objective test
based on the attributes of the A relevant to the provocation.
2. Personal characteristics like alcoholism or quick tempers are not
included, as the test presumes a reasonable level of self-control.
Also problematic that unwanted sexual advance was sufficient grounds for provocation - suggests
that any ordinary 16 year old boy, when faced with an unwanted sexual advance from a man, would
be so insulted as to be driven to violence, incorporating a certain level of homophobia in society.
35
This is the central problem for provocation - how much can we rely on negative stereotypes to
ground a defence? Does the defence of provocation have an air of reality?
When instructing the jury on the defence of provocation re: the ordinary person, should they
consider the personal attributes of the accused (age, gender, etc.)? Yes.
R v THIBERT [1996] SCC
FACTS
Marriage is ending, A is separated from his wife. Wife has moved on and started
RULING
RATIO
a new relationship with a co-worker. A wants to continue the marriage, despite
the fact that he has had a number of extra-marital affairs. Wife moves into a
hotel room, A keeps trying to make contact. One night, A loads rifle and leaves it
downstairs. The wife agrees to meet with him at a public place with her
daughter and partner present. In the parking lot, A threatens them. A returns
home and works on his gun, sawing it off. A harasses his wife at work. One time,
an altercation occurs in the parking lot between the A, the wife and the new
boyfriend. A shoots the boyfriend, advancing the defence of provocation.
Convicted of second degree murder by a jury. Appealed by the A - both the
Crown and defence agree that the judge erred in instructing the jury on the
defence. Issue then is whether there is an air of reality on the facts to the
defence at all - if so, a new trial will be required.
The majority of the court agrees that there is an air of reality to the defence of
provocation on these facts, and the wrongful act or insult is the confrontation
when the boyfriend is taunting the A to shoot him while holding the wife
possessively. Have to consider all the relevant background that led up to the
moment in the parking lot, the fact that the wife had left him, that the A thought
reconciliation was possible, was sleep deprived (but is this more like being
drunk or quick-tempered?) and that the boyfriend was preventing
reconciliation. Court reads the provision that legal rights do not qualify as
provocation as not including all legal actions, but those provocative actions
which are undertaken by legal functionaries. New trial is ordered, and A
receives lighter sentence for manslaughter.
Defence of provocation should include consideration of prior context to
the insult or wrongful act. Not all lawful acts are excluded from
provocation, only those undertaken by legal functionaries.
DISSENT
There is no ownership relationship here, and the boyfriend's possessive behaviour should not be
read as provocative given the wife's behaviour illustrated that she wanted to end the marriage and
start a new relationship. Boyfriend's behaviour in the parking lot was an attempt to defuse a
dangerous situation, and why should it qualify as provocation? Further, the suddenness aspect was
missing (prior knowledge, work on the guns). Considering so much prior context undermines the
suddenness aspect of the defence. Stereotypical beliefs are coloring the ordinary person test, beliefs
which are contrary to the Charter and should be rejected.
Q: What about insults in context of racial, religious or cultural background (in my culture, for a
woman to leave her husband and start drinking is a wrongful act or insult)?
A: A few courts allow that evidence, while others reject it.
36
R v TRAN [2010] SCC
FACTS
A is the ex-partner of one of the victims. A attacks with knives, kills partner and
RULING
RATIO
badly wounds his ex-wife. Can't raise provocation to the attempted murder
charge, but can to the murder charge. Previously, the couple separated and the
A has made a number of unsuccessful efforts to restart the marriage. A has left
the apartment, and the wife believes that he has left and has no keys. A enters
the apartment one night to find his ex-wife and her new partner in bed, asleep.
A grabs two butcher knives and attacks them both - wife survives by pretending
to be dead. At trial, judge accepts defence of provocation and convicted of
manslaughter. A raises evidence at trial that in his particular cultural context,
his wife's behaviour was a grave insult - this was not a key consideration in the
TJ's decision that the defence of provocation has an air of reality.
There is no air of reality to the defence of provocation in this case, and the A is
convicted of murder. How is it distinguishable from THIBERT?
 Victims made no acts at all, were asleep - A hunted them down
 Provocation of the act was outside Justices' cultural context
Modifies defence of provocation:
"For example, it would be appropriate to ascribe to the ordinary person relevant
racial characteristics if the accused were the recipient of a racial slur, but it
would not be appropriate to ascribe to the ordinary person the characteristic of
being homophobic if the accused were the recipient of a homosexual advance."
Modifies provocation in response to criticisms of HILL and THIBERT:
The determination of what qualifies as an insult cannot rely on
outmoded or stereotypical beliefs.
Generally speaking, it is very difficult for women to be successful with the defence of provocation (R
v DANIELS).
R v GILL [2009] ON CA
FACTS
During giant blackout of 2003, A is stargazing through a telescope with friends.
RULING
RATIO
A is a 24 year old university student at the time. Drunken group of other men
drive by, call them geeks, A hits the car, other men exit the car. A runs back to
his backpack, gets a knife from his backpack and kills someone in the ensuing
scuffle. A raises both the defence of provocation and self-defence. This is
problematic because the former relies on anger, while the latter relies on fear
for your own safety. Further, the former is a partial excuse while the latter is a
justification. TJ only instructs the jury on self-defence, A appeals.
A argues that judge should have raised defence of provocation, despite his
evidence that he was afraid and not angry. The court agrees and says that the
jury should have been instructed on both defences.
Example of sympathetic A raising provocation and difficulty in raising
defences of both provocation and self-defence (though you can still raise
both!).
37
R v NEALY [1986] ON CA
FACTS
A drank, drugs, repeatedly assaulted girlfriend, put knife in belt etc.
RULING
What if you don't have sufficient factors to make out any of the various defences
RATIO
of intoxication, self-defence, provocation, etc. (the rolled up charge) - can the TJ
instruct the jury to consider those factors when determining whether there was
sufficient MR? Crown argues that insufficient evidence to ground a defence
cannot be used in this way, while opposing view, often taken by the courts,
holds that the trier of fact should consider these circumstances, despite their
insufficiency in establishing the formal defences - it's just relevant for
determining intent.
All circumstances surrounding the act of killing must be taken into
account in determining whether or not the A had the intent required for
the commission of murder.
The rolled up charge is the use of half-proven defences to undermine Crown's case to prove BARD
an element of the offence (normally intent). Generally, functions to reduce murder to manslaughter.
11. MENTAL DISORDER
A. THE DEFENCE OF MENTAL DISORDER
Under the old s 16, if you successfully established the defence of mental disorder, you were
detained under a Lieutenant Governor's Warrant (LGW) in a mental ward indefinitely, with
periodic reviews. As such, most accused preferred to just go to jail! However, it was possible for the
Crown to raise evidence of insanity against the wishes of the accused.
This state of affairs was challenged in the SCC's decision in R v SWAIN, which invalidated the
disposition system of people with mental illness for reasons of Charter violations due to indefinite
detentions, and it was not fair for the Crown to raise evidence of insanity whenever it chose. It was
bold on the part of the SCC to invalidate the entire system and give Parliament 18 months to fix it.
Today, if someone is found not criminally responsible by reason of mental disorder (NCRMD), they
are not acquitted or convicted of a lesser offence, but committed to a disposition for psychiatric
consideration. They are periodically brought before a Mental Health Review Board (staffed by at
least one psychiatrist, laypeople, and justice officials), which has 3 options:
1. The A released into the community absolutely
2. The A released into the community with conditions (getting treatment)
3. The A can be detained in a secure psychiatric facility
The A is to be given the least restrictive disposition given the risk to the public. The seriousness of
the crime is only considered to determine the risk to the public. The A can also undergo periodic
reassessment.
Section 16.4: Presumption of sanity (does this violate the Charter? Yes. Does it pass the Oakes test?
Yes.)
This scheme has come under political fire recently, and the Conservative government wants to
make it more restrictive, based on the idea that serious crimes are going unpunished. 3 cases media
refers to: Vince Lee (greyhound killer); Guy Turcotte (killed 2 children, probably not insane); Allan
Schoenborn (killed children, history of stalking and violence).
It's the judge's job to explain the law to the jury (legal definitions, burden of proof), and the jury's
job to make findings of fact and apply them to the law (did the A have the symptoms, do these
symptoms meet the legal definition of mental disorder).
38
4 ways A can be found NCRMD:
1. A raises claim of NCRMD at outset of the trial (most common).
2. A raises claim after finding of guilt, before judge formally enters a conviction (rare). Allows
A to raise defences earlier in the trial without prejudicing the jury with the stigma of mental
illness.
3. Crown raises claim after finding of guilt (rare).
4. A puts their mental state in issue (eg. A takes the stand, testifies that they were
schizophrenic). Rare.
SWAIN created this scheme, but left the definitions in s 16 alone - Parliament amended them
anyway, to the following:
Section 16:
(2) No person is criminally responsible for an act/omission committed while suffering from
mental disorder (defined as disease of mind in section 2 of CC) which rendered the person
incapable of appreciating the nature and quality of the act/omission or knowing that it was
wrong
(3) Presumption of sanity which means that mental disorder must be proven on BOP
(4) Burden of proof lies with party raising the issue
Two fundamental differences with other offences:
1. The A is not acquitted, they are found not criminally responsible for their action
2. Either the Crown or the A can invoke defence
(1) No person is criminally responsible for an act committed or an omission made while suffering
from a mental disorder that rendered the person incapable of appreciating the nature and quality of
the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on the balance of
probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt
from criminal responsibility is on the party that raises the issue.
Disease of the mind
[I]n a legal sense “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.
R v COOPER [1980] SCC
Deals with "not appreciating the nature and quality of the act" – this is more than just mere
knowledge of the physical act, but an ability to perceive the consequences, impact and results of
physical act. Not terribly problematic.
What about the second branch of the test? Does the A have to be ignorant of the legal wrongness of
their act, or the moral wrongness, in order to establish NCRMD? In R v SCHWARTZ, SCC decides on
the former, but Dickson J writes an extensive dissent arguing for the latter.
39
R v CHAULK [1990] SCC
FACTS
Two As robbed a home and killed the occupant. A week later, turned themselves
RULING
RATIO
in. The A wanted to argue NCRMD because while they knew they were killing
someone, and that this was illegal, but that they were all-powerful and killing
was necessary for world domination.
SCC overrules SCHWARTZ, changes definition in test from legally wrong to
morally wrong. SCC also finds reverse onus violates the Charter but passes the
Oakes test and is justified under s 1.
Overrules SCHWARTZ: wrong is s 16 means morally, not legally wrong. The
A must only be incapable of determining that their act was morally wrong.
B. AUTOMATISM
R v RABEY [1977] SCC
FACTS
This appeal concerns the intractable problem of distinguishing between
RULING
RATIO
insane and non-insane automatism.
Any malfunctioning of the mind, or mental disorder having its source primarily
in some subjective condition or weakness internal to the A (whether fully
understood or not), may be a "disease of the mind" if it prevents the A from
knowing what he is doing, but transient disturbances of consciousness due to
certain specific external factors are not a disease of the mind.
What mental states or conditions constitute "disease of the mind" is a
question of law for the Judge.
R v PARKS [1990] SCC
FACTS
Parks attacked his parents-in-law when he was sleepwalking. He drove 23
RULING
40
kilometers to their house when he was sleepwalking and stabbed them in their
sleep with a kitchen knife. His mother-in-law died, and his father-in-law was
seriously injured. He did not remember any of the actions and there was no
reasonable motive for the murder. Parks did not have any mental conditions,
although several members of his family had sleep problems. Parks had been
working long hours at work and had recently been charged with a theft from his
employer. He was acquitted both at trial and at the Court of Appeal.
Held for the D – evidence showed he was sleepwalking at the time of the attack,
that sleepwalking is not a neurological disorder, and that there is no medical
treatment for sleepwalking aside from good health.
In determining whether or not automatism springs from a disease of the mind
one should look to determine if it is caused by internal (in the mind) or external
factors. One should also consider whether the condition is continuing. Although
these are not determinative, a finding that automatism is internal and
continuing suggests a disease of the mind. In this case there was no evidence of
a recurrence of sleepwalking causing a similar outcome.
There is also non-insane automatism, which is where the automatism is caused
by external factors, it is not continual, and is not linked to any disease of the
mind. This applies as a complete defence resulting in the disposition of an
acquittal. Although some critics are against applying this defence to
sleepwalking, La Forest states that it cannot lead to an opening of the floodgates
RATIO
because it is so rare, and that it must be done to uphold the principles of
voluntariness required for a conviction.
1. Automatism works as a defence and results in an absolute acquittal.
2. Once the defendant raises automatism as a defence the burden is on
the Crown to prove voluntariness, or to prove insane automatism
which results in a non-criminal responsibility verdict but may result in
an alternative disposition under s 672.54.
R v STONE [1999] SCC
FACTS
Stone was driving to see his two sons from a previous marriage with his wife.
RULING
RATIO
She did not want him to see them and as a result of her reticence he was only
able to visit with them for 15 minutes. On the drive back she continued to berate
him, telling him he was a loser, that he was terrible in bed, that he had a small
penis, and that she was going to go to the police with trumped up assault
charges. He pulled the car over and put his head down. He testified that he
blacked out and felt a "woosh" go through his body. When he came to he had
stabbed her 47 times with a hunting knife that he kept in the car. He hid her
body in his truck's tool chest, picked up a six pack, drove home, left a note for
his daughter, and took off to Mexico. After a few weeks in Mexico he decided to
return to Canada and turn himself in. In his defence, Stone pleaded insane
automatism, non-insane automatism, lack of intent, and in the alternative,
provocation. The judge allowed for a defence of insane automatism which was
presented to the jury. The jury convicted him of manslaughter and sentenced
him to seven years. The verdict was upheld by the CA.
Insane automatism results from a disease of the mind, and is completely
covered by s.16. If it is successfully proven then a special verdict will be entered.
On the other hand, non-insane automatism does not stem from a disease of the
mind and, if successful, results in an acquittal of the defendant.
The court then sets out the test for establishing automatism. First, the accused
needs to establish a proper basis for the defence of automatism on a balance of
probabilities. This burden shift violates s 11(d) of the Charter, but is saved by s
1. In law, there is a presumption of voluntariness. In order to establish this
burden the accused must give expert evidence to go along with their claim.
If this burden is met, the judge must then decide whether mental disorder or
non-mental disorder automatism should be left to the jury. The judge must
decide whether there is a "disease of the mind" present. If one is present, then a
special verdict will be entered as per s 16. If none is present, then only the
defence of non-disorder automatism can be left to the jury.
Test for defence of automatism has two steps:
1. The A must establish, on BOP, that there is sufficient evidence to make the
defence operate. In order to do this the accused must have expert evidence
to go along with his or her testimony. If not, the defence fails.
2. The judge must decide if there is a disease of the mind. If there is, then a
special verdict is entered and normal s 16 procedures are followed. If there
is not, then the question must be left to the jury if the A acted involuntarily.
If he did, then he is acquitted.
41
C. RELATIONSHIP WITH INTOXICATION
R v BOUCHARD-LEBRUN [2011] SCC
FACTS
A took ecstasy (with PCP in it), went crazy and assaulted two people seriously.
RULING
RATIO
Argues for mental disorder.
Recall that intoxication has two branches: (1) intoxication can provide a defence
for a crime of specific intent, resulting in acquittal, or more likely a ; (2)
intoxication can be so extreme as to put the A in a state of automatism
(DAVIAULT), and this can be a defence for crimes of general intent - but after
DAVIAULT, Parliament passes s 33.1, excluding violent and threatening crimes
with general intent from this rule. So A is out of luck because they are charged
with assault, so they have to argue that self-induced intoxication triggered an
underlying mental issue of automatism and so should be included under s 16 as
a mental disorder. Court rejects A's argument, and argues that intoxication and
mental disorder as separate concepts. Both are legal concepts, not purely
medical ones, and refer to the internal cause and continuing danger theories to
justify these definitions. Court rejects the A's distinction between the normal
and abnormal effects of intoxication, finding that toxic psychosis is not an
abnormal effect of taking PCP.
Toxic psychosis from a single episode of self-induced intoxication is not a
disease of the mind under s 2, and therefore not a mental disorder.
NOTES
Interesting that defence counsel didn't raise s 7 argument against s 33.1. Why didn't defence
counsel argue that the intoxication wasn't self-induced because the A didn't mean to do PCP? The
court has previously rejected this argument, holding that when taking illegal drugs this argument is
unavailable.
D. FITNESS TO STAND TO TRIAL
It may be that the A's fitness to stand trial is at issue, and this is a separate issue with its own
regime. Generally, the threshold is pretty low: you have to be able to understand the proceedings;
you have to be able to communicate with your counsel, both at a pretty low level. If A is found unfit
to stand trial, they are referred to a review board (similar to the NCRMD boards) which can order
that they be detained.
There is a provision in the Criminal Code allowing the prosecution to force the A to undergo
treatment in order to become fit for trial. This is interesting because if the A is found to be NCRMD,
there are no provisions in the Criminal Code which can force them to undergo treatment (there are
provisions in the Mental Health Act).
42
12. SELF-DEFENCE
6 ELEMENTS OF SELF-DEFENCE
SUBJECTIVE
OBJECTIVE
A's belief in...
Unlawful assault
A's belief in...
Reasonable apprehension of death/gbh
A's belief in...
Belief that there is no alternative
Self-defence is actually a collection of defences which say that you are justified in using force in
order to defend yourself, a third party or even your property in some limited circumstances. It is a
statutory defence, and very recently the SCC in RYAN said that the self-defence provisions are
meant to be exhaustive, so there are no residual common law aspects to the defence. Self-defence is
a complete defence, so if successful the A receives an acquittal. It applies to any offence in the
Criminal Code that has any violent or force component (assault, murder, manslaughter, etc.). It’s
one of the few defences that can be used in a murder trial.
The burden of proof is similar to some other defences - the A has to raise an air of reality to the
defence, then the burden shifts to the prosecution to disprove the defence.
The self-defence provisions in the Criminal Code are not particularly well drafted, and may be
replaced in the future. The most important provisions currently are found at s 34:
(1) Every one 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.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in
repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from
the violence with which the assault was originally made or with which the assailant
pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from
death or grievous bodily harm.
There has to be proportionality between the attack the force returned.
Seems to be gaps between these two provisions. What about s 35?
Every one who has without justification assaulted another but did not commence the
assault with intent to cause death or grievous bodily harm, or has without justification
provoked an assault on himself by another, may justify the use of force subsequent to the
assault if he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence
of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself
from death or grievous bodily harm;
43
he did not, at any time before the necessity of preserving himself from death or grievous
bodily harm arose, endeavour to cause death or grievous bodily harm; and
he declined further conflict and quitted or retreated from it as far as it was feasible to do so
before the necessity of preserving himself from death or grievous bodily harm arose.
Section 38 allows for defence of property.
R v LAVALLEE [1990] SCC
FACTS
A kills abusive partner, Rust. Section 34(2) is at issue. Challenge for A is that she
RULING
RATIO
shot her abusive partner in the back of the head when he was walking away
from her - can she invoke self-defence notwithstanding the fact that she was not
imminently facing death or grievous bodily harm from Rust?
Previously, courts had read s 34(2) as carrying an implicit requirement of
imminence in order to restrict the application of the defence. Court has to
consider what is reasonable for a woman in A's situation - gender is relevant. A
had been threatened by partner (which amounts to the required "unlawful
assault" in s 34.2) and his behaviour had changed in specific ways to convince A
that he was serious. The imminence requirement is used to determine that the
violence is truly necessary - why not just ask that question? The A's fear doesn't
have to be accurate, merely reasonable.
After going into the history of spousal abuse and the effects that it has on the
women who are abused, Wilson held that expert evidence is very much
admissible and helpful in establishing the necessary elements were present for
s.34(2) to provide a defence. Rust's abuse followed a pattern. The A had suffered
years of abuse and the court holds that this context is relevant in determining
reasonability. The Court holds that expert evidence is very helpful in
determining how a reasonable person would have acted in the situation. It
allows the jury to understand the situation that the woman was in and what she
was thinking. In this case, it helps them realize that despite the fact that she shot
him while he was walking away, she still thought that her life was in serious
danger. She believed that he was going to kill her later on that night if she did
not act first. This expert testimony helps prove that the defence was not too far
removed temporally, or too violent to have been reasonable in the
circumstances. Therefore, the trial judge did not err in allowing Dr. Shane's
testimony to be used as evidence available to the jury.
But why didn't the A attempt to retreat? One argument is the psychological
one - that the cyclical pattern of abuse creates traumatic bonding. Another
(better) argument is that separation is the most dangerous time, and that
separation will merely give the abuser an opportunity to kill her first. Another
argument: why doesn't she have the right to stay home and defend herself?
Definition of reasonableness has to be fit to the A's context. Expert
evidence can be crucial to establishing this context. Women don't forfeit
right to self-defence by staying in a relationship.
The objective test is personalized to take into account the circumstances of the accused. So
what is reasonable for two men of similar size fighting in a parking lot is not the same as what is
reasonable for a woman in an abusive relationship at a significant physical disadvantage.
44
Some have criticized this decision for excessively broadening the defence of self-defence. Not borne
out by the stats. Government reviewed ~80 cases of imprisoned women with histories of abuse,
only ~10 had some reduction of culpability, 2 released.
Women in this scenario are often reluctant to try the defence of self-defence (because if it doesn't
work, murder conviction carries an automatic life sentence), and take a plea bargain for
manslaughter and a 6-year sentence instead.
R v PÉTEL [1994] SCC
FACTS
A made a mistake about whether she was being assaulted.
RULING
So long as belief is reasonable, mistake of fact is not disqualifying.
RATIO
So long as your mistake is reasonable, you can still invoke the defence of
self-defence.
In the context of defences generally, objective standards are personalized and take into
consideration the circumstances of the accused. This is different than considerations for mens rea,
where personalization of RP standard has been rejected.
After LAVALLEE, there were some who argued that it created a defence of battered woman
syndrome which required expert evidence from psychiatrists. There is a danger that if the A doesn't
fit the model of the platonic battered woman won't be able to use the defence, despite the fact that
she might pass the personalized objective test.
All murder convictions carry a mandatory life sentence - 1st degree murder carries a period of 25
years ineligibility for parole, while 2nd degree murder carries a range of 10-20 years of parole
ineligibility.
R v MALOTT [1998] SCC
FACTS
A charged with the murder of her spouse and the attempted murder of his
RULING
girlfriend. The two of them were in separate locations at the time of the
shooting. A had been in abusive relationships her entire life (19 years with this
husband). On a number of occasions she went to the police for help, but her
husband was an informant and so was out of luck. A argued intoxication,
provocation and self-defence. Sometime after A shoots Mr. Malott, she goes to
the trailer of A's girlfriend and attacked her. The girlfriend noted that A was out
of it. A tried to argue self-defence on the attack on the girlfriend as well, but the
TJ refused to leave this defence with the jury, and this was not an issue on
appeal. With respect to the husband, the TJ did charge the jury on self-defence
but in a fairly terse way and the jury did not accept the defence, convicting her
of 2nd degree murder but recommending the minimum sentencing (generally
juries have no rule in sentencing, except in cases of 2nd degree murder).
Court takes this opportunity to respond to contention that there is a defence of
battered woman syndrome. The Court holds that battered woman syndrome is
not a legal defence in and of itself, and expert evidence could actually be
relevant in a number of contexts, not just self-defence (such as duress and
necessity). There's a danger of a new stereotype of a battered woman unfairly
45
RATIO
penalizing women who don't fit the passive, poor, white model (para 40).
Interesting gloss on LAVALLEE, as concurrence contends that battered
woman syndrome is not a legal defence on its own, just an extension of the
fact that the reasonable standard is personalized.
INCONSISTENT SELF-DEFENCE PROVISIONS
Section 34(1): Can repel force with force if you don't cause death or grievous bodily harm
Section 34(2): Can repel force with deadly force if you are under reasonable apprehension of death
or grievous bodily harm and there is no reasonable alternate means to preserve themselves.
Section 35: If you start a fight, and are met with overwhelming force, can repel with force but have
duty to retreat.
Can people who provoke the assault avail themselves of the defence under s 34(2), or are they
restricted to s 35? If the former, it suggests that the duty to retreat only applies when you don't
cause death or bodily harm...
R v McINTOSH [1995] SCC
FACTS
A threatens man with knife in order to regain stolen stereo equipment. At one
RULING
RATIO
point, the deceased attacked the A with a metal dolly and A retaliated with the
knife, killing him. No evidence that A took any steps to retreat from the conflict
so he won't succeed under s 35. Can he avail himself of s 34(2)? If so, all he has
to show is reasonable apprehension and belief that he could not otherwise
preserve himself. Crown led evidence to explain the contradiction in the
statutory provisions on a historical basis, and argued that the inconsistency
amounted to a drafting error.
Majority rejects Crown's analysis, as the words of the statute and their plain
meaning are not ambiguous. The two sections may be inconsistent, but that's
insufficient to interpret them otherwise. Majority invokes rule of statutory
construction that where there are two possible interpretations, the Court should
favour the one that is to the A's benefit.
Sections 34.2 and 35 are inconsistent.
Parliament doesn't do anything until very recently, in Bill C-26, which replaces s 34-42 of the CC
with a much more general definition of self-defence. This opens up the applicability of self-defence
while also shifting a great degree of discretion to the trier of law that there is an air of reality to the
defence, and to the trier of fact to determine whether the defence is made out.
For the exam, be familiar with both the old provisions and the incoming one, but apply the
provisions that are in force.
R v CINOUS [2002] SCC
FACTS
A caused the death of another, relying on s 34(2). Group of men are involved in
computer theft and resale ring. Before the killing, A lost one of his guns. This led
to fear that the group was planning to off him. Group pressures A to get back
into computer theft, and eventually he agrees. Meets with two of the group to
steal some computers, some evidence that they were planning to kill him
(change of gloves, hands in jackets, whispering to each other). No threats, but A
46
RULING
RATIO
felt trapped and pulled into a gas station and killed one of the men. When asked
why he didn't go to the police, A argued that it didn't seem reasonable. TJ
allowed the defence to go to the jury but erred in describing it.
Defence argues that air of reality test is met when there is any evidence for the
defence. The Court disagrees, holding that the air of reality threshold is met
where a properly instructed jury, acting reasonably, could acquit. Based on
these facts, the Court finds that there is an air of reality of 5 of the six required
elements of self-defence, but that there was no air of reality to the claim that
there was no reasonable alternative. Therefore, the TJ's errors don't matter.
CONCURRENCE
Policy-based approach: whatever the six parts of the test may be, the court will
not rely on the beliefs of a criminal sub-culture to determine the reasonable
person test.
Has to be an air of reality to the objective test and to the subjective beliefs
of the A.
There needs to be sufficient evidence on every aspect of the defence to
conceivably make it out in order to meet the air of reality test.
13. DEFENCE OF NECESSITY & DURESS
A. NECESSITY
Peril
Modified objective standard
No reasonable legal alternative Modified objective standard
Proportionality between harm
avoided and harm caused
Objective standard
Necessity is a common law defence not found anywhere in the Criminal Code. If successful, it offers
a full defence and could potentially apply to any offence, though as we'll see there may be
restrictions on this.
Necessity is a companion defence to duress. This defence is rarely invoked and even more rarely
successfully in the criminal law. Despite this, it is an interesting defence given its potentially broad
scope - it is an admission by the law that there may be some situations where acting illegally may be
morally involuntary (no reasonable person could have refrained from committing these acts).
Justifications: traditionally, under the common law this offered a full defence.
Excuses: traditionally, under the common law offered a penalty mitigation.
This distinction is not really relevant in Canada anymore - some excuses offer a full defence.
47
Q: How far are we willing to go to examine the extent to which external pressures vitiate consent?
R v PERKA, NELSON, HINES & JOHNSON [1984] SCC
FACTS
A are smuggling drugs from Columbia to Alaska by boat. If successful, they won't
RULING
RATIO
be committing any criminal offence in Canada. Unfortunately for them, their
boat runs into mechanical trouble while a storm approaches. They pull the boat
into a cove off the west coast of Vancouver Island, the boat runs aground and
they have to off-load the drugs and are charged with importing drugs. There is
no question that the A possess both the AR and the MR for the offense. But there
is evidence that coming ashore was at least prudent, and maybe even essential.
Necessity is a common law defence in Canadian criminal law meant to function
as a realistic assessment of human weakness. However, the scope of this defence
needs to be limited lest any extenuating circumstances prove exculpatory.
Therefore, the defence requires 3 elements:
1. Some kind of urgent peril
2. No legal way out of the situation
3. Proportionality between the harm caused by and that avoided by
breaking the law
Key point: A are already engaged in illegal activity when urgent peril arises does this disentitle them from the defence of necessity? No, but there is some
relevance - if the urgent peril is RF, that will weigh against the defence.
The fact that you're already engaged in illegal activity does not disentitle
the A from employing the defence of necessity, unless that activity created
the urgent peril.
Defence of necessity requires:
(1) urgent peril;
(2) no legal way to escape;
(3) proportionality between the harm caused and avoided.
R v LATIMER [2001] SCC
FACTS
A kills disabled daughter. A charged with murder 2 (Crown made tactical
RULING
RATIO
48
decision). A argued that it was a mercy killing and thus the defence of necessity.
Other key issue: constitutionality of mandatory minimum sentence of 10 years
for murder 2.
A argued that he had a constitutional right to have some defence left with the
jury, so that jury nullification was an option. Jury nullification is an American
doctrine, and is not the case in Canada. The court rejects this argument and
holds that the A must establish an air of reality in order to have a defence left
with the jury. Applying PERKA test, the court finds it difficult to equate a
situation of chronic pain without causing death with an urgent peril (the
emergency shouldn't be a long-standing state of affairs but a new event). The
court also finds that there were obvious legal alternatives. Finally,
proportionality can't be found because murder is worse than suffering.
 First two parts of the test from PERKA are modified objective (was A’s
belief honest and reasonable?), third is pure objective.
 Unclear if homicide can ever be excused by necessity. Imminence require
ment is important given that this is an excuse, not a justification.
R v UNGAR [2002] ONT CJ
FACTS
A charged with dangerous operation of a motor vehicle – drove on the wrong
RULING
RATIO
side of a street and broke the speed limit with lights flashing while driving to
deliver emergency medical assistance to an injured woman.
TJ ignored test from PERKA and LATIMER above, but still likely the defense
would’ve likely succeeded anyway. Likely possible to use necessity when the
emergency threatens a third party. Crown should’ve used discretion here,
embarrassing to proceed with these charges. Acquitted.
Not a reasonable legal alternative to fail to respond to the call for
assistance.
RE A (CHILDREN) (CONJOINED TWINS: SURGICAL SEPARATION) [2001] UK CA
FACTS
Surgeons wanted to separate conjoined twins to save the larger twin. If the
RULING
RATIO
surgery was not performed, it was certain that both would die within a year. The
parents don't want the surgery, so the doctors go to court to order that the
surgery be performed and they be immunized from prosecution due to
necessity.
Judges ordered the surgery, but split 3 ways in their justification:
(1) Self-defence
(2) Necessity
(3) Parens patriae jurisdiction
Interesting example of application of necessity.
There are limits to the defence of necessity… The peril needs to be of a temporary and emergency
nature, not a longstanding social issue like poverty, lack of housing, etc. Otherwise, Jean Valjean
would go free! Unpossible.
R v WALDNER [2001] MB Prov Ct
FACTS
A was a farmer. He and 2 friends were unloading honeycombs from bee hives.
RULING
RATIO
The A was highly allergic to bee stings but had worked with bees for 10 years
and wore protective clothing. He had never been stung before while wearing
this clothing. Some of the bees crawled through the clothing and stung the A. He
required immediate medical attention. The A and his friends had been drinking.
The A was the least intoxicated of the three and so he drove himself to the local
hospital. He was stopped by police and charged with impaired driving.
TJ was very generous to the A, acquitted.
Interesting example of application of necessity.
MCMILLAN BLOEDEL v SIMPSON ET AL [1994] BCJ
RATIO
Difficult to employ the defence of necessity for civil disobedience.
B. DURESS
SCC has recently decided R v RYAN and resolved some of the outstanding questions about the
defence. Duress deals with the situation where a person committed a crime in such a way that it is
morally involuntary, but unlike necessity, the lack of volition is created not by an external peril but
the threat of another person. Historically, duress has had both a common law component and a
statutory component.
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The statutory defence is set in s 17 of Criminal Code and sets out a very limited set of
circumstances - an imminent threat of death or grievous bodily harm, the threat-maker must be
present at the time, and a number of offences are simply excluded from the defence. If successful,
this defence offers a complete defence.
In a case called PAQUETTE, the SCC held that the statutory defence of duress applies only to
principal offenders (the person who actually commits the offence). The SCC focuses on the wording
of s 17 - "the person who commits the offence" - to exclude parties to an offence. As such, parties
who aid or abet the principal offender still have access to the common law defence of duress, which
has traditionally been broader. It does not require that the threat of death or bodily harm be
imminent, nor that the threat-maker be present, and is open to use in any offence. The result of
PAQUETTE was to create a significant disparity in the availability of duress
HIBBERT v THE QUEEN [1995] SCC
FACTS
A charged as a party to an offence committed by X – A had taken X to V’s
RULING
RATIO
apartment because X threatened to kill A if he didn’t – A claims he had no
opportunity to flee or warn V.
CL defence of duress still requires no legal way out before it can operate.
Parties to an offence can raise CL defence of duress.
R v RUZIC [2001] SCC
FACTS
A charged with importing heroin using a fake passport – testified that she and
RULING
RATIO
50
her mother had been threatened by X who had also been physically violent to A
– expert evidence support A’s assertion that she didn’t trust the Yugoslavian
police to protect her.
As the principal offender, A has to rely on the statutory defence of duress. While
her offence is not excluded, the statutory defence is too strict because X was not
present and the threat was not imminent. A must raise an air of reality about
each element of the defense; then the Crown has to disprove 1 BRD. Standard
for air of reality should be reasonable but strict. The words “immediate” and
“who is present while the offence is committed” in s. 17 break POFJ (morally
involuntary conduct not be subject to criminal punishment) and therefore s. 7 of
the Charter and can’t be saved and are read out. Imminence (relaxed) and
whether a reasonable person would respond likely read in to replace them.
Unsure if the list of banned offences can stand, likely not. TJ was correct to leave
it to the jury, given the Charter breach. Acquitted.
The words “immediate” and “who is present while the offence is
committed” in s. 17 break POFJ that morally involuntary conduct not be
subject to criminal punishment. Seems to merge CL and statutory defences
of duress, except for excluded offences for principal offenders.
R v RYAN [2012] SCC
FACTS
A is beaten, strangled, sexually assaulted, and threatened with guns for fifteen
RULING
RATIO
years by her husband. When she asks for a divorce and takes steps to leave him,
he threatens to kill her and their daughter and describes in detail how he will
hide their bodies. Police aren’t helpful, so the A tries to hire someone to kill her
husband and tried to hire an undercover police officer. A was charged with
counseling to commit murder (an inchoate offence), which is an offence
regardless of whether the murder was committed.
The threat has to be meant to compel the A to commit the offence - in this case,
the ex-husband's threat is not designed to compel the A to contract his death.
Despite this fact, both the NS TJ and CA found that the defence of duress could
operate in these circumstances. But is this really a case of self-defence, like
LAVALLEE? That was one argument that went largely unexplored. Maybe having
somebody help you doesn't meet the statutory requirements of self-defence what about necessity? Requires temporal imminence which is lacking here.
The circumstances of this case are exceptional and warrant a stay of
proceedings. Although the appeal should be allowed, it would not be fair to
subject the A to another trial. The abuse she suffered and the protracted nature
of these proceeding have taken an enormous toll on her. The law of duress was
unclear which made resort to the defence at trial unusually difficult.
Furthermore, the Crown changed its position about the applicable law between
the trial and appeal process, raising a serious risk that the consequences of
decisions made during the conduct of R’s defence cannot be undone in the
context of a new trial.
Largely merges the statutory and CL defences of duress - only difference is
list of excluded offences for statutory defence (some of which may be
unconstitutional).
Judicial Stay
Extraordinary remedy in the power of the court that is equivalent to an acquittal.
Crown Stay
Suspension of the proceedings and theoretically open to the Crown, depending on the
circumstances, to reopen proceedings. Most of the time, however, a Crown stay is permanent.
DEFENCE OF DURESS
1. Threat of death or grievous bodily harm (some kind of bodily harm, at a minimum), which
can be directed at the A or a third party
2. Reasonable belief that the threat will be carried out (has been measured subjectively, but
should be modified objective)
3. Not party to a criminal enterprise (can't use duress as a shield for criminal activities you'd
already agreed to)
4. No reasonable legal alternative (modified objective)
5. Close temporal connection between the threat and the committed offence
6. Proportionality. In some ways, the list of excluded offences functions in this way. Some of
these exclusions may be unconstitutional based on a s 7 challenge. (modified objective)
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14. PARTICIPATORY LIMITS: ATTEMPTS & PARTIES
A. ATTEMPTS
Inchoate offences
RYAN was also an example of this - a way of attaching criminal liability to offenders who do not
complete a criminal offence, by: (1) aiding/abetting; (2) counseling; (3) attempting; (4) conspiracy
or (5) being an accessory after the fact.
The attempt is always included in the charge for the completed offence. The punishment for an
attempt is lower than for complete offence, and said punishments can be found in s 463 of the
Criminal Code. Unless there is a specific section stating otherwise, an attempt of an offence where
the penalty is life carries a maximum penalty of 14 years and for other indictable offences is one
half of the full offence's penalty. It is possible for offences to have attempts with their own
sentencing regime (one example is attempted murder, which has a maximum penalty of life
imprisonment with parole eligibility in seven years).
In s 24, the Code sets out the definition of attempts:
(1) Everyone who, having an intent to commit an offence, does or omits to do anything for the
purpose of carrying out the intention is guilty of an attempt to commit the offence whether
or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an
offence is or is not mere preparation to commit the offence, and too remote to constitute an
attempt to commit the offence, is a question of law.
ACTUS REUS
MENS REA
Do something toward carrying out that
intention beyond mere preparation
Intent to commit
the offence
What exceeds "mere preparation"? Because it is a question of law, this is much easier to appeal as it
is reviewed on a standard of correctness rather than reasonableness.
Q: What is the mens rea of an attempt?
R v ANCIO [1984] SCC
FACTS
A is charged with an attempt to commit constructed murder. The question is
RULING
RATIO
52
whether recklessness is sufficient to substitute for intent, or whether intent is
required at all. The Crown is attempted to rely on the intent to break and enter
to substitute for the intent to murder.
In a case ten years earlier, LAJOIE, the court had held that either an intent to kill
or recklessness was required. Not only can you not have an attempted
constructed murder, but recklessness should not be sufficient either. Attempts
are almost entirely crimes of mens rea, and so an actual intention to commit the
completed offence should be required. Produces the somewhat odd result that
the mens rea for attempted murder is higher than that for murder (where
recklessness is sufficient).
Full intention is required for the MR of attempted murder. Recklessness is
not sufficient.
Q: At what point does behaviour exceed “mere preparation” and become an attempt? On the one
hand, there is a policy concern that a high standard makes enforcement difficult. On the other
hand, a low standard could be unfair and possibly unconstitutional.
R V SORRELL AND BONDETT [1978] ONT CA
FACTS
Two men attempt to rob a fried chicken store. It’s closed, so they bang on the
RULING
RATIO
door to be let in, while wearing balaclavas and one has a gun. Manager tells
them they are closed, A leave and are picked up by the police shortly after. TJ
acquits, but unclear whether it was because the Crown failed to prove MR BARD,
or because their acts were “mere preparation” – question of fact v law.
CA says difficult to determine basis of TJ’s decision because MR & AR are linked.
On the issue of mere preparation, the court makes it clear that these facts
exceed mere preparation given the proximity to the completed offence. Because
MR & AR are linked, one can infer intent from the behaviour of the A.
AR & MR are linked – one can offer evidence of the other.
Example of acts exceeding mere preparation.
This approach means that stealing a free sample, trying to murder a corpse, or kill via a voodoo doll
all qualify as attempts. The underlying issue is the difficulty of proving intent BARD – given perfect
information, the majority’s view is workable, but in reality it will be difficult to prove sufficient MR
when there is little to no AR.
USA v DYNAR [1997] SCC
FACTS
Facts arise on extradition proceedings to the USA. Extradition can be challenged
RULING
RATIO
on a number of grounds, one of which is the principle of double criminality
(extradition should be restricted to offences which are crimes in both
countries). Dynar invokes this principle, as he is wanted in the USA for money
laundering based on a sting. Attempted laundering is a crime in Canada too, but
the money used in the sting is not actually the proceeds of crime, and so Dynar
argues his conduct is not a crime because it was an impossible attempt.
Held for the Crown. Dynar argues that he doesn’t fall under the possibility
provision of s 24(1) because it only means factually impossible, not legally
impossible, and his conduct falls under the latter category. Court splits, but the
majority rejects this distinction. What matters is Dynar’s intention – this is
different than an attempt to commit an imaginary crime, because on these facts
Dynar attempted to launder what he believed to be drug money.
DISSENT
If there’s no offence, then there’s no attempt. Otherwise you wouldn’t even need
to prove goods were stolen to prove possession of stolen goods, just use
attempts. But the law acknowledges attempts are easier to prove with the use of
different penalties.
Rejects legal/factual impossibility distinction, thereby creating broad
ambit for the definition of attempts.
Maximum penalties are significantly less for attempts than for completed offences. Parties work
somewhat differently…
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B. PARTIES
Criminal Code, s 21
21. (1) Every one is a party to an offence who
actually commits it;
does or omits to do anything for the purpose of aiding any person to commit it; or
abets any person in committing it.
Individuals who assist, aid or abet in the commission of an offence are equally as guilty as the
principal offender. Canadian criminal law does not make a distinction between principals and
other parties. So if one is a party to a murder, full criminal responsibility will result – in that case, a
mandatory life sentence.
POLICY CONSIDERATIONS
 Don't want to reward people who participate slightly less in a crime
 Can create problematic issues with mens rea and parties to serious offences
R v. BRISCOE [2010] SCC
FACTS
Group of varied ages (from young offenders to eldest, Briscoe, who was 34)
RULING
RATIO
randomly targeted an adolescent girl, took her to a golf course where she was
sexually assaulted and murdered. Briscoe drove the car to the golf course and
opened the trunk to provide weapons. Briscoe said he expected something bad
to happen, but did not directly participate in the sexual assault and murder,
though he restrained the victim at one point and witnessed the crimes. Trial
Judge finds enough evidence for a charge of aiding and abetting murder, but not
for a charge of 1st degree murder. Crown appeals, and Court of Appeal finds an
error in law in the trial judge's failure to consider willful blindness and orders a
new trial. Accused appeals as of right to SCC.
Based on these facts, no debate that the A meets the requirements for the actus
reus of the offence of aiding/abetting the murder. The key issue is mens rea.
What mental elements attach to doing something for the purpose of aiding
someone to commit the offence? The court says that both knowledge and
intention are required:
a party has to know what the principal intends to do, and then
do something with the intention of assisting them.
The party doesn't necessarily have to share the principal's intention to
commit the offence. Willful blindness is sufficient to constitute knowledge of
the offence the principal intends to commit. A new trial was ordered as the TJ
had not considered the case on these grounds.
MR of s 21(1):
1. a party has to know what the principal intends to do, and then
2. do something with the intention of assisting them.
But the party doesn't have to share the principal's intention to commit the
offence.
A number of the key parties cases involve murder.
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R v FRASER [1984] BCCA
FACTS
Robbery case (assault + intent to steal). Group of men drinking in the park,
RULING
RATIO
assault a man and steal his wallet. Acknowledged by the Crown that intoxication
is available as a defence because robbery is a crime of specific intent. There is no
evidence that Fraser took part in the assault, so the Crown's theory is that he
was a party to the assault. A wants to argue intoxication in defence to the
included offence of assault - TJ refuses to charge the jury on that point because
assault is general intent, and A is convicted.
BCCA overturns this because jury should have been charged on intoxication
because being party to an assault is specific intent, even if assault is not. There's
no way that intoxication could successfully defend for the specific intent of
stealing, but not for the specific intent of being party to the assault.
Being a party to an offence is always a crime of specific intent, and
intoxication is therefore always available as a defence. Intoxication can't
negate one specific intent portion of a crime and not the other.
Q: What degree of participation qualifies as aiding or abetting? How much help is required?
R v DUNLOP & SYLVESTER [1979] SCC
FACTS
Charged before the reformation of rape law. A are charged with rape of a
RULING
RATIO
teenage girl as part of a motorcycle gang rape. Victim meets gang at a bar,
accompanies them to a dump site and is separated from her friends. Victim is
then raped by 18 different men as part of an initiation. Victim testified that she
could identified the A. A testified that they observed but did not participate - it
becomes a parties case. TJ charges the jury that they can convict A as parties to
the offence if they merely watched, and this is the issue on appeal.
Held for the A. The TJ should not have charged the jury on parties based on the
A's testimony, as mere presence at the scene of the crime is insufficient to
qualify as aiding or abetting (hardened urbanite ignores crime in the subway
station). Conviction is overturned and no new trial is ordered because the A had
gone through 2 trials already.
DISSENT
A met the victim earlier in the bar and there is sufficient circumstantial evidence
suggests that they helped orchestrate the victim's abduction - this would qualify
them as aiders or abettors.
Being a bystander at the scene of the crime is insufficient to be a party.
But the A were part of the same gang - doesn't their mere presence disincentivize the victim's
escape? Yes.
Or if they knew that a group sexual assault was taking place and they brought beer? That would be
assistance!
Or could their mere presence qualify as assistance in creating an audience for the group sexual
assault? Yes.
On exam, look to the surrounding evidence to make an argument that mere presence is not being a
bystander, but is being part of the team committing the offence, who might not be doing anything
but is encouraging, keeping watch or ready to do something.
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R v. JSR [2008] ON CA
FACTS
JSR, the southbound shooter, got into a shootout on Yonge street. Victim was
RULING
RATIO
killed in the crossfire, but by a bullet from the northbound shooter. Not clear
whether it was first bullet or second or third, etc. JSR's counsel argued it was a
reasonable possibility that the first bullet from the northbound shooter's gun
killed the victim and therefore it would not be possible to determine beyond a
reasonable doubt that JSR was a significant cause of the murder. Further, it may
be that the northbound shooter's bullet might have killed the victim before JSR
had fired his gun.
Court finds for the Crown - JSR agreed to engage in a gun battle on Yonge St. and
so can be found to be engaged in a dangerous joint enterprise that could be a
significant and contributing factor to the victim's death. They both caused her
death. After causation is settled, the issue is now whether JSR should be
convicted with murder or manslaughter. JSR lacks the intention to kill the
victim, specifically. The court considers the potential liability as a party to
murder based on the Crown's arguments per s 21(1) and s 21(2) (the common
intention provision). The ON CA finds that s 21(1) and s 21(2) does not apply
because the shooters did not share a common intention - they wanted to kill
each other. This isn't a parties case. Court goes on to find that JSR can stand trial
for murder under the unlawful object murder provision 221(c).
The parties provision doesn't apply to two people at cross-purposes, even
if they are both participating in the same illegal transaction. Joint activity
cannot be equated with common intention for the purposes of s 21(2).
NOTE: "Ought to have known" in s 21(2) is read down as unconstitutional because it is an objective
fault standard.
R v THATCHER [1987] SCC
FACTS
A is a former cabinet minister from Saskatchewan who is convicted of the
RULING
56
murder of his former wife, Wilson. There was a history of domestic abuse and a
very rancorous divorce. As the divorce was proceeding, Wilson was shot in the
shoulder through her kitchen window. No charges were filed, but in response
Wilson gave up custody of their youngest child and accepted a smaller financial
settlement. 3 years later, Wilson was murdered by being badly beaten and shot
in her garage. Circumstantial evidence suggests that Thatcher was responsible receipt with his name on it discovered in her, evidence that he had bought a gun,
tried to hire someone to kill her, his car spotted staking out the house, and the
violence of the beating suggesting that the killing was emotionally motivated.
Also evidence to the contrary in Thatcher's alibi - a number of people willing to
testify he was playing basketball at the time of Wilson's murder. Some evidence
to suggest that Thatcher had hired someone to kill Wilson. Crown argued that
Thatcher did the killing or in the alternative had hired someone to kill her. Jury
is instructed on these two bases and convicts. Thatcher argues on appeal that
the jury had to be unanimous on the material facts and thus the basis for
liability, not just the verdict.
The Court rejects this argument - there is no requirement for the jury to be
unanimous on the basis for liability. Juries are allowed to differ on the weighting
RATIO
of the evidence - this is similar. Court rejects the argument that fundamental
justice requires the jury to agree on this point.
Juries don't have to be unanimous on the basis of liability in order to
convict so long as the basis leads to the same crime.
R v LOGAN [1990] SCC
FACTS
The A were convicted as parties to an attempted murder by an accomplice that
RULING
RATIO
occurred during the course of a series of robberies. The A argued that to be
convicted as a party to an attempted murder, s. 7 of the Charter required proof
of subjective mens rea (an intent to kill or knowledge that death was
substantially likely).
The majority of the Supreme Court agreed, and held that where a minimum
level of mens rea is required for the commission of the substantive offence by a
principal offender, that same minimum level of mens rea is required before an
accomplice can be convicted of being a party to the offence. The constitutionally
minimal level of mens rea for conviction for attempted murder was subjective
foresight of death. This meant that the phrase “ought to have known” in s. 21(2)
was unconstitutional as it applied to the offence of attempted murder.
Where a minimum level of MR is required for the commission of the
offence by a principal offender, that same minimum is required before an
accomplice can be convicted of being a party to the offence.
15. SENTENCING PRINCIPLES AND PARAMETERS
A. PRINCIPLES OF SENTENCING
Purposes and principles:
1.
Denounce unlawful conduct
2.
Deterrence (offender and others)
3.
Separate offenders from society, where necessary
4.
Assist in rehabilitation
5.
Provide reparations for harm done to victims and the community
6.
Promote a sense of responsibility in offenders, as well as acknowledgement of harm done
to victims/community
There’s a temporal gap between the finding of guilt and sentencing. This allows for the
introduction of new evidence that may affect the sentencing. Sentencing can be done immediately
also, but only when it is a relatively simple matter.
If the crown wants to prove aggravating factors, they must do so beyond a reasonable doubt.
Mitigating factors must be proven by the defence on a balance of probabilities. Crown and defence
can make different submissions as to the range of sentence. They can also make a joint submission,
often after a plea bargain (plead guilty and we will recommend a specific sentence). In the vast
majority of cases, the joint submission is accepted.
Evidence may include letters of support, victim impact statements, psychiatric assessments,
academic reports, and so on. When making recommendations about a sentence, start with the
code and find out the spectrum of sentences you are dealing with.
1. What is the maximum penalty? For crimes with life sentences for crimes other than murder,
maximum is life with no parole for at least 7 years.
2. What is the minimum penalty? Most provisions have no minimum. Even if there is no
minimum specified, there may be other provisions that limit sentencing. At the absolute
57
lowest end there is the possibility of absolute/conditional discharge. There is the possibility
of probation or suspended sentence, there is the possibility of a fine, also a conditional
sentence provision (house arrest). There are provisions that place limits on these types of
sentences. You need to check the parts of the code that create these types of sentences.
3. Where there are multiple possible penalties, the Charter dictates that the accused is entitled
to the lesser.
4. From this point, you need to narrow the range to what is appropriate for your particular
case. So you look to factors that take into account moral blameworthiness and the
circumstances of the offender. The key principle is proportionality, s 718.1. This means
that 2 people that did exactly the same thing could be sentenced differently. You also look to
cases and sentencing.
5. The sentence may also take into account time in custody waiting for the trial. Credit used to
be granted on a 2 for one basis. In Canada we take the approach that we should look to the
global sentence that is appropriate. There are some circumstances, however, where
sentences run consecutively (usually where something is added to the offence, such as
resisting arrest or obstructing justice). Usually, however, the court takes into account all
offences and comes up with a global sentence that it feels is appropriate.
Non-custodial sentences
 Discharge (s 730)
 Probation (s 731)
 Fine (s 734) [not typical where someone is injured. Not to the victim, just to general revenue]
 Conditional sentence (s 742) [house arrest, only if court is satisfied no danger to public, there
is no minimum sentence, no maximum of 14 years or life, and not a terrorism offence, sexual
assault, etc.]
Courts can only pick two of the last three. A discharge is not available when max sentence is
for life.
SWEENEY is a case of criminal negligence causing death/failing to remain at the scene of an
accident. This is a sentence appeal. The court sits with 5 justices. This is unusual, because usually
only 3 judges sit. When they sit with 5, the court is basically saying that they may be taking a new
direction and overturning previous decisions. They are looking to establish precedent. The reason
for that is that there was public concern that impaired driving cases were not attracting high
enough sentences. And judges can be trapped by precedent… if all past cases fall in the low end of
the spectrum, it can be hard to shift the range of sentences. The 4 judges writing for the majority do
not end up doing this, as it turns out they like where the spectrum already was.
R v SWEENEY [1992] BCCA
FACTS
A is stopped by officer. Refuses to open window. A chase ensues, hit another car.
RULING
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Traveling at 135 km/h. blood alcohol is very high. Kills the other driver. After
the accident, he runs away on foot. Victim of the offence is not just the direct
victim, but also family members. The sister’s victim impact statement is
particularly compelling.
The offender had a troubled childhood: physical disfigurement, addiction issues,
low self-esteem, recently stopped drinking and this represents an isolated
relapse, young man, no criminal record, but driving offences are there.
Sentence given at trial was 4.5 years for criminal negligence causing death and
an additional 6 months for fleeing the scene (consecutive) and 6 month
(concurrent) for impaired driving.
On appeal, the majority says that 2 years less a day is the correct sentence.
RATIO
Keeps him in provincial penitentiary. Says that the TJ was wrong to say that 5
years is the starting point for impaired driving offences causing death.
Justice Wood concurs, but writes his own reasons. Says that they should have
taken the opportunity to deal with sentencing. He also takes the unpopular
position that there is sort of an ambivalent attitude towards drinking and
driving (don’t set the blood alcohol level at 0), and we accept some risk as a
society. Also, you don’t know exactly where the cut off is because we do not
know when we hit that level. Also makes the point that the criminal justice
system isn’t the place to solve social problems like chronic alcoholism. Also
makes the controversial claim that the moral blameworthiness is the same
whether or not you kill someone or not. Also says that we should reject the
principle of retribution in sentencing. What follows is that victim impact
statements would have little or no weight.
Example of sentencing.
B. MANDATORY MINIMUM SENTENCES
R v FERGUSON [2008] SCC
FACTS
A convicted of manslaughter, challenges constitutionality of mandatory
RULING
RATIO
minimum sentences under s 12 of the Charter.
There is no basis for concluding that the four‑year minimum sentence
prescribed by Parliament amounts to cruel and unusual punishment on the facts
of this case. In the absence of any s. 12 violation, the trial judge’s proper course
in the circumstances was to apply the four‑year minimum sentence.
Mandatory minimum sentences are constitutional.
C. MAXIMUM SENTENCES
R v M(L) [2008] SCC
FACTS
The respondent, L.M., was convicted of sexually assaulting his daughter and of
RULING
RATIO
making, distributing and possessing child pornography. The trial judge imposed
the maximum sentence on him for the count of sexual assault and a consecutive
sentence for the counts of making, distributing and possessing child
pornography. She also found him to be a long term offender and ordered him to
be supervised in the community for a period of 10 years. L.M. appealed the
sentence to the Court of Appeal. The majority of that court allowed the appeal
and reduced the global sentence imposed by the trial judge.
Court reinstates the sentence. The maximum sentence cannot be reserved for
the abstract case of the worst crime committed in the worst circumstances. The
TJ’s decision will continue to be dictated by the fundamental principle that a
“sentence must be proportionate to the gravity of the offence and the degree of
responsibility of the offender” (s. 718.1 Cr. C.). Proportionality will be achieved
by means of a “complicated calculus” whose elements the trier of fact
understands better than anyone.
Maximum sentences are not reserved for the worst offender, but are based
on the TJ’s proportionality analysis and need only be reasonable.
Appellate courts are not to interfere with the decision of the sentencing
judge unless an error in principle is present or the sentence is unfit.
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16. SECONDARY SENTENCING PRINCIPLES
A. ABORIGINAL PEOPLES AND SENTENCING PRINCIPLES
This is the subject of considerable debate, as incarceration is not a very effective means of
deterrence.
Penalties of imprisonment
 “Specific deterrence”: if you commit the offence, you go to jail. Linked with notion of
incapacitation, as the A won’t be able to commit the offence they were sentenced for while in
lock up.
 “General deterrence”: making public example will curb intention of future offenders.
Based on the evidence, it’s not clear that that our current sentencing regime achieves either of these
goals, especially in the context of Aboriginal offenders. Canada has very high rates of incarceration
compared to other western countries beyond the United States. The 1997 sentencing reforms were
designed to address this issue:
 House arrest was instituted as a result.
 Explicitly recognized restorative justice.
 These reforms were at odds with public perception that judges are soft on crime.
R v GLADUE [1999] SCC
FACTS
The A was convicted of murdering spouse. Evidence she cut him on arm, fled the
RULING
RATIO
apartment and stabbed him. The A was highly intoxicated at time of incident
and was an alcoholic. Killing was the culmination of physical altercation b/w
them. TJ rejects notion A is a battered spouse, as the facts were unsympathetic
to A. A charged with murder, pleads guilty of manslaughter, and is sentenced to
3 years in jail. TJ Judge places no reliance on fact A identifies as Aboriginal
woman. Focuses on fact she didn’t live in an AB community as support for the
decision not to consider her AB heritage as a factor in sentencing.
SCC finds this is an error in principle, because of the disproportionality of
Aboriginal incarceration and offenders, which is even greater for women than
men. Why? Systemic factors stemming from colonialism have resulted in
depressed socio-economic outcomes which have resulted in higher rates of
offending; racism; age of communities [more young people in high risk
lifestyles]; over-policing targeted at AB people; evidence that AB people are
sentenced differently (less likely to give bail, for example. Sometimes court
requests surety, someone to cover the debt if the A defaults, which is not always
possible for $ reasons and because a surety cannot have criminal record).
Sentencing aboriginal offenders considers the unique systemic or
background factors of particular aboriginal offender; sentencing
procedures and sanctions appropriate in the circumstances for the
offender because of their particular aboriginal heritage or connection.
FALLOUT FROM GLADUE
Outcome = more conditional sentences for Aboriginal offenders. Disproportionality of AP in
criminal justice system worsens. The dangerous offender distinction is created, which has as a
potential sanction an indeterminate sentence. The long term offender category is also created,
which carries a determinate sentence with a potential long term supervising order (LTSO), the
breach of which can lead to 10 years in jail. The LTSO regime is at issue in IPELLEE.
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R v IPELLEE; R v LADUE [2012] SCC
FACTS
A is on LTSO. One of the conditions is to abstain from drinking. Breaches LTSO
RULING
RATIO
by drinking – apprehended while drunk on a pedal bike. Sentenced to additional
term based on ABCA authority.
Rehabilitation is still the primary if not ultimate goal for LT offenders, as clearly
incarceration isn’t working. Imprisonment not always required for breach of
LTSO. Need to look at seriousness of the breach and alternatives for enabling
offender to live in the community. Sentencing judge should be taking judicial
notice of systemic background factors in sentencing. Today there is tension in
the courts between GLADUE and the reinstution of mandatory minimums.
The sentencing judge has a statutory duty, imposed by s 718.2(e), to
consider the unique circumstances of Aboriginal offenders.
B. PARITY AND TOTALITY
R v AKEPEW [2012] SKCA
FACTS
AB offender sentenced to drunken driving, flight from police and death caused
RULING
RATIO
during getaway. A is party to the getaway. Has enormous rap sheet, many
offences related to drinking and driving. Apprehended as party (riding in the car
that was fleeing the police). Issue is how to sentence Akepew knowing he has
been unresponsive to incarceration in the past. Sentenced to 4.5 years.
Court relies on s 718(2)(e), mitigating facts to justify not imposing maximum
min sentence. A is aboriginal with long history of alcohol problems. Court notes
R v M(L): max sentence is not reserved for the worst offence and worst offender,
as this can create mythical standard in sentencing. Outcome: court raises the
penalty but does not accept the Crown’s approach or give the max penalty.
Parity principle: a sentence should be similar to sentences imposed on
similar offenders for similar offences committed in similar circumstances.
C. MITIGATING CIRCUMSTANCES
R v NASOGALUAK [2010] SCC
FACTS
A was punched repeatedly by police for resisting arrest, but the police officers
RULING
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did not report their use of force as they were required to do and nor did they
stop using force once A was effectively subdued. A, an Innu and Dene man,
suffered a punctured lung and broken ribs. A lost his job because of his injuries.
The Court upheld the trial judge’s conclusion that the police’s use of excessive
force breached s. 7 of the Charter, however it also held that a reduced sentence
would be available to an offender where there is misconduct that does not
breach the Charter. In these circumstances (and given the absence of
aggravating factors), the Court held that the TJ should have sentenced the
offender to the minimum sentence. Absent force, the TJ should have sentenced A
to a term of between 6 and 18 months’ imprisonment for his offences of fleeing
from police and impaired driving. The TJ did not have discretion to sentence A
to anything less than the minimum sentence absent a finding that this sentence
constituted cruel and unusual punishment in contravention of s. 12 of Charter.
Police misconduct may become a mitigating factor at sentencing pursuant
to s 718.2(a) where that misconduct is connected to the particular offence
and to the particular offender.
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R v DRAPER [2010] MBCA
FACTS
A pled guilty to four counts of robbery and one count of theft. The sentencing
RULING
RATIO
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judge imposed a sentence of six years for the robbery charges and 30 days
concurrent on the charge of theft. It was acknowledged by both parties that this
sentence should be reduced by eight months as a result of credit for presentence custody. A appeals, arguing that the sentence was unfit, harsh and
excessive. In addition, he submits that the sentencing judge did not apply the
appropriate sentencing principles since he did not adequately consider the
mitigating circumstances of the accused, overemphasized deterrence and
denunciation and failed to provide sufficient reasons.
Court finds that the TJ erred in failing to adequately consider the significant
mitigating factors in this case and overemphasized the aggravating factors, as
well as overemphasizing deterrence and denunciation, in considering an
appropriate sentence for this first offender suffering from FASD. Only a minimal,
general reference was made to the mitigating circumstances. The sentence is
simply unfit for the A and these offences.
A drug addiction is not an excuse, but it is a fact to be taken into account
and weighed along with many other factors in sentencing.