Criminal Law Notes 2011

CRIMINAL LAW NOTES 2010-2011
GENERAL OVERVIEW AND PRELIMINARY MATTERS
1. SOURCES OF CRIMINAL LAW Overview With the exception of contempt of court, criminal offences are created in Canada by statute. Most criminal offences are created by Criminal Code. Drug trafficking, for example, is made a criminal offence by the Controlled Drugs and Substances Act. The common law cannot be used to create offences in Canada because of concerns related to the principle of legality, and the notion that criminal offences should be clear, certain, and should pre-exist the act being prosecuted. As will be seen below, many rules of criminal procedure are created in the Criminal Code, and many other rules of procedure are common law based. Frey v. Fedoruk, [1950] S.C.R. 51 See CC section 9

While common law offences are not allowed, common law defences are available under Canadian criminal law and can still be created by the courts. As will be seen below, the Supreme Court of Canada recognized a common law defence in Levis (City) v. Tetrault, [2006] 1 S.C.R. 420. Moreover, the common law can deeply influence the way that statutory criminal offences are interpreted. - See CC section 8 - See R. v. Jobidon, [1991] 2 S.C.R. 714, a case you will be asked to review again when considering the meaning of consent. ______________________________________________________________________________ Prior to s.9 of the 1953 revised CC, it was open to the Crown to prosecute individuals for a variety of common law offences like public mischief. S.9 abolished this concept with two exceptions: s.9 continues the common law offence of contempt of court; and s.8 (3) explicitly states that common law defences to a charge remain in force. Now, criminal offences may only be established by Parliament according to s.91 (27) of the Constitution Act, 1867, though the provinces may establish quasi-criminal or regulatory offences. Frey v. Fedoruk (1950; SCC) -this is a precursor to the 1953 CC revision. y y y y R: crimes must be set out by parliament Offence: ³Peeping Tom´ at common law Crown: from common law, the generic principle ³a breach of the King¶s Peace´ may be used as a standard for judging whether behaviour is criminal. This peace was breached because it provoked another to ³violent retributive action´. Court: This would introduce great uncertainty in Criminal Law; it is also much too broad. Only those crimes set out in statute and in previous cases should be
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considered criminal, and any additional criminal activities should be established by Parliament. Since being a ³Peeping Tom´ is not criminal by statute or common law, it is not a crime. CC Revision after Frey v. Fedoruk: Section 9 CC -Criminal offences in Canada must be created by statute, with the exception of contempt of court Rationale: Common law cannot be used to create offences b/c: o (1) principle of legality, and; o (2) the notion that criminal offences should be clear, certain, and should pre-exist the act being prosecuted Exception: Common Law Defences Section 8 CC -ss. 8(3): ³Rules and principles of the common law the renders any circumstance a justification or excuse for an act or a defence to a charge continues to be in force´

Levis (City) v. Tetrault [2006]: Example of where a defence was upheld in the common law. The common law is still capable of raising defences to crimes. Here, the defence of µofficially induced error¶ was upheld by the SCC. y y y y Facts: 2 parties charged w/ operating motor vehicles w/out paying registration fees. One party raised the defence of µofficially induced error.¶ Offence: Operating a motor vehicle w/out proper registration Ratio: µOfficially induced error¶ is an exception to the rule that ignorance of the law (s. 19 CC) is no defence. It is created by the common law and must meet a number of criteria for the court to apply it. Held: Ignorance of the law is no defence. However, Court acknowledged that the inflexibility of the rule did raise a concern where the error of accused arose out of an error of a government official or the State. Therefore, in affirming the decision in Jorgensen the court confirmed that the defence of µofficially induced error¶ was an exception to the rule that ignorance of the law is no defence (in strict liability offences). The defence itself only allows for a stay, not an acquittal and must be proved on a balance of probabilities. The Common law can deeply influence the way that statutory criminal offences are interpreted.

R v. Jobidon [1991] SCC -The common law has generated a body of law to interpret the meaning of consent and to place certain limitations on its legal effectiveness in the criminal law. It has also set limits on the types of harmful actions to which one can validly consent, and which can shelter an assailant from the sanctions of the criminal law -Although the majority and minority both came to the same decision, they got to the answer differently. -The CC must be construed subject to the same limitations imposed by the common law. Under the common law, the Crown does not have to prove the absence of consent in certain situations. The rationale being that it is unlawful to intentionally apply force that is so severe that it does or could inflict bodily harm or death. In these situations, consent is immaterial.

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Facts: Bar brawl. Two men fight inside and agree fight not over. Take fight outside where one is knocked unconscious and later dies. Offence: CC s. 222(5) (a) and 234² Manslaughter. Held: Accused guilty. Majority: Limits on consent to assault have long been recognised in English/Canadian jurisprudence. S. 265 vitiate consent between adults who intentionally apply force causing serious hurt or non-trivial bodily harm to one another. It will not affect the validity or effectiveness of freely given consent to rough sporting activities carried out according to the rules of the game, medical or surgical treatment, or dangerous exhibitions by qualified stuntmen. -The provisions in the CC have not ousted the common law limitations on consent. The history of Canadian law reveals that the limitations on consent based on public policy existed before the codification of Canada¶s criminal law and they have not been ousted by statutory revisions and amendments to the Code. Even if it was concluded that the Code negated the applicability of the common law rules, it would not follow that those amendments erased limitations based on public policy. If that had been Parliament¶s intent, it would have been stated. Minority: Parliament extended the principle that the absence of consent is necessary to all assaults, except murder, in order to make the criminal law more certain. Section 265 makes the absence of consent, a requirement in the offence and restricts the consent to situations where force has been intentionally applied and where the victim has clearly and effectively consented free of coercion and misrepresentation. It is for the judge to decide whether consent applied to the activity in question and what the social utility of that activity is. The victim would not have consented to the violence after he had been knocked unconscious; therefore the accused is guilty of manslaughter. Criticism: Why did the Court incorporate a µcommon law¶ concept into the clear statutory language of s. 265? It states that the offence of assault is limited to situations where force is applied to another without consent. In effect, the SC has created a new criminal offence of assault.

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2. THE POWER TO CREATE CRIMINAL OFFENCES AND RULES OF CRIMINAL PROCEDURE (a) Constitutional Division of Powers Introduced - Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences) and to use jail to enforce those regulatory offences, but only the Federal Government can create ³criminal´ offences, or ³true crimes´, pursuant to its powers under s. 91 (27) of the Constitution Act, 1867. The principles that apply to true crimes differ from those that apply to regulatory offences. These principles will be examined below when regulatory offences are discussed. Curiously, while they cannot create criminal offences, Canadian provinces do have jurisdiction over the administration of justice within the province under s. 92 (14) of the Constitution Act, 1867. For example, the provinces have set up the lowest level of criminal court where the vast majority of cases are actually prosecuted (the provincial courts); it is the provincial Attorneys General who prosecute most offences, including serious offences; and the provinces have passed statutes setting out juror eligibility within the province. The procedure during criminal hearings, however, is governed by Federal rules and by the common law. For a summary of the criminal law power, see R. v. Malmo-Levine, 2003 SCC 74 at paras.73 79 (b) The Canadian Charter of Rights and Freedoms - The Canadian Charter of Rights and Freedoms (the ³Charter´) imposes limits on the jurisdiction of all governments, subject to s. 1, the ³reasonable limitations´ clause, and the seldom-used s. 32 ³notwithstanding clause.´ Since its passage in 1982, the Charter has had such a profound impact on criminal law and procedure that all criminal practitioners need to develop expertise in its operation. The Charter can be used by courts to invalidate offences that Parliament has created, and courts have done so on a number of occasions, but this is not common. It has also been used to strike down rules of criminal procedure, although this too is uncommon. - Read R. v. Heywood, [1994] 3 S.C.R. 761 as an illustration of a criminal offence being struck down. - Read R. v. Oakes, [1986] 1 S.C.R. 103 as an example of a rule of criminal procedure being struck down, and note the operation of section 1 as a limiting provision. The concepts identified in Oakes will be revisited below in discussing the burden of proof. The Charter can also be used as in important interpretive tool. Even when it is not used to strike down a provision, it is the practice of courts to permit constitutional values to influence the way statutes are interpreted. - Read R. v. Labaye, [2005] S.C.J. No. 83 as an illustration of how the Charter changed the criminal concept of indecency through a progression of cases described therein. You will see that this case provoked a strong dissenting judgment. Bear in mind that what dissenting judges say in opposition to the majority judges is not the law, but that obiter

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dictum explaining the law when no opposition is taken can be a valuable source for legal argument. The Charter¶s largest impact on criminal procedure has been in creating constitutional procedural Protections, as discussed later in the document. (c) Rules of Practice - Section 482 of the Criminal Code permits courts to create rules of practice to govern the administrative mechanics of practice in criminal courts. Although you will not be examined broadly on the Criminal Rules of Practice, Canadian criminal counsel must be intimately familiar with the rules that apply in their jurisdictions. - Read R. v. Gundy, [2008] O.J. No. 1410, as an illustration. - See, for example, the Rules of the Ontario Court of Justice in Criminal Proceedings (http://www.ontariocourts.on.ca/ocj/en/rules/) and the Criminal Proceedings Rules (Ontario Superior Court of Justice) (http://www.ontariocourts.on.ca/scj/en/about/criminal.htm) ______________________________________________________________________________ (a) Constitutional Division of Powers Introduced -Federal Jurisdiction: Both Fed¶l and Prov govt¶s have power to create non-criminal (regulatory offences), but ONLY Fed¶l gov¶t can create ³criminal´ offences or ³true´ crime offences, pursuant to their power under s. 92(27) Constitutional Act 1867. -Provincial Jurisdiction: Provinces however, have the jurisdiction over the µadministration of justice¶ within the province under s. 92(14) of the Constitution Act 1897 (e.g. vast majority of cases prosecuted in provincial courts, provincial AG¶s prosecute most offences, provinces pass statutes setting our juror eligibility, etc«) -Procedure: Procedure during criminal hearings however is governed by Federal Rules and by the Common Law R v. Malmo-Levine [2003] SCC -Summary of the Criminal law powers y Facts: Accused ran a µharm reduction club¶ attempting to reduce harm associated with marijuana. He was found in possessing of 300/grams of marijuana and charged with possession for the purpose of trafficking. They wanted to challenge the constitutionality of the criminalization of marijuana under the Narcotics Control Act. There argument focused on whether there should be a requirement of harm for criminal law. They argued that the constitutional power to enact criminal law under s. 91(27) was limited to conduct that causes harm. Offence: Possession with intent to traffic Held: Court rejected constitutional challenge of the criminalization of marijuana. The principle of harm was not required under s. 91(27). Parliament did not have to establish harm, only a µreasonable apprehension of harm¶. The criminal law power includes the protection of venerable groups. Therefore, the government is able to control activities for the protection of drug users and society. -³The criminalization of marihuana is a policy choice that falls within the broad legislative scope conferred upon Parliament. Equally it is open to Parliament to
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decriminalize or otherwise modify any aspect of the marihuana laws it no longer considers to be good public policy.´ - For a law to be classified as a valid criminal law, it must have a valid criminal purpose backed by a prohibition and a penalty. The purpose of the Narcotic Control Act falls within the criminal law power, which includes the protection of vulnerable groups. -Para 73-79: Federal criminal power has been broadly construed. -For a law to be classified as criminal it must possesses 3 prerequisites: (1) Must be a prohibition with a penalty (Re Firearms Act) (2) It must be designed to promote the peace, safety, order, health or have another legitimate public purpose. This legitimate public purpose must underlie the prohibition. (3) Lastly, Parliament should not use its authority improperly, i.e. colourably or to invade provincial competence. (b) The Canadian Charter of Rights and Freedoms -Charter imposes limits on the jurisdiction of all governments, subject to s. 1 µreasonable limits¶ and, seldom used s. 32 µnon-withstanding¶ clauses. -Since it¶s coming into effect the Charter has had a profound impact on criminal law and procedure -Charter can be used to invalidate offences that Parliament has created. Courts have done this on a number of occasions, but not common. R v. Heywood [1994] SCC -Example of where the Courts have struck down a µcriminal offence¶ y Facts: A man, who had previously been convicted of sexually assaulting children, was arrested for loitering µat or near a playground¶. This was an offence of vagrancy under s. 179(1) (b) CC. He had been spotted several times near the playground with a camera with a telephoto lens, which he took photos of children with. Heywood argued that the law violated his s. 7, 11(d), 12 and 15 Charter rights. Court found a violation of 7 and 11(d) which could not be justified under s. 1. Offence: s. 179(1)(b) crime of vagrancy Held: Section 179 was overboard and therefore violated s. 7 Charter and could not be saved by s. 1. The case turned on the interpretation of the word loiters. The court found that the interpretation of this word violated the principles of fundamental justice as it was more restrictive than necessary and was applied too broadly. This is because it applied without prior notice to the accused that it applies to too many places, to too many people, and for an indefinite period of time with no possibility of review. -Over breadth Analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. If the state is pursuing a legitimate objective by means that are broader then necessary to achieve that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of this principle is that some laws may be arbitrary or disproportionate. Courts must balance the interests of the state against the individual¶s rights.

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R v. Oakes [1986] SCC -Example of a rule of criminal procedure being struck down by the Courts y Facts: Individual caught with vials of hash oil. Charged with intention to traffic under s. 4(2) of the Narcotics Control Act. He claimed vials were for pain relief and the money found on him was from a worker¶s compensation cheque. The provision in the act provided for a shift in onus onto the accused to prove that he was not in possession for the purpose of trafficking. Oakes challenged this, claiming that the reverse onus created by the presumption of possession for purposes of trafficking violated his presumption of innocence under s. 11(d) Charter. Offence: Intention to traffic under s. 4(2) Narcotics Control Act Held: Unanimous in holding that the shift in onus did violate s. 11(d) right. It could not be justified under s. 1. There was no rationale connection between basic possession and the presumption of trafficking. -³A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of an offence in question, violates s. 11(d).´-per. Dickson C.J. R v. Labaye [2005] SCC - Example of how the Charter can be used as an interpretive tool, even when it is not used to strike down a provision. The Courts permit constitutional values to influence the way statutes are interpreted. Here, the Charter changed the criminal concept of µindecency¶ through a progression of cases described therein. The case provoked a strong dissenting judgment. y Facts: (Swingers Club/Group Sex House) Accused was charged with operating a µcommon bawdy-house¶, a violation under s. 210(1) CC, for owning a club where people paid membership fees to engage in group sex, oral sex, and masturbation. All of the activities were consensual. No fees were paid for the acts, only for membership. Accused found guilty at trial and fined. Appealed. Offence: Operation of a µcommon bawdy house¶ violation of s. 210(1) CC. Held: SCC overturned decision. Court had to decide whether the activities should be classified as µindecent¶, because bawdy houses by definition require prostitution or indecency. Court said this had to be applied by an µobjective¶ standard, not a moral one. Objective standards were concerned with whether any harm had been done. The Court reviewed an extensive amount of precedents. Here, the acts were not indecent because the accused took steps to ensure that only willing people would be exposed to the sexual conduct. On the issue of whether the actions where harmful, the Court said that the µthreshold is high¶ and that there will be many things that certain Canadians will not like that should be allowed to exist, unless they are so serious that they threaten society. -The Court retired the µcommunity standards of tolerance test¶ and replaced it with the µundue exploitation of sex or harm¶ test. The later test was constituted in R v. Bulter. The test was an objective assessment of the tolerance of Canadians. The Court reframed a new test for indecency in Canada.

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Dissent: per Bastarach & said majority¶s definition of indecency was neither desirable nor workable because it did not follow a certain precedent and they discarded the contextual analysis of the Canadian community standard of tolerance. They said that in referring to the case LeBel law, it did not say that the Courts must determine what the community tolerates by reference to the degree of harm caused by the action [alone]. Instead, they believed that screening out people who did not want to see the conduct was not rigorous enough and that the community did not tolerate acts of this nature in a place of business to which the public has easy access to. The dissenting opinion argued that the decision of the majority replaces the community standard of tolerance with a harm-based test. Rather, they advocated, to determine whether acts are indecent, it is preferable to continue applying the original test for indecency, which focuses on a contextual analysis of the impugned acts and incorporates the concept of harm as a significant, but not determinative, factor to consider in establishing the applicable level of tolerance. Although a certain degree of subjectivity is inherent because of the judge¶s role as interpreter of the community¶s minimum standards regarding sex, the analysis remains objective as long as the judge ignores his or her personal convictions and instead tries to determine the nature of the social consensus.

(c) Rules of Practice -Section 482 CC permits the Courts to create rules of practice to govern the administration mechanisms of practice in criminal courts. Canadian counsel must be familiar with the rules that apply in their jurisdiction [**However, will not be examined broadly on the Criminal Rules of Practice] R v. Grundy [2008] ONCA -The Court can be flexible in their application of the rules of procedure (because they are administrative in nature) y Facts: Whether the accused counsel could object to the breathalyzer evidence presented at trial, after accused was convicted. Wanted to bring a Charter challenge, which according to the rules of procedure had to be done prior to commencing arguments in order to allow Crown to object/prepare opposition. Held: ³S. 30 of the Rules of the Ontario Court in Criminal Proceedings, requires the accused to give notice of an application to exclude evidence under s. 24(2) of the Charter. This was not done in this case. The Courts must be flexible in their application of Rule 30 and a trial judge will consider all the circumstances where an accused seeks to bring a Charter application in the middle of trial. Further, there will be different considerations where the accused is unrepresented or unforeseen events occur at trial. Here however, the complete disregard of Rule 30 does not serve the interests of justice.´

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3. THE CLASSIFICATION OF OFFENCES Overview In Canada, criminal offences are divided into two general categories: ³indictable offences´ and ³summary´ (or ³summary conviction´) offences. Offences can be ³hybrid´ in the sense that the prosecutor has the right to elect whether to treat the offence as ³indictable´ or ³summary.´ The classification of offences has important implications for the penalties that are possible, and for the procedure that will be used, including the mode of trial. - See Coughlan, pp. 33 ± 38 and the CC provisions cited therein. ______________________________________________________________________________ In Canada, criminal offences are divided into 2 categories: (1) Indictable (2) Summary Offences can be µhybrid¶, in the sense that Prosecutors have the right to elect whether to treat the offence as an µindictable¶ or µsummary¶ offence. The classification of the offence has important implications for the penalties that are possible and for the procedure that will be used, including the mode of trial. Unless the prosecution decides otherwise, hybrid offences will be considered indictable. Summary Conviction Offences Trial in provincial court without a jury and no preliminary inquiry Max penalty is 6 mo. in jail and $2,000 fine Some exceptions: Super-Summary Offences e.g. sexual assault ± 18 mo. in jail. Indictable Offences Generally more serious Can only be created by federal Parliament; found in CC and federal statutes Maximum penalty and mode of trial will vary Some have minimum sentences; most do not Different types of trial 1. Offences in s. 553 of CC (e.g. theft under $5,000) Absolute jurisdiction of provincial court Judge alone, no preliminary inquiry 2. s. 469 of CC (e.g. murder) Exclusive jurisdiction of superior court (BCSC) Usually preliminary inquiry (PI) to determine if there is sufficient evidence If not, accused is discharged (not acquitted) If enough, accused is committed to stand trial; Information replaced by Indictment Before judge and jury unless both accused and Crown consent to trial by judge alone 3. All other indictable offences Hybrid offences ± state can decide whether to proceed by #1 or #2 Accused may elect to proceed by trial in provincial Ct, in superior Ct by J alone after PI, or in superior Ct by J and jury after PI Considerations for electing to proceed by particular mode d. Seeking jury sympathy; all 12 have to agree v. If cannot agree, "hung jury" results in mistrial VI. No max # of trials, but can claim abuse of process vii. E.g. Kelly Elland (Reena Virk) ± trial # 4 viii. Jury trials not used as commonly in Canada as in US, UK I. Majority of cases tried in Prov Ct b/c faster process, simpler, less costly j. May opt to avoid PI out of consideration for victim who has to testify twice.

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Trials: There are 3 modes of trials: (1) In court of criminal jurisdiction (2) In the superior court of criminal jurisdiction and (3) In the superior court of criminal jurisdiction with a jury. Choice of Trial: Summary convictions are always heard in the court of criminal jurisdiction. However, with indictable offences, the accused can choose [referred to as an ³election´] where the trial will take place. They can have a trial by superior court judge and jury, by superior court judge alone, or by a provincial court judge. There are exceptions to this ³election procedure´. With certain offences under the Code, certain offences state how the trial must be heard. An example is that s. 469 lists a number of offences that must be tried by jury and judge, while s. 553 lists a number of offences that will be tried by a provincial court judge. Rationale is that some offences, such as murder are more serious and the public interest demands a trial by jury, while other offences, while serious should be heard by provincial courts. There is also a possibility with indictable offences that a µpreliminary¶ hearing will be held in front of a provincial court judge, prior to it going to the superior courts. Other exceptions include allowing the Crown to compel a jury where no such election has taken place, and allowing an accused to re-elect having made one election, and so on. Police & Classification of Offences: The scope of police powers is affected by the classification of offences. The power of arrest and the powers of search and seizure differ depending on whether an offence is a summary or indictable. Courts & Classification of Offences: Classification has a profound effect on the manner in which proceedings are conducted in court. There is a statute of limitations for summary offences, while there are no limitations on indictable. With summary offences, the Prosecution usually begins with a charge document called µinformation¶. This document is used throughout the proceedings. With indictable offences, the usual procedure is for the Prosecution to being with a preliminary inquiry on the information before a provincial court judge. This inquiry provides an opportunity for the parties to test the evidence on selected witnesses on specific issues. After this preliminary inquiry, the Prosecution can file a new document of charge, called the indictment, which will then subsequently be used at the trial. Therefore, the classification has a controlling effect on the most elementary matters of jurisdiction. Sentencing & Classification of Offences: Usually indictable offences are defined to allow a maximum term of imprisonment that exceeds two years, while a summary conviction offence allows a maximum of six months or a fine of $2k or both, unless prescribed by Parliament to be higher. This is significant as it determines where someone will be incarcerated. Offenders sentenced to terms of less than two years go to provincial jails while, those with more than 2 years go to a federal penitentiary.

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Appeals & Classification of Offences: Summary conviction appeals are heard by superior courts of the province, while indictable appeals are heard in the Court of Appeal, with provisions in the Code going up to the SCC.

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4. INTERPRETING CRIMINAL PROVISIONS Overview Interpreting the Criminal Code and related enactments is not unlike interpreting other statutes. There are special considerations that operate, however. For example: (a) Definitions - The Criminal Code has definitions for many of the terms used but they are not always easy to locate. Section 2 contains definitions that apply throughout the Code. The Code is divided into Parts, and at the beginning of each Part, there will be a definition section that applies solely to that Part. Sometimes definitions are found in or around the relevant statutory provision to be interpreted. See, for example, ss.348 (3) and 350, which apply to offences in s. 348(1) (i.e., breaking and entering). (b) Strict Construction - Historically, criminal statutes were interpreted strictly in favour of the liberty of the accused. In other words, the accused would get the benefit of the doubt or ambiguity in matters of interpretation. This principle continues to apply but has been heavily modified by the purposive interpretation. - R. v. Pare, [1987] 2 S.C.R. 618 (b) Purposive Interpretation - Canadian law makes liberal use of purposive interpretation, in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying purpose of the provision in mind so as to best accomplish its underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed. R. v. Pare is an example. Be on the lookout throughout the decisions included in this list for examples of purposive interpretations. (d) French/English - Federal laws like the Criminal Code are passed in both of Canada¶s official languages. Each version is equally authoritative, and ambiguities in one language can be clarified by the other. - See, for example, R v J. (D.), [2002] O.J. No. 4916 (Ont. C.A.) (e) The Charter - As indicated, the Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid. You have observed this in R. v. Labaye, [2005] S.C.J. No. 83 above. - See, for example, Canadian Foundation for Children, Youth & the Law v Canada (A.G.), [2004] 1 S.C.R. 76 where a Charter challenge encouraged the Court to read significant content into the concept of ³reasonable corrective force.´ Examine this decision not only for what it shows about legal technique, and the rule of law doctrine of ³void for vagueness,´ but also for what it says about the operation of the defence of corrective force. «««««««««««««««««««««««««««««««««««««««

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Interpreting the CC is not unlike interpreting other statutes. There are however, special considerations that operate. Examples: (a) Definitions: CC provides definition for many terms used, but not always easy to locate. Section 2 contains definitions that apply throughout. Each Part of the Code also provides its own definition section at the beginning of each Part. This definition section applies only to that Part. Sometimes definitions are found in or around the relevant statutory provision to be interpreted. See for example ss. 348(3) and 350, which apply to offences in s. 348(1) (i.e. breaking and entering). Section 348(3) defines the word µplace¶ (dwelling-house, building or structure of a house, etc«) Section 350 defines the word µentrance¶ and µbroken and entered¶ (a person enters as soon as any part of his body or instrument is being entered«..etc«) (b) Strict Construction: Historically, criminal statutes have been interpreted strictly in favour of the liberty of the accused. The accused would get the benefit of the doubt or ambiguity in matters of interpretation. This principle continues to apply, but has been heavily modified by the purposive approach: R v. Pare [1987] SCC -example for purposive approach -SCC upholds the doctrine of strict construction, but notes that modern courts need not be as strict as past courts in narrowly interpreting statutes in favour of the accused, since it had been so narrowly interpreted before to avoid capital punishment, which had been attached to a whole host of offences. -Applying the Doctrine ± here, the Justices agreed that the words ³while committing´ should be given a literal, rather than strict construction. The case revolved around whether the murder occurred while committing the indecent assault. The respondent argued for a strict (narrow) meaning of ³while committing´, and argued that the murder took place two minutes after. The Justices disagreed, and stated that that result would create artificial barriers. Facts: concerned first degree murder charge. First degree murder under CC is committed if it occurs µwhile committing a sexual assault against another male¶. Here the murder happened 2 minutes after the assault. On appeal the question became one of what was meant by the term µwhile committing¶ [an assault]. Offence: First degree murder s. 214(5) (b) CC [now s. 231(5)] Held: The words µwhile committing¶ in s. 214(5) do not require the murder and the underlying offence to take place simultaneously. Where an act causes death and the act of indecent assault takes places in a continuous sequences of events forming a single transaction, the death is caused µwhile committing¶ an offence for the purpose of s. 214(5). -³The Code does not go so far as to require that at the time I commit an indecent assault with my right hand I must be committing murder with my left. In this the Code is logical: When it says µat the same time¶ committed on the same occasion, it means µin the same circumstance¶.

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-On a literal meaning of s. 214(5) Pare did not commit murder µwhile committing an indecent assault. However, this meaning is not decisive. The acotexual meaning of the words could give the words µa meaning we assign them if we have no special information about the context of their use or the intentions of the author, per Professor Dworkin. -Therefore, the words µwhile committing' could have different meanings -Re Strict Construction Argument: µthe court must adopt the interpretation that is most favourable to the accused¶. The Court says it is not debating whether the doctrine exists, but instead whether the doctrine is applicable in this case. Here, it does not because it is illogical. If someone pauses for a moment to think of murdering someone, it does not make the crime less severe. In fact, it may make it more severe. An interpretation of s. 214(5) that runs contrary to common sense is not to be adopted if a reasonable alternative is available. (c) Purposive Approach: Canadian law makes liberal use of the purposive interpretation, in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying purpose of the provision in mind so as to best accomplish the underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed. See R v. Pare above. Purposive theory is a theory of statutory interpretation that holds that common law courts should interpret legislation in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism or statutory derogation, two other prominent common law interpretation theories. The purposive approach is the dominant approach applied through the country. It is also often referred to as the "modern approach" or "rule", in reference to Elmer Driedger's formulation This approach was endorsed by the SCC in Rizzo & Rizzo Shoes Ltd. Justice Iacobucci, speaking for the whole court, wrote the following: ³Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." (d) French/English: CC is passed in both French and English. Each version is equally authoritative and ambiguities in one language can be clarified by the other. R v. J. (D.) [2002] ONCA -illustration of interpreting a provision in the CC which may not be entirely accurately reflective in another µauthoritative version of the Code¶ Offence/Issues: Interpretation of the word µenter¶ for breaking and entering Held: The word enter is different from the word used in French, prend possession. The French version means more than committing a purely physical act. The French version suggests the taking of some form of control over the property. Further, the English version of the Code makes it clear that the intention to take something from the property is irrelevant, while the French version requires some kind of µseizure¶. The French version is closer to the truer historical roots of the provision. It is also possible to combine both definitions/meanings to capture the true meaning of the offence. See Roach p. 82: Order of construction
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(e) The Charter: the Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid. See R v. Labaye above. Canadian Foundation for Children, Youth and the Law v. Canada (A.G.) [2004] SCC -A Charter challenge encouraged the Court to read significant content into the concept of µreasonable corrective force¶. Facts: ³Spanking Laws´ CFCY applied for a declaration to strike down s. 43 CC which allowed for a defence for school teachers, parents or persons standing in the place of parents to be justified in using force by way of correction to a pupil or child under their care, so long as it does not exceed what is reasonable under the circumstances. They argued that this provision violated s. 7 (failure to give children procedural rights, does not act in their best interest, and that it is overboard and vague), s. 12 (constitutes cruel and unusual punishment or treatment) and s. 15 (denies children the legal protection against assault that is accorded to adults) of the Charter. Offence: S. 43 CC providing a defence for assaulting children Issue: Whether this provision violated the Charter rights of children? Held: Re Vagueness: Argue the term µreasonable under the circumstances is too vague¶ to be a criminal provision. The court said it is not. A law is unconstitutionally vague if it µdoes not provide an adequate basis for legal debate¶ and µanalysis¶; µdoes not sufficiently delineate any area of risk¶; or µis not intelligible¶. A law must set an intelligible standard for both citizens and officials who must enforce it. Judicial decision may add precision to a statute, because legislators cannot foresee all situations that may arise. -Re interpreting the term µreasonable corrective force¶: says that it does not permit adults to have outbursts on children, instead it is for the purpose of education or disciplining the child. The child must also be capable of benefitting from the correction. This requires them to have the capacity to learn for the correction, therefore children under 2 cannot be smacked because they don¶t understand. Also disabled kids could not learn, therefore they are immune. The force must also be µreasonable under the circumstances¶ -Re on the defence of corrective force: see argument above. This type of force does not violate a Child¶s charter right to unusual punishment because the force is only corrective. Children are still protected from outright abuse. It would be an oxymoron to suggest that µcorrective force cannot be both reasonable and an outrage to the standards of decency. Children depend on parents and teachers to provide discipline and guidance in order to protect them from harm and to promote their healthy development in society. S. 43 is an attempt to accommodate both those needs. Therefore, s. 43 is used for µcorrective and educational purposes only¶. If this provision was not added it would be assault to children and there would be a concern of ruining lives and breaking up families²a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

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THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENCE
Each criminal offence has ³elements´ that must be present before a conviction is possible. Indeed, all elements of the offence must be present at the same time, or there will be no crime (see R. v. Williams below). As is the case internationally, it is convenient to think of the elements of an offence as: ‡ The physical elements or actus reus of the offence (the act that must be performed or omission that is proscribed, the circumstances or conditions in which the act must occur, and any consequence that must be caused by the act); and ‡ The mental or mens rea elements of the offence. In Canadian law, the mental elements normally describe the actual or ³subjective´ state of mind of the accused (things such as intent, or planning and premeditation, or recklessness, or knowledge, or willful blindness.). It is becoming increasingly common, however, to produce offences that have an objective mens rea, such as negligence. Objective mens rea is determined not according to the state of mind of the accused (the subject), but according to what a reasonable person in the position of the accused would have known or foreseen. As a general proposition of interpretation, a true crime will be interpreted as requiring subjective mens rea unless it is clear that Parliament wished to impose objective liability. Identifying what the elements of an offence are is a challenging enterprise, turning on interpretation of the offence and familiarity with relevant precedents and principles. It is not possible or desirable to attempt here to ³teach´ the elements of every offence. Instead, some offences will be selected for their illustrative value in demonstrating the key actus reus and mens rea concepts. Applicants are expected to be able to demonstrate interpretive and application skills for all criminal offences, whether included in these reading materials or not. 5. THE ACTUS REUS (a) Acts and Statutory Conditions - The act must be one committed by the accused and must be the kind of act described in the relevant provision. Further, the act must be committed under the circumstances or conditions specified in the offence. For example, an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s. 348 (1) (a) unless he ³breaks´ and ³enters´ something that qualifies as a ³place´ according to the Criminal Code, with the relevant mens rea. See, for examples of the interpretation of acts and actus reus conditions: - R v D¶Angelo, [2002] O.J. No. 4312 (Ont. C.A.) - R v J. (D.), [2002] O.J. No. 4916 (Ont. C.A.) (reviewed above).Federation of Law

(b) Acts must be ³Voluntary´ or ³Willed´ ± The act described by the offence must be ³voluntary´ in the sense that it must be the willed act of the accused. For example, a man in the
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throes of a seizure does not ³will´ his movements; it would be no assault on his part even if his arm was to strike another without the other¶s consent. It would have been possible to deal with this kind of issue using the mens rea concept by suggesting that he did not intend to strike the other, but Canadian law has also accepted that unless a physical motion is willful, it is not fair to call it an act of the accused person. This is the foundation for the automatism defence, discussed below. It is easier to understand the concept of voluntariness together with automatism authorities, so this discussion will be deferred until the voluntariness-based defences are discussed below. (c) The ³Act´ of Possession - At times part of the actus reus for an offence has an inherent mental element to it, as it does with the important element, common to many offences, of ³possession.´ This concept demonstrates that the divide between the actus reus and mens rea is not a solid one. What matters is that lawyers appreciate what the elements are, regardless of how they are characterized. - See CC section 4(3), Controlled Drugs and Substances Act section 2 (which will be at the back of most published Criminal Code materials). - See R. v. York (2005), 193 C.C.C. (3d) 331 (B.C.C.A.) for the law of manual possession. - See R. v. Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.) and R. v. Terrence, [1983] 1 S.C.R. 357 for the concept of constructive joint possession. - See R. v. Pham, [2005] O.J. No. 5127 (Ont. C.A.) for the application of these concepts to possession of materials found in a residence. (d) Consent as an Element of the Actus Reus - Often the question of absence of consent by the victim is an important actus reus condition that must be present for offences to occur. Consent is a complex idea, animated by statute and the common law. - R. v. Ewanchuk, [1999] 1 S.C.R. 330 - R. v. Jobidon, [1991] 2 S.C.R. 714 (reviewed above as in illustration of the common law influence on the reach of statutory provisions) - R. v. Cuerrier, [1998] 2 S.C.R. 371 (e) Causation - Where the relevant offence prescribes a ³consequence´ that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt. As Williams shows, if causation is not proved, the accused cannot be convicted of an offence that requires his act to produce a prohibited consequence. Menezies shows that causation is a two-stage analysis, requiring ³factual causation´ and ³legal or imputable causation.´ Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction, and it illustrates the legal causation principle of the ³thin skull.´ Both Nette and Menezies illustrate how most imputable causation principles explain why blame can be assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil liability. - R. v. Williams, [2003] 2 S.C.R. 134 - R. v. Menezies, [2002] O.J. No. 551 (Ont. S.Ct. of J.)
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- R. v. Nette, [2001] 3 S.C.R. 488 (f) Omissions - Some offences do not require a positive act by the accused. Rather, they can be committed by showing that the accused failed to act, or omit to act. Whether an offence can occur by ³omission´ is a question of construction. To be guilty by omission (1) the offence must contemplate guilt for omissions, (2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal duty. - R. v. Moore, [1979] 1 S.C.R. 195 - R. v. Peterson, [2005] O.J. No. 4450 (Ont. C.A.), and leave to appeal refused. - R v. Browne (1997), 116 C.C.C. (3d) 183 (Ont. C.A.), leave to appeal refused ______________________________________________________________________________ Each criminal offence has elements that must be present prior to a conviction. All elements must be present at the same time, or there will be no crime (R v. Williams). Two elements: actus reus [AR] & mens rea [MR]. In Canadian law, the mental element normally describes the actual or µsubjective¶ state of mind of the accused (things like intent, planning or premeditation, recklessness or knowledge or willful blindness). It is increasingly common to produce offences that have an objective MR, such as negligence. Objective MR is determined according to the mind of a reasonable person in the position of the accused, not the accused themselves. As a general proposition, a true crime will be interpreted as requiring a subjective MR, unless Parliament makes it clear that they wish to impose objective liability. (a) Acts and Statutory Conditions: Act must be an act of the accused and the kind of act described in the relevant provision. The act must further be committed under the conditions prescribed or under certain circumstances. Example, a person cannot be committed of breaking and entering with intent to create a criminal offence (s. 348(1) (a)) unless he actually breaks and enters into a qualified µplace¶ under the Code. R v. D¶Angelo [2002] ONCA -the µinterpretation of elements of an act¶ can be determinative in deciding whether an AR exists. (i.e. definition of public swimming area is determinative of whether probation is breached). Facts: Accused was a convicted sex offender who had the following as a condition of his probation: µProhibited from attending (a) public parks and public swimming areas where person under the age of 14 can be present or can be reasonably expected to be present¶, etc« Accused was a resident at an apartment complex where there was a public community swimming pool. As part of his lease he was granted a membership to the pool automatically. Accused was caught at the pool and arrested for breach of probation. Trial judge decides it is NOT a public area. Issue: Whether the pool constituted a µpublic¶ swimming area. If not there was no AR. Offence: Breach of probation

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Held: ONCA approach: In determining what constitutes a public swimming area, the court should have regard to the definition of a µpublic place¶ in s. 150 of the Code, the purpose of the legislation, the ordinary meaning of the words, and the individual facts of the case. Facts that should be considered in determining if there is a right of access, either express or implied, include the number of people with access, the particular community, ownership, limitations or restrictions on access, the conduct of owners and the manner in which the place is used. [...] [19]. Finally, I turn to a consideration of the purpose of s. 161 of the Code. Section 161 is contained in Part V of the Code which deals with, inter alia, sexual offences. Many of the provisions in this part of the Code are designed to protect children from sick adults who prey on them for purposes of selfish sexual gratification. Adopting a narrow definition of ³public swimming pool´, - for example, one which excluded such large facilities as Wet and Wild Kingdom or Canada¶s Wonderland - would be a disservice to a particularly vulnerable group in Canadian society. [20] In R. v. Budreo (2000), 142 C.C.C. (3d) 225 (Ont. C.A.), an important case dealing with another provision of the Criminal Code designed to protect children, Laskin J.A. said, at pp. 239-40: ³I accept the legitimacy, and indeed the importance, of Parliament¶s objective in passing s.810.1 of the Criminal Code. Children are among the most vulnerable groups in our society. The sexual abuse of young children is a serious societal problem, a statement that needs no elaboration. A sizeable percentage of the sexual offences against children ± according to the record, approximately 30 percent ± occur in public places, the very places specified in s.810.1. The expert evidence shows that recidivism rates for sexual abusers of children are high and that keeping high-risk offenders away from children is a sound preventive strategy. Parliament thus cannot be faulted for its objective in enacting s.810.1. The state should not be obliged to wait until children are victimized before it acts. The societal interest in protecting children from sexual abuse supports Parliament¶s use of the preventive part of its criminal law power.´ I agree with this forceful statement. In my view, it is as applicable to the interpretation of s. 161 of the Code as it was to s. 810.1. Therefore appeal allowed and new trial ordered. R v. J. (D) ONCA -See above (Re interpretation of µbreak + enter¶) (b) Acts Must be µVoluntary¶ or µWilled¶: The act described by the offence must be µvoluntary¶ in the sense that it must be the willed act of the accused. For example, a man in the thrones of a seizure does not µwill his movements¶. It would not be assault on his part even if his arm was to strike another without the others consent. It would have been possible to deal with this kind of issue using the MR concept by suggesting that he did not intent to strike the other, but Canadian law has also accepted that unless a physical motion is willful, it is not fair to call it an act of the accused person. This is the foundation for the automatism defence. It is easier to understand the concept of voluntariness together with automatism authorities (see below). (c) The Act of Possession: Sometimes the AR of an offence has an inherent mental element to it. The offence of possession is one of these offences. This concept demonstrates that the divide
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between the AR and the MR is not a solid one. What matters is that lawyers appreciate what the mental elements are, regardless of how they are characterized. Possession Start with the substantive offence, then determine which category of possession to figure out what the Crown must prove BARD: Actual Possession > Constructive Possession > Joint Possession Direct Evidence - evidence which proves a fact directly without a further inference Circumstantial Evidence - evidence which requires an inference in order to prove a fact. Inferences are less than certain. Deductions are certain, inferences are not. But guilt can be based on an inference so long as it is the only inference that can be drawn (Hodges Case). To determine whether an inference is the only reasonable one, look at the facts. Common Themes in Possession Cases Behaviour of suspect: Did the suspect cooperate with police? Access to the item: How many entryways? Were the doors locked? Did you talk to anyone else who had a key to the carport? When did the item appear? Who had access to the item? Drug Use: Did the suspect use drugs? What is their history of drug use? CC, s. 4(3): ³Possession´ for the purposes of this Act, (a) A person has anything in ³possession´ when he has it in his personal possession or knowingly: (i) Has it in the actual possession or custody of another person, or; (ii) Has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) Where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. AR: Here the AR has an inherent MR element to it, because the AR is intertwined with the MR, because if the accused µknowingly' does something (MR)¶ they are also committing the AR of possession. MR: The same argument above applies here. The AR and MR in the µpossession¶ charge are intertwined. Actual Possession (s.4 (3) (a) (i)) A person has anything in his possession when he has it in his personal possession. Constructive Possession (s.4(3)(a)(ii)) A person has anything in his possession when he knowingly has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person. Joint Possession (s.4 (3) (b)) Controlled Drugs and Substances Act, s. 2: ³Possession´ means possession within the meaning of subsection 4(3) of the CC.

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-see above R v. York [2005] BCCA -the law of manual possession Facts: Accused was working in a warehouse when a truck full of goods arrived. Accused called his boss to inquire about the goods. His boss would not tell them where they came from. York suspected them to be stolen. Because of this he drove the truck to an abandon area and left the goods. On the way back he was stopped by the police and arrested. He was charged for theft and possession of stolen property. The trial judge dismissed the theft charges, but found him guilty on the charges of possession of stolen property. Issue: On appeal, whether York was actually in possession? Offence: s. 354(1) Possession of Stolen Property over $5k & s. 334(a) Theft of Stolen Property over $5. Held: At trial the judge said that York exercised control over the goods at the warehouse by leaving them there without contacting the police or the possible owners and by closing and locking the warehouse doors, or by standing by while another closed and locked the doors to prevent their detection. -On appeal the court says at para. 10: ³In order to prove possession the Crown must establish the following: (1) manual or physical handling of the prohibited object; (2) knowledge; and (3) control. Therefore, the offence of possession is made out where there is a manual handling of an object co-existing with the knowledge of what the object is, and both these element must co-exist with some act of control -Conduct may be characterized as criminal only where the Crown proves the existence of a blameworthy state of mind. -Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner. -Intent is an essential ingredient of both the offences of theft and possession of stolen property. The appellant testified. He knew the goods were stolen. He also exercised physical control over the goods. However, there was no evidence that he had any intention to deprive the rightful owner of the stolen goods. As well, it appears the judge found the appellant's explanations regarding his discovery of the goods to be reasonable. R v. Marshall [1969] Alta.CA ² constructive joint possession -read in conjunction w/ next case R v. Terrence [1983] Facts: The accused was charged with possession of marijuana for the purpose of distributing. The facts of the case are long and detailed, but suffice to say that he was not aware that there was marijuana in the car until well after they left Vancouver, headed to Calgary. The trial judge found that Marshall demonstrated acquiescence by not leaving the car at the first given

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opportunity, and thus, amounted to consent and possession within the meanings defined in sec. 5(2) of the CC (as it was at the time), and sec. 4(2) of the Narcotics Control Act. Issue: Possession of Marijuana for purpose of distribution. Was there consent and possession? Held: On appeal, however, the CA quashed the conviction stating that ³« but to say that a 16year-old boy faced with this alternative, by choosing to continue his trip to Calgary has consented or agreed or acquiesced to the presence of marijuana in the car is not maintainable.´ A large part in Marshall¶s acquittal is that he neither did, nor could have exercised control over the persons who were party to the idea of bringing the marijuana along. Given that he was not the owner of the car, and thus, could not control what came in and out of the car, Marshall cannot be said to have exercised control in any fashion. R v. Terrence [1983] SCC ²joint possession -knowledge and consent is required for the requisite act of possession. Facts: Respondent was picked up by his friend in a car who told him that it was his brother-inlaw's car. OPP detected the µstolen car¶ and a car chase ensued because they noticed stolen plates on the car. Terrence was charged with unlawful possession of a car over $200.00. Question was whether he knowingly obtained a stolen vehicle which would make it an indictable offence. Section 21 of the CC defines the meaning of µparties¶ to an offence²it involves the question of µcommon intention¶. Here, there was no suggestion that the respondent took part in the actual theft of the car, nor was there anything to support a finding of common intention in relation to the offence of µpossession¶. Issue: The question for the SCC in this case related to the true meaning attached to the word ³possession´, for the purposes of sec. 3(4)(b) of the CC. The Act states: ³«where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.´ Held: Terrance did not have control of the car. In this decision, the SCC affirmed the ONCA¶s finding that a measure of control over the illegal/stolen articles must be exercised in order to give rise to joint possession or constructive possession ± on the facts, there was no direct evidence in this case that showed that Terrence had any control over the vehicle At para 25, Justice Roach: µ³Knowledge and consent´ which is an integral element of joint possession in s. 5(2) must be related to and read with the definition of ³possession´ in the previous s. 5(1)(b). It follows that ³knowledge and consent´ cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked. I agree with the CA that a constituent and essential element of possession under s. 3(4) (b) of the CC is a measure of control on the part of the person deemed to be in possession by that provision of the CC.´ The court did, however, draw up a number of examples where they might find control in such a case. They cited the example of ³control of destination´, where Terrence guided/suggested/ordered the driver to go to a certain place. They also cited the example of ³handing over stolen license plates´. The thrust of their argument centered mainly on some form of control being exercised by the accused. Thus, the formula is ± knowledge + consent = requisite act Knowledge and consent can be further expanded, especially when read in relation with possession. It follows that knowledge and consent cannot exist without the co-existence of some measure of control over

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the subject-matter. If there is power to consent, there is equally the power to refuse, and vice versa. R v. Pham [2005] ONCA²constructive possession Application of the principles in R v. Marshall & R v. Terrence (but to possession of materials found in a residence) Concept of µconstructive possession¶. Facts: Pham was the legal tenant of the apartment in question. She had been absent during a police search of the apartment, where 9.8 grams of crack cocaine were found. The occupant at the time was a live-in tenant named Nguyen. Pham contends that she neither knew, nor authorized Nguyen to sell crack from her apartment during her absence. However, contradictory testimony from neighbors shows that, what looked to be like drug transactions, were taking place before the arrival of Nguyen. Pham was arrested and charged. She was convicted at trial and appealed. Issue: Was Pham in possession of the drugs? Offence: Sec. 2 of the Controlled Drugs and Substances Act 1996 adopts sec. 4(3) of the CC¶s definition of possession. Sec. 4(3) creates three types of possession. (1) personal possession at outlined in sec. 4(3)(a) (2) constructive possession at set out in sec. 4(3(a) (i) and (ii) ± here there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. (3) joint possession as defined by sec. 4(3)(b) ± here there must be knowledge, consent and a measure of control on the party of the person deemed to be in possession Held: The finding of knowledge in a criminal trial need NOT be supported by direct evidence ± it may be found by the introduction of circumstantial evidence. Even further, an inference of knowledge can be made if, as is the case, narcotics are found in plain view, and the accused is occupying the premises. -The Justices cited both the cases of Grey and Sparling, where similar circumstances had occurred. In Grey, the co-accused (girlfriend) was charged with joint-possession of crack cocaine when it was found in her apartment. However, she was acquitted based on the facts that: (1) the drugs were not found in plain view, (2) her boyfriend had been a co-tenant. On the evidence, and the lack of direct evidence that could point to her knowledge of the drugs, she was acquitted. -³In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.´

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-³In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession´. -³The following findings and evidence regarding both knowledge and control of the 9.8 grams of crack cocaine by the accused support that conclusion: (a) the accused elected to use her home as a drug trafficking center, and was a key figure in the trafficking scheme carried on out of that center; she continued to be the occupant of unit #4 and retained control of the apartment while she was away; (b) both the black cloth purse containing the drugs and the pink make-up bag containing the money were found in full view in the bathroom, a common area of the apartment; (c) the cloth purse and the make-up bag are consistent with the personal toiletries of the appellant and were found amidst her personal toiletries and make-up; (d) there was no evidence of any man¶s toiletries in the bathroom; (e) the main bedroom was littered with woman¶s clothing, contained documents (including a passport) in Ms. Pham¶s name, and was the source of drug-related ³dime bags´ and cut up newspapers and grocery bags of the type used to wrap a 40 piece of crack cocaine; (f) the circumstantial evidence supported as the only logical inference a consistent awareness of, and participation in, all that occurred in her home on the part of Ms. Pham, and demonstrated much more than a quiescent or passive knowledge of the drugs, as well as an element of control over them; (g) the role of the accused in the trafficking scheme strongly suggested power and authority over the disposal of the cocaine found, and an ability to withhold consent to the keeping of any drugs in her home; and (h) Mr. Nguyen either filled Ms. Pham¶s shoes as the primary distributor during her absence or she and Mr. Nguyen jointly operated the trafficking scheme. -In my view the foregoing provided ample basis to found an inference of the requisite knowledge and supported the trial judge¶s finding that the appellant had sufficient knowledge and control to constitute constructive possession of the cocaine either personally or jointly with Nguyen. It was agreed that if possession was established, that the possession was for the purpose of trafficking. (d) Consent as an Element of the AR (Roach p. 95ff): Often the question of absence of consent by the victim is an important AR condition that must be present for offences to occur. Consent is a complex idea, animated by statute and the common law. R v. Ewanchuk [1999] SCC - Concerns the defence of consent to sexual assault. - there is no defence of implied consent for sexual assaults. Facts: the accused enticed the 17-year-old complainant into his trailer and began making sexual advances towards her, she said ³No´, and he stopped, and then continued once again. This pattern was repeated several times. He eventually let her go freely. Offence: Sexual Assault (s.271) Court (Major J +5): Held: The AR of sexual assault is indirectly defined by the provision on assault: (1) touching, (2) the sexual nature of the contact, (3) the absence of consent. (2) is determined objectively and
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does not require subjective MR (consistent with Chase and V. (K.B.)). (3) is only concerned with the subjective state of mind of the complainant. - Consent is vitiated by a number of factors found in s.265 (3), including fear of harm. This fear does not need to be reasonable, only honest, nor does it have to be communicated. If the complainant confirms (3), i.e. subjective absence of consent, the question is one of credibility. If the complainant is reliable, then the focus shifts to the mind of the accused. - There are two elements to the MR of sexual assault: (1) Intention to Touch; (2) Knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the person touched. - Consent must be communicated by the complainant by words or conduct. The accused¶s speculation is irrelevant. Therefore, the accused cannot rely on a lapse of time or silence as indicating consent, especially after someone has said ³No´. In sum, the defense of mistake of fact is only available if the accused believed there was consent on the basis of the complainant¶s words and conduct. This still amounts to an honest belief in consent, but this is up to the trier of fact to determine. Moreover, to be honest the accused¶s belief cannot be reckless, willfully blind or tainted by any awareness of any of the factors enumerated in s.273.1 (2). Where non-consent is given, there is a corresponding escalating obligation to take additional steps to ascertain consent. R v. Jobidon [1991] SCC²Test: vitiation of consent (s. 265(3)) Facts: Bar brawl. Two men fight inside and agree fight not over, therefore fight is consensual. Take fight outside where one is knocked unconscious and later dies. Offence: Unlawful act manslaughter (s.222 (5) (a); s.234) and the vitiation of consent as a defence (s.265 (3) and the common law (s.8 (3)) Held: Accused guilty. Majority: Gonthier J. rejects the argument that since the deceased consented to the fight, no assault occurred, and therefore there was no unlawful act that could have been the cause of manslaughter. He argues instead that the absence of consent is not an element of the AR in cases where adults intentionally apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. - S.265(3) does not deal with consent in a comprehensive way, and the common law maintains authority on the issue of consent, since consent functions as a defence Thus, policy reasons lead to the conclusion that consent is vitiated in fist fight situations: it is a socially useless activity that may lead to further brawls. The sanctity of the human body militates against the validity of consent to bodily harm inflicted in a fight. This rule does not apply to sporting activities and games, which usually have a significant social value. -The provisions in the CC have not ousted the common law limitations on consent. The history of Canadian law reveals that the limitations on consent based on public policy existed before the codification of Canada¶s criminal law and they have not been ousted by statutory revisions and amendments to the Code. Even if it was concluded that the Code negated the applicability of the common law rules, it would not follow that those amendments erased limitations based on public policy. If that had been Parliament¶s intent, it would have been stated. Minority: Dissent (Sopinka J): this is an example of judge-made policy that is forbidden. Parliament meant for absence of consent to be a part of the AR, and it shows this in the text of the provision; thus, the court cannot change this. Moreover, Parliament extended this to all assaults save murder in the interests of making this aspect of the criminal law certain.

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R v. Cuerrier [1998] SCC -consent making an Act lawful -Test for Fraud that vitiates consent (s. 265(3) (c)). The existence of fraud should NOT vitiate consent unless there is a significant risk of serious harm. Facts: A man who was HIV positive engaged in sexual-intercourse with two women who, luckily, did not become HIV positive themselves, but argued that had they been made aware of the man¶s disease, they would not have engaged in the said act. The man was acquitted both at first instance and on appeal Offence: Aggravated assault (s.268 (1)) and vitiation of consent by fraud (s.265 (3) (c)). Held: Court (Cory J +3): fraud has two components: (1) Would the actions of the accused be seen as dishonest by the reasonable person? (2) Did the dishonesty result in significant risk of serious bodily harm? This broader view of fraud vitiating consent is justified by the deadly consequences of nondisclosure of HIV infection, and it does not require that the complainants actually contracted HIV. Dishonesty consists of either deliberate deceit or non-disclosure of facts (though the second is only deceit when the risk of harm is great). Consent in this case must be consent to unprotected intercourse with an HIV-positive partner. Upon hearing at the SCC, the majority stated that, unlike the case above, it was no longer necessary when dealing with assault or sexual assault cases to consider whether the fraud related to the ³nature and quality of the act´. Rather, they listed dishonesty and deprivation or risk of deprivation as the necessary ingredients when assessing fraud. True consent cannot be given by the victim unless the accused has disclosed his status as HIV positive. The greater the risk of potential deprivation, the higher the duty of disclosure. However, limitations on the concept of fraud need to be placed, lest there be a floodgate of litigation against persons accused of engaging in fraudulent acts. Thus, the existence of fraud should NOT vitiate consent unless there is a significant risk of serious harm. Minority: (L¶Heureux-Dube): fraud should have two components: (1) Dishonesty according to Cory¶s objective test; (2) Whether the dishonesty induced the consent to the act in question, regardless of the presence of risk of harm. This is premised on a view of the sanctity of the body ± there need not be risk of serious harm. Justice L¶Heureux-Dube argued against the emphasis of the significant risk of serious harm. He stated that ³The focus of the inquiry into whether fraud vitiated consent so as to make certain physical contact non-consensual should be on whether the nature and execution of the deceit deprived the complainant of the ability to exercise his or her will in relation to this or her physical integrity with respect to the activity in question. An interpretation of fraud that focuses only on the sexual assault context, and which limits it only to those situations where a significant risk of serious bodily harm is evident, is unjustifiably restrictive.´ (McLachlin +1): the fraud should involve dishonesty that goes to the nature and quality of the act. This is a standard that is in accord with the common law tradition and it is an incremental rather than a radical change from the present law, unlike the other two views. It includes:

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(a) a deception as to the sexual character of the act; (b) deception as to the identity of the perpetrator; or (c) deception as to the presence of a sexually transmitted disease giving rise to serious risk or probability of infecting the complainant. The Crown must prove that the victim subjectively would not have consented to the act without dishonesty. Justice McLachlin, however, advances an alternative approach. She believes that by expanding the criminal law, as it now stands in the CC, would be an unwarranted act by the courts. As Canadian law requires, criminal acts must be made clear so that a person know where their acts falls within the spectrum of legality and illegality. To interpret sec. 265 of the Code as stating that the accused fraudulently represented himself to the victim by NOT making them aware of his HIV-status would be to expand the meaning of that section to an unacceptable level, since nowhere in the Code is that stated. Rather, she advances the idea that failing to make the victim aware of one¶s HIV-status goes to the nature and quality of the act. She argues that the consent is given to sexual intercourse with a person whom, the victim believes, is disease-free. The risk of contracting a sexually transmitted diseases falls under the heading of the nature and quality of the act since it has obvious and serious ramifications on the person¶s physical wellbeing. She dismisses arguments which state that such advancement in the law would blur the lines between the instant facts-set and another where a man promises a woman a fur coat in exchange for sex. Such arguments, she states, do not make up the nature and quality of the act since they have no bearing on one¶s physical well-being. (e) Causation (Roach p. 101ff): Some offences include element of causation, such as causing death or bodily harm e.g. Dangerous driving offence complete where driving shows marked departure from requisite standard; Issue: What suffices to establish causal connection between conduct and prohibited consequence? Causation issues tend to arise where multiple parties, thin skull victims or intervening events (Nette) - Factual causation = inquiry about how the victim came to death (medical, mechanical, physical sense) and contribution of accused to that result: But-for test Legal causation (imputable causation, morally culpability) = whether accused should be held responsible in law for death: legal considerations, such as wording of section, principles of interpretation Requires proof that act of accused caused death MANSLAUGHTER - Crown must establish that D's act was contributing cause outside of de minimus range, thin skull rule applies (Smithers) (Cribbin held that Smithers was constitutionally valid) HOMICIDE ± Smithers test, but positive wording è µnot insignificant cause¶ is same as µsignificant contributing cause¶ (Nette) 1st DEGREE MURDER - actions must form essential, substantial & integral part of killing of victim - active role (Harbottle) Sometimes result that is prohibited is not concrete act, but risk (e.g. fraud). Intervening Causes: independent factors exist which might reasonably be said to sever link that ties accused to prohibited result (Menezies) If the original cause is no longer operating in the effect due to an intervening cause then it has broken the chain of causation and you are not legally responsible (Queen v. Smith; People v. Lewis; Regina v. Jordan). Mandel: the original cause is always operating in effect (breaking the chain is not a test. It is a result of court's asking: should the accused be held responsible in light of this intervening cause) e.g. victim assaulted,
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but subsequent CPR medical cause of death ± no actus reus (Reid & Stratton) e.g. Refusal by victim to take blood transfusion does not break chain of causation (Blaue) The courts have fluctuated regarding whether factual or legal causation is the main concern In Smithers, the court decided that factual causation was of main concern You were a cause if you were a cause ³beyond de minimus That the victim had a thin skull doesn¶t matter (Smithers v. The Queen¶s). In Nette the court decided that legal causation was of main concern You were the cause if you were a ³significant contributing cause´ Foresee ability of your actions causing harm a primary concern (R. v. Nette) In Reid & Stratton the courts seem to want to allow for both You were the cause if you were a significant contributing cause and there were no intervening causes breaking the chain of causation In Menezies and J.S.R. the court allows for causation to be satisfied by participating in an event or group activity (street race and gun battle respectively) ³thin skull´ rule: the principle that accused take their victims as they find them. Where the relevant offence prescribes a ³consequence´ that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt. As Williams shows, if causation is not proved, the accused cannot be convicted of an offence that requires his act to produce a prohibited consequence. Menezies shows that causation is a two-stage analysis, requiring ³factual causation´ and ³legal or imputable causation.´ Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction, and it illustrates the legal causation principle of the ³thin skull.´ Both Nette and Menezies illustrate how most imputable causation principles explain why blame can be assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil liability. R v. Williams [2003] SCC²factual consent -to constitute a crime at some point the AR and MR or intent must coincide. Facts: Similar to Cuerrier above, but involved a minor. The one main difference in the cases was that here, the accused and the complainant had been engaging in unprotected sexual intercourse for five months before the accused found out that he was HIV positive. Held: The SCC held to constitute a crime ³at some point the AR and the MR or intent must coincide´. It was possible that the woman was infected prior to the accused knowing he was infected. May be authority that the accused will have the benefit of the doubt of factual causation. The courts agreed that this created reasonable doubt as to whether the accused knowingly infected the complainant, since it is entirely possible that the complainant could have been infected before the accused was made aware of his situation. Therefore, the necessary concurrence of intent and endangerment required to constitute the charge of aggravated assault, did not take place. Before the requisite date there was endangerment, but no intent. After the date, there was intent, but at the very least there was reasonable doubt as to the existence of any endangerment, since the complainant had probably already contracted the diseased The accused was still charged with attempted aggravated assault, since after the requisite date (the date in which he found out he was HIV positive) he took steps that were more than merely preparatory to endanger the complainant to the possibility of contracted the disease.

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R v. Nette [2001] SCC -brings moral responsibility back to the legal cause, while upholding the exception to the thin skull test. In addition to factual cause, there must be µimputable cause¶ which involves a value judgment to attribute moral responsibility. In determining legal cause you must consider whether the accuse knew that his actions were likely to cause the consequence (foresee ability) Facts: A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed with a garment around her head and neck. Sometime during the next 48 hours, she died from asphyxiation. During an RCMP undercover operation, the accused told a police officer that he had been involved in the robbery and death. Offence: The accused was charged with first degree murder under s. 231(5) of the CC -- murder while committing the offence of unlawful confinement -- and tried before a judge and jury. Held: The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him« That principle applies equally in the criminal context and is reflected, in part, in ss. 222(5) (d) and 226 of the CC. As expressed by McLachlin J., as she then was, in Creighton, supra, at p. 52: The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for the consequences that ensue, even to death. The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite MR for the offence charged, which consists of ³objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act´ -Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished -Justice Arbour, for the majority, noted that the Smithers causation test applies to all forms of homicide. However, the current "de minimis" test, defining the standard as "not a trivial cause" or "not insignificant", is not helpful and instead should be formulated positively such as "significant contributing cause". She went on to say that since causation is largely fact-driven the judge should have the discretion to rephrase the test as the facts warrant giving the example of Harbottle where, given the high degree of blameworthiness and stigma of the charge, the test was formulated as "a substantial cause". -The fact that the appellant action might not have caused death in a different person, or that the death might have taken longer to occur in the case of a younger victim, does not transform this case into one involving multiple causes. Were the accused actions a ³significant contributing cause´ to the death? R v. Menezies [2002] ON SCJ -reiterates and upholds the Nette principle of legal causation Facts: concerned car racing on the 401 Held: The Court focus on the moral responsibility by emphasizing the foreseeability of the consequences. The withdrawal from the race was an intervening cause such that the consequences from the victim¶s continuation to fast driving were no longer connected to the accused and they were not foreseeable.

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(f) Omissions (Roach p. 107 ff): Some offences do not require a positive act by the accused. Rather, they can be committed by a showing that the accused failed to act, or omitted to act. Whether an offence can occur by ³omission´ is a question of construction. To be guilty by omission: (1) the offence must contemplate guilt for omissions, (2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal duty. Sec. 215-218 of the CC provide scenarios when persons are under a legal duty to take action (Duties Tending to Preservation of Life) R v. Moore [1979] SCC Facts: the accused ran a stoplight with his bike and refused to stop and give his name to an officer. Offence: Obstructing a peace officer in the performance of his duty by failing to give his name when requested (s.129) Held: (Spence J): since a bicycle does not constitute a ³motor-vehicle´ under the Motor Vehicle Act, he did not breach the statute when he refused to stop and give his name to an officer. However, he did commit a traffic offence, which entitled the officer to arrest him. Since identification was necessary for an arrest, the accused obstructed the arrest and the officer¶s duty by failing to provide identification. Dissent: (Dickson J): Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute. The right to remain silent and the privilege against self-incrimination underlie this principle. Though he agrees that an offence was committed and the officer had a right to arrest, he cannot agree that the accused should be convicted of the serious offence of obstructing a peace officer. He also rejects the argument of an implied duty arising out of the officer¶s duty to arrest. This oversteps the role of the criminal law, as it would essentially amend the Motor Vehicles Act. R v. Browne [1997] ONCA -Before someone is convicted of recklessly breaching a legal duty generated by his/her undertaking, that undertaking must have been clearly made, and with BINDING INTENT. Nothing short of binding commitment can give rise to the legal duty contemplated by sec. 217. Facts: Browne was charged and convicted at first instance for criminal negligence causing death, when his drug dealing partner, Audrey Greiner, swallowed crack cocaine in order to avoid police detection during a search. Sometime later, she began to feel ill from the ingestion, at which time Browne stated that he would take her to the hospital. He subsequently called for a cab, but when it arrived at the hospital, she was pronounced dead. Issue: Browne appeals his conviction on the basis that no legal duty arose from his assistance, contrary to the findings of the trial judge based on sec. 217 of the CC, which states: ³Everyone who undertakes, or has authority, to direct how another person does work or performs a task in

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under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.´ Held: The Ontario CA disagreed with the trial judge in finding a legal duty based on Browne¶s actions. Because their relationship was such that it gave rise to NO preexisting legal duty, then one must start one¶s analysis by determining if there had been a sufficient degree of undertaking by Browne so as to give rise to sec. 217¶s meaning. -The word undertaking was scrutinized here by the court because they felt that because this criminal sanction carried a maximum term of life imprisonment that the word must be given an extremely high threshold. As such, they concluded that the ³mere expression of words indicating a willingness to do an act CANNOT trigger the legal duty.´ They went on to say that ³« the criminal standard must be, and is, different and higher than that of the civil standard. Before someone is convicted of recklessly breaching a legal duty generated by his/her undertaking, that undertaking must have been clearly made, and with BINDING INTENT. Nothing short of binding commitment can give rise to the legal duty contemplated by sec. 217.´ -In my view, the evidence does not disclose any undertaking of a binding nature. These were two drug dealers who were used to swallowing bags of drugs to avoid detection by the police. There was no evidence that the appellant knew that Audrey Greiner was in a life-threatening situation until 2:00 a.m., when he immediately phoned for a taxi. His words to her at that time: - "I'll take you to the hospital" - hardly constitutes an undertaking creating a legal duty under s. 217. Therefore, his appeal was allowed and conviction quashed. Acquitted. R v. Peterson [2005] ONCA Facts: This case centers on sec. 215(1) (c) of the CC, which imposes a duty on adult children to take care of their parents of whom they are in charge of. The facts of the case are long and complex; however, suffice to say that the father (Arnold) was in extremely bad shape, both physically, hygienically and mentally. This was in part due to his son¶s neglect (as evidenced by testimony of neighbors and police officers), as well as reluctance and stubbornness by Arnold himself. His son was charged and convicted under sec. 215(1) (c), which states: ³Everyone is under a legal duty« to provide necessaries of life to a person under his charge if that person«: (i) (ii) is unable, by reason of detention, age, illness, and mental disorder or other cause, to withdraw himself from that charge, and« is unable to provide himself with the necessaries of life.´

At first instance, and also during his appeal, the son attempted (unsuccessfully) to claim that his conviction and sentence should be vitiated on the grounds that his father was contributory negligent, in that he refused to allow anyone to care for him; in fact, doing the opposite of what was requested by his careers ± as evidenced by the testimony of the daughter. Held: The majority of the Court of Appeal, however, refused that argument stating that the son should have sought the assistance of a community agency that specifically deals with such cases.
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He had been made aware of such agencies by a police officer attending his home during one of their many visits. With respect to the appellant's second argument that he was not in charge of his father, since his father refused assistance almost habitually, the court responded by saying that evidence supported a finding that the father was mentally disabled (perhaps in the early stages of Alzheimer¶s dementia), and that this proved that Arnold was not capable for providing the necessaries of life for himself (a requirement under sec. 215). The duty arises when one person is under the other¶s charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life. The phrase ³necessaries of life´ includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm: R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.) at 240. Thus, s. 215(1) (c) obligations are driven by the facts and the context of each case. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other. Dissent: In his dissenting judgment, however, Borins JA argued that while the appellants conduct was reprehensible, it did not change the fact that the law as it stands treats senior citizens as it does minors. The analogy, he argues, is based on stereotypes that, for the most part, are unjustified. Stereotypes such as seniors being brittle, being in need of constant surveillance, etc« The SCC in earlier cases voiced its discontent on any law which is passed primarily on stereotypes. The law as it stands gives no weight to the judgment of a senior ± whether or not they want to bathe, eat or drink. That should be up to them.

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6. SUBJECTIVE MENS REA-905-795-0100 As indicated, subjective mens rea focuses on the actual state of mind of the subject of the prosecution, namely, the accused. Since what someone thinks or wants or knows is personal to him unless communicated, subjective mens rea ordinarily must be gleaned circumstantially, including by using the common sense inference that persons usually tend to intend the natural consequences of their acts. Since the state of ³knowledge´ is not often manifested circumstantially the way apparent intent is, the law will assume that the accused knew of the elements of the offence unless the so-called ³defence of mistake of fact,´ discussed below, is made out. The close link between knowledge and mistake of fact makes it sensible to discuss the ³defence´ together with this mens rea concept. There are many states of mind described by the various Criminal Code provisions. For example, one form of first degree murder requires proof of planning and deliberation (premeditation), while second degree murder requires only that the accused intend to cause death, or intend to cause bodily harm that he knows is likely to cause death. Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the living thing he is killing is a human being and intend to cause death to that human being. A sexual assailant must intend to touch the complainant, and know that she is not consenting (although as indicated, that knowledge will be assumed absent a mistake of fact defence being raised successfully). It is a close exercise of construction to see what mental states are required by a particular offence. If an offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is why ³assault´ contrary to section 265 requires ³intentional´ touching, and not simply reckless touching. Many offences do not specify the relevant mental state. If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or ³recklessness´ in bringing out the consequence will suffice (that presumption was rebutted for the offence charged in R. v. Buzanga and Durocher, requiring the Crown to prove actual intention to bring about the consequence). Again, subject to exception (see for example C.C. s. 150.1) where an offence sets out conditions or circumstances that have to exist, the accused must, as a general rule, know that those conditions or circumstances exist before the offence can be committed, although the mens rea known as ³willful blindness´ can substitute for full knowledge. Use the mens rea provided for in the relevant provision, as construed according to relevant criminal law principles. In the cases included below, the most common mental states are identified and illustrated: (a) Intention, and Ulterior Mens Rea ± Intention is a complex idea. The accused must have the very intention required by the relevant provision. For example, Vandergraff intended to throw the object, but not to make contact with the victim. His ³assault´ was not intended and he was not guilty. He could have been charged with criminal negligence causing injury, but the wrong charge was laid. For his part Murray intended to hold the Bernardo tapes, but not for the purpose of obstructing justice. He was therefore not guilty. R.(J.S.) intended to shoot into a crowd, with intent to kill a human being (albeit
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not the one killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the evidence comes out. - R. v. Vandergraff, [1994] M.J. No. 503 (Man. C.A.) - R. v Murray, [2000] O.J. No. 2182 (Ont. S.C.J.) - R. v. J.S.R., 2008 O.N.C.A. 544Federation of Law Societies of Canada (b) Subjective Mens Rea with Objective Features - Some criminal offences uses standards to define criminal conduct. For example, some assaults are sexual in their nature, and others are not. Some acts are dishonest, and others are not. It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. For example, the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of that nature is ³dishonest.´ If it were otherwise objective dishonest people would be held to lower standards than the rest of us. Or an accused can commit sexual assault if he intends to touch another, even if he does not believe that the contact is sexual in nature, so long as it is. - R. v. Theroux, [1993] 2 S.C.R. 5 - R. v. Chase, [1987] 2 S.C.R. 293 (c) Recklessness ± Recklessness is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought about. It therefore differs from negligence which can apply even if the actor does not personally see the risk, provided a reasonable person would have. Still, recklessness is a subjective mens rea with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. The fact that the accused may have felt the risk to be justifiable would be no answer. Recklessness will apply where the provision creates a consequence, but does not, as a matter of construction, require some more limited kind of mens rea. - See R. v. Theroux, above - R. v. Buzanga and Durocher (1979), 25 O.R. (2d) 705 (Ont. C.A.) (d) Knowledge ± As indicated, bearing in mind what is said above about standards of criminality, the accused must generally know that the conditions of the actus reus exist. For example, an accused cannot be convicted of assaulting a police officer, if she does not know the victim is a police officer. Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, unless the accused presents a ³mistake of fact defence.´ In the sexual offence context, the mistake of fact defence is heavily limited for policy reasons. - R. v. Ewanchuk, [1999] 1 S.C.R. 330 - See Criminal Code of Canada, ss. 265(4); 273.2

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(e) Willful Blindness ± Willful blindness is related to but distinct from recklessness. It is a subjective state of mind, requiring that the accused personally sees the risk of a fact, but then willfully avoids confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute for knowledge, although courts (and Parliament in C.C. s. 273.2) have an unfortunate habit of using ³willful blindness´ terminology as interchangeable with recklessness. This leads to confusion. If the two concepts were indeed interchangeable willful blindness would disappear because everyone who is willfully blind is necessarily reckless ± if you suspect that a fact exists but willfully avoid confirmation so as to be able to deny knowledge (and are willfully blind) then you must necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are reckless). The two concepts are not the same and should not be equated. - R. v. Currie (1975), 24 C.C.C. (2d) 292 (Ont.C.A.) - R. v. Duong (1998), 15 C.R. (5th) 209 (Ont.C.A.) - R. v. Vinikurov, [2001] A.J. No. 612 (Alta C.A.) - R. v. Briscoe 2010 SCC 13 ..........................................................................................................««««««««««««.. Subjective MR focuses on the actual state of mind of the accused. Since what someone thinks or wants or knows is personal to him unless communicated, subjective MR ordinarily must be gleaned circumstantially, including by using the common sense inference that persons usually tend to intend the natural consequences of their acts. Since the state of ³knowledge´ is not often manifested circumstantially the way apparent intent is, the law will assume that the accused knew of the elements of the offence unless the so- called ³defence of mistake of fact,´ is made out. The close link between knowledge and mistake of fact makes it sensible to discuss the ³defence´ together with this MR concept. There are many states of mind described by the various CC provisions. For example, one form of first degree murder requires proof of planning and deliberation (premeditation), while second degree murder requires only that the accused intend to cause death, or intend to cause bodily harm that he knows is likely to cause death. Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the living thing he is killing is a human being and intend to cause death to that human being. A sexual assailant must intend to touch the complainant, and know that she is not consenting (although as indicated, that knowledge will be assumed absent a mistake of fact defence being raised successfully). It is a close exercise of construction to see what mental states are required by a particular offence. If an offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is why ³assault´ contrary to section 265 requires ³intentional´ touching, and not simply reckless touching. Many offences do not specify the relevant mental state. If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or ³recklessness´ in bringing out the consequence will suffice (that presumption was rebutted for the offence charged in R. v. Buzanga and Durocher below, requiring the Crown to prove actual intention to bring about the consequence).
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Again, subject to exception (see for example C.C. s. 150.1) where an offence sets out conditions or circumstances that have to exist, the accused must, as a general rule, know that those conditions or circumstances exist before the offence can be committed, although the MR known as ³willful blindness´ can substitute for full knowledge. Use the MR provided for in the relevant provision, as construed according to relevant criminal law principles. In the cases included below, the most common mental states are identified and illustrated: The degrees of subjective MR: 1. Intent, purpose or willfulness 2. Knowledge 3. Recklessness 4. Willful Blindness 5. Transferred subjective MR (a)Intention and Ulterior MR: Intention is a complex idea. The accused must have the very intent required by the relevant provision. For example, Vandergraff intended to throw the object, but not to make contact with the victim. His ³assault´ was not intended and he was not guilty. He could have been charged with criminal negligence causing injury, but the wrong charge was laid. For his part Murray intended to hold the Bernardo tapes, but not for the purpose of obstructing justice. He was therefore not guilty. R.(J.S.) intended to shoot into a crowd, with intent to kill a human being (albeit not the one killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the evidence comes out. The Chart Purpose/Intention: You either perform the AR with purpose/intention or without purpose/intention Knowledge: If you are minimally aware of the risk (1%) that your actions might bring about a prohibited consequence, then you have turned your mind to that risk, and if you perform the AR, you have done so recklessly (without intent/purpose). If you are fully aware (certain) that your actions will bring about the prohibited consequence, then if you perform the AR you have done so with knowledge (the law equates this with intention or purpose). Negligence: If you do not know/are not aware, but you ought to have known/been aware of the risk that your actions would bring about the prohibited AR then you have acted negligently. Subjective States of Fault These states of fault are concerned with what passes through the mind of the accused person at the relevant time. The Crown has to prove, in these instances, things like ³knowledge,´ ³intent,´ ³recklessness,´ ³willfulness,´ etc. Intention and Knowledge Crown doesn¶t have to prove motive, only the required MR (Lewis) Motive can be included as part of the offence if legislature makes explicit their intention (Nararajah). Once Crown proves requisite fault (MR) that the accused was under duress does not negate that fault/MR (Hibbert) If MR requirement is ³willful,´ Crown is proving intention to commit the AR (Buzanga). Intention is equally, purposely acting to bring about a consequence, and acting with knowledge that consequence will result (Buzanga). The offence may call for a combination of ³knowledge´ and ³awareness´ (Theroux). e.g. Fraud requires you knowingly commit (intend to commit) the prohibited act, but only requires that you are aware that this act might result in the deprivation of the other (i.e. you need not know that you are depriving another).
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R. v. Lewis (Murder) F: Accused sent kettle bomb to victims. Offered that he wasn¶t guilty, he had no motive. I: Does the Crown have to prove motive or simply that accused met requisite fault req.? Subjective Intent required for murder. That proven with the AR the accused is guilty. The Crown does not need to prove the accused had a motive, only the requisite fault to fulfill the MR requirement. R. v. Khawaja II.1 of CC F: This part requires accused have a particular motive: ³for political, religious, or ideological purpose.´ I: Whether inclusion of motive in offence infringes on accused¶s Charter right (s. 2) The inclusion of motive in this statute violates the accused¶s Charter right. This is reversed in next case. USA v. Nadarajah This is a reversal of the above decision. The Court finds that the inclusion of requisite motive in this terrorist legislation does not violate the accused¶s Charter right, and thus, the motive is allowed to stay in. R. v. Steane-Performing acts likely to assist the enemy F: Accused argued he intended to do the act while under duress (wasn¶t motivated to assist the enemy). I: If the accused proves duress, does this negate a fulfilled MR requirement? Court found here yes - a mistake. Crown need only prove you had the requisite fault/MR, that you were under duress can be raised as a defence. Hibbert v. The Queen-Attempted murder via aiding and abetting F: Accused argued he aided and abetted in commission of attempted murder while under duress (principal offender threatened him). I: If the accused proves duress, does this negate a fulfilled MR requirement? Court found no. If Crown proves accused had the requisite MR then that MR requirement cannot be negated by the fact that the act was committed under duress. R. v. Buzanga and Durocher-Willfully promoting hatred against French F: Two accused printed anti-French pamphlets (with knowledge it would incite hatred against the French) but with the intention of helping/ rallying the French people. I: For ³willfully,´ does the Crown have to prove Intention? Recklessness? Knowledge? ³Willfully´ = ³Intention´ ³Intention´ fulfilled where accused: a) Purposely bringing about consequence b) Acts with knowledge that the consequence will result. By this, the accused acted willfully.
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R. v. Theroux Fraud F: Accused accepted deposits from investors having told them he had purchased deposit insurance when he had not. AR for fraud is that the accused must commit an act of deceit, falsehood, etc. Crown must also prove the impugned act is one a reasonable person would see as dishonest. I: What is the requisite MR for fraud? The Crown has to prove accused: 1. had subjective knowledge that s/he was undertaking a prohibited act 2. had subjective knowledge that the prohibited act could have caused, as a consequence, the deprivation of another. R v. Vandergraff [1994] Man.CA²Intention is necessary for assault -If there is no intention to apply force to a person, there cannot be any assault Facts: Appeal by the accused from conviction for assault with a weapon. The accused had thrown a jar of peanut butter toward the ice surface of a hockey rink in frustration at the outcome of a game, but it had struck the complainant and caused her injury. The trial judge had found intent to apply force in a general sense, which happened to be to the complainant, and convicted. Held: Not Guilty-Appeal allowed and acquittal entered. There was no proof of intention to apply force to a person. Imputed intent to wound, maim, disfigure or endanger life, in the case of aggravated assault where intent to apply force was already established, did not apply here. The accused's conduct was foolish, negligent and may have been criminal, but did not constitute assault. R v. Murray [2000] (ON S.C.J.) -the Court must prove intention beyond a reasonable doubt. Facts: Murray, Bernardo¶s solicitor went to Bernardo¶s house and removed videotapes, which depicted gross sexual abuse. Without disclosing their existence to the Crown, he retained the tapes for 17 months. Murray, through his counsel, applied to the Law Society of Upper Canada for advice. Accepting that advice Murray appeared before the trial judge, Chief Justice LeSage who directed that the tapes go to John Rosen, new counsel for Bernardo, at which time Murray was given leave to withdraw as counsel. Rosen turned the tapes over to the police and they were used by Crown counsel at the trial. A jury found Bernardo guilty on all charges. Offence: Murray now faces this charge of attempt to obstruct justice by concealment of the videotapes. Issue: The onus is on the Crown to prove beyond a reasonable doubt that it was Murray¶s intention to obstruct the course of justice. Held: Not Guilty- The factual questions of intent are: 1. Did Murray intend to conceal the tapes permanently or only up to the point of resolution discussions or trial? 2. If the latter, was it his honest belief he was entitled to do so? Answer to 1) Murray was going to use them at trial on cross against Holmoka. Further, he was going to use them to negotiate a settlement. The judge felt this to be feasible and therefore Murray did not intend to withhold the tapes permanently. Answer to 2) If I make the assumption Murray intended to use the tapes in the defence, I have no difficulty with the proposition that he may well have believed under the

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circumstances he had no legal duty to disclose the tapes until resolution discussions or trial. R v. R (J.S.)²J.S.R. [2008] ONCA -ulterior motive can be intent for murder Facts: Gunfight on boxing day in Toronto. R (JS) is on the side of the street where the victim is. Gangs start shooting at each other from across the road. In the exchange several people are shot and a 15-yr old girl dies. R (JS) is not the shooter of the 15 year older girl, but was exchanging fire with the other shooter. Offence: R (JS) is charged with second degree murder, s. 229 CC Issue: Whether R (JS) had the men rea to commit murder in the second degree? Held: s. 229. Culpable homicide is murder ... (c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to affect his object without causing death or bodily harm to any human being. -Turning to the MR component, O¶Connor J.A. (in R v Meiler) observed that the provision required two mental elements. He identified the first of these elements at paras. 48-49 as follows: (1) First, the acts of the offender that caused the death must have been done for the purpose of an ³unlawful object´. It is well established that s. 229(c) contemplates some act or conduct by the offender done to bring about some further unlawful object other than the injury that causes the death. Put another way, the unlawful object must be a different object than the assault upon the deceased that gives rise to the charge under s. 229(c). Further, the unlawful object must be an object of conduct that, if prosecuted fully, would amount to a serious crime, that is an indictable offence requiring MR. (2)The second MR requirement in s. 229(c) is that the offender knows that the act or acts that are done for the purpose of the unlawful object are likely to cause death, notwithstanding he desires to effect his object without causing death or bodily harm to any human being. This creates a requirement for the subjective foresight of death by the offender. We believe that J.S.R. could be convicted of murder under that provision if a jury was satisfied that he: (1) Did anything ± willingly engaged in a frenzied shootout, discharging his firearm numerous times into a busy street teeming with people; (2) That he knew was likely to cause the death of a human being (other than his intended target) ± discharging his firearm numerous times into a street filled with people? (3) Caused the death of a human being ± substantially contributed to Ms. Creba¶s death by engaging in a mutual gunfight. Verdict: ordered to stand trial for second degree murder. Update: Jorrell Simpson-Rowe, previously known as JSR, was convicted by a jury of murder in the second degree. In April 2009, he was sentenced as an adult to life in prison with no chance of parole for seven years.

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(b) Subjective MR with Objective Features: Some criminal offences use standards to define criminal conduct. For example, some assaults are sexual in their nature, and others are not. Some acts are dishonest, and others are not. It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. For example, the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of that nature is ³dishonest.´ If it were otherwise objective dishonest people would be held to lower standards than the rest of us. Or an accused can commit sexual assault if he intends to touch another, even if he does not believe that the contact is sexual in nature, so long as it is. Crimes Requiring Subjective Awareness ± Common Law Presumption: Where the Code definitions of an offence include a clear MR word, such as ³intentionally´, ³willfully´, or ³knowingly´, Parliament has made it choice of the subject test clear Where the definition of the crime contains no MR words, and there is no language indicating the crime is to be interpreted as one of objective negligence, it should be interpreted as an offence of subjective MR. Decisions reading in a subjective fault requirement for drug offences are still authoritative ± R v. Beaver McLachlin CJ, in delivering the majority judgment in R v. Theroux, interpreted the word ³fraudulent´ to require a subjective MR requirement for theft and fraud. In R v. Lucas, the crime of defamatory libel, covered by sec. 298-300 of the CC, required intent to defame. R v. Theroux [1993] SCC -Subjective MR with Objective Features: In the crime of fraud, the subjective knowledge of the risk of deprivation may be inferred from the µact of fraud¶ itself. The lack of belief that the fraud will have dire consequences does not negate MR. Facts: The accused was the directing mind of a company. He was involved in residential construction, and charged with fraud. The company entered into agreements with a number of individuals to purchase residences. The contracts were made on the basis of a false representation by the company that the deposits were insured. The representation was made orally and backed up by a certificate of participation in the insurance program. Additionally, a brochure describing the program was distributed to most of the depositors. The insurance did not exist. The company became insolvent, the project was not completed and the depositors lost their money. The trial judge found that the accused, as directing mind of the company, was responsible for the misrepresentations. The accused knew at the time that the deposits were not guaranteed but nevertheless made misrepresentations to induce potential home purchasers to sign a contract and give a deposit. The trial judge also found that the accused sincerely believed that the residential project would be completed and hence that the deposits would not be lost. Offence: The accused was convicted of fraud pursuant to s. 380(1) (a) of the CC and the CA upheld the conviction. Issue: The issue in this appeal is whether the fact that the accused honestly believed that the project would be completed negates the MR of the offence of fraud. -Typically, MR is concerned with the consequences of the prohibited AR. Thus, in the crimes of homicide, we speak of the consequences of the voluntary act ± intention to
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cause death, or reckless and willfully blind persistence in conduct with one knows is likely to cause death. - the subjective knowledge of the risk of deprivation may be inferred from the act itself, barring some explanation casting doubt on such inference. Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the deprivation or was reckless as to whether it would occur. -The SCC, led by Justice McLachlin, began by defining the requisite elements of the crime of fraud: the AR is deceit, falsehood or some other dishonest act. The prohibited consequence is the deprivation of another of what is or should be theirs (this includes merely placing the property of another at risk). The MR is the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. The proper focus in determining the MR of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including risk of deprivation). The personal feelings of the accused about the morality or honesty of the act or its consequences is not relevant to the analysis. Therefore, MR was found to exist. R v. Chase [1987] SCC -Sexual assault (s.246 (1) (a) CC)²The test to be applied in determining whether conduct is sexual, is an objective one, µviewed in light of all the circumstances of the assault to a µreasonable observer¶. Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. Facts: Respondent was convicted of sexual assault contrary to s. 246.1(1) (a) of the CC. He entered the home of the complainant, a 15-yr old girl, without invitation, seized her around the shoulders and arms and grabbed her breasts. When she fought back, he said: "Come on dear, don't hit me, I know you want it." She testified at trial that he tried to grab her "private" but did not succeed. On appeal, the CA expressed the view that the modifier "sexual" in the new offence of sexual assault should be taken to refer to parts of the body, particularly the genitalia. Because there was no contact with the complainant's genitals, the conviction at trial was set aside and a conviction for common assault substituted. Issue: The only question arising in this appeal is that of the definition of the offence of sexual assault. Held: Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the CC, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant. The accused's intent or purpose as well as his motive, if such motive is sexual gratification, can also be a factor, when considering whether the conduct is sexual.

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-Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. In the present case, there was ample evidence before the trial judge upon which he could find that sexual assault was committed. Viewed objectively in the light of all the circumstances, it is clear that the conduct of the respondent in grabbing the complainant's breasts constituted an assault of a sexual nature. (c) Recklessness: Recklessness is lower form of mens rea than intent, purpose, willfulness or knowledge, but still subjective mens rea. It is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought about. It therefore differs from negligence, which can apply even if the actor does not personally see the risk, provided a reasonable person in the accused's circumstances would have recognized the risk. Still, recklessness is a subjective MR with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. The fact that the accused may have felt the risk to be justifiable would be no answer. Recklessness will apply where the provision creates a consequence, but does not, as a matter of construction, require some more limited kind of MR. Recklessness requires only subjective awareness of the risk of the prohibited act, as opposed to knowledge of the likelihood of the prohibited act. There are occasions where the Code expressly relies on recklessness as fault: (1) Murder under sec. 229(a)(ii) (2) 2 Willful as defined in sec. 429 for all of Part XI offences (mostly property offences such as mischief, damage to property and arson) (3) 3 Criminal harassment ± sec. 264 (4) 4 Offences based on criminal negligence ± sec. 219 R v. Theroux [1993] SCC -see above. Re: Fraud for insurance on deposits for the construction of new homes. Even though he did not foresee the risk that the homes would not be constructed, in misrepresenting deposit insurance a reasonable person would be of the view that this was reckless. Held: Re: Recklessness-The SCC went on to say that there is no reason why recklessness should not attract criminal liability for fraud. Recklessness, they state, presupposes knowledge of the likelihood of the prohibited consequences. It is established when it is shown that the accused, with such knowledge, commits acts which may bring about these prohibited consequences, while being reckless as to whether or not they ensue. This does not mean that the Crown must provide the trier of fact with a mental snapshot proving exactly what was in the A¶s mind at the moment the dishonest act was committed. In certain cases, the inference of subjective knowledge of the risk may be drawn from the facts as the accused believe them to be. R v. Buzanga and Durocher [1979] ONCA
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Facts: The appellants were convicted at first instance for willfully promoting hatred against French Canadians contrary to sec. 319(2) of the CC. The appellants sought the leave of the ONCA. The appellants were French Canadians themselves who published a pamphlet in an attempt to incite public outrage. They compiled a variety of statements made by locals who were against the building of a French school. Their intention was that right-minded individuals would find such statements to be so repugnant that government intervention in the matter would almost certainly be likely. Held: ³The general MR which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crimes, is either the intentional or reckless bringing about of the result which the law, in creating the offense, seeks to prevent´ The case primarily turned on how the word willfully was to be interpreted and defined. After extensive reference to previous case law, the CA held that the proper meaning of willfully, as it applied to this section, was ³(a) the appellant¶s conscious purpose in distributing the document was to promote hatred against that group, or (b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet, but distributed it as means of achieving their purpose of obtaining the French language high school.´ In essence, what the CA did was distinguish actions which are willful from those which are reckless. They defined willful as when a person intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct. This was distinguished from the reckless definition where, citing the words of Lord Diplock in Hyam, a person is said to be reckless when foresight of death or serious bodily harm is a highly probable consequence of an act done for some other purpose. The distinguishing factor is to be found in the language: namely, substantially certain and highly probable. According to the Court of Appeal, where the trial judge erred in his charge was in holding that ³willfully´ means only ³intentional´ as opposed to ³accidental´. Although ³willfully´ has sometimes been used to mean that the accused¶s act, as distinct from its consequences, must be intended and not accidentally, it does not have that meaning in the provisions under consideration here. In other words, the trial judge focused on whether or not the appellants intended their acts (the act of drafting and printing the pamphlet), and not on the consequences (the incitement of hatred toward French Canadians). This approach is known as the doctrine of specific intent. (d) Knowledge: Knowledge is a slightly lower form of subjective mens rea than intent or purpose. As indicated, bearing in mind what is said above about standards of criminality, the accused must generally know that the conditions of the AR exist. For example, an accused cannot be convicted of assaulting a police officer, if she does not know the victim is a police officer. Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, unless the accused presents a ³mistake of fact defence.´ In the sexual offence context, the mistake of fact defence is heavily limited for policy reasons. R v. Ewanchuk [1999] SCC -See above: Re sexual assault of a girl. Claimed there was consent because she didn¶t say no.
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Application: The accused may challenge the Crown¶s evidence of MR by asserting an honest but mistaken belief in consent. The defence of mistake is simply a denial of MR. It does not impose any burden of proof upon the accused. The accused need not testify in order to raise the issue. Support for the defence may stem from any of the evidence before the Court, including the Crown¶s case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused. -If his belief is found to be mistaken, then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. -Moreover, to be honest the accused¶s belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. Section 265(4) CC²Accused¶s belief to consent (Assault) -if the defendant believed that the other party consented to the contended action, the judge (and jury) should consider the presence or absence of reasonable grounds for that belief when evaluating the evidence against the accused. Section 273.2 CC²Where belief in consent is not defence (Sexual Assault) consent is not a defence to a charge under s. 271, 272, or 273. That the accused believed that the complainant consented to the activity, where (a) the accused was intoxicated or reckless or willfully blind, or (b) where the accused did not take reasonable steps in the circumstances to know that the accused at the time was not consenting. (e) Willful Blindness: is related to but distinct from recklessness. It is a subjective state of mind, requiring that the accused personally sees the risk of a fact, but then willfully avoids confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute for knowledge, although courts (and Parliament in C.C. s. 273.2) have an unfortunate habit of using ³willful blindness´ terminology as interchangeable with recklessness. This leads to confusion. If the two concepts were indeed interchangeable willful blindness would disappear because everyone who is willfully blind is necessarily reckless ± if you suspect that a fact exists but willfully avoid confirmation so as to be able to deny knowledge (and are willfully blind) then you must necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are reckless). The two concepts are not the same and should not be equated. SCC in Sansregret: Willful Blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or a risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, willful blindness arises when a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is a reason to inquire.

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R v. Currie [1975] ONCA Facts: The appellant was charged and convicted of trying to cash an endorsed stolen cheque, which had the signature of the payee forged on the back. The appellant was approached by an unknown person, and was offered $5 to cash the cheque. He argues that he did not know the cheque was stolen, or the signature forged, and thus should not be liable. At first instance, the trial judge convicted on the basis that the appellant willfully shut his eyes and did not make inquiries which he ought to have made. Held: The majority of the Ontario CA disagreed with the trial judge¶s interpretation of the doctrine of willful blindness. They adopted a different definition: The rule is that if a party had his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he ³shut his eyes´ to the fact, or that he was ³willfully blind´. The main distinction between the two interpretations is that the trial judge¶s definition imports a more constructive knowledge approach to the doctrine, where a value judgment is passed on the actions of the accused ± namely, whether in the circumstances his suspicion should have been aroused. The CA¶s interpretation differs on the burden of proof ± namely, that the Crown must prove, beyond a reasonable doubt, that the accused¶s suspicion was aroused, not whether it should have been aroused. The CA stated that there is no room for constructive knowledge in the criminal law. R v. Duong [1998] [ONCA] Facts: The appellant was charged and convicted for being an accessory after the fact, contrary to sec. 23(1) of the CC. The appellant housed a suspect wanted for three murders and two attempted murders, and was told by the suspect that he was in trouble for murder, but did not say to what extent he was involved. The suspect was later found guilty on two counts of second degree murder and two counts of attempted murder. The trial judge found him willfully blind of the fact that the suspect was wanted for murder. The accused contends (citing no specific cases) that willful blindness can only be relied on by the Crown if the Crown proves that an accused whose suspicions were aroused had the means available to verify the accuracy of those suspicions. The appellant goes on to contend that he could have turned only to the suspect to verify his suspicions and that the record does not suggest the suspect would have admitted his culpability in the murders. Held: The Ontario CA disagreed with the appellant¶s contention. They stated: Liability based on willful blindness is subjective. Willful blindness refers to a state of mind which is aptly described as ³deliberate ignorance´. Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability. -The appellant¶s case was dismissed

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R v. Vinokurov [2001] (Alta.CA) Facts: The Appellant was charged with seven counts of possession of stolen property contrary to s. 355(b) of the CC. At trial, the Crown established beyond a reasonable doubt that the Appellant, the manager of a pawnshop, received stolen property from a customer. The stolen property represented the proceeds of a series of break and entries committed by the individual who pawned the merchandise. The Appellant testified at trial and denied knowing that the items were stolen. The uncontradicted evidence was that he completed all of the required paperwork and made inquiries of his mother who was the owner of the store to determine whether he ought to purchase certain of the merchandise. The stolen merchandise was from a former inmate, Bucsko. The appellant cooperated with the police when they came to seize the stolen goods. The Appellant declined to accept the watches without first telephoning his mother. His mother authorized payment of $50 for the watches and $25 for the rings which were, in accordance with usual practice, appraised by the pawnshop on the basis of their scrap value Offence: Possession of stolen property s. 354(1) Issue: The issue in this appeal is the application of the doctrines of recklessness and willful blindness to a charge of possession of stolen property Held: The onus is on the Crown to prove that the accused knew that the property was stolen. It is a general rule of statutory construction that when the term "knowingly" is used in a criminal statute, the reasonable person standard will not satisfy the MR requirement. It is well established in criminal law that willful blindness will fulfill a MR requirement. "[T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he 'shut his eyes' to the fact, or that he was 'willfully blind'." A fair, accurate and succinct summary of the foregoing is found in R. v. Jorgensen, [1995] 4 S.C.R. 55 at p.111: "A finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?" "Willful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in the course of conduct which creates a risk that the prohibited result will occur, willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry." If the trier of fact, as in this case, is not persuaded that the accused suspected something and thereby became aware of the need to inquire, it is, with respect, inconsistent to find that the accused "was fully conscious of the risk." Having concluded, on that basis, that willful blindness was not made out, it was not open to the trial judge to find "recklessness". For these reasons, the appeal is allowed, the convictions quashed and a new trial ordered on all counts.

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R v. Briscoe [2010] SCC Facts: B was charged with murder for driving people who raped and murdered a 13-year old girl on a golf course. B drove and witnessed the attack but did not participate. The murder was planned by L who took place in the murder, because L had expressed a desire to kill someone that day, and L and some of L & B¶s friend had chosen the 13-year old girl as the victim. B was acquitted. The trial judge found that the AR for being a party to the offences was proven, but not the MR because B did not have the requisite knowledge that L¶s intended to commit the crimes. The CA overturned the acquittals and ordered a new trial, holding that the trial judge erred in law by failing to consider willful blindness. Held: The appeal should be dismissed. The MR requirement reflected in the word ³purpose´ under s. 21(1) (b) of the CC has two components: intent and knowledge. For the intent component, the Crown must prove that the accused intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. Even in the case of murder, the principal¶s intention to commit the crime must be known to the aider or abettor, but it need not be shared. It is sufficient that he or she armed with knowledge of the principal¶s intention to commit the crime, acts with the intention of assisting the principal in its commission. The doctrine of willful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused¶s state of mind which must be undertaken to establish an aider or abettor¶s knowledge. Willful blindness does not define the MR required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the MR. Willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. In this case, the evidence cried out for an analysis on willful blindness. Even B¶s own statements to the police, on which the trial judge relied heavily, suggest that he had a strong, well-founded suspicion that someone would be killed at the golf course and that he may have been willfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judge¶s failure to consider B¶s knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.

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7. OBJECTIVE MENS REA AND TRUE CRIMES Negligence is judged objectively, according to what a reasonable person would know or understand or how a reasonable person would act. The criminal law has long been uncomfortable with objective fault, as historically the criminal law responded to an ³evil´ mind, and careless people may be dangerous but they are not evil. Gradually the law has come to accept objective fault, although this has not happened for murder, where, as a matter of constitutional law, convictions must be based on subjective mens rea in the form of full scale intention. For crimes using objective fault as the mens rea, ³penal negligence´ - a more restricted form of negligence is generally required. The exception is with ³predicate offences,´ those aggravated forms of offence that apply when serious consequences result, and that include within their elements another complete but lesser offence, a ³predicate´ offence. For predicate offences the consequence need not be brought about by ³penal negligence.´ It is enough if the accused commits the underlying or predicate offence, and that the aggravated consequence that has been thereby caused was objectively foreseeable. R. v. Martineau, [1990] 2 S.C.R. 633 R. v. Creighton, [1993] 3 S.C.R. 3 R. v. Beatty, [2008] S.C.J. No. 5. R. v. DeSousa, [1992] 2 S.C.R. 944

Negligence is judged objectively, according to what a reasonable person would know or understand or how a reasonable person would act. The criminal law has long been uncomfortable with objective fault, as historically the criminal law responded to an ³evil´ mind, and careless people may be dangerous but they are not evil. Gradually the law has come to accept objective fault, although this has not happened for murder, where, as a matter of constitutional law, convictions must be based on subjective MR in the form of full scale intention. For crimes using objective fault as the MR, ³penal negligence´ - a more restricted form of negligence - is generally required. The exception is with ³predicate offences,´ those aggravated forms of offence that apply when serious consequences result, and that include within their elements another complete but lesser offence, a ³predicate´ offence. For predicate offences the consequence need not be brought about by ³penal negligence.´ It is enough if the accused commits the underlying or predicate offence, and that the aggravated consequence that has been thereby caused was objectively foreseeable. ______________________________________________________________________________ R v. Martineau [1990] SCC Facts: The case included two participants to a crime. The appellant, with his accomplice, armed with a pellet pistol and a rifle broke into the trailer of the victims, where the accomplice shot and killed both victims. The appellant asserts that was not the plan, and that he was under the impression that they were engaging only in a break and enter. Offence: He was charged under sec. 230(a) of the CC, and was considered a participant under sec. 21(1) and (2) of the CC. Issue: He appeals his conviction on the grounds that the aforementioned subsections are unconstitutional. Or if not, that sec. 230(a) on its own is unconstitutional.
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Held: Building on the decision in Vaillancourt, where it was concluded that objective foreseeability of death was the minimum threshold test before a conviction for murder could be sustained, the Justices decided to interpret the entire section more strictly. They held that only the MR of subjective foreseeability of death, or of bodily harm likely to cause death could lead to a murder conviction. All other homicide convictions would necessarily fall under the category of manslaughter. Justice Lamer stated the following reasons: the effect of sec. 230 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender, or the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The rationale underlying the principle that subjective foresight of death is required before a person is labeled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result Justice Lamer asserts that in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. In regards to sec. 1 of the Charter, Justice Lamer believed, as he did in Vaillancourt, that there were and are less intrusive methods open to Parliament to utilize in its pursuit of the objective ± namely, to deter persons from causing bodily harm to others in the commission of one of the proscribed offences: namely, that they punish persons engaging in bodily harm resulting in death more severely through harsher sentences after a manslaughter conviction. This more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender. Dissent: Justice L¶Heureux-Dube cited a host of arguments for maintaining and utilizing the objectively foreseeability standard. 1. First she cites that those who are critical of the ³felony-murder´ rule base their denunciation on the premise that MR is the exclusive determinant of the level of stigma that is properly applied to an offender. The fallacy of this approach is its denigration of the AR and its failure to include the result of the defendant¶s conduct as a determinant of just disposition. Additionally, the correlation between the consequences of a criminal act and its retributive repercussions become obscured by a stringent and exclusive examination of the accused¶s own asserted intentions. 2. Second, she argues that many other factors, other than the accused¶s degree of moral blameworthiness, are considered by Parliament in establishing a sentencing scheme. The question is one of policy to be determined by Parliament. General deterrence, the degree of perceived danger to the public and the prevalence of certain types of offences are only some of the other considerations which Parliament may properly consider. 3. Third, she cites that the principle complaint in the majority¶s argument is that the accused should not be labeled a murderer, and that Parliament should not have chosen the word murder for the subsection in question. She argues that while it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended only because serious criminal conduct, involving the
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commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner. The principles of fundamental justice require that a conviction for murder be based upon proof beyond a reasonable doubt of subjective foresight of death. -In a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to murder should be reserved for those who choose intentionally to cause death or who choose to inflict bodily harm knowing that it is likely to cause death. Requiring subjective foresight of death in the context of murder maintains proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. R v. Creighton [1993] SCC -test for the MR of unlawful act manslaughter [predicate offence] is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required. Facts: Appellant was charged and convicted of unlawful act manslaughter. He admitted to injecting the victim with cocaine, and conceded that this amounted to trafficking within the meaning of sec. 4(1) of the Narcotic Control Act. The victim died as a result. Offence: He was charged under sec. 222(5) of the CC. Issue: He sought leave from the SCC on the basis that unlawful act manslaughter, and its objective standard application, contravened sec. 7 of the Charter. Held: The SCC dismissed his appeal. The Justices gave three groups of reasons. Minority: Justice Lamer, Sopinka, Iacobucci and Major were of this opinion: they did not feel that the objective test contravened sec. 7 of the Charter since the reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of their membership in a group with special experience or knowledge related to the conduct giving rise to the offence. In other words, once the Crown has established that this reasonable person in the context of the offence would have foreseen the risk of death created by their conduct, the focus of the investigation must shift to the question of whether a reasonable person in the position of the accused would have been capable of foreseeing such a risk. In doing so, the Crown must demonstrate a marked departure from the standard of a reasonable person ± it is in the determination of what is reasonable that the skill and expertise of the accused may be considered. The Justices then went on to create a two or three-fold test which the trier of fact must complete in applying the objective standard. It goes as follows: 1. Would a reasonable person in the same circumstances have been aware that the likely consequences of their unlawful conduct would create the offence charged? If yes, proceed to #2 2. Was the accused unaware (a) because they did not turn their mind to the consequences of the conduct and thus to the risk of the consequences? (b) because they lacked the capacity to turn their mind to the consequences of the conduct and thus to the risk of the result, due to human frailties? If the answer is (a), a conviction must follow. If it is (b), then the third part comes into play.

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3. In the context of the particular offence, would the reasonable person with the capacities of the accused have made themselves aware of the likely consequences of the unlawful conduct and the result risk? The enquiry of the accused¶s behaviour is still measured against the reasonable person, but the reasonable person is constructed to account for the accused¶s particular capacities and resulting inability to perceive and address certain risks. It is, however, only those human frailties which relate to the accused¶s capacity to appreciate the risk in question that may be considered in this inquiry. The Justices openly excluded intoxication through drugs or alcohol as an included human frailty. Additionally, only those frailties and characteristics which the accused could not control or otherwise manage in the circumstances will be included, because the reasonable person is expected to compensate for their frailties to the extent that they are conscious of them and able to do so. For example, a person with cataracts may be expected to avoid activity in which that limitation will either create a risk or render them unable to manage the risk which is inherent in that activity (ex. Driving). Majority: Justice McLachlin, L¶Heureux-Dube, Gonthier and Cory were of this opinion: they agreed with above Justices insofar as the constitutional validity of the objective standard test goes. They also agreed that the constitutionality of negligence is subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment. The negligence must constitute a marked departure from the standard of the reasonable person. The difference between the approaches turns on the extent to which personal characteristics of the accused may affect liability under the objective test. They agree with the above Justices position that the morally innocent should not be punished. Where they differ is in their designation of the sort of educational, experiential and habitual factors personal to the accused which can be taken into account. The only characteristic that the Justices were willing to take into account is the incapacity to appreciate the nature of the risk which the activity in question entails. ³Lack of education and psychological predispositions serve as no excuse for criminal conduct, although they may be important factors to consider in sentencing.´ Having said that, the Justices reiterated the position taken in Tutton, which is that a determination of guilt is not made in a factual vacuum. As Justice McIntyre stated in Tutton, the answer to the question of whether the accused took reasonable care must be founded on a consideration of all the circumstances of the case. Thus, while the legal duty of the accused is not particularized by their personal characteristics (short of incapacity); it is particularized in application by the nature of the activity and the circumstances surrounding the accused¶s failure to take the requisite care. This strict reasonable person standard was applied in: R v. Beatty [2008] SCC -assessing the AR and MR when the offence has an objective standard; degree of negligence Facts: The facts of this case are not important. The importance of this case stems from its guidance on how to properly assess both the AR and the MR of an offence to which the objective standard applies. Held: Justices Charron, Bastarache, Deschamps, Abella and Rothstein (the majority) were of this opinion: (1) Determining AR ± to determine the AR of the offence in issue one must refer to the wording of the relevant section in the legislation. For example, dangerous driving¶s AR is defined as
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³driving in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place´. Two observations can be made from the latter requirement. First, one can conclude that the section requires dangerous driving of some sort. While the objective test is said to be based on negligence, that should not distract from what the section in issue requires: dangerous driving. While dangerous driving may be said to always be negligent, not all negligent driving may be said to always be dangerous. Thus, one must play close attention to what is required by the legislation. Second, the section in issue focuses on the conduct not the consequences. In other words, the driving does not become more dangerous simply because the consequence resulted in a death. The driving must be dangerous in and of itself. (2) Determining MR ± the presence of objective MR is determined by assessing the dangerous conduct (or whatever the conduct in question is) as against the standard expected of a reasonably prudent driver (or person in the circumstances). If the dangerous conduct constitutes a marked departure from that norm, the offence will be made out. What constitutes a ³marked departure´ from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment through the criminal justice system, and not through civil proceedings. It may also be relevant in determining MR by considering any evidence of the accused¶s state-of-mind. While this may prima facie seem akin to the application of the subjective form of MR, it may be looked at as evidence of establishing that the accused¶s conduct constituted a marked departure from the standard expected of a reasonably prudent person. For example, where a driver, in a show of bravado, speeds or engages in any other dangerous driving technique and admits that his intention was to ³show off´, then his actual mental state may be used as evidence in establishing the requirement of ³marked departure´. It should be noted that that the modified objective test still applies. Therefore: (1) if the accused has suffered, say, an epileptic shock during driving, which they could not have mitigated, then they are not blameworthy and should be acquitted, and (2) if the accused had a reasonably held belief in an incorrect set of facts it may serve as a complete defense and they may be acquitted. (3) The marked departure standard is required under s. 7 of the Charter. The split verdict in Tutton has since seemingly been resolved by the court in F. (J.). In the course of that decision, Justice Fish for a majority of the court stated that, µµOn the count alleging criminal negligence, the Crown was bound to show that the respondent¶s omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in the circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk.´ As a result of the decision in F. (J.) Justice Fish has done more than decide that criminal negligence in sec. 222(5)(b) is based on objective fault, he has also drawn a distinction between a ³marked and substantial departure´ from the required level of care, as opposed to a mere ³marked departure´ from that standard required by the Charter, s. 7. Thus, there are now three degrees of objective fault requirements: 1. Due diligence with the onus reversed for regulatory offences. This is a standard of simple negligence like that long applied for the tort of negligence.
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2. A marked departure from the objective norm as a Charter standard for crimes with objective fault requirements (gross negligence) 3. A marked and substantial departure from the objective norm for offences based on criminal negligence (worse than gross negligence). R v. DeSousa [1992] SCC²Crimes based on Predicate offences Facts: The appellant was charged, acquitted and reconvicted from an incident which occurred at a New Year¶s Eve party, in which the appellant is alleged to have thrown a bottle which subsequently broke and its remaining fragments struck a bystander. Offence: He was charged under sec. 269 of the CC which states: Unlawfully causing bodily harm ± everyone who unlawfully causes bodily harm to any person is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months Issue: Therefore, to be brought within the ambit of sec. 269, an accused must have committed an underlying (predicate) offence and have caused bodily harm to another person as a result of committing that offence. The predicate offence need not be criminal in nature, and applies equally to both federal and provincial offences. Held: The SCC stated that while not all predicate offences will have a possibility of imprisonment and despite the fact that sec. 269 has a fault requirement in addition to that supplied by the predicate offence (to be discussed below), as a matter of statutory interpretation predicate offences of absolute liability are excluded from forming the basis for a prosecution under sec. 269. In assessing the required MR for the predicate offence, the SCC noted that word ³unlawful´ required some further analysis. They stated that the unlawful act, whether it be criminal or not, must be objectively dangerous. Thus, the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful, and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature. In responding to arguments in favour of a subjective MR standard on the basis that the stigma and penalty attached to the conviction require it, the SCC concluded that sec. 269 has neither the stigma nor the criminal sanction to require a more demanding mental element that it already has ± that of the objective standard. Since the mental element of sec. 269 required two separate aspects ± the first aspect being the mental element of the predicate offence, and the second being proof on an objective basis that the harm caused was objectively foreseeable ± then this passes the constitutional requirement that fault be assessed on at least an objective basis.

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8. REGULATORY OFFENCES Regulatory offences can be created by any level of government. Regulatory offences can be full mens rea offences just as true crimes are, but a clear indication that mens rea is required is needed before regulatory offences will be interpreted as having mens rea elements. They are presumed to be ³strict liability´ offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction). Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant actus reus is proved, provided this is clearly what the legislators intended when establishing the offence. Given the different modes of interpretation used, it is important to be able to distinguish true crimes from regulatory offences. - R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 - R. v. Chapin, [1979] 2 S.C.R. 121 - Reference re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486 - R. v. Cancoil Thermal (1986), 52 C.R. (3d) 188 (Ont. C.A.). - R. v. Raham (2010), 253 C.C.C. (34.) 188 (Ont. C.A.); (2010) O.J. No. 1091 - Levis (City) v. Tetreault, [2006] S.C.J. No. 12 ______________________________________________________________________________ Regulatory offences can be created by any level of government. Regulatory offences can be full MR offences just as true crimes are, but a clear indication that MR is required is needed before regulatory offences will be interpreted as having MR elements.. They are presumed to be ³strict liability´ offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction). Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant AR is proved, provided this is clearly what the legislators intended when establishing the offence. Given the different modes of interpretation used, it is important to be able to distinguish true crimes from regulatory offences. R v. Sault Ste. Marie [1978] SCC -Sets out the three different types of offences: 1. Offences requiring MR ± true criminal offences 2. Strict liability offences ± due diligence defense applies 3. Absolute liability offences ± as so clearly defined by the legislature ± where guilt would follow proof merely of the proscribed act. Pre-Charter (thus weary of Parliamentary Sovereignty) Three categories of offences: (1) True crimes (MR & AR) (2) Strict Liability Offences (AR and defence of due diligence on BOP- what reasonable person would have done in circumstances) (3) Absolute Liability Offences (AR only).

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Facts: Public welfare offence regarding pollution. City of Sault Ste. Marie hires a company to dispose of waste. Company does a bad job of doing so and as a result some of the waste comes to lie in a body of water, contrary to a public welfare act. Court is considering whether the city, which had no knowledge of the inadequate performance of the company, is also liable. Strict Liability category is created to provide a balance between the harshness of absolute liability offences (harsh potential sentences) and the burden on the Crown of proving wrongful intention for regulatory offences, which is almost impossible. Held: New trial ordered A: -Pre-Charter permits only statutory interpretation; no authority to review the way Parliament defined the offence, hence Dickson J. must defer to the rationale of case law in Aus, Eng, and Ont, as well as the legislatures of other provinces to support his reasoning** True crimes have a presumption that a person should not be held liable for intentional or reckless conduct without proof of requisite MR (negligent conduct is excluded). Absolute liability offences require only proof that a person committed the AR of the offence. There is no need to prove MR. - Dickson creates a new category of offences which lies in the middle within the spectrum of absolute liability offences and true crimes- strict liability offences. Regulatory offences are to be interpreted as requiring strict liability unless the legislature clearly indicates that the offence is an absolute liability offence that would punish the accused who had acted reasonably and with due diligenc. Three categories of offences 1. True Crimes: Offences in which MR, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
o o

Criminal offences fall into this category Wilfully, with intent, knowingly, intentionally

2. Strict Liability Offences: Offences in which there is no necessity for the Crown to prove the existence of MR; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. y y y y Prosecution must prove AR beyond a reasonable doubt; defendant must establish on BOP the defence of reasonable care This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. Public Welfare offences fall into this category

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3) Absolute Liability Offences: It is not open to the accused to exculpate himself by showing that he was free of fault. Primary considerations in determining whether the offence falls into this category: y y y The overall regulatory pattern adopted by the Legislature the subject matter of the legislation o the importance of the penalty and the precision of the language used

So look at the statute first to see if it expressly provides for absolute liability ±> For strict liability offences-->Must first determine if it¶s a public welfare offence y For this case, it was determined to be public welfare because it was enacted in the interest of public health

Also, it was provincial legislation and thus could not be a true crime. The words ³knowingly´ or ³wilfully´ were not included. - One¶s liability under this offence seems to come down to their ability to control. The city could control who it hired to carry out the garbage disposal operations, and it could supervise that activity. Therefore, they had much control over the operation. New trial ordered. Notes: This is a pre-Charter MR case. This case reflects the assumption of Parliamentary Supremacy: the legislature has the authority to define the MR required, limiting the role of the judiciary to questions of statutory interpretation. During the pre-Charter era, the court did not have the authority to review the way Parliament defined the offence. That changed after the advent of the Charter. The Motor Vehicle Reference found the legislature¶s definition of MR (or lack thereof) unconstitutional because it wanted a minimal level of moral blameworthiness to be proven before we deprive a person of their right to liberty by sending them to prison. y Dickson goes through Australian, English, and Ontario cases to support his assertion of strict liability because this is pre-Charter and there is strong Parliamentary Supremacy. He tries to ground his reasoning in the rationale of Parliament, or at least make the two seem congruent. - Note that the case does not discuss the degrees of fault required in cases of ³true crimes.´ Also note that the Court had to defer to rationale of other Parliaments in order to create this new category.

Couldn¶t simply create a new threshold because there was no Constitution to ground their reasoning in. - The law did not give the city a duty to act, but once they did act they were subject to certain duties (i.e. do not pollute) - Public Welfare offences can be either strict liability or absolute liability - Probably not important, but:

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What is the rationale for having absolute offences? 1. Administrative efficiency - easier for the Crown to prove the offence o To not do so would over burden the Crown and leave them unable to prosecute and thereby enforce the law at all 2. We want the people performing public welfare services to use the highest level of care and if we have absolute liability offences then that will serve as a deterrent for them to not defer from the highest level of care 3. The penalties are slight. They are not severe, and they do not carry the same stigma as a "true crime" offence Dickson J. then goes about refuting the above four arguments: o There is no evidence that a higher standard of care from absolute liability. o These people still have to go into court and defend themselves. The penalties are no longer non-severe. If they are convicted there is still much stigma because of such a conviction o There are many other jurisdictions in Canada where non-absolute offences have been allowed but it has not brought Crown prosecutions to a screeching halt. For the Manitoba and Alberta Traffic Acts, respectively, these acts provide an opportunity for the judge to consider whether the reasonable person would have avoided the prohibited conduct, and if not then the accused is not convicted. R v. Chapin [1979] SCC Facts: Chapin went duck-hunting, on property belonging to the Balmoral Hunt Club of which her husband was part-owner. She was accompanied by a friend. They were talking a lot as they walked through the marsh. They walked along a dyke road and then along some ³duck-boards´, five or six inches in width, placed over the water and leading to the blind from which the respondent intended to shoot. Some time, and two ducks, later, Mrs. Chapin was arrested by a conservation officer. The officer had been in the area, had heard shots and had investigated. On his way through the marsh, he came upon ³a small pile of soy beans, weed seeds and wheat´, in the middle of the dyke road and at the edge of the pond, some fifty yards from the respondent¶s blind. It was generally accepted that Mrs. Chapin did not know the grain was there until it had been pointed out to her. Offence: Section 14(1) of the Migratory Birds Regulations makes it unlawful to hunt for migratory birds within one-quarter mile of a place where bait has been laid. Held: The appeal should be dismissed. The offence created by s. 14(1) of the Regulations cannot be characterized as a ³crime in the true sense´. The Migratory Birds Convention Act is a regulatory statute enacted for the general welfare of the Canadian public and its wildlife. Section 14(1) creates a ³public welfare offence´ and it is not subject to the presumption of full MR. Following the Sault Ste. Marie case, public welfare offences would prima facie fall in the category of strict liability. Hunting of migratory birds is not prohibited, but controlled. While the offence is summary conviction in nature, serious consequences follow from conviction, including loss of hunting privileges, forfeiture of guns and equipment and fines and potential imprisonment. The public interest, as expressed in the Convention, does not require that s. 14 of the Regulations be interpreted so that an innocent person should be convicted without fault. Hunting being a permitted sport, it would be a practical impossibility for a hunter to search a
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circular area having a diameter of half a mile for the presence of illegally deposited bait, before hunting. This view of subs. (1) of s. 14 is reinforced by a consideration of subs. (4), which provides for legal baiting and posting of notices of legal baiting. Parliament could not have intended to afford a person hunting within a quarter mile of an illegally baited area any less protection than that afforded in relation to a legally baited area. The offence is therefore not one of absolute liability. -The offence created by s. 14(1) is one of strict liability, a classic example of the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent. On all of the evidence, it would have been unreasonable to convict the respondent and therefore a new trial ought not be directed. Reference re Section 94(2) of the Motor Vehicle Act (B.C.) [1985] SCC -Post Charter- Can actually strike down legislation.-An absolute liability offence, an offence that does not require proof of MR, which has the possible punishment of imprisonment, is in violation of s. 7 of the Charter. It violates one¶s right to liberty (imprisonment) in a manner not in accordance with the principles of fundamental justice (no MR/fault requirement)² and is not saved by s. 1 of the Charter (given the alternative of strict liability) -Summary: an absolute liability offence and possibility of imprisonment is unconstitutional because of absence of a MR requirement. Facts: S. 94 of the Motor Vehicle Act could convict a person and send them to prison even if they did not know that they were diving under a suspended license. Held: s. 94 of the Motor Vehicle Act of BC. s. 7 of the Charter Decision: s. 94 in violation of s. 7 and is not saved by s.1 of the Charter. Analysis: A law that has imprisonment available as a penalty has the potential to violate a person¶s right to liberty in a manner not in accordance with the principles of fundamental justice contrary s. 7 of the Charter. - (An absolute liability offence will violate s. 7 of the Charter only if and to the extent that I has the potential of depriving life, liberty, or security of the person) - s. 94. found to be in violation of one¶s right to liberty (imprisonment), not in a manner in accordance with the principles of fundamental justice (no MR), and not saved by s. 1. Notes: - Post-Charter case--> Compare with Sault Ste. Marie--> note how s. 7 allows the Court to strike legislation down for want of a MR requirement. - After the Charter, as shown in this case, Parliaments definition of offences must be in compliance with the principles of fundamental justice under s. 7 of the Charter. - As noted in Vaillancourt, this case elevated MR from a presumed element in Sault Ste Marie to a constitutionally required element. - This case did not decide what level MR was constitutionally required for each type of offence, but inferentially decided that at least negligence was required, in that at least a

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defence of due diligence must always be open to an accused who risks imprisonment upon conviction. - The court is only protecting the one¶s right to liberty, not security of the person (hence, you can get a fine under an absolute liability offence). Dickson said that he was leaving the security of the person issue to another day. - Can't send someone to jail without having a fault requirement (ratio for Motor Vehicle Reference). What is the standard for fault requirement: Prof says its not explicitly stated but it would probably follow from Sault Ste. Marie, "reasonable care"--> hence you have to at least let them show due diligence before you send them to prison (violate their s. 7 right to liberty). - We see the symmetry principle here. MR requirement corresponding with the AR requirement. - The principles of fundamental justice are to be found in the basic tenants of our legal system ss. 8-14 provide examples of instances where the right to life, liberty and security of the person would be violated in a manner not in accordance with the principles of fundamental justice. The principle of fundamental justice that we are dealing with is that ³the morally innocent should not be punished.´ -Note how s. 94 was clearly expressed as an absolute liability offence. - In R. v. Pontes, the SCC upheld a section of the Motor Vehicle Act that created an absolute liability offence resulting in the punishment of a fine (security of the person). This was criticized by many, including Presser, noting that this meant that the accused could be convicted of a ³true crime´ without fault as long as there was no possibility of imprisonment. She notes that the fine is still extremely intrusive and should not be pressed upon a person without a finding of fault. Note, however, that the SCC in Levis (City) v. Tetreault returned to the clear analytical framework of adopted in Sault Ste. Marie. - We can't balance not punishing the morally innocent and practicality perfectly¢allowing fines for absolute liability offences is an example of this. It's a response to the practicality of having a purely principled approach. - Court said in the very early days of the inception of s. 7 that a violation of s. 7 generally cannot be saved by s. 1. In very extreme circumstances it can be saved by s.1 analysis (therefore, we don't do s. 1 analysis in this case)--> but they did do it in this case. R v. Cancoil Thermal [1986] ONCA: offences of absolute liability that are punishable by imprisonment violate sec. 7 of the Charter. In order not to violate it, they must be treated as strict liability, and offer the defence of due diligence. Recognized a defense of officially induced error for criminal and regulatory offenses. ³Where the error in law of the accused arises out of an error of an authorized representative of the state´ while at the same time the state prosecutes the accused. Must establish the offense on a balance of probabilities and results in a stay of proceedings. Applies where the accused considers the legal consequences of their actions, obtained erroneous legal advice from an appropriate official, and relied on that advice of the official in committing the act. The advice and the reliance on it must be reasonable, as ³it is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information´. In the circumstances in the case, the defense did not apply as the accused relied only on ³administrative practice´ that they would receive a renewal notice when their licenses
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expired and they did not obtain a specific legal opinion about the consequences of their actions or rely on that opinion. Moreover, the common law can deeply influence the way that statutory criminal offences are interpreted. See CC section 8 8(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament R v. Rahman [2010] ONCA The respondent was clocked at 131 km per hour in an 80 km per hour zone. The police officer charged her with an offence under s. 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. That offence, commonly referred to as stunt driving or racing is punishable by a fine, a term of imprisonment or both. The officer could have charged the respondent with speeding. Instead, based on the single radar reading of 131 km per hour, which was 51 km per hour over the speed limit, the officer elected to charge the respondent with stunt driving. Had the respondent been clocked at 2 km per hour less, as she was seconds before, the charge would not have been available. The respondent argued at trial that the offence with which she was charged was an absolute liability offence and that, as imprisonment was a possible punishment; the section violated her constitutional rights under s. 7 of the Charter. At trial, the Justice of the Peace interpreted the offence as one of strict liability, rejected the constitutional argument and convicted the respondent. On appeal, Justice G.J. Griffin of the Ontario Court of Justice held that the offence charged was an absolute liability offence. He went on to hold that, as the offence was punishable by imprisonment, it was contrary to s. 7 of the Charter and unconstitutional. He acquitted the respondent. This court granted leave to appeal to determine the constitutionality of the charge laid in this case. The respondent did not take part in the appeal. However, her position was fully and effectively advanced by Mr. Burstein, who appeared as amicus. The court is indebted to Mr. Burstein for his submissions. Held: The appeal judge erred in holding that stunting driving as defined in s. 3(7) was an absolute liability offence. His acquittal based on that finding must be set aside. Although the trial judge proceeded on the basis that the offence was one of strict liability, given the uncertainty at the time of the trial as to the availability of a due diligence defence and the contours of that defence if available, fairness dictates that the respondent should have a new trial at which she will have the opportunity to advance a due diligence defence if so advised. I would allow the appeal, set aside the acquittal and order a new trial. Reasons: First the ONCA held that, compared with the French version, s. 172 as creating three offences: ‡ Driving a motor vehicle on a highway in a race or contest; ‡ Driving a motor vehicle on a highway while performing a stunt; and ‡ Driving a motor vehicle on a highway on a bet or wager. The conduct component (actus reus) of the offence under s. 172 as charged against the respondent under s. 3(7) of the Regulation consists of driving a motor vehicle on a highway at 50 km per hour or more over the speed limit. This same conduct also constitutes the offence of speeding contrary to s. 128 of the Highway Traffic Act, which is an absolute liability offence. The proper categorization of speed-based offences as absolute, strict, or full mens rea offences will depend on the outcome of the Sault Ste. Marie analysis
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The Highway Traffic Act is public welfare legislation designed to protect those who use the roads of the province. The Act, and in particular Part X, ³Rules of the Road´, creates a wide variety of offences, including the offence in s. 172. Those offences, taken together, are designed to regulate and control conduct on the roads. The offences are properly regarded as public welfare offences: see R. v. Kanda 2008 ONCA 22 (CanLII), (2008), 88 O.R. (3d) 732 (C.A.); R. v. Kurtzman (1991), 4 O.R. (3d) 417 (C.A.). On the authority of Sault Ste. Marie, these offences, including s. 172, are prima facie strict liability offences. The analytical template described in Sault Ste. Marie sets out four ³primary considerations´ to be used when determining the proper categorization of an offence: ‡ the overall regulatory pattern of which the offence is a part; ‡ the subject matter of the legislation; ‡ the importance of the penalty; and ‡ the precision of the language used. The overall regulatory pattern of the Highway Traffic Act did not assist in classifying the offence as either strict or absolute liability: see Kanda, at paras. 20-26. The subject matter of the offence ± speeding ± suggested a classification as an absolute liability offence. Re significance of the penalty provision that provided for potential incarceration: Trial judge held that the risk of incarceration supported a classification of the offence as one of strict liability. I agree that within the Sault Ste. Marie analysis, the availability of incarceration suggests strict liability. However, in the post-Charter era, the potential for incarceration is much more than simply one of the factors to be considered in categorizing an offence. An absolute liability offence that provides for incarceration as a potential penalty is unconstitutional and of no force and effect, subject to an argument based on s. 1 of the Charter. Courts, when interpreting legislation, will presume that the Legislature acted within the limits of its constitutional powers and not in violation of the Charter: R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 29; R. v. Rube, [1992] 3 S.C.R. 159, at p. 160; R. v. Nickel City Transport (Sudbury) Ltd., (1993), 14 O.R. (3d) 115 (C.A.), at p. 138, Arbour J.A. This presumption does not entitle a court to rewrite legislation to avoid a finding of unconstitutionality. It does dictate, however, that if legislation can be reasonably interpreted in a manner that preserves its constitutionality that interpretation must be preferred over one which would render the legislation unconstitutional. Because of the presumption of constitutionality, it will take very clear language to create an absolute liability offence that is potentially punishable by incarceration. In this case, the presumption in favor of a constitutional interpretation means that if the offence charged against the respondent can reasonably be interpreted as a strict liability offence, it must be so interpreted even if it could also reasonably be interpreted as an absolute liability offence. The fourth and final Sault Ste. Marie factor ± the precision of the language used. The language does not clearly point to a categorization of the offence as either strict or absolute liability. Some parts of the Regulation used words suggesting an absolute liability classification and others used language inconsistent with such a classification. The language used throughout the Regulation did not point clearly in the direction of either absolute or strict liability. Thus this factor can be described as ³neutral´ in the Sault Ste. Marie analysis. In my view the Sault Ste. Marie analysis does not preclude a consideration of whether the language used to create the offence can reasonably admit of a due diligence defence. I think that
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this consideration is simply one way of examining ³the precision of the language used´, one of the four factors identified in Sault Ste. Marie. Language that expressly, or by clear implication, excludes the operation of the due diligence defence will necessarily compel the conclusion that the offence is one of absolute liability: see Kanda, at para. 40. Consequently, while I agree with Crown counsel that the appeal judge should not have treated the potential availability of a due diligence defence as a freestanding method of categorizing the offence in question, I think the appeal judge was right to examine the potential availability of a due diligence defence as part of a consideration of the language used to create the offence. Viewed in this way, that examination is part and parcel of the Sault Ste. Marie analysis. I do, however, disagree with the appeal judge¶s finding that stunt driving as defined in s. 3(7) of the Regulation could not possibly admit of a due diligence defence. The appeal judge reached this conclusion because he believed that an accused could avail him- or herself of a due diligence defence only if the accused believed he or she was not travelling over the speed limit at all. With respect to the careful reasons of the appeal judge, I agree with the Crown (both at trial and in this court) that the due diligence defence is not limited to persons who believed they were not speeding. A due diligence defence to a strict liability charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence with which he or she is charged. Where the accused contends that he or she operated under a reasonable misapprehension of the relevant facts, the due diligence defence takes the form of a reasonable mistake of fact claim. As explained in Sault Ste. Marie, at p. 1326: [T]he doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The due diligence defence relates to the doing of the prohibited act with which the defendant is charged and not to the defendant¶s conduct in a larger sense. The defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense: see John Swaigen, Regulatory Offences in Canada: Liability & Defences (Toronto: Carswell, 1992), at pp. 98-100. The point is well made in Kurtzman, at para. 37: ³The due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably´ (emphasis in original). Just as a due diligence defence is not made out by acting generally in a reasonable way, it is not necessarily lost by virtue of actions surrounding the prohibited act, legal or illegal, unless those actions establish that the defendant, in committing the prohibited act, failed to take all reasonable care. I do not think that it can be said that driving over the speed limit, regardless of how much over the speed limit, will necessarily preclude a finding that an individual took all reasonable steps to avoid driving at 50 km per hour or more over the reasonable limit. For example, a driver, acting reasonably, may be proceeding somewhat over the speed limit in the passing lane of a multi-lane highway. That driver may find that he has no reasonable choice but to accelerate in order to avoid being hit by a vehicle that is approaching from behind. If that driver were to go more than 50 km per hour over the speed limit for the two or three seconds needed to get around traffic so
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that he could pull out of the passing lane and out of the way of the oncoming vehicle, I think a Trier of fact could conclude that the driver was exercising all reasonable care to avoid driving at 50 km per hour or more over the speed limit. Similarly, a driver who testified that he or she relied on a speedometer, which indicated a rate of speed well below 50 km per hour over the speed limit, might succeed on a due diligence defence if there was evidence that the speedometer, unknown to the driver, was malfunctioning. In outlining the above scenarios, I do not suggest that the due diligence defence is limited to those or similar scenarios. I also do not imply that the due diligence defence will be readily available to this charge. As MacPherson J.A. observed in Kanda, at para. 31, the use of strict liability is ³a serious commitment to the enforcement of the law´. I would add that even where a due diligence defence is available to a charge of stunt driving contrary to s. 3(7) of the Regulation, a conviction for speeding will often be imposed. Section 55 of the Provincial Offences Act, R.S.O. 1990, c. P33, would permit, in most situations, a conviction on the lesser but included offence of speeding contrary to s. 128 of the Highway Traffic Act: see R. v. Benson, 2009 ONCJ 566, at paras. 29-34. In summary, I would interpret the offence of stunt driving by speeding as defined in s. 3(7) of the Regulation as creating a strict liability offence. It is true that the prohibited conduct is identical to the conduct prohibited by the offence of speeding created by s. 128. I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence. The stunt driving provision provides for the potential of incarceration, the speeding provision does not. This distinction is constitutionally significant. The Legislature cannot, absent reliance on s. 1 of the Charter, imprison without fault. Strict liability sets the lowest standard of fault available. The Legislature has chosen, through s. 172, to up the penal stakes for speeding at 50 km per hour or more over the speed limit by including the risk of incarceration. In doing so, the Legislature must be taken, in the absence of clear language excluding the defence, to have accepted the availability of the due diligence defence. Neither the language of s. 172 nor that of s. 3(7) of the Regulation has that effect. I close these reasons with an observation. This appeal has necessarily focused on the availability of a due diligence defence and the possibility of incarceration. Neither is likely to play any role in the vast majority of prosecutions under s. 172 of the Highway Traffic Act. The real difference between being charged with speeding and being charged with stunt driving by going 50 km per hour or more over the speed limit lies in the other sanctions that flow from being charged with or convicted of the latter. These include a $2,000 minimum fine, an immediate administrative license suspension and an immediate seizure of the driver¶s vehicle. No one has argued on this appeal that the Legislature could not simply have imposed those added sanctions by amending the penalty provisions referable to speeding under s. 128 of the Highway Traffic Act.

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Levis (City) v. Tetreault [2006] SCC Facts: The respondent company, which is charged with operating a motor vehicle for which the fees relating to its registration had not been paid, raised the defences of due diligence and officially induced error, alleging that a representative of the Société de l'assurance automobile du Québec ("SAAQ") had had it pay registration fees corresponding to a 15-month period and had told it that a renewal notice would be sent to it before the period expired. Because of an error, the SAAQ sent the notice to the company with an incomplete address and the postal service returned it to the sender. As for the respondent T, who is charged with driving a motor vehicle without a valid driver's licence, he raised the defence of due diligence, stating that he was unaware that the date appearing on his licence was the date the licence expired rather than a payment due date. The Municipal Court of the city of Lévis found that ss. 31.1 (registration) and 93.1 (driver's licence) of the Highway Safety Code create strict liability offences and, accepting their due diligence defence, acquitted the company and T. The Superior Court upheld the acquittals, and the Court of Appeal dismissed the city's applications for leave to appeal. Held: The appeals should be allowed. Reasons: The alleged offences belong to the category of strict liability offences. Section 93.1 does not place the burden of proving mens rea on the prosecution and includes no expression of the legislature's intent to create an absolute liability offence. Nor can such an intent be inferred from the scheme of this provision, which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring drivers' licences without it being necessary to deprive an accused of a due diligence defence. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. Nor does s. 31.1, as it is worded, create an absolute liability offence. Absent a clear indication of the legislature's intent, the offence must be categorized as one of strict liability. The same factors apply as in the case of the obligation to have a valid driver's licence when operating a motor vehicle, and they justify the availability of a due diligence defence. The due diligence defence raised by the company and by T has not been made out. The concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. In his case, T did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The same is true of the company, which did nothing even though it was aware of the date when the fees relating to the registration of its vehicle would be due. As for the defence of officially induced error, although it is available in Canadian criminal law, the company has not established that the conditions under which it is available have been met. The issues the company raised with the SAAQ's representative related at most to administrative practices, not to the legal obligation to pay the fees by the prescribed date. Two fundamental conditions that must be met for this defence to be available were therefore missing: the company could not have considered the legal consequences of its conduct on the basis of advice from the official in question, nor could it have acted in reliance on that opinion, since no information regarding the nature and effects of the relevant legal obligations had been requested or obtained.

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EXTENSIONS OF CRIMINAL LIABILITY
9. AIDING AND ABETTING It is not only the person who actually performs the actus reus (the ³principal´ offender) who can be convicted of the offence. So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. Indeed, persons who aid and abet one offence can, in some circumstances, be convicted of offences they did not intend to aid or abet, provided that offence is a foreseeable outcome of the offence they did intend to aid or abet. See CC s. 21 R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881 R. v. Logan, [1990] 2 S.C.R. 731 R. v. Briscoe 2010 SCC 13 (reviewed above)

It is not only the person who actually performs the AR (the ³principal´ offender) who can be convicted of the offence. So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. Indeed, persons who aid and abet one offence can, in some circumstances, be convicted of offences they did not intend to aid or abet, provided that offence is a foreseeable outcome of the offence they did intend to aid or abet. A person who either aids or abets an offence is a party to that offence and guilty of the same offence as the person who actually commits the offence, often known as the principal. It is not necessary for the Crown to specify whether a person is guilty as the principal offender or as an aider or abettor of the offence. Section 21. CC²Parties to an Offence 21. (1) Every one is a party to an offence who: (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Common intention (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

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R v. Dunlop and Sylvester [1979] SCC Facts: The appellants were twice tried and convicted on a charge of rape. It was alleged that they unlawfully had sexual intercourse with the complainant without her consent. They were sentenced to serve six years in penitentiary. In an appeal taken following the second trial, the Manitoba CA found error on the part of the trial judge, but by a three to two majority sustained the conviction by applying s. 613(1)(b)(iii) of the Code. From that judgment an appeal was taken to this Court. A gang rape of the complainant occurred late at night in an isolated area, the site of a former dump, where members of a motorcycle club were having a party. Some eighteen men had intercourse with the complainant while she was being held by two members of the group. She identified the accused as two of the men who attacked her. The accused denied the charge. They testified that they had attended a meeting of the club at the dump earlier in the evening in question, and later were present in a beverage room where the complainant and a friend were spending some time. Still later, the accused delivered a quantity of beer at the dump. Dunlop saw a female having intercourse; with whom, he could not say, but he believed the person to be a member of the motorcycle club. After three minutes he and his co-accused left. Issue: The issue for the jury was a simple one²did the two accused have intercourse with the complainant? She said that they had, and they denied it. The judge chose, however, to instruct the jury upon parties to an offence under s. 21 of the Code, and it was in this respect that the convictions were challenged. Held: On appeal to the Manitoba Court of Appeal, the court found an error in the trial judge¶s charge to the jury when he instructed them on the meaning of sec. 21(1)(b) of the CC. The trail judges read the following charge in response to a question by the jury: ³Intentionally omitting to do something for the purpose of aiding another to commit an offence, that if it had been done, would have prevented or hindered the person from committing an offence amounts to aiding and abetting´ However, the CA applied sec. 613(1)(b)(iii), that the verdict would have been the same even in the absence of the error by the trial judge The majority of the SCC disagreed. Their definition of what amounted to aiding or abetting is summarized in the following way: ³« Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principle offender¶s intention to commit the offence or attendance for the purpose of encouragement« A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned´ That is a person is not guilty of aiding or abetting a rape merely because he is present at the scene of the crime and does nothing to prevent it. As such, the SCC found no evidence on which a properly instructed jury could have found beyond a reasonable doubt that the appellants were guilty of aiding or abetting the rape. Thus, the Court did not agree with the CA for Manitoba that the error by the trial judge could be saved under sec. 613(1)(b)(iii).

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R v. Logan [1990] SCC When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder. Any conviction for attempted murder, whether of the principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional requirement. To the extent that s. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foreseeability, its operation restricts s. 7 of the Charter . Note that this case is of limited application: Because of the importance of the legislative purpose, the objective component of s. 21(2) can be justified with respect to most offences. However, with respect to the few offences for which the Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs the legislative objective which, therefore, cannot be justified under s. 1. The words "or ought to have known" are inoperative when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder. Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose. Facts: Respondents were convicted of attempted murder. During a robbery -- one of a series -- a person was shot and severely injured. Neither respondent did the shooting. Respondent Johnson, however, admitted to being one of the robbers but stated that he had no intention to shoot and that there had been no discussion concerning the use of guns. Respondent Logan had boasted of being involved in planning the robberies. The trial judge instructed the jury that the Crown had to establish beyond a reasonable doubt that the accused knew or ought to have known that someone would probably shoot with the intention of killing. Earlier Appeal: The CA allowed appeals with respect to the convictions for attempted murder and substituted convictions for robbery. At issue here was (1) whether s. 21(2) of the CC infringed ss. 7 and/or 11(d) of the Charter, and (2), if so, whether it was justified under s. 1. The appellant was convicted of attempted murder during the course of a robbery in which he was a party, but did not fire the weapon, which seriously wounded the victim. He was convicted under sec. 21(2) of the CC, which imposes criminal liability on joint-venturers who form a common unlawful purpose (in this case, the robbery) and later a collateral crime results from one or more of their actions. The test imposes an objective standard of foreseeability on the joint-venturer (the non-principal). Issue: The appellant sought the leave of the SCC for his conviction of attempted murder on the basis that the requisite degree of MR required for the principle for a charge of attempted murder was higher than that required for a party to the offence. Held: SCC started off by saying that they cannot completely exclude the possibility that for certain crimes Parliament could not set different degree requirements of MR for the principle and the party. However, in the decision of Vaillancourt the SCC held that for few offences the principles of fundamental justice require that a conviction cannot stand unless there is proof beyond a reasonable doubt of a minimum degree of MR. In other words, that decision established that for crimes of murder, a subjective assessment of intent is required. Therefore, they instituted a two-step test to assess whether a party to the offence had the requisite MR to found a conviction pursuant to sec. 21(2).
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i. ii.

Is there a minimum degree of MR required by the principles of fundamental justice before one can be convicted as a principal for the offence in question? If the principles of fundamental justice do require a minimum degree of MR, then that minimum degree is constitutionally required to convict a party to that offence.

The requisite MR required for a conviction of attempted murder was established in the case of Ancio ± that of specific intent to kill. However, that case did not deal with Charter arguments relating to sec. 7. In R v. Martineau, Charter considerations were at the fore of that case, where it was held that subjective foresight of death was the minimum MR requirement for murder ± not attempted murder. In reconciling the two decisions relating to two different charges, the SCC, in this case, held that the only difference between a murderer and an attempted murderer is ³consequence´ component of the AR. Both are equally morally blameworthy. However, the underlying penal consequences for the two offences are dissimilar ± attempted murder having a lower minimum sentence than that of murder. In responding to the perceived disparity, the SCC held that as a basis for a constitutionally required minimum degree of MR, the social stigma associated with a conviction is the most important consideration, not the sentence. In other words, the sentencing range available to the Judge is not conclusive of the level of MR constitutionally required. As such, SCC concluded that the inclusion of the objective standard test for parties to an offence of attempted murder would violate sec. 7 of the Charter since it imposes an objective standard on the party and a subjective standard on the principal, while both are equally morally blameworthy. On an attempt to save the section as it applies to attempted murder via sec. 1 of the Charter, the SCC held that it does not satisfy the proportionality test in Oakes because it unduly impairs an accused¶s rights under sec. 7. R v. Briscoe [2010] SCC Facts: See above, Re: 13-yr old girl brought to golf course, raped and murdered. The Crown submitted that Mr. Briscoe¶s actions, carried out with knowledge of Mr. Laboucan¶s plan, made him a party to the offences. His participation included driving the group to and from the crime scene, choosing a secluded location, providing and transporting weapons, and taking ³an active role´ by holding Ms. Courtepatte and telling her to shut up, and threatening Ms. K.B. The Crown argued that Mr. Briscoe had actual knowledge of or was wilfully blind to the plan. The Crown also submitted that, even apart from Mr. Briscoe¶s acts of assistance, his presence coupled with his knowledge of the plan made him an abettor. His presence could lend courage to the attackers, discourage rescue, and give Ms. Courtepatte ³one more reason to feel helpless and lost and futile´. Trial judge accepted this theory. The AR of the Act was proven by driving, giving him a wretch, telling victim to be quite and standing by. Issue: The trial judge then examined whether Mr. Briscoe had the requisite MR for any of the offences. Did he intend to assist Mr. Laboucan in the commission of the crimes? In order to have such intention, he would have to have known of Mr. Laboucan¶s intention to commit each of the crimes. The crucial question then became whether he had such knowledge. The trial judge concluded that Mr. Briscoe did not have the requisite knowledge. Although Mr. Briscoe did not testify at trial, the Crown introduced statements he had made to the police following his
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arrest. The trial judge ruled the statements voluntary and relied heavily on their contents in concluding that Mr. Briscoe lacked the requisite knowledge. Trial judge concluded that he did not know for sure the intent, therefore MR for muder not made. Crown appeals. Held: The AR of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, ³[t]o aid under s. 21(1)(b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed´: R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. The AR is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge¶s finding that Mr. Briscoe performed the four acts of assistance described above is not disputed. The aider or abettor must also have the requisite mental state or MR. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime. -the MR requirement reflected in the word ³purpose´ under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that ³purpose´ in s. 21(1)(b) should be understood as essentially synonymous with ³intention´. The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that ³purpose´ should not be interpreted as incorporating the notion of ³desire´ into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. -New trial ordered.

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10. COUNSELLING (p. 132-136) An accused can be convicted of counseling offences, whether or not the offences counseled are actually committed. If the offences counseled are committed, CC. s. 22 operates. If they are not committed, CC. s. 464 operates. - R. v. Hamilton, [2005] 2 S.C.R. 43 ______________________________________________________________________________ An accused can be convicted of counseling offences, whether or not the offences counseled are actually committed. If the offences counseled are committed, CC. s. 23 operates. If they are not committed, CC. s. 464 operates. R v. Hamilton [2005] SCC -illustrates AR/MR for counseling Facts: The accused sent ³teaser´ emails on the Internet to more than 300 people, marketing the sale of ³Top Secret´ files he himself had purchased off a website. The teaser advertised software that would enable the purchaser to generate ³valid´ credit card numbers. The accused made at least 20 sales and the files that were sold, although not the teaser, also included instructions on how to make bombs and how to break into a house. A document describing a credit card number generator that was not part of the files was discovered on the accused¶s computer. As well, a handwritten list of Visa numbers was seized in his possession. No complaints were received by the bank regarding their improper use. The trial judge accepted the accused¶s evidence in this regard and also accepted his evidence that he had not used the credit card numbers he had generated. She acquitted the accused, concluding that the AR of the offence had been proven in respect of each of the counts but not the MR. The CA upheld the acquittal. The Crown appealed to this Court on the issue of MR. Offence: The accused was charged under s. 464 of the CC with counselling four indictable offences that were not committed, including fraud. The accused testified that he had seen a computer generated list of the contents of the files but that he had not read the files. Held: The concern in this case is with the imposition of criminal liability on those who counsel others to commit crimes The AR for counseling is the deliberate encouragement or active inducement of the commission of a criminal offence. The MR for counseling consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accused¶s conduct. Courts cannot contain the inherent dangers of cyberspace crime by expanding or transforming offences, such as counselling, that were conceived to meet a different and unrelated need

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11. ATTEMPTS As the counseling offence in CC. s. 464 illustrates, not all crimes need to be complete before an offence arises. There is (1) the discrete offence of counseling, (2) the offence of conspiracy in which the agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence. Ancio shows the relevant mens rea for attempts, and Deutsch is instructive on when the attempt proceeds far enough to constitute a crime. You should be aware that the fact that an offence is legally impossible in the factual circumstances is no defence to an attempt charge, but it is not an offence to try to commit an act you believe is an offence, when it is not actually an offence. Dery exposes the limits of piggy-backing incomplete forms of liability. - See CC ss. 463, 465, 660 - R. v. Ancio, [1984] 1 S.C.R. 225 - R. v. Deustch, [1986] 2 S.C.R. 2 - R. v. Dery, [2006] S.C.J. No. 53

Not all crimes need to be complete before an offence arises (inchoate crimes). There is (1) the discrete offence of counseling, (2) the offence of conspiracy in which the agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence The fact that an offence is legally impossible in the factual circumstances is no defense to an attempt charge However, it is not an offence to try to commit an act you believe is an offence, when it is not a crime. CC s. 463: Attempts/Accessories (p.147) -Attempts/accessories (after the fact of the offence). Can be indictable/summary. CC s. 465: Counseling - Counseling an offence that is not committed CC s. 660: Conviction where offence not committed -authorizes a conviction for an attempt to commit the offence, where the offence has not been proven on the evidence. Conspiracy s. 465 (1)(c) establishes general offence of conspiracy. Otherwise s. 465 provides conspiracy for specific crimes. AR: The agreement to commit the offence MR: The intention to agree (purposely agreeing) and the intention to commit the offence (purpose to commit offence in the future; knowledge that the offence will occur in the future (put agreement into effect) Impossibility: Impossibility of completion of conspired offence due to real state of affairs no defence - what matters is what accused believed (Alicandro; Dynar) Double-Up: You cannot double up inchoate offences, there is no attempt to conspire) (Dungey, Dery) Attempts 24. (1) Every one 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. AR: The first step out of preparation and into commission satisfies AR for Attempt (Cline) The line b/w preparation and first step of commission is difficult to discern (Deutsch) ·MR The MR for Attempted Murder is subjective intent to kill (Ancio) Purposely killing Knowledge that death will result The Constitutionally required MR for Attempted Murder is nothing less than the subjective foresight of death -- knowledge that death will result (Logan) Again, ³intent´ also a constitutional requirement Transferred intent would not apply then (Gordon)

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Impossibility The AR and MR of Attempt can be satisfied even where the completion of the offence is impossible (US v. Dynar) After Dynar, liability for inchoate offences turns on what the accused believed the material facts to be, not what they actually were (R. v. Alicandro) If you intend to commit an offence, take the first step in committing that offence, regardless of whether your beliefs are correct or not you are guilty. The only caveat is that the offence has to be real -no imaginary impossibilities. R v. Ancio [1984] SCC -shows the relevant MR for attempts. MR for attempted murder is the specific intent to kill -The crime of attempt is an offence separate and distinct from murder. While the Crown must still prove both MR and AR, the MR is the more important element. The intent to commit the desired offence is a basic element of the offence of attempt, and may be the sole criminal element in the offence given that an attempt may be complete without the AR. Facts: Appellant acquitted by the CA for attempted murder. Crown appealed acquittal to the SCC. Appellant took shotgun to house of a man his wife was living with. A struggle ensued, gun was accidentally discharged, not striking the man. Appellant contends no intention to kill. Issue: Crown seeks to overturn the CA¶s decision that the necessary MR required for attempted murder is ³an intention to cause death, or an intention to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues.´ The Crown relies on the idea that sec. 24 and 231 of the CC should be interpreted in conjunction with one another to give rise to a lower MR threshold. They argue that the intention for attempted murder should extend to an intention to do that which constitutes the commission of the offence of murder as defined in sec. 230 and 231 ± certain unlawful acts which, if committed and death ensues, which be considered murder regardless of intention. Held: The SCC affirming, yet modifies the CA¶s decision. First they identified the fundamental differences between inchoate and complete crimes: They stated that while it is the AR that is the most important aspect in complete crimes and the aspect sought to be most deterred, it is the MR in inchoate crimes which is of primary importance. Thus, special attention must be paid to the MR in assessing the requirements for inchoate crimes. Second, without invoking Charter considerations, they stated that they ³find it impossible to conclude that a person may intend to commit the unintentional killings described in sec. 230 and 231´ which the Crown relies on to advance their argument. They specifically cite academic critique, which states that ³it is illogical to insist upon a higher degree of MR for attempted murder, while accepting a lower degree amount to recklessness for murder.´ They rebut this by stating that ³if there is any illogic in this matter, it is the statutory characterization of unintentional killings as murder´ ± citing obviously sec. 230 and 231. Held: the MR for attempted murder is the specific intent to kill.

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R v. Deutsch [1986] SCC (Roach p. 122 ff) -illustrative on when the attempt proceeds far enough to constitute a crime (AR) Facts: Appellant charged, acquitted, and convicted on appeal on the charge of attempting to procure a person to have illicit sexual intercourse with another person, contrary to sec. 195(1)(a) of the CC. Appellant was an employer who advertized an employment opportunity for a secretary. An undercover cop attended interview and was told that a job requirement would be to potentially have sex with clients to close deals. At first instance, the trial judge found that the necessary MR was present (he intended a person hired for the position should have sexual relations with clients). However, AR was not. As a matter of law, the acts or statements of the appellant did not, without an offer of employment, constitute the AR of an attempt to procure. Issue: SCC has to decide ³when acts of the appellant amount to more than mere preparation´? Held: Cited w/ approval Laidlaw J.A. in R v. Cline, where he said ³The AR must be more than mere preparation. But when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an AR sufficient in law to establish a criminal attempt to commit that crime.´ The judge added to the above: y ³relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt.´ In addition, ³an act which on its face is an act of commission does not lose its quality as the AR of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.´**

Distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence. Consideration must be given to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished.´ ³If the appellant had the necessary intent to induce or persuade the women to seek employment requiring them to have sexual intercourse with prospective clients, then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the AR of an attempt to procure. It would clearly be an important step in the commission of the offence. Conclusion: SCC held that the act which broke the barrier between mere preparation and ³next step´ was the holding out of the large financial rewards the secretary would have made during the course of the interviews. They felt that there would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment.

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R v. Dery [2006] SCC -exposes the limits of piggy-backing incomplete forms of liability. Facts: D and S charged with conspiring to commit theft and conspiring to possess stolen liquor. Trial judge found that no agreement had been established between them to steal or possess liquor and acquitted them of conspiracy, but found their actions more than merely preparatory to conspiracy and convicted them of attempting to conspire. Majority of the CA aff¶d their convictions. D appealed. Held: Appeal should be allowed D¶s convictions should be set aside and acquittals entered. An attempt to conspire to commit a substantive offence is not an offence under Canadian law. Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions. -Although D discussed a crime hoping eventually to commit it, neither D nor S committed, or agreed to commit, the crimes they had discussed. -The criminal law does not punish bad thoughts that were abandoned before an agreement was reached, or an attempt made, to act upon them. Furthermore, acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. -Even if it were possible, it has never been the goal of the criminal law to catch all crime ³in the egg´. In this sense, conspiracies are criminalized when hatched. And they can only be hatched by agreement. Policy behind crime of conspiracy/attempts: By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical. Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behavior that demonstrates a substantial risk of harm. However, when applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.

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12. CORPORATE AND ASSOCIATION LIABLITY Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devices to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do not apply to regulatory offences. For true crimes the Criminal Code sets out standards for corporate and association liability. Section 22.1 applies to objective fault or negligence offences where an association is charged, and s. 22.2 applies to subjective mens rea offences charged against an association. See these provisions. ______________________________________________________________________________ Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the AR alone, there is no need to use any legal devices to ascribe MR to the corporation. -Therefore the CC corporate liability provisions do not apply to regulatory offences. -For true crimes the CC sets out standards for corporate and association liability. -Section 22.1 applies to objective fault or negligence offences where an association is charged -Section. 22.2 applies to the subjective MR offences charged against an association. The first thing to do in cases of Corporate Liability is to determine whether Common Law or Statute Apply (provincial or federal). Then you must determine which statute applies (22.1 for negligence/objective fault offences; 22.2 for subjective fault offences). Corporate Liability Checklist/Flow Chart Is it a Provincial Offence? -Yes: Common Law (Canadian Dredge and Dock) -No: (then Federal) Charging offence have a MR requirement of recklessness or higher? Yes (i.e. non-Objective fault CC offence or Federal RO with non-negligence fault/MR): y y 22.2 applies No (i.e. Objective Fault, SL, AL): 22.1 applies

Common Law Definition This applies to all Provincial Offences The Identification Doctrine outlines where employee action is considered that of corporation: a) within scope of employee¶s authority; b) was not defrauding the corporation c) was for the benefit of the company (Candian Dredge and Dock) Sec. 22.1 ± Offences of negligence The conditions precedent to liability is twofold. 1)Under sec. 22.1(a), the relevant conduct is that of one or more representatives of the organization who alone or together do or fail to do anything, amounts to an offence of negligence on their part 2.

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2) The second requirement is imposed by sec. 22.1(b), involves the conduct of one or more senior officers of the organization responsible for the aspect of the organization¶s activities that is relevant to the offence. Their conduct must collectively amount to a marked departure from what would reasonably be expected to prevent a representative from being a party to the offence. Sec. 22.2 ± Other offences requiring fault (MR) Describes the basis on which an organization becomes a party to an offence that has a fault element other than negligence ± includes both a mental element and external circumstances External Circumstances ± involve conduct, either acts or omissions, by a senior officer that falls within paragraphs (a) to (c) of the section. The senior officer, acting within the scope of his authority, may be a party to the offence or direct the work of other representatives of the organization so that they do or fail to do the things that are the external circumstances of the offence. Liability is also attributable to the organization if the senior officer fails to take all reasonable measures to stop a representative of the organization, whom the senior officer knows is or is about to be a party to the offence, from being a party. Mental Element ± In addition to any mental element that must accompany the external circumstances (dependant on offence), the Crown must also prove that a senior officer had an ulterior intent (at least in part) to benefit the organization by the prohibited conduct. s. 2 defines what is included in ³Organization;´ ³Representative;´ and ³Senior Officer´ Selected Criminal Defences Defences do not deny the AR or the MR; they simply provide an excuse They have two sources of authority: statutory and common law Sometimes (as in the case of the D. of Necessity) the two defences remain side by side, each applying to different acts To raise a defence the accused must meet an evidential burden - capable of providing the accused with acquittal (³air of reality´) To have the defence provide acquittal the accused must meet a persuasive burden - prove the D. on a balance of probabilities We subjectify the reasonable person standard for D.s in a way that was disallowed in Creighton for determination of MR.

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SELECT CRIMINAL DEFENCES
Not all criminal defences are listed here. For example, s. 25 of the Criminal Code permits law enforcement personnel to use some force to carry out their duties, s. 40 permits the defence of property, and there is a general de minimis non curat lex defence gaining recognition that can be used to resist prosecution for trivial legal violations. The defence of provocation is a partial defence to murder alone. There are also procedural defences such as entrapment, and double jeopardy. Charges can be ³stayed´ pursuant to s. 11 (b) and 24 of the Charter because of unreasonable delay. You are responsible only for the select defences described below. 1. MENTAL DISORDER Section 16 of the Criminal Code modifies the common law defence of insanity. To have access to this defence the accused must establish that he has a ³mental disorder´ as defined by the case law and that it affected him in one or both of the ways described in s.16 (1). R. v. Cooper provides a definition of mental disorder, although it has been modified by R. v. Park (discussed below). Cooper also stresses the significance of the concept of ³appreciates´ while R. v. Kjeldson describes how the defence works for sociopathic or psychopathic offenders. R. v. Oommen edifies us about the meaning of ³wrong.´ - R. v. Cooper, [1980] 1 S.C.R. 1149 - R. v. Kjeldson, [1981] 2 S.C.R. 617 - R. v. Oommen, [1994] 2 S.C.R. 507 ______________________________________________________________________________ Section 16 modifies the common law defense of insanity. To use this defense, the accused must establish that he has a ³mental disorder´ as defined by the case law AND that it affected him in one or both of the ways described in s.16 (1). The accused need not be capable of making rational decisions beneficial to him to be ³fit to stand trial´ (Whittle) Fit to stand trial is defined is s. 2 of the CC Both the Crown and the Accused can raise the D. of Mental Disorder. It is constitutional for the Crown to raise the defence both after a guilty verdict has been determined (though before entry) and when it is determined that the accused¶s own defence, in the view of the TJ, has put the accused¶s capacity for criminal intent at issue (Swain) The presumption of sanity violates s. 11(d) of the Charter but is a reasonable infringement under s. 1 (Chaulk and Morrissette) Automatic detention of one found ³Not Criminally Responsible´ on account of mental disorder is unconstitutional (Swain) Part XX.1 of the CC provides for a court or Review Board to determine sentencing of one found NCR ³Disease of the Mind´ is a legal concept (not tied to medical evidence but under discretion of the Judge) (Simpson). Mental Disorder and its Two Branches ³Disease of the Mind´ is any illness, disorder, or condition w/ impairs the mind and it¶s functioning (excl. self induced and transitory - e.g. hysteria/concussion). In order to support a defence of insanity the disease must be of a certain intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong (Cooper). The Question becomes: Under what circumstance will an accused be found to have been incapable of either appreciating the nature and quality of his/her act or knowing that his/her act was wrong. Two Branches:

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1) Incapable of appreciating the nature and quality of the act If the accused¶s appreciation extends past knowledge of the act (e.g. choking) to appreciation of the consequences, impact and result (e.g. that this choking will result in unlawful murder) s/he will be found to have appreciated the nature and quality of his/her act (Cooper). An accused can appreciate the nature and quality of his/her act without appreciating that the act will result in penal sanctions b/c s/he is still able to appreciate the consequences, impact and result - i.e. committing of offence (Abbey). 2) Incapable of knowing that it was wrong An accused will not benefit from substituting his own moral code for that of society; h/w, if he is incapable of understanding that the act is morally wrong (by standards of reasonable members of society) he will be protected by s. 16(2) (Chaulk & Morrisette) ³Wrong´ in the second branch refers to moral wrong (Chaulk & Morrisette) This makes more sense for retribution but not exactly for deterrence. Incapability of ³knowing´ the act was ³wrong´ extends past apprehending right and wrong in the abstract; it includes being able to rationally apply the knowledge (Oomen). R v. Cooper [1980] SCC -Provides definition of mental disorder (modified by R. v. Parks). Judge decides the legal definition of whether what mental disorder is, and jury decides as a matter of fact, whether it exists. -Stresses the significance of the concept of ³appreciates´ Facts: Appellant, an out-patient at Psychiatric Hospital, was charged with murder. After a party, the appellant attempted to have sex with the victim then choked her. Appellant had a lengthy psychiatric history. The defense of insanity was not raised at trial. A psychiatrist was called by the defense to establish that the accused did not have the capacity to form an intention to kill. The psychiatrist testified he did not think that the accused was suffering with a disease of the mind. Nonetheless, the trial judge dealt with this issue of insanity in her charge to the jury. Jury found appellant guilty of non-capital murder and was sentenced to life imprisonment. Appeals. Issue: Whether there was evidence from which a properly charged jury could conclude that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged or of knowing that it was wrong (³wrong´ here meant legally wrong ± but this was later overturned) This raised two legal issues: 1) The meaning to be ascribed to the phrase ³disease of the mind´ 2) The interpretation to be given the words ³incapable of appreciating the nature and quality of an act´. Held: Appeal allowed. Section 16 of the CC does not set out a test of insanity but, rather, the criteria to be taken into account in determining criminal responsibility. Here, question is: (1) Whether there was evidence upon which a properly charged jury could conclude, on a BOP, that the appellant was sick, (2) Issue was that there was non-direction, amounting to misdirection, in failing to relate the evidence of the psychiatrist on the issue as to whether the appellant was able to appreciate the nature and quality of the act.

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The first issue raises both legal and factual questions: the term ³disease of the mind´ is a legal concept and what is meant by that term is a question for the judge. It is the function of the psychiatrist to describe the accused¶s mental condition and how it is considered from a medical point of view, but it is for the judge to decide whether the condition described is comprehended by the term ³disease of the mind´. As a general guide, ³disease of the mind´ embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding self-induced sates caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. The disease must manifest itself with such intensity as to render the accused incapable of appreciating the nature and quality of the offence or of knowing that it is wrong. Once the judge has determined that there is any evidence that the accused did suffer from such a disease (in legal terms), the question of fact must be left with the jury. The jury must determine whether the accused had disease of the mind at the time the criminal act was committed. The jury must also be satisfied of two-different branches of this test: namely, (1) That at the relevant time, the accused was incapable of appreciating the nature and quality of the act, and (2) That he did not know the act was wrong. A fundamental difference arises between ³knowing´ the nature and quality of the act, and ³appreciating´ the nature and quality of the act. The former denotes only an awareness of the physical act, while the latter requires a level of understanding of the act which is more than mere knowledge that it¶s taking place ± there must be (1) an appreciation of the factors involved in the act and (2) a mental capacity to measure and foresee the consequences of the violent conduct. This formulation is unique to Canada There was no substantial wrong or miscarriage of justice. The CA was entitled to dismiss the appeal of the accused under ss. 613(1) (b) (iii) of the CC. R v. Kjeldson [1981] SCC - the absence of appropriate feelings about conduct is NOT a lack of appreciation. - relating to sociopathic or psychopathic offenders Facts: Appellant, whose only defense was insanity, was convicted of 1st murder at trial. Medical evidence revealed he was a psychopath and understood the physical nature and consequences of his act, though was indifferent to such consequences. Trial judge instructed the jury (1) That psychopathy could be a disease of the mind and (2) On the meaning of the word ³appreciate´ in s. 16 of the CC. On appeal, the Court dismissed the appeal but substituted a verdict of 2nd degree murder b/c the trial judge failed to instruct the jury adequately on the difference between 1st and 2nd degree murder. Issue: What is the definition of the word ³appreciating´? And whether the judge¶s charge to the jury regarding the word appreciating was adequate?

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Held: In addressing the defense of mental disorder, the SCC refused to extend the exemption to a person who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse of guilt for what he has done, even if such lack of feelings stem from a ³disease of the mind´. Appeal dismissed. R v. Oommen [1994] SCC ± capacity to distinguish ³right from wrong´. - accused should be exempted from liability where at the time of the act a mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act - the defence does not apply to a ³psychopath or a person following a deviant moral code´ if such a person ³is capable of knowing that his or her acts are wrong in the eyes of society, and despite such knowledge, chooses to commit them.´ Facts: Accused killed w/out motive, a friend who was sleeping in his apartment. Accused had been suffering from a mental disorder described as a psychosis of a paranoid delusional type and, at the time of the killing, his paranoia was fixed on a belief that the members of a local union were conspiring to "destroy" him. On the night of the murder, he became convinced that they had surrounded his apartment building with the intention of killing him. This delusion, combined with his belief that the victim was one of the conspirators, persuaded him that he was obliged to kill the victim to prevent her from killing him. Convicted of 2nd degree murder, the accused raised the defense of insanity. Psychiatrists testified that accused possessed the general capacity to distinguish right from wrong and would know that to kill a person is wrong but the night of the murder, his delusion deprived him of that capacity and led him to believe that killing was necessary and justified under the circumstances as he perceived them. Trial judge rejected insanity defense, concluding that in view of the accused's general capacity to know right from wrong, he was not relieved from criminal responsibility under s. 16(1) of the CC, notwithstanding his subjective belief, at the time of the killing. CA ordered a new trial on the ground that the trial judge had erred in his interpretation of s. 16(1). Held: Appeal should be dismissed. Section 16(1) of the Code embraces not only the intellectual ability to know right from wrong in an abstract sense, but also the ability to apply that knowledge in a rational way to the alleged criminal act. Section focuses on the particular capacity of the accused to understand that his act was wrong at the time of committing the act. An accused should thus be exempted from criminal liability where, at the time of the act, a mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. -An accused need not establish that his delusion permits him to raise a specific defense, such as self-defense, to be exempted from criminal responsibility. The inability to make a rational choice may result from a variety of mental disorders, including delusions. Here, evidence is capable of supporting a conclusion that the accused was deprived of the capacity to know his act was wrong by the standards of the ordinary person.

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2. VOLUNTARY ACTS ³NEGATIVING¶ THE AR AND AUTOMATISM As indicated above, the accused does not satisfy the actus reus requirement unless his act is willed. Some courts have acquitted individuals who reflexively strike out, using the specious reasoning that their physical act was not willed, but the legitimacy of this reasoning is questionable. A more sophisticated application of the voluntariness concept was employed in R. v. Swaby. It is the ³voluntariness´ concept that explains the defence of automatism, which operates on the theory that the accused¶s physical motions were not culpable where they are not voluntary or thought-directed or conscious, as in the sleep-walking case of R. v. Parks. Please note that automatism will not realistically operate in any case where the accused appears conscious of his conduct ± it is reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious will. The result of the Parks decision was controversial enough that the Supreme Court of Canada took procedural steps to cut the defence back in R. v. Stone, although in R. v. Fontaine some of the excessive language of Stone was qualified by the Court. Note that ³automatism´ is divided into two categories, ³insane (or mental disorder) automatism´ and ³noninsane (non-mental disorder) automatism.´ Where a court finds ³insane automatism´ the real defence it is applying is ³mental disorder,´ since an accused person who is automatistic because of a disease of the mind cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong. If the defence that applies in ³non-insane automatism,´ a complete acquittal is appropriate, although Stone has stacked the deck against this kind of defence succeeding. R. v. Swaby, [2001] O.J. No. 2390 (Ont.C.A.) R. v. Parks, [1992] 2 S.C.R. 871 R. v. Stone, [1999] 2 S.C.R. 290 R. v. Fontaine, [2004] 1 S.C.R. 702

The accused does not satisfy the AR requirement unless his act is willed. The ³voluntariness´ concept explains the defense of automatism, which operates on the theory that the accused¶s physical motions are not culpable where they are not voluntary or thought-directed or conscious, as in the sleep-walking case of R. v. Parks. -Automatism will not realistically operate in any case where the accused appears conscious of his conduct ± it is reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious will. The SCC has defined automatism as ³unconscious, involuntarily behaviour, the state of a person who, though capable of action is not conscious of what he is doing. It means an unconscious, involuntarily act, where the mind does not go with what is being done.´ The accused may not be actually unconscious, but his or her consciousness must be so impaired that he or she ³has no voluntary control over that action.´ (R. v. Stone). Note: ³automatism´ is divided into two categories, (1) ³insane (or mental disorder) automatism´, and; (2) ³non-insane (non-mental disorder) automatism.´ Where a court finds ³insane automatism´ the real defense it is applying is ³mental disorder,´ since an accused person who is automatistic due to a disease of the mind, cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong. If the
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defense applies ³non-insane automatism,´ a complete acquittal is appropriate, although Stone has stacked the deck against this kind of defense succeeding. Sleepwalking is a disorder not a ³disease of mind´ (R. v. Parks) The court found this way b/c MD carried mandatory detention and declaring the crime non-MD was the only way to avoid this. The needin the criminal systems, to implemt a contingent standard has been farr overdue R v. Swaby [2001] ONCA -A sophisticated application of the voluntariness concept Facts: Police officers followed a car driven by the appellant, with Johnson as a passenger. They stopped car and found a loaded gun. Johnson was Crown key witness. He pleaded guilty to possession of the handgun and received a (42 day) sentence. Johnson had a significant criminal record and was the subject of immigration proceedings. The appellant was tried before a Judge & jury on an indictment containing eight counts. He was convicted of being an occupant in a vehicle knowing there was an unlicensed restricted weapon (s. 94 CC) Issue: Whether the Trial Judge properly answered the jury's question regarding the time at which the appellant knew of the gun? Held: Voluntary conduct is a necessary element for criminal liability. If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. If a passenger tells the driver that the passenger has a gun, it cannot be the case that the driver is immediately guilty. Should the driver immediately stop the vehicle and tell the passenger to leave, the driver would have known of the gun while he was an occupant of the vehicle, but he would have done all the law could expect. The driver's occupancy of the vehicle would have coincided with his knowledge of the gun, but it could not be said that the coincidence of knowledge and occupancy amounted to voluntary conduct on the part of the driver. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle, there is no voluntary act for the criminal law to punish. Accordingly, it is my view that if the appellant acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. If the appellant only acquired knowledge of the weapon at the point when Johnson was leaving the vehicle, he would be entitled to an acquittal. I do not accept the Crown's argument that there was no "air of reality" to a defense on this point [s.94(3)CC]. Nor do I agree that because the appellant denied all knowledge of the weapon, he was not entitled to insist that the jury be given a complete answer to its questions. The appellant did put his knowledge of the gun in issue. It was certainly open to the jury to reject the appellant's evidence that he knew nothing of the weapon, until sometime after he embarked on his drive with Johnson. The jury disbelieved both Johnson and the appellant. Even though he was disbelieved, the appellant was entitled to a full answer to the jury's very specific questions regarding the timing of his knowledge of the gun. After being told that "... Mr. Swaby must be proven to have been aware of the existence of the weapon while both he and Mr. Johnson were in that vehicle," the foreperson persisted, asking for further help. The jury's specific and persistent questions regarding the timing of the appellant's knowledge of the gun indicate that they were asking for guidance on the legal principles they should apply if they found that appellant acquired knowledge of the weapon after he had got into the car with Johnson. The jury's questions also suggest an instinctive awareness, albeit in lay terms, of the
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voluntariness point I have just discussed. They needed and asked for help on the point, but their questions were not fully answered by the Trial Judge. Therefore, appeal dismissed. R v. Parks [1992] SCC -when µnon-insane¶ automatism (sleepwalking), judge must determine whether there is some evidence to support leaving the defense to the jury and whether the condition alleged in law, is non-insane automatism -Two-fold test to determine whether a medical condition was a disease of the mind -LaForest: µcontinuing danger theory=insanity¶ & µinternal cause theory=insanity¶ -Sleepwalking IS NOT a disease of the mind Facts: Respondent was charged with murder and attempted murder after he killed his mother-inlaw and seriously wounded his father-in-law. At trial, he raised the defense of sleepwalking, and was acquitted by the jury. In charging the jury, the trial judge ruled that his defense should be left to the jury as non-insane automatism (recall that it is the judge¶s role to assess whether a medical condition is a ³disease of the mind´ within the meaning of the law) and did not give the jury the option of the defense of insanity (which, if accepted, would result in a special verdict, not an acquittal). Issue: The Crown contends that the trial judge erred in ruling that sleepwalking was a form of non-insane automatism and not a disease of the mind. Held: Chief Justice Lamer, in speaking for the majority, agreed with the ruling of the trial judge. The court stated that in deciding which medical conditions amounted to a ³disease of the mind´ it would apply a two-fold test: (1) the legal/policy component would assess (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harm while in a mentally disordered or disturbed state; (2), the medical component of the condition would be assessed by virtue of the medical knowledge at the given time, since the concept of ³disease of the mind´ is capable of evolving with increased medical knowledge. In assessing part (a) of the 1st part of the test (scope of exemption from criminal liability), the SCC emphasized that sleepwalking involved an act done by virtue only of a man¶s muscles, and not his mind since that person is not conscious of what he is doing. As such, the exemption from criminal liability is minimal at best since the sleepwalker cannot appreciate the nature and quality of his actions. Regarding part (b) (protection of the public), current medical evidence adduced and accepted at trial showed that it was extremely unlikely that sleepwalkers who acted violently would ever repeat that kind of behavior, and that sleepwalking episodes in which violent acts were committed are not common. Therefore, public safety would not be an issue. Lastly, in assessing the second part of the test (that of current medical opinion) the SCC accepted the expert evidence heard at trial that most cases of sleepwalking fell within the category of automatism. It also accepted the evidence that the respondent was not suffering from any mental illness and that, medically speaking; sleepwalking is not regarded as an illness, whether physical, mental or neurological. That is not to say, however, that sleepwalking could never be a disease of
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the mind, in another case on different evidence. Alternative View: Justice La Forest concurred with the majority, but sought to a number of procedural and policy considerations relevant to the insane/non-insane dichotomy. He asserts that when a defense of non-insane automatism is raised, the trial judge must determine whether the defense should be left with the trier of fact. In making that determination, he must first determine whether there was some evidence on the record to support leaving the defense to the jury. No burden of proof is imposed upon an accused raising such a defense beyond pointing to facts, which indicate the existence of such a condition. If the proper foundation is present, the judge must, second, consider whether the condition alleged by the accused is in law non-insane automatism. If the judge is satisfied that it is, the onus will rest upon the prosecution to prove that it is, in fact, not non-insane automatism beyond a reasonable doubt. The Crown is entitled to raise the prospects of insanity. R v. Stone [1999] (Leading case on Automatism Defence) ± R: claims of automatism must be on the defence to prove involuntariness on the balance of probabilities (p.62) -once this burden has been met, the trial judge must decide whether the condition alleged by D is a mental disorder or non-mental automatism. (NEW TEST in Next Case) -In light of Parks, SCC took procedural steps to cut the defense back in R. v. Stone. Facts: The facts of this case are not important, suffice it to say that the defense proposed both insane and non-insane automatism as possible defenses during trial. The SCC took the opportunity to make some crucial amendments to how the defense of automatism can be applied & what must be taken into account in terms of procedure and policy. Held: In reversing the decision in Park as it applies to the burden of proof relating to involuntariness, the majority of the court stated that ³claims of automatism must be on the defense to prove involuntariness on the balance of probabilities.´ They recognized that placing a balance of probabilities burden on the defense with respect to an element of the offence constituted a limitation of the accused¶s right under sec. 11(d) of the Charter, but were of the opinion that it was saved by sec. 1. They justified their finding on the basis that the law presumes that people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown. Automatism, they assert, is easily feigned and all knowledge of its occurrence rests with the accused. This necessarily requires the trial judge to begin from the premise that the automatism is caused by a disease of the mind, and then look to the evidence to determine whether it convinces him that the condition is not a disease of the mind. In raising the defense of automatism, the defense must: (1) Make an assertion of involuntariness, and (2) Call expert psychiatric and/or psychological evidence confirming that assertion. The two latter requirements, if met, are by no means conclusive of attainment of the evidentiary burden. The burden will only be met once the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In doing this, the trial judge must take into consideration all the psychiatric and/or psychological evidence, as well as examine any another relevant evidence. The majority gave examples of relevant factors that could be considered, such as the severity of the triggering event, corroborating evidence by bystanders, corroborating medical history of automatistic-like dissociative states, etc« The evidence established that there are states of automatism where
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perfectly sane people lose conscious control over their actions. Once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the plea of automatism. This jurisdiction should not be removed by ³judicially created policy´. It is to be expected that the jury will subject the evidence of involuntariness to appropriate scrutiny. R v. Fontaine [2004] SCC Facts: The accused shot and killed a man whom he believed had a contract to kill. He asserts that at the time of the shooting he was in a psychotic state, particularly because of excessive marijuana use (not at issue in this trial). The trial judge, following the instructions in Stone, felt that because there were inconsistencies in the respondent¶s evidence and that evidence of the defense¶s main psychiatric witness had been contradicted by other psychiatrists, that the respondent did not meet the evidentiary burden required to put the defense of mental disorder automatism to the jury. Held: The SCC agrees with the respondent. Supreme Court does not modify majority¶s views in Stone on substantive law of automatism, but restates its views on evidentiary threshold for defence Discharge of evidential burden regarding affirmative defence is matter for trial judge must leave to jury any defence supported by evidence In making this determination, judge neither entitled nor required to assess weight of evidence or probability of its success ± this for trier of fact Function of judge is to determine whether there is relevant evidence that, if accepted by trier of fact, would tend to support affirmative defence ± test remains the same whether or not defence is one that carries reverse onus ³Where mental disorder automatism is raised as a defense, an assertion of involuntariness on the part of the accused, supported by the logically probative opinion of a qualified expert, will normally provide a sufficient evidentiary foundation for putting the defense to the jury.´ Fontaine eliminates any suggestion in Stone that in considering evidential burden judge should assess weight that might be given to evidence. The burden remains on the accused to establish the defense to the required degree of probability ± the balance of probabilities
o Final Non-insane/insane Automatism Defence Framework ** (As per Parks; Stone; Fontaine)

STEP (1): Is there a proper foundation for a finding of automatism? The law presumes people to act voluntarily, so the accused must rebut presumption of voluntariness (Parks; Stone) To do so, the accused must show that there is an ³air of reality´ to the defence, namely that there is some evidence with which a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused (Fontaine) Defence must present expert psychiatric evidence (Stone) Additional evidence also relevant in determining if accused has met evidentiary or proper foundation burden: severity of the triggering stimulus corroborating evidence of bystander as to accused's appearance (unresponsive, distant medical history of automatistic-like dissociative states motive-absence for act will generally lend plausibility to claim of involuntariness ± no single factor determinative if proper foundation not established, presumption of voluntariness applies, neither defence available to jury, although accused may claim independent s. 16 mental disorder defence.

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STEP (2): If Step # 1 satisfied, the trial judge determines whether the condition alleged is mental disorder or non-mental disorder automatism (i.e. which defence should be left with the jury): The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the condition alleged by the accused is a mental disorder ± legal term defined in s. 2 as ³disease of mind´ Question of what mental conditions are included in term disease of mind is question of law ± judge must also determine whether condition the accused claims to have suffered from satisfies legal test for disease of mind Judge to start from proposition that condition is disease of mind, and asks whether evidence takes it out of category (Stone) Determining whether condition is disease of mind: two distinct approaches to disease of mind inquiry: internal cause theory and continuing danger theory. Holistic approach must be available to trial judges in dealing with disease of mind question ± approach must be informed by internal cause theory, continuing danger theory and policy concerns raised in Rahey, Parks Judge should consider the following: (a) Internal cause factor (developed in context of psychological blow Automatism: If the condition stems from an ³internal cause´, this means that the condition is a DOM (Note: if not internal cause, still may be DOM). The nature of the alleged trigger of the automatism is at the centre of the comparison the trial judge must undertake. In effect, the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done (this approach is helpful in some cases, not so in others) For psychological blow automatism, evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done. It will be internal if not ³extraordinary event that would cause a normal person to dissociate´ (b) Continuing danger factor: Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind likelihood of recurrence of violence is factor to be considered in disease of mind inquiry, but while continuing danger suggests DOM, finding of no continuing danger does not preclude finding of DOM Consider expert evidence Consider medical history/psychiatric history Consider likelihood of triggers occurring (c) May consider other ³policy factors´ There may be cases in which consideration of the internal cause and continuing danger factors alone does not permit a conclusive answer to the disease of the mind question; e.g., where the internal cause factor is not helpful because it is impossible to classify the alleged cause of the automatism as internal or external, and the continuing danger factor is inconclusive because there is no continuing danger of violence. Policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code. Policy considerations include: Reputation of administration of justice Ease of feigning (faking)

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Floodgates potentiality Ensuring public safety Note: Courts take judicial notice that it will only be in rare cases that automatism is not caused by DOM STEP (3): Available defences for trier of fact to consider (a) Non-insane automatism? If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind, only the defence of non-mental disorder automatism will be left with the trier of fact as the trial judge will have already found that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily. The question for the trier of fact will then be whether the defence has proven, on a balance of probabilities that the accused acted involuntarily. A positive answer to this question by the trier of fact will result in an absolute acquittal Here, jury may be instructed to consider things such as: Whether there is a motive for crime ± i.e., A motiveless act will generally lend plausibility to an accused¶s claim of involuntariness Severity of triggering stimulus Corroborating evidence of bystanders Corroborating medical history Whether the trigger is the victim (b) Insane automatism? If the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact. The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question s. 16 provides framework within which protection of public assured when mental disorder automatism established trier's determination whether accused has made out successfully defence of mental disorder automatism absorbs question whether accused acted involuntarily ± if automatism could only have resulted from disease of mind, finding that the accused not suffering from mental disorder necessarily extinguishes validity of accused's claim of involuntariness A successful defence of mental disorder automatism will result in a verdict of not criminally responsible on account of mental disorder as dictated by s. 672.34 of the Code. Under s. 672.54, an accused who receives this qualified acquittal may be discharged absolutely, discharged conditionally or detained in a hospital;

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3. SIMPLE INTOXICATION Intoxication does not operate as a justification or excuse for criminal conduct. This so-called defence of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the relevant mens rea. The law is hostile to this claim. It therefore limits the defence to ³specific intent´ offences. Thus, for ³general intent´ offences, the question of whether the accused had the relevant mens rea will be assessed on the assumption that the accused was not intoxicated - even if he was. In other words, the law of simple intoxication operates less as a defence than as a way of limiting cases where the judge or jury can factor intoxication into mens rea determinations. The concept of a ³specific intent´ and ³general intent´ offence is described in the extreme intoxication case of R. v. Daviault below. Please note that in Canada, the inquiry is no longer into ³capacity to form the intent´ as it was in common law England ± the defence applies if intoxication prevents the formation of the specific intent required by the relevant section. - R. v. Bernard, [1988] 2 S.C.R. 833 - R v. Robinson, [1996] 1 S.C.R. 683 Intoxication does not operate as a justification or excuse for criminal conduct. This defense of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the relevant MR. The law is hostile to this claim. It therefore limits the defense to ³specific intent´ offences. For ³general intent´ offences, the question of whether the accused had the relevant MR will be assessed on the assumption that the accused was not intoxicated - even if he was. in Canada, the inquiry is no longer into ³capacity to form the intent´ as it was in common law England ± the defense applies if intoxication prevents the formation of the specific intent required by the relevant section. The applicability of the intoxication defence, as shown below, turns on whether an offence is one of: GENERAL or SPECIFIC INTENT General Intention Offences Specific Intention Offences 1. Assault (s. 266) 1a. assault w/ intent to resist arrest (s. 270(b)) 2. Arson causing bodily harm 2a. arson w/ intent to defraud (s 435) (s. 433) 3. Break enter and commit 3a. break enter w/ intent to commit (s 348(1) (a)) (s 348(1) (b)) 4. Sexual assault (rape) 4a. touching for a sexual purpose (s 271) (s 151) assault causing bodily harm 5. Manslaughter 5a. murder mischief 6. Theft 7. Attempted crimes 8. Aiding and abetting a crime 9. Robbery See Libmann outline
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R v. Bernard [1988] SCC Drunkenness in a general sense is not a true defense to a criminal act. The defense, however, may apply in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime. The defense does not apply in offences of general intent The Leary rule is consistent with an onus resting on the Crown to prove the minimal intent, which should accompany the doing of the prohibited act in general, intent offences. The rule, applied in its more flexible form, should be preserved so that evidence of intoxication can go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence. Evidence of intoxication should not go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence. The rule in Leary should not be overruled. Facts: The appellant was charged with sexual assault causing bodily harm, contrary to sec. 272(c) of the Code. The appellant asserts that his drunkenness caused him to attack the complainant. The trial judge, in charging the jury, stated that drunkenness was no defense to the charge alleged. Issue: whether evidence of self-induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the MR required to constitute the offence? Held: On appeal to the SCC, the majority was of the opinion that the defense of simple intoxication was not available to a crime of general intent. Since sexual assault causing bodily harm had previously been decided to be a crime of general intent, then the defense was not available. Chief Justice Dickson and Lamer dissented. Majority: Justice McIntyre and Beetz ± began by defining what a general intent crime was: namely, ³an offence where the intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose;´ A specific intent crime, however, ³involves the performance of the AR, couples with an intent or purpose going beyond the mere performance of the questioned act.´ The defense of simple intoxication is not to be extended so as to cover crimes of general intent ± decided in the case of Leary. Sexual assault is a general offence as stated in Swietlinkski and Chase. It was held in those cases that an intention to commit an assault was proof of the requisite intention. Citing Dickson J., the judges sought to justify their exclusion of general intent crimes from the ambit of the defense of simple intoxication. Dickson¶s position was that self-induced intoxication should be a relevant consideration in determining whether the MR of any particular offence has been proved by the Crown. They believe the effect of such a conclusion would be that the more drunk a person becomes by his own voluntary consumption, the more extended will be his opportunity for a successful defense against conviction. In responding to assertions by the appellant that the Leary rule relieves the Crown from the burden of proving the MR, and thus, violates sec. 7 and 11(d) of the Charter in cases of general intent, their Justiceships stated the following: the Crown is not relieved of its burden to prove the MR. The requisite state of mind may be proved in two ways: first, there is the general proposition that triers of fact may infer MR from the AR; second, in cases where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may meet its evidentiary obligation respecting the necessary blameworthy
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mental state by proving the fact of voluntary self-induced intoxication. Only in cases of the most extreme self-intoxication, however, does the trier of fact need to consider the second proposition. Their Justiceships conceded that their approach might not stand up to the rigors of logic, but justified it on the grounds of policy: intoxication, whether by alcohol or drugs, lies at the root of many, if not most, violent offences. In responding to Charter scrutiny to their approach, they stated that while the Charter requires that the morally blameless not be punished, that is not the case for persons who have voluntarily consumed alcohol or drugs, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent and are indeed criminally blameworthy. Justice Wilson and L¶Heureux-Dube ± agreed with the position of the latter Justices that, in cases involving general intent, the Crown will be able to establish the accused¶s blameworthy mental state by inference from his acts. However, in regards to substituting proof of the necessary mental element with proof that the accused was voluntarily intoxicated, their Justiceships felt that this was too intrusive a proposition on an individual¶s rights to be compatible with sec. 11(d) of the Charter. In regards to the general-specific intent dichotomy, their Justiceships were of the opinion that it amounted to good law. They also agreed that the crime of sexual assault is a crime of general intent. They stated that it is first and foremost an assault; it is sexual in nature only because, objectively viewed, it is related to sex either on account of the area of the body to which the violence is applied or on account of words accompanying the violence. Their Justiceships agreed with the rule laid out in Leary, which allows evidence of self-induced intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication akin to a state of insanity or automatism. In addressing the allegations that the Leary rule transforms crimes of general intent, where intoxication is involved, into crimes of strict/absolute liability, the Justices stated that this is not so since the jury must have regard to all the evidence, except evidence of intoxication, in determining the defendant¶s intention. They would, therefore, follow Justice McIntyre¶s lead and dismiss the appeal. Dissent: Justice Dickson and Lamer ± feel that Leary is not good law because (1) it is based on illogical/unsupported policy conclusions, (2) in light of the enactment of the Charter, Leary fails to meet the constitutional standards of legislation, (3) its effect has discombobulated the defense of mistaken fact, and (4) its enforcement leads to uncertain results. In responding to policy arguments for restricting the jury¶s use of evidence of drunkenness, the justices had three issues: first, they argue that if the law is to be altered in the name of policy over principle that is a task for Parliament and not the courts. Second, in relation to the generalspecific intent dichotomy, they feel that this artificial principle does nothing in the way of social protection. To the extent that intoxication merely lowers inhibitions, removes self-restraint or induces unusual self-confidence, it would be of no avail to an accused, as such offences do not relate to the MR requirement for volitional and intentional or reckless conduct. Third, they argue that this policy stance has emanated mainly out of distrust of juries and trial judges to properly weigh the evidence, which may result in hasty acquittals. They disagree with that assertion, adopting the Australian approach, which allows jurors and trial judges to weigh such evidence. They argue, mainly by citing statistics, that there are no known problems of accused persons who were drunk during the commission of the offence with ³getting away with their crimes´. In
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regards to the Charter, their Justiceships felt that the policy created an offence of absolute liability. This, they assert, is contrary to sec. 7 in that it doesn¶t require proof of the requisite mental intent. This runs contrary to the fundamental principles of voluntariness and fault, they assert. In relation to sec. 11(d) as it applies o crimes of general intent, they believe the policy has the effect assuming guilty upon proof of intoxication. Regarding policy being saved under sec. 1, they feel that while the objective of the policy is noble, in that it seeks to protect the public, it fails under the proportionality inquiry. They state ³the measure is not adopted in a carefully designed manner to achieve the objective in question´. They justify that assertion by arguing that the general-specific intent dichotomy does not rationally protect the public, as it criminalizes offences judged to be of general intent, while allowing those who engage in more serious crimes (usually falling under the umbrella of specific intent) to be acquitted. In regards to the second branch of the proportionality test, they state that policy does not choose the means that will impair the rights and freedoms of individuals as little as possible. In justifying that assertion, they point to their earlier conclusion that the policy creates a crime of absolute liability. Regarding the defense of mistaken fact, they state that the Leary rule fits most awkwardly with that enunciated in Pappajohn. If an accused seeks to employ the defense of mistaken belief, and where intoxication is a factor, they jury must be instructed that while an honest but unreasonable belief will negate the MR, they are to disregard the effect that intoxication might have had in inducing that mistake. This results in the jury engaging in the difficult and artificial task of putting out of their mind the evidence of intoxication on the issue of whether the accused honestly believed in the mistaken fact. The Justices assert that this unduly complicates a jury¶s task. Their final point is that the Leary rule creates uncertainty in the law. They base this conclusion mainly on the general-specific intent dichotomy. They assert that the classification of offences as falling within or without one of the categories is necessarily an ad hoc and unpredictable exercise, leading to different results. Citing Campbell, where the accused was charged with breaking and entering with intent. This was held to be a crime of specific intent, and thus, evidence of intoxication was relevant. However, in the decision of Quin, the accused was charged with breaking and entering and committing an indictable offence. The court in that case held that that was a crime of general intent, and thus, evidence of intoxication was not a relevant factor. For all those reasons, they felt that the decision in Leary should be overruled, and the appeal in this case allowed. R v. Robinson [1996] SCC -intoxication only becomes relevant for the trier of fact to consider where it removes D¶s capacity to form the requisite intent; and -the presumption that a person intends the natural consequence of their actions cannot be rebutted by evidence falling short of incapacity (p. 43) Facts: The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence showed he had been drinking with the victim and that the killing occurred after victim offended him. After being instructed on provocation, self-defense and intoxication, the jury found the accused guilty of 2nd degree murder. CA allowed his appeal. Issue: (1) How should juries be instructed regarding evidence of intoxication? (2) Whether the charge to the jury, read as a whole, constituted misdirection and reversible error on the issues of intoxication, the common-sense inference that a person

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intends the natural and probable consequences of his or her acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt; and (3) Whether the curative provisions of s. 686(1) (b) (iii) of the CC should be applied? Held: The appeal should be dismissed. The Beard rules (Director of Public Prosecutions v. Beard) on intoxication should be overruled. These rules provide that intoxication is not a relevant factor for tiers of fact to consider except where the intoxicant removed the accused's capacity to form the requisite intent. According to the Beard rules, the presumption that a person intends the natural consequences of his or her acts cannot be rebutted by evidence falling short of incapacity. This presumption to which Beard refers should only be interpreted, as a common-sense inference that the jury can but is not compelled to make. Five separate considerations favored overruling the Beard rules: (1) The opinions of Laskin and Dickson C.JJ. Albeit in dissent, suggested that the real focus should be on whether the Crown, in light of the intoxication evidence, has established the requisite intent BARD; (2) Developments in provincial appellate courts, which no longer follow the Beard rules and have developed two different approaches in its place; (3) Developments in England, New Zealand and Australia where "capacity" language has fallen out of favor and intoxication is now simply a factor jurors can consider in assessing whether the prosecution has proved beyond a reasonable doubt that the accused had the required intent; (4) Academic commentary which favors abandoning the Beard rules; and (5) The Canadian Charter of Rights and Freedoms, which is violated by the Beard rules. The Beard rules violate ss. 7 and 11(d) of the Charter because they put an accused in jeopardy of being convicted even though a reasonable doubt could exist in the minds of the jurors on the issue of actual intent. This restriction on an accused's legal rights does not constitute a reasonable limit under s. 1 of the Charter. A strict application of the Oakes test is appropriate. While decisions of the legislatures may be entitled to judicial deference under s. 1 as a matter of policy, such deference is not required when reviewing judge made law. The protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right. A rational connection exists between the "capacity" restriction of the defense contained in the impugned common law rule and its objective. The restriction fails the proportionality prong, however, because it does not impair an accused's ss. 7 and 11(d) rights as little as is reasonably possible. The Beard rules cast the criminal net too far in that all accused with the capacity to formulate the requisite intent cannot rely on their state of intoxication even though it might create a reasonable doubt as to whether the accused actually had the intent necessary to the crime.

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4. EXTREME INTOXICATION This defence was created in R. v. Daviault under the influence of the Charter. Extreme intoxication is distinct from the simple intoxication defence. Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent. The theory behind the defence is that a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice. Daviault was so controversial that Parliament immediately enacted s. 33.1 of the Criminal Code to eradicate the defence in sexual offence and violence cases. This means that, subject to Charter challenge [Canadian courts are split on whether s. 33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. Be aware that nothing in s. 33.1 abolishes the defence of simple intoxication ± it limits only the defence of extreme intoxication. - R. v. Daviault, [1994] 3 S.C.R. 63 - C.C. s. 33.1 Defence created in R. v. Daviault under the influence of the Charter. Extreme intoxication is distinct from simple intoxication. Where extreme intoxication applies, it can operate as a defense to any offence, whether specific intent or general intent. Theory: a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice. Daviault was so controversial that Parliament enacted s. 33.1 of the CC to eradicate the defense in sexual offence and violence cases. This means that, subject to Charter challenge [courts split on whether s. 33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. Caution: nothing in s. 33.1 abolishes simple intoxication ± it limits only extreme intoxication. R v. Daviault [1994] SCC p. 105: ³Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent¶ Facts: D sexually assaults crippled old lady Issue: Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, constitute a basis for defending a crime which requires not a specific but only a general intent? Reasoning (Cory J.): Where intoxication is so extreme an essential element of the offence, voluntariness, is not present. Can¶t hold someone morally at fault w/ absence of voluntariness. Court held EI had to be accepted b/c of Charter - s. 11 (d) presumes individuals to be innocent, s. 7 contrary to PFJ to commit someone if they didn¶t voluntary commit something. To use defence of EI, you need: 1. Expert evidence (that the accused was in a state of automatism or insanity) 2. Accused must prove, with that expert evidence alongside any other evidence that, on a BOP, he was in an extreme state of intoxication
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Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. Note: Should it be thought that the mental element involved relates to the actus reus rather than the mens rea then the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act. Note: Court noted that this defence would only be available in rare cases, essentially where the accused was an automaton CC s. 33.1²Self Induced Intoxication (Defense not available) Extreme intoxication is NOT a defence to any offence which involves assault as an element or involves interfering, or threatening to interfere, with a person¶s bodily integrity, whether or not that person, by reason of the intoxication, lacked the general intent or voluntariness required for the offence So, the defence of EI after Daviault is available for all general intent offences except for assault, sexual assault, or interference w/ bodily integrity of another (basically any violence or threats of violence)

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5. DEFENCE OF THE PERSON Self-defence is a complex defence in Canada. There are four separate but potentially overlapping statutory defences. All of the defences apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be unlawfully assaulted but each of the four separate offences has its own additional requirements that must be satisfied. ‡ Section 34(1) applies where the accused does not provoke the assault being defended against, and defends against it without intending to cause death or grievous bodily harm, whether or not death or grievous bodily harm is caused. ‡ Section 34(2) applies whether or not the accused provoked the assault being defended against and intends to cause death or grievous bodily harm. ‡ Section 35 applies where the accused provoked the assault, but this defence has lost much of its relevance given that section 34(2), which is less restrictive than section 35, can be used where assaults are provoked. The concept of provocation is defined for the purposes of self-defence in section 36. ‡ Section 37 operates as a general defence that is broad enough to subsume the other defences but courts tend not to use it if any of the other provisions apply. Pintar explains the relationship between sections 34(1) and (2), and the general approach that should be taken to using the various defences. As Cinous shows, each of these defences has both subjective and objective components that have to be satisfied. Lavallee illustrates the defence applied in the battered women context. - R. v. Pintar, [1996] O.J. No. 3451 (Ont. C.A.) - R. v. Cinous, [2002] 2 S.C.R. 3 - R. v. Lavallee, [1990] 1 S.C.R. - There are 4 separate but potentially overlapping statutory defences: s 34(1), 34(2), 35 and 37. - Note that the concept of provocation for the purpose of self defence is defined in s 36. - All of the defenses apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be unlawfully assaulted but each of the four separate offences has its own additional requirements that must be satisfied Section 34(1) applies where the accused does not provoke assault, and defends against it without intending to cause death or grievous bodily harm, whether or not death or grievous bodily harm is caused. Section 34(2) applies whether or not the accused provoked the assault being defended against and intends to cause death or grievous bodily harm. Section 35 applies where accused provoked assault defense has lost much of its relevance b/c s. 34(2). Concept of provocation is defined for the purposes of self- defense in section 36. Section 37 operates as a general defense that is broad enough to subsume the other defenses but courts tend not to use it if any of the other provisions apply. Defines extent of force that can be justified. Although the extreme intoxication, mental disorder and automatism defences must be proven by the accused on a BOP, the defences of self-defence, necessity and duress must be disproved by the Crown as part of its burden to prove guilt BARD. Thus, if the jury has a reasonable doubt that an accused acted in self-defence,
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or under duress or necessity, it must acquit. In R. v. Cinous, the SCC indicated that a standard air of reality test should apply to all defences. The appropriate test was whether a properly instructed jury acting reasonably could acquit on the basis of the evidence. This requires evidence on each necessary element of the defence and that the evidence be such that a properly instructed jury acting reasonably could acquit on the basis of the evidence. In administering the air of reality test, the judge should assume that evidence is true and leave the determination of its credibility to the jury. The air of reality test does not impose a persuasive burden on the accused. Once a judge determined there is an air of reality to any of the defences, the jury should be instructed to acquit if it has reasonable doubt about the existence of the defence. R v. Pintar [1996] ONCA -explains the relationship between sections 34(1) and (2) and the general approach that should be taken when using various defenses -R: Ss. 34(1) and (2) apply where D has been unlawfully assaulted. Section 34(2) applies if D has provoked the assault. Where death or GBH (grievous bodily harm) results, unlike 34(1), s. 34(2) applies, notwithstanding that D intended to caused death or GBH. Under s. 34(2) the issue is not whether the responsive force used was no more than necessary to enable D to self-defend (like in 34(1)), rather whether D believed on reasonable grounds, that they could not otherwise preserve themselves from death or GBH. S. 34(1)¶s scope for justification is must narrower then that provided in s. 34(2). Facts: P started seeing R¶s (victim¶s) wife. R made known he wanted to kill P. R enters P¶s home, takes swing at P, and P ducks punch and knocked R to floor. After more threats to P¶s life, P shot and killed R. Issue: Was it self defense? Held: y Issue 1 - The TJ erred in failing to leave the ³single transaction´ option to the jury ± i.e. that the initial unprovoked assault by R still had significance at the events which occurred outside the home. The error takes on special significance in respect of s. 34(2) since that provision formed the essence of the appellant's claim to self-defence Issue 2 - Unlike s 34(1) which speaks to the issue of intent, s 34(2) does not. The plain wording of s. 34(2) reveals that the provision is triggered when a person who has been unlawfully assaulted causes death or grievous bodily harm in repelling the assault. By necessary implication, Parliament's silence may be taken to mean that s. 34(2) is meant to apply to accused persons who intend to kill or cause grievous bodily harm, as well as to those who do not have such intent, but who do in fact cause death or grievous bodily harm Issue 3 - In order for the appellant to succeed on s. 34(2), it was necessary that the jury believe or have a reasonable doubt that at the time of the shootings, the appellant genuinely believed on reasonable grounds, that he was in grave danger from the violence with which Ross and Gill pursued their attack upon him, and that his use of deadly force in response to that attack was necessary.

y

y

Background information about the attackers¶ propensity for violence is relevant here. General Approach: To give effect to the functional approach, I would urge trial judges to consider the following guidelines when faced with the prospect of charging a jury on the law of self- defense:

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(1) Consider the evidence carefully with a view to determining the essence of the claim to self-defense and the Code provision(s) realistically available to that claim. (2) To the extent that the evidence fails the air of reality test in respect of one or more of the constituent elements of a particular provision, that provision should not be left with the jury. (3) To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction. (4) Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an air of reality to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision. R v. Cinous [2002] SCC -all SD defenses¶ have a subjective and objective component that must be satisfied (specifically s. 34(2)) Facts: C heard that M and Y wanted to kill him. M and Y, one day, asked C to assist in a computer theft. When they met up, M and Y were acting suspicious; M was wearing latex gloves, and they kept touching their jackets like they had a gun it. While driving, C pulled over to gas station, pulled out gun and shot M in back of head. C testified that this was an instinctive reaction to a situation of danger. Offence: Accused found guilty of second degree murder. The CA held that the defense was not properly explained to the jury. It overturned the conviction and ordered a new trial. Issue: Interpretation of self-defense under s. 34(2) Held: Appeal should be allowed and the accused¶s conviction restored. Elements of the defence: To succeed in a defence of self-defence, there must be: The existence of an assault (did the accused reasonably and actually believe that s/he was unlawfully assaulted?) Reasonable apprehension of death or grievous bodily harm. Reasonable belief in the absence of alternatives to killing or causing GBH (It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds). Note: if any of these elements lack an air of reality, the defence should not be put to the jury. Each of the three elements have both a subjective and objective component. These three elements must be real as perceived by the accused (subjective) and be reasonable (objective). With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances. The ³whole defence´ must have an air of reality and backed by evidence. (987) The accused¶s testimony can provide a basis for inferring that both the subjective AND objective components of each elements have been met Binnie, concurring, does not grant self-defence to criminals who set their own ³rule of the criminal subculture, which is the antithesis of public order.´ (993) Criminals cannot claim self-defence if they avoid an alternative fearing that the alternative would face them with arrest. Application: Unlawful assault? It would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. There is an air of reality to the subjective component of the defence as there is direct evidence on the accused¶s beliefs, in the form of the accused¶s testimony. A jury acting reasonably could draw an inference from the
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circumstances described by the accused, including particularly the many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked. Reasonable apprehension of death or GBH? Yes. The accused¶s testimony is unambiguously to the effect that he feared a deadly attack. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger Reasonable belief of no reasonable alternatives to killing? It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. There is an air of reality to the accused¶s claim that, at the time he shot the victim, he actually believed that he had no alternative. The accused¶s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a ³mere assertion´ of the element of the defence. However, the belief that the accused had no other option but to kill must have been objectively reasonable. Here, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives. R v. Lavallee [1990] SCC -Requirements of SD for accused with Battered Wife Syndrome: (1) Existence of an unlawful assault; (2) A reasonable apprehension of a risk of death or grievous bodily harm; (3) Reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. -For the last two requirements, in deciding what is ³reasonable´ one must take into account the relevant history, circumstances and perceptions of the appellant who has been battered. The objective is not to prove that accused has BWS, to let BWS inform the argument that accused was justified in killing for self-defence purposes as per s. 34(2). Expert testament must be used to assist jury in determining whether accused has ³reasonable apprehension of death´ (Wilson J) Facts: Woman kills boyfriend after history of abuse. Tells her, ³either you kill me or I¶ll get you.´ She claims to have attempted to miss, but she hit him anyways. Criminal Provision: s. 34(2) (Self-Defence causing death) Held: Not guilty because s. 34(2) self-defence can be retooled to work in the context of BWS Reasons: - The definition of what is reasonable must be adapted to the circumstances of a battered woman, which are generally foreign to the world inhabited by the hypothetical ³reasonable man.´ The killing must occur when there is a ³Reasonable Apprehension of Death´. The temporal requirement that the apprehension of death must be ³immanent´ must be relaxed in cases involving battered woman¶s syndrome. S. 34(2)(a) does not require an apprehension of immanent danger, but has case law has read that requirement into the defense. Reasonable man assumes that parties are of relatively equal power; that an individual can in fact defend themselves if they reasonable apprehend immanent death. That is why it has generally been understood to be immanent. The situation is not so for battered women. Psychological factors of arising from BWS account for woman¶s inability to leave battering relationship and, more importantly, escape at the moment that she believed her life to be in danger. - Must retool the concept of ³reasonable grounds´ to account for this belief o Subjective element introduced into
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objective test. Making battered woman wait until assault was underway would be ³murder by installment´ The accused must believe, on reasonable grounds, that they could not ³otherwise preserve herself from death or grievous bodily harm.´ Therefore, the SCC concluded that it is not for the jury to pass judgment on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to concluded that she forfeited her right to self-defense for having done so. The question the jury must ask itself is ³whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by the batterer that night except by killing him first was reasonable´.
y

Summary of the Self Defence Provisions **

S 34(1): Applies where there is an unlawful assault against the accused his unprovoked [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section] Accused may repel force by using force if the force used: (a) Is not intended to cause death or GBH; (b) Is no more than necessary to defend themselves. Note: (a) This section may not be used where accused intended to cause death or GBH (R v Bryson) (b) An unlawful assault against accused need not actually occur; it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous) (c) The accused need not have any apprehension of death or GBH S 34(2): Applies where there is an unlawful assault, whether provoked or unprovoked, and accused, to repel the assault, causes death or GBH to another [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section]. Accused is justified in causing death or GBH in response to the assault only if: (a) He causes death or GBH under a reasonable apprehension of his own death or GBH from the violence with which the original assault was made; and (b) He believes, on reasonable, grounds, that there are no alternatives to killing or causing GBH in order to preserve him - Note: (a) An unlawful assault against accused need not actually occur; it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous) (b) Each of the above elements must have an air of reality to them (Cinous) (c) Each of the above elements (3 elements) has a subjective and objective component: first, inquire about the subjective beliefs of the accused; second, ask whether those perceptions are objectively reasonable (Cinous).

S 35: Applies either where: (i) the accused, without justification, assaults another but didn¶t commence the assault with intent to cause death or GBH; OR; (ii) where the accused provoked an assault him by another. Accused justified to the use of subsequent force against him (in the case of (i)), or assault against him (in the case of (ii), only if force used: (a) Under the reasonable apprehension of death or GBH from the person who he has assaulted/provoked
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(b) In the belief, on reasonably grounds, that it¶s necessary to preserve himself from death or GBH (c) He declined further conflict and quitted or retreated from it as far as it was feasible to do before the necessity of preserving himself from death or GBH S 37: This is used only where other provisions don¶t apply

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6. NECESSITY(pg.315) The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed. - R. v. Latimer, [2001] 1 S.C.R. 3 The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed. (a) Where one acts in response to an emergency situation (b) CL defence, applies to any offence (c) Results in full acquittal (d) probably not available for murder (hard to imagine harm proportionate to death) [Latimer]. R v. Latimer [2001] SCC The defence of necessity is narrow and of limited application to criminal law. The accused must establish the existence of 3 elements: (1) Imminent peril or danger: Disaster must be imminent, or harm unavoidable and near ± it isn¶t enough that peril is foreseeable or likely, it has to be on the verge of transpiring (e.g., here, the accused did not himself face any peril, and T¶s ongoing pain did not constitute an emergency in this case. T¶s proposed surgery did not pose an imminent threat to her life, nor did her medical condition. It was not reasonable for the accused to form the belief that further surgery amounted to imminent peril, particularly when better pain management was available) (2) No reasonable legal alternative to the course of action: Ask, given that the accused had to act, could he nevertheless realistically have acted to avoid peril or prevent harm without breaking the law? (e.g., here, the accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on, with what was unquestionably a difficult situation, by helping T to live and by minimizing her pain as much as possible or by permitting an institution to do so) (3) Proportionality between the harm inflicted and the harm avoided (e.g., here, leaving open the question of whether the proportionality requirement could be met in a homicide situation, the harm inflicted in this case was immeasurably more serious than the pain resulting from T¶s operation which the accused sought to avoid. Killing a person ² in order to relieve the suffering produced by a medically manageable physical or mental condition ² is not a proportionate response to the harm represented by the non-life threatening suffering resulting from that condition). What standard to employ? For the first 2 of the 3 elements, a modified objective test is employed (i.e. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person, including his ability to perceive the existence of alternative courses of action). The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise HELD: The trial judge was correct to remove the defence from the jury since there was no air of reality to any of the three requirements for necessity.

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7. DURESS The defence of duress is available under section 17 of the Criminal Code and at common law. Section 17 identifies a limited defence, but the common law and Charter have been used to extend its application. - R. v. Hibbert, [1995] 2 S.C.R. 973 - R. v. Ruzic, [2001] 1 S.C.R. 687 ______________________________________________________________________________ The defence of duress is available under section 17 of the CC and at common law. Cases where accused was acting under compulsion of threats from another. Section 17 identifies a limited defence, but the common law and Charter have been used to extend its application. Sec. 17 Requirements: 1. The threats by which the accused is compelled must be of immediate death or bodily harm 2. The threats must emanate from a person who is present when the offence is committed 3. The accused must believe the threats will be carried out 4. The accuse must not be a party to a conspiracy or association CL defence of duress coexists with s. 17 CC because a defence that punished morally involuntary behavior would violate s. 7 of the Charter. Acts of moral involuntariness should not be criminally blameworthy. SCC struck down only the immediacy and presence requirements. S. 17 applies only to principal offenders, and the CL defence of duress applies to other parties. Thus juries sometimes have to be instructed about both defences of duress. CL defence applies to all accused who act as accomplices to crimes under s. 21(1) (b) and (c) and 21(2). Principal offender can rely on the CL defence if it¶s not a listed excluded offence. CL defence of duress and CL excuse of necessity have the same juridical basis evidential burden on accused D to bring air of reality to all elements: 1. Threat of death/serious bodily harm (mod obj/subj=reasonable person in the accused's circumstances). Need not to be imminent, but there is a need for close temporal connection between the threat and the harm threatened. Threats need not be made by a person who is at the scene of the crime (no presence requirement) (Ruzic) 2. No safe avenue of escape and no legal way out(mod obj/subj) (Hibbert): what a reasonable person in the accused's circumstances would have perceived as a safe avenue of escape and a legal way out. The A will be obliged to seek a realistic and safe avenue of escape. 3. Proportionality (obj) between the harm avoided and harm caused by the A. A murder can be a proportionate response to a threat, but not if a non-life-threatening pain. The appropriate objective standard to be employed is one that takes into account the particular circumstances and frailties of the accused. When considering the perceptions of a ³reasonable person´, the personal circumstances of the accused are relevant and
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important, and should be taken into account (Hibbert). duress will not negate the MR required to be a party to an offence. CL defence of duress excuses A's behaviour (Hibbert). If successful, results in acquittal R v. Hibbert [1995] SCC -the common law defence to duress is whether there was a ³safe avenue of escape,´ which is to be assessed by a modified objective test (an objective standard that takes into account the particular circumstances and human frailties of the accused). This requirement assess whether the accused¶s conduct was ³normatively involuntary.´ Facts: H accompanied M at the time M shot F. H was punched in the face by M as a way of forcing H to help him find F. H helped get M down from his apartment where he was subsequently shot Reasoning: s 17 of the Code does not constitute an exhaustive codification of the law of duress. S 17 applies only to persons who commit offences as PRINCIPALS. The common law defence applies to persons liable as parties. The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence. Whether or not this is so will depend, among other things, on the structure of the particular offence in question -- that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability. A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse based defence (either the statutory defence set out in s. 17 of the Criminal Code or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea. The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress. An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. Rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. The question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account. R v. Ruzic [2001] SCC -Charter standard of Moral Involuntariness Facts: The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code. The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought
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the heroin to Canada. She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for a person ³who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed´. She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms, raised the common law defence of duress and was acquitted. The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal. Issue: Scope and constititutionality of the defence of duress Reasoning: Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. The plain meaning of s. 17 is quite restrictive in scope. The phrase ³present when the offence is committed´, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime. The immediacy and presence requirements, taken together, clearly preclude threats of future harm. While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. The underinclusiveness of s. 17 infringes s. 7 of the Charter. The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1. In any event, the criteria would likely not meet the proportionality branch of the s. 1 analysis. In particular, these requirements seemingly do not minimally impair the accused¶s s. 7 rights. The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence. The common law defence of duress frees itself from the constraints of ³immediacy´ and ³presence´. The elements include: (1) A threat to the integrity of the person: The law includes a requirement of proportionality between the threat and the criminal act to be executed. The accused should be expcted to demonstrate some fortitude to put up a normal resistance to the threat (2) The threat must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. Although the threat need not be immediate, there must be a close temporal connection between the threat and the harm threatened (i.e. the threat had to be a real threat affecting the accused at the time of the offence) (no immediacy requirement) (3) Threats need not be made by a person who is at the scene of the crime (no presence requirement). With respect to proportionality, SCC suggests in dicta to employ objectivesubjective standard of the reasonable person similarly situated, inconsistent with Latimer. Courts usually follow Latimer standard.

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THE CRIMINAL CHARGE
20. LAYING THE CHARGE - Coughlan, pp. 150 ± 154; 294 ± 296; 41 ± 50 _____________________________________________________________________________ No person may be considered an accused in the absence of a charge and, therefore, no court can have jurisdiction over the prosecution of a person in the absence of a charge. General Time of laying information before a justice when person passes from being a suspect to being an accused P is focused on proving the guilt of a particular person. Process consists of a ministerial (s. 504) and judicial function (s. 507) You cannot be an accused person without a charge being laid against you - s 504 (non-discretionary, ministerial function): Justice must receive the information where: (i) ³any person´ who has reasonable grounds to believe an offence has been committed; (ii) under oath, lays an information in writing; AND (iii) the information alleges a number of required things - s 506: An information may be laid in the manner set out in Form 2 - s 507 (substance of information considered): Once the information has been received (under s 504), the justice who received the information must consider the substance of the information¶s allegations. Essentially, judge, to endorse it, must conclude that there are REASONABLE GROUNDS, as disclosed in the information and any evidence adduced thereof, that the offence was committed [If the judge signs the information, that marks the moment at which a charge is formally laid and a prosecution begins] Trial Process Charges made by way of an information (s. 505) S. 577 allows for µdirect indictments¶. Requires consent of AG and these cannot be reviewed, nor do they offend the Charter Whole purpose of indictment is that it is fundamental to a fair trail because the accused must know the charges he or she must meet. Jurisdiction Constitution Statutes. Not limited to the CC; Competition Act, Tax Act Common law/judge-made law Procedural defenses created by the courts Rules of Court S.486 of the CC allows the courts to create their own rules. They cannot be inconsistent with statutes but they are there Public v. Private jurisdiction (p. 152f.): Public= AG principle law officer for Crown, given discretion to proceed by indictable or summary conviction procedure, requirement for consent of AG intended to ensure critical examination of cases before charges are laid, personal consent by AG not required. Private prosecutions are a private action between parties, citizens are permitted to prosecute where AG does not, these are rare, AG can intervene in any matter and assume carriage of prosecution or enter into a stay of proceedings (s. 507.1). Territorial limitation: general rule says person can only be liable for an offence he commits in Canadian territorial limits (s. 6(2)). Offence can also have a µreal and substantial¶ connection to Canada or fall within class of offence committed in Canada. Charter has minimal impact on investigations by Canadian actors outside of Canada (principle of sovereignty) (see Hape, p. 48). A prosecution may be conducted in any province or territory where an element of the offence occurred. Therefore there can be concurrent jurisdiction. The elements the Court have noted which indicates that they were committed in more then one province includes:

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(1) continuity of operation (2) commission of an overt act (3) generation of effects (R v. Bigelow)

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21. THE SIGNIFICANCE OF THE CHARGE In Canada, a trial is not an inquiry into whether the accused has committed some criminal offence. It is a trial to determine whether the Crown prosecutor can prove the specific allegation that has been made, beyond a reasonable doubt. The accused is in jeopardy of conviction only for the offence charged, and for any offences that are ³included´ in the criminal charge. - R. v. G.R., [2005] S.C.J. No. 45 ______________________________________________________________________________ The accused is in jeopardy of conviction only for the offence charged, and for any offences that are ³included´ in the criminal charge, but nothing more: R v. G.R., [2005] SCC Facts: GR acquitted of the charge of incest. Issue: Whether the rules governing ³included´ offences under s 662 of the Criminal Code can be applied to justify the result in this case of the respondent being found guilty of sexual assault/sexual interference, but being acquitted of the charge of incest (Was the charge of incest found in attempted sexual assault?) Ratio: It is fundamental to a fair trail that an accused knows the charge or charges he or she must meet ± the proper focus is on what the Crown alleges, not on what the accused already knows. An accused will often know a good deal more about the circumstances of an offence than the police or Crown will ever know, but it is not enough for the Crown to say to an accused "you know perfectly well what you're guilty of". The basis of our criminal law is that he or she is only called upon to meet the charge put forward by the prosecution. The Crown seeks to have the respondent convicted of charges which require the prosecution to establish elements which were not part of the allegations against him at trial. An important function of an indictment is thus to put the accused on formal notice of his or her potential legal jeopardy. The Crown did not allege that the daughter was below the age of consent on the indictment, and there is nothing in the nature of the offence of incest as described in the CC to put the respondent on notice that he was in jeopardy of a conviction for sexual assault or sexual interference R cannot be convicted of sexual assault or sexual interference because the Crown cannot bring these offences within any of the three categories of "included offences" set out in s. 662 of the Criminal Code: (1) the Criminal Code does not explicitly make sexual assault or sexual interference an offence included in incest; (2) incest as "described in the enactment creating it" does not include sexual assault or sexual interference; and (3) the wording of the count in this case does not describe facts to put an accused on notice that, if proven, such facts taken together with the elements of the charge, would disclose the commission of sexual assault or sexual interference.

The corollary, however, is that acquittal on the charge of incest does not provide R with a defence of autrefois acquit to any future charge of sexual assault or sexual interference. An
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accused is entitled to know which amongst those charges available he or she is required to answer The subject of included offences is now governed by statute, and s. 662 authorizes convictions for "included" offences in only three categories: offences included by statute, e.g. those offences specified in s. 662(2) to (6), and attempts provided for in s. 660; offences included in the enactment creating the offence charged, e.g. common assault in a charge of sexual assault; offences which become included by the addition of apt words of description to the principal charge. In none of these categories is there reference to the "sufficiency" of the factual particulars of the transaction underlying the charge. That is a wholly different subject and is dealt with in s. 581 of the Code "included" offences in the first category can be ascertained from the Criminal Code itself: see, e.g., R. v. Wilmot, [1941] S.C.R. 53. Cases in the second category also meet the test of fair notice because "an indictment charging an offence also charges all offences which as a matter of law are necessarily committed in the commission of the principal offence as described in the enactment creating it" (Harmer and Miller, at p. 19; emphasis added). With respect to the second category, it may be said that "[i]f the whole offence charged can be committed without committing another offence, that other offence is not included", that is an offence would be included where the essential elements of this offence are part of the offence charged. Clearly the offence of incest can be committed without committing sexual assault or sexual interference. third category: What is required are words of description in the count itself of facts which put an accused on notice that, if proven, such facts taken together with the elements of the charge, disclose the commission of an "included" offence: Allard. Of course, the added words must be pertinent to the offence charged. The charge must be so worded that the accused is afforded reasonable notice of the offence or offences alleged to be included in the principal offence charged. Moreover, the offence must be one which is properly included in the count. The Crown says the evidence subsequently led in the case shows that commission of incest in this case would necessarily have involved the commission of sexual interference and a sexual assault due to the age of the daughter, and that the age of the daughter must have been within the knowledge of the respondent, but there is nothing in s. 662 that permits the Crown to supplement the allegations in the charge, or the elements of the enactment creating the offence, by reference to the personal knowledge of an accused. HELD: Crown cannot add these charges

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22. THE VALIDITY OF THE CHARGE - Coughlan, pp.296 ± 312 ______________________________________________________________________________ 1) Joinder and Severance of Charges (p. 296) As a general rule, there are few restrictions on the structure of indictments. An indictment can contain any number of ³counts´, each count encompassing a ³single transaction´ (s. 581(1)), a phrase given a broad interpretation. Few restrictions on structure of indictments, can charge multiple counts in one. It is now even possible to hold a trial on one or more indictments simultaneously provided the accused consents, or the trial judge feels that it is in the interests of justice and the charges could have been jointly charged in a single indictment (R. v. Clunas (1992) (S.C.C.)). Section 589 prevents any charge from being joined with murder, though even this rule is subject to exceptions if the other offence arises out of the same ³transaction´ or the accused consents to joinder (s. 473(1.1)). Summary conviction and indictable offences can be tried together provided the accused¶s election and the other procedures make it possible to do so (Clunas). Otherwise the limits on joinder of counts are assessed case-by-case according to the criteria in s. 591(3). Several indictments can be tried simultaneously w/ consent of accused or if in the interest of justice Murder cannot be joined unless there is µone single transaction¶ or µconsent¶. The Code gives little guidance on severance decisions, stating only that the court must do so where ³the interests of justice require´ (s. 591(3)). A preliminary inquiry judge does not have jurisdiction to sever, it must be done by a trial judge (R. v. Hynes (2001) (S.C.C.)). This decision is subject to review on appeal, but should not be interfered with unless he acted unjudicially (R. v. Litchfield (1993) (S.C.C.)). However, s. 591(4) allows the order to be made before or during trial, with the jury being discharged with regard to any counts or accused that are severed during trial. Severance done by trail judge, not in µpreliminary hearing¶ Severance can be appealed. Courts have developed considerations to take into account with regard to severing counts. Society has an interest in avoiding a multiplicity of proceedings, and so the onus is on the accused to show on a balance of probabilities that separate trials should be held (R. v. Cross (1996) (Que. C.A.)). With regard to severing counts, other factors to consider are the factual and legal nexus between counts, complexity of the evidence, whether the accused wishes to testify on some counts and not others, and whether similar act evidence will be introduced (R. v. D.A.C. (1996) (B.C.C.A.)). Trial judges must take significant care in distinguishing between the issues of severability and similar fact evidence, particularly as the onus is on the accused for the first and the on the Crown for the second (R. v. Arp (1998) (S.C.C.)). Avoid multiplicity of proceedings, therefore accused must show on BOP interest Factors to take into account when deciding severance to separate trial. Where an application to sever is made later in the trial, it ought to be based on some prejudice that was not apparent at the start (D.A.C.). At such a late stage, however, the burden on the accused is heavy and an assertion that the accused wished to testify on some counts but not others would not be sufficient. The accused would be required to outline the basic nature of the proposed defence to justify severance and the consequent re-trial on the severed charges
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(D.A.C.). Move to sever mid trial will face heavy burden and should be based on a prejudice that was not apparent at start of trial. 2) Joinder and Severance of Accused Similar considerations arise here as in the severance of counts. However, even more strongly in these circumstances, the practical goal of avoiding multiple proceedings favours not holding separate trials over the same facts unless it is necessary. Similar to severance above. The general rule, adhered to quite firmly, is that the accused who are alleged to have committed a crime together should be tried together (R. v. Chow (2005) (S.C.C.)). When co-accused blame one another, and cross-examine one another on issues of propensity or similar issues (in ways not available to the Crown), this could result in one¶s right to fair trial conflicting with the coaccused¶s right to silence. Even then, the Court has held that the solution is not to sever the trials, but to balance the competing rights of the two accused along with the interests of the State in a joint trial: where there is a ³cut-throat defence´, the policy reasons favouring joint trial apply with equal or greater force than normally (R. v. Crawford, R. v. Creighton (1995) (S.C.C.)). General Rule where co-accused with same facts should be heard together TJ has jurisdiction to sever the trial in accordance with s. 591(3), if required in the interests of justice. The fact that one of the accused would be a compellable witness for the other accused in a separate trial but not in a joint trial is relevant, but not determinative. In R. v. Agawa and Mallett (1975) (Ont. C.A.), for example, the Ontario CAupheld the trial judge¶s decision not to sever, as there was insufficient evidence that the co-accused would have given useful evidence to the applicant even if he had been compelled. The question is whether the co-accused¶s evidence could reasonably affect the verdict by creating a reasonable doubt (R. v. Torbiak and Gillis (1978) (Ont. C.A.)). Much will depend on the facts of the individual case (R. v. Boulet (1987) (Que. C.A.)). The fact that some evidence will be admissible against one accused but not another is relevant, but not sufficient in itself to require severance. The SCC in R. v. Guimond (1979) (S.C.C.) has suggested however that in conspiracy trials, where the evidence is much stronger against one accused, and particularly where a damaging statement will be admissible against one but not the other, the safer course is to order separate trials. Fact that co-accused are compellable witnesses for one another is NOT determinative of severance Case-by-case decision. 3) Content of Charges Any count ³shall contain in substance a statement that the accused or defendant committed an indictable offence specified therein´ (s. 581(1)). The key rule as spelled out in s. 581(3) is that: ³A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.´

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The important part is that the accused is given sufficient notice of the charges (s. 581(5)). The Code specifies that an absence of detail does not automatically render a count insufficient, and lists in s. 583 omissions that are not fatal: (a) it does not name the person injured or intended or attempted to be injured; (b) it does not name the person who owns or has a special property or interest in property mentioned in the count; (c) it charges an intent to defraud without naming or describing the person whom it was intended to defraud; (d) it does not set out any writing that is the subject of the charge; (e) it does not set out the words used where words that are alleged to have been used are the subject of the charge; (f) it does not specify the means by which the alleged offence was committed; (g) it does not name or describe with precision any person, place or thing; or (h) it does not, where the consent of a person, official or authority is required before proceedings may be instituted for an offence, state that the consent has been obtained. Section 581(3) also deals with the ³surplusage rule´, i.e. additional, unnecessary detail. This means a fact that need not be proven, despite being alleged. In R. v. N.C. (1991) (Que. C.A.)), the accused was charged with trafficking in cocaine, although the evidence at trial showed that the substance she claimed to be cocaine was actually a mixture of baby powder and aspirin. This would have been an offence nonetheless, since the Narcotic Control Act provision also made it an offence to traffic in any substance held out to be a narcotic. However, the court held that, having charged the accused with trafficking cocaine, the Crown was obliged to prove the substance was cocaine, and its failure to do so would lead to an acquittal. Similarly, in R. v. Saunders (1990) (S.C.C.), the Crown charged a number of accused with conspiracy to import heroin. The charge would have been perfectly acceptable had it not specified which narcotic was to be imported. However, having specified heroin, the SCC held that the Crown was obliged to prove that the conspiracy related to that narcotic in particular. Certain details or lack of information laid out may affect a conviction, however s. 583 limits omissions that do not affect the charged count Whether a detail will be considered surplusage, or whether the Crown will be held to proof of the fact, depends on whether the accused¶s defence will be prejudiced. In Saunders for example, one accused had taken the stand to testify that he had been involved in one of several conspiracies to import narcotics, but not in the particular conspiracy that was to import heroin. In that case, not holding the Crown to proof of the particular narcotic alleged would have been prejudicial. 4) Remedies for a Defective Charge The issue of what to do in the face of a defective charge is intimately bound up in the nature of the defect. (a) Potential Remedies The real issue is what to do when the charge is alleged not to be sufficient because it does not comply with the necessary requirements. In Canada, there has been a gradual shift from requiring
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judges to quash such charges, to requiring them to amend instead: there remains ³little discretion to quash´ (R. v. Moore (1988) (S.C.C.)). The accused¶s interests lie in clarity and sufficiency of notice in trial on the merits. Consequently, breach of these technical requirements can result in an accused avoiding trial occasionally, but this is a rare occurrence. There are 3 possibilities arising out of an error in an indictment: (1) If it is so flawed that it is an absolute nullity, the trial judge has no jurisdiction to hear the matter and the charge must be quashed. In that event, the accused was never in jeopardy and the Crown can simply lay a new charge without violating the double jeopardy rules. (2) If the charge is flawed but not so that it is a nullity, the trial judge must amend the charge. (3) If the accused has been prejudiced by the error, the trial judge must grant an adjournment in order to remedy that prejudice. A charge can only be quashed if the prejudice caused by the amending cannot be remedied by an adjournment (Moore). What is considered to be a defect in a charge? In a broad sense, a charge is defective when it departs from the ³golden rule´ in R. v. Cote, that the A is entitled ³to be reasonably informed of the transaction allleged against him, thus giving him the possibility of a full defence a fair trial.´ (b) Insufficient Charges (p. 306) The indictment must lift the charge from the general to the particular (R. v. Brodie). Insufficiency is an error egregious enough that the charge must be quashed (as spoken of in Moore). For insufficiency to have any greater impact, a count must violate the standard in Moore or Cote and be so badly drawn up that it does not give the A notice of the charge. This is rarely the case. (c) Duplicitous Charges (p. 310) A duplicitous count is one that charges the A with committing two different offences, and it is objectionable because the ambiguity prevents the A from knowing the case to meet. This is a distinct requirement from the ³single transaction´ rule in s. 581(1). That rule limits a count to a single factual situation, while the duplicity rule limits it to a single legal issue. TJ can divide a count on application of the A pursuant to s. 590 (2)(b).

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THE ADVERSARIAL PROCEEDING
23. THE ADVESARIAL PROCESS As indicated, a trial is the opportunity for the Crown prosecutor to prove the specific allegation made in the charge (information or indictment) beyond a reasonable doubt. The key characteristic of the Canadian criminal trial is therefore the specific allegation, canvassed above in the discussion of the charge. This is done during a trial. It is helpful to understand the trial process to situate what follows: - Coughlan, pp. 312 - 331 (a) The Presumption of Innocence and the Ultimate Standard of Proof ± At a Canadian trial, the accused is presumed to be innocent, a right guaranteed by s.11(d) of the Charter. This means that ultimately, at the end of the whole case, the Crown must prove the guilt of the accused beyond a reasonable doubt. This is the Crown¶s ultimate burden in both a criminal or regulatory prosecution. The meaning of proof beyond a reasonable doubt is described in R. v. Lifchus and in R. v. Dinardo. - R. v. Lifchus, [1997] 3 S.C.R. 320 - R. v. S.(J.H.), [2008] S.C.J. No. 30 - R. v. Dinardo, [2008] S.C.J. No. 24 (b) Other Burdens ± While the Crown prosecutor must prove guilt beyond a reasonable doubt at the end of the case, there are other burdens of proof that operate during the criminal process. There are ³evidential´ burdens that some rules of law impose in order for a party who wishes a matter to be placed in issue to succeed in having that matter placed in issue. For example, if at the end of the Crown¶s case in chief the defence argues that there is no ³case to meet´ and requests a ³directed verdict of acquittal´ the judge will evaluate whether the Crown has shown a prima facie case. This is the same standard that applies where the accused is entitled to and requests a preliminary inquiry to determine whether there is a case to answer; the preliminary inquiry judge will discharge the accused unless the Crown can show a prima facie case. The meaning of the prima facie case is discussed in R. v. Arcuri (next page). Even the accused must at times satisfy an evidential burden in order to have a matter placed in issue. Indeed, if the accused wants to have a defence considered, the accused must show that the defence has an ³air of reality´ to it. If the accused succeeds, the judge must consider the defence, and in a jury trial must direct the jury on the law that applies to that defence: R. v. Cinous and R. v. Fontaine illustrate this. There are numerous rules of evidence called ³presumptions´ that operate to assign burdens of proof on the accused. A presumption is a rule of law that directs judges and jury to assume that a fact is true (known as the ³presumed fact´) in any case where the Crown proves that another fact is true (known as the ³basic fact´), unless the accused can rebut the presumed fact according to the assigned standard of proof. Those presumptions known as ³mandatory presumptions´ can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact
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follows from the basic fact. Where a mandatory presumption is rebutted, the ³presumed fact´ falls back into issue notwithstanding the presumption, and must be proved by the Crown in the ordinary way, without the assistance of the presumption. Other presumptions operate as ³reverse onus provisions,´ deeming the presumed fact to exist where the Crown proves the basic fact unless the accused disproves the presumed fact on the balance of probabilities. A presumption can be easily recognized as a ³mandatory presumption´ because the legal rule raising the presumption will use the term ³evidence to the contrary´ to describe the burden of rebuttal. A presumption will be interpreted as a ³mandatory presumption´ where it fails to set out the required standard of rebuttal because of s. 25 (1) of the Intepretation Act. Many presumptions operate in alcohol driving prosecutions and are used to determine whether the accused has more than a legal amount of alcohol in his blood while driving or having care or control of a motor vehicle: See, for example, s. 258 (1) (a), [a reverse onus provision] and ss. 258 (1) (c), (d.1) and (g), all mandatory presumptions. Presumptions are prima facie contrary to the Charter and must be saved under s. 1. R. v. Arcuri, [2001] S.C.J. No. 52 R. v. Cinous, [2002] S.C.J. No. 28 R. v. Fontaine, [2004] S.C.J. No. 23 R. v. Oakes, [1986] 1 S.C.R. 103 R. v. Boucher, [2005] S.C.J. No. 73

(c) The Neutral Impartial Trier - Another critical component of the accusatorial system is the presence of a neutral, impartial trier of law (to make legal decisions) and a neutral impartial trier of fact (to make factual findings at the end of the trial). In Canada, more than 95% of all criminal trials are conducted by a judge alone, so the judge performs the role both of the trier of law and the trier of fact. Where there is a jury trial, the judge acts as the trier of law, and the jury as the trier of fact. This means that the judge makes all legal and procedural decisions during the trial, and directs the jury by training them in the law that applies. The jury then makes the factual decision and renders the holding. In Canada the appropriate sentence is a question of law, and therefore sentencing is done by the judge and not by the jury. Indeed, the jury should not be told of the possible sentences for fear that this will inspire a sympathetic rather than a legal verdict. Requiring the judge to remain neutral and impartial does not require the judge to remain passive. Still, the essence of the adversarial system is that the parties initiate the proof that is brought forward, not the judge. - Coughlan, pp. 339 - 349 - R. v. Gunning, [2005] S.C.J. No. 25 - R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.) (d) The Role of the Prosecutor - The prosecutor is an advocate, but also a quasi-judicial officer. This means that the prosecutor cannot act solely as an advocate, but must make decisions in the interests of justice and the larger public interest, including the interests of the accused. The prosecutor has many discretionary decisions that can be made and should act as a ³minister of justice.´

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See, for example, Chapter IX (The Lawyer as Advocate) of the Canadian Bar Association Code of Professional Conduct (http://www.cba.org/CBA/activities/code/). Candidates should consult The Rules of Professional Conduct in force in the jurisdiction where they are writing by reviewing the Role of the Prosecutor. - R. v. Cook, [1997] 1 S.C.R. 1113 - R v. Proulx, [2001] S.C.J. No. 65 - Krieger v. Law Society of Alberta, [2002] S.C.J. No. 45 (e) The Role of the Defence - The defence counsel is an officer of the court, and therefore must be respectful and honest with the court and must not attempt to mislead the court as to the state of the law. Subject to this and the rules of law and ethics, the defence counsel is obliged to act solely in the interests of the accused, advising the accused on the implications of, and propriety, of pleading guilty, securing advantage of all procedural and constitutional protections available to the accused that are not properly waived; and if the accused pleads not guilty, preparing the case fully, challenging the sufficiency of prosecutorial evidence, and advancing all defences that properly arise. See, for example, Chapter IX (The Lawyer as Advocate) of the Canadian Bar Association Code of Professional Conduct (http://www.cba.org/CBA/activities/code/). Candidates should consult. The Rules of Professional Conduct in force in the jurisdiction where they are writing by reviewing the Role of the defence counsel, including relating to pleas of guilty. As indicated, a trial is the opportunity for the Crown prosecutor to prove the specific allegation made in the charge (information or indictment) beyond a reasonable doubt. The key characteristic of the Canadian criminal trial is therefore the specific allegation, canvassed above in the discussion of the charge. This is done during a trial. It is helpful to understand the trial process to situate what follows: a) The Presumption of Innocence and the Ultimate Standard of Proof The accused is presumed to be innocent, a right guaranteed by s.11(d) of the Charter. The Crown must prove guilt BRD: R v. Lifchus [1997] SCC Beyond Reasonable Doubt Cory J. used the case as an opportunity to describe the significance of the "reasonable doubt" standard. He described it as a fundamental principle in criminal justice and was intertwined with the presumption of innocence. As such, the description of the meaning to the jury must be done very carefully. Cory J. provides a series of principles upon which a trial judge must formulate their definition of "reasonable doubt" to a jury. ³It should be explained that: The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; The burden of proof rests on the prosecution throughout the trial and never shifts to the accused; A reasonable doubt is not a doubt based upon sympathy or prejudice; Rather, it is based upon reason and common sense; It is logically connected to the evidence or absence of evidence; It does not involve proof to an absolute certainty; it is not proof
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beyond any doubt nor is it an imaginary or frivolous doubt; and More is required than proof that the accused is probably guilty ± a jury which concludes only that the accused is probably guilty must acquit. On the other hand, certain references to the required standard of proof should be avoided. For example: Describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context; Inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives; Equating proof "beyond a reasonable doubt" to proof "to a moral certainty"; Qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and Instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt".´ Held: BRD does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt. More is required than proof that the accused is probably guilty. It must not be based upon sympathy or prejudice. Rather, it is based on common sense; it is logically derived from the evidence or absence of evidence. A jury charge that includes these considerations will be a valid one. There is no magic incantation R v. S. (J.H.) [2008] SCC²No shifting burden Held: Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding. It must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. Where credibility is important, the trial judge's instructions must not leave the jury with the impression that it has to choose between the two versions of events. The "credibility contest" error must be avoided. Lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. However, the application of W. (D.) should not result in triumph of form over substance. In this case, the reasoning of the majority brushes uncomfortably close to treatment of W. (D.) as a "magic incantation". When read as a whole, the charge did not leave the jury with any misapprehension as to the correct burden and standard of proof to apply. The trial judge told the jury that they could not decide the case simply by choosing between the evidence of the complainant and that of the accused. She explained that even if they did not accept all of the accused's testimony, they could still accept some of it. She also explained that any reasonable doubt must be resolved in favour of the accused and, in that context, she reminded the jury that they must consider all of the evidence when determining reasonable doubt. This was sufficient.

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R v. Dinardo [2008] SCC Judge must provide reasons as to why he came to the decision that the accused was guilty beyond a reasonable doubt. Failure to do so would deprive Convicted of their right to a meaningful appeal where trial judges reasons not clear, reviewing court should not subsitute its own analysis for the lack of the trial judge¶s. Facts: a cab driver, convicted of sexual assault and sexual exploitation of a passenger, who is mildly mentally challenged. Voir dire was held to determine whether the complainant was competent to testify. The trial judge said yes. The complainant's answers on the central parts of her allegations were consistent. However, she gave contradictory answers on many points. She also gave conflicting testimony about inventing the allegations. In assessing the complainant's credibility, the trial judge emphasized that she did not contradict herself on the important aspects of her allegations. He also concluded that her evidence at trial was corroborated by her out-ofcourt statements made shortly after the alleged incident. A majority of the CA upheld the convictions. The trial judge erred in using the complainant's prior consistent statements to corroborate her evidence, but the majority concluded that the improper use of the statements did not justify a new trial because Dinardo suffered no prejudice. Issue: Dinardo appealed his conviction on the grounds that the trial judge misdirected himself on the issue of credibility and failed to provide sufficient reasons to allow for meaningful appellate review Held: Appeal allowed. A new trial is ordered. Reasons are sufficient when they respond to the case's live issues. The complainant's truthfulness was a live issue, and the trial judge erred by failing to explain how he reconciled the inconsistencies in the complainant's testimony, particularly on the issue of whether she invented the allegations. The defence rested on the overall lack of credibility and reliability of the complainant's testimony. It was incumbent upon the trial judge to explain, even in succinct terms, how he resolved these difficulties to reach a verdict beyond a reasonable doubt. His failure to do so deprived Dinardo of his right to a meaningful appeal. Where the trial judge's reasoning is not apparent from the reasons or the record, the reviewing court should not substitute its own analysis of the evidence for that of the trial judge, as the majority of the CA did here. (b) Other Burdens - Prima facie case: For directed verdicts, and to be able to pass through the preliminary inquiry stage, the defence and the Crown, respectively, must show that there is a prima facie case. The test is whether there is any evidence upon which a reasonable trier of fact, properly instructed, could convict (Arcuri). In Arcuri, a complicated situation arose, because the evidence was entirely circumstantial. The test (above) applies in this context as well. But the nature of the judge¶s takes varies according to the type of evidence that the Crown has advanced.

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For circumstantial evidence, the judge is required to determine what reasonable inferences can be made (i.e. whether elements of offence may be reasonably inferred from evidence). This requires limited weighing, i.e., not entitled to ask whether accused is guilty. The judge only asks whether the evidence, IF BELIEVED, could reasonably support an inference of guilt. R. v. Arcuri [2001] SCC Facts: The accused was charged with first degree murder. At the preliminary inquiry, the Crown's case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected the accused's contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused should be committed to trial for second degree murder. The accused's certiorari application was dismissed and that decision was affirmed by the Court of Appeal. The issue before this Court was whether the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, erred in refusing to weigh the Crown's evidence against the allegedly exculpatory direct evidence adduced by the accused. Held: The appeal should be dismissed. Reasons: The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The question that arises in this case is whether the preliminary inquiry judge's task differs where the defence tenders exculpatory evidence. The task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. This task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. In this case, before committing the accused to trial, the preliminary inquiry judge considered the evidence as a whole, surveying the circumstantial evidence presented by the Crown, as well as the allegedly exculpatory evidence tendered by the defence. There is no reason to believe that he arrived at the wrong result in committing the accused to trial. Notwithstanding certain confusing language in Mezzo and Monteleone, nothing in this Court's jurisprudence calls into question the continuing validity of the common law rule in Shephard. - Evidential burden for putting forward defences: R v Cinous (In criminal cases, the accused may have an evidential burden where she seeks to rely upon positive defences, like self defence; ³air of reality test´): The correct approach to the air of reality test is well established: the test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit (assuming the evidence to be true); in other
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words, a defence should be put to a jury if and only if there is an evidential foundation for it. Whether there is an air of reality to a defence is a question of law. Two principles derive from this test: (1) a judge must put to the jury all defences that arise on the facts which have an air of reality (2) they must keep from the jury defences lacking an evidential foundation. In applying the test, look at the totality of the evidence, and the purpose is not aimed at establishing the substantive elements of the defence. R v Fontaine [2004] SCC (Putting in play ³reverse onus´ defences just requires evidential, not persuasive burden): In Stone, it appeared that the accused needed to discharge a persuasive burden before the jury could even hear the defence of non-mental disorder automatism. In Fontaine, the Court altered this. It was held that all the accused has to do is put forward SOME evidence capable of supporting the defence. Held: The appeal should be dismissed. The accused's defence of mental disorder automatism should have been put to the jury. If there is some evidence upon which a properly instructed jury could reasonably conclude that an accused probably perpetrated the alleged criminal act in a state of automatism, the evidential burden has been discharged and the defence is in play before the jury. An "evidential burden" is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the "persuasive burden" determines how the issue should be decided. These are fundamentally different questions. The first is a matter of law; the second, a question of fact. Accordingly, on a trial before judge and jury, the judge decides whether the evidential burden has been met. In answering that question, the judge does not evaluate the quality, weight or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue. In the case of "reverse onus" defences, such as mental disorder automatism, it is the accused who bears both the persuasive and the evidential burdens. In these defences, the persuasive burden is discharged by evidence on the balance of probabilities. As regards all affirmative defences, the evidential burden will be discharged where there is some evidence that puts the defence "in play"; the defence will be in play whenever a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused. Where mental disorder automatism is raised as a defence, an assertion of involuntariness on the part of the accused, supported by evidence from a qualified expert which, if accepted by the jury, would tend to support that defence, will normally provide a sufficient evidentiary foundation for putting the defence to the jury. Accompanying instructions in law will make it clear to the jury that the burden remains on the accused to establish the defence to the required degree of probability. - Burden to rebut a presumption: There are numerous rules of evidence called ³presumptions´ that operate to assign burdens of proof on the accused. A presumption directs judges/jury to assume that a fact is true (known as the presumed fact) in any case where the Crown proves that another fact is true (known as the basic fact), unless the accused can rebut the presumed fact according to the assigned standard of proof. (1) ³Mandatory presumptions´ can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact follows from the basic fact. A presumption can be
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recognized as a ³mandatory presumption´ because the legal rule raising the presumption will use the term ³evidence to the contrary´ to describe the burden of rebuttal. A presumption will be interpreted as a mandatory presumption where it fails to set out the required standard of rebuttal. (R v. Boucher) R v. Boucher [2005] SCC The accused was charged in Municipal Court with operating a vehicle while his blood alcohol level exceeded the legal limit. His blood analysis certificates indicated 93 and 92 mg. He testified that he had drunk two large beers during the few hours prior to his arrest. The defence expert asserted that, where a person with the accused's physical characteristics consumed this amount, the normal result would be much less than the level recorded on the certificates. The trial judge found the accused guilty. In her opinion, the accused's testimony was not credible, and she rejected the related expert opinion. She concluded that the statutory presumption in s. 258(1)(g) of the Criminal Code that the test results were accurate had not been rebutted. On appeal, the Superior Court set aside the guilty verdict on the basis that the evidence as a whole, including the expert's testimony, raised a reasonable doubt in favour of the accused. The majority of the Court of Appeal affirmed the acquittal. Held: The appeal should be allowed and the guilty verdict restored. The standard of proof that must be met to rebut the presumption of accuracy is reasonable doubt. The defence has no burden of proof. Evidence to the contrary that raises a reasonable doubt that the certificate correctly reflects the blood alcohol level at the time when the offence was alleged to have been committed is sufficient to rebut the presumption under s. 258(1)(g). In the case at bar, it cannot be found based on the evidence that there is a reasonable doubt as to the accuracy of the results of the breathalyzer tests. The trial judge rejected the accused's testimony on the basis that it was not credible, and an expert opinion based on that testimony cannot constitute evidence to the contrary. Furthermore, the expert evidence merely provides theoretical information without regard for the accused's personal level of alcohol tolerance, the results of the tests themselves cannot be used to demonstrate their own inaccuracy, and the absence of symptoms of intoxication, although relevant as a defence to a charge of impaired driving, is not significant where the charge is driving with a blood alcohol level exceeding 80 mg. Finally, in concluding that only the expert evidence would have been capable of constituting evidence to the contrary if it had had any basis, the trial judge necessarily assessed the evidence as a whole. Rules in ss. 258(1)(c), 258(1)(d.1) and 258(1)(g) of the Criminal Code The standard of proof that must be met to rebut the presumptions of identity and accuracy is the same: reasonable doubt. The defence has no burden of proof. Where there is evidence tending to show (1) that the blood alcohol level recorded on the certificate is not the same as the level at the time of the offence, (2) that the level did not exceed 80 mg or (3) that the certificate does not accurately reflect the blood alcohol level, the court does not have to be satisfied on a balance of probabilities. This evidence can come from that adduced by the Crown or the accused. In Proudlock, in explaining the expression "evidence to the contrary" in s. 306(2)(a) Cr. C., the Court made the following comment:

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... [A]ll the presumption does is to establish a prima facie case. The burden of proof does not shift. The accused does not have to "establish" a defence or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt. [Emphasis added; at pp. 548-49.] 16 This standard was applied by this Court to the expression "evidence to the contrary" in s. 258(1) Cr. C. in R. v. Crosthwait, [1980] 1 S.C.R. 1089, and in St. Pierre, at p. 850. 17 Section 258(1)(c) Cr. C. expressly provides that the alcohol level measured by a test administered within two hours after the vehicle was driven is, "in the absence of evidence to the contrary", the same as the level at the time when the offence was alleged to have been committed. Although s. 258(1)(g) Cr. C. does not use the expression "in the absence of any evidence to the contrary", those words are included therein by implication because of s. 25(1) of the Interpretation Act, R.S.C. 2985, c. I-21, which allows the presumption to be rebutted by evidence to the contrary: 25.(1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary. See St. Pierre, at para. 26, and P. Béliveau and M. Vauclair, Traité général de preuve et de procédure pénales (11th ed. 2004), at para. 830. 17 Section 258(1)(c) Cr. C. expressly provides that the alcohol level measured by a test administered within two hours after the vehicle was driven is, "in the absence of evidence to the contrary", the same as the level at the time when the offence was alleged to have been committed. Although s. 258(1)(g) Cr. C. does not use the expression "in the absence of any evidence to the contrary", those words are included therein by implication because of s. 25(1) of the Interpretation Act, R.S.C. 2985, c. I-21, which allows the presumption to be rebutted by evidence to the contrary: Differences Between the Presumptions 18 Although the differences between the presumptions are evident from reading s. 258(1) Cr. C., the courts tended to confuse them. This Court therefore clarified these differences in St. Pierre. 19 The presumption of identity in s. 258(1)(c) Cr. C. can be rebutted by evidence that tends to show that the blood alcohol level at the time when the offence was alleged to have been committed was different from the level measured at the time of the breathalyzer test (St. Pierre, at paras. 44, 46 and 49). Thus, in St. Pierre, the accused consumed two miniature bottles of vodka after being arrested but before taking a breathalyzer test, and this fact was capable of rebutting the presumption that the blood alcohol level measured at the time of the test was the same as the blood alcohol level at the time she was driving her vehicle. 20 Such evidence to the contrary adduced to rebut the presumption of identity does not deprive the prosecution of the benefit of the presumption that the certificate accurately states the blood alcohol level at the time of the breathalyzer test (the presumption of accuracy). The Crown can still prove that the accused's blood alcohol level at the time when the offence was alleged to have been committed exceeded 80 mg; one piece of evidence would then be the reading taken by the breathalyzer, the accuracy of which is not in dispute. Additional evidence would be needed, however, to prove the blood alcohol level at the time when the offence was alleged to have been
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committed. 21 Evidence to the contrary that is adduced to rebut the presumption of accuracy in s. 258(1)(g) Cr. C. must tend to show that the certificate does not in fact correctly reflect the blood alcohol level at the time of the breathalyzer test. This evidence must raise a reasonable doubt about the accuracy of the breathalyzer result. 22 Shortly after St. Pierre, Parliament amended the Criminal Code to add s. 258(1)(d.1) Cr. C., which expands the presumption of identity. According to this new provision, where the accused's blood alcohol level exceeded 80 mg at the time of the breathalyzer test, it will be presumed, in the absence of evidence to the contrary, to have exceeded 80 mg at the time when the offence was alleged to have been committed. The effect of the enactment of s. 258(1)(d.1) Cr. C. was not to change the type of evidence needed to rebut the presumption of identity in s. 258(1)(c) Cr. C. or the presumption of accuracy in s. 258(1)(g) Cr. C., but to reinforce the presumption of identity. Other presumptions operate as (2) ³reverse onus provisions´, deeming the presumed fact to exist where the Crown proves the basic fact, unless the accused disproves the presumed fact on a balance of probabilities. In criminal cases, legal presumptions are often in tension with the presumption of innocence. A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact violates the presumption of innocence. If an accused bears the burden of disproving an element of the offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue (R v Oakes) (c)The Neutral Impartial Trier R v Gunning [2005] SCC: The trial judge erred in instructing the jury that the Crown had proven the "unlawful act" necessary to prove murder or manslaughter and his recharge did not cure the error. It is a basic principle of law that the jury is to decide whether an offence has been proven on the facts. The judge is entitled to give an opinion on a question of fact but not a direction. A trial judge has no duty or entitlement to direct a verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential foundation does not detract from this principle. That is, it is for the judge to direct the jury on the law and to assist the jury in their consideration of the facts, but it is for the jury, and the jury alone, to decide whether, on the facts, the offence has been proven. It is of fundamental importance to keep these functions separate. The trial judge also erred by failing to instruct the jury on the provisions of s. 41 of the Criminal Code, in respect of the defence of house or property.

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R v Hamilton: [2004] ONCA Facts: H and M were charged with importing cocaine. Both were black single mothers. M was not a Canadian citizen and faced risk of deportation. At the sentencing hearings conducted by Justice Hill, extensive social context evidence concerning poverty, gender bias and systemic racism was filed, and the judge provided 700 pages of materials. Based on this evidence, the judge concluded that the women should not receive imprisonment, but should receive conditional sentences. The Ontario CoA commented on the inappropriateness of the judges decision. Reasoning: - Judge made several findings of ³fact´ which were not supported by evidence (e.g., the respondents were paid minimal amounts and used those amounts to provide the bare necessities for their children) - The respondents didn¶t offer an explanation/description of their involvement in the crimes apart from H¶s indication that she acted out of financial need. The judge had no indication of who may have hired them, what compensation they received or what would happen to their children if they went to jail. - **Judge did not purport to base his findings of fact on any material that actually related to these respondents. Instead, he relied on his experiences in sentencing other individuals who couriered cocaine from Jamaica, and applied those generalizations to the respondents. While a judge is permitted to use common sense and wisdom gained from personal experience in judging the trustworthiness of a particular witness, the judge must avoid judging the credibility on the basis of generalizations or upon matters that were not in evidence, Cory J said in R v S (R.D.) it draws a distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context, and the findings of fact based on evidence viewed through the lens of personal judicial experience and social context. The latter is proper, the former is not. Coughlan 339-349 Powers of the Court (i)Control over the Court Process A trial judge has a variety of powers to control process in the courtroom. In addition, CC, s.482 permits superior courts to make rules of court as long as they are not inconsistent with the CC. Judges have extensive powers and discretion as to conducting trials, but must exercise caution so as not to violate the accused¶s right to a fair trial. The test is not whether the accused was actually prejudiced, but ³whether a reasonably minded person who had been present at the trial would consider that the accused had not had a fair trial´ (R. v. Valley (1986) (Ont. C.A.)). Sections 537 and 645 of the Code gives judges the power to grant adjournments during trials or other proceedings. Section 485 specifically preserves the court¶s jurisdiction over an accused despite a failure to comply with any of the Code¶s provisions concerning adjournment and remand, or even more broadly, preserves the court¶s jurisdiction despite a failure ³to act in the
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exercise of jurisdiction´. Where a court does lose jurisdiction over an accused, it can regain it by issuing a summons or warrant for the accused within 3 months, but the current proceedings are considered dismissed for want of prosecution (ss. 485(2), 485(3) and 485.1). A trial judge also has discretion as to the circumstances in which the evidence will be heard. He can exclude members of the public for all or part of the trial, if that power is used ³in the interest of public morals, the maintenance of order or the proper administration of justice´ (s. 486(1)). A judge who does not grant a request for exclusion in a sexual offence case must give reasons for doing so (s. 486(3)). Although this power conflicts with the principle that court proceedings should be open, the SCC in Canadian Broadcasting Corporation v. New Brunswick (Attorney General) (1996) (S.C.C.) held that the provision violates s. 2(b) of the Charter but is saved as a reasonable limit under s.1 as long as the following criteria are met: (i) The judge must consider the available options and consider whether there are any other reasonable and effective alternatives available; (ii) The judge must consider whether the order is limited as much as possible; and (iii) The judge must weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited to ensure that the positive and negative effects of this order are disproportionate. The burden is on the person seeking the exclusion to provide sufficient factual foundation. Section 486.1 also gives the judge some powers over the manner witnesses will testify. A witness under 18 or with mental disability is permitted to have a support person of their choice nearby when testifying, as long as the judge is of the opinion this will not interfere with the proper administration of justice ± he can order that these 2 persons not communicate during the witness testimony, for instance (ss. 486.1(1) and (4)). The judge can also allow a witness under 18 or with mental disability to testify outside the courtroom or screened away from the accused, but only where such exclusion is necessary to obtain a full and candid testimony (s. 486.2(4), (5)). Note that in such situations, the screen does not prevent the accused from seeing the witness. The judge has substantial latitude over this procedure, which has been held not to violate the Charter (R. v. Levogiannis (1993) (S.C.C.)). In conclusion, the judge has a great deal of general discretion over how the trial proceeds, from intervening to ask questions to embarking on lengthy voir dires (R. v. Felderhof (2003) (Ont. C.A.)). The overriding rule is that the trial judge¶s behaviour must not create a reasonable apprehension of bias, e.g. expressing opinions on whether the accused has presented any defence (R. v. Currie (2002) (Ont. C.A.)) or generally carrying his questions too far (R. v. Brouillard (1985) (S.C.C.)).

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(ii)Publication Bans A trial judge has the ability in exceptional situations to order a publication ban in defiance of the open court principle, which is seen as the ³hallmark of a democratic society´ and the ³cornerstone of the common law´ (Re Vancouver Sun (2004) (S.C.C.)). Most notably, CC, s.486.4 allows a judge to ban the publication of any information that would identify the complainant or a witness in various listed sexual offences. An earlier version of this provision was upheld under the Charter in Canadian Newspapers Co. v. Canada (Attorney General) (1988) (S.C.C.) on the basis that although the provision violated freedom of the press, it was saved under section 1 of the Charter because the need to encourage victims of sexual assault to report crime was both a sufficiently important objective, and made the provision minimally impairing. A similar power to seek a ban on publication of information disclosing the identity of a victim or witness is found in s. 486.5. Here, however, the ban is discretionary and the trial judge must consider a number of factors, such as the right to a fair and public hearing, the risk of harm to the witness if his identity is disclosed, the impact of the order on freedom of expression, etc. This power is only available for certain offences, such as those dealing with criminal organizations (s. 486.5(2)) and terrorism offences (s. 486.2(5)). Other particular bans in the Code include the prevention of reporting information regarding an application to admit evidence of a previous sexual activity (s. 276.3), and the prevention of publication of evidence from a trial while jurors are separated before beginning deliberations (s. 648). The Youth Criminal Justice Act also bans publication of identifying information of a young victim or witness (s. 110 and 111). Dagenais v. Canadian Broadcasting Corporation [1994] (S.C.C.) leading SCC decision on publication bans and their relation to the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. It was held that judges have a common law discretionary authority to impose publication bans on information revealed in a criminal trial. The judge, however, must weigh competing rights, such as freedom of expression and right to a fair trial, to minimize the violation of rights. It was further held that the media has a right to appeal a decision of a publication ban. Facts: Members Christian Brothers, a Catholic order, were charged with sexual abuse of young boys while they were teachers at an Ontario Catholic school. CBC made a documentary about it and wanted to air it during trial. The defence brought an application requesting the jury be charged before the airing of the show or else sequestered over the weekend of the show's airing. The judge declined and instead merely directed the jury to avoid watching the show. Defence applied for an injunction to restrain the CBC from broadcasting the show and from publishing any information relating to the show until the last of the four trials were over. The injunction was granted. On appeal, the ONCA upheld the injunction but limited it only to Ontario and Montreal, and overturned the ban on any publicity of the show. The CBC and the National Film Board of Canada appealed the decision to the SCC.

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Held: The majority of the SCC held that the publication ban was in violation of the freedom of expression under section 2(b) of the Charter. In R. v. Mentuck (2001), the SCC returned to the subject of publication bans, but this time in circumstances where the ban was sought by the Crown and no right of fair trial was at issue. Mentuck involved an undercover police investigation where a suspect is induced to give details of an offence he has committed to what he believes to be the members of a criminal organization to which he is being recruited. The Crown sought a publication ban on both names of the particular police officers involved, as well as on the release of the technique itself. The Court in Mentuck observed that the test in Dagenais ± whether a right to fair trial was compromised ± was too narrowly phrased, and that a broader range of interests would need to be contrasted with freedom of expression here. The Court therefore concluded that the real question was of finding a balance between the many possible interests that made up the proper administration of justice on one hand, and freedom of expression on the other. According to the Dagenais / Mentuck test, publication bans should only be ordered where: (i) Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (ii) The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to freedom of expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. The person seeking the publication ban has the onus. In Dagenais, the publication bans were not justified because there were various alternatives such as adjourning trials, changing venues, sequestering jurors etc. In Mentuck, the ban on the names of particular officers was justified since they were using their real names, and therefore their safety and the integrity of other undercover investigations would have been jeopardized. The ban on reporting the technique in general was not justified because the Court was unconvinced that a serious risk to the effectiveness of the technique would arise if its existence were reported in newspapers. (iii)Contempt of Court Judges¶ common law power to find people in contempt of court is expressly preserved by CC, s. 9, and the appeal procedures therefore are set out in CC, s. 10. Contempt is divided into contempt committed in the face of the court and not committed in the face of the court, a distinction still reflected in s.10. Superior courts have jurisdiction over both types of contempt, while inferior courts can only punish the former.

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The power to punish contempt is aimed at maintaining the dignity of the court and to ensure a fair trial. Contempt can cover a variety of behaviours, including refusal to answer questions under oath (R. v. K.(B.) (1995) (S.C.C.)), and the accused, witnesses or even counsel can be cited. According to R. v. Arradi (2003) (S.C.C.), a judge can respond to such behaviour in 2 ways: (i) Through the ordinary procedure, which gives the accused the usual procedural guarantees of a criminal trial; or (ii) Through a more summary procedure, which can only be used where it is urgent and imperative to act immediately, and the procedure must comply with natural justice requirements absent exceptional circumstances. In other words, ³only the least possible power adequate to the end proposed´ should be used (Arradi). This usually means a 3-step process: (i) The person is ³cited´ (i.e. put on notice) for contempt; (ii) An adjournment should be granted to give the person an opportunity to consult and possibly be represented by counsel; (iii) The person if found in contempt should be allowed to make representations as to sentence. Failure to follow this process amounts to an error of law (Arradi). Contempt proceedings can also take place in front of the jury where the contempt occurred in front of it (R. v. Doz (1987) (S.C.C.)), although it must be made clear to them that guilt for contempt has no bearing on guilt in the actual trial. (iv)Mistrials A judge has the authority to declare a mistrial at virtually any point in proceedings, from the jury selection stage (R. v. Williams (1998) (S.C.C.)) to the post-conviction but pre-sentence stage (R. v. McAnespie (1993) (S.C.C.)); even after an appeal has been launched but the sentence has not yet been handed down (R. v. MacDonald (1991) (S.C.C.)). A wide variety of issues can lead to a mistrial application, e.g. inadmissible evidence being given to the jury. A mistrial is not automatically granted in the case of such errors, and in fact is a remedy of last resort: where a judge can remedy a prejudice by less drastic means, he should do so. Such remedies would include an adjournment, re-opening the case, or instructing the jury to ignore certain submissions. Only when such remedies are insufficient should a mistrial be granted (R. v. D. (L. E.) (1989) (S.C.C.)). Not only the accused, but also the Crown can apply for a mistrial (R. v. Williams (1998) (S.C.C.)). For the most part, the authority to order a mistrial comes from the common law. It is a discretionary decision subject to appeal, although that discretion will only be interfered with if the trial judge proceeded on some wrong principle or was wrong (R. v. Bengert (No. 13) (1979)) (B.C.S.C.)). A trial judge can also declare a mistrial where he is satisfied that a jury is unable to agree on a verdict (CC, s. 653), although s. 653(2) says that discretion is not reviewable.
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As a general rule, a new trial can be held following a mistrial, and the fact of a mistrial does not allow an accused to plead autrefois acquit or autrefois convict. In particular circumstances, the Charter might prevent a new trial from being held after an improper declaration of a mistrial, but only where the principles of fundamental justice are in issue. Where a trial judge declares a mistrial to save a floundering Crown case and give it time to obtain further witnesses, for example, the Charter might prevent a new trial, but in ordinary circumstances new proceedings can be commenced (R. v. Pan (2001) (S.C.C.)). The Role of the Prosecutor The prosecutor is an advocate, but also a quasi-judicial officer. This means that the prosecutor cannot act solely as an advocate, but must make decisions in the interests of justice and the larger public interest, including the interests of the accused. The prosecutor has many discretionary decisions that can be made and should act as a ³minister of justice.´ Review LSUC Rules of Professional Conduct. R v. Cook [1997] SCC²Crown Adverserial Role/Quasi-Judicial Officer -The Crown cannot adopt a purely adversarial role towards the defence, given its special function in ensuring that justice is served, but it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability. -The accused is not ³ambushed´ by the fact that a given witness is not called; any existing unfairness can be resolved through the disclosure process and the accused¶s ability to call the witness. The Crown, for the criminal justice system to work well, must possess a fair deal of discretion extending to all aspects of the trial process. This discretion is not absolute and its improper exercise can result in the finding of an abuse of process. The Crown cannot adopt a purely adversarial role towards the defence, given its special function in ensuring that justice is served, but it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability. Part of this discretion involves the choice of which witnesses to call. Given the strong preference this Court has shown for deferring to the Crown's discretionary authority, it would take a strong opposing rationale to warrant the creation of a duty which so clearly impedes it. The term "essential to the . . . narrative" in Lemay v. The King does not mean that all witnesses with relevant testimony have to be called by the prosecution. The jurisprudence does not suggest such an imposition. The term refers only to the Crown's burden of proof in a criminal proceeding. Where the "narrative" is not adequately set forth, elements of the offence might not be properly proven and the Crown risks losing its case. Additionally, whether or not witnesses have been called is a factor appellate courts can consider in reviewing a decision as to the reasonableness of its verdict. The main ground for opposing the Crown's discretionary authority to call witnesses has historically been that of fairness. Three factors affecting fairness were raised: that the Crown's not calling witnesses would cause a trial by ambush, that the ability to cross-examine would be lost and that an accused would be deprived of the right to address the jury last. Since the Crown must now disclose relevant information it possesses (R. v. Stinchcombe), the defence cannot now be "ambushed" in the sense that it was unaware of potentially exculpatory evidence discovered by the Crown or even of material inconsistencies. These developments have extinguished any rationale compelling the Crown to call witnesses based on the need to bring all material facts forward. The accused is not "ambushed" by the fact
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that a given witness is not called; any existing unfairness can be resolved through the disclosure process and the accused's ability to call the witness. The contemporaneous cross-examination of a witness is not necessary to guarantee a fair trial. There is no prejudice in the respondent's not getting a free opportunity to cross-examine every potential witness whether or not the Crown wished to call them. An accused concerned about a deprivation of the opportunity to crossexamine can rely, in an appropriate case, on the Canada Evidence Act. In the rare case the tactical disadvantage to the defence of calling a potentially hostile witness would be manifestly unfair, the trial judge would be entitled to consider this as a factor in deciding whether to call the witness him- or herself. A failure on the Crown's part to call a witness which would result in prejudice to the accused because of loss of the choice to address the jury last should not affect the Crown's discretion to produce the witnesses it chooses. Rather, the failure to call a witness can be a factor for the trial judge to consider in deciding whether or not to call the witness himor herself. This is a preferable, flexible solution which allows the trial judge to balance the competing factors carefully and assess the actual prejudice to an accused rather than merely speculating about potential harm. The testimony of the complainant or victim should not be treated any differently from that of any other witness. In the vast majority of cases, the Crown, where it adduces nothing at all from the complainant or victim, will need some other evidence of a compelling nature to establish the accused's guilt beyond a reasonable doubt. This burden will be even more difficult to overcome where there appears to be no good reason for refusing to call the witness. In many situations, legitimate questions would arise in the minds of the trier of fact where a victim was willing and able to testify, and yet without any explanation, was not called on behalf of the Crown. Still, there is no duty resting upon the Crown to call the witness. Where the Crown does not call a given witness two problems can theoretically arise as a result. First, a question about disclosure could arise in that the Crown could be alleged to have discovered information damaging to its case. Here, the approach taken by this Court in cases where disclosure is not properly made should be applied. Second, where the Crown intentionally abuses its discretion in some manner by failing to call the witness, the trial judge can still consider the Crown's conduct as a factor influencing his or her exercise of the discretion to call the witness, or alternatively, find that the Crown has committed an abuse of process. The trial judge did not err in failing to inquire into why the Crown chose not to call the victim. The onus to prove the Crown's misconduct lies upon the accused. Similarly, a finding of an abuse of process or "oblique motive" is only available where the accused can establish such conduct on a balance of probabilities. The calling of witnesses by the trial judge is a matter to be left to each judge's discretion and should be exercised in rare cases so as to avoid overly interfering with the adversarial nature of the proceedings. R v. Proulx [2001] SCC ²Prosecutors Discretion/Malicious -Prosecutors are vested w/ extensive discretion and decision making authority to carry out their functions and courts should be cautious to second guess their judgement calls. In assessing whether the Crown prosecuted maliciously you have to apply the four Nelles requirements. Facts: Prosecutor determined insufficient grounds to charge the appellant with the murder of his former gf as there was no reliable identification evidence. The prosecution file was closed. 5 years later, prosecutor was advised of a potential new identification witness. The prosecutor decided to prosecute the appellant on a first degree murder charge. At trial, the jury found the appellant guilty. On appeal, the CA overturned the conviction with strong criticism of the lack of credible evidence. Following his acquittal, the appellant brought an action for damages for
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malicious prosecution against the Attorney General of Quebec. The Superior Court found the Attorney General liable and entered judgment against the Attorney General for over a million dollars in damages. A majority of the CA allowed the Attorney General¶s appeal and dismissed the action. Issue: whether this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted? Held: The appeal should be allowed. Prosecutors are vested with extensive discretion and decision-making authority to carry out their functions and courts should be very slow to secondguess a prosecutor¶s judgment calls when assessing Crown liability for prosecutorial misconduct. The Department of the Attorney General and its prosecutors, however, are not above the law and this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted. Nelles sets out four requirements that must be established on a balance of probabilities in an action in damages based on prosecutorial misconduct and those requirements are satisfied here. The record reveals that: (1) the respondent initiated the prosecution; (2) the prosecution resulted in the appellant¶s acquittal; (3) the Crown prosecutor did not have reasonable and probable cause upon which to found the charges brought against the appellant; and (4) the prosecution was motivated by an improper purpose. Clearly a prosecutor need not be convinced beyond a reasonable doubt of an accused person¶s guilt before bringing charges, but there must be sufficient evidence to ground a reasonable belief that a conviction could properly be obtained. In this case, it must have been clear to the prosecutor in 1991, when he authorized the charge of first degree murder, that the evidence could not properly have resulted in a conviction. The charges brought against the appellant were grounded in mere suspicion and hypotheses and were not based on reasonable and probable cause. Dissent: In this case, the facts alleged against the Attorney General and the prosecutor do not meet the last two criteria in Nelles. The evidence in the record establishes that at the time the prosecution was initiated the prosecutor could reasonably have believed that he had reasonable and probable grounds to charge the appellant and that he did not act with malice. The role of the AG is not that of the judge, nor to be objectively satisfied, beyond a reasonable doubt, of the guilt of an accused, or even to ensure, in that respect, that the evidence he or she has will necessarily be sufficient to guarantee a guilty verdict. In subjective terms, he or she must believe in good faith in the guilt of the accused, and that certainty must be based on reasonable and probable grounds. On the question of the objective analysis of the reasonableness of that belief, it must be determined whether a prudent and cautious person would have believed that the appellant was probably guilty of the crime. In applying that test, one must have regard to the circumstances of the case. In this case, the charge was laid on the basis of entirely circumstantial evidence. Even though none of the facts disclosed by the investigation at that time, taken in isolation, was sufficient to establish the guilt of the accused, that evidence, when added up and taken in its entirety, could reasonably have justified a finding of guilt. Therefore no evidence to show that the prosecutor acted for personal purposes, out of vengeance or ill-will , in bad faith or beyond his mandate for improper purposes, or that he committed a fraud on the law. A careful examination of the facts in evidence in the civil action shows that the prosecutor acted w/in the
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bounds of his functions as a public officer, prosecuting an individual whom he believed, in good faith, to be guilty of a crime. Krieger v. Law Society of Alberta [2002] SCC²Prosecutor Discretion not reviewable except bad faith -Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related to this duty constitute a very serious breach of legal ethics. Held: All conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the AG had reviewed it from the perspective of an employer. A clear distinction exists between prosecutorial discretion and professional conduct, and only the latter can be regulated by the Law Society. The AG¶s office has the ability to discipline a prosecutor for failing to meet the standards set by that office, but that is a different function from the ability to discipline the same prosecutor in his or her capacity as a member of the Law Society. The Act gives the Law Society jurisdiction over a very broad range of conduct including prosecutorial decisions made dishonestly or in bad faith. The Role of the Defense Officer of the court, therefore they must be respectful and honest with the court and must not attempt to mislead the court as to the state of the law. Subject to this and the rules of law and ethics, the defence counsel is obliged to act solely in the interests of the accused, advising the accused on the implications of, and propriety, of pleading guilty, securing advantage of all procedural and constitutional provisions available to them that are not properly waived; and if the accused pleads not guilty, preparing the case fully, challenging the sufficiency of prosecutorial evidence, and advancing all defenses that properly arise. Review LSUS Rules of Professional Conduct.

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GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION
24. POLICE POWERS Police officers are independent of the Crown prosecutor in Canada. This independence is important to permit the prosecutor to act as a quasi-judicial officer, and not get too close to the mind-set of an investigator. Still, the police will often seek legal advice from Crown prosecutors, including on the wording of search warrants and the like. In the interests of securing liberty, the powers of the police are constrained by law, although can be derived from statute, common law and by implication from statute and common law. Police powers are also significantly limited by the Charter, most significantly s. 8 (unreasonable search or seizure) and s. 9 (arbitrary detention). Courts have undertaken a careful balancing of police powers in an attempt to ensure respect for liberty, without undermining the effectiveness of police investigations and law enforcement. The law of evidence supports limits on police powers. Although not covered in this examination, individuals have the right to remain silent in their dealings with the police, what they say cannot be admitted if it is not ³voluntary.´ Where there has been an unconstitutional search or arbitrary detention, evidence that has been obtained as a result may be excluded from consideration. Police officers also have significant obligations to perform in securing the right to counsel for the subject, again, obligations that go beyond this examination. - Coughlan pp. 11 ± 23 (general police powers) - Coughlan pp. 59 ± 125 (powers of search and seizure) - Coughlan pp. 126-142 (powers of detention) - R. v. Grant 2009 SCC 32 - R. v. Suberu [2009] 2 S.C.R. 460 - Coughlan pp. 143-146 (power to ³break the law´) Police officers are independent of the Crown prosecutor in Canada. This independence is important to permit the prosecutor to act as a quasi-judicial officer, and not get too close to the mind- set of an investigator. Still, the police will often seek legal advice from Crown prosecutors, including on the wording of search warrants and the like. In the interests of securing liberty, the powers of the police are constrained by law, although can be derived from statute, common law and by implication from statute and common law. Police powers are also significantly limited by the Charter, most significantly s. 8 (unreasonable search or seizure) and s. 9 (arbitrary detention). Courts have undertaken a careful balancing of police powers in an attempt to ensure respect for liberty, without undermining the effectiveness of police investigations and law enforcement. Overview Summary - Theme throughout: balancing liberty with public security General police powers - Police have broad powers under statute (mainly Criminal Code), and powers at common law. - Statutory powers include powers allowing police to: arrest an accused; compel an accused¶s appearance in court via a summons or appearance notice; use force; search

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suspects; etc [Note: the important ones are covered in the upcoming sections] - Common law powers: (1) Historical CL powers: a. Search incident to arrest for the purposes of ensuring safety; protection of evidence from destruction, and discovery of evidence (R v Caslake). Then, see R v Golden for strip searches incident to arrest, and the particular requirements that must be met (p 16) b. To enter into a private dwelling in a hot pursuit (allowed ± leading case is R v Feeney) (2) New CL powers can be created ± the ³ancillary powers´ doctrine (see R v Waterfield [EWCA]) (p 17): The SCC has relied on this doctrine to support police power in a number of areas. There are problems with relying on this test, though, as it was not intended to allow the creation of new CL powers. (3) Consent (a final area from which police develop their powers) (4) Default common law powers: Police have the power to do anything that will not result in some remedy being granted to an accused Powers of search and seizure - Other than in powers of arrest, the ability of police offers to interfere with the liberty of individuals is most evident in powers of search and seizure - Note the law in this area attempts to balance individual interests (i.e. liberty) with interests of the state What is a search? Purposive approach: A state investigative technique is or is not a search depending on whether it infringes on a person's reasonable expectation of privacy. - Analyze searches with warrant and without warrant separately (1) Searches with a warrant (a) Searching places with warrant - General search warrant provision is found in s 487 - Must be issued by a justice; justice must be satisfied on reasonable grounds that evidence will be found (which must fall into 4 categories: (i) anything on or in respect of which an offence has been committed; (ii) anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence; (iii) anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant or (iv) offence related property); the search must be related to a ³building, receptacle or place´; there must be someone responsible for carrying out the search; - Note that there are some limits to this search warrant power (e.g specificity) (see p 69) - A related provision found in s 489 allows police who are searching under a warrant to seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained by, or were used in, or afford evidence concerning an offence (b) Searching people (DNA warrants): - Warrants for taking blood, saliva etc - Only available for ³designated offences´ listed in s 487.04 (see p 945 of Code) - See s 487.05 for the requirements to get the warrant - Basic requirements = a provincial court judge (i.e. cannot be a JP) must be satisfied by information on oath that a bodily substance connected with an offence has been found, that a person was a party to the offence, and the DNA analysis of the substance will
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provide evidence about whether the bodily substance was from that person; judge is required to believe that the issuing of the warrant will be in the bests interests of the administration of justice; etc (see p 72) - Different rules apply when the DNA warrant concerns young people (see p 73) (c) Reviewing a warrant (p. 78): - The Code contains no provisions to review a warrant. But it is possible to challenge the issuance of a warrant by way of Certiorari (used to review the process by which the warrant is used). However, exclusion of evidence only under s. 24(2) of the Charter. - The central issue in reviewing a warrant is whether the requirements for its issuance under the Code have been met - The question for the reviewing judge is whether there is evidence upon which the issuing judge could have decided to issue the warrant (R v Garofoli). The actual result of the search is not relevant on review (2) Searches without a warrant (p. 81) - Every warrantless search is prima facie unreasonable under s 8 of the Charter (i.e. guarantee against unreasonable search and seizure) (Hunter v Southam). - As a result, every warrantless search must be made consistent with minimum Charter standards. - The following is the approach to determine the constitutional validity of the warrantless search: (1) Threshold issue: First, to be a breach of s 8, the individual searched must be determined to have a reasonable expectation of privacy over their person, territory and information (i.e. if there is no reasonable expectation of privacy, there is no search/seizure at all, and therefore no breach of s 8). (a) Look at ³entitlement´ to privacy ± not whether X had, in that case, privacy ± i.e the standards of privacy that a person can EXPECT to enjoy in a free and democratic society (Wong) (b) Look at factors in Edwards (looking at ³totality of circumstances´) (p 87) (c) Note the three kinds of interests that privacy protects (e.g. personal privacy, territorial privacy, and informational privacy) (Tessling). Note: informational privacy = more difficult to prove. (d) How significant of a right to privacy is this on a sliding scale? (2) Once it has been determined that an individual has a reasonable expectation of privacy, then it follows that the search was a prima facie violation of the accused¶s s 8 right. The issue then becomes whether the search itself is reasonable, or was it an intrusion, in light of that expectation of privacy. Here, the nature of the accused¶s reasonable expectation of privacy is also a background factor in determining how reasonable the search is (the higher the level of privacy expected, the more difficult it will be to determine that the search was reasonable, e.g. a person has greater privacy when the search involves a bodily cavity as opposed to the trunk of their car; or in the situation of a search incident to arrest ± heavy state interests). Reasonableness of the search is generally determined by the Collins factors ± have they been met?

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(a) Is the warrantless search authorized by law: (i) Statute? (e.g. warrantless searches are authorized by s 487.11 (in relation to the s 487 search warrant power) (ii) CL? (i.e. search incident to arrest; search during investigative detention; exigent circumstances. Here, if you are saying that there is a search incident to arrest, you would have to go through the elements identified in the book, i.e., you would have to establish that: the arrest was lawful; the search was truly incidental to that arrest and that the search was conducted in a reasonable manner) (iii) Consent? (b) Is the law itself reasonable? (c) Is the manner in which the search is carried out reasonable? - NOTE: There are variations on the Hunter v Southam standard. Searches under an administrative scheme and searches of press offices have different rules (see p 111) - NOTE Other investigative powers, ie., general warrants (s 487.01) (which have broader warrant power than s 487) Powers of Detention at the Investigative Stage (a) Definition of detention - S 10(b) gives rights to people who are ³detained´, e.g. right to counsel. The issue is whether someone has been detained. One troubling context is police questioning ± when does this qualify as a detention and therefore give the detainee s 10(b) rights? (b) Common law powers of detention - Some powers of detention exist by statute. The ability to make breathalyser demands and routine traffic stops, and some aspects of customs searches are all legislatively created detentions. Common law detentions are more controversial (e.g. Dedman case upheld RIDE program under Waterfield test as a valid form of detention) (i) Investigative detention (Mann test): Reasonable grounds for officer¶s suspicion that individual is implicated in criminal activity under investigation. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances. (ii) Police roadblocks Ability to break the law: s 25.1 (p. 143-146) 1) General Police Powers (Coughlan pp. 11 ± 23) The CC sets out when police may arrest a suspect. Generally, the police are required to have reasonable and probable grounds to believe that a person has committed an offence. Certain of the rights guaranteed by the Canadian Charter of Rights and Freedoms apply when a person is detained or arrested. The police must ensure that a person is not detained arbitrarily. In addition, the Charter guarantees that everyone who is arrested or detained has: the right to be informed of the right to counsel; and the right to retain and instruct counsel without delay. Sections 494 to 528 of the Code create a statutory scheme allowing police officers and others to arrest an accused or compel appearance in court via a summons or appearance notice. Police powers of arrest are quite broad, and sections 25 to 33 create related powers allowing the use of

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force to execute powers authorized by law, to prevent the commission of some offences, or to prevent a breach of the peace. In some circumstances even deadly force is authorized. Other provisions of the Code create extensive search powers. Section 487 creates the general search warrant provision, and such warrants are typically issued when a justice is satisfied that the search will produce evidence with respect to the commission of the offence or where there are ³reasonable grounds´. Section 489(1) also authorizes the seizure of material searched for, as well as material in addition to that specified in the warrant. The Code also contains a general power to seize without a warrant if there are certain ³reasonable grounds´. In addition to the general search warrant provision, there are a number of police investigative powers, including authorizations to: Use a tracking device to monitor location of a person or object (s. 492(1)); Install number recorders on a telephone (s. 492.2(2)); Perform video surveillance on a location (s. 487.01(4)); Install a wiretap device to monitor telecommunications or private communications (Part IV); Obtain blood samples (s. 256); Obtain handprints, fingerprints, footprints, or impressions of teeth and other parts of the body (s. 487.091); and Obtain DNA samples (s. 254) In addition to statutes other than the Code also providing investigative powers (e.g. the Firearms Act authorizing inspectors without a warrant to enter premises to search for prohibited firearms on reasonable grounds), s. 25.1 of the Code gives police very broad powers to perform acts, under circumstances that would for any other person constitute a crime (i.e. police powers to ³break the law´). In R. v. Kokesch (1990) (S.C.C.), the Court stated that it has ³consistently held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language´. A balance must be found between protection of individual liberty and the need for public security. However, the Court has consistently expanded common law police powers, so this rationale does not perfectly fit with the Court¶s actions. Interrogation A police officer is authorized to question individuals in the course of his or her duties. There is no corresponding obligation, however, for a person to respond to these questions. The general rule regarding the admissibility of statements is that a statement made was made voluntarily and was the product of a conscious operating mind. Generally, threats and promises should not be made to induce a statement. In addition, interrogation in oppressive circumstances may lead to the statement being inadmissible. Finally, with respect to police trickery, if the conduct would shock the community, the statement may be inadmissible. The general test is that a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness. One must determine whether police actions individually, and cumulatively, improperly induced a confession. This analysis must be a contextual one. The eeqivalent to

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The law relating to interrogation presents a combination of 3 bodies of law: The common law confessions rule The right to counsel in s. 10(b) of the Charter The right to silence in s. 7 of the Charter. (a) Right to Counsel (i) Triggering Mechanisms Section 2(c)(ii) of the Canadian Bill of Rights provides a person arrested or detained ³the right to retain and instruct counsel without delay´. Section 10(b) of the Charter provides the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Therens (1985) (S.C.C.), the SCC held that the word "detention" in s. 10 is directed to a restraint of liberty of varying duration other than arrest in which a person may reasonably require the assistance of counsel and might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee. In addition to the case of deprivation of liberty by physical constraint, there is also a "detention" within s. 10 when a police officer assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel. There must, however, be some form of compulsion or coercion. Any criminal liability for failure to comply with a demand or direction of a police officer is sufficient to make compliance involuntary. Under s. 235(2), a refusal to comply with a s. 235(1) demand without reasonable excuse is a criminal offence. Here, the court held that someone under a roadside test (under what is now s. 254(2)) is detained. It later held that there was no right to counsel since the provision constituted a demonstrably justified reasonable limit on s. 10(b). In Thomson v. R. (1988) (S.C.C.), the Court held that a roadside alcohol test constituted detention under s. 10(b) of the Charter. The demand by the police in the case at bar fell under what constitutes detention. The way in which the officer assumed control over the movement of the appellant was one which might have significant legal consequence. Given the criminal liability under s. 234.1(2) for refusal, without reasonable excuse, the situation was one in which a person might reasonably require the assistance of counsel. The criminal liability for refusal also constituted the necessary compulsion or coercion to make the restraint of liberty a detention. In R. v. Moran (1987) (S.C.C.), the Court held that the questioning of the accused during the interviews at the station did not constitute a ³detention´ within s. 10(b). The right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. Further, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit.
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Moran and Therens still largely remain the authority with regards to the triggers to the right to counsel. The difference with later cases lies on the importance given to the subjective feelings of the accused regarding the detention as compared to the subjective feelings of the police (ii) Informational Duties Unlike the Bill, s. 10(b) of the Charter expressly confers the right to be informed of the right to retain and instruct counsel. This is mandatory on arrest and detention. Informational duties refer to stating to the accused of her right to counsel. In R. v. Brydges (1990) (S.C.C.), the Court held that s. 10(b) was violated by failing to inform the accused of the availability of legal aid. Once the accused requested the assistance of counsel it was incumbent on the police officer to facilitate contact with counsel by giving the appellant a reasonable opportunity to exercise his right to counsel. There is a duty on the police to inform him of the existence of duty counsel and the ability to apply for Legal Aid. In R. v. Bartle (1994), it was held to be critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make ³informed and meaningful´ choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence (see Hebert). One thing that informational duties do not require, is that the accused in fact understands the right to counsel. In Baig the SCC placed the onus on the accused to show that she did not understand the right. The implementation duties, on the other hand, do require that the accused understands her right. (iii) Implementation Duties Laskin J.¶s minority concurring judgment in Brownridge is still referred to in this respect, stating that the right to counsel raises a correlative obligation on the police to facilitate contact with counsel, such as providing the accused with a phone Some courts have held that privacy should be afforded by the police to the accused in contacting counsel, while the SCC in Jumaga v. R (1977) (S.C.C.), held that it is not a requirement. The positive wording of s. 10(b) has been relied upon to distinguish Jumaga and hold that privacy must be afforded whether or not it is requested (see R. v. Playford (1987)). In R. v. Manninen (1987) (S.C.C.), it was held that s. 10(b) imposes at least 2 duties on the police in addition to the duty to inform the detainee of her rights: 1. The police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. This means allowing her upon his request to use the telephone for that purpose if one is available. No such evidence was put forth in this case. Absent such circumstances, once the police have complied with s. 10(b), by advising the accused without delay of her right to counsel, there are no correlative duties triggered and cast upon them until the accused, if she so chooses, has indicated his desire to exercise her right to counsel.
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In R. v. Prosper (1994) (S.C.C.), the SCC held that there is no constitutional obligation on governments to provide a free duty counsel on arrest or detention. (iv) Waiver and Duty to be Reasonably Diligent in Exercise of Right Generally speaking, the SCC has been generous to the accused when characterizing the issues of waiver of the right to counsel. It is far less generous when insisting on the duty to assert the s. 10(b) right with reasonable diligence. It seems unclear, however, which ruling will be adopted in each case, thus leading to inconsistencies. There is a difference between the standards used in the right to counsel (³awareness of consequences´ test) and the right to silence (³operating mind´ test). In R. v. Clarkson (1986) (S.C.C.), the Court held that the accused could not effectively waive her right to counsel while being intoxicated. Given the concern for fair treatment of an accused which underlies the right to counsel in s. 10(b), it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what she was saying is crucial. As per Korponay v. Attorney General of Canada (1982) (S.C.C.), any waiver "is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process". It is clear that the waiver of the s. 10(b) right by an intoxicated accused must pass some form of ³awareness of consequences´ test. Any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right. (b) Right to Silence and Confessions This right has been very poorly defined in Canada and did not exist for a long time. Until recently, the confession rule was the only standard restricting the admissibility of some incriminating statements. The reasons behind exercising this right are (1) the unequal power balance between the State and the accused, and (2) the risk of a false confession. The confession rule from the Ibrahim v. The King (1914) (U.K.P.C.) is that confessions made to persons in authority under promises or threats may be unreliable. In R. v. Hebert (1990) (S.C.C.), the idea of voluntariness was expanded to include the reputation of the administration of justice The burden of proof for confessions is that: y Voluntariness has to be proved by the Crown beyond a reasonable doubt; and Showing that the administration of justice was brought into disrepute has to be done by the accused, as any other Charter violation (then the burden shifts to the Crown).

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y

According to R. v. Oickle (2000) (S.C.C.), the Crown is requested to show under the voluntary confession rule (assuming that the person who heard the confession was a person in authority): o No threats of promises Operating mind Does not require more than knowledge of what the accused is saying No oppression Though Oickle set a very high bar for oppression No police trickery This forms part of a distinct inquiry, which deals with the integrity of the justice system It seems like the first three deal with the reliability of the confession The standard is the shock of the community Police informants seem to be admissible within this high standard of trickery

As for the right to silence under s. 7 of the Charter: y y y Police persuasion is acceptable; After detention Voluntary statements to cellmates are allowed Undercover officers to observe are allowed, but not to elicit information In R. v. Herbert (1990) (S.C.C.), it was held by the Court that a statement elicited by an undercover police officer once the accused expressed his intention not to speak to the police violated his s. 7 Charter rights. Section 7 of the Charter accords a detained person a pre-trial right to remain silent which extends beyond the narrow formulation of the confessions rule. The rules relating to the right to remain silent and the privilege against self-incrimination.

The scope of the right to silence, however, does not go as far as to prohibit police from obtaining confessions in all circumstances. The right does not affect voluntary statements made to fellow cell mates. A distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent. Finally, even where a violation of the suspect's right is established, the evidence may, where appropriate, be admitted ± only if the court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected under s. 24(2) of the Charter. In R. v. Oickle (2000) (S.C.C.), the Court held that there are 2 strands to the confessions rule: Under one approach any statement made by cops where there is an explicit promise or threat to accused should be excluded (as in Ibrahim). This gives the accused a negative right - i.e. the right not to be tortured or coerced into making a statement by threats or promises held out to him by a person who is and whom he subjectively believes to be a person in authority. The decision in Hebert recognized a broader approach whereby the absence of violence was not dispositive of the case ± you still need the necessary mental element of deciding between alternative options. It is important to note that the Charter does not subsume these common law rules regarding confessions. The confessions rule has a broader scope than the Charter. The Charter also has a different standard and burden of proof. Remedies under the Charter are different as well. In summary, the confessions rule today is concerned with voluntariness, broadly defined.

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The 5 categories of confessions are: 1. 2. 3. 4. 5. Voluntary Stress-compliant confessions The person will say anything to get rid of the stress The coerced compliant Coercion by threats or promises to confess Most cases of false confessions come out of these Most cases develop in relation to this Non-coerced persuaded

Take someone who does not recall the events well and lead her to confess to something didn¶t happen Someone with mental challenges, who was intoxicated at the time, etc One of the ways to go about persuading someone to confess is through the fabrication of false facts The would likely get the most false confessions from vulnerable people and those who are easily influenced to agree with others You have to look at the strength of mind of the accused Coerced-persuaded. The confessions rule today must be applied contextually. The following factors should be considered by trial judges in reviewing confessions: y y y y Threats or promises Reduced charge Minimizing the seriousness of the crime Offer psychological help Moral or spiritual inducements Oppression Denial of food, clothes, rest, medical attention, intimidating questioning Has a large impact on false confessions Operating mind Inspired by principle of voluntariness and the accused being aware of what she is saying Other police trickery Shock to the community criteria (as per Lamer J. in Rothman)

Search and Seizure Police have both statutory and common law powers to conduct searches. With respect to drugrelated offences, the Controlled Drugs and Substances Act establishes a comprehensive search and seizure scheme. Although these provisions are similar to the search and seizure provisions of the CC, police have some additional powers under the illicit drug legislation. For example, the legislation authorizes police who are in the process of executing a search warrant to search a person found at the locale for illicit drugs if certain conditions are satisfied. Generally, police are only allowed to search a person when it is incidental to lawful arrest. As in the CC, the legislation authorizes warrantless searches in exigent circumstances. Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Court decisions have dealt with the question of whether searches are reasonable in various situations and the ancillary question of whether evidence obtained during the searches can be adduced at trial. A search will generally be reasonable if it is authorized by law, the law itself is reasonable, and the search is carried out in a reasonable manner.

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Section 8 protects the public¶s reasonable expectation of privacy from state intrusions. Thus, where there is no reasonable expectation of privacy, section 8 does not apply. In addition, a diminished expectation of privacy (for example, in prisons or at border crossings) will lower the standard of reasonableness (for example, excusing the absence of a warrant or reducing the standard required for justifying the search). A person¶s home is where there would be the greatest expectation of privacy and thus a greater degree of constitutional protection. There is a presumption that a warrantless search is unreasonable. The general rule for a valid search is that the police will require prior authorization to conduct the search (for example, by obtaining a search warrant) and reasonable and probable grounds that justify it. This is to provide a safeguard against unjustified state intrusion. It is recognized, however, that prior authorization is not always feasible, although this should generally be limited to situations in which exigent circumstances render obtaining a warrant impractical. Generally, federal criminal law does not provide authorization for a search of the person. The common law does, however, allow a search of the person incidental to a lawful arrest. This common law power is an exception to the general rule that a search requires prior authorization to be reasonable. A person may only be searched for the purpose of locating further evidence relating to the charge upon which he or she has been arrested or to locate a weapon or some article which may assist him or her to escape or commit violence. Although the power to search incidental to an arrest is fairly broad, there is no automatic unrestricted right to search incidental to an arrest. More intrusive searches such as strip searches would seem to require greater justification. Because of the consensual nature of drug offences, police often resort to special investigative techniques to detect these crimes, including the use of electronic surveillance. The SCC has stated that electronic surveillance constitutes a search for the purposes of section 8 of the Charter, and its decisions in this area have had a significant impact on the CC provisions dealing with such techniques. Because electronic surveillance is more invasive of privacy than regular search warrants, more procedural safeguards are provided in the legislation. Exclusion of Evidence The rules regarding the exclusion of evidence have changed since the adoption of the Charter. The test is whether the admission of the evidence would bring the administration of justice into disrepute in the eyes of the reasonable person, dispassionate and fully apprised of the circumstances of the case. The 3 primary factors to be considered are: (a) does the admission of the evidence affect the fairness of the trial; (b) how serious was the Charter breach; and (c) what would be the effect on the system¶s repute of excluding the evidence.

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Entrapment and Illegal Police Activity Entrapment and illegal police activity are both based on the doctrine of abuse of process. Such tactics are used in the case of drug-related offences because of the consensual nature of the offence. Entrapment will occur in one of two circumstances: (1) the police provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; or (2) having a reasonable suspicion or acting in the course of a bona fide inquiry, the police go beyond providing an opportunity and induce the commission of an offence. The SCC has established a non-exhaustive list of factors that a court must assess in determining whether the police conduct goes further than providing an opportunity. The court must adopt a contextual approach, and the doctrine will apply only in the "clearest of cases." If the accused succeeds in proving there was entrapment, the remedy is a stay of proceedings. Common Law Powers There are 3 senses in which police may be said to have common law powers: First, there are some powers that were historically given to police, and which have continued to exist despite codification of most police powers. Second, the ³ancillary powers´ doctrine allows the courts to create and authorize new common law police powers. Third, there is a sense in which the police have the common law power to do anything that has no negative consequences for the officer concerned and which results in evidence being admitted at trial. Although this is a default sense not usually spoken of. (i) Historical Common Law Powers Historical common law powers include the power of police to search incident to an arrest or to enter a private dwelling house in ³hot pursuit´ of a person fleeing arrest. Both are common law powers not set out in the Code. The power to search incident to arrest was confirmed in Canadian law by the SCC in Cloutier v. Langlois (1990) (S.C.C.). This power, the Court said, ³holds that the police have a power to search a lawfully arrested person and to seize anything in his possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner¶s escape or provide evidence against him.´ Therefore even if the Code did not specify such a search power, the police nonetheless had the power to search an arrested person for 1 of those 3 purposes. A common law power may also evolve. The wording in Cloutier did not preclude wider searches for evidence. So in R. v. Speid (1991) (Ont. C.A.), the Ontario CA held that a search of a vehicle was still in the vicinity of search incidental to arrest, even though it did not take place at the time of the arrest, and despite the fact that a warrant had been refused.

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With regard to strip searches, the Court in R. v. Golden (2001) (S.C.C.) held that police must have reasonable and probable grounds to believe that a strip search is necessary in the particular circumstances of the arrest, and must be conducted at a police station unless there are reasonable and probable grounds to believe that the search cannot be postponed. This is an explicit example of developing the common law along Charter principles. (ii) New Common Law Powers ± The ³Ancillary Powers´ Doctrine As common law powers can evolve, the question often arises whether the police officer, in the absence of any statutory powers, had common law powers. Canadian caselaw has adopted the test of the English decision in R. v. Waterfield (1963) (U.K.C.A.) for this purpose: First, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and Second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. The SCC has relied on this test to support police powers to: Protect foreign dignitaries (R. v. Knowlton (1974) (S.C.C.)) Enter premises without a warrant or reasonable grounds to investigate a shooting (R. v. Stenning (1970) (S.C.C.)) Stop cars randomly to check for impaired drivers (R. v. Dedman (1985) (S.C.C.)) Set up roadblocks (R. v. Clayton (2007) (S.C.C.)) Forcibly enter an apartment to investigate a disconnected 911 call (R. v. Godoy (1999) (S.C.C.)) Detain individuals for investigative purposes, and in some circumstances, conduct searches for those individuals (R. v. Mann (2004) (S.C.C.)) (iii) ³Default´ Common Law Powers Prior to the Charter, there was basically no basis to exclude relevant evidence in Canada. As long as it was reliable, it was admissible (R. v. Wray (1971) (S.C.C.)). Section 24(2) of the Charter however does allow the exclusion of evidence, where there has been a breach of a Charter right. This is an important caveat. The clearest example of this is the s. 8 Charter right against unreasonable search and seizure. The Court has held that an accused only has a s. 8 right where there is a reasonable expectation of privacy, and has defined various circumstances where an accused does not have such an expectation. Examples of this include a guest in an apartment (R. v. Edwards (1996) (S.C.C.)), and passengers in a motor vehicle (R. v. Belnavis (1997) (S.C.C.)). Although no explicit statutory powers exists, and not pre-existing or ancillary common law power will be invoked, the evidence will be admitted just as though the police were acting with authority.

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Consent Cooperation of a suspect is effectively another source of police powers (R. v. Esposito (1985) (Ont. C.A.)). This is the principle that the police need no statutory or common law authority to obtain evidence by making a request of the suspect. Police lineups are a good example. Although there is no statutory or common law authority allowing them to require an accused to participate (R. v. Ross (1989) (S.C.C.)), equally the Court has never decided whether an accused has a positive right to refuse to participate in a lineup (R. v. Marcoux (No. 2) (1973) (Ont. C.A.)). As a result, although a suspect need not agree, evidence that the accused refused to appear in a lineup can be introduced at trial. A further issue is the limits of the accused¶s consent. While the SCC has held that taking a DNA sample for the investigation of one offence, and using it for purposes other than those consented to, violates the guarantee of unreasonable search and seizure, specifically in the investigation of another offence (R. v. Borden (1994) (S.C.C.)). On the other hand, the Court has also held that if an accused does consensually provide DNA samples without attaching limits to their potential use, then the accused no longer has a reasonable expectation of privacy in the sample and the police are free to use it as they wish (R. v. Arp (1998) (S.C.C.)). There is also the issue of certainty over the accused¶s consent. For example, pulling a car over to the side of the road when directed to (Dedman), emptying the contents of a sports bag (R. v. Mellenthin (1992) (S.C.C.)), complying with a breathalyser demand without first calling counsel (R. v. Therens (1985) (S.C.C.)), and so on, cannot automatically be considered consensual actions. Finally, consent given can also be revoked (R. v. Thomas (1993) (S.C.C.)). (2) Powers of Search and Seizure (Coughlan pp. 59 ± 125) (a) Searches Generally Section 8 of the Charter governs searches by government agents. Under this section police are prohibited from "unreasonable" searches. The inquiry of the lawfulness of a search is based on whether the search was "reasonable" in the circumstances. The circumstances include the nature of the duty performed as well as the purpose of the search. A lawful search must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable (R. v. Collins)) (for details p. 93ff). (b) Reasonable Expectation of Privacy A search can be unreasonable where there is a violation of a reasonable expectation of privacy. The accused must show there is a reasonable expectation of privacy. The second step is to determine whether the search was performed in a reasonable manner (R. v. Edwards [1996] (S.C.C.)). The privacy interest alleged must be that of the accused person (Edwards).

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Whether there is a reasonable expectation of privacy is to be determined by the totality of the circumstances: presence at the time of the search; possession or control of the property or place searched; ownership of the property or place; historical use of the property or item; the ability to regulate access, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy; and the objective reasonableness of the expectation (Edwards). (c) Warrantless Searches An individual alleging a breach of his or her Charter rights bears the burden of proving that violation on a balance of probabilities. That being said, if the individual can demonstrate that a police search was conducted without a warrant, that search will be presumed to be unreasonable unless shown to be justified (Hunter v. Southam Inc. [1984] (S.C.C.)). The Crown then must prove the reasonableness of the search on a balance of probabilities (R. v. Caslake [1988] S.C.C.)). There are 4 types of warrantless searches: (1) Search by consent; (2) Search incident to arrest; (3) Search for abandoned property; and (4) Search in plain view. (d) ³Plain View´ Doctrine A person has no reasonable expectation of privacy in what he knowingly exposes to the public or abandons in a public place (R. v. Tessling (2004) (S.C.C.)). A peace officer may seize any evidence which he observes by use of one or more of his senses from a lawful vantage point (R. v. Fitt (1995) (N.S.C.A.)). If an officer is on a premises lawfully and observes items believed to be illegal, it is lawful for his to seize the items (The Queen v. Shea (1982) (Ont. S.C.J.)). For example, Police may enter into a house on the basis preserve the property and the public peace, and if on entering they discover stolen property in the household, it may be considered lawful under the plain view doctrine (R. v. Dreysko (1990) (Alta. C.A.)). Without a lawful search or lawful entrance, there can be no basis for the doctrine (R. v. Nielsen (1988) (Sask. C.A.)). There are generally 3 requirements for the plain view doctrine (R. v. Ruiz (1991) (N.B.C.A.): 1. The police officer must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area; 2. The officer must discover incriminating evidence inadvertently, which is to say, he may not know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext;

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3. It must be immediately apparent to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. These requirements having been met, when police officers lawfully engaged in an activity in a particular area perceive a suspicious object, they may seize it immediately: Lands accessible to the public ± i.e. "open fields" ± do not have a reasonable expectation of privacy and so are not protected by the Charter where illegal items are found in it (R. v. Boersma (1994) (S.C.C.)). However, the "open fields" doctrine does not encompass all open air private properties (R. v. Kelly (1999) (N.B.C.A.)). It does not stretch so far as to include a bag found in a locker at a public bus station (R. v. Buhay (2003) (S.C.C.)). (3) Search of the Person (a) Incident to Detention There is a common law power to search incident to detention where "the officer « believe[s] on reasonable grounds that his or her own safety, or the safety of others, is at risk." (R. v. Mann (2004) (S.C.C.)) If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful (R. v. Calderon (2004) (Ont. C.A.)). (b) Incident to Arrest A Peace Officer has the common law power to search an individual incident to a lawful arrest without a warrant. This common law power is an exception to the usual requirement of "reasonable grounds" for a search. The Officer must subjectively believe that person is committing or has committed an indictable offence and their belief is based on objectively reasonable grounds (R. v. Rajaratnam (2006) (Alt. C.A.)). Further, an accused has no expectation of privacy with respect to his personal belongings seized upon arrest (R. v. Blais (2004) (Ont. C.A.). There is no "blanket authority" to search a car incident to arrest. (R. v. Bulmer (2005) (Sask. C.A.)). Searches incidental to arrest are required to follow a number of principles stated in R. v. Caslake [1998] (S.C.C): 1. Officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it; 2. The right to search does not arise out of a reduced expectation of privacy of the arrested person, but flows out of the need for the authorities to gain control of the situation and the need to obtain information; 3. A legally unauthorized search to make an inventory is not a valid search incidental to arrest; 4. The 3 main purposes of a search incidental to arrest are:

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(1) to ensure the safety of the police and the public; (2) to protect evidence; (3) to discover evidence; 5. The categories of legitimate purposes are not closed: while the police have considerable leeway, a valid purpose is required that must be ³truly incidental´ to the arrest; 6. If the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested; 7. The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively. (4) Search of Motor Vehicles A driver has a reasonable expectation of privacy for the contents of their motor vehicle (R. v. Belnavis (1996) (Ont. C.A.). However, it is considered more limited than locations such as houses (R. v. Wise [1992] (S.C.C.)). A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items (R. v. McComber (1988) (Ont. C.A.)). This however is limited to where the vehicle could be moved "quickly" and there is a risk that the evidence may be lost if attempt was made to get a search warrant (R. v. Klimchuk (1991) (B.C.C.A.)). In R. v. D. (I.D.) (1987) (Sask. C.A.), the Court suggested the following requirements for a warrantless search: 1. That the vehicle be stopped or the occupants be detained lawfully; 2. That the officer conducting the search have reasonable and probable grounds to believe that an offence has been, is being or is about to be committed and that a search will disclose evidence relevant to that offence; 3. That exigent circumstances, such as imminent loss, removal or destruction of the evidence, make it not feasible to obtain a warrant; 4. That the scope of the search itself bear a reasonable relationship to the offence suspected and the evidence sought. (i) Roadside Stops Even if the police have lawful grounds to stop a vehicle it does not allow a search of the vehicle unless there are "reasonable grounds". Check stop programs aimed to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars cannot be used by the police to search beyond its aims. However, roadblocks set-up to search vehicles in order to catch suspects fleeing an armed robbery was considered a lawful search given the existence of a basis for investigative detention and the relative seriousness of the offence.

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(ii) Incident to Arrest However, automobiles can be searched incident to arrest. There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest. (R. v. Caslake [1998] (S.C.C.)) For example, a search of a brief case found in a stolen vehicle incident to arrest is justified (R. v. Mohamad (2004) (Ont. C.A.)). The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable (R. v. Klimchuk (1991) (B.C.C.A.)). (iii) Other Where the police seize a vehicle for the purpose of removing it from the road, there is a lessen expectation of privacy. Thus, any contents of the vehicle in plain view upon entering the vehicle can be seized (R. v. Nicolisi (1998) (Ont. C.A.)). Police may search a vehicle to determine whether there are weapons found in the vehicle (R. v. Majedi (2009) (B.C.C.A.)). A request by a police officer for a driver's licence and insurance is not a search (R. v. Hufsky [1988] (S.C.C.)). (iv)Passengers A passenger in a motor vehicle generally does not have a reasonable expectation of privacy (R. v. Belnavis [1997] (S.C.C.)). However, there is an expectation of privacy to the limited area underneath the passenger (R. v. Dreyer (2008) (B.C.C.A.)). (5) Search of Residences Section 529.3(1) provides the power for police to enter a residence without a warrant: 529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwellinghouse under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. (2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer ± Has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or (b) Has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. (i) Confidential Informers Police will often affect searches and arrests on the basis, in part, of information received from a confidential or anonymous source. The SCC case of R. v. Debot [1989] (S.C.C.) provided guidance with respect to the issue of weighing the information the Peace Officer is intending to rely upon for the search or arrest. Wilson J. stated the analytical approach for considering confidential or anonymous information: First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a "tip" originating from a source outside the
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police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? ³I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.´ Martin J.A. had stated: ³I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search .... Highly relevant ... are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.´ The test was further refined in R. v. Garofoli [1990] (S.C.C.): ³...I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search (the issue in the cases cited by Lamer J.) and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization. Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe: (i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to ³the totality of the circumstances´. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: a. The degree of detail of the ³tip´; b. The informer¶s source of knowledge; c. Indicia of the informer¶s reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of information.´ Other factors considered include: Level of detail of the informer's information: Length of discussions with informer Amount of information known of accused (by name or description)? Did information include the location of criminal offence? did information include nature and quality of drugs? did information include the nature of the deal? Informers source of knowledge 1st, 2nd or 3rd hand information? (3rd degree is as good as anonymous) Freshness of the information Past reliability: Length of time known Frequency of contact 1. of times paid (before / after incident) 2. of valid search warrants based on his information

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Had searches resulted in seizure of drugs/monies/weapons (If so, in what amount?) Had information resulted in convictions? 1. of negative, false or inaccurate information? 2. of cases resulted in dismissed/acquitted/withdrawn Credibility of Informer Did they have pending charges at the time? Non-conclusory information Did they have a criminal record? For offences of dishonesty? If so, how many, and how long ago? Corroboration/Confirmation by other investigative sources how many/much of the details of the information confirmed? how much of the information was non-obvious or obscure? (6) Warrant Searches A Search Warrant is an Order issued by a Justice of the Peace under statute that authorizes a person to enter into a location and seize specified evidence that is relevant and material to an offence. The CC provides for several types of search warrants: Weapons warrant (s.117.04) Blood samples (s.256) Proceeds of Crime (s. 462.32) Federal Offences (s. 487) General Searches (s.487.01) DNA Sample (s. 487.05) Tracking (s.492.1) Number recordings (s. 492.1(1)) Telephone records (s. 492.2(2)) Bodily impressions (s. 487.091) (7) Powers of Detention (Coughlan pp. 126-142) N.B. SEE PREVIOUS SECTIONS CASES + COMMON LAW POWERS OF DETENTION UNDER THE WATERFIELD TEST! (i) Investigative Detention definition of detention: p. 126 It has been well established that the police have a common law right to detain for investigative purposes. The investigation must be based on a ³reasonable suspicion that the particular individual is implicated in the criminal activity under investigation´ for it to be considered lawful. A person can be detained physically or psychologically. Psychological detention has 3 elements: 1. A police direction or demand; 2. The individual¶s voluntary compliance with the direction or demand resulting in a deprivation of liberty or other serious legal consequences; and 3. The individual¶s reasonable belief that there is no choice but to comply

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R v. Grant [2009] SCC²leading case re: µdetention¶ & s. 24(2) of the Charter Facts: police officers were doing µneighbourhood policing¶ in a high crime area. Stopped Grant, by blocking his way on the sideway and began questioning him. They said they questioned him because Grant stared at them and fidgeted with his coat and pants in a way that made him suspicious. The officers erred in their stopping Grant. Grant admitted to carrying a gun on him. Their stopping constituted a µdetention¶ because a reasonable person in Grant¶s position would conclude by reason of this police conduct that he had no choice but to comply with the officer¶s demands. The detention was unlawful and therefore unconstitutional contrary to s. 8 of the Charter because the police lacked reasonable grounds to suspect that Grant committed an offence. Also, s. 10(b) was breached b/c the officers did not advice Grant to his right to counsel. Held: Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual¶s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual¶s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (b) the nature of the police conduct; and (c) the particular characteristics or circumstances of the individual where relevant. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual¶s right to choose, and conduct that does not. Deference is owed to the trial judge¶s findings of fact, although application of the law to the facts is a question of law. The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes. An unlawful detention is necessarily arbitrary, in violation of s. 9. SCC Held: Evidence admitted. Stillman created an ³all but automatic exclusionary rule for nondiscoverable conscriptive evidence, broadening the category of conscriptive evidence and increasing its importance to the ultimate decision on admissibility´. ³It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances

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in which it was obtained«trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s.24(2) analysis´. REVISED APPROACH ± Section 24(2): Concerned about maintaining good repute of administration of justice«repute of justice system viewed in long term«forward looking«purpose is societal«not about punishing police or providing compensation to accused. Ultimate Test: The court must assess and balance the effect of admitting the evidence on society¶s confidence in the justice system. (1) Seriousness of Charter-infringing state conduct: FACT SPECIFIC Focus is not merely on the breach ± broad look at state¶s conduct. Court is asking: Can we afford to be associated with their conduct? Are the courts condoning deviation from rule of law? Three considerations that will colour the seriousness of the breach: (i) blameworthiness of the conduct, (ii) the degree of departure from Charter standards, and (iii) the presence or absence of extenuating circumstances. (2) Spectrum re blameworthiness: Severe-Deliberate conduct -- -- -- Inadvertent-Minor. (a) Ask: Was breach inadvertent or minor or willful or reckless disregard for Charter rights? (b) If acted in ³good faith´ ± reduced need to disassociate itself (R. v. Buhay: an officer must honestly but mistakenly believe that s/he is respecting the Charter. The belief must be reasonable.) (p.27-30) (c) Is there evidence of pattern of abuse? (racial profiling, discrim)« (d) P: compliance with defective internal policy directives or bad legal advice given beforehand: R.v.Harrison: evidence of systematic or institutional abuse will aggravate the seriousness of the breach and weigh in favour of exclusion, while the absence of such a problem is hardly a mitigating factor. (b) (ii)³«must consider seriousness of violation viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter´. (a) The more significant the deviation, the more compelling the case for exclusion. (b) Therefore determine whether the breach is substantial or merely technical. (p.31) (c) possible factors: the more general manner in which police conducted themselves; vulnerability of the accused is exploited. (c) (iii)³«extenuating circumstances, (eg) need to prevent disappearance of evidence, may [thin] seriousness of police conduct´

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NECESSITY/EMERGENCY? eg: Likelihood that co-conspirators knew of arrest raised spectre that any contraband at his house would be removed before police could arrive (Silveira). Initial delay in providing right to counsel caused by desire of police to get potentially volatile situation under control (Strachan). Police entered house without warrant after receiving report the accused by machine gun. OK due to police safety (Golub). (a) R. v. Feeney: more is needed than the simple fact that after any crime is committted, the possibility that might be destroyed is inevitable present. There must be some particular foundation for the belief in urgency or necessity in each case, like in Silveira. (b) The urgency of preserving evidence should not be understood as reducing the seriousness of intentional, as opposed to inadvertent, Charter violations. (c) In emergency cases where public or police safety is at stake, more generous approach. (2) Impact of breach on Charter-protected interests of accused (p.33): Does admission send message that individual rights count for little? ³«evaluation of extent to which breach actually undermined the interests protected by the right infringed«the more serious the impact on the accused¶s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen«´ Look at interests behind the right (para.77): ³an unreasonable search contrary to s.8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.´ Example: ³How big was human dignity interest impacted?´ Bodily Evidence in violation of s.8: requires court to examine degree to which search and seizure intruded upon privacy, bodily integrity, and human dignity of the accused.´ Why focus on ³interests´? We are concerned how society would view it. Section 7 silence to protect from self-incrimination. Perrin: This part of case not very well fleshed out. The more intrusive the breach is, the greater the danger to the repute of the administration of justice in appearing to discount Charter rights. We have exam the nature and degree of intrusion of the Charter breach into the Charter-protected interest of the accused. The degree of intrusion will be coloured by the nature of the investigative technique employed The way the impact is assessed varies with the kind of evidence sought to be admitted. The degree of intrusion will also be coloured by the nature of the investigative technique employed; also by the role the Charter breach played in making the evidence available. Kinds of evidence: Statements by Accused: They will be presumptively inadmissible (but not automatically excluded), unless sound basis for concluding that the A would have spoken in any event, or the breach is so technical as to have no real effect on the important Charter-protected interest of the A to make an informed choice about whether to speak to the authorities. Discoverability only where it can be said confidentially that the statement would have been made notwithstanding the Charter breach. (Where statement is made to recognized person in authority inadmissible unless Crown established BARD that it was made voluntarily.) Bodily Evidence: The degree of intrusion caused when bodily samples are secured depends upon the extent to which privacy, bodily integrity, and human dignity are compromised given the nature of the samples and the manner in which they are secured. -- Huge range for difference with respect to impact of breach ± that is why you shouldn¶t have automatic Stillman exclusionary rule. Stillman treated hair sample the same as body cavity search because they are both conscriptive. Breathalyzers are example of very low intrusive method of obtaining bodily samples. Concriptive test produced anomalies: minor breaches (breathalyzers) often
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automatically excluded, while major (seizure of illegal drugs) have been admitted when nonconscriptive. Para 110: Society¶s interest generally favors admission [they are reliable]. Non-Bodily Physical evidence: The significance of the impact of the violation turns primarily on the manner of discovery and the degree to which the manner of discovery undermines the Charter-protected privacy interests of the accused, although privacy interests related to the nature of the physical evidence should also be considered. -- Stage 1 is fact specific: Depends on extent to which the conduct can be characterized as deliberate or egregious. Turns primarily on manner of discovery and the degree to which manner of discovery undermines Charter-protected privacy interests of accused. Regarding #2 stage, eg: privacy, a dwelling house attracts a higher expectation of privacy than a place of business or an automobile; cavity search demeaning to human dignity i. Searches of home more serious than car, office, or locker. ii. Many features can change intrusiveness of strip search: where it took place, nature of physical contact, relative sex of subject, those who are present (Golden). Derivative evidence: = physical evidence discovered as a result of an unlawfully obtained statement. The significance of the impact of the violation will turn on the Charter breach used to obtain the statement that led, in turn, to the derivative evidence. Since ³derivative´ evidence comes from unconstitutionally obtained statements, that degree of intrusion will generally be significant, unless v. the breach had no real impact on the Charter-protected interest of the A to make an informed choice about whether to speak to the authorities; vi. it can confidently be said that the statement in question would have been made notwithstanding the Charter breach vii. it can confidently be concluded that there is a likelihood that the derivative evidence would have been discovered even had there been no Charter violation. Where this conclusion can be made, the significance of the intrusion varies with the degree of likelihood that discovery would have occurred in any event. If this cannot be determined with any confidence, discoverability will have no impact on the inquiry and the intrusiveness of the breach is apt to be treated as high. - Consider 3 steps of inquiry and where evidence came from. Now, there is diminished role for derivative evidence. This evidence usually ³real´ or physical ± less concern of reliability public interest in having trial adjudicated on merits usually favor admission of derivative evidence. Ask: Did breach have no real impact on Charter-protected interest of accused to make informed choice about whether to speak? Would statement have been made notwithstanding Charter right? Would it have been discovered anyway? According to P&S(p.41) ix. causation and discoverability are relevant considerations for all kinds of evidence. x. Discoverability does not enhance admissibility of bad faith breaches (reference to Buhay, Feeney). (3) Society¶s interest in adjudication of case on merits: [radical change to law] Now TJ will be asked to assess liability! Whether truth-seeking function of process would be better served by admission or exclusion: ³«society¶s collective interest in ensuring those who transgress the law are brought to trial and dealt with according to the law«´ Two central factors: reliability of the evidence + importance of the evidence to the Crown's case (a) Focal Point: How reliable is unconstitutionally-obtained evidence? Admission of unreliable evidence does not help anyone ± but exclusion of relevant, reliable evidence undermines public confidence ± even if unconstitutionally obtained balance of interests.
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ix. A breach that compels suspect to talk undermines reliability. x. Evidence obtained from an accused¶s body is generally reliable. xi. As R. v. Harrison shows, where the breach is serious enough and its impact significant, the reliability of the evidence will not save it from exclusion. (b) Importance of evidence to Crown¶s case is important factor. Link reliability with importance to Crown¶s case! xiii. Tied closely to reliability concerns (para.83): If questionably reliable, evidence is more likely to bring admin of justice to disrepute when forming the entirety of Crown¶s case. xiv. But if we exclude highly reliable evidence it may impact more negatively on repute of admin of justice where the remedy effectively guts the prosecution. xv. Even if evidence is crucial, evidence will be excluded if Charter breach is serious enough or its impact on Charter-protected interests is significant enough. The more crucial the evidence is, the more serious or significant the breach must be for exclusion to occur. (c) Seriousness of offence: (para.84) ± it is a wash and doesn¶t help [this court] decide this case. While seriousness is valid consideration it has potential to cut both ways, that is, in fact it will have no material bearing on the outcome. xvii. ³Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system«yet«it is long term repute of the system that is s.24(2)¶s focus´ ± not immediate impact on how people view system! xviii. Exam: Should seriousness play a role in fact pattern? [Deschamp says it is vital consideration and does NOT cut both ways. It cannot be legitimate interest of the accused to exclude evidence simply because they are charged with a more serious offense. The more serious, the more the public will be outraged that evidence was not included to get at the truth.] xix. Irwin (p.45): Section 24(2)¶s goals ³operate independently of the type of crime for which the individual stands accused´. ³«having made these inquiries, which encapsulates all of the circumstances of the case«´ ± EXHAUSTIVE! Application to Facts: Breach was significant, but not serious; value of evidence was considerable and reliable; significant impact of breach on rights strongly favored exclusion of gun, while«..favored admission. Deschamps J: ³Regarding the factors to consider in deciding whether to admit or exclude evidence obtained in violation of a Charter right, the new test proposed by the majority is inconsistent with the purpose of s.24(2) of the Charter, which is to maintain public confidence in the administration of justice. The statement that s.24(2) has a long-term societal purpose is of great significance for the identification of the factors to consider in the analysis. The proposed test, by focusing the analysis on the conduct of the police in the first branch and on the interest of the accused in the second, and by attaching less importance to the seriousness of the offence in the third, does not give sufficient consideration to the long-term societal interest that must guide the judge in reaching a decision´. ³One of the problems with the reliance on trial fairness [in Collins] was that it is a concept with several possible meanings and can accordingly lead to confusion´. ³I find the majority¶s emphasis on state conduct puzzling in view of the purpose of s.24(2)´

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R v. Suberu [2009] SCC²application of Grant test concerning µdetention¶ a leading decision of the SCC on section 9 and section 10 of the Charter. The Court applied the new test for detention created in the companion case of R. v. Grant and ruled on the timing of when a individual is required to be informed of his or her rights to counsel after being arrested or detained. Facts: Two men used stolen credit cards & go on a shopping spree. They are stopped. Accused was questioned by a police officer in a mini van. The cop arrested him and read him his rights. There was no issue about the timing of the rights to counsel in relation to the arrest. The issue was whether the police constable should have informed Suberu of his rights to counsel at the outset of their interaction, arguing that the constable's instruction to "wait" meant that there was a detention, triggering section 10 of the Charter. At the Ontario Court of Justice, the trial judge found that there was a necessary "momentary investigative detention". However, the trial judge went on to find that the police were not required to inform Suberu of his rights to counsel before he was asked preliminary or exploratory questions to determine if there was any involvement by Suberu. Suberu was convicted of possession of property obtained by crime, possession of a stolen credit card, and possession of a stolen debit card. At the OCSJ, the summary conviction appeal judge upheld the conviction, but on the basis that section 10(b) of the Charter is never engaged by investigative detentions. The CA for Ontario rejected the summary conviction appeal judge's proposition, but dismissed the appeal on the basis that the wording of "without delay" in section 10(b) of the Charter allows for a brief interlude at the beginning of an investigative detention to allow police to ask exploratory questions to determine whether further detention is necessary. Held: The police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, the police have the obligation to inform the detainee of his or her right to counsel. The phrase ³without delay´ in s. 10(b) must be interpreted as ³immediately´. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter. Not every interaction with the police, however, will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual¶s right to counsel under s. 10(b). According to the purposive approach adopted in R. v. Grant, detention under ss. 9 and 10 of the Charter refers to a suspension of the individual¶s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. The onus is on the applicant to show that, in the circumstances, he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant¶s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. The line between general questioning and focussed interrogation
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amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. Finally, it has not been demonstrated that a general suspension of the right to counsel during the course of short ³investigatory´ detentions is necessary and justified under s. 1 of the Charter. Because the definition of detention gives the police leeway to engage members of the public in non-coercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to fulfill their investigative duties effectively. ³Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual¶s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual¶s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation. b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; the duration of the encounter. c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.´ Suberu was not physically detained and did not face any legal obligations to comply with the officer's request to wait. Therefore, the remaining question was whether the police officer's conduct would lead a reasonable person to believe that he had no choice but to comply. (8) Power to ³Break the Law´ (Coughlan pp. 143-146) Designated officers are permitted to break the law if in their judgment that is a reasonable choice. Section 25.1(2) provides that ³it is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.´ Section 25.1(4) sets out that ³the competent authority shall make designations under subsection (3) on the advice of a senior official and shall consider the nature of the duties performed by the public officer in relation to law enforcement generally, rather than in relation to any particular investigation or enforcement activity.´

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The justification for such acts is set out in s. 25.1(8), which states: 25.1(8) A public officer is justified in committing an act or omission ² or in directing the commission of an act or omission under subsection (10) ² that would otherwise constitute an offence if the public officer ± (a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity; (b) Is designated under subsection (3) or (6); and (c) Believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer¶s law enforcement duties. There are however limitations to such acts under s. 25.1(9): 25.1(9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10), unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c), he or she ± (a) Is personally authorized in writing to commit the act or omission ² or direct its commission ² by a senior official who believes on reasonable grounds that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer¶s law enforcement duties; or (b) Believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to ± (i) Preserve the life or safety of any person, (ii) Prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or (iii) Prevent the imminent loss or destruction of evidence of an indictable offence. . Going to the Trial: Taking over the Accused

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GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED
25. SECURING JURISDICTION OVER THE ACCUSED & INTERIM RELEASE The police have specified powers to arrest individuals. So too do non-police officers. The common theme in the relevant legal provisions is that arrest ± taking physical control over the subject - is to be used as a last resort when other measures available for ensuring the good conduct and attendance before the criminal justice process are not practical or desirable. These less intrusive modes of securing attendance include the appearance notice, the promise to appear, and the summons. Where an individual is arrested, he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending the trial. - Coughlan pp 50 ± 53 (gaining jurisdiction over the accused) - Coughlan pp.168 ± 195 (the arrest) - Coughlan pp. 153 ± 161 (compelling appearance without arrest) - Coughlan pp. 161 ± 167 (the bail hearing) - R. v. Hall, [2002] S.C.J. No. 65 The police have specified powers to arrest individuals. So too do non-police officers. The common theme in the relevant legal provisions is that arrest ± taking physical control over the subject - is to be used as a last resort when other measures available for ensuring the good conduct and attendance before the criminal justice process are not practical or desirable. These less intrusive modes of securing attendance include the appearance notice, the promise to appear, and the summons. Where an individual is arrested, he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending the trial. (i) Gaining Jurisdiction over the Accused (Coughlan pp 50 ± 53) The Court will have jurisdiction over the person of the accused if (a) he is within the territorial limits of the jurisdiction, or (b) the accused has otherwise been lawfully ordered to appear before that court (s. 470). A second issue is whether that jurisdiction once lost can be regained. Section 485 now excuses most errors relating to appearance of the accused, and thus jurisdiction is not lost simply because a judge fails to exercise jurisdiction in time, fails to comply with Code provisions respecting adjournments and remands. Generally speaking, jurisdiction over an accused is not lost because of non-appearance (s. 485(1.1)), and the courts have broad authority to issue process, such as bench warrant for arrest, that allows jurisdiction over the accused to be regained in the event that it is lost (s. 485(2)). In addition, in R. v. Eldorado Nuclear Ltd; Uranium Canada Ltd (1983) (S.C.C.), it was suggested that the court retains jurisdiction over the person so long as the person is present in court, no matter what process has brought that person there. The court does not however have jurisdiction over: Persons under the age of 12 (presumed to be incapable of crime under s. 13); Persons immune from prosecution for policy reasons, e.g. diplomats.
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(ii) Jurisdiction in Time Indictable offences are generally not time-barred, subject to considerations over the quality of the evidence. Summary conviction matters are however time-barred after 6 months after the completion of the offence. These matters will influence the Crown¶s decision in electing with hybrid offences (R. v. Belair (1988) (Ont. C.A.)). Criminal offences do not have retrospective application ± a court has no jurisdiction to try a charge of conduct that was not an offence when it occurred. This principle is confirmed in s. 11(g) of the Charter. In R. v. Finta (1994) (S.C.C.), the Court held that the partial exception to this rule is for war crimes allegedly occurred in Europe during WWII (recognized as crimes in international law at the time of their commission). Note that the retrospectivity rule applies to substantive criminal law, but not procedural criminal rules, which are normally presumed to have immediate effect. A law will be classified as procedural only in this analysis if it is exclusively so, and will be classified as substantive where it impinges on vested rights (Re Application under Section 83.28 of the CC (2004) (S.C.C.)). Although the right to trial within a reasonable time is not typically seen as an aspect of jurisdiction, it should be mentioned because unreasonable delay can cause a Charter violation under s. 11(b) of the Charter. If unreasonable delay is caused by institutional delay (rather than party-caused delay), the SCCof Canada¶s decision in R. v. Morin (1992) (S.C.C.), placing a much greater emphasis on the need for the accused to demonstrate actual prejudice from the delay, dramatically reduced the number of applications brought under this section. This is a departure from the Court¶s earlier decision in R. v. Askov (1990) (S.C.C.), where the Court identified measures to be taken to rectify the system. (b) Jurisdiction under the Charter Section 24 of the Charter allows a ³court of competent jurisdiction´ to grant a remedy for breach of a Charter right. In R. v. Mills (1986) (S.C.C.), the SCC decided that a court of competent jurisdiction means for practical purposes in criminal matters, the court of trial. Although the Charter includes no express allocation of jurisdiction, the Court decided that as a preliminary inquiry judge has no jurisdiction to entertain constitutional issues, it is not a ³court of competent jurisdiction´ for Charter matters. The Mills decision was aff¶d by the SCC in R. v. Hynes (1986) (S.C.C.). Another justification for this decision is that it avoids the possibility of contradictory rulings on constitutional issues between the preliminary inquiry judge and the trial court. This justification however remains questionable in the event that there is no pending trial.

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(a) Power of Arrest Def.: An arrest consists of words of arrest accompanied either by touching of the person with a view to detention, or by the person submitting to the arrest (R. v. Whitfield) (p.170). Arrest is a continuing act, starting with the moment of custody and extending until the person is either released from custody or brought before a justice and detained (R. v. Asante-Mensah), that is powers to make arrest continue to be available. A police officer can arrest where: 1. There is reasonable grounds a person has committed an indictable offence; 2. There is reasonable grounds a person is about to commit an indictable offence; 3. A person is committing an indictable offence; or 4. A person has a warrant out for his/her arrest. There is limited power to arrest where the accused is found committing a summary offence and it is necessary to establish the accused's identity, among other things (Moore v. The Queen [1979] (S.C.C.)). (b) Arrest With Warrant²Warrant explained (p. 171) A warrant can only be issued after an information that sets out ³reasonable grounds´ to believe that a person has committed an offence is laid before a justice. Section 504 creates this rule for indictable offences, and section 795 adopts the procedures of Part XVI for summary convictions. A warrant is one among several means of securing an accused's attendance at court. On warrants, CC, s. 511 states: 511. (1) A warrant issued under this Part shall ± (a) Name or describe the accused; (b) Set out briefly the offence in respect of which the accused is charged; and (c) Order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some other judge or justice having jurisdiction in the same territorial division, to be dealt with according to law. (2) A warrant issued under this Part remains in force until it is executed and need not be made returnable at any particular time. (3) Notwithstanding paragraph (1)(c), a judge or justice who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge or justice having jurisdiction in the territorial division in which the warrant was issued. (4) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed. (c)Arrest Without Warrant²Explained (p. 173) Where there is no warrant for a person's arrest, a Peace Officer is governed by CC, s. 495:

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495. (1) A peace officer may arrest without warrant ± (a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) A person whom he finds committing a criminal offence; or (c) A person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. (2) A peace officer shall not arrest a person without warrant for (a) An indictable offence mentioned in s. 553, (b) An offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) An offence punishable on summary conviction, in any case where (d) He believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i) Establish the identity of the person, (ii) Secure or preserve evidence of or relating to the offence, or (iii) Prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) He has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. (3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of ± (a) Any proceedings under this or any other Act of Parliament; and (b) Any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). The ³finds committing´ standard requires that the person arresting have actually witnessed the commission of the offence. The requirement is read to mean ³apparently´ finds committing. Section 495 basically states that officers can arrest without warrant people who have committed indictable offences, or any person fleeing from any type of offence. However, s. 494 CC (³citizen's arrest´) is also available since peace officer is ³any one´. (b) Reasonable Grounds (p. 175) Reasonable grounds for arrest (sometimes referred to as "reasonable and probable grounds') has an objective and subjective component (R. v. Storrey (1990) (SCC)). The officer may use his training and experience in determining objective reasonableness. For example, what may appear to be innocent objects to the general public may have a very different meaning to an officer experienced in drug operations (R. v. Rajaratnam (2006) (Alta. C.A.)).

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A conclusory statement from one officer to another, such as ³a drug transaction has taken place´, will not support an objective finding of reasonable and probable grounds for an arrest (R. v. Lal (1998) (B.C.C.A.)). The subjective grounds must be based on a bona fides belief to a relevant fact. It is not necessary that the fact actually be true (Eccles v. Bourque [1975] (S.C.C.)). A "tip" can be used to form the grounds of arrest. The "tip" must be considered based on the 1) the degree of detail provided; 2) the informant's source of information; 3) the informant's prior reliability (R. v. Warford (2001) (Nlfd. C.A.)). An anonymous tip generally is not sufficient (R. v. Bennett (1996) (Que. CA)) (c) Procedure on Arrest (p. 185ff) (i) Script The arresting officer must inform the accused of the charges and their right to counsel. Typically, the officer will read from a script: (ii) Right to be Informed of Charges Section 10(a) of the Charter entitles all people "the right on arrest or detention ... to be informed promptly of the reasons therefor". It is generally expected that the arresting officer, upon making the arrest, will inform the person of the reason for the arrest. However, where the reason is obvious and the person is well aware of the reason, it is not necessary (Koechlin v. Waugh (1956) (Ont. C.A.)). (iii) Right to Counsel Upon arrest or detention, an accused has a constitutional right to counsel under s. 10(b) of the Charter. Post-fulfillment Once the obligations have been fulfilled the police may undertake questioning at will and do not need to stop by further requests for a chance to speak with a lawyer (R. v. Wood (1994) (N.S.C.A.)). However, if counsel is on the way, they must wait for counsel to arrive (R. v. Howard (1983) (Ont. C.A.)). The police do not need to cease a lawful search while the accused seeks counsel (R. v. Borden [1994] (S.C.C.)).

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3) Compelling Appearance Without Arrest (Coughlan pp. 153 ± 161) Summons A provincial court judge or a justice of the peace can issue a summons requiring an accused to appear in court on a given date. The summons can also indicate when a person is required to report for fingerprinting and a mug shot (s. 504). Failure to comply with the summons can result in an arrest warrant and further charges (s. 144). The choice between a summons and an arrest warrant lies in the discretion of the judge. However, s. 507(4) directs a justice to issue a summons unless there are reasonable grounds to believe that a warrant is necessary in the public interest. At a policy level, this is parallel to s. 495(2) which directs police officers to prefer the use of an appearance notice to an arrest for some offences. Appearance Notice If a police officer is satisfied on reasonable grounds that an arrest is not necessary to establish the identity of the person, secure or preserve evidence, or prevent the continuation of the offence or the commission of another offence, they can issue the person an Appearance Notice instead of arresting them (provided that the offence is a summary conviction offence, a hybrid offence, or an offence found in CC, s. 553). Like a summons, an Appearance Notice directs the accused to appear in court on a given date, and to report for fingerprinting and mug shots. Failure to comply with the appearance notice can result in an arrest warrant and further charges (s. 494, s. 145). (a) Timing If an accused is not released by the police, he or she must be brought before a provincial court judge or a justice of the peace without unreasonable delay and in any event within 24 hours of the arrest, unless a justice is not available in that amount of time in which case the accused must be brought before a justice as soon as possible. If the offence is one found in CC, s. 469 (murder, treason, etc.), the accused is automatically detained so that he or she can be dealt with as described below. Otherwise, the judge or justice of the peace can hear the bail hearing. The hearing may be adjourned by the defence, the prosecutor, or the court. However, if the defence does not consent to the adjournment, the bail hearing can only be adjourned up to 3 days. If the bail hearing is adjourned, the court may order the accused not to communicate with certain individuals while he or she is detained.

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(a) Justification for Detention (p. 161ff) In Canada, there are only 3 grounds for detaining an accused prior to sentence. They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds. Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court (s. 515(10)(a)). Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court. Secondary grounds refers to whether detention is necessary for the protection or safety of the public (s. 515(10)(b)). This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice. Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences. The four factors to consider in s. 515(10)(c) are: The apparent strength of the prosecutor's case, The seriousness of the offence, The circumstances surrounding the offence, including whether a firearm was used, and If found guilty, whether the accused is liable to a potentially lengthy term of imprisonment, or if a firearm was involved, faces a minimum of 3 year of jail. Two exceptions to general approach: s. 515(6) [reversed onus] and 515 (11) [refers to 522: only judge, not justice, can decide about releasse wrt to 469 offences] R v. Hall [2002] SCC (also p. 164) Held: Denial of bail ³to maintain confidence in the administration of justice´ having regard to the factors set out in s. 515(10)(c) complies with s. 11(e) of the Charter. This ground is narrower and more precise than the old public interest ground which was struck down as vague in 1992 and provides an intelligible standard for debate and for the exercise of discretion. The means chosen do not go further than necessary to achieve Parliament¶s purpose of maintaining public confidence in the bail system and the justice system as whole. Parliament has hedged the provision with important safeguards: a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. (b) Burden of Proof Generally, the prosecutor has the burden to show on a balance of probabilities why the accused should be detained. However, the accused has the burden to show why he or she should be released if they are charged with the following offences under s. 515(6)(a):

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An offence committed while at large on a release, An offence committed at the direction or in association with a criminal organization, A terrorism offence, Certain offences under the Security of Information Act, A weapons trafficking offence, Certain violent offences (including attempted murder) where a firearm was used, An offence that involved a firearm, crossbow, restricted weapon, or prohibited weapon while under a weapons prohibition, Any offence if the accused is not an ordinary resident of Canada, An offence of failing to comply with release conditions or failing to attend court, or Certain offences under the Controlled Drugs and Substances Act that carry the possibility of a life sentence. The prosecutor is not required to show cause why an accused should be detained, and may consent to the release of an accused. Similarly, the accused may concede that the prosecutor can show cause (or if the accused has the burden of proof, indicate they do want to show cause why they should be released) and consent to their detention. (c) Evidence (s. 518) The standard of evidence in a bail hearing is trustworthy and credible, and can include hearsay. This can include a summary of the alleged offence and any witness statements. The court is allowed to consider other offences the accused has been charged with but is still awaiting trial for. (d) Types of Release, s. 515 (2) CC (p. 162) If the court is satisfied that the accused should be released, there are a number of options available: (i) Undertaking A basic undertaking only requires the accused to appear in court as directed by the undertaking. The court may also impose further conditions as described below. Failure to comply with the undertaking is a criminal offence (s. 145 CC). (ii) Recognizance Without Sureties and Without Deposit A recognizance requires an accused to follow certain conditions with a financial penalty if they are not followed. If there are no conditions, then the recognizance just requires the accused to attend court as directed by the recognizance. The recognizance can be for any amount the court determines would be appropriate based on all of the circumstances (the accused's financial situation, the circumstances of the offence, the likelihood of the recognizance not being complied with, etc.). If the recognizance is not complied with, a judge can order the accused to be liable to the Crown for an amount up to the amount of the recognizance. The accused can also face further criminal charges (s. 145 CC).

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(iii) Recognizance With Sureties and Without Deposit The court may require that sureties be added to the recognizance. Sureties are jointly and severally liable for the amount of the recognizance. The court has the ability to name specific individuals as sureties. Sureties are allowed to apply to the court to be relieved of their obligations. This will usually result in the accused being arrested and held for a new bail hearing. (iv) Recognizance With Deposit If the accused is not an ordinary resident of the province where they are in custody, or they do not ordinarily reside within 200 kilometres of where they are in custody, the court can require that they deposit a sum of money or valuable security, which they will not get back until their matter is disposed of. Sureties are an option in this situation. If the accused is an ordinary resident, they can make a deposit instead of requiring sureties, provided the prosecutor consents to such an arrangement. (e) Conditions of Release If the court releases a person on bail, they can require the accused to comply with one or more of the following conditions (s. 515(4)): Report at a certain time to the police, Remain within the territorial jurisdiction, Notify the police of any change of address, employment, or occupation, Abstain from communicating, directly or indirectly with certain individuals, Refrain from attending certain locations, Deposit their passport, Comply with any other condition the court considers necessary to ensure the safety of any victim or witness, and Comply with any other reasonable condition the court considers desirable. If the accused is charged with one of the following offences, the court is required to prohibit the accused from possessing any firearm, crossbow, restricted weapon, or prohibited weapon, unless the court considers that such an order is not required (515 (4.1)): An offence with the commission of violence, attempted violence, or the threat of violence, A terrorism offence, Criminal harassment, Intimidation of a justice system participant (victim, witness, etc.), Certain offences under the Controlled Drugs and Substances Act, An offence that involves a firearm, crossbow, restricted weapon, or prohibited weapon, or Certain offences under the Security of Information Act. If the accused is charged with one of the following offences, the court is required to consider whether conditions are necessary to protect the victim or witnesses of the offence (515 (4.2) and (4.3)):

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A terrorism offence, Criminal harassment, Intimidation of justice system participant, An offence with the commission of violence, attempted violence, or the threat of violence, or Certain offences under the Security of Information Act. (f) Publication Bans Either party can request a publication ban on all evidence and reasons given in a bail hearing until the charges are resolved (s. 517). If the publication ban is requested by the defence it is automatic. It does not infringe s.2 of the charter b/c saved by s.1. (g) Revocation of Bail If a police officer has reasonable grounds that an accused has or is about to contravene any type of release (including summons and appearance notices), they can arrest the individual. If the court is satisfied that there are reasonable grounds, it can revoke all outstanding releases, and hold a new bail hearing on all outstanding charges. The burden of proof is on the accused. Bail can also be revoked by the trial judge under CC, s. 523. The consequence results in the accused being arrested and facing a bail hearing as though he or she has just been arrested for the original offence. (h) Bail Variation A recognizance or undertaking can be varied at any time with the written consent of the prosecutor. (a) Bail Review (i) Application for Review (s. 520, 521) If and the court makes an order for the release or detention of the accused, or varies such an order, either party can bring an application to a superior court judge to review the order, and if necessary vacate and replace it. Once a decision is made, both parties must wait 30 days before being allowed to make another application. (ii) Automatic Review (s. 525) If an accused is ordered detained (either at a bail hearing or after a bail review application), an automatic bail review is made by a superior court judge after a prescribed period of time. For summary conviction offence, the period is 30 days from the date the detention order was made. For indictable offences, the period is 90 days from the date the detention order was made. Besides being able to vacate and replace the order, the judge can also make directions to expedite the accused's trial.

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R v. Hall [2002] SCC Held: Denial of bail ³to maintain confidence in the administration of justice´ having regard to the factors set out in s. 515(10)(c) complies with s. 11(e) of the Charter. This ground is narrower and more precise than the old public interest ground which was struck down as vague in 1992 and provides an intelligible standard for debate and for the exercise of discretion. The means chosen do not go further than necessary to achieve Parliament¶s purpose of maintaining public confidence in the bail system and the justice system as whole. Parliament has hedged the provision with important safeguards: a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community.

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GETTING READY FOR TRIAL 26. DISCLOSURE A key right of the accused, and an important obligation on the Crown is to make full disclosure of the fruits of the investigation (all information gathered by or made known to the police during the investigation) to the accused. All of the fruits of the investigation are to be disclosed save what is clearly irrelevant or privileged. The law of privilege is covered by the law of evidence but the most relevant privileges should be flagged here. Disclosure is to be made before the accused is called upon to elect his mode of trial for s.536 indictable offences. The accused may also seek to secure relevant ³third party records´ ± relevant documents that are not the fruits of the investigation that are under the control of persons other than prosecution and police. Where third party records are sought, complex applications must be brought, which differ depending on whether the charge is a sexual offence prosecution or some other offence. If issues arise as to whether proper disclosure has been made, the assigned trial judge should ordinarily resolve them. As a practical matter, this requires early assignment of a trial judge who can address these matters. - R. v. Stinchcombe, [1991] 3 S.C.R. 326 - R. v. McNeil 2009 SCC 3 - Coughlan pp.197 ± 222 A key right of the accused, and an important obligation on the Crown is to make full disclosure of the investigation (all information gathered by or made known to the police during the investigation) to the accused. The law of privilege is covered by the law of evidence but the most relevant privileges should be flagged here. Disclosure is to be made before the accused is called upon to elect his mode of trial for s.536 indictable offences. 1) Coughlan p. 197-222: Introduction General Principles The right to disclosure is founded in the principle of fair play between parties (R. v. Lemay [1952] (S.C.C )) as well as the right to make full answer and defence (CC, s. 650(3)). The Crown is required to disclose "all relevant materials" in their possession or control (R. v. Stinchcombe [1991] (S.C.C.)). This is not limited to sole inculpatory evidence nor only evidence that the Crown would adduce at trial. "Relevant materials" includes all materials for which there is a "reasonable possibility" that it may be useful for the Defence.

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Materials including statements and police notes are required to be disclosed under s. 603: 603. An accused is entitled, after he has been ordered to stand trial or at his trial, (a) To inspect without charge the indictment, his own statement, the evidence and the exhibits, if any; and (b) To receive, on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the province, a copy (i) Of the evidence, (ii) Of his own statement, if any, and (iii) Of the indictment; But the trial shall not be postponed to enable the accused to secure copies unless the court is satisfied that the failure of the accused to secure them before the trial is not attributable to lack of diligence on the part of the accused. Stinchcombe Principles The Stinchcombe principles are as follows: 1. The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for the use in securing a conviction, but, rather, are the property of the public to ensure that justice is done. 2. The general principle is that all relevant information must be disclosed, whether or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information, whether it is inculpatory or exculpatory, and must produce all information which may assist the accused. If the information is of no use, then it is irrelevant and will be excluded by Crown counsel in the exercise of the Crown's discretion, which is reviewable by the trial judge. The current state of affairs was summarized by the SCC in R. v. Taillefer [2003] as follows: ³The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of the Crown's discretion to refuse to disclose information that is privileged or plainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea. Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. This Court has also defined the concept of ³relevance´ broadly. Structure of the Right Police compile a package of the evidence consisting of the notes, reports and statements generated during their investigation that is forwarded to the Crown Attorney's office. This usually comprises the initial disclosure package that is made available to the Defence counsel. The obligation to disclose includes both the Crown prosecutor and the police (R. v. Jack). The obligation is a continuing one, and the Crown must disclose any additional information it
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receives. Equally, the defence has a continuing obligation to seek disclosure, and it is not entitled to assume that it has received all relevant information. KEY CASE R. v. Stinchcombe [1991] (S.C.C.) The Court found that the Crown had a duty to provide the defence with all evidence that could possibly be relevant to the case, regardless of whether the Crown plans to call that evidence at trial or not, or whether it helps or hurts the Crown's case. This case put to rest the long standing issue of whether the Crown could purposely deny the defence evidence that the Crown found would be harmful to their case. Facts William Stinchcombe was a lawyer who was charged with theft and fraud. One of the Crown's witnesses was a former secretary of Stinchcombe's who had given evidence at the preliminary inquiry that supported the defence's position. Later a statement was taken from her by an RCMP officer, however, at trial the defence was denied access to the contents of the statement. When the Crown decided not to use the statement the defence made a request for it to the judge who refused to provide it. The accused was eventually convicted. SCC Decision Sopinka J., writing for a unanimous Court, held that the judge was wrong in refusing the application by the defence, as the Crown was under a duty to disclose all evidence. ³The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.´ The duty, wrote Sopkina J., is derived from the right of an accused to make full answer and defence which has been entrenched under section 7 of the Charter. This duty, however, is still subject to rules of privilege. 2) Current State of the Law and ³Lost Evidence´ Cases (a) R. v. La and the Prejudice Requirement Sopinka J. noted that the Crown¶s duty to disclose under Stinchcombe also ³gives rise to an obligation to preserve relevant evidence´, and that, in the case of lost evidence, ³where the Crown¶s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached´. The concerns the court ought to look at in making a assessment of lost evidence were summarized as follows: The court should analyze the circumstances surrounding the loss of the evidence; the main consideration is whether the Crown or the police took reasonable steps to preserve the evidence for disclosure;
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As the relevance of the evidence increases, so too does the degree of care for its preservation that is expected of the police; Conduct amounting to an abuse of process includes conduct on the part of governmental authorities that violates those fundamental principles that underlie the community¶s sense of decency and fair play; The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown¶s obligation to disclose the material will, typically, fall into this category; An abuse of process is not, however, limited to conduct of officers of the Crown which proceeds from an improper motive; Other serious departures from the Crown¶s duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established²in some cases, an unacceptable degree of negligent conduct may suffice. It will still be possible for the A's right to full answer and defence to be breached, but only if the A can establish actual prejudice. R. v. Dixon and R. v. Taillefer ± non-disclosure raised after trial (1) Was the accused's right to disclosure breached (Stinchcombe standard)? (2) If so, did that breach violate the A's right to make full answer and defence? The A must show that there is a reasonable possibility the nondisclosure affected the outcome at trial or the overall fairness of the trial process (Dixon). This standard will be met where there is either (1) a reasonable possibility that the evidence would have affected the decision to convict, or (2) a reasonable possibility that lines of inquiry with witnesses or opportunities to gather further evidence exist, which would have been available if the evidence had been disclosed (Dixon). With respect to (1), a court must look at the evidence as whole and not at each undisclosed piece of information individually (Taillefer). With respect to (2) the standard is only that of ³reasonable possibility´ That is, a judge should not try to assess the evidence and decide whether it actually would have affected a jury's deliberations. It is sufficient that there be a reasonable possibility it would have done so for the fairness of the trial process to be affected (Taillefer). (3) If so, what remedy should be granted? Where the A requests a remedy during trial, an order for disclosure or an adjournment might be a sufficient remedy (Dixon). Disclosure and Privilege, p. 210 Identity of the Police Informer, p. 210 It is generally said that the prosecution does not need to disclose the identity of the police informer or provide information that may disclose the identity (R. v. Grey (1996) (Ont. C.A.)). This is especially the case in drug trafficking cases (R. v. Scott (1990) (S.C.C.)).

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The court will only order the disclosure of the identity if it is needed to show the innocence of an accused person. This can apply where the informer is a material witness to the offence. The determination requires balancing of the relevance of the identity of the informer and the prejudice to the informer and public interest in law enforcement (R. v. Garofoli (1990) (S.C.C.)). Even then, the Crown has the choice of staying the proceedings rather than making the disclosure (R. v. Leipert) Solicitor-Client Privilege, p. 211 Exemption to this privilege and the Informer privilege is the innocent at stake test in McClure. It comprises a threshold question and a two-stage-innocence at stake test, which proceed as follows: To satisfy the threshold test, the A must establish that: the information he seeks from the solicitor-client communication is not available from any other source, and he is otherwise unable to raise a reasonable doubt. If the threshold test has been satisfied, the judge should proceed to the innocence at stake test. Stage#1: The A seeking production has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt. Stage#2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the A. A McClure application is intended to be a last resort. R v. McNeil [2009] SCC ± Police must disclose disciplinary records -requires the police to hand over records of the discipline and misconduct of its officers as part of its disclosure obligation to the defence in criminal proceedings. Facts: the accused was charged with possession of crack cocaine for the purpose of trafficking and the primary witness at his trial was the arresting officer, PC Hackett. McNeil was convicted at trial, but in the intervening period prior to sentencing, the defence learned through a newspaper article that PC Hacket was standing trial for a number of criminal offences, and had no less than 71 pending Police Act charges relating to the ongoing use, sale and transportation of narcotics. In short, it appeared that the arresting officer was himself involved in the drug trade, casting serious doubt on the credibility of his testimony at trial. Held: The Crown¶s obligation to disclose all relevant information in its possession to an accused is well established at common law under the Stinchcombe regime. Under Stinchcombe, the Crown¶s first party disclosure obligation extends only to material relating to the accused¶s case in the possession or control of the prosecuting Crown. A question then arises as to whether the ³Crown´ for disclosure purposes encompasses other state authorities. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process. The necessary corollary to the Crown¶s disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown. Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the first party disclosure package due to the Crown from police, where the police misconduct is
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either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O¶Connor regime for third party production. The O¶Connor procedure provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown, and is not limited to cases where third party records attract a reasonable expectation of privacy. To limit the applicability of the O¶Connor regime to those cases where a third party has an expectation of privacy in the targeted documents would raise some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether a reasonable expectation of privacy attaches. The first step in the O¶Connor procedure for production of documents in the possession of a third party is for the person seeking production to satisfy the court that the documents are likely relevant to the proceedings. If likely relevance is demonstrated by the applicant, the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production should be ordered. Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case. In most cases, a useful starting point for courts in balancing the competing interests at the second stage of an O¶Connor application will be to assess the true relevancy of the targeted record in the case against the accused. Once a court has ascertained upon inspection that third party records are indeed relevant to the accused¶s case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: If the third party record in question had found its way into the Crown prosecutor¶s file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application. The accused¶s interest in obtaining disclosure for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused. That is not to say that residual privacy interests in the contents of criminal investigation files, police disciplinary records or any other third party records should be disregarded. The court should ensure that a production order is properly tailored to meet the exigencies of the case but do no more. To ensure that only relevant material is produced and that no unwarranted invasion of privacy interests occurs, the court may find it necessary to make a production order subject to redactions or other conditions. In addition, when just and appropriate to do so, the court may well impose restrictions on the dissemination of the information produced for purposes unrelated to the accused¶s full answer and defence or prosecution of an appeal.

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27. PRELIMIARY INQUIRIES As indicated, at the preliminary inquiry, the judge must determine whether the Crown has presented a prima facie case. If so, the accused is committed to stand trial and the prosecutor will be called upon to draft an indictment, which will replace the original information as the new charging document. If the Crowndoes not establish a prima facie case, the accused is discharged and the prosecution on the charge that has been laid ends ± in effect, the accused who was ³charged´ is ³discharged.´ A discharge at a preliminary inquiry is not, however, an acquittal. The prosecution can relay the charge and try again, but will not do so unless important new evidence is uncovered. The Attorney General also has the authority to lay a direct indictment, which gives jurisdiction to a court to try the accused. The direct indictment can be used to reinstitute a prosecution after a preliminary inquiry discharge, or to bypass a preliminary inquiry altogether by indicting the accused directly to trial. - Coughlan pp. 224 - 249 - R. v. Arcuri [2001] S.C.J. No. 52 (read above) The judge must determine whether the Crown has presented a prima facie case. If so, the accused is committed to stand trial and the prosecutor will be called upon to draft an indictment, which will replace the original information as the new charging document. If the Crown does not establish a prima facie case, the accused is discharged and the prosecution on the charge that has been laid ends ± in effect, the accused who was ³charged´ is ³discharged.´ A discharge at a preliminary inquiry is not, however, an acquittal. The prosecution can relay the charge and try again, but will not do so unless important new evidence is uncovered. The Attorney General also has the authority to lay a direct indictment, which gives jurisdiction to a court to try the accused. The direct indictment can be used to re-institute a prosecution after a preliminary inquiry discharge, or to bypass a preliminary inquiry altogether by indicting the accused directly to trial. (Coughlan pp. 224 ± 249) The statutory foundation for a preliminary inquiry is set out at CC, s. 535: 535. If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part. The purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the matter down for trial before a Justice of the Superior Court. In practice the Inquiry is used to test the strength of the Crown¶s case. The inquiry judge has a general power to regulate the inquiry process under s. 537.

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Note that the charge on the table must be for an indictable offence and that only the accused can request a preliminary inquiry. A preliminary inquiry is often used by the Crown to test or challenge the Crown's case. In any event, the inquiry is not a trial on the merits and nothing can be read into a judge's direction to send the charge to trial. In R. v. Hynes (2001) (S.C.C.), McLachlin J. wrote: ³The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial. The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial.´ 1) The Purpose and Benefits of the Hearing Part XVIII of the CC sets out the purpose of, and procedural rules applying to, preliminary inquiries. The preliminary inquiry (or hearing) ensures the Crown has sufficient evidence to warrant a trial and protects an accused from being subjected to a public trial improperly or unnecessarily. It is first and foremost a charge screening device. Nonetheless, there are a host of other functions served by the inquiry, with benefits to the defence, the Crown and the administration of justice. 2) When a Preliminary Hearing is Available In all cases where the charge is proceeding by indictment (either because the offence is defined as indictable, or is a hybrid offence and the Crown has elected to proceed by indictment) and the trial is to take place in the Superior Court of Justice (either because the charge is within the absolute jurisdiction of the Superior Court or because the accused has elected trial in the higher court), the defence or the Crown may request the hearing (s. 536(4)). 3) The Statement of Issues and Focus Hearing Recent changes to Part XVIII of the Code are designed to streamline preliminary inquiries by encouraging both the Crown and the defence to focus the hearing on essential issues. The party who requests the preliminary hearing must provide the court with a statement setting out which witnesses, and on what issues, they want to hear evidence at the inquiry (s. 536.3). The Hearing (a) Procedural Matters that Arise at the Commencement of the Hearing When not already done, the proceedings before the preliminary inquiry judge will commence with the accused being arraigned and put to his or her election regarding the mode of trial. The accused does not enter a plea.
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Prior to the calling of evidence, defence counsel will usually want to request an order excluding witnesses. While a justice may refuse the order it is usually granted. An exception is commonly made for the officer in charge of the case who will assist the Crown in court, but in the appropriate case defence counsel may request that no exception be made, or that the officer in charge testify first. Defence counsel will usually want to seek an order under s. 539 prohibiting the publication of any of the evidence from the preliminary hearing to protect their clients¶ right to a fair trial and untainted jury. As long as the order is requested before any evidence is called, the justice has no jurisdiction to refuse the request. The Crown may also request the ban and the justice has a discretion to grant the request or not. Any publication ban ordered operates until the accused is discharged or until the end of the trial. The presiding justice must inform an unrepresented accused of the right to apply for a publication ban. While the justice has the power to exclude the public from the hearing altogether ³where the ends of justice will be best served by so doing´ (s. 537(1)(h)), all court proceedings are presumed public and any exercise of this power will be rare. (b) The Conduct of the Hearing Under s. 540, the evidence commences with the Crown calling its witnesses. The defence is given an opportunity to cross-examine. While s. 537 appears to give a preliminary hearing judge fairly extensive powers to regulate the process of the hearing, the SCC has interpreted the powers of a justice as being only those explicitly granted under the scheme and thus quite restrictively. Section 540(7) provides that otherwise inadmissible evidence that is ³credible and trustworthy´, including a written or recorded statement, is admissible at a preliminary hearing. Before invoking s. 540(7) the party seeking to tender the evidence must give reasonable notice and a copy of the evidence to the other party. Evidence admitted under s. 540 (7) is not admissible to be read in at trial under s. 715. (c) Commission Evidence When a witness is unable to come to court to testify due to disability or ³some other good and sufficient cause´, either party may apply to the justice presiding at the hearing for an order appointing a commissioner to take the evidence of the witness. The application may also be made to a Superior Court judge. When a witness is outside Canada, the application for the appointment of a commissioner must be made to a Superior Court judge. The evidence obtained in this fashion is admissible at trial, as well as at the preliminary inquiry (s. 709).

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(d) Confessions The Crown may lead evidence of an accused person¶s confession at the preliminary hearing, if the statement is proven voluntary beyond a reasonable doubt (s. 542(1)). There may be no publication of a confession or the fact that one was tendered at the preliminary hearing ± even in the absence of the standard publication ban. (e) Charter jurisdiction The SCC in both R. v. Hynes (2001) (S.C.C.) and R. v. Mills (1986) (S.C.C.) held that a justice conducting a preliminary hearing is not ³a court of competent jurisdiction´ under s. 24(1) or 52 of the Charter, and has no power to grant remedies for Charter breaches. This includes having no power to make evidentiary rulings based on Charter violations. (f) Proceedings Following the Crown¶s Case The accused is given an opportunity to call his or her own evidence at the conclusion of the Crown¶s case. An accused rarely testifies at the hearing, to avoid giving the Crown a significant advantage on cross-examination. There are some specific circumstances when the defence may want to call other witnesses: -To ³discover´ the evidence of a Crown witness the Crown has chosen not to call at the hearing; -To preserve the evidence of a defence witness who might become unavailable; and -To discover the potential evidence of a witness who is not willing to provide an out of court interview to the defence. In circumstances where the accused wants to rely on a defence that ought to be disclosed in advance of the trial (i.e. an alibi), this disclosure can be done by way of a statement through counsel on the record, or by letter to the Crown. There is no need for the accused to take the stand. If the accused is unrepresented at the preliminary hearing, the justice must read the accused the warning, set out in s. 541(2): ³You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.´ Upon the completion of the evidence, the justice must provide the accused or his or her counsel an opportunity to make submissions, and may grant this right to the prosecutor or Crown counsel.

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6. Order to Stand Trial (a) The Test on Committal 548 (1) When all the evidence has been taken by the justice, he shall ± (a) If in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (b) Discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. (2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial. (2.1) A justice who orders that an accused is to stand trial has the power to fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed. (3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect. The test for committal (i.e. for order to stand trial or discharge) as set out in s. 548 is one of ³sufficiency of evidence´ In R. v. Arcuri (2001) (S.C.C.), the SCC held that the question to be asked by a preliminary inquiry judge under s. 548 is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The task is essentially the same, in situations where the defence tenders exculpatory evidence, whether it be direct or circumstantial. When the evidence the Crown relies upon is direct evidence, the justice must simply determine whether the Crown has led evidence going to every element of the offence. This is sufficient for committal. If the Crown¶s case is circumstantial, the justice must do some limited weighing of the whole of the evidence to determine whether, if believed, it would be reasonable for a properly instructed jury to infer guilt. This limited weighing does not involve drawing inferences from facts or assessing the reliability or credibility of the evidence. Rather, the issue is what inferences the whole of the evidence could support. A different test applies in extradition cases. If a judge on an extradition hearing concludes that the evidence is manifestly unreliable, the judge should not order extradition (United States of America v. Ferras).

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(b) Committal on Other Offences If during the course of the preliminary hearing, any other (i.e., not charged on the Information) indictable offence ³in respect of the same transaction´ or connected events is revealed by the evidence, the justice may commit the accused to stand trial on that charge as well. The ³other offence´ must be closely interwoven or related to the charged offences (s. 548(1)(a)), but may be a more serious than any offence charged on the Information. A preliminary hearing on a charge of second degree murder can result in a committal to trial on a charge of first degree murder, for instance, if the evidence reveals any admissible evidence which, if believed, could support a finding of planning and deliberation. A justice may commit an accused to stand trial on Code charges revealed by the evidence even though the preliminary hearing is being held in regards to charges under some other Act (such as the Income Tax Act). (c) Consequences of a Discharge For the most part, a discharge at the preliminary inquiry will mark the end of the proceedings. With the Attorney General¶s personal consent, the charge may be the subject of a ³preferred´ or direct indictment under s. 577. Alternatively, the prosecutor may lay a new Information and start the process again. This process does not amount to double jeopardy under s. 11(h) of the Charter (or a successful plea of autrefois acquit), but may give rise to an abuse of process argument under s. 7 of the Charter. 7) Proceedings Following the Order to Stand Trial (a) The Indictment Following the committal order, the accused will be remanded to the Superior Court, and prior to the first appearance, the prosecutor will prepare the Indictment. The Indictment may include not only those offences on which there was a committal, but any other charge ³founded on the facts disclosed by the evidence taken at the preliminary inquiry´ (s. 574(1)) without seeking the consent of the Attorney General. (b) The Transcript While no rule requires it, defence counsel needs a copy of the transcript of the preliminary hearing prior to trial. Defence counsel should ensure they have a copy of the transcript in sufficient time to prepare for trial and should seek an adjournment of the trial if the transcript is not yet available. (c) Re-Election The accused may re-elect the mode of trial at any time with the written consent of the Crown. The one exception is that for the first 14 days upon the completion of the preliminary hearing an accused may re-visit the choice between a trial before judge and jury, or a trial by judge alone, as of right.

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8) Quashing the Order to Stand Trial A committal order may be challenged only by way of certiorari, an application to quash the order on the basis that the preliminary justice exceeded his or her jurisdiction. The application must be brought to the Superior Court of Justice within 30 days of the order to stand trial. A justice may exceed their jurisdiction at a preliminary hearing in one of 3 ways: -By failing to comply with mandatory provisions of the Code (for instance s. 548); -By breaching the rules of natural justice; -By ordering committal in the absence of evidence on an element of the offence. The standard of review on a certiorari application when the judge is said to have committed the accused in the absence of any evidence, has been the subject of an inordinate amount of jurisprudence. In brief, the reviewing court is not to ask whether there was evidence upon which a properly instructed jury acting judicially could convict, for this would be to simply substitute their opinion for that of the preliminary inquiry justice. Instead, the reviewing court must conclude there was no evidence upon which the justice could have concluded there was sufficient evidence to put the accused on trial. The reviewing court may quash the committal order or substitute a committal order for a lesser offence. There is some authority that the reviewing court may quash the order and send the case back to the Ontario Court so that the Crown can call further evidence. Generally, a certiorari application will cause the trial to be delayed. The court will, accordingly, expect the application to proceed as expeditiously as possible. If, for some reason, the Indictment is ³presented´ (that is, lodged with the court at the opening of the accused¶s trial) while a certiorari application is still pending, the Indictment becomes the operative document, and the accused can no longer challenge the committal order. The accused would have to move to quash the Indictment. The Crown may also apply for certiorari to quash an order discharging the accused on the basis that the preliminary hearing justice made a jurisdictional error. A jurisdictional error is committed if the justice fails to consider the ³whole of the evidence´ before discharging the accused. RELEVANT JURISPRUDENCE R v. Arcuri [2001] SCC± leading case on Preliminary Hearings Facts: The accused was charged with first degree murder. At the preliminary inquiry, the Crown¶s case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected the accused¶s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused should be committed to trial for second degree murder. The accused¶s certiorari application was dismissed and that decision was aff¶d by the CA.
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Issue: Did the trial judge, in determining whether the evidence was sufficient to commit the accused, err in refusing to weigh the Crown¶s evidence against that of the accused? Held: No; appeal dismissed. McLachlin CJ: The question to be asked by a preliminary inquiry judge under s. 548 of the Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The task is essentially the same, in situations where the defence tenders exculpatory evidence, whether it be direct or circumstantial Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that needs to be reached is whether the evidence is true However, where the Crown¶s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing the task of LIMITED WEIGHING, the preliminary inquiry judge does not draw inferences from facts, nor does she assess credibility The judge¶s task is to determine whether, if the Crown¶s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt This task of limited weighing never requires consideration of the inherent reliability of the evidence itself It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence Notwithstanding certain confusing language in Mezzo and Monteleone, nothing in this Court¶s jurisprudence calls into question the continuing validity of the common law rule in Shephard Comments: Notice here the use of the concept of µlimited weighing¶

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28. THE JURY TRIAL If a jury trial is to be held, a trial judge is assigned, and a jury is selected. - Coughlan pp. 54 ± 58 (selecting mode of trial) - Coughlan pp. 274 ± 292 (jury selection) If a jury trial is to be held, a trial judge is assigned, and a jury is selected. 1) Selecting Mode of Trial (Coughlan pp. 54 ± 58) (read the 4 pages) If the matter is indictable, s. 471 states that the trial must be judge and jury unless some other part of the Code specifies otherwise. In fact, exceptions of some sort are then made for every offence, and the vast majority of criminal trials occur without a jury. Most indictable offences can be tried in any court. Although s. 471 mandates jury trials as the putative norm, s. 558 states that an accused can elect not to have a jury, except for the offences listed in s. 469. Further, s. 473 states that an accused can elect not to have a jury, even for the offences listed in s. 469, with the Attorney General¶s consent. Normally, therefore, a choice of mode of trial exists and under s. 536(2) the accused is asked to elect a mode of trial. However, if the offence is listed as in the absolute jurisdiction of the magistrate, then the accused does not elect and is tried in provincial court (s. 553). Similarly, if the offence is listed in s. 469, the accused does not elect and is sent to trial by judge and jury (subject to the Attorney General¶s consent as in s. 473). If the accused refuses to elect, then according to s. 565(1)(c), the trial will be by judge and jury. The same is also true under s. 567 if there is more than one co-accused and they elect differently from one another. Further, even if the accused does not want a jury, the Attorney General can compel a jury trial if the offence is punishable by more than 5 years (s. 568). The accused has various rights of re-election, as set out in s. 561. Depending on whether the accused is re-electing ³down´ or ³up´, and to what point the proceedings have advanced, reelection is either a right or requires consent from the prosecutor. Looking at the 2) Jury selection (Coughlan pp. 274 ± 292) (a) Qualifications of Jurors The Code delegates the responsibility for determining who may act as jurors to the provinces (s. 626(1)). In Ontario, the governing statute is the Juries Act.

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(b) Assembling the Panel In Ontario, the sheriff of the judicial district in which the trial is to occur has the task of assembling a group of prospective jurors. To do so, the sheriff sends letters summoning people to jury duty for a particular period of time. This group then comprises the jury panel (or jury array) from which the jurors for any particular case are chosen. (c) Challenging the Panel (p. 276) Where either the accused or the Crown is of the view that the panel has been assembled unfairly, they may challenge the jury panel. This challenge may be brought only on one of the three following grounds: ³partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned´ (s. 629). While such challenges are rare, and succeed even more rarely, if one of the enumerated grounds is made out, the trial judge shall direct that a new panel be returned (s. 630). (d) Selecting from the Panel (p.277) Section 631 provides that the names of each member of the panel shall be written on a separate card and placed in a box and that the cards ³be thoroughly shaken together´. Then, at the direction of the trial judge, the clerk of the court randomly draws a card from the box and the number, name, address and occupation of the person is read and the person comes forward. This process is repeated until there are enough prospective jurors standing at the front of the court (usually 15 or 20) such that, allowing for challenges and excuses, a jury of 12 can be assembled. Two essential themes in jury selection is ensuring impartiality and ensuring representativeness. In R. v. Born With a Tooth (1993) (Alta. Q.B.), it was held that artificially skewing the composition of jury panels to accommodate the demands of any of the distinct segments of Canadian society would compromise the integrity of the jury system. The effectiveness of the jury system is based on its widespread acceptance by the community as a fair and just method of deciding issues of criminal responsibility, and manipulation of the composition of juries would erode that trust. There are three mechanism by which a member of the jury array might be excluded from the jury: exemption, challenge for cause, and peremptory challenge. They occur in that order. (i) Excusing Jurors, exemption (ss. 632, 633 CC) Under s. 632, at any time prior to the start of the trial, a prospective juror may be excused from jury duty on the grounds of ± Having a personal interest in the case Having a relationship with the judge, the Crown, the accused, counsel for the accused or a prospective witness; or Personal hardship or any other reasonable cause that warrants excuse.

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(ii) Challenge for Cause (p. 279) In addition to the peremptory challenge, a potential juror may be challenged for cause. Section 638 sets out the ³causes´ that may justify such a challenge: the name of the juror does not appear on the panel; the juror has been convicted of a criminal offence and sentenced to a term of imprisonment exceeding 12 months; the juror is physically unable to perform the duties of a juror; the juror does not speak the official language in which the trial is to be conducted. Most importantly, however, s. 638 provides for a challenge for cause where the ³juror is not indifferent between the Queen and the accused.´ (4 relevant types, p.280) The challenge for cause procedure allows the party seeking the challenge to question the potential jurors in order to discover evidence of partiality. To embark on a challenge for cause the accused or the Crown must apply to the court and establish that there exists a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application (2 step process, p. 281). The Code sets out a procedure for dealing with challenges for cause (s. 640). Where one of the parties indicates that they intend to challenge a particular person for cause, counsel will be permitted to ask a limited number of questions of that prospective juror. The decision as to whether the challenge for cause has been made out (the challenge is ³true´) is left to two ³triers.´ The triers are the 2 most recently sworn jurors or, if there are no sworn jurors, 2 other people who are present in court and appointed by the judge to rule on the challenge. Where these triers find that the challenge is ³not true´ then the person challenged will be sworn into the jury (unless one of the parties exercises a peremptory challenge). On the other hand, if the challenge is found to be ³true´, then the person challenged is excused. The jurisprudence on this issue is as follows: Candidates for jury duty are presumed to be indifferent or impartial and this presumption must be displaced before they can be challenged and questioned. The judge has a wide discretion in controlling the challenge process and should permit challenges if there is a realistic possibility that the jury pool may contain people whose racial prejudice might incline them to favour the Crown (R. v. Williams (1998) (S.C.C.)). The appropriate evidentiary standard on applications to challenge for cause based on racial prejudice is a ³realistic potential for partiality´ (the rule in R. v. Sherratt). A judge¶s discretion to allow challenge for cause must be exercised in accordance with the Charter. Section 638(1)(b) protects the accused¶s right to a fair trial by an impartial jury and the privacy interests of prospective jurors while avoiding lengthening trials or increasing their cost (Williams).

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(iii) Peremptory Challenges Each prospective juror is then asked to step forward in turn. The clerk then says, ³Juror, look upon the accused, accused look upon the juror´. At this time, the accused or the Crown: May indicate that they are content with the prospective juror; May make a challenge for cause (see below); or May make a peremptory challenge to the prospective juror (for which the procedure is set out in s. 635). A peremptory challenge is simply an objection to that person¶s inclusion on the jury in the absence of having to state any reason for so objecting. Each of the parties has a number of peremptory challenges that they have the right to exercise (the number varies depending on the offence being tried and on the number of accused (ss. 634(2)-(4))). There is a discussion whether the Crown is restrained in the exercise of this right in certain cases. With respect to the first juror, the accused must declare first whether he or she challenges. Thereafter the Crown and the accused are called upon alternately to declare first whether a juror is challenged or accepted (s. 635). Counsel must indicate either ³challenge for cause´ or ³challenge´ or ³content´. If both the accused¶s counsel and the Crown are content, then the juror is sworn and takes a seat in the jury box (s. 631(4)). This process is repeated until 12 jurors are selected or until the first group of people drawn is exhausted, at which time the initial procedure of drawing cards from the box is repeated. If the presiding judge considers it advisable in the interests of justice, 1 or 2 alternate jurors may be selected (s. 631(2.1)). (e) The Juror who Cannot Continue 12 jurors are selected to make up the jury. If 1 of those 12 is unable to continue to act as a juror ³by reason of illness or other reasonable cause´, then that juror will be discharged (s. 644(1)). Where that illness or other reasonable cause comes to light before the jury has heard any evidence, the trial judge may select a new juror by drawing a name from the panel (s. 644(1.1)) or by substituting an alternate in accordance with s. 642.1. If the jury has begun to hear evidence, the ill juror is discharged but not replaced. The trial judge has a discretion to proceed with eleven or ten jurors, but must declare a mistrial if the number of jurors falls below ten (s. 644(2)).

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29. PRE-TRIAL MOTIONS (Coughlan p. 253-273) In either judge alone or jury trials, there will often be preliminary legal issues to be resolved before the trial gets going. These will ordinarily be dealt with by the assigned trial judge. In a jury trial, it is often convenient to assign the judge and to dispose of these matters before a jury is selected, or if the motions can be resolved expeditiously, select the jury and require it to leave the courtroom until the motions are completed. - Coughlan pp.253 ± 27 In either judge alone or jury trials, there will often be preliminary legal issues to be resolved before the trial gets going. These will ordinarily be dealt with by the assigned trial judge. In a jury trial, it is often convenient to assign the judge and to dispose of these matters before a jury is selected, or if the motions can be resolved expeditiously, select the jury and require it to leave the courtroom until the motions are completed. 1) Introduction Pre-trial applications are assuming an increasingly important role in the trial process. Today it is not unusual for these motions to last far longer than the trial itself. In pre-trial applications counsel are attempting to set the parameters of the trial and, in doing so, are dealing with some of the most hotly contested issues in the case. These motions will determine matters ranging from when, and if, the trial will proceed to the nature of the evidence to be heard. Rule 6 of both the Superior Court of Justice Criminal Proceedings Rules and the Rules of the Ontario Court of Justice in Criminal Proceedings (Rules) requires that a notice of application be served at least 30 days before the hearing in the Superior Court, and 15 days before the hearing in the Ontario Court of Justice. Counsel may seek relief from a missed deadline either with the consent of the opposing party or by asking the court for an abridgement of the time requirements. Further, since certain motions must be heard by the trial judge, it is prudent for counsel to ask that a judge be assigned to deal with these preliminary matters at the earliest opportunity. In jury trials, s. 645(5) of the CC permits a trial judge to deal with pre-trial applications before the jury is selected. 2) Preparatory Motions Important examples of preparatory motions are applications for disclosure and for taking evidence by way of a commission. (a) Release of Exhibits for Testing Pursuant to s. 605, counsel may apply to a judge of the Superior Court or Ontario Court of Justice for an order for the release of any exhibit for the purpose of examination or testing. Although these applications can be made by Crown counsel, they are most frequently used by

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defence counsel to secure independent testing of physical evidence in order to challenge, modify or go beyond the testing done by experts for the prosecution. A s. 605 order will be granted where there is an air of reality to the contention that examination of the exhibit is likely to support a defence available to the accused. Rule 21 of the Criminal Proceedings Rules and Rule 20 of the Rules set out the requirements for this application in virtually identical terms. The motion must be made before a judge of the court in which the accused is going to be tried on at least two days notice. An affidavit by, or on behalf of, the applicant must be filed, setting out information that includes the status of the proceedings; the nature and relevance of the exhibit; the significance of the testing; and whether testing will delay the trial. A second affidavit, from the person or agency being proposed to conduct the testing, must also be produced, detailing the nature of the testing; the time needed to complete the testing; when the applicant will be in a position to decide whether to adduce the test results at trial; and any safeguards that will be used to preserve the exhibit for use at trial. 3) Non-Constitutional Pre-Trial Applications (a) Challenges to the Wording of the Charge This type of pre-trial motion involves attacks on the way in which the charge was framed in the information or indictment. Included in this category are challenges to the validity of the information, requests for particulars and applications for severance of counts or accused. (b) Procedural Applications (i) Adjournments Adjournments are a common feature of the day-today business in the criminal courts. A request for an adjournment may be made for many different reasons, including the unavailability of a key witness or to permit the accused to retain counsel. Where a date has been set for a preliminary hearing or trial, the procedure to be employed in seeking an adjournment is described in R. 26 of the Criminal Proceedings Rules and Rule 25 of the Rules. The application is made before a judge of the court in which the proceeding is to be heard. The Rules require that a notice of application be filed at least 15 days before the date on which the motion will be heard, and that the motion occur at least 10 days before the date fixed for the proceeding. This 25-day deadline means that counsel must act quickly when the need for an adjournment arises. Where counsel must seek an adjournment on the eve of a trial, such as where a witness has suddenly become ill, he or she should immediately notify the court and the opposing party and seek either an abridgement of the time requirements in the Rules or relief from compliance with them altogether. In addition, counsel should be prepared to provide the court with as much information as possible about the witness¶
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illness, such as the diagnosis, the treatment being received and the anticipated time for recovery. The affidavit that accompanies the application provides the evidentiary foundation for the order being sought. A court has a broad discretion in determining whether or not to grant an adjournment. The discretion must be exercised judicially, based on an objective consideration of all of the circumstances. In general, an accused person should be granted an adjournment where it is necessary in order to make full answer and defence, unless it is apparent that the accused is deliberately attempting to manipulate the system. (ii) Change of Venue, p. 258 The general rule in criminal cases is that trials should take place in the community in which the offence allegedly occurred. Section 599 permits a judge, of the court in which the accused is going to be tried, to order that the trial be held in a different location within the province. The applicant, whether the Crown or defence, must establish on a balance of probabilities that an order for a change of venue is "expedient to the ends of justice." The purpose of a change of venue is to safeguard the accused and society¶s interests in a fair trial. Mere inconvenience to one of the parties is insufficient. In jury trials, the defence brings most applications for a change of venue, where it is alleged that the accused cannot receive a fair and impartial trial in the community because of prejudicial pre-trial publicity. There must be strong evidence of a general prejudice attitude in the community as a whole. That prejudice must not be capable of being cured by safeguards in jury selection, by instructions from the TJ to the jury panel, or by rules of evidence (R. v. Suzack). Pursuant to R. 22 of the Criminal Proceedings Rules and R. 21 of the Rules, a notice of application, together with an affidavit by, or on behalf of, the applicant, must be served on the opposing party at least 15 days before the date set for the motion, which must be no less than 10 days before the trial is scheduled to begin. The notice of application must set out the location in which it is proposed that the trial be held. A factum is necessary where the motion is to be heard in the Superior Court and may be required in the Ontario Court of Justice. The affidavit supporting the application must detail the nature and circumstances of the offence charged, the date set for the trial, the reasons why a particular place is being proposed as the new venue and any potential prejudice that would ensue if the trial location is not changed. Fitness to stand trial, p. 259

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(iii) Removal of Counsel When a lawyer has undertaken to act for a client and has appeared in court to set a date for a preliminary hearing or trial, he or she has become the ³solicitor of record.´ Thereafter, counsel has an obligation to appear in court on the accused¶s behalf. If counsel wishes to withdraw from representing the accused, permission to do so must be obtained from the court. Withdrawal by defence counsel may occur in a variety of circumstances, including nonpayment of fees, being discharged by the client and the existence of a serious loss of confidence between the lawyer and the client. This matter raises both legal and ethical issues. In criminal proceedings, the timing of an application to withdraw can be significant. For example, a lawyer may not withdraw for non-payment of fees where the trial date is not far enough in the future to permit the accused to retain a new counsel who is properly prepared to defend the case. The Crown may seek to have defence counsel removed from the record on the basis of a conflict of interest. A conflict that warrants disqualification may arise where defence counsel previously represented a Crown witness or where defence counsel proposes to represent persons who are jointly charged. Rule 25 of the Criminal Proceedings Rules and R. 24 of the Rules set out the procedure for both withdrawal and removal of defence counsel as the solicitor of record. The application must be made as soon as practicable and within sufficient time to avoid an adjournment of the proceedings. The notice of application and supporting materials must be served on the opposing party at least 15 days before the hearing date, which must be no less than 10 days before the preliminary inquiry or trial. The accused must also be served by mailing a copy of the materials to his or her last known address. An affidavit by, or on behalf of, the applicant must accompany the notice. (c) Evidence Voir Dires Where the need for a ruling with respect to the admissibility of evidence can be foreseen before the commencement of the trial, the issue ought to be addressed in a pre-trial motion. By this means the trial can be more focussed, witnesses will not be needlessly inconvenienced by an interruption of their testimony to deal with the issue and, in a jury trial, the jurors need not wait outside the courtroom for the legal argument to be completed. A voir dire (trial within a trial) is necessary where evidence must be called to resolve a preliminary question of fact before the judge can make a ruling. Examples of some common types of voir dires include the following: y y Confession voir dires, where the Crown must establish that the accused¶s statement was made voluntarily as a precondition to its admission into evidence; A voir dire as to the admissibility of a hearsay statement, where it must be shown that the statement meets the criteria of necessity and reliability; and
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y

Applications for the production of sensitive records under s. 278.1, where an initial showing that the records are ³likely relevant´ is necessary before the issue of production can be considered.

The evidence adduced in a voir dire cannot be applied to the trial itself unless both counsel agree to it. Clearly, in a jury trial any relevant portions of the evidence will have to be repeated for the jurors¶ consideration. In the Superior Court of Justice, Rules 30 and 31 apply to applications to admit evidence and applications to exclude evidence, and make specific requirements for written notice in areas such as applications to admit evidence of prior disreputable conduct of an accused, or applications to exclude evidence under s. 24(2) of the Charter. (d) Other motions specifically permitted in the CC are applications for particulars(s.587), for exclusion of the publich from trial or a publication ban (s.486), or to sever counts (591(3)). 4) Constitutional Applications, p. 262 ff. The advent of the Charter has had a dramatic impact on the nature and effectiveness of pre-trial motions in criminal proceedings. By means of a constitutional application, an accused person can challenge: A legislative enactment, in whole or in part, on the basis that it is inconsistent with the Charter in either its purpose or its effects; A procedural or evidentiary rule, whether created by statute or common law, on the basis that it infringes a right guaranteed by the Charter; and The conduct of individuals, who are agents of the state, for violating the accused¶s Charter rights. This section will examine the procedural requirements and some of the tactical considerations involved in bringing a constitutional application. (a) Jurisdiction A constitutional remedy can only be granted by a court of competent jurisdiction; a court that has jurisdiction over the person, the subject matter and the remedy being sought. In criminal proceedings, a judge presiding at a preliminary inquiry is restricted to the powers set out in Part XVIII of the Code and has no ability to grant relief under the Charter. In general, the trial court (whether the Ontario Court of Justice or the Superior Court) is the proper forum in which to address Charter issues, as it is best situated to take into account the entire factual context in making a constitutional determination. In exceptional circumstances, an application may be made to the Superior Court, which has inherent jurisdiction to grant pre-trial relief. Examples of exceptional circumstances include situations where there is no court of competent jurisdiction as the proceedings have not yet reached a trial stage, and where the trial judge is allegedly involved in the Charter violation.
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(b) Burden The applicant bears the onus of establishing a breach of the constitution on a balance of probabilities. This is the case whether the accused is seeking to have legislation declared invalid under s. 52(1) of the Charter for being inconsistent with the Charter, or whether the accused is alleging an infringement of a right guaranteed by the Charter. The applicant must also provide an evidentiary foundation in order to support the allegation of a constitutional violation. Although the applicant bears the ultimate burden of establishing a breach of the constitution, in some circumstances the onus of proving a particular issue will shift to the Crown. (c) Challenging Legislation ± Section 52(1) No one can be convicted of an offence under an unconstitutional law. If counsel intends to defend a case by arguing that the legislation is constitutionally invalid, the vehicle for such an application is s. 52(1) of the Charter. This subsection states: ³any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.´ The procedural requirements for such a constitutional application are set out in R. 27 of the Superior Court of Justice Rules and R. 26 of the Rules. A notice of application and constitutional issue must be prepared. The document must contain the grounds to be argued; the constitutional issues to be raised; the constitutional principles to be relied upon; and a list of the evidence to be tendered at the hearing. In the Superior Court of Justice, an application record must be served as well. The notice must be served no less than 30 days in the Superior Court of Justice and no less than 15 days in the Ontario Court of Justice before the application is to be heard. Because a successful application to have legislation declared unconstitutional would have significant ramifications for the accused¶s case, as well as many other prosecutions, the Rules expand the usual service requirements. The notice and all supporting materials must be served on the Constitutional Law Division of the Ministry of the Attorney General for Ontario and the regional office of the Attorney General for Canada (Department of Justice), in addition to the prosecutor with carriage of the proceedings. A factum and an application record must be filed. The application record must include: A copy of the information or indictment; A transcript of any relevant earlier proceedings; An affidavit by, or on behalf of, the applicant; and Any other supporting materials. The applicant¶s affidavit must contain the particulars of the charge and ³a statement of all facts material to a just determination of the constitutional issue that are not disclosed in any other materials filed in support of the application.´

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Counsel must ensure that the presiding judge has a proper factual foundation on which to measure the impugned legislation against the requirements of the Charter. A court will not entertain a constitutional application in a factual vacuum. The documentation set out in the Rules is the bare minimum needed to advance a constitutional challenge; a successful application will generally require far more supporting material. In constitutional litigation, the judge should be provided with evidence of both adjudicative facts and legislative facts. Adjudicative facts are about the immediate parties to the litigation. They provide the factual context for the decision. Legislative facts establish the background and history of the legislation and are directed toward the validity or purpose of the provision. They provide the social, economic and cultural context. Where the basis for a Charter challenge is that the legislation is unconstitutional in its purpose, the record should include material such as the history of the legislation, Parliamentary debates, academic articles and law reform reports. Where the basis for the challenge is that the legislation is unconstitutional in its effects, counsel must prepare a record that establishes the improper impact of the provision. This material could include affidavits from persons who claim to have been unconstitutionally affected by the legislation; opinion evidence from experts who are able to describe the adverse effects of the legislation on a particular group; and social science data, such as studies, reports or statistics. In dealing with a constitutional application, a trial judge has the discretion to rule on the motion or to reserve the decision until the end of the case. In general, the latter course is preferable, as it ensures that there is a complete evidentiary context for determining the constitutional issue. However, where the application is clearly meritorious and is not dependent on the facts to be adduced at trial, the motion may be decided at the outset of the proceedings. If the applicant is successful in establishing that the legislation contravenes the Charter, the onus will shift to the Crown to prove that the violation constitutes a reasonable limitation on the applicant¶s right or freedom, pursuant to s. 1 of the Charter. (d) Charter Remedies ± Section 24(1) Most constitutional litigation is directed at complaints about an accused person¶s treatment within the justice system, rather than efforts to strike down legislation. In criminal cases, Charter breaches can take innumerable forms, ranging from an arbitrary detention by the police, to a failure by the prosecutor to disclose relevant evidence, to a denial of the right to be tried within a reasonable time. When a violation of a Charter right is established, the accused must demonstrate that a particular remedy is warranted. In circumstances where no evidence was obtained as a result of the constitutional violation, s. 24(1) of the Charter entitles the accused to seek a remedy that is ³appropriate and just in the circumstances.´ A judge is entitled to use s. 24(1) to provide imaginative and innovative redress for a Charter breach, so long as the remedy is one that is available in the criminal process. A civil remedy, such as damages, is inappropriate. Examples of some ³just and appropriate´ remedies under this provision include a sentence reduction where there was an arbitrary detention; a disclosure order, an adjournment and the payment of costs where the prosecutor failed to disclose evidence; and a stay of proceedings where the accused was not tried within a reasonable time. In general, a stay
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is a remedy of last resort ± it is only available in the clearest of cases, where no lesser remedy is suitable. The requirements of R. 26 of the Rules are applied in this type of constitutional application, just as they were to applications to strike down legislation. As described above in relation to s. 52(1) of the Charter, the applicant must file a notice of application and constitutional issue, a factum and an application record. These documents need only be served on the prosecutor with carriage of the proceedings. In addition to the materials specifically required by the Rules, the contents of the application record must focus on the relevant issues in the case and the substantive law pertaining to the constitutional issue being raised. (e) The Charter Remedy of Exclusion of Evidence ± Section 24(2) The remedy most frequently sought in constitutional litigation is the exclusion of evidence. Subsection 24(2) of the Charter provides that unconstitutionally obtained evidence will be excluded if its admission would bring the ³administration of justice into disrepute´. The evidence that counsel may seek to have excluded can take many forms, including an incriminating statement or bodily samples taken from the accused or physical evidence seized by the police. In the Superior Court of Justice, R. 31 governs Charter applications to exclude evidence under s. 24(2). Different provisions exist in the 2 levels of court; the applicable rule should be carefully consulted well in advance of trial. In the Ontario Court of Justice, R. 30 governs Charter applications to exclude evidence under s. 24(2). The notice of application must set out the evidence sought to be excluded; the grounds to be argued; the evidence to be used to support the application; and the relief being requested. The application record must contain a copy of the information and any transcripts of earlier proceedings relevant to the issue. An affidavit by, or on behalf of, the applicant is only required where it is necessary to complete the factual record. (i) Tactical Considerations and the Notice of Application The requirement that the notice set out ³the grounds to be argued´ gives rise to strategic considerations. This is particularly true where the accused¶s trial will be taking place in the Ontario Court of Justice. The preliminary inquiry provides counsel with an opportunity to lay a foundation for Charter applications at trial and to commit police witnesses to a version of events under oath. By contrast, a trial in the Ontario Court of Justice means that there has been no preliminary inquiry and no incidental opportunity to build a record prior to the Charter motion. Accordingly, counsel should bear this in mind when drafting the ³grounds to be argued´ portion of the notice of application. Rule 30 requires that the grounds be stated, along with ³a concise statement of the exclusionary issue to be raised´, but does not demand a detailed outline of the argument on the Charter application. It may not be possible,
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without the benefit of evidence under oath at a preliminary hearing, to provide the identical level of detail in advance of a motion in the Ontario Court of Justice. (ii) Tactical Considerations Flowing from the Burden of Proof In many cases, a Charter application cannot be decided solely on basis of the records filed by defence and Crown counsel. This is especially true in motions for the exclusion of evidence under s. 24(2), as the factual basis for the Charter argument is rarely settled before the application is heard. Usually a voir dire will be held in which viva voce evidence will be called. Even where defence counsel were able to bring a Charter violation to light during crossexamination of police witnesses at the preliminary inquiry and could discharge the evidentiary burden by including the relevant transcripts in the application record filed, a voir dire may be needed to permit the Crown to cross-examine on any affidavits in the motion record and to call evidence to explain or qualify the testimony at the preliminary inquiry. A voir dire will be of particular importance where there was no preliminary inquiry or where the outcome of the application will depend on findings of credibility. There are no fixed rules as to the way in which a Charter voir dire will be conducted ± a flexible approach is employed. As the applicant, the accused bears the evidentiary and legal burden of proof. Defence counsel should give careful consideration regarding how to meet this onus. As the accused is the person most likely to have direct knowledge of the circumstances giving rise to the Charter violation being alleged, it may be necessary to have him or her testify in the voir dire. The Crown will usually conduct a vigorous cross-examination of the accused and call the police officers involved. This situation generally leads to a credibility contest, in which the accused gives a version of events involving a constitutional violation, while the police describe carrying out their duties in accordance with the Charter. From a defence perspective, this is a not an ideal scenario, even with a client who is a good witness. The situation may improve where other witnesses can confirm all or part of the accused¶s evidence. The challenge becomes greater when counsel does not want to call the accused. Often the only other witnesses to the relevant events are the police. The likelihood of eliciting evidence of a Charter violation from a police officer during examination-in-chief is not great ± obtaining such an admission is difficult enough during cross-examination. Yet, in some circumstances, a tactical approach can alleviate some of the difficulties that arise from bearing the burden of proof. The following examples illustrate this point: (1) When the accused has made a statement to the police, the Crown must establish that it was voluntarily made in order for it to be admissible. At the same time, defence counsel may seek to exclude the statement on the basis that it was obtained in breach of the Charter. A straightforward way of dealing with these matters would be to hold two voir dires. In one, the Crown would call evidence to prove voluntariness beyond a reasonable doubt; in the other, the defence would lead evidence to establish a Charter breach on a balance of probabilities. This
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would involve some or all of the witnesses giving the same evidence in each voir dire. To avoid such unnecessary duplication, most counsel and judges prefer to hold a blended voir dire in which both issues are addressed at one time. Often the problem of differing burdens of proof is addressed by loosening the rules governing examination-in-chief and cross-examination of witnesses. (2) Where the police have searched the accused¶s home and seized an item of physical evidence, defence counsel may want to challenge its admissibility by arguing that the search was unreasonable, pursuant to s. 8 of the Charter. The courts have held that, where a search occurs in the absence of a warrant, it is presumptively unreasonable. Once counsel establishes that a search was warrantless, the burden of proof shifts to the Crown to demonstrate on a balance of probabilities that it was nevertheless reasonable. This will require the Crown to call evidence, which will give defence counsel an opportunity to cross-examine the police officers who seized the evidence. (3) When counsel wants to challenge a search conducted pursuant to warrant, he or she may seek to cross-examine the affiant who swore the information to obtain the search warrant. Before the trial judge can grant leave to cross-examine the affiant, defence counsel must show that there is some basis to believe that crossexamination will tend to discredit the existence of one of the pre-conditions for granting the warrant. If defence counsel succeeds in doing this, he or she can cross-examine the affiant in order to gather additional evidence for the Charter application. Where these approaches are inapplicable, and the defence has no choice but to call police witnesses to substantiate a Charter claim, other methods to establish the claim exist. There is authority to suggest that, where fairness requires it, a judge should give an accused some leeway in exploring potential Charter issues. In addition, some cases suggest that, if an accused is required to call police witnesses to support a Charter claim, the presiding judge can relax the evidentiary rules which normally prevent a party from cross-examining his or her own witness. Some counsel are of the view that in reversing the normal manner of questioning (from crossexamination to examining in chief), there are better opportunities to achieve a more accurate record on which to make the final argument. (f) Applications to Stay Proceedings for Unreasonable Delay, p. 263 Section 11(b) of the Charter, which guarantees the right to be tried within a reasonable time, plays a significant role in criminal cases. In essence, this provision places a constitutional time limitation on the jurisdiction of the court to deal with a charge, where it has taken too long to bring the matter to trial. The time frame to be considered in analyzing a claim of unreasonable delay runs from the date the information was sworn to the estimated date for completion of the trial. When deciding whether s. 11(b) has been infringed, the trial judge is required to balance the factors developed by the SCC. The test developed by the SCC in R. v. Askov (1990)
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(S.C.C.) and R. v. Smith (1989) (S.C.C.), and set out by the Court in R. v. Morin (1992) (S.C.C.) for assessing whether there has been a violation of the s.11(b) Charter right to trial within a ³reasonable time´ is as follows: (1) Length of the delay (2) Waiver of time periods (3) Reasons for the delay, including ± (a) Inherent time requirements of the case (b) Actions of the accused (c) Actions of the Crown (d) Limits on institutional resources (e) Other reasons for delay (4) Prejudice to the accused Where a breach of the subsection is found, a stay of proceedings must be ordered. The procedure to be followed in making this Charter application is that already described in seeking a remedy under s. 24(1). The affidavit must also include ³a full history of the proceedings against the applicant prior to the date scheduled for trial.´ An application to stay proceedings under s. 11(b) provides an excellent illustration of the importance of a well-prepared factual record. Under the Rules, an affidavit will suffice for setting out the procedural history. Yet, an important issue on such applications is the parties¶ approach to delay during the course of the proceedings. Filing the transcripts from each court appearance is the best way to document matters such as the actions of the accused and the Crown and whether they contributed in any way to delaying the proceedings and whether the accused, at any point, waived the right to a trial within a reasonable time. A transcript will be particularly helpful to the defence if counsel emphasized the client¶s desire for an ³early´ or the ³earliest available´ trial date at each appearance in court. As noted above, prejudice to the accused is another factor that is relevant to a successful application. Although prejudice to an accused can be inferred from a prolonged delay, it is more effective for the record to demonstrate actual prejudice. To do this, counsel will have to consider submitting an affidavit from the accused, detailing the effect of the delay from a personal, familial and financial standpoint. Where the client¶s liberty interests have been curtailed through strict bail conditions, a copy of the recognizance should be appended as an exhibit to the affidavit. On a contested factual matter such as prejudice, counsel cannot file an affidavit that is based on information and belief or which contains hearsay. Therefore, if the client will be a poor witness, counsel should obtain additional affidavits from those who know the accused well, such as a spouse, a family member or an employer, in order to supplement the accused¶s evidence.

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(g) Abuse of process (p. 271) and stay of proceedings (p.273) 5) Motions at the Start of Trial (a) Exclusion of Witnesses At the outset of the proceedings, it is common practice for counsel to seek an order excluding all of the prospective witnesses (except the accused) from the courtroom. The purpose of this motion is to ensure that the testimony of a witness is not tainted by having heard the evidence of others. No formal written application or advance notice is needed for such a motion. Although the judge has a discretion as to whether to grant or deny the order, it is rare for such requests to be refused. The judge may grant an exception to the order, such as permitting the investigating officer to remain in court, but may require that witness to testify first. (b) Non-Publication Orders Non-publication orders are available through legislation and the common law. Although publication bans are designed to protect privacy interests and to advance the proper administration of justice, the nature, scope and duration of these orders can vary significantly. It is important to be aware of two types of non-publication orders that are essential features of criminal trial practice. Section 486.4 of the Code permits a justice or judge to prohibit the publication, broadcasting or transmission of ³any information that could disclose the identity of the complainant or a witness´ when an accused has been charged with certain enumerated sexual offences. The judge has an obligation to inform a witness under 18 years of age and the complainant of the right to apply for this order. Where requested by the prosecutor, the witness or the complainant, the order shall be made. In general, Crown counsel will seek an order of this nature at the earliest court appearance (usually at the bail hearing). No formal application or prior notice is needed to obtain this type of publication ban. The order will remain in effect until the completion of the criminal proceedings (including any appeals). Section 648(1) of the Code prohibits the publication of any information about a portion of the trial for which the jury was not present until after the jurors retire to begin their deliberations. This provision is applicable to pre-trial motions and other proceedings that occur during the jury¶s absence (such as the pre-charge conference or submissions following an objection to a line of questioning). An order of this type is both mandatory and automatic. While no application is necessary, prudent counsel will remind the judge and, through him or her, the public and the media of the existence of this order, in order to ensure that it is not inadvertently breached and information that would prejudice the trial revealed. Trial Verdict

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THE TRIAL VERDICT
30. JURY TRIALS Where there has been a jury trial, the judge will ³charge´ the jury on the relevant law, and the jury will retire to deliberate, returning with a general verdict (i.e., a verdict delivered without reasons). If there is a conviction, the judge will conduct a sentencing hearing and impose sentence. - Coughlan pp.332 ± 339 Where there has been a jury trial, the judge will ³charge´ the jury on the relevant law, and the jury will retire to deliberate, returning with a general verdict (i.e., a verdict delivered without reasons). If there is a conviction, the judge will conduct a sentencing hearing and impose sentence Jury Selection ± Coughlan p.332-339 The Jurors The general rule is that a jury has 12 members. The CC allows for 6-person juries in the Northwest and Yukon Territories, but this has been challenged as a violation of geographical equality rights. Calling people to serve as jurors is one of the duties of court officials called Sheriffs. Qualifications for potential jurors are set out by each province in its own legislation, such as British Columbia's Jury Act. Typically, a juror must be an adult Canadian citizen who lives in the province. Judges, lawyers, police and prison officers, politicians and employees of the federal Justice Department or provincial Attorney-General's ministry cannot serve as jurors. People with some disabilities or criminal records may also be disqualified, as may someone who does not speak the language in which the trial is going to be conducted. Someone who is called to serve as a juror can apply to the Sheriff for an exemption. This might be on the grounds of religious belief, old age, or serious hardship that would be caused by having to serve. Also, there is usually a period of exemption after a person has served on a jury, during which he or she need not serve again. There can be no disqualification or exemption based on the person's sex. Jurors are paid nominal amounts to cover their time and travel expenses, but for many people these amounts will not be enough to make up for lost wages and other expenses. Jury duty is a civic responsibility that is supposed to be accepted anyway, if at all possible. The Panel Potential jurors are selected, typically at random from the electoral rolls or some other register of residents, and are served with notices requiring them to attend at the courthouse at a particular time. In this way, the Sheriff assembles what is called the "panel" or "array".

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The panel is supposed to be "representative" of the community. There has been a lot of debate over what that really means, and how to achieve it. Should it be representative of the neighbourhood where the accused person lives, or where the alleged crime occurred, or where the trial is being held, or more broadly representative of the province as a whole? How important are the factors of race, gender, income, sexual orientation, etc.? The consensus seems to be that truly random selection from a broad geographical area is probably the best approach. That still leaves potential problems, though, as some classes of people, notably natives and the poor, are not always well represented in lists of residents, such as telephone directories. There is a very strict rule that no-one with an interest in the case may communicate with any person called for jury duty, either before or during the trial. Doing this is punishable as a form of contempt of court. During the Trial During the trial, the jury may or may not be "sequestered" (kept apart from others), at the discretion of the judge. If jurors are allowed to go home between sittings of the court, there will be a publication ban on anything that happens in the trial when the jury is not present. Jurors often take notes during the proceedings, and in some parts of the country the court provides writing materials for this, although other judges disapprove of note-taking and do not allow it. Jurors are also quite often given exhibits to examine, and may have binders containing documents and photographs that help explain the case. They should remember, though, that it is important to observe witnesses while they are testifying, as this will help them decide how much to trust what the witnesses say. Because of this, they should try not to get too absorbed in what they are reading or writing, and pay close attention to what people are saying, and their demeanour while they are saying it. Procedure At the start of the trial, there will generally be introductory talks by the judge, and by lawyers for both sides. The aim is to lay out the framework of the case and make sure the jury has an idea of what the main issues will be, and to suggest to them how they should evaluate the evidence that will be given, either through witnesses or in the form of "exhibits" (physical things including written documents that may be presented for inspection by the prosecution and the defence). Then, the prosecution will present any witnesses and other evidence that makes up its case. To reach a verdict of guilty, the jury must be convinced of guilt beyond a reasonable doubt, based on all the evidence presented in the case. If the defence feels the Crown has not led enough evidence for a conviction, it can chose not to present any evidence itself. There is a strict rule that an accused is never required to testify, and it is quite common for him or her not to do so. There can be many reasons for this, and jurors should not speculate about what the reason might be. Many people accused of a crime, even if completely innocent of it, can make a bad impression on a jury, because of poor education, disreputable appearance (or
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disreputable history), bad manners, rough speech, etc. Where this is the case, there is a risk that jurors will convict, not because the charge is proved, but because of dislike or distrust of the accused, or a feeling that, even if not guilty of this offence, he or she is probably guilty of others. If the defence does present evidence, which may or may not include testimony from the accused, the jury may find it has a reasonable doubt about guilt, based on some of that extra evidence. The Role of the Judge During testimony by witnesses, it is one of the judge's jobs to make sure that only legallypermitted evidence is heard by the jury. Because there will often be disputes about what is or is not permitted, there are times when the jury has to leave the courtroom so that the judge can hear arguments from the lawyers. Once the issue is decided, the jury is brought back in, and either the evidence is given, or nothing more is said and the trial just goes ahead without it. Jurors may sometimes feel like mushrooms, being treated this way, but the procedure is meant to ensure a fair trial, by keeping the jury from hearing evidence that may be prejudicial to one side or the other, or that was improperly obtained, or that may not be reliable, etc. The judge may tell the jurors from time to time that they are to ignore something they have heard, or should limit the use they make of it when they are reaching their verdict. Jurors have a duty, and have sworn an oath, to decide the case according to the law, and should always follow the judge's instructions. Even though some of the rules of trials may seem odd, they have all been thought about long and hard, by a great number of people, and are designed to give the best possible result for society as a whole. There may occasionally be some question that a juror would like to put to a witness, after both sides have asked their own questions. If this happens, the juror should let the judge know, and the judge may permit the extra question to be asked. Closing Speeches At the close of the trial, each lawyer will address the jury, presenting what he or she feels is a view of the evidence favourable to his or her side. Then the judge will talk about the positions taken by both sides, the evidence that has been heard, and the rules of law that must be applied to the evidence to decide the result. The jury should take their instructions on the law solely from the judge. The jury is not supposed to think about (or even, ideally, to know) the penalties that might be imposed if the accused is convicted. This is a factor that is not supposed to be considered when deciding on the question of guilt. The only time a jury is involved in sentencing is when asked to make a recommendation about the minimum period of parole ineligibility for someone convicted of second degree murder. Occasionally, the judge may "direct" a verdict of not guilty on one or more charges. This will generally be because no evidence has been presented in relation to some aspect of the charge, or for some other reason that makes a guilty verdict not legally possible. If that happens, the jury
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will be told not to consider the charge. If there is a charge on which the judge has not directed a verdict, the jury will then retire to consider it; otherwise, they will be released. In the Jury Room Once the jury retires to consider its verdict, it will always be sequestered. While sequestered, a juror may only communicate with other jurors or the court officer (usually a deputy sheriff) assigned to take care of the jury. Meals and accommodation will be provided. While the jury is "out", discussing its verdict, the judge, the lawyers, and (especially) the accused person have little to do but to sit around and wait. The jurors are really the most important players in a criminal trial, and that becomes very clear at this point. There are often questions that come up in the jury room, about the evidence or the law, and the foreman will relay these back to the judge via the sheriff. Usually, the judge will answer questions by having the jury come back into court. In reaching a verdict, the jury must be unanimous. That is, every juror must agree with the verdict. The verdict should not be reached through what we generally think of as the democratic process, in which the outcome is decided by the majority, the biggest block of votes. Where there are differences of opinion amongst the jurors, each juror should listen carefully and with an open mind to all other points of view. When this is done, a unanimous decision is often possible; but if any juror, after complete deliberation, still does not agree with the majority, he or she should not change position just to allow a unanimous verdict to be reached. There is no requirement that a jury actually reach a verdict. If there is still disagreement after a full discussion and consideration of the evidence, then the foreman should tell the court that. The judge may call the jury back into the courtroom for more instructions, but it is improper for him or her to push too hard for a verdict, where there is genuine disagreement. The requirement of unanimity, like the "reasonable doubt" rule, is designed to prevent conviction of innocent people - an aim that is vital to the preservation of the justice system. When the jury is unable to reach agreement (what is called a "hung" jury), the judge will generally discharge the jurors and there will be a new trial. Rendering a verdict, p. 336 f. Secrecy, p. 337 It is a criminal offence for a juror to disclose anything that was said or done by the jury while it was not in open court [s. 649]. This means that no outsider can ever know how the verdict was reached. However, the court drew a distinction between matters extrinsic to the jury's deliberations and those intrinsic to them. An extrinsic matter would be that some third party had contact with the jury or gave particular information to a juror, whereas an intrinsic matter would be the effect that the contact or information had on the jury's deliberations. The common law rule and s. 649 CC only prevent intrinsic matters from being disclosed (R. v. Mercier)
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Because of this, it is theoretically possible for a jury to ignore the law completely in making its decision, and indeed this is what seems to have happened in one or two high-profile cases in the past. Jurors might refuse to find someone guilty, even though guilt seems obvious, because they disapprove of a law criminalizing certain behaviour, or might find someone guilty even though that verdict is not supported by the evidence and the law, because of outrage at the nature of the offence, or prejudice against the person accused of it. It should be noted that a jury finding someone not guilty despite what the law says does not change the law by doing so. It is difficult for the Crown to appeal against an acquittal that flies in the face of the law and common sense, but an appeal against an unreasonable conviction may well be successful, if it is clear from the record of the trial that the jury could not have been acting fairly and impartially in returning a guilty verdict. It seems to be true that, in the vast majority of cases, jurors do act fairly and impartially, and as long as that continues to be so, the institution of the jury will remain one of the strongest foundations of our system of criminal justice.

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31. JUDICAL VERDICTS Where there has been a judge alone trial, the judge will render the verdict. The judge is obliged to give reasons for decision. If the accused is convicted, the judge will conduct a sentencing hearing. - Coughlan pp. 370 ± 372 Where there has been a judge alone trial, the judge will render the verdict. The judge is obliged to give reasons for decision. If the accused is convicted, the judge will conduct a sentencing hearing. 32. DOUBLE JEOPARDY AND ESTOPPEL Where a verdict has been rendered, the accused cannot be tried again for the same offence or for an offence based on the same factual allegations he has been acquitted or convicted of. Moreover, under the doctrine of issue estoppel the Crown is prevented from attempting in future proceedings from relitigating factual issues that have already been decided against the Crown. - R. v. Mahalingan, [2008] S.C.J. No. 6 Where a verdict has been rendered, the accused cannot be tried again for the same offence or for an offence based on the same factual allegations he has been acquitted or convicted of. Moreover, under the doctrine of issue estoppel the Crown is prevented from attempting in future proceedings from re-litigating factual issues that have already been decided against the Crown. R v. Mahalingan [2008] SCC -Where D raises issue estoppel , it is for D to establish that the issue had been conclusively decided in their favour - Issue estoppel does no bar P from leading evidence on any issue raised on a previous trial resulting in an acquittal, rather excludes only evidence inconsistent with determinations of issues resolved in D¶s favour at a previous trial, on the basis of either a positive factual finding or a reasonable doubt. Facts: Appeal by the Crown from a decision of the Ontario a new trial for Mahalingan. Mahalingan was acquitted on the charge of attempted murder but convicted of aggravated assault. The eyewitness who identified him testified that Mahalingan had telephoned him from jail shortly before the trial commenced, asking that he not testify against him. Mahalingan was subsequently charged with attempting to obstruct justice. The Crown adduced evidence of the telephone call during the obstruct justice trial mirroring that put forward at the attempted murder trial. However, Mahalingan was acquitted. Mahalingan appealed his conviction on the charge of aggravated assault, arguing that his acquittal for obstructing justice should be accepted as fresh evidence. He also argued that, based on the doctrine of issue estoppel, evidence of the telephone call was improperly admitted at the first trial. The CA unanimously allowed the Mahalingan¶s appeal and ordered a new trial on the ground that the trial judge had failed to correctly charge the jury. Further, a majority of the court would have granted the application and ordered a new trial on the basis of the fresh evidence application. Held: Appeal dismissed. Issue estoppel is limited to precluding the Crown's relitigating an issue that has been determined in the accused's favour in a prior criminal proceeding, whether on the basis of a positive finding or reasonable doubt. Issue estoppel does not mean that every piece of evidence led in a first trial and leading to an acquittal is inadmissible in a subsequent trial on
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another matter. Only issues either necessarily resolved in favour of the A as part of the acquittal or on which findings were made, even if on the basis of reasonable doubt, are estopped. The determination of whether an issue was decided at first trial, either expressly or necessarily as a prerequisite to an acquittal must be based on a review of the relevant portions of the transcript of the first trial and, in particular, on the allegations, the nature of the Crown case, and the defence case. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding. The concern for finality is inconsistent with retroactive application of issue estoppel. Issue estoppel could not operate retrospectively to result in evidence being redacted from the record on a prior trial. The version of issue estoppel adopted by the majority of the CA cast the principle too broadly. The Court erred in holding that the subsequent verdict of acquittal on the charge of obstruction of justice required it to find that the witness¶s evidence of the telephone call from the accused was wrongly admitted in the first trial. The acquittal in the second trial could not operate retrospectively to render the evidence inadmissible in the earlier case. However, the CA correctly ruled that the jury charge in the first trial was inadequate and a new trial was correctly ordered on that ground. Sentencing

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SENTENCING
33. GENERAL PRINCIPLES OF SENTENCING For the most part, the general principles of sentencing have been codified in the Criminal Code. - CC sections 718, 718.01, 718.1, 718.2, 718.3, 719 - R. v. C.A.M., [1996] 1 S.C.R. 500 - R. v. Priest, [1996] O.J. No. 3369 - R. v. Boucher, [2004] O.J. No. 2689 (Ont. C.A.) Procedure - CC sections 720, 721, 722, 723, 724 - R. v. Bremner, [2000] B.C.J. No. 1096 (B.C.C.A.) - R. v. Cromwell, [2005] N.S.J. No. 428 (N.S.C.A.) (plea bargain and joint submission) Incarceration - CC section 732, 743, 743.1, 745, 718.3(4) Conditional Sentence of Imprisonment - CC section 742, 742.1, 742.3, 742.6, 742.7 - R v. Proulx, [2000] 1 S.C.R. 61 (NOTE - the range of offences eligible for conditional sentences has been altered since R v. Proulx was decided, yet the principles continue to apply) Probation and Community Service - CC section 731, 732.1, 732.2, 733.1 - R. v. Ziatas, [1973] O.J. No. 726 (Ont. C.A.) Fines - CC sections 734, 734.6, 734.7, 736 (note ± there is no fine-option program in force in most provinces, including Ontario), 787 Discharges - CC section 730 - R v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.) Recognizance Orders - CC section 810, 810.01, 810.1, 810.2 and 811 - R. v. Budreo, [2000] O.J. No. 72 (Ont. C.A.), leave to appeal to S.C.C. refused Restitution - CC sections 738 ± 741.2 inclusive

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Victim Surcharges - CC section 737(1) Sentencing Aboriginal Offenders - CC section 718.2(e) - R. v. Gladue, [1999] 1 S.C.R. 688 Punishment of Organizations - CC sections 718.21, 735 Parole - CC sections 743.6, 745.2 - R. v. Zinck [2003] S.C.J. No. 5 For the most part, the general principles of sentencing have been codified in CC in s. 718, 718.1, 718.2, 718.3,719. Sentencing always done by Trial Judge²must be proportionate to gravity of the offence & blameworthiness of offender Usually accused gets credit for time spent in custody awaiting trial/sentencing-ratio of 2:1-³deadtime´ Sentencing options: imprisonment, fine, probation, conditional sentence, conditional/absolute discharge, firearms prohibition, DNA databank order (can be a mix but not more than 2) Evidence can be introduced by Crown/accused @ sentencing hearing: Criminal record, victim impact statement, letters of reference/support, statement by accused, evidence about attempts at rehabilitation In determining the fitness of sentence, the court must take into account circumstances and realities of life; Sweeney ± BCCA 1992 (drunk driving causing death, accused had a hard life) ³goals and ultimate purpose of sentencing´: general deterrence, specific deterrence, isolation, rehabilitation, denunciation; Sweeney General rule: jury has NO part in sentencing Exception: conviction of 2nd degree murder (mandatory life sentence w/ minimum period of parole ineligibility of between 10-25 yrs); jury asked to recommend a period of parole ineligibility in these cases Code does not allow discretionary ³constitutional exemptions´-mandatory minimum sentences do NOT violate Charter and are gen. constitutional; Latimer ± SCC 2001 (challenged min. parole ineligibility of 10 yrs) and are generally constitutional; Ferguson ± SCC 2008 long term offender (subject to supervision in the community for a period of 10 years); dangerous offender (may be jailed indefinitely); Crown has to apply for these desigs; can be used in plea bargaining Don¶t apply ³worst offence, worse offender´ rule too literally for maximum sentences; M.(L.) ± (SCC 2008) s. 718²Enumerates the objectives of sentencing. Includes reparation to victims, promotion of responsibility in offenders s. 718.01²Objectives for sentencing for crimes against children s. 718.02²Objectives for sentencing for offences against peace officer or other justice system participants. s. 718.1²Fundamental Principle: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

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s. 718.2²Other Sentencing principles. Says incarceration used as a last resort Recognises the principle of consistency Requires the court to take into account specified principles. A sentence should be increased or reduced to take into account any aggravating or mitigating circumstances related to D¶s offence, lists several factors, but they are not limited Examples: i. motives of bias, prejudice or hate based on listed grounds; ii. Abuse of spouse or common law partner iii. Abuse of person under 18 iv. Abuse of a position of trust or authority in relation to V v. commission of an offence in the context of organized crime vi. Commission of a terrorist offence 718.21²Organizations. Lists several factors a judge is REQ¶D to take into account when imposing a sentence on an organization. Factors include: any organizational advantaged realized by commission of the offence, the nature and extent of planning involved, as well as its complexity and duration, investigative and prosecutorial costs associated with the offence, any regulatory penalties imposed, and any measures taken by the organization to reduce the risk 718.3²Degrees of Punishment Section describes the degree of punishment that may be imposed upon D, in the discretion of the court, and the circumstances under which cumulative punishments may be imposed. 719²Commencement of Sentence Determines the commencement date of the sentence imposed up on a person convicted of an offence. Generally, they commence when it is imposed, except where there is a statutory provision to the contrary. The Court can take into account time in custody when sentencing. R v. C.A.M [1996] SCC ± no pre fixed boundary to the sentencing discretion of a trial judge Facts: accused pleaded guilty to numerous counts of sexual assault, incest and assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment. The trial judge, remarking that the offences were as egregious as any he had ever had occasion to deal with, sentenced the accused to a cumulative sentence of 25 years' imprisonment, with individual sentences running both consecutively and concurrently. The CA reduced the sentence to 18 years and 8 months. The court concluded that where life imprisonment is not available as a penalty, the totality principle requires trial judges to limit fixed-term cumulative sentences under the CC to a term of imprisonment of 20 years, absent special circumstances. Held: The appeal should be allowed and the sentence of 25 years' imprisonment restored. For offences where imprisonment is available, the Code sets maximum terms of incarceration in accordance with the relative severity of each crime. The Code staggers maximum sentences for the full range of offences at numerical intervals ranging from one year to 14 years, followed by the most severe punishment, life imprisonment. The Code is silent, however, with regard to whether there is an upper limit on fixed-term or numerical (i.e., non-life) terms of imprisonment, both as sentences for single offences where life imprisonment is available but unwarranted, and as sentences for multiple offences involving consecutive terms of imprisonment. It is a wellPage | 210

established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. Within broader parameters, the principle of proportionality expresses itself as a constitutional obligation. A legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Charter. In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the totality principle, which requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. Whether under the rubric of the totality principle or a more generalized principle of proportionality, Canadian courts have been reluctant to impose single and consecutive fixed-term sentences beyond 20 years. In contrast to the absence of any explicit codal rules governing the limits on fixed-term sentences of imprisonment, the CC, read together with the Corrections Act, sets very clear rules governing the determination of parole eligibility. A person sentenced to a numerical term of imprisonment under the Code becomes eligible for full parole after serving the lesser of one third of the sentence or seven years. The commencement date for the determination of parole eligibility has generally been understood to coincide with the commencement of sentence, namely the date when sentence is imposed. A person sentenced to life imprisonment other than as a minimum punishment becomes eligible for full parole after serving seven years. However, in contrast to a person sentenced to a numerical term of imprisonment, the calculation of parole eligibility for life imprisonment begins at an earlier date, in that the parole eligibility clock effectively begins to run from the date of arrest. The CA erred in applying as a principle of sentencing that fixed-term sentences under the CC ought to be capped at 20 years, absent special circumstances. A numerical sentence beyond 20 years may still significantly advance the traditional continuum of sentencing goals ranging from deterrence, denunciation and rehabilitation to the protection of society, notwithstanding the fact that an offender is eligible for review of the conditions of his or her incarceration after seven years (absent an order extending the period of ineligibility). Within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed-term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence. There is no pre-fixed boundary to the sentencing discretion of a trial judge, whether at 20 or 25 years' imprisonment. A CA should only intervene to minimize the disparity of sentences where the sentence imposed is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. While the court reduced the accused's sentence primarily as a result of a framework of sentencing principles that was incorrect in law, it also justified its reduction with reference to a contextual application of the accepted principles of sentencing to this case. (read full summary)

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R v. Priest [1996] ONCA± sentences are to be imposed having regard to the particular offence and the offender. Must be proportionate. Facts: This was an appeal by the accused from a one-year sentence of imprisonment. The 19year-old appellant and another person broke into a convenience store and stole goods worth $2,700. The owner of the store went to the appellant's home and accused him of the theft. The appellant admitted what he had done and returned all of the items stolen. At the trial, where he was not represented by counsel, the appellant pleaded guilty to break, enter and theft. He had no criminal record. The Crown recommended a sentence of 30 to 60 days. The main reason the trial judge gave for the sentence imposed was the prevalence of break and enter in the community. The entire proceedings took five minutes. Held: The appeal was allowed and the sentence varied to time served, which was five weeks, plus one year probation. While the prevalence of crime in a community could be taken into account on imposing sentence, this could not be the paramount consideration. Sentence was to be imposed having regard to the particular offence and the offender. With regard to youthful first offenders, such offenders should not be imprisoned without benefit of a presentence report. As well, a first sentence of imprisonment was required to be as short as possible and tailored to the individual circumstances of the accused. Such sentences were not to be imposed as a warning to others. The sentence was not proportional to the gravity of the offence and the offender. The disproportionate sentence failed to effect the purpose of sentencing to contribute to respect for the law and maintenance of a just society. R v. Boucher [2004] ONCA± crown appeal allowed for sentences that are µunfit¶ Facts: Appeal by the Crown from the sentence imposed against Boucher on his conviction of attempted murder. Boucher was convicted of attempting to murder and two counts of threatening his wife. Boucher drove to his estranged wife's home while intoxicated. The wife attempted to get away in her vehicle but was followed by Boucher. The wife testified that Boucher drove his car into hers and caused it to spin. Boucher's vehicle drove into a ditch. Boucher telephoned a family member and stated that he had tried to kill his wife and himself. Boucher testified that he only intended to talk to his wife. The trial judge found that his evidence was not credible. Boucher was sentenced to two years less a day imprisonment in addition to 28 months credit for time served on the attempted murder charge. He was also sentenced to 30 days concurrent imprisonment on each threatening charge. The sentence was followed by a two year probation period. Boucher was 53 years old. He had no prior criminal record. Boucher spent 14 months in presentence custody. The trial judge rejected the suggestion that Boucher had accepted the end of his marriage but found that a longer probation period was sufficient. Held: Appeal allowed. Boucher was sentenced to two years less a day followed by three years probation. The sentence was unfit. First, in the context of an attempted murder, the absence of physical injuries was a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate. The attempted murderer is no less a killer than a murderer. He has the same killer instinct. Further, where an attempted murder is committed in the context of a domestic relationship, the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and, where present, justifies the imposition of a substantial penalty separate and apart from the issue of protection (=domestic offence is an aggravating circumstance). Second, an additional aggravating factor in this case is that Boucher's actions were premeditated. Third, the

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principles of denunciation and deterrence are of paramount importance in cases involving domestic violence. Procedure S. 720²Sentencing Proceedings & Court Supervised Programs S. 720.1 requires sentencing to take place expeditiously once convicted S. 720.2 permits sentencing delay as an exception where AG and D consent to let D attend a provincially approved and judicially supervised program (drugs, substance abuse, violence, etc.) To see if this applies, judge must consider the interest of justice and any victim of the offence S. 721²Report by a Probation Officer S. 721(1) requires a probation officer to prepare a presentence report when ordered to do so by a court S. 721(3) sets out the matters that the report should address S. 721(4) permits the court to require information on other matters By s. 721.2 provinces may make regulations concerning the types of offences for which pre-sentence reports can be ordered and their content Copies of this report must be delivered to D and their counsel ASAP under s. 721.(5) S. 722²Victim Impact Statement S. 722(1) requires the court to consider any statement prepared by a victim in accordance with the section The matter of how statement is presented is govered by s. 722.2. It includes allowing victim to read it. Victim is defined in s. 722.4 S. 722.(3) the court is not prevented from considering any other evidence concerning any victim of the offence, even through a victim impact statement has been filed, read or otherwise presented s. 723²Submissions on the Facts Codifies the procedural aspects of the sentencing hearings. S. 723.() says D and P can make submissions and they can call relevant evidence for the Court to use to make sentence Court can require production of evidence on its own motion Courts can also require the attendance of a compellable witness, s 723.4. s.724²Information Accepted Deals with fact finding for sentencing purposes. In general the provision allows the court to take as proved any information disclosed during the trial for sentencing. For jury trials, s. 724.2 requires courts to accept all facts essential to the verdict, but permits additional findings to be made based on evidence at trial or further evidence which is called by either party S. 734.3 prescribes the procedure for resolving disputed facts, which require the party seeking to rely on the facts to prove them on a BOP, except for aggravating facts relied on by P, which must be proved BARD R v. Bremner [2000] BCCA²Contents of Victim Impact Statement, cannot recommend sentence -Victim impact statements should not contain any recommendations for sentence, or use any psychiatric diagnostic terms. Victims are not permitted to have a role in suggesting the length or kind of sentence, nor is it indented that these statements erode the usual roles about expert evidence. - Impact statements should describe the harm done to, or loss suffered by, the victim arising from the commission of the offence. The statements should not contain criticisms of the offender, assertions as the facts of the offence, or recommendations as to the severity of punishment.

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R v. Cromwell [2005] NSCA± Judge only need consider submissions for conditional sentence Facts: Appeal by Cromwell from sentence for 5 months' imprisonment, one-year probation, twoyear driving prohibition and DNA sample for impaired driving causing bodily harm and breach of recognizance. While driving impaired, Cromwell was responsible for an accident that injured four people. Cromwell was released on bail and failed to appear for court and was arrested on a warrant for breach of recognizance. Cromwell had an untreated substance abuse problem, which showed no sign of improvement. The sentencing judge considered the joint submission for a conditional sentence but found that it would not represent adequate deterrence, denunciation and protection of public, which was required in the circumstances of the offence. Held: Appeal dismissed. Joint sentence submissions arising from a negotiated guilty plea are generally respected by the sentencing judge. Ultimately, however, the judge is the guardian of the public interest and must preserve the reputation of the administration of justice. Where the agreed resolution is contrary to the public interest, would bring the administration of justice into disrepute or is otherwise unreasonable the judge retains the discretion to reject the joint submission. A trial judge may decline to give effect to joint recommendation, not simply because she would have imposed a more severe sanction, but where the sentence is clearly unreasonable and then, only if the judge is satisfied there are no other compelling circumstances justifying, as in the public interest, a departure from an otherwise fit sentence. An unfit sentence is one that is clearly unreasonable. An unreasonable sentence is one falling outside the range (R. v. Shropshire). Fixing the range requires consideration of the general sentencing principles and, for purposes of this case, those of conditional sentencing. The sentencing judge gave the recommendation serious consideration and provided sound reasons for rejecting it. While the sentencing judge erred in not providing counsel with an opportunity to make further submissions in support of the sentence, the additional information would not have altered the result. The sentencing judge's rejection of the joint submission was warranted in the circumstances and the sentence imposed was not clearly unreasonable or unfit therefore there was no basis to interfere. Incarceration s. 732²Intermittent Sentence Court may order that a sentence of 90 days or less be served intermittently. They must consider the character of the D and the nature of their offence. They can also consider the availability of appropriate jail accommodation. S. 732(1)(b) says a probation order may be imposed with respect to eh period when D is not in custody, while under sentence and also the expiry of the intermittent sentence. S. 732(2) says D may apply to serve the intermittent sentence on consecutive days. If there is more then one offence conviction they are permitted to serve the additional days right after the intermittent sentence. s. 743²Imprisonment Enacts a general punishment provision upon conviction of an indictable offence. It applies only where no punishment is specifically provided for an indictable offence. s. 743.1²Imprisonment for more then 2 years When D¶s sentence consists, in whole or part by a term of imprisonment, this section generally determines the place of imprisonment Imprisonment for more then 2 years must go to a penitentiary If someone is sentenced to another crime after their 2 years in prison, the additional time (less then two years) must be served in a penitentiary. Sentences of less then 2 years go to prison Persons under supervision who are sentenced for another crime committed during supervision serve their sentence in the penitentiary under s. 743.1(3.1) s. 745² Imprisonment for Life Sets out sentence for life imprisonment for people, except for under 18s High treason and first degree murder is imprisonment for life, without eligibility for parole for 25
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years. Also if someone has previsouly been convicted of culpable homicide that is murder and then commits second degree murder, they get life If under 18 is convicted of first degree murder see s. 745.1 Second degree murder: sentence is imprisonment for life without eligibility for parole for 10 years, but does not server more then 25 s. 718.3(4)²Commencement of a Sentence A sentence commences when it is imposed To determine the sentence to be imposed the court can take into account any time D has spent in custody s 719(3), but any time they spent lawfully or unlawfully at large does not count Tells you how to calculate time. It is also discretionary. Enhanced credit is available in exceptional circumstance (s. 719(3.1) Conditional Sentence of Imprisonment s 742²Definitions for this section s.742.1²Imposing of conditional sentence Allows service of a sentence of imprisonment in the community, but limits the circumstances. No one convicted of a serious personal injury offence, a terrorism offence, a criminal organization offence or an offence punishable by minimum 10 years can be eligible for a conditional sentence Only those where imprisonment is less then 2 years, the service of sentence in the community would not endanger anyone and it would be consistent with the fundamental principles of sentencing in s 718-718.2 of the Code are eligible for conditional sentencing s.742.3²Compulsory Conditions of Conditional Sentence Order Sets out the compulsory conditions and optional conditions of a conditional sentence order. Requires court to ensure D understand the order. Failure to comply with s. 742.3 does not vitiate the order Generally it says they must be peaceful and have good behavior and they must report to the court is required and report to a supervisor s. 742.6²Procedure on Breach of Condition Describes the procedure to be followed when dealing with alleged breaches of conditional sentence orders Describes when and how hearings are to be held and what type of evidence can be adduced R v. Proulx [2000] SCC²leading case for conditinal sentences Facts: 18 year old accused pleaded guilty to dangerous driving causing bodily harm and dangerous driving causing death. After drinking at a party, he decided to drive some friends home in a vehicle that was mechanically unsound. He drove erratically for 10-20 minutes, sideswiping one car and crashing into another. The driver of the second car was seriously injured. One of the passengers in the accused¶s car was killed. The trial judge imposed 18 months jail, but the Manitoba CA substituted a conditional sentence. In the end, the SCC restored the jail sentence on deference grounds. A custodial sentence was not unfit, nor had the trial judge committed any error that would justify appellate interference. Held: This is the Court¶s main judgment on the general principles on conditional sentences. The 1996 sentencing reforms (³Bill C-41") substantially reformed Part XXIII of the Code, and introduced, inter alia, an express statement of the purposes and principles of sentencing, provisions for alternative measures for adult offenders and a new type of sanction, the conditional sentence of imprisonment. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the
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use of principles of restorative justice in sentencing. A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences. Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1(a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive interpretation of s. 742.1(a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is
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consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament¶s clear message to the judiciary to reduce the use of incarceration as a sanction. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender¶s best interests to establish elements militating in favour of a conditional sentence. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. In this case the sentencing judge considered that a term of imprisonment of 18 months was appropriate and declined to permit the accused to serve his term in the community. She found that, while the accused would not endanger the safety of the community by serving a conditional sentence, such a sentence would not be in conformity with the objectives of s. 718. In her view, even if incarceration was not necessary to deter the accused from similar future conduct or necessary for his rehabilitation, incarceration was necessary to send a strong message to denounce the accused¶s conduct and to deter others from engaging in similar conduct. While the sentencing judge seems to have proceeded according to a rigid twostep process, in deviation from the approach set out in these reasons, an 18-month sentence of incarceration was not demonstrably unfit for these offences and this offender. The offences here were very serious, and had resulted in a death and in severe bodily harm. Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. The Court of Appeal erred in holding that the sentencing judge had given undue weight to the objective of denunciation. Absent evidence that the sentence was demonstrably unfit, the Court of Appeal should not have interfered to substitute its own opinion for that of the sentencing judge. The sentencing judge did not commit a reversible error in principle and she appropriately considered all the relevant factors. Accordingly, the 18-month sentence of incarceration imposed by her should be restored. Since the accused has already served the conditional sentence imposed by the Court of Appeal in its entirety, and the Crown
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stated in oral argument that it was not seeking any further punishment, the service of the sentence of incarceration should be stayed. Probation and Community Service s 731²Making a Probation order Describes the instances where probation can be orderd S. 731(1) to determine whether a probation order apples, the sentencing court must look at age, character, nature of the offence and circumstances surrounding the offence. Can only be where no punishment is described by provision or in addition to fining and sentencing for less then 2 years The court can also give probation when D is discharged s. 732.1²Intermittent Sentence Court can order that a sentence of 90 days or less be served intermittently Must consider the character of the D as well as the nature of the offence. They can also consider appropriate jail accommodation Probation order can be imposed when D is not in jail and also on expiry of sentence s. 732.2²Coming into Force of order Defines the commencement and duration of probation order and the circumstances under which it can be varied or revoked Order cannot be longer then 3 years, when it is subject to a revocation hearing under s. 732.2(5) Continues to comply if D is convicted of something else, but conditions can change if D cannot meet them because he is incarcerated Order can be varied under s. 732.2(3) by the sentencing court by an application by D, P or probation officer. Order can be changed to add or take away conditions Revocation proceedings are authorized by s. 732.2(5) s. 733.1²Failure to comply with order Creates a hybrid offence for failure or refusal to comply with a probation order It authorizes trial in various territorial jurisdictions If P proceeds summarily, the max punishment is 18 months Section punishes failure or refusal to comply with an order without a µreasonable excuse¶. R v. Ziatas [1973] ONCA ± conditions imposed on probation must relate to deterrence of that offence Facts: This is an application for leave to appeal and an appeal by the accused from the sentence imposed upon him by Provincial Judge Foster upon conviction of the accused on his plea of guilty to a charge of assault with intent to resist arrest contrary to s. 246(2)(b) of the CC. The Provincial Judge imposed a fine of $150 and placed the appellant on probation for a term of one year. One of the conditions of the probation order was that the appellant should not operate a motor vehicle for the period of one year. Issue: Did the trial judge have the right to impose this condition as a term of the probation order? Held: No. Martin J: The trial judge proceeded upon a wrong principle, inasmuch as he imposed this term of the probation order as an additional punishment to be imposed upon the accused, whereas his only power, if he had any jurisdiction to impose the condition under s. 663(2) of the CC, was to impose such reasonable conditions as he considered desirable for securing the good conduct of the accused and for preventing the repetition by him of the same offence or the commission of other offences. Fines s 734²Fines and Forfeiture Authorizes the imposition of a fine on D who is not an organization, for any offence other than the one for which there is a minimum test of impairment Fine may be in addition to any other sanction Court must be satisfied under s. 734.2 that D is able to pay or discharge the fine A term of imprisonment in default of payment is calculated under formula in s. 734(5) The find can be taken out of money found in D¶s possession at the time of their arrest s. 734(6).

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s. 734.6²Civil Enforcement of Fines, forfeiture When D is in default of payment of a fine, or a forfeiture has not been paid, the order may be filed and entered and enforced as a judgment in any civil court in Canada with jurisdiction over that amount. S. 734.6(1) says that this is in addition to any other method provided by law for recovery. s. 734.7²Warrant of Committal Warrant cannot be issued until the time allowed for the payment of the fine in full has expired s. 736²Fine Option Program (does not exist in most provinces, incl. ON) Permits discharge of a fine by an individual accused in whole or part by earning credits for work performed during a period of not more then 2 years in a fine option program. Can be whole or partial discharge of a fine s. 787²General Penalty Provides for a general punishment provision for summary conviction proceedings and prescribes the maximum term of imprisonment of default of payment of a pecuniary penalty. Max fine for summary conviction is $2,000, or 6 months in jail unless the provisions states otherwise If only a fine is imposed as a penalty, the maximum time for imprisonment for default of that fine is six months. Discharges s 730²Absolute and Conditional Discharge Governs the availability, operation, effect and enforcement of absolute and conditional discharges including the rights of appeal from each disposition S. 730(1) describes the circumstances where an absolute or conditional discharge may be granted. D cannot be an organization and must plead or be found guilty of an offence, which must not be one for which a minimum punishment is prescribed by law or one punishable by imprisonment for life or 14 years D may only be awarded an absolute or conditional discharge where it is D¶s best interest and not contrary to publish interest to do so When discharge is given a finding of guilty is recorded, but no conviction is entered. D is then discharged. Discharge can be revoked if D is on probation and is convicted of an offence. R v. Fallofield [1973] BCCA ± discharge is not precluded by strict liability offence, esp. for trivial violations Facts: D was found guilty of being in unlawful possession of some pieces of carpet the value under $200.00, knowing that some had been obtained by theft. He was a corporal in the armed service with no previous record. He was employed by a moving company to supplement his income and was on the job at the time of the charge. He had obtained this carpet when he was delivering a fridge and thought they were scraps. When the police came to his house he was friendly and cooperative, explaining his position. Value of the carpet was $33.00. People vouched that this was an error and that he was not a thief. He wanted a discharge because he thought this would effect his position in the army. Judge refused discharge because this was a strict liability offence. Held: Meaning of s. 662.1 1. The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death. 2. The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation. 3. Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. 4. The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest. 5. Generally, the first condition would presuppose that the accused is a person of good character, without previous
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conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or [*455] to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. 6. In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. 7. The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence. 8. Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. Recognizance Orders s. 810²Where Injury or Damage Feared Provides statutory procedure to obtain an order that requires a person to keep the peace and be of good behavior, notwithstanding the absence of a formal criminal prosecution Procedure commenced by laying an information before a justice. The informant must be a person who fears on reasonable grounds that another person will i. cause personal injury to that person or to their child or spouse or common law partner, or ii. Damage their property the judge is required to call these people before him s. 810(2) under s. 810(3) a hearing is conducted by the justice or summary convictions court. If reasonable grounds are met, D may be ordered to keep the peace and be of good behavior for 12 months. Additional conditions can be prescribed to secure good conduct can be prohibited from using or possessing firearms, ammunition or explosive substances and may have to surrender weapons to relevant authorities failure to adhere to this could make the D go to prison for 12 months s. 810(3.2) authorized additional conditions that prohibit the attendance at or near a specified location and communication in part or in whole with the person on behalf of whom the information was laid and their family section provides a special preventative remedy which does not involve the laying of a formal charge, nor engage the full scope of the criminal process it may attract s. 7 charter scrutiny s. 810.01²Fear of Certain Offences adapts the sureties to keep the peace scheme in s. 810 to the intimidation offence of s. 423.1, criminal organization offences and terrorism offences, but leaves the supervisory role for the AG anyone who has reasonably grounded fear that another person will commit one of the above offences may (1) lay an information before a provincial court judge, with the consent of the AG, to compel the attendance of the party before a judge when parties appear, the judge conducts a hearing to determine whether the informanant has reasonable grounds for the articulated fear if satisfied the judge will order the defendant to enter into a recognizance to keep the peace and be of good behavior for no more then 12 months or 2 years if D has a previous conviction they can also add additional conditions if desirable failure by D to enter into a recognizance will lead to imprisonment s.810.1²Where fear of sexual offence a person who causes another a reasonably grounded fear of a listed sexual assault in respect of one or more persons under 16 years old may be required to enter into a recognizance proceedings are commenced before a provincial court judge the prospective victim of the apprehended sexual offence need not be named in the information a
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hearing will be conducted to determined the reasonable grounds same prohibitions can be issues here (i.e revoke fire arms, etc«) failure to enter into recognizance could lead to imprisonment. s. 810.2²Where fear of serious personal injury offence same provision as above but where there is fear of personal injry assigns a supervisory role to AG anyone who has reasonable grounds to fear that someone else will commit a serious personal injury offence within s. 752 may lay an information with a provincial court judge with the consent of the AG the victim does not have to be named in the information s. 811²Breach of Recognizance creates a dual procedure offence of breach of recognizance entered into under the above sections. AR: The external circumstances consist of any act or omission that is in breach of the recognizance MR requires proof of the intention to case the external circumstances of that offence R v. Budreo [2000] ONCA ± s.810 does not infringes s.7 of the charter -s. 810.1 does not infringe Charter s. 7 on the basis that it creates a status-based offence, is overly broad or is impermissibly vague. Facts: The defendant was the subject of an application pursuant to s. 810.1 of the CC, which permits the court to impose a recognizance on any person likely to commit any of the listed sexual offences against a child under 14 years of age, with conditions including a condition prohibiting the person for up to one year from engaging in activities involving contact with persons under the age of 14 years and prohibiting the person from attending a public park, a public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a daycare centre, a school ground, playground or community centre. Where, after a hearing, a provincial court judge is satisfied that the informant has reasonable grounds to fear that the defendant will commit one of the listed offences, the person may be ordered to enter into a recognizance, for any period up to one year. The defendant challenged the constitutionality of s. 810.1 of the CC. A superior court judge held that the provision was constitutionally valid except for two aspects: (1) "community centre" was declared to be inoperative because it was overly broad, and (2) in providing that the issuance of process was mandatory upon the mere filing of an information, s. 810.1(2) was held to infringe ss. 7 and 9 of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. The superior court judge therefore read down the word "shall" in s. 810.1(2) to read "may". Held: On appeal by the defendant, held, the appeal should be dismissed. As it was acknowledged by the Crown that s. 810.1 of the CC deprived a defendant of his liberty, the issue with respect to s. 7 of the Charter was whether the restrictions were in accordance with the principles of fundamental justice. The defendant argued that s. 810.1 violated s. 7 by creating an offence based on status and by being overly broad and impermissibly vague. Section 810.1 of the CC does not create an offence based on a person's status, such as a medical diagnosis or past criminal history. The provision is preventive, not punitive. Although there are coercive aspects to s. 810.1, they are necessary to preserve the integrity of the proceedings. The purpose of the provision is not to mete out criminal punishment, nor does it have a true penal consequence such as would be necessary to characterize it as punitive. Section 810.1 of the CC was not overly
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broad in the extent of the restrictions that may be imposed. The restrictions on liberty did not include detention or imprisonment. The extent of the restrictions was proportional to the important societal interest in the protection of young children and, accepting the deletion of community centres, they were narrowly targeted to meet Parliament's objective, in that the defendant may only be prohibited from going places where children under 14 years of age are or can be reasonably expected to be present and the only activities the defendant can be prohibited from engaging in are those involving contact with children under 14. Given the use of the word "including" before the specified conditions are set out in s. 810(3), any additional conditions must be similar to the specified examples. Restitution s. 738²Restitution to Victims of Offences Provides that, on conviction or discharge, D may be orderd to make restitution to another person for the cost of property damage, pecuniary damages, including loss of income in the case of bodily harm, and reasonable living expences in the case of actual or threatened bodily harm S. 738(1)(d) must pay expenses for someone to re-establish their identity or restore their bad cred range that may result from an offence Amount rewarded must be reasonable S. 738(1) permits the order to be made on application by AG or on the courts own motion It may be imposed in addition to any other measure S. 739²Restitution to persons acting in Good Faith Where property was obtained by D¶s offence was conveyed to a person acting in good faith, or D has borrowed money from a 3rd person on the security of that property and the property has been returned to the lawful owner or possessor, D may be ordered to pay restitution to that 3rd party s. 740²Enforcing Restitution Order Permits unpaid restitution orders to be entered as civil judgments Money found on D on arrest may be applied to restitution order s.741.1²Notice of Orders of Restitution Sentencing court must provide a copy of the restitution order or give notice of it to the V who is to receive the restitution. Victim Surcharges s. 737(1)²Victim Surcharge Imposes a victim surcharge where D is convicted or discharged underf s. 730 of any offence or CDSA offence S. 737(2) calculates the surcharge and provides for D exemptions S. 737(2) enacts 15% rule of any fine imposed An offender seeking an exemption from payment is required to satisfy the sentencing court that payment would cause undue hardship to the offender Sentencing Aboriginal Offenders s. 718.2(e)²General Principles (Aboriginals) S. 718.2(e)-system should minimize reliance on imprisonment-judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders
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Remedial ± meant to ameliorate the serious disproportionality of aboriginals in prison; encourages restorative approach to sentencing Sentencing aboriginal offenders consider: unique systemic or background factors of particular aboriginal offender; sentencing procedures and sanctions appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection; Gladue ± SCC 1999 (G convicted of manslaughter for ³near murder´ of her husband-20 yrs old, 5 mos pregnant with 2nd child-drunk-G and deceased fought physically right before killing-he was having affair with her sister-tried to flee and she stabbed him-sentenced to 3 yrs. imprisonment) Need to re-create their own systems of justice; e.g. circle sentencing, healing circles, participation in traditional ceremonies while in prison R v. Gladue [1999] SCC Facts: Offender, an aboriginal woman, plead guilty to stabbing death of her husband. Sentencing judge sentenced her to three years¶ imprisonment. Stated that s 718.2(e) did not apply since she was living in an urban area off-reserve and not ³within the aboriginal´. CA disagreed with narrow application of s. 718.2(e) but did not vary the sentence. Issues: How is s. 718.2(e) to be applied? Held: the sentencing judge may have erred in limiting the application of s. 718.2(e) to the circumstances of aboriginal offenders living in rural areas or on-reserve. BUT the offence was a particularly serious one, and the sentence was no unreasonable. Appeal dismissed. Summary: 1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence. 2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. 3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision¶s remedial purpose real force. 4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration. 5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. 6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:

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(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. 7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case-specific information will come from counsel and from a pre-sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information. 8. If there is no alternative to incarceration the length of the term must be carefully considered. 9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. 10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved. 11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or offreserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term ³community´ must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. 12. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence. 13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. Punishment of Organizations s. 718.21²Additional factors Section lists several factors that a sentencing judge is REQ¶d to take into account in imposing sentencing on an organization The nature and extent of their influence in the sentencing decision rests on Any organization disadvantage realized by the offence Nature and extent of planning of involved offence, as well as complexity and duration Investigative and prosecutorial costs associated with offence Regulatory practices and penalties imposed for conduct Any measures taken by organization to reduce the risk S. 735²Fines on Organizations General punishment provision for organizations, subject to express enactment In lieu of imprisonment, if convicted of an indictable offence they can be fined an amount that is in the discretion of the court No min or max provided Summary convictions may be fined in an

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amount not exceeding $100k No minimum fine for summary Fines can be enforced as civil judgments pursuant to s. 734.6. Parole s. 743.6²Power of Court to Delay parole Operates notwithstanding s. 120(1) Corrections and Conditional Releases Act. Section engaged when D is sentenced to a term of two or more years, upon conviction of an offence in Schedules I and II of CCRA, who have been prosecuted by indictment Court must consider circumstances of offence, character of D, circumstances of D If court satisfied with society denunciation of the offences or the objective of deterrence This is a mandatory provision that courts must require for the serious offence (terrorism, organized crimes, etc.) s. 745.2²Recommendation by Jury Only applies where jury finds D guilty of 2nd degree murder Can ask jury for recommendation on parole (more then 10, less then 25 years) Does not apply to youth under 18 Discretionary recommendation. R v. Zinck [2003] SCC± Application of parole principles (delay) -delayed parole is out of the ordinary, and must be imposed in a manner that is fair to the D. The sentencing judge must first decide the appropriate punishment for the crime, after a consideration of all the relevant factors, but without any consideration of parole eligibility, The judge must next consider parole eligibility, again applying the sentencing factors, but assigning priority to general and specific deterrence and denunciation Facts: Having shot and killed his neighbour, the accused pleaded guilty to manslaughter. The trial judge sentenced him to a 12-year term of imprisonment and ordered that his parole eligibility be delayed for six years under s. 743.6 of the CC. The CA upheld the sentence. The accused appealed to this Court on the issue of delayed parole. Held: In the case of criminal offences falling within the scope of s. 743.6 of the CC, delaying parole can be a significant component of a sentence. The extent of conflict in the interpretation and application of s. 743.6 in the case law has been overplayed. Generally speaking, delayed parole is a decision that remains out of the ordinary and must be used in a manner that is fair to the offender. The sentencing judge must first determine the appropriate punishment for the crime, taking into account and weighing all relevant factors. The analysis then may shift to the exercise of the power to delay parole. Section 743.6 should not be applied in a routine manner. The judge must once again apply the sentencing factors. In the course of the second balancing, priority is given to the factors of general and specific deterrence as well as denunciation. The prosecution has the burden of establishing that additional punishment is required. Delayed parole should not be ordered without necessity; it should be invoked only on the basis of demonstrated need. Section 743.6 does not require the creation of a special and distinct hearing on the issue of delayed parole. The issue should be raised in a fair and timely manner so as to allow the offender to respond effectively. A breach of this basic obligation would justify quashing the order. There is no obligation on the Crown, however, to give the offender written notice that delayed parole will be applied for. Fairness requires only that the offender be informed clearly that a s. 743.6 application is being made. The offender must be allowed to make submissions and to introduce additional evidence, if needed. At the end of the process, the offender is entitled to reasons that must state with sufficient clarity why the delayed parole order is made. While the reasons need

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not be elaborate, the basis of the decision must be at least ascertainable from the record. Deficiencies in reasons may sometimes require quashing an order In this case, the trial judge did not err in his application of s. 743.6 and his order to delay parole was justified. The trial judge carefully reviewed all relevant facts, particularly the gratuitousness of the crime and the need to protect the public. They confirm his conclusion that the objectives of deterrence and denunciation could not be justified without delaying parole eligibility. The sentencing hearing did not breach the rules of procedural fairness. In its submissions at the hearing, the Crown asked for delayed parole. The defence was given a sufficient opportunity to respond, but failed to use it.

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APPEALS AND REVIEW
34. APPEALS OF FINAL DECISIONS AND JR OF INTERIM DECISIONS Final verdicts can be appealed. Interim decisions cannot be. Interim decisions can, however, be the subject of judicial review applications where jurisdictional errors occur. Judicial review may be necessary, for example, to challenge preliminary inquiry results, to seek or quash publication bans, or to suppress or access third party records; in these cases if we wait until the end of the trial, the damage sought to be prevented may have already occurred, hence the judicial review application. In the case of appeals, different grounds of appeal and procedural routes apply, depending on whether an offence has been prosecuted summarily or indictably. - Coughlan, pp. 351 ± 370; 372 ± 375 (appeals) - Coughlan, pp. 247 ± 249 (judicial review, exemplified in the context of preliminary inquiries Final verdicts can be appealed. Interim decisions cannot be. Interim decisions can, however, be the subject of judicial review applications where jurisdictional errors occur. Judicial review may be necessary, for example, to challenge preliminary inquiry results, to seek or quash publication bans, or to suppress or access third party records; in these cases if we wait until the end of the trial, the damage sought to be prevented may have already occurred, hence the judicial review application. In the case of appeals, different grounds of appeal and procedural routes apply, depending on whether an offence has been prosecuted summarily or indictably. 1) Appeals (pp. 351 ± 375) 1. Appeals of Final Decisions Rights of appeal in Canada are entirely created by statute. Section 674 of the CC provides that only appeals authorized in Parts XXI and XXVI can be brought with regard to indictable offences. However, this has not totally restricted the review method of lower courts, who in some instances can hear: Applications for extraordinary remedies such as certiorari; Appeals to the SCCof Canada under the SCCAct, s.40. The Code creates separate sets of rules for appeals of indictable offences and summary conviction offences. However, as a matter of convenience, it does permit under CC, s. 675(1.1) and s. 676(1.1) the appeal of a summary conviction matter to be heard along with that of an indictable offence where the two offences were tried together.

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2. Appeals of Indictable Offences (a) Appeals by the Accused (i) Overview of Appeal Provisions Section 675(1) provides that a person can appeal a conviction based on a question of law alone, on a question of fact (with leave of the court of appeal), on a mixed question of law and fact, or on any ground of appeal ³that appears to the CAto be a sufficient ground of appeal´. Although this provision appears broad, 3 ³filters´ limit these appeal grounds: The first 2 filters are found in s. 686(1)(a) which set out the grounds on which the appeal can be granted (as opposed to how the appeal can be made in s. 675). Those grounds are: (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by evidence; (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or (iii) on any ground there was a miscarriage of justice. The third filter is found in s. 687 (1) (b). It even further narrows the grounds by setting out the grounds on which the court of appeal can dismiss an appeal. (ii) Appeal Provisions in Depth Standard of Review The SCC in Housen v. Nikolaisen (2002) (S.C.C.) considered the standard of review for reviews of questions of law, questions of fact, inferences of fact and questions of mixed law and fact: Questions of law have a standard of review of ³correctness´, so an appellate court can substitute its opinion for that of the trial judge. Questions of fact should not be overturned unless there is a ³palpable and overriding error´ which amounts to ³prohibiting an appellate court from reviewing a trial judge¶s decision if there was some evidence upon which he relied to reach that conclusion.´ The Court offered 3 basic rationales for this approach (1) Given the number, length and cost of appeals, there should be limits on how readily available they should be ± deferring to a trial judge¶s findings of fact helps to impose a limit and does so on a principled basis. (2) Trial judges are presumed to be competent and able to decide cases justly and fairly. (3) Trial judges are better placed to make factual findings.

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Questions on inferences of fact also share that standard, i.e. whether some ³palpable and overriding error´ can be shown from drawing an inference. Questions of mixed law and fact are most complicated, and placed on a spectrum: some questions may be reduced to questions of law (the ³correctness´ standard), but otherwise the general rule is that where an appeal involves the trial judge¶s interpretation of the evidence as a whole, it should only be overturned in the case of ³palpable and overriding error´. Unreasonable Verdicts The SCC in R. v. Yebes (1987) (S.C.C.) held that the basic standard for assessing the reasonableness of a verdict is ³whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered´. This test contains both a subjective and objective elements, requiring the CA to weigh the evidence (R. v. Biniaris (2002) (S.C.C.)) and not merely substitute its view for that of the trier of fact (R. v. Burns (1994) (S.C.C.)). The same standard applies to concluding that a judge has issued an unreasonable verdict. The SCC in R. v. Beaudry (2007) (S.C.C.) per Charron J., held that the issue is whether the ultimate verdict is unreasonable, not the judge¶s reasoning process. In that event, an appeal on s.686(1)(a)(i) should fail if the verdict was nonetheless reasonably available on the evidence. Fish J., for 4 other judges but in the minority opinion, however held that s. 686(1)(a)(i) refers to verdicts that are ³unreasonable or cannot be supported by the evidence´, and as such there are 2 different bases on which an appeal might succeed, and hence ³manifestly bad reasons´ (as opposed to the verdict alone) could lead to a successful appeal. In essence, only in a rare case where the evidence on 2 different charges is not logically separable, will an inconsistent verdict appeal succeed. Since the question is whether the verdicts are supportable on any theory of the evidence that is inconsistent with the law, it is difficult to show the 2 verdicts are clearly inconsistent with one another. In the case of multiple accused charged with the same offence, as in R. v. Pittiman (2006) (S.C.C.), it will be difficult to prove that verdicts are inconsistent if some are convicted and some are acquitted, as the jury could well have accepted evidence against one accused but not the other). Errors of Law and Miscarriages of Justice Section 686(1)(a)(ii) permits an appeal to be granted in the case of a ³wrong decision on a question of law´, while s.686(1)(a)(iii) permits an appeal based on a ³miscarriage of justice´. It has been suggested that the same rationale ± miscarriage of justice ± underpins all 3 bases of appeal in s.686(1)(a), and that s.686(1)(a)(ii), combined with the curative proviso, is an expression of the notion that any error of law is presumed to be a miscarriage of justice unless shown otherwise by the Crown (R. v. Morrissey (1995) (Ont. C.A.)). Errors of law and miscarriages of justice do not require a verdict not supported by the evidence (unlike unreasonable verdicts). Even if the CA concludes that a jury could have convicted
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despite the legal error or miscarriage, that fact is not a basis for rejecting the appeal (R. v. Lohrer (2004) (S.C.C.)). Although the curative proviso cannot be resorted to for a miscarriage of justice but can be for an error of law, this is a superficial distinction as the underlying theory of the 2 subsections is the same. An error of law is ³any decision that was an erroneous interpretation or application of the law´ (R. v. Khan (2001) (S.C.C.)). There is no requirement that the error itself must have led to any unfairness or prejudice; that is only an issue at the curative proviso stage (Khan). It is an error of law to instruct a jury on a defence when there is no ³air of reality´ to it, or fail to instruct it where there is (R. v. Cinous (2002) (S.C.C.)). The provision of flawed instructions to a jury is an error of law, as is an improper exhortation (R. v. G.(R.M.) (1996) (S.C.C.)). So is the unnecessary use of the summary procedure for contempt of court proceedings (R. v. Arradi (2003) (S.C.C.)), and failing to give a Vetrovec warning where one is required (R. v. Bevan (1993) (S.C.C.)). The ³Curative Proviso´ Section 686(1)(b)(iii) allows an appeal court to dismiss an appeal despite an error of law provided that ³no substantial wrong or miscarriage of justice has occurred´. The test for this section is whether there has been ³a reasonable possibility that the verdict would have been different had the error not been made´ (Khan). Caselaw has shown there are 2 ways to satisfy this test: (1) The error is harmless in itself, and as such would not have been able to cause prejudice to the accused (the ³harmless error´ branch); or (2) The evidence against the accused is so overwhelming that even if the appeal was granted and a retrial ordered, the result would inevitably be a conviction (i.e. any theoretical prejudice has no genuine impact). Examples of the ³harmless error´ branch include: y y y If the trial judge articulates a stricter standard for guilt than is actually required, there will be an error of law but it will not prejudice the accused (R. v. MacGillivray (1995) (S.C.C.)); A failure to permit cross-examination on a point not really in doubt might be an error but not a harmful one (United Nurses of Alberta v. Alberta (Attorney General) (1992) (S.C.C.)). Hearsay evidence is improperly admitted but of no consequence to the accused¶s guilt (Gunn v. The Queen (1974) (S.C.C.)).

Although it is not an absolute rule, the ³harmless error´ criterion is more likely to be satisfied where a single error is in issue, rather than an accumulation of several errors (R. v. Jacquard (1997) (S.C.C.)).

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The other ground for applying the curative proviso is where the rest of the evidence is so overwhelming that a conviction on a retrial is inevitable. This requires a very high standard, and must be used with great circumspection so as to avoid depriving the accused of the right to fair trial by jury (R. v. B.(F.F.) (1993) (S.C.C.)). Procedural Irregularities Section 686(1)(b)(iv) allows an appeal court to dismiss an appeal on the basis that:
³Notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the CAis of the opinion that the appellant suffered no prejudice thereby.´

The purpose of this subsection is to remove from consideration a wide variety of issues that might technically be errors though they cause prejudice to the accused, but that could not have been dealt with under the curative proviso. However, the subsection will not apply if the procedural irregularity did cause prejudice to the accused. In R. v. Khan (2001) (S.C.C.), the Court helpfully summarized the correct approach to applying sections 686(1)(b)(iii) and 686(1)(b)(iv): If the procedural irregularity amounts to or is based on an error of law, it falls under ss. 686(1)(a)(ii) and 686(1)(b)(iii). If the procedural irregularity was previously (before 1985) classified as an irregularity causing a loss of jurisdiction: s. 686(1)(b)(iv) provides that this is no longer fatal to the conviction, and an analysis of prejudice must be undertaken, in accordance with the principles set out in s. 686(1)(b)(iii). If the procedural error did not amount to, or originate in an error of law, which is rare, s. 686(1)(a)(iii) applies and the reviewing court must determine whether a miscarriage of justice occurred. If so, there are no remedial provisions in s. 686(1)(b) that can cure such a defect, and the appeal must be allowed and either an acquittal entered or a new trial ordered. Appeals by the Crown Crown appeals can be brought under section 676. The Crown¶s right to appeal is narrower than that of an accused, in that it contains nothing equivalent to the accused¶s right under s. 686(1)(a)(i) to have the verdict set aside on the ground that it is unreasonable or cannot be supported by the evidence. The Crown¶s right of appeal is primarily based in section 676(1)(a): any ground of appeal that involves ³a question of law alone.´ This right specifically applies in s. 676(1)(a) to verdicts of acquittal or of not criminally responsible on the grounds of mental disorder. Sections 676(1)(b) and (c) allow appeal against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment, and against an order of a trial court that stays proceedings on an indictment or quashes an indictment.
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The courts have held the following to be ³questions of law´: Admissibility of evidence Interpretation of a statute Whether evidence is capable of being corroborative (R. v. B.(G.) (1990) (S.C.C.)) A decision concerning the application of a legal standard (R. v. Araujo (2000) (S.C.C.)) Whether a correct conclusion has been reached on a Charter question (R. v. Baig (1985) (S.C.C.)) The SCC in R. v. Morin (1992) (S.C.C.) identified 3 ways in which the treatment of evidence can constitute a ³question of law´: A question of law could concern the legal effects of undisputed facts. In such a case, the nature of the disagreement would really concern the law rather than the facts. In some cases, misdirection as to the evidence can be a question of law, but only in the limited circumstance where the judge based his direction on a misapprehension of some legal principle. It is an error of law for a trial judge to instruct a jury to consider individual pieces of evidence separately to decide whether they constitute proof beyond a reasonable doubt. Where the CA grants an appeal from an acquittal in a trial by judge alone, it has 2 choices: to order a new trial, or to enter a conviction. In the latter case, the court can either impose a sentence or remit the matter to the trial court for sentencing. A CA should only choose to enter a conviction where the trial judge has already made all the findings necessary to support a guilty verdict, or where those facts are not in dispute (R. v. Cassidy (1989) (S.C.C.)). However, the CA is not permitted to enter a conviction where the trial was by judge and jury ± in that case, the only option is to order a new trial (s. 686(4)). Other Appeal-Related Issues (i) Statutory Powers on Appeal Under s. 683, a CA can order exhibits or other items produced, hear witnesses or admit an examination of a witness, and refer questions to a special commissioner. That section also permits an appeal court to amend the indictment where the accused has not been misled or prejudiced. In addition, a CA can assign counsel for an accused (s. 684), or order an accused released pending an appeal (s. 679). In the case of an appeal from conviction, an accused must show that the appeal is not frivolous, he will surrender himself to custody in accordance with the terms of the order, and his detention is not necessary in the public interest (R. v. Mapara (2004) (B.C.C.A.)). Although the accused has a right to be present at the appeal, that right may not apply if the appeal is on a question of law alone. Further, the appeal court can order that an accused in custody can only appear by electronic means (s. 688).
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(ii) Fresh Evidence on Appeal In R. v. Palmer (1980) (S.C.C.), the SCC laid down guidelines for the introduction of fresh evidence on appeal that was not before the trial court: (1) The evidence should generally not be admitted if it could have been admitted at trial by due diligence (although this principle is not applied as strictly in criminal cases as it is in civil cases). The evidence could also give reason to doubt previous evidence, e.g. the unreliable testimony of a pathologist called by the Crown (R. v. Trotta (2007) (S.C.C.)). (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) The evidence must be relevant in the sense that it is reasonably capable of belief; and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. Generally, however, where the trial process itself is in issue, and not the evidence, the Palmer criteria do not apply (e.g. R. v. Schneider (2004) (N.S.C.A.)). (iii) Duty to Give Reasons (Failure) Although there is no general duty to give reasons, the SCC in R. v. Sheppard (2002) (S.C.C.) made clear that in many circumstances, failure to do so, or do so adequately, will be an error giving rise to a ground of appeal. The trial judge¶s reasons should not be held up against an abstract, jury standard (R. v. Rhyason (2007) (S.C.C.)). They are to be assessed as a whole. Judges are not required to give their reasoning process in detail, simply to give reasons that the parties can understand and that permit appellate review (R. v. Boucher (2005) (S.C.C.). Determining whether there has been an error of law based on insufficient reasons is a 2-stage analysis: (1) The appeal court must ask whether the reasons are inadequate; (2) It must be determined whether inadequacy permits appellate review. In Sheppard, the following general guidelines were given on the judge¶s duty to give reasons: 1. The delivery of reasoned decisions is inherent in the judge¶s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large. 2. An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.

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3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record. 4. The statutory right of appeal, being directed to a conviction (or, in the case of the Crown, to a judgment or verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons provides a ground of appeal. 5. Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1)(a), depending on the circumstances of the case and the nature and importance of the trial decision being rendered. 6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge¶s conclusion is apparent from the record, even without being articulated. 7. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge¶s reasons provide the equivalent of a jury instruction. 8. The trial judge¶s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge¶s decision. 9. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court. 10. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court¶s explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso. Note also that delay itself is not a deciding factor, but it increases the possibility that reasons will not be seen to have been impartial (R. v. Teskey (2007) (S.C.C.)). 3. Appeals of Summary Conviction Offences The most notable difference between appeals of summary convictions and appeals from indictable offences is the court to which the appeal is brought. Otherwise, as with indictable offences, the bases for granting appeal are narrower than he grounds for launching them. Section 822(1) incorporates most of sections 683 to 689 by reference, and as such all the rules concerning appeals from convictions and acquittals in s. 686(1) are equally applicable to summary convictions. Likewise, all the powers of the court in s. 683 are also equally applicable.

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There are some notable differences between summary conviction and indictable appeals: It is possible for an appeal of a summary conviction matter to take place by trial de novo (s. 822(4)). Sections 829 to 838 create an alternative method of appeal, although these provisions are little used. A defendant is only permitted to opt for one of 2 methods of appeal (s. 836). Whichever method of appeal is brought at the first level, the Code permits a second level of appeal from summary conviction matters to the court of appeal. Such appeals depend on leave of the court and can only be brought on a question of law (s. 839). The rules in sections 673 to 689, which govern appeal of indictable offences, are incorporated by reference to these appeals (s. 839(2)). 4. Appeals to the SCC Sections 691 to 695 create a right to appeal decisions to a CA regarding indictable offences to the SCC. The grounds upon which such appeals can be brought, and the circumstances in which they are permitted, are much narrower than the first level of appeal. An appeal to the SCC can only be based on a question of law; no other ground of appeal is permitted. Apart from the fact that the only ground of appeal is on a question of law, there is also the issue of when the accused or the Crown will be permitted to appeal. For the most part, appeals are permitted in only 2 circumstances: (1) Where a judge of the CA dissents on a question of law; or (2) When the SCC gives leave to appeal a question of law. These are the only circumstances in which the Crown can appeal, or in which the accused who was convicted at trial and on appeal, can appeal. However, if an accused was acquitted at trial but that acquittal was replaced with a conviction on appeal, then a further basis for appeal is allowed. In that case, the accused can appeal on any question of law, whether there was a dissent in the CA or not (ss. 691(1), 691(2), and 693). Note that one option for a CA is to overturn the actual conviction at trial, but substitute a conviction on some other count. In such a case, both the Crown and the accused will have a right of appeal (R. v. Biniaris (2000) (S.C.C.)). Note also that, even if the SCC of Canada grants leave on a question of law, that does not preclude it from ultimately concluding that the issue raised is not one of law after all, and dismiss the appeal on that basis (R. v. Demeter (1978) (S.C.C.)). Like a court of appeal, the SCC of Canada has the power to appoint counsel for an accused and has the power to make any order that the CA could have made (ss. 694.1 and 695).

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2) Judicial Review of Preliminary Inquiry Decisions (p. 247 ± 249) The Code sets out no procedure for appealing the decision to commit or discharge at a preliminary inquiry, so this means review of such a decision can only be done by certiorari. In principle, it is open to the Crown to seek certiorari in the case of discharge and this sometimes occurs (Dubois v. R. (1986) (S.C.C.)). As a practical matter, the Crown also has the usual simpler option under s.577 of preferring a direct indictment despite the discharge, so more frequently certiorari applications involve an accused seeking to review a decision to commit. Because the preliminary inquiry decision is reviewed by way of certiorari rather than appeal, it is not sufficient to show an error of law on the part of the preliminary inquiry judge. Rather, certiorari will only be granted where the judge has made a jurisdictional error. Note that excluding evidence at the preliminary hearing is unlikely to be a jurisdictional error (Dubois). Apart from denying natural justice, it is also a jurisdictional error if a trial judge fails to comply with a mandatory provision of the Code, e.g. s. 548 requiring the judge to commit the accused for trial if there is ³sufficient evidence´, i.e. at least some basis in evidence (Dubois). It also means, since the preliminary inquiry judge does not weigh evidence, that where the Crown has adduced direct evidence of all the elements of an offence, the judge must commit the accused even if the defence has raised exculpatory evidence (R. v. Arcuri (2001) (S.C.C.)). If there is no evidence on some element of the charge however, a committal will amount to a jurisdictional error (R. v. Skogman (1984) (S.C.C.)). The existence of evidence at the preliminary inquiry must be understood broadly; even a failure to consider evidence presented by the Crown at that stage but not to be led at trial will constitute a jurisdictional error (R. v. Papadopoulos (2005) (Ont. C.A.)).

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Criminal Summary y y y Persuasive Burden subjective burden (on fact-finder) of being convinced BARD that accused guilty.. 11(d)=presumption of innocence. Evidential Burden objective burden (on judge) of whether evidence available is capable of raising a reasonable doubt as to guilt of accused. Crown has both burdens to prove all elements of offence (AR and MR), accused has burden for defences raising REASONABLE DOUBT (WOOLMINGTON).

QUANTUM OF PROOF (R. V. LIFCHUS, R. V. STARR) y y reasonable doubt is not an ordinary term it has special meaning, not be based on sympathy or prejudice, but logically connected to the presence or absence of evidence. the standard of BARD is closer to absolute certainty than to probably guilty

Actus Reus
y y every thing that is in the statute that you need for guilt except those to do with the accused state of mind. (So the victim s state of mind is part of the AR) look to the statute to determine what AR is required

POSSESSION OFENCES S. 4(3) CRIMINAL CODE

TERRENCE (1983) y F accused riding in stolen car. Didn t know it was stolen. Charged for possession of stolen property. Constructive possession due to s.4(3) two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. His AR = possession of car. I did he possess the car? C acquitted R ct reads control into the statutory definition of possession. For possession there must be ACTIVE CONTROL in addition to knowledge and consent.

y y y

R. V . PHAM (2005) ( PAGE 213)

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CONSENT MAKING ACT LAWFUL R. V. JOBIDON (1991) y y y y F - Accused charged with manslaughter by means of assault after a fair fight ended in the death of the victim. Accused raised defence of consent. I can defence of consent be raised? C no, guilty. R - Defence of consent cannot be raised when accused intends to cause serious bodily harm. Notable exception sporting events within custom/rules of game. Common law rule applies where not expressly prohibited by statute. Sopinka agrees with result but says cannot interpret statute as meaning what the cts want it to mean. Note shows that cts don t always abide by words of statute. No one can be charged with a crime under common law (s. 9 of CC). But cts can manipulate CC words by interpreting or even changing the meaning.

y

R.V. CUERRIER (1998) (PAGE 237)
Facts: man knowingly has unprotected sex with 2 women despite having HIV, both women testify they would have never had sex with him unprotected had they known. Decision: Appeal Allowed new trial ordered. Issue: whether the accused s misrepresentation as to his HIV-positive status can nullify the complainant s apparent consent to sexual intercourse. Central to this is word fraud . Old Test: consent could be vitiated only when: 1. Fraud as to deceive the sexual party as to their identity. 2. Fraud as to the nature and quality of the act.

Clarence Case changed everything from the old test nature and quality means the person engaged in sex must know it is sex, we don t care what induced them, and they don t care if they would have declined had they known the nature of the act. Clarence says it is still sex, you know you are having sex. So the nature and quality restriction posed a lot of problems because the reality was that you could operate on a high level of deception but as long as the act was of the same nature and quality as what they expected (sex as sex) it was not an offence. New Test: There must be a causal connection between the fraud and the submission to act. Where fraud is in issue, the Crown would be required to prove beyond a reasonable doubt that the accused acted dishonestly in a manner designed to induce the complainant to submit to a specific activity, and that absent the dishonesty, the complainant would not have submitted to the particular activity, thus considering the impugned act to be non-consensual application of force.

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The court held that s. 265(3) was not exhaustive and must be read together with the common law. FRAUD TEST: The test for deception would be objective, focusing on whether the accused falsely represented to the complainant that he or she was disease-free when he knew or ought to have known that there was a high risk of infecting the partner. The test for inducement would be subjective, in the sense that the judge or jury must be satisfied beyond a reasonable doubt that the fraud actually induced the consent. The Crown must also prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with accused if she had been advised the accused was HIV-positive Cory J. The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action.

R.v. Williams (2003) (page 244) CONSEQUENCES AND CAUSATION WHERE CAUSATION NOT FOUND ± R. V. WINNING y F appellant convicted of obtaining credit by false pretences. In her application she made at least 2 false statements. Eaton s did not rely upon the info contained in the application save for name/address. I of legal causation what is required to find her guilty is the offence of (1) obtaining false credit BY (2) false pretences C appeal allowed; appellant did not obtain credit by false pretence, b/c the credit was given not in reliance of the application, full AR not met

y y

LEGAL VERSUS FACTUAL CAUSATION y y y y y y factual causation is empirical, scientific causa sine qua non but-for that, it would not have happened (scientific cause) a necessary contributing factor legal causation encompasses factual, but goes beyond that it is based on a moral reaction, a value judgment the law decides where to cut off the chain of causation the main issue is whether the harm was foreseeable or not if you can say that you didn t know, and no other person in your position could possibly have known, then it is not objectively foreseeable, and you can get off even if there was factual causation

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WHERE LEGAL CAUSATION NOT FOUND B/C INTERVENING FACTORS R. V. JORDON y y Intervening cause: if there was a second cause of death that was unforeseeable that disturbed the chain of causation F - accused stabbed victim, charged with murder. Victim died because in treating the wound, hospital gave too much IV liquid, which caused oedema(bacheket),which caused pneumonia(daleket reot), which caused his death. I was the stabbing the legal cause of death, or were there intervening factors C not guilty R stab wound had been mainly healed by the time he got bad treatment. Intervening factors were the cause of his death. It was unforeseeable that death would have occurred since the doctors caused it by abnormal treatment, whereas normal treatment would have saved him. Note but-for the stab wound, victim wouldn t have needed to be in the hospital. So he did factually cause it, but not legally/morally.

y y y

y

WHERE LEGAL CAUSATION FOUND - THE QUEEN V. SMITH y y y y F soldier stabbed, given bad treatment at hospital, dies from the pierced lung I was the bad treatment an intervening cause? C guilty R only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound . At the time of death the original wound was still an operating and substantial cause. In this emergency situation, it was not unforeseeable that death would result (75% chance of survival, but facilities not close). So both factual and legal causation.

PEOPLE V. LEWIS y y y y F accused shoots victim, victim slits own throat I did this break the chain of causation C guilty R the death was foreseeable, even if the way in which it happened was freaky and unforeseeable. Test: did the wound inflicted by the accused contribute to the death? If so there is causation. Even if there are other causes that contributed, there is still causal relation between the act and the death. Operating cause: it doesn't matter which wound he died from since that is morally irrelevant. He could have jumped out the window and the result would have still been the same.

STANDARD OF CAUSATION FOR HOMICIDE - SMITHERS V. THE QUEEN y F hockey players, one beats another, punches him twice then kicks him; because of a malfunction of his epiglottis, chokes on vomit and dies from asphyxiation. Charged with manslaughter (did not intend to cause death) Page | 240

y y y

y y y

I whether guilty of assault or manslaughter. C guilty R - Smithers Test (for Causation in homicides): Any unlawful act that was at least a contributing cause of death outside the de minimis (not insignificant, more than a trivial cause) range was sufficient to engage criminal responsibility for manslaughter. This became the test for causation, even though not necessarily a good one for this (Mandel). Case where legal cause departs from moral cause (because unforeseeable) but legal cause = scientific cause. As long as the kick was a contributory cause (and there was substantial evidence to show that it was) then that is all the crown needs to prove for causation Thin Skull rule: take your victim as you find them. It is an exception to the rule of legal causation. Means you can be responsible for things that are not foreseeable, it was a tort principle. It does not matter what caused the death, but who caused the death. Mandel thinks thin skull test has no place in criminal law; it detaches moral responsibility from fact. Its purpose is for denunciation.

STANDARD OF CAUSATION FOR SECOND DEGREE MURDER - R. V. NETTE y y y y F - B&E, left hog-tied on her bed. Died from asphyxiation (henek). I what was the standard of causation for 2nd degree murder? C guilty R Use Smithers rule but instead of saying not insignificant , say significant contributing cause. Do not use 1st degree rule from Harbottle substantial . Actually raises the threshold for establishing causation (but majority says they are not changing the law). Dissent (L HeureuxDube) argues that it is not just semantic, but a significant change. Same standard for manslaughter. Law the test for causation in homicide is whether the acts of the accused were a significant (legal) contributing (factual) cause to the death. Return to pre-Smithers where factual cause does not equal legal/moral cause Emphasizing the MORAL aspect of causation

y

y

STANDARD OF CAUSATION FOR FIRST DEGREE MURDER ± R. V. HARBOTTLE y For first degree murder, there is a different degree of causation required a substantial and high degree of moral blameworthiness must be evidenced by the accused s role in the killing in order to convict. S. 231(5) and s. 231(6) Causation is based on moral responsibility (that s why first degree requires more work)

y

INTERVENING CAUSES R. V. MENZES y y y F street racing, accused charged with criminal negligence causing death I was there legal and factual causation C guilty of dangerous driving, but not crim neg Page | 241

y

R found that he factually caused it but not legally. Defence of abandonment accepted accused pulled out and victim continued as an independent actor. This broke chain. Since his action was a significant cause of death, factually responsible contributing factor is he engaged in race in first place. The result was also foreseeable. But he did not legally cause it because there was an intervening matter. Basically application of Nette.

R. V. REID & STRATTON y F - Guys beat up victim. Victim became unconscious. Got bad CPR. CPR caused death. Statute says guilty regardless of correct or incorrect medical treatment. Illustrates difference between legal causation and factual causation. Statute reflects the Nette reasoning: causing death, notwithstanding correct or incorrect medical treatment. I was it a significant cause? C conviction thrown out, new trial ordered R found the CPR to be intervening cause. Steps to convicting: 1) Smithers test 2) Any intervening causes. The accused does not, in law, cause the death if the independent intervening cause so overwhelms the unlawful act by the accused as a cause that the unlawful act becomes merely the background or setting for the independent intervening cause to take effect.

y y y y

Mens Rea y y y The accused's state of mind with respect to the actus reus. Must show that there was an awareness of each element of the actus reus assume that there is a mens rea wrt to each element of offence even though legislature may not say it Note that recklessness is the default mens rea. All true crime assumes recklessness, even if no MR mentioned in provision. If wilful is mentioned, it must be assumed to be higher than reckless, which is what we assume from common law. So we can import the meaning of intention - wilful encompasses purpose and knowledge.

SUBJECTIVE STATES OF FAULT R. V. BUZZANGA AND DUROCHER (1979) F accused handed out pamphlets that were anti-French. claim that they did it to help the French community. Charged with s. 319(2) communicating statements other than in private convo, wilfully promotes hatred against any identifiable group y I was what they did wilful? What kind of intention does wilful import? y C new trial ordered y R - Wilfully promoting hatred = purpose to promote hatred, or knowledge that promotion of hatred was certain. They didn t have it as their purpose, but knowingly promoted hatred. Equating purpose with knowledge here. y

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R. v. Murray (2000) Facts --- Accused retained by Paul Bernardo, and on instructions of client removed sex assault tapes from client s home. Retained the tapes for 17 months without disclosing existence to the Crown. Prior to trial motions, the accused handed over the tapes to new counsel and withdrew as counsel. They were turned over to the police and used by the Crown at trial. Charged with obstruction of justice.

Issue --- What are the duties of defence counsel to disclose evidence? Is there a justification to suppress evidence? Reasons --- Deal struck with Homolka, due to lack of evidence (Crown unaware of tapes¶ existence)
Argued that wanted to retain tapes to discredit Homolka s defence of being under duress a sort of surprise tactic, and as a plea bargaining tool (however AG brought direct indictment so no preliminary hearing and so tactic moot) Sought to remove himself as counsel of record due to a private conflict ie. client wanted him to pursue defence that he could not Where does one step over line of duty to be a zealous advocate? Several propositions: 1) There is no positive obligation, yet active concealment of evidence is unlawful as obstruction 2) The Crown must disclose its case yet the defence has no such reciprocal obligation (save raising argument of an alibi, or expert evidence) 3) If covered by Solicitor-client privilege never covers physical evidence (since not a communication) Once discovered evidence had 3 justifiable options turn over to prosecution, deposit with trial judge, or inform Crown of its presence yet go through voir dire to contest its admissibility Law Society rules: Can retain physical evidence to prevent future physical harm, to prevent its destruction, to arrange for its transfer to the police, to test the evidence, to make effective use of the evidence at trial Ex. if is going to shoot someone else, going to throw it in the lake, to seek another lawyer to give to police, to do ballistics tests Ratio --- Defence counsel has no reciprocal obligation to the Crown to disclose its case (with several exceptions), and cannot actively conceal evidence Since the Crown historically has exercised powers as derived from Royal prerogative, many powers have large discretionary element raises concerns over its exercise R.v. Vandergraff (1994)

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INTENTION AND MOTIVE R. V. LEWIS y F - Accused sent a bomb to victim in a kettle. Claimed he didn t know it was there. Had no motive. y R - Motive and intent have distinct legal meanings. 1) Motive is always relevant and hence evidence of motive is admissible for the purposes of defences; 2) motive is no part of the crime and is legally irrelevant to criminal responsibility. If the AR is committed with the necessary MR, any other ulterior motive is legally irrelevant mere motive unless it can be useful for defences. E.g. self-defence matters as a motive, but compassion killing cannot.

HIBBERT V. THE QUEEN y F principal offender threatened accused; accused lured victim to offender who shot him. Accused charged with attempted murder (under s. 21 parties to offence (common intention) (b) and (c) aiding and abetting). He claimed he did it out of duress y I can duress be applied to negate his MR? y C guilty of aggravated assault, not attempted murder y R duress does not apply to negate intention or purpose for murder and attempted murder. He knew what he was doing and the consequences of his actions. Duress is irrelevant to intent, since you intended the outcome regardless of the reasons. Duress, the motive and purpose, should be left to defence of mens rea. For the purpose of aiding does not require the accused to actively view the crime as desirable. y The fact that a person who commits a criminal act does so as a result of threats or bodily harm can be in some instances relevant to mens rea. But it depends on the particular structure of the event in question. You must look at Parliaments definition to see if it would make sense that parliament didn t want duress included.

R. V. THEROUX (1993) y F collected $ from investors, told them he had deposit insurance, but didn t. Co. went bankrupt and most investors lost their deposits. Accused charged with defrauding the public. Said he was just doing business, not crime. y I what is the mens rea for fraud? y C guilty y Ratio - mens rea for fraud consists of subjective awareness that one is undertaking a prohibited act (no insurance exists) and subjective awareness that one s action could likely cause deprivation of another. Accused is guilty of fraud whether he actually intended the consequences or was reckless as to whether they would occur. Mens rea does not include your personal feelings about the rightness or wrongness of the action

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RECKLESSNESS AND WILFUL BLINDNESS y Recklessness: One who is aware that there is danger that his conduct could bring about the result prohibited by criminal law, nevertheless does it anyway, despite the risk. y Wilful Blindness: One who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. Cts will assume because you wish to remain ignorant, you are deemed to have knowledge. R. V. SANSREGRET (SCC 1985) y F - Accused threatened the life and raped his girlfriend. Claimed that he believed she consented. His belief was corroborated by the victim and believed by the judge. Victim said her strategy was to calm things down and save her life. Trial judge acquitted based on lack of MR. On appeal, convicted. y I the law did not say what MR was required, so how to decide this y C upheld conviction y R used doctrine of WB to convert WB into knowledge of non-consent. On prior occasion did same thing so although he refrained from asking here, he is taken to have had knowledge. y Wilful blindness can be used where ct finds the accused pretty much knew, just didn t get final confirmation. y Note the SC is trying to find a way to convict him. He ought to have known (negligence) but since rape is a true crime, cannot use negligence as the standard. He wasn t reckless because he wasn t aware of the risk. So use WB to get the same result as negligence what he objectively ought to have known.

R. V. DUONG (OCA 1998) y F allowed person who was wanted for murder to stay in his apt. charged with s. 23(1) accessory after the fact knowing that a person has been a party to an offence, receives, comforts, or assists that person y I to be accessory to murder, what do you have to know? y C guilty y R Accused deliberately failed to inquire although he had suspicion. To be accessory to murder, you either actually know he committed it, or you are willfully blind. He was WB, so taken to have knowledge.

R. V. COOPER y F strangled victim, drunk, doesn t recall it. Charged with s. 229(a)(ii) murder. Culpable homicide is murder where the person means to cause death, or means to cause bodily harm that he knows is likely to cause death, and is reckless whether death ensues or not. y I - how low a degree of awareness has to exist to deem a murder reckless y R - accused must foresee a likelihood of death, not just that accused foresee simply a danger of death (Sansregret). There must be a likelihood or higher probability because the statute raises the recklessness level for murder. Otherwise we d be convicting for murder when we

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should for manslaughter. Note in Sansregret common law required a very very low level of recklessness. y Ratio - to convict under s.212(a)(ii) the intent to be demonstrated is (a) subjective intent to cause bodily harm and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death y Mandel - Recklessness usually means a possibility but in this case it is probability (foresight of a probable death). Because the stigma for murder is so high, the requisite level of recklessness must be concurrent with the level of stigma attached. There is an important distinction between murder and manslaughter for deterrence and denunciation purposes.

R.v. Harding (2002) OBJECTIVE STATES OF FAULT y recklessness/intention/purpose are called subjective states of MR y negligence is called objective MR what one OUGHT to have known y in Mandel s diagram, it is found at 0% knowledge. CRIMINAL NEGLIGENCE (OBJECTIVE OR SUBJECTIVE STANDARD?)
S.

219 - 236

R. V. TUTTON AND TUTTON (1989 SCC) y F parents caused death through omission to administer insulin to diabetic child who died as a result. Believed that depriving him of insulin would cure him. Charged with s. 222(5)(b) manslaughter by s. 219 criminal negligence. S. 219 defines criminal negligence anyone who does/omits to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Duty means duty imposed by law. Duty here was s. 215 failing to provide the necessities of life. y I whether the criminal negligence provision requires recklessness or negligence in the common law sense i.e. whether subjective or objective state is sufficient y C 3-3 split, still undetermined today, no binding decision y Rs McIntyre, L Heureux-Dubé objective test, not mental state y Lamer agrees with McIntryre, but adds that you need to make a generous allowance for factors which are particular to the accused, such as youth, mental development, education (a subjectified objective test) y Wilson, Dickon, La Forest there must be a minimum degree of recklessness; where there is ambiguity we must be in favour of a requirement of some degree of mental blameworthiness if such an interpretation is available. If you ought to have been aware, will assume that the accused was aware and shift to BOP to accused to prove that s/he wasn t aware/reckless. y Mandel the difference btw the judgments is ideological more than practical. On one hand, protection of victims. On other hand, punishing evil. But Wilson lowers the recklessness degree to almost 0%, and shifts burden so practical result is probably little to no difference with McIntyre.

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R. V WAITE (1989, SCC) y F- accused intoxicated, killed 4 children while driving. Charged with causing death by crim neg. y I was trial judge s charge to jury that criminal negligence involved subjective and objective element wrong? y C agreed it was wrong, but for different reasons y R -. Same split as Tutton. MR FOR DANGEROUS DRIVING IS OBJECTIVE TEST - R. V. HUNDAL (1993, SCC)

y
y

F ± Driving overloaded dump truck went thru a red light and killed another driver. Charge: Dangerous driving causing death.
R Used objective test. The mens rea for the offences of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident. Personal factors are not taken into account.

y

MR FOR MANSLAUGHTER IS OBJECTIVE TEST - R. V. CREIGHTON (1993, SCC)IMPORTANT y F - the accused, who is an experienced drug user, injected an unknown amount of cocaine into the deceased after which she had a heart attack and choked on her own vomit. Charged with manslaughter. y I - what is the mens rea element for manslaughter? y C convicted (trial judge found that accused knew of danger, so subjective MR existed anyway) y R McLachlin (majority) The standard to be used is the objective one. Uniform among all only bring in individual factors where person is shown to lack the capacity to appreciate the nature and quality or consequence of his/her acts (i.e. the incapacitated). y Dissent (Lamer) - Lamer reiterates his views from Tutton to inject subjective characteristics of the accused into the objective reasonable person test. The reasonable person with their frailties, i.e. what the reasonable drug user would have done. Things that may affect their capacity should be taken into consideration, even if they do not incapacitate people.

R.v. DeSOUSA (1992) (PAGE 549)
R. v. Desousa

Facts: The accused was charged with unlawfully causing bodily harm contrary to s. 269. In the course of a fight the accused threw a bottle that shattered and a glass fragment struck the victim. The trial judge held that the offence under s. 269 could apply to any statute or a provincial legislature including an absolute liability offence. Accordingly, s. 269 violated the principles of fundamental justice as guaranteed by s. 7 of the Canadian Charter and the indictment was quashed. An appeal by the Crown to the Ontario Court of Appeal was allowed and the case remitted to the trial court.

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Validity of s. 269 of the Criminal Code Properly interpreted, the term "unlawfully" refers only to provincial or federal offences and would not include any underlying offence of absolute liability. In addition, the term "unlawfully" in the context of s. 269 requires that the unlawful act be at least objectively dangerous, whether that underlying act is a criminal or non-criminal offence. The act must be unlawful and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person.
Dangerousness requirement: The unlawful act must be inherently dangerous. For an unlawful act to be the predicate for 269, we have to assess whether it is dangerous, whether reasonable people would foresee some harm from this conduct. This is the same test in manslaughter.

So interpreted, s. 269 meets the requirements of fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. Section 269 is not one of those offences which, due to its stigma and penalty, require proof of fault based on a subjective standard. There is no constitutional requirement for subjective foresight of all consequences which comprise part of the actus reus of an offence.
Example loitering/prowling act voluntary you can t read out the mens rea for this because it is the primary building block of responsibility. We then have a bunch of circumstances, near dwelling house, on another s property, and at night. Symmetry tells us that for all 3 of the circumstances, the accused must know they are present or be wilfully blind. Now, we reach the point where court refines the analysis, we don t need perfect symmetry, every actus doesn t need a mens rea, we just have to make sure the mens rea attaches to the core evil. In this case: y y dwelling house: must know its dwelling on another property: must know its someone else s property

Read out: - night: 9pm to 6am we know this doesn t count because if we read out this cause, say if the guy says it 850pm instead, he still is doing something wrong. Night is just a decision rule, arbitrarily designate the time periods. The fact you don t know the time period is insufficient because you are still doing something that is a core evil. You look to see what the starting point gives you, from the Crown you start seeing what you can drop out without losing the notion of moral blameworthiness.

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CONSTITUTIONAL CONSIDERATIONS - STIGMA FOR MURDER MR FOR MURDER IS SUBJECTIVE - VAILLANCOURT V. THE QUEEN (1987, SCC) y F armed robbery in pool hall, accomplice shot and killed person, escaped. Accused charged with murder ss. 212 & 213 now ss. 229 & 230 (murder in commission of offences) felony murder . S. 212(c) culpable homicide is murder where a person for an unlawful object (i.e. in the commission of another offence) does anything that he knows or OUGHT TO KNOW is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object w/o causing death or bodily harm to any human being. I was provision unconstitutional? C unconst, struck down R (Lamer) It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. s. 213(d) prima facie violated s. 7 and s. 11(d) because it can catch an accused who causes death but who would otherwise been acquitted of murder because he did not foresee and cud not have reasonably foreseen that death would likely to be a result (which he takes to be an essential part of the offence). Murder is one of the few crimes that the MR should reflect the stigma attached. Someone should only be regarded as murder when morality in the general public would see them as this and there must be proof beyond a reasonable doubt. McIntyre (dissent) - Parliament has chose to term a killing arising in these circumstances (where firearm involved) here as a murder Ratio - must have subjective MR for murder charge due to the stigma

y y y

y y

R. V. MARTINEAU (1990, SCC) y F - victims deliberately shot by accused s accomplice during a robbery y I - s. 213(a) at issue. This section defines culpable homicide as murder where a person causes the death of a human being while committing or attempting to commit a range of listed offences, whether or not the person means to cause death or whether or not he or she knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the commission of the offence or flight after committing or attempting to commit the offence. Section expressly removes from the crown, the burden of proving beyond a reasonable doubt that the accused had subjective foresight of the death. y C law unconstitutional y R - Majority: The essential role of requiring subjective foresight of death in the context of murder is to maintain proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. y A murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death y Dissent: finds it constitutionally valid, from a deterrence perspective. Esp. since people are committing another heinous crime at the same time.. y Ratio: minimum constitutional requirement for MR in murder is proof of subjective foresight of death due of the stigma, can be recklessness. y Note: Only in murder and attempted murder have a statute of the CC have been struck down due to the constitutionality of it. y In Sit v. The Queen (1991, SCC), Lamer upholds Martineau decision Page | 249

SEXUAL ASSAULT R. V. CHASE (1987, SCC) what is sexual in nature - old rape laws y R - The test to be applied in determining whether the impugned conduct has the requisites sexual nature is OBJECTIVE reasonable observer

CONSENT AND MISTAKE OF FACT PAPPAJOHN V. THE QUEEN (1980, SCC) old rape laws y y y F Accused had sex with the complainant. She claimed lack of consent. I is mistake of fact a defence for MR element of lack of consent? Is it by objective or subjective basis? R the trial judge would have been right to withhold if there was no air of reality to accused s evidence. (McIntyre) Before any obligation arises as to defence of mistake of fact, there must be evidence upon which the defence can rest. Only when there is enough evidence should the defence be allowed. Evidence must be beyond the mere assertion of belief in consent by the accused (i.e. there must be something supporting accused s testimony) to give it an air of reality (evidential burden on the accused). The belief need not be objectively reasonable. Ratio - A mistake of fact need not be reasonable as long as it is honestly held and corroborated to have an air of reality (subjective and not objective; evidence has to be independent of the accused).

y

SANSREGRET V. THE QUEEN (1985, SCC) y F see above. Trial judge applied Pappajohn and acquitted based on defence of mistake of fact. Here, you have perfect defence for mistake of fact, evidence is corroborated by victim. y R found wilful blindness (see earlier discussion). Court applies the earlier events on the whole the evidence shows he was willfully blind (but need coincidence btw MR and AR, so what he knew earlier should not matter to what he did now). y Ratio Where the accused is wilfully blind to weather or not the victim is consenting, the defence of mistaken belief is not available. y Note: this case narrows the mistake of fact rule in Pappajohn but does not overrule it OSOLIN V. THE QUEEN (1993, SCC) y Whether mistake of fact s. 265(4) violated presumption of innocence. Ct unanimous that it did not. Over-ruled Pappajohn in this regard: where there are two diametrically opposed stories, the defence can still arise (5-4 decision). Also, there is no requirement that there be evidence independent of the accused in order to put the defence to jury. What is req d is evidence beyond the assertion of mere belief but it can still come from the accused.

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R. V. SEABOYER (1992, SCC) y I whether rape-shield provisions which prevented some types of evidence from being admitted, were a constitutional violation of s. 7 and s. 11(d). y C rape shield provisions struck down (7-2) y R the provisions might interfere with the defence of reasonable mistake. McLachlin strikes down the law, since it might result in the conviction of an innocent person. S. 276 may exclude some evidence which is relevant to the defence. For instance, with mistaken belief the basis of this honest belief may be sexual acts performed by the complainant at some other time or place. A woman s sexual history is admissible in certain circumstances. y S. 277 also excludes evidence, but does not infringe the right to a fair trial b/c there is no logical connection between a woman s sexual reputation and whether she is a truthful witness.

POST-SEABOYER y y y y 1993: Women's groups said lets take advantage of this law being struck down, by making a better law (s.273)Section 273.1 ,273.2 Note the apparent transformation in MR from honest mistake to honest and reasonable mistake i.e reasonable belief (what he ought to have known). Attempt to make mistake of fact defence more like negligence This is contrary to Pappajohn and Seaboyer.

R. V. DARRACH (1998, OCA ALSO WENT TO SCC) y charter challenge on the basis of the new reasonable elements y accused challenges that you cannot make sexual assault a crime based on the new standard due to the stigma attached. Ct agrees MR must be subjective. y ct goes on to say that they don t think the amendment eliminated the subjective element. the new law is still largely subjective with an objective standard y do not have to take ALL reasonable steps, means there could be a reasonable mistake as long as SOME steps were taken. possible to take some reasonable steps but have an unreasonable mistake y Ratio: MR is subjective in the way that you only need to take some reasonable steps and can still make an unreasonable mistake and be acquitted. This subjective standard satisfies the stigma of this crime.

so the amendment is not successful in imposing a negligence standard
R. V. EWANCHUK (1999, SCC) y F - 17 yr old complainant goes for job interview in back of defendant s van. Interview conducted well, but after they go into the trailer and he makes unwanted sexual advances. Complainant clearly said no, and anything that she did was out of fear. R - There is no defence of implied consent for a defence of mistaken belief in consent to succeed, accused must show: (1) that he believed the victim affirmatively communicated consent to the sexual activity in question; (2) he had taken reasonable steps given the circumstances known to him at the time to discover whether the victim consented to the sexual activity in question Page | 251

y

R.v. Davis (1999) (page 617) R.v. CORNEJO (2003) (page 662)
R. v. Cornejo Facts: D acquitted at trial on the basis of defence of honest but mistaken belief. This was an error in law because there was no air of reality to that defence. The complainant and Cornejo were co-workers, repeatedly tried to initiate a relationship with complainant but she always denied him. On night in question, complainant was drunk, D calls her at home 3x, eventually goes over there, lets himself in through an unlocked door, and attempts to have intercourse with her. Victim wakes up and says no. D argues, she had consented because she lifted her pelvis in the removal of her clothing. Decision: Appeal Allowed, new trial ordered.

Trial judged erred in concluding in these circumstances that the movements of the complainant s pelvis were a sufficient evidentiary basis to allow the defence to go to jury. Air of Reality Test: a trial judge has a duty to keep from the jury any defences lacking an evidentiary foundation or an air of reality. The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. Further, the trial judge must consider the totality of the evidence and assume the evidence relied upon by the accused to be true. Honest but mistaken belief in consent contains 2 elements as a defence: 1. that the accused honestly believed the complainant consented; 2. that the accused have been mistaken in this belief.

The denial in section 273.2(b) of the mistake of fact unless the accused takes reasonable steps in the circumstances known to him at the time to ascertain whether the complainant was consenting to the activity in question combines subjective and objective fault elements the accused s obligation to take reasonable steps is only based on what he subjectively knows at the time. On the other hand, sec. 273.2(b) requires the accused to act as a reasonable person would in the circumstances by taking reasonable steps to ascertain whether the complainant was consenting.

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SEXUAL ASSAULT

3 elements of AR of assault: 1. Touching (objective sufficient for crown to prove accused¶s touching was voluntary) 2. Sexual Nature of the Contact (objective crown need not prove that the accused had any MR with respect to the sexual nature of his/her behaviour) 3. Absence of Consent (subjective in the mind of the complainant) 2 elements of MR: 1. Intention to Touch 2. Knowing of, or being Reckless of or wilfully bind to, a lack of consent on the part of the person being touched.
Absolute and Strict Liability CREATION OF STRICT LIABILITY (R. V. CITY OF SAULT ST. MARIE (1978 SCC) y F - The city of Sault Ste. Marie hired a disposal company to get rid of garbage, which they released into the waters. They were charged under the Ontario Water Resources Act, under s. 32(1) discharges or deposits or causes discharge or deposit of any material of any kind into any water course which carried with it the possibility of fine and conviction. y I Was there some MR to be included in the offence? They claimed that they took reasonable care. y R created intermediary strict liability offence 1. True Crime - mens rea with positive state of mind (intent, recklessness, knowledge) must be proved by the prosecution, 2. Strict Liability - crown must prove actus reus, defendant then proves defence of due diligence

3. Absolute Liability ± what used to be strict liability. No defence of DD.
y DD involves consideration of what the reasonable person would have done in the circumstances. Defence available if the accused (1) reasonably believed in a mistaken set of facts which, if true, would render the act/omission innocent, or (2) if he took all reasonable steps to avoid the particular event. What is reas can take into account industry standard. y Do not assume that PWO are AL unless the legislature has made it clear that guilt would follow merely from the prescribed act. Assume PWO are prima facie strict liability and have DDD

R. V. WHOLESALE TRAVEL GROUP INC. (1991 SCC) F misleading advertising charged retail prices but said they were wholesale. Charged under Competition Act (federal offence): misleading advertising s.36(1). Could lead to up to 5 yrs imprisonment. y S.37.3(2) No person shall be convicted of an offence under s. 36 if he establishes that, (a) the act or omission giving rise to the offence with which he is charged was the result of error; (b) he took reasonable precautions and exercised due diligence to prevent the occurrence of such error. y Corporation challenging constitutionality of due diligence offence, saying that s.37(2) violated ss. 7 & 11 of the charter y Page | 253

Challenge is on 3 grounds: i. Unfair to shift burden of proof ii. Imprisonment when there is only negligence iii. The stigma of this offence requires subjective mens rea. y C - Statute survives 5-4, Lamer dissenting y R - Due diligence survives, defence is required by fundamental justice. Distinction between true crimes and regulatory offences: Regulatory offence are designed to protect those who are unable to protect themselves. Regulatory crimes are not inherently wrong, but prohibited because unregulated activity would result in dangerous conditions being imposed upon member s of society, especially those who are particularly vulnerable. y Dissent (Lamer) - the availability of imprisonment cannot withstand the shift in the burden of proof y Cory J. makes important point: certain problems with the punishment and moral blameworthiness of the RO vs. True crimes: i.e. is the single mother who steals a loaf of bread to sustain her family more blameworthy than the employer who, through negligence breaches regulations and exposes his employees to pollutants. y Ratio: reverse onus provision (requiring the accused to establish defence of due diligence beyond a balance of probabilities) is justified. Requiring the crown to disprove due diligence BARD would make it very hard to prove regulatory offences only the accused has knowledge of whether due diligence was taken. Re-affirms that regulatory offences do not have the same stigma as true crimes because they are based on a different concept of fault (Deterrence vs. retribution/denunciation) y Significance constitutionalizes Sault St. Marie decision. Maintains distinction btw true criminal offences and regulatory offences y CONSTITUTIONAL CONSIDERATIONS REFERENCE RE S. 94(2) OF BC MOTOR VEHICLE ACT (1985, SCC) y the legislature clearly stated that the offence of driving without a license was an absolute liability offence in which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension y the SC concluded that the offence could allow the morally innocent to be punished, and suggested that a better alternative would have been to allow the accused a defence of due diligence or lack of negligence once the Crown proved the prohibited act of driving with a suspended license y since this was just a reference, they struck it down, but can either strike down or read in DDD y Ratio: absolute liability offences when combined with imprisonment violated s. 7 of the Charter, and could not be justified under s.1. Every provision which combines imprisonment with absolute liability will have strict liability read in. (rather than strike down all these laws)

R V. PONTES (1995, SCC)(NOT REFERRED IN THE SYLABI) y F accused driving car while license suspended (which is an absolute liability offence by legislation), but wasn t aware of this. License was suspended automatically.

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y I - Is a person driving with suspended license is automatically and without notice prohibited from driving for 12 months unconstitutional? y C sections upheld y R - The reason why these provisions are constitutionally valid is due to the general provision in B.C. s legislation that provided that no one could be in prison for violation of an absolute liability offence. y This is a follow-up case to BC Motor Vehicle Reference. B/c the prohibition is automatic, s. 94 prevents an accused who is unaware of the prohibition from raising a DDD (this must be available for a strict liability offence). y In other words, when the only possible defence he can make is ignorance of law that that is no excuse, he is effectively denied DD. y Normally, absolute liability coupled with imprisonment is unconstitutional, but where the sanction of imprisonment is unavailable, the provisions can stand.

R.v.Transport Robert, R/v/ Williams Cameroon (2003) (page 408) R.v. Smillie (1998) (important). Ignorance of the Law

General Rule: not knowing that is was illegal is not a defence or an excuse (s.19 of CC and in CL)
MISTAKEN BELIEFS ABOUT THE LAW R. V. CAMPBELL AND MLYNARCHUK (1972, AB DIST. CT) y F - Nude dancing. Women had been assured by her boss that a trial judge said that nude did not equal immoral.. C - She is found to be guilty even though she had a reasonable mistake, but she was given an y absolute discharge (no criminal record) as a punishment. There is the tendency to give the minimum penalty for ignorance of the law. y Ratio: even a reasonable mistake of the law is not an excuse, it is still ignorance of the law. R. V. HOWSON (1966, OCA)
y y y

y y

F: Towing company thought they had the right to keep the car until the money was paid. They claim that they took it away and kept it and that they thought they had the right to do it. I: was this theft? C: He honestly believed he had colour of right in that circumstance. If upon all the evidence, it can be inferred that the accused acted under a genuine misconception of fact or law, there would be no offence of theft. Ratio: A legal error about who owns property may afford a defence to theft because theft affords a defence of colour of right. Note that cannot argue that didn t know theft was a crime, but that didn t know what one was doing was theft. Page | 255

MISTAKE OF FACT AND MISTAKE OF LAW
y y y y

If somebody didn t know that their license was suspended, is this mistake of law or mistake of fact? Driving while your license is suspended is the AR If it was a mistake of law, not an excuse If mistake of fact, then can be an excuse

JONES AND PAMAJEWON V. THE QUEEN (1991, SCC)
y y y y y y

Aboriginal bingo had no authorization. Court: could they still not be guilty if they believed that they had the right to hold the bingo Sovereign territory, colour of right that can be have bingo. This case stands for that were there is no express exception there is no exception Colour of right = ignorance of the law = feeling that it is right Ratio: there is no defence for a mistake of fact thinking that the law does not apply to you. There would have been a mistake if there was a mistake about possessing a valid bingo permit.

R. V. HESS; R.V. NGUYEN (1990) (PAGE 678 IMPORTANT) R. V. PONTES (1995, SCC)
Charge: Driving with license suspended which is an absolute liability offence by legislation. Facts: License is suspended automatically. The accused did not know his license was suspended and this was a mistake of law. This was his only defence available and since mistake of law is not a defence, there was no defence open to him. Ratio: Where, on trial for a provincial offence, the only possible defence an accused can forward is his ignorance of the fact that his license has been suspended by the provisions of the provincial statute, which constitutes a mistake of law and is therefore not available as a defence, the accused is effectively denied the DDD(due diligence defence). In these circumstances the offence must be characterized as an AL(absolute liability). Reasoning: DD does not apply to mistake of law. The fact that he diligently tried to ascertain the state of law is not a defence. Since DD does not apply to mistake of law.
y y

The distinctions in Molis and MacDougall are arbitrary and cannot be made but majority split on what precedent should be maintained.

DEFENCE OF OFFICIALLY INDUCED ERROR

³Officially-induced error´ is an exception to ignorance of the law rule. The defence of officially induced error has not been widely accepted for true crimes.

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R. V. CANCOIL
Facts: accused charged with unsafe machinery but it had passed inspector s test Decision: not guilty Reasoning: This is a case of officially induced error for a provincial offence. Cannot be used with criminal offences (or it hasn t yet), just regulatory ones. The defence is available to an alleged violation of a regulatory offence when the accused has reasonably relied on the advice of an official who is responsible for the administration or enforcement of the particular law. Reasonableness depends on: the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice and the clarity, definitiveness, reasonableness of the advice given. Ratio: Where an accused has reasonably relied upon the erroneous legal opinion/advice of an official responsible for the administration or enforcement of the particular law. The accused must show that a) he relied on the opinion and b) that the reliance was reasonable.

R. V. JORGENSEN
Facts: He and the co-accused operated an adult video store. They were convicted of knowingly selling obscene material. These videos had been approved by the Ontario Film Review Board. The trial judge found that the crown had to prove that the accused knew that the dominant characteristic of the videos was the exploitation of sex and that film board approval was not a justification or legal excuse. Conclusion: Acquitted Reasoning:. In order to knowingly sell obscene material, the accused had to know that the exploitation in the videos was undue. There was no evidence that the accused knew that these videos involved the undue exploitation of sex. The reliance by the accused on the film board approval did not negate the mens rea of the offence and was irrelevant to the Issue of knowledge. Since the defence of officially induced error was not properly raised, the majority did not assess this case on those grounds. Ratio: He did not know what was in them so it did not matter that he relied on the censor board. a mistake of fact excuses but not a mistake of law OTHER WAYS OF COMMITTING A CRIME Inchoate/Incomplete Crime

3 Inchoate crimes:
y y y

attempts s.24 of the CC. conspiracy : the agreement (to the AR or to the MR) In itself is the crime. So just a phone call can be a crime. counselling, telling someone else to do it. Even if it does not go anywhere, the phone call can become the crime.

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ATTEMPT ± S. 24 OF CC

y y y y

actus reus and mens rea for attempts (actus reus is different for complete crime and for the attempt) AR for attempt more controversial of the two Actus reus of attempt is complete when they have gone SO far that you know the offence is inevitable to result Actus reus is subordinate to the mens rea in attempt (evidentiary)
First Step Preparation Steps I_______________________I____________________I I Too Remote I Proximate I Completed Plan

R. V. CLINE (1956, OCA)
y y y

F - Cline approached a boy several times, trying to lure him to go somewhere with him. He was wearing a disguise. C - guilty of attempted indecent assault R - The following principles are used to guide:

1) There must be mens rea and actus reus to constitute a criminal attempt, but the criminality lies primarily in the intention. 2) Evidence of similar acts is admissible to establish a pattern. 3) Such evidence may be advanced by the prosecution. 4) It is not essential that the actus be a crime or a tort or even a moral wrong or a social mischief. 5) The actus reus must be more than mere preparation. 6) When the first step is taken, this will be the actus reus.
y

y y

y

In this case, he had finished preparing. He was ready to embark on the course of committing the intended crime. It was necessary only to lure a victim into a secluded place. If the boy had been successfully lured, there is no doubt the crime would have been committed. Ratio: Only steps are considered part of the AR and are punishable. Steps are proximate while preparation is too remote. This distinction is for the actus reus not the mens rea. Mandel - real test should be when there is no doubt that the D would have gone ahead with the completion of the crime and there is virtual certainty that it would have occurred but for some intervention (this justifies prevention). For deterrence purposes, we should not have to wait until the last act

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DEUTSCH V. THE QUEEN (1986, SCC)
y

y y y y

F Placed advertisement in newspaper for secretary. There was evidence of 3 women and policewoman that during interview accused indicated that part of job woman would be required to have sexual intercourse with clients. He was charged with attempting to procure female persons to have illicit sexual intercourse with another person contrary to s. 195(1)(a) now s. 212(1)(a) of CC. I - Was the D in the stage of preparation or was he taking steps towards the commission of the crime? Trial judge said that there was no attempt if there was not an offer of employment. C guilty R - AR could be holding out large financial rewards in an interview for a job in which a necessity would be to have sex with clients. It did not matter that he offered the job or not. Ratio . Held that the test for the change from preparation to attempt is qualitative and requires evaluation of the proximity of the nature of the act and the nature of the underlying offence.

MENS REA (R. V. ANCIO, R. V. LOGAN) ANCIO (1984, SCC)
y

y

y

F - Ancio drives over to estranged wife s house with a gun to force his wife to leave. Gun went off accidentally and nearly hit her boyfriend. He was charged with attempted murder and originally found guilty. Court of Appeal and SCC ordered a new trial. Ratio: The intent (mens rea) required for attempted murder cannot be less than the specific intent to kill (this applies just to murder). When the actus reus is diminished MR should be heightened. There should be a higher mens rea where the actus reus is not complete. Intent=intention Significance - Indirectly, this case dealt with the common law mens rea of all attempts. Following this case, it has been accepted that full intention is the mens for all attempts (regardless of what mens rea is for the completed crime).

LOGAN (1990, SCC)
y

y y

y

F - Variety store, manager put in wheel chair after being shot. Many accused but they did not know who did it, so they are charged with attempted murder and otherwise aiding and abetting. So if they found that one of them shot the gun they are found to attempted murder and the others would be charged with aiding and abetting I How do you convict of attempted murder when you don t know who fired the gun? Ratio - Subjective foresight is the minimum constitutional requirement. Mens rea for attempted murder is the same as that of murder because of the same level of stigma. So could not have negligent MR for attempted murder constitutionally. Note: Just b/c subjective foresight is required with attempted murder, This does not mean it applies to other crimes (e.g. robbery).

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IMPOSSIBILITY NOT A DEFENCE TO ATTEMPT U.S. V. DYNAR (1997, SCC) y F: Accused was charged with attempted money laundry in the U.S.A (s. 462.2 in CCC). The U.S.A. asked for an extradition back. Only allowed to extradite if the crime also exists in Canada. The completion was impossible because the completed offence was impossible because the money had not been obtained by crime. I: Is impossibility a defence? What is the difference between legal and factual impossibility? C: guilty, extradited R: Impossibility is not a defence. Because the person has the requisite mens rea and actus reus, it would be unjust to not to punish simply because they could not complete the crime simply because of chance. Ratio: There is no difference between legal and factual impossibilities. So you can still be guilty of the attempt, even if the crime was impossible.

y y y

y

CONSPIRACY ± S .465(1) OF CC. AR: Agreement by two or more people to carry out the complete offence MR: intention by two or more persons to agree, and intention to put the common design into effect and carry out the agreement The agreement itself is a crime. Not only intention to agree but intention to put the common design in effect. So just joking does not matter.

U.S. V. DYNAR (1997, SCC) y I: was it a criminal conspiracy? y C: there can be no attempted conspiracy. Either you agreed or you didn t. It is not a defence to a conspiracy charge that the crime was impossible to commit, unless it was an imaginary crime , then there is no conspiracy. There must be a common intention to commit the crime and both parties have to be active in the conspiracy. Further, the conspirators must have a genuine to participate in the agreement. A person cannot be a conspirator if he merely pretends to be.

R.v.Gralewicz (1980) (page 1051) R.v. Innocente(2004) (page 1059)

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COUNSELLING OFFENCE THAT IS NOT COMMITTED ± S. 464 OF CC

AR: proof that the materials or statements made or transmitted actively induces or advocate, and do not merely describe, the commission of an offence. MR: proof, either of an intention that the offence counseled be committed, or knowingly counselling the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused s conduct. The fact that the accused s motive was mercenary does not negate MR. R. V. HAMILTON (2005, SCC) Facts: Accused sold a package of files to 20 people over the internet. Some of the files contained material related to committing crimes (breaking and entering, constructing bombs, visa hacking). Accused was charge with counselling for fraud offences which were not committed. Issue: What is the MR and AR for counselling indictable offences not committed? Decision: new trial ordered, Trial judge erred by confusing accused s motive with his intent. Reasoning: Definition of counselling: AR = actively induce or advocate, not merely describing the commission of the offence. It is the deliberate encouragement of the commission of the crime. The AR doesn t have to include that offence counselled be committed. It is enough that you counsel the person to do it. The MR is nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling. So you don t have to intend it but if you know that it is likely to happen then you are guilty (recklessness to a high degree suffices). Dissent: The MR is not expressly set out in s. 464. But the counselor must at the very least intend to persuade that person to commit the crime. Mere recklessness is insufficient. The more demanding standard of subjective MR must apply. If the only thing to convict on is the mens rea, the mens rea requirement must be the highest level of mens rea (there was no actus reus since no crime was committed). R. V. DUNGEY(1979) - conspiracy to defraud the law society, there was an agreement, but one of the conspirators never meant to carry it out (client) but cannot have attempt to conspire or attempt to counsel (cannot pile these inchoate offences on top of one another) the conduct of the respondent should be viewed as a step preparatory to committing the substantive offence of fraud and, in that sense, what he did would be too remote to constitute an attempt. - Cannot attempt to conspire Page | 261

- judge said could have properly been charged with counselling/incitement Secondary Liability y y y y y s. 21,21(1), 22, 23,23(1). aiding and abetting, counselling offence that is completed, accessory after the fact, organizational liability (aspect of vicarious liability) secondary liability always assumes a crime has been committing, and makes one party to a crime committed the perpetrator of the completed crime doesn t have to be convicted of it (e.g. if you aid and abet murder but the murderer gets away you still get charged) all the definitions of the CC apply to any other federal enactment, e.g. the competition act

PRINCIPALS (R. V. BERRYMAN)

y y

Ratio: doctrine of innocent agent - Acting through an innocent agent creates principal liability even though the actus reus is being committed by an innocent agent. An innocent agent is one who is clear of responsibility because of infancy, insanity or lack of mens rea.

AIDING AND ABETTING y y aiding = helping abetting = encouraging

DUNLOP AND SYLVESTER V. THE QUEEN (1979, SCC) y y y present at gang rape, delivering beer, charged with aiding and abetting rape not guilty, conviction overturned If there is no evidence of encouragement by a person, his presence at the scene will not suffice to render him liable as an aider and abettor. In this case, there is nothing more than presence and mere acquiescence. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of offender s intention to commit the offence or attendance for the purpose of encouragement. Ratio: a person is not guilty merely b/c he is present at the scene of a crime and does nothing to prevent it.

y

y

R.v. Laurencelle (1999) (page 1002)

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KIRKNESS V. THE QUEEN (1990, SCC) y y y y y two parties conspire to B&E, sexual assault and murder; one party says stop it you ll kill her accused was a principal in the B&E, whether he aided and abetted the rest. accused charged with manslaughter (co-conspirator charged with murder and sexual assault) under s. 21(2). accused wants to argue that he abandoned the conspiracy, but conspiracy complete as soon as they agreed. The defense of abandonment cannot be used in inchoate offences but can be used in party offences. In an abandonment defence, there must be timely and unequivocal communication of the intent to abandon the common purpose. The accused will be held to a different standard depending upon the degree of his participation in the crime. There must be timely communication of the intention to abandon the common purpose for those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. Where accused aids and abets killing, requisite intent must be same as that required of person who actually did the killing. The aider and abettor of the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not. If intent insufficient to support conviction for murder, then party may still be convicted of manslaughter if the unlawful act which was aided and abetted is one he knows is likely to cause some harm short of death

y

y

R. V. NIXON (1990, BCCA) y y y y y senior officer, guilty of aggravated sexual assault by aiding and abetting. Had a legal duty (under CC and Police Act) to protect those in his charge and was present when another beat prisoner up. His failure to intervene amounted to encouraging the assault and went beyond mere presence (Dunlop, Where there was a duty to act and an accused did not act (Popen), it was open to the court to infer that the purpose of the failure was to aid in the commission of an offence. So far two main ways you can be A&A by omission o Where you have a duty to act (Popen, Nixon) o Where your omission encourages

R.v. Portillo ((2003) (page 1010)

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COMMON INTENTION S. 21(2) enlarges the scope of who is a party to an offence beyond those who knowingly aid or abet. Thus, a person who forms a common unlawful attempt (ex. robbery) is a party to the other offences that he/she knew or ought to know would probably occur (i.e. forcible confinement and manslaughter). AR: must be a formation of a common intent to assist each other in carrying out an unlawful purpose but not necessarily any act of assistance. MR: 1. Formation of the common unlawful purpose 2. Subjective or objective foresight that the actual offence would be a probable consequence of carrying out the unlawful purpose. ought to have known for high MR crimes you cannot use this objective level (Logan)

Before: Paquette, person who drove others to a robbery had not formed a common unlawful purpose to assist them in robbery because they were forced at gunpoint to co-operate

Now: Hibbert, rejects the latter interpretation. 21(2) only requires a common intent to commit the offence and not a mutuality of motives and desires between the party and the principal. According to Hibbert in Paquette the MR would be present but there would be a defence of duress. R. V. KIRKNESS (1990 SCC) y was there common intention btw the two accused (K argues abandonment) y TEST: CC deems a party criminally liable for the acts of the principle offender when: o the commission of the ultimate offence has to be probable o the accused must know or ought to have known of this probability y note: Common intention need not be pre-planned in anyway and it is sufficient such intention arise just prior to or at the time of the commission of the offence. y For murder s.21(2) does not apply since it requires subjective foresight (Logan) y For manslaughter there must be objective awareness of foreseeability of harm (Davy) y in light of these cases, K would not be able to be charged for murder without subjective foresight of death but could be charged for manslaughter under objective standard y . Mandel thinks you shouldn t be forced to go to police to argue this defence.

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R. V. LOGAN (1990, SCC) y y y y Several accused charged with an attempted murder and aiding and abetting (s. 21(2) parties to offence) after robbing a Becker s and seriously injuring cashier. Issue was whether the parties to offence provisions of s. 21(2) of CC infringe s. 7 and 11.d)? Ratio: In a party offence for murder, it is constitutionally required that the party to the offence has to have the same mens rea as the principal (subjective foresight of death). Note: In other provisions, you can have different levels of mens rea for principal offenders and parties. e.g. for party to manslaughter, objective foresight sufficient.

Corporate Liability y y y Vicarious Liability Only applies to CC and some federal offences One of the members of the organization must be guilty of the crime, since the organization is a separate entity from its members. More difficult to convict of criminal offence than a regulatory offence since they must find an individual in the organization that is liable (with enough authority and prove beyond a reasonable doubt the MR).

CANADIAN DREDGE AND DOCK CO., LTD. ET AL. V. THE QUEEN (1985, SCC) y y y Facts: Dredging companies colluded when making bids and decided amongst themselves which the lowest would be (bid-rigging). It was fraud, but it did benefit the corporation. Decision: Guilty. Reasoning: In Canada, we use the doctrine of identification or the directing mind which is a modified and limited vicarious liability. The identity doctrine merges the board of directors, the managing director, the super-intendant, the manager etc. and the conduct of any of these is attributed to the corporation. Where there is pure fraud (detriment to corporation), there is no corporate liability. Corporations remain liable if acts were by design or result partly for the benefit of the corporation. Estey on Corporate Liability for AL and SL provincial offences Corps have automatic primary responsibility for AL or SL offences committed by their employees The corporation commits the AR when one of its employees commits the AR Note: This case set down the Identification Theory which asks the court to consider who has been left with the decision making power in a relevant sphere of corporate activity.

y y y y

s.22.1 (objective offences) offences of negligence for organizations) Organizational negligence; 2 elements: y the representative must have been acting the scope of their authority y the representative who is responsible for that area of the orgn¶s actitivites departs markedly from the standard of care that could reasonably be expected to prevent the representative from being a party to the offence. (i.e. not simple negligence or lack of due diligence)

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y

Must be a µsenior officer¶ who manages an important aspect of the org¶n activities, not just corps but public bodies, unions, firms, co.s, partnerships, municipalities.
ex. so under this new law the safety Kleen truck driver might be held liable since he did manage an important aspect of the corp s activities.

y

This objective test cannot be applied to such crimes as murder and attempted murder that constitutionally require subjective fault.

s.22.2 (subjective offences) for offences other than negligence
Intent to at least partly benefit the orgn and acting within scope of the authority. One officer must have the fault not a group. Senior officer can also be guilty if they aid, abet, counsel, or knew or ought to have known about. Where the corporation does not get anything from it they will not be liable, so just using the corporate vehicle is not a crime. Ex. So even if he officer is defrauding the corp if the corp receives any benefit they will be criminally responsible. (Canadian Dredge) The corporation has primary liability when an employee does a prohibited act and they cannot claim ignorance or say that they ordered the crime not committed. (Canadian Dredge) unless they acted totally in fraud of the corp. (codified in s.22.2(c)). See sec. 467.1(1)+(2)+ 467.11- 467.13 cc - participation in criminal organization. y
SEE SEC. 83.18 CC

THE NEW STATUTORY PROVISIONS FOR ORGANIZATIONAL LIABILITY Definitions now contained in s. 2 of CC: y organization - means: a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or b) an association of persons that 1) is created for a common purpose, 2) has an operational structure, and 3) holds itself out to the public as association of persons

y y y

under the new law, organizations are held responsible for not only for the actions of their senior officials, but also of their representatives ³Representative´, in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization they have expanded the definition of ³senior officer´ so that the new law requires the prosecution to prove that only that those who control the operation of the organization were criminally liable and not those who set policy (before it was the ³directing mind´, i.e. a C.E.O., but now it is anyone with authority)
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y

a senior officer may play an important role in the framing of policies OR is responsible for managing an important aspect of the organization¶s activities

Defences y y does not deny the AR and MR, it provides a reason for it (what would otherwise be a motive) I did it, I meant to do it, but I did it because of this ____ recognized justification or excuse.e.g. defence of person and/or property, necessity, duress, provocation, automatism, mental disorder, intoxication,defence of mistake of fact . y s. 9 only statute a source of offences y s. 8(3) of CC says common law also becomes a source for defences, but parliament rules e.g. the necessity defence is common law y on the other hand, there are a lot of defences that have been codified statutory defences found in the general part of CC, start at about s. 13

y

Burden of Proof The accused has to overcome a threshold evidential burden by pointing to some evidence that justifies consideration of the particular defence in other words, the accused has to establish that there is an air of reality that justifies instructing the jury about the defence (this requires some evidence as to the existence of all the elements of the defence including both their objective and subjective components .the sufficiency of the evidence is then left to the jury). Then the burden shifts back to the crown to disprove the defence beyond a reasonable doubt.

SELF-DEFENCE y y Complete defence if successful, accused is acquitted. Must be disproved by the Crown beyond a reasonable doubt as part of its burden to prove guilt beyond a reasonable doubt.

34(1) - 37 2 elements of: the force used is not intended to cause death or grievous bodily harm and it is no more than necessary to enable the accused to defend him/herself. So will be acquitted if a jury finds: I. Accused was unlawfully assaulted, Accused did not provoke the assault, Force used was not intended to cause death or grievously bodily harm, Force used was no more than necessary to enable him to defend himself. - could be a defence to manslaughter if the accused caused death but did not mean to do so y all of these are subject to the element of mistake it is about whether the accused BELIEVED it was happening, not whether it happened, but the belief has to be reasonable y the subjective and objective elements to each so 6 elements in total. (Cinous) y for deterrence and denunciation the subjective element is most important.

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R. V. CINOUS (2002, SCC) y y y y Facts: Heard he was going to be killed, so when they stopped at gas station he got out and shot Mike in the head. Issue: Claimed self-defence.? Decision: Defence should not have been allowed, air of reality (essentially evidential burden) not satisfied Reasoning: It should not have been given to the defence in the first place since it lack some evidential points. The burden had not been shifted yet from the defendant to the crown. There was not enough evidence since 5 of the 6 elements of the defence were there but the last was not. 3 elements: o existence of an unlawful assault o a reasonable apprehension of a risk of death or grievous bodily harm o a reasonable belief that it is not possible to preserve oneself form harm except by killing the adversary 6 elements in total: of the 3 elements there are the subjective and objective elements to each: what he believed and whether this was on reasonable grounds. His belief that he had no way out was not reasonable. He had a way out: calling the police, running. It is not the reasonable sociopath or criminal but the reasonable person. They do not subjectify the reasonable person at all.

y

y y y

R. V. LAVALLEE (1990, SCC) y y y y y y y Facts: Shot her abusive boyfriend while his back was turned Decision: Not guilty Subjective reasonable person standard: Reasonable person test should be extended to include the reasonable battered woman Allow the fact that she is in battered women s position but do not care that the other guy in Cinous is in the criminal subculture that is his own fault. We accept the battered women s view but no the hardened criminal s point of view Ratio: Where BWS(Battered Woman Standart) evidence available, reasonable person test should be extended to include such evidence NOTE: case is reconciled with CREIGHTON in HIBBERT by saying that the Reasonable person is subjectified for defences but not for MR.

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R. V. PETEL (1994, SCC) Charge: second degree murder Facts: guy lived with Petel, frequently threatened her and beat her daughter. After consuming a small amount of drugs she shot him and shot and kills his drug partner. Issue: did the judge err in telling the jury that the previous threats did not matter when deciding if there had been an assault at the time question Decision: New trial Reasoning: in a case involving self-defence it is the accused s state of mind that must be examined and it is the accused who must be given the benefit of the reasonable doubt. Following Lavallee the danger need not be imminent. Imminence must only be weighed in considering if the accused had a reasonable apprehension of the danger and a reasonable belief that the only way to extricate herself from the attacker was to kill him. The threats prior to the day were an integral part of the circumstances on which the accused might have based her perception. By limiting the relevance of the threats the jury might determine what an outsider would have done in the same situation as the respondent. Ratio: In determining the reasonableness of the belief the jury could consider prior threats/violence received by the accused from the victim. There need not be an actual assault at the time to have selfdefence. R. V. MALOTT (1998, SCC) Facts: Was assaulted before so she thought that it was reasonable. So she attacks tormentor and the tracks down and shot his girlfriend. Charge: second degree murder and attempted murder Issue: Was this self-defence or revenge? Battered women can kill for other reasons than self-defence Decision: Found that it was not self-defence but revenge Reasoning: defence was not reasonable even though she was a battered woman. Although the perspective of women needs to be incorporated into the objective reasonable person in relation to selfdefence, it must still be reasonable. Environmental factors may also impair the women s ability to leave: lack of job skills, the presence of children to care for, fear of retaliation by the man etc.. Ratio: the battered women must still act in a reasonable manner, there must be an air of reality to self-defence.

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DURESS S.17 Duress: accused must only think that the threats will be carried out and does not need a reasonable basis for this belief. y applies to principals only (Paquette) y if is an objective standard subjectified to a certain extent for the defences. y Threats of death or bodily harm against the accused s family may be considered (Ruzic) HEBERT V. THE QUEEN (1989, SCC) Facts: Quebec notary who was convicted of perjury. Claimed that several tough looking motorcycle gang members were present in court and harassed him with their threats. Issue: Can duress be used to negate mens rea? Decision: SCC upheld the reversal of the acquittal. Convicted of perjury. Reasoning: There was no s. 17 defence of duress (necessary because he was a principal and not a party) because he was not threatened by immediate death or bodily harm. The court gave the accused a new trial so that the affects of the threat could be considered in determining whether he had the mens rea required for perjury. The mental element of perjury requires more than a deliberate false statement. The statement must also have been made with the intent to mislead. While it is true that someone who lies generally does with the intent of being believed, it is not impossible, though it may e exceptional for a person to deliberately lie without intending to lie. Ratio: Duress may be used to establish whether there was requisite mens rea for the crime. Significance: This case is over-ruled by Hibbert because it seems to imply that mens rea can be negated by duress. HIBBERT V. THE QUEEN -Facts: Accused was forced to lure victim down to lobby where victim was shot and was threatened that if he did not, he would be shot. Charged under 21(1)b aiding and abetting -Issue: Can mens rea be negated by duress? What is the standard for determining a reasonable avenue of escape? -Decision: Appeal was allowed, conviction set aside. New trial ordered. -Reasoning: Safe avenue of escape is analogous to the necessity requirement that compliance with the law be demonstrably impossible. Whether a safe avenue of escape existed is assessed on an objective basis, which takes into account the particular circumstances and frailties of the accused (modified objective). In Creighton, it was established that people are held to an objective standard; if a person fails to foresee the probable consequences of their freely chosen actions, these actions remain Page | 270

voluntary. In contrast, duress actions are involuntary (in a normative sense). In determining whether an accused was operating under such constrained options, his/her perceptions will be highly relevant to the determination of what was reasonable and thus excusable. -Ratio: Situations where duress will negate mens rea are exceptional. The modified objective standard is used to determine whether a safe avenue of escape existed. A modified objective standard is used in defences but not in offences. Structure: o Mens Rea we don t consider the frailties of the accused (OBJECTIVE TEST) o Defences we do consider the frailties of the accused Why? B/c of the voluntariness thing --Significance: In Canada, Hibbert is the binding case on issues of mens rea. y R. V. RUZIC -Facts: Accused smuggled heroin into Canada. Charged with possession and use of a false passport. Claimed defence of duress. -Issue: Do immediacy and presence requirements in s. 17 infringe the principle of involuntariness and as such infringe the charter? -Decision: She was acquitted of smuggling heroin. Threats do not need to have the requirements of immediacy and presence. Ratio: Immediacy and presence requirements are unconstitutional because they are tantamount to punishing a morally involuntary action. -So we can say immediacy doesn t matter, presence doesn t matter, what matters is the involuntariness -Notes: Ruzic is about the principal offender trying to use defence of duress (unlike the other cases we ve seen so far). Thus, she has to rely on s.17. S.17 is more rigid than the common law (requires immediacy of threats). She could not use s. 17 because her charge was an excluded charge under s. 17 and had to rely on the common law defence. Defence of duress is judged to be unconstitutional. Applies the common law defence to a perpetrator (we re eroding s. 17) -Mandel: Common law defence might now be more restrictive because it imports a standard of reasonableness whereas the statutory defence does not. -Ratio: The requirement of immediacy and presence of s. 17 must be struck down since they are unconstitutional -s.17 is left with only the excluded offences. It is a judgment of parliament of the limits of defence of duress. Page | 271

NECESSITY - purely common law offence but s. 8(3) allows it

MORGENTALER V. THE QUEEN (1975, SCC) Admitted that he performed the abortion and the defence of necessity was left to the jury and he was acquitted. Q.C.A said that evidential burden was not met. SCC upholds this. Evidential burden not met since morgentaler did not try to obtain the therapeutic abortion certificate. He did not have evidence that he tried to follow the law. now there cannot be a conviction after a jury acquittal, but not back then there could be. Given MR and AR and no defence offered, so there is no need for new trial , just convict him. Necessity only justifies non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible. There must be the attempt to find a legal alternative i.e. a legal way out Defence of necessity will be not accepted where more harm was done than necessary to stop the evil or the evil done is greater than the evil prevented.

-

PERKA V. THE QUEEN (1984, SCC) - decided while the prosecution of 2nd morgentaler was going on - but they knew it was going to set a precedent to apply to abortion Facts: Caught in BC with a lot of drugs on a boat, had to stop since the storm threatened their life and they have to stop on the trip form S.A. to Alaska Charge: drug trafficking and possession Decision: Jury acquitted On appeal : overturned since the judge did not ask if there was a legal way out. they could have saved their lives by not importing drugs. Maj.: Defence of necessity is an excuse not a justification. Min.: it can be both o Excuse: conceding the wrongfulness of the action and asking for forgiveness; it is based on moral/normal involuntariness. o Justification: is was right, challenges the wrongfulness of an action which technically constitutes a crime.

LATIMER V. THE QUEEN -Facts: Accused killed his daughter with severe cerebral palsy. -Issue: 1) Should the defence of necessity have been left to the jury? -Decision: The defence of necessity did not apply.

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-Reasoning: Neither Latimer or his daughter was in imminent peril. They had a reasonable legal alternative to continue caring for her. The murder outweighed any harm avoided in the form of pain from the operation. No air of reality to defence of necessity. -Necessity: 3 elements : (1) imminent peril or danger (modified objective standard) (2) no reasonable legal alternative (mod. obj. standard) (3) proportionality between harm conflicted & harm avoided (obj. standard) -Ratio: The court confirmed that a modified objective standard that takes into account the situation and characteristics of the accused should be used for determining: -imminent peril -a reasonable legal alternative -BUT not for determining proportionality (purely objective) -Mandel disagrees with the courts finding that: -there was a legal alternative available because a legal alternative is one that solves the -problem whereas in this case, all of the alternatives open to Latimer would have kept the situation as it was.allowing Tracy to continue suffering was not a legal alternative -the court feels that it is hard to decide if a case of homicide could ever satisfy the proportionality requirement PROVOCATION
SECTION 232 CC R.V. HILL (1986) (PAGE 939)

Components of Provocation: Sec 232 y y Sudden provocation. (sudden is key here). Provocation can come from an insult or wrongful act, but it can t be an act or an insult that you have a legal right to do. (means, you can t provoke somebody by discharging a legal operation or mandate for instance, throwing someone out of a bar can t provoke you). Sec 232(2) 3 requirements

y

Bedder Case: -wants jury to consider his impotence would a reasonable person suffering from impotency lose self-control? We have to ask the question this way or else it wont make sense being ridiculed about things you don t possess is meaningless.

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Daniels Case: woman being horribly mistreated by her husband, husband a cheater in deciding whether this is a provocation in law how would a reasonable person react by being told to fuck off when looking for their husband. She was convicted Court of Appeal says this is far too narrow a perspective, you can t just tell the jury to look at the immediate events, it only takes on meaning when you open up the narrative and you know the context, the proper way to tell the jury is, would a reasonable person, whose husband cheats, looks for husband, confronts mistress, and is told to fuck off. To understand the nature of the insult, you have to understand the context of it.

R. v. Hill

Facts: Hill charged with first degree murder. His version of events were he was subject of unwelcome homosexual advances by Pegg (deceased), as a result, he hit him in the head with a hatchet, Pegg threatened to kill Hill so he then stabbed in twice in the chest. Claimed self-defence and provocation.

Dickson J. we will on the ordinary person test, take into account subjective features if they are relevant to the insult if its racial your race is relevant if its gender gender is relevant But he s not opening up the analysis, only three features: 1. Sex 2. Age 3. Race These are limited because these are things you see, you see Hill, see him as young, you don t have to be told on the provocation charge whether an ordinary 16 year old boy because they will unconsciously do this this opens it up a little bit, but not much just assumes juries will ask the question without being told in this case. Thus, the trial judge did not err in not specifically directing the jury to incorporate these factors, instead, it is reasonable that the jury would have already inferred this. Test For Provocation: 1. Would an ordinary person be deprived of self-control by the act or insult? a. The ordinary person test is determined by objective standards reasonable person test not exceptionally excitable, pugnacious, or in a state of drunkenness. Age race and sex if that s what the insult is about, but these are kind of obvious. 2. Did the accused in fact act in response to those provocative acts; in short, was he or she provoked by them whether or not an ordinary person would have been? a. The second test, as to the loss of self-control by the accused is determined by the evidence from the surrounding facts (subjective test). Just because a reasonable person would lose self-control, you have to show that you actually did lose self-control (thick-skinned individual - character, background, temperament, idiosyncrasies, or the drunkenness). 3. Was the accused s response sudden and before there was time for his or her passion to cool? a. Determined through the facts

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Note: We can use Wilson as a defence position that puts the insult into context, and makes it appear that it is a far more significant insult.

Camplin Test: the ordinary person, for the purposes of the objective test of provocation, was to be an ordinary person of the same age and sex of the accused. This would allow a particular physical attribute such as the accused s age to be taken into account for the purpose of evaluating the gravity of the provocation.

Decision: in applying the objective test, they must conceptualize an ordinary person who is male and young. The accused is before them, he is male and young. It was not necessary to direct the jury that the ordinary person means an ordinary person of the same age and sex as the accused. I would therefore allow the appeal and restore the conviction. Dissent: Judge erred when he gave instructions to the jury tantamount to excluding age as a relevant actor in their consideration of the first leg of the provocation test. In all likelihood, the jury understood that the objective test excluded consideration of age while the subjective test no longer restricted them. KEY: The jury must be instructed to put themselves, as the embodiment of the ordinary person, in the accused s shoes to the extent that they perceive themselves as confronted with a remark that has the same insulting effect on them as the actual remark has on the accused. Age: we expect young people to have different reactions than young people young people don t have the capacity of adults.

R. v. Ly Facts: Ly strangled his wife, but claimed provocation on the grounds that his wife s suspected infidelity had caused him to lose face and honour , and this had a special importance to him because of his Vietnamese upbringing. Don t ask, it is none of your business was the act or insult which caused the accused to be deprived of self-control.

Judge s direction: The ordinary person is the ordinary, reasonable person represented by you, members of the Jury, not this particular accused man. In short, the trial judge told the jury that they should not take into consideration on the first question the reaction that an average Vietnamese male would have as a result of his cultural background to infidelity on the part of his wife. Appellant argues the trial judge erred by not including the aspects of his background for the first round of test.

SCC on 1st leg of test: in terms of other characteristics of the ordinary person, it seems to me that the collective good sense of the jury will naturally lead it to ascribe to the ordinary person any general

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characteristics relevant to the provocation in question. Simply by applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the ordinary person . The ordinary person standard is adopted to fix the degree of selfcontrol and restraint expected of all in society.

The fact that the husband was Vietnamese and came from a certain cultural background might have been relevant to the first question if a racial slur had been involved, but that is not the case.

Thibert Case: The wrongful act or insult must be on the could, in light of the past history (daniels) deprive an ordinary person of the same age and sex, and sharing with the accused other factors that would give the act or insult in question a special significance. - this is basically Wilson J. test R. v. Young Facts: Young stabbed his girlfriend 20 times after she told him their on-again-off-again relationship was firmly over. D alleges provocation from words used by the victim in the context of terminating the relationship. Decision: Appeal dismissed Ordinary disappointments in life argument: Even if the appellant s version is accepted the victim s words do not constitute a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control. The evidence shows the victim had been repeating much the same thing to Young over the previous four hours or more. Initially, the words may have shocked him; by the time they were leaving the apartment for the 2nd time, the shock effect had evaporated through repetition.
R.V. THIBETRT (1996) (PAGE 951) R. V. NAHAR (2004) (PAGE 955) R.V. PARENT (2001) (PAGE 962)

AUTOMATISM INSANE AND NON-INSANE AUTOMATISM AND EMOTIONAL BLOWS (VOLUNTARINESS) Automatism: involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he is doing. two forms of automatism (automatism = impaired consciousness) are recognized at law a.non-insane automatism

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arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal.  malfunctioning of the mind which is the transient effect produced by some specific EXTERNAL factor (e.g. Concussion). b. insane automatism


  

arises only where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the defense of mental disorder malfunctioning of the mind arising from some cause that is primarily INTERNAL to the accused, having its source in his psychological or emotional make-up a successful defence of insane automatism will trigger s.16 of the CC and result in a verdict. accused may be retained for life in a mental institution

RABEY V. THE QUEEN (1980)

Facts: The accused hit the victim over the head with a rock after he found out (read a note in her book) that she considered him ³a nothing´ and ³just a friend.´ It was argued that this was a psychological blow that induced a state of automatism. Decision: rejected the defence of non-inane automatism; sent back for a new trial Issue: The central issue was whether a dissociative state constituted a "disease of the mind". Reasoning: y The ordinary stresses and disappointments of everyday life are an external cause (noninsane). The dissociate state produced by the psychological blow must have its source primarily in the accused¶s makeup (insane automatism) y If a normal person would not be so affected = disease of the mind y If a normal person would be so affected = not a disease of the mind y If we don¶t know, the presumption is that it¶s internal (goes with the policy of protecting society) Ratio: Accused went into automatistic state after being exposed to the ordinary stresses of life, therefore the dissociated state must have had its source in the accused¶s psychological make-up, making it a disease of the mind (insane automatism).

SLEEPWALKING ± R. V. PARKS (1992)

Facts: While ³sleepwalking´ Parks drove 23 km to his in-laws house and killed his mother± in-law and seriously injuring his father-in-law. He had no motive for doing so. He had been under a lot of stress with work and sleep disorders ran in his family. Decision: Not guilty by reason of non-insane automatism Reasoning: His illness is a sleep-disorder; this is something ordinary and is not a disease of the mind. Sleepwalking, however, could still be a ³disease of the mind´ in the right circumstances. Lamer wants to ensure that this doesn¶t happen again by having some type of probationary order. He can¶t do this b/c under non-insane automatism, there is an absolute acquittal.
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Ratio: Sleep-walking is not a disease of the mind, it is a sleep-disorder. (if not disease in the mind, then non-insane automatism ± acquittal) Mandel: y y y Seen as a transitional case ± now judges have more leeway, not just 2 stark options (absolute discharge or insane asylum). Judges who want control over the sentencing will likely opt for insane automatism This case calls into question the external/internal cause theory b/c this would clearly be internal (insane) but they must have wanted to acquit. Their solution is to say it¶s a bit of both (but that¶s true in all cases) in order to escape rule. Policy driven case; the judges did not want to convict him of insane automatism because that would require detention so they made an arbitrary decision between mental disorder and sleep disorder

R V. STONE (1999)

Facts: Accused stabbed his wife 47 times, after she insulted him. Accused found guilty of manslaughter and was sentenced to 7 years in jail. Decision: Convicted of manslaughter. Reasoning: y Burden of proof: Previously, the burden for non-insane was the same as for regular defences The defence must simply raise the issue (evidentiary burden) and then the Crown must disprove it beyond a reasonable doubt. Now the defence must satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. Only then can the issue be put to the jury. In other words, the defence must prove involuntariness on a balance of probabilities (expert evidence must corroborate this).

Procedure: 1. Defence claims automatism

2. Defence adduces evidence of automatism/unconsciousness, including: y Expert psychiatric testimony (mandatory) y The severity of the triggering stimulus y Documented medical history of automatistic-like dissociative states y Corroborating evidence of bystanders that accused was ³glassy-eyed,´ etc. y Corroborating medical history of automatistic-like dissociative states y Whether there is motive for the crime y Whether the alleged trigger of the automatism is also the victim of the automatistic violence 3. Trial judge decides if there is evidence capable of convincing a jury that the accused acted involuntarily on a balance of probabilities
4. If there is, trial judge decides then the disease of the mind inquiry (Stone):

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y

Start from the position that condition is a disease of the mind, then work through:
1. Internal cause theory
1.

would a normal person have reacted to the alleged trigger (psychological blow) by entering into an automatistic state? If not then it might be a disease of the mind.

o Existence of an internal cause is more relevant in cases where a psychological blow caused automatism. o A psychological blow would have to be a extremely shocking to in order to make a normal person act automatistically. Anything else than this should be presumed to be caused by an internal factor of the accused and thus be a mental disorder.
2. Continuing danger theory:
o o

Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. If the trial finds evidence that there is a likelihood of recurrence of violence, in particular the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur.

3. public policy reasons: o the need to protect the public through indeterminately detention or conditions. So diabetics, epileptics and sleepwalkers are not mental disorders. o How absurd would the result be of letting accused go? y Trial judge leaves one or the other, but not both defences with the trier of fact y Reaffirms judgement in Rabey y Note: judge determines whether its insane or non-insane y 3 reasons why significant: redefines automatism, changes burden, changes def¶n of disease of mind so it returns to Rabey Ratio: legal burden in cases involving automatism is on defence to prove involuntariness on a balance of probabilities ± this is justified under s.1.
R. SWABY (2001) (PAGE 304)

MENTAL DISORDER

y

s. 16(1) ± no person is criminally responsible for an act committed or an omissions 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 Facts: Chaulk and Morissette entered a home, plundered it for valuables and stabbed and bludgeoned its sole occupant b/c he was a ³loser.´ Claimed that they suffered from paranoid psychosis which made them believe that they had the power to rule the world and that the killing was a necessary means to that end. Accused convicted and appealed. Issue: What is the meaning of "wrong" in a legal context? Decision: Appeal allowed. They were acquitted.
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R. V. CHAULK AND MORRISSETTE ± KNOWING THAT THE ACT IS WRONG

. Ratio: Moral wrong is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong. Wrong must mean more than simply legally wrong. wrong means morally wrong. A person may be aware that an act is contrary to law but by reason of disease of the mind is at the same time incapable of knowing that the act is morally wrong.
R. V. SIMPSON (1977 OCA)

Reasoning: The term ³disease of the mind´ is a legal concept,. It is the function of the psychiatrist to describe the accused¶s mental condition and how it is considered from the medical point of view. It is for the judge to decide whether the condition described is comprehended by the term ³disease of the mind.´ While the existence of disease of the mind is a necessary condition of insanity, its existence alone does not constitute insane unless it exists to an extent that renders the accused incapable for appreciating the nature and quality of his acts. Also stands for the proposition that as long as you understand nature and quality, you don¶t have to have appropriate feelings of guilt or remorse, even though the lack of these feelings stems from a disease of the mind.
COOPER V. THE QUEEN (1980 SCC)

-He knew that he was choking but did not know that he was killing. When asking if he appreciated the nature and quality of his act, what we are asking is the MR. MR or the intention of as to the consequences of an act is a requisite element in the commission of a crime. So an accused who is unable to appreciate the physical consequences of his actions because of a mental disorder will have a valid s.16 defence.
Psychopathy: know what they are doing, that it is wrong but they lack human empathy. They do not know the impact it has on the victim. Could you claim the insanity defence? Appreciation is physical consequence. Martin J.: accused does not need feelings and the absence of the feelings does not matter in criminal conduct. Insanity defence does not apply to these people. R. V. ABBEY (1982 SCC)

Facts: Charged with importing cocaine. Said he suffered from hypomania. He knew what he was doing was wrong, but he believed that he would be protected from punishment (by some external force). Also thought he was irrevocably committed to the task ("irresistible impulse"). Was found not guilty at trial. Issue: How do you define the nature and quality of one¶s acts? Is there a defence of irresistible impulse? Decision: new trial ordered Reasoning: A delusion which renders a person incapable of appreciating the penal sanctions (see facts thought the law did not apply to him) attached to the commission of the crime does not go to the mens rea of the offence and does not render him incapable of appreciating the nature and quality of the act. His inability to "appreciate" the nature of the legal consequences is irrelevant to the question of legal insanity.
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There is no such defence as "irresistible impulse" (dissent in Borg). An irresistible impulse, however, may be a symptom or manifestation of a disease of the mind which may give rise to a defence of insanity (i.e. it may be proof that he didn't know what he was doing). However, jury is not entitled to infer that he is insane. If there is medical evidence of disease of the mind and the only symptom is irresistible impulse, the jury may conclude that he is insane. Ratio: While the concept of appreciating the nature and quality of the act requires an understanding of the consequences of the act, this refers to the physical consequences of the act. Significance: irresistibility is not recognized as a defence but the case allows it into the evidence because it could be relevant in determining whether an accused qualifies for a mental disorder defence (appreciated the nature and quality of their acts).
R. V. OOMMEN (1994 SCC)

Facts: The accused suffered from a paranoid delusion and believed that the woman he shot was part of a conspiracy to kill him. He knew that society in general would regard his acts as wrong even though subjectively he did not believe his act to be wrong. Convicted. Issue: Did the disorder render the accused incapable of appreciating the nature and quality of the act or knowing that it was wrong? Decision: Appeal allowed; new trial ordered Reasoning: The question is not whether a reasonable person would have sensed a threat to life and a need to use force, but rather whether the accused b/c a mental disorder at the time deprived him of the capacity for rational perception and choice between right and wrong (not his general intellectual ability to know right from wrong but his belief at the time the crime was committed).

Must suffer from a mental disorder and which renders them either: 1)incapable of appreciating the nature and quality of the act or ommission o An understanding of the consequences of that act (Cooper) o inability to appreciate the penal consequences of action so does not mean that one does not appreciate the physical consequences of ones actions (Abbey). o inability to have appropriate emotions about the effect of the act does not result in a defence (simpson) o inability to apprecaite the moral consequences does result in the defence (Landry) OR 2)incapable of knowing that it was wrong. o Wrong = immoral , not illegal. Did not know that it was morally wrong according to the standards of reasonable members of society, even if they were capable of knowing that the act was legally wrong. (Chaulk)--> there is a distinction between the accused's moral code and his ability to know society's moral standards. o Even if generally capable of knowing that killing was wrong could have an insanity defence if his paranoid delusion "at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness
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or wrongness of the act." (Oommen) --> this might expand the defence too far by allowing psychopaths who assert their own moral code over society's.

INTOXICATION
SECTION 16 CC

R.V.BERNARD(1988) (PAGE 805) R.V. ROBINSON (1996) (PAGE 841)

EXTERME INTOXICATION R.V. DAVIAULT (1994) (PAGE 826)

Leary Rule - intoxication was irrelevant for sex assault (general intent) Bernard Case sex assault, post-charter, lawyers say way crimes are divided into specific/general intent violates principles of fundamental justice by a narrow margin Leary rule was upheld but half court wondered whether the rule should be changed.

Dickson J. likes what the Australians do no special rules juries are sensible, just let the jury hear the evidence they can figure out if intoxication impacts mens rea.

The O Connor Case: concluded that for all offences requiring proof of a mental element, evidence of intoxication, whether self-induced or not, was relevant and admissible in determining whether the requisite mental element was present.

**Wilson J. for policy reasons we need to keep the distinction for specific/general now, for general intent we will allow intoxication to be introduced if it is extreme akin to automatism or insanity. This becomes Daviault position in 1995. R. v. Daviault

Facts: Sex assault of an old woman - D claims he blacks out after drinking a bottle of brandy estimating his blood alcohol at 400-600 mg only reason Daviault can consume this much is because he has the higher tolerance from being an alcoholic this is a case of extreme intoxication as Wilson J. identified as a possible automatism claim.

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Drunkenness is not a true defence, however, it may be of significance and applicable in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime. Drunkenness could not be a relevant factor in offences requiring only a general intent. In these offences, the mens rea can, as a rule, be inferred from the actus reus itself, since the person is presumed to have intended the natural and probable consequences of his actions. Extreme intoxication akin to automatism or insanity should, like insanity, be established by the accused on a balance of probabilities. Thus it is appropriate to place an evidentiary and legal burden on the accused to establish, on a balance of probabilities, that he was in a state of extreme intoxication that was akin to automatism or insanity at the time he committed the offence. New Intoxication Rules: For ordinary intoxication that doesn t result in dissociation we apply the Leary Rule. Relevant for murder/attempted murder/party liability. If the level of intoxication is extreme, and verified by expert evidence, and we prove extreme intoxication on a balance of probabilities, we will let that intoxication to be considered to determine if they formed the mens rea in a general intent. TEST: The Charter could be complied with in crimes requiring only a general intent, if the accused were permitted to establish that, at the time of the offence, he was in a state of extreme intoxication akin to automatism or insanity. The accused must bear the burden of establishing, on the balance of probabilities that he was in that extreme state of intoxication (persuasive burden). This will undoubtedly require the testimony of an expert. Conclude strict application of Leary Rule offends sec. 7 and 11(d) of the Charter. AFTERMATH: Sec. 33(1) response to Daviault codified response self-induced intoxication put the Leary Rule into the code. Offences where there is an element of assault, or an interference of bodily integrity. 33.1 returns to the general intent assault is general intent drinking makes you at fault.
Bernard v. The Queen (1988) SCC (sexual assault and intoxication) FACTS: Drunk accused forced complainant to have sex he said when he realized what he was doing, he stopped. HELD: Both ½ majorities hold that sexual assault is a general intent offence. Differ in whether intoxication can go to general intent offences McIntyre (½ MAJORITY): Drunkenness is only relevant for specific intent offences (if it raises a RD as to the specific intent). For general intent offences, MR can be proven in 2 ways: 1) Can infer MR from AR (persons presumed to intend the natural consequences of their acts), OR 2) where accused so drunk as to raise reasonable doubt as to voluntariness, proving voluntary self-intoxication will be enough. Not unconstitutional b/c they are not morally blameless Wilson (½ MAJORITY): Although Crown will be able to prove MR by inference from actions in most cases of general intent offences, CANNOT substitute MR of self-intoxication for MR of general intent offence (i.e. if drunkenness raises a RD as to MR of general intent, then should acquit). Although these people are not morally blameless, punishing them for crime is disproportionate to their moral blame of getting drunk.

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Dickson (DISSENT): Should get rid of dichotomy b/w general and specific intent offences. Should let jury decide (if it raises a RD as to intent, doesn t matter whether it is general or specific intent). True that more acquittals will occur w/ specific intent, but that is b/c of nature of the MR (juries will come to correct decision on their own) NOTE: s.273.2(a)(i) now makes self-induced intoxication not relevant consent in sexual assault s.33.1 Self induced intoxication not relevant to any violent general intent offences R. v. Penno (1990) Intoxication is not a defense to intoxicated driving (i.e. where intoxication is part of the offence). Extreme Intoxication and General Intent R. v. Daviault (1994) SCC (really drunk sexual assault) FACTS: Accused extremely intoxicated when he sexually assaults complainant. Brings constitutional challenge to Leary rule that intoxication cannot negate MR for general intent (s.7 liberty and not in accordance w/ PFJ and also s.11(d) b/c can convict w/o MR BRD) HELD: IF AND ONLY IF intoxication reaches point where a person is in a state akin to automatism or insanity, then it will be a defense by negating MR or voluntariness (needed for AR) - Accused would have to prove this on BOP (unlike most defences where just have to raise RD similar to mental disorder defense which also requires BOP). - Have to introduce expert evidence b/c accused must be INCAPABLE of forming the general intent (goes against Robinson which says capacity irrelevant but different b/c talking about general intent, not specific intent) - Don t have to have perfect symmetry b/w fault element and external element, but have to be linked (cannot substitute intent to drink w/ intent to commit sexual assault s.33.1 codifies that this substitution is OK). - If Parliament wanted to, they could enact an offence like assault while drunk , which would be OK b/c no substitution would be needed DISSENT: Self-intoxicated people are blameworthy enough to satisfy PFJ (Creighton rejected symmetry as constitutional principle) NOTE: Parliament very quickly responded s.33.1 Self-induced intoxication is NOT a defense to offences that include as an element assault or any other interference or threat of interference by a person with the bodily integrity of another person (i.e. violent general intent offences) Daviault defense would therefore still apply to non-violent general intent offences (e.g. a general intent property offence) This amendment still needs to survive a Charter challenge (if it doesn t, may have to enact new drunken assault offence) Could uphold under s.1 if they can sneak around s.7 and only find violation of s.11(d) (b/c minimal to violent offences)

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Criminal procedure
1. 2.
a.

Principles of sentencing The limits of Criminal Law
Constitutional Division of Powers Introduced

Reference re Firearms Act (Can) [2001] (SCC) Facts: Federal Gov amends the CC via the Firearms Act (1995). Gov. of AB challenges on the grounds that the Feds are regulating property and civil rights, a provincial head of power (92(13)). Issues: What is the pith and substance of the act and under whose jurisdiction does it fall. Decision: The Act is upheld as Constitutional. Ratio: The pith and substance of the act is clearly to enhance public safety. Any regulatory aspects are secondary to its criminal purposes. In addition, the intrusion of the law into provincial jurisdiction is not so great as to upset the balance of Federalism. Obiter: Parliament are within their rights to pass legislation to attempt to prevent immoral acts or to use the criminal law to regulate activities with little relation to morality.

b.

The Canadian Charter of Rights and Freedom
(1) General

See Canadian Charter of Rights and Freedoms (1982), especially: Sec 7 -right to life and liberty Sec 11(d) - presumption of innocence Sec 1 - rights subject to reasonable limits , being entrenched by sec 1-32 of the Constitution Act( 1982) + section 52 of the Constitution Act:

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(1) The Constitution of Canada is the Supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, Of no force or effect.

See page 39-40 (case book) (2) What can be made Criminal R. v. Malmo-Lavine; R v. Caine (2003) (SCC) Facts: Pre-trial motion arguing that relevant sections of the Narcotics Control Act are unconstitutional. (If leg. is struck down, no law left to prosecute with). Appeal was also dismissed by BCCA. Issues: (Based on the two distinct arguments of the defendant). Is the prohibition of possession of marijuana beyond the Constitutional powers of Parliament (i.e. if there is no criminal harm, then the Feds cannot legislate against it)? Does the prohibition violate s. 7 of the Charter? If so is it justified under s. 1? Decision: Prohibition of marijuana is not beyond the Constitutional powers of the Federal government. The prohibition does not violate s. 7 of the Charter. Ratio: Ratio in two parts: separation of powers argument and charter analysis. Separation of powers: SCC agrees with the CA finding that there is a group of people who are vulnerable to harm from marijuana. Therefore, it is within Parliament s discretion to legislate to protect groups (in this case vulnerable people) from self-inflicted harm even though it is legal moralism. The courts will uphold Parliament s decision on grounds of legal moralism as laid out in the obiter of Butler. S.7 Challenge (Charter analysis): Gonthier admits that liberty is violated but addresses question of whether or not the harm principle is a PFJ. Determines it is not. Based on BC Motor Vehicles Act (PFJs are internal to legal system) and the following 3 part test for PFJs set out by Sopinka in Rodriguez: 1) They must be core legal principles 2) There must be sig. societal consensus that they are fundamental to the way the system ought to operate o 3) They must be identified with some precision. Gonthier proceeds to show all three tests fail. Gonthier then deals with underbreadth argument (if we allow alcohol and cigarettes, must also allow marijuana) by stating it is not the place of the courts to define the outer limits of legislation and the priorities of Parliament. o o Dissent: Arbour says harm principle is a PFJ.

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Code: Malmo is very precise and so cannot rewrite using the Charter as in Sharpe, Butler. Also, while harm principle used in majority of cases, it is not the only basis on which to legislate crime (moral as well, some crimes like murder, theft, based on both principles). Basic ratio of Malmo-Levine: harm principle is NOT a principle of fundamental justice nor is it a requirement of the exercise of criminal power. But this does not mean that it isn t a perfectly reasonable basis upon which parliament can legislate. -they didn t say parliament can t legislate on the basis of harm; criminal law is generally made up of a blend of harm-based and morals-based legislation. Court only rejected idea that it was the sole/exclusive basis of criminal legislation. R. v. Labaye (2005) SCC Facts: Labaye owned a bar to permit couples to meet for group sex. To do so, people had to be members, group sex only took place on 3rd floor, had to go through a numeric key pad to enter. Accused charged under s. 210(1) of CC (keeping a common-bawdy house for purpose of acts of indecency). Found guilty at trial, appeal dismissed by QCA. Issue: Were the acts committed, acts of indecency as understood in the criminal law? Holding: McLachlin sets out two part test that the Crown must prove BRD in order to establish indecent criminal conduct. 1) By its nature, the conduct at issue presents a sig. risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in the Constitution or similar fundamental laws by, for example: o a) confronting members of the public with conduct that sig. interferes with their autonomy or liberty o b)predisposing others to anti-social behaviour or o c) physically or psychologically harming persons involved in the conduct. o 2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. Decision: Since Labaye s conduct did not meet the outlined test, the appeal was allowed and the conviction was quashed. o Code: Not a Charter challenge. Another case of the courts bringing certainty to broad, vague legislation. Essentially saying Parliament s intent was to enact the harm principle. -somewhat ironic result: 2003, Malmo-Levine, they reject harm principle as having constitutional status, but in Labaye, they say harm-principle is very helpful in distilling parliament s intent.

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R. v. Kouri (2005) (SCC) Companion case to Labaye. Had looser controls over the bar then Labaye. Also found not guilty under test set out in Labaye.

(3) section 1 - Reasonable Limits
R. v. Oakes (1986) (SCC) Facts: Oakes charged with possession of narcotics for the purpose of trafficking. Under Narcotic Control Act s. 8, crown only has to prove possession beyond a reasonable doubt; if they do, accused must establish he was not in possession for the purpose of trafficking (reverse onus). As a result, an accused could be convicted of trafficking despite a reasonable doubt. Issue: Is the reverse onus clause in s. 8 unconstitutional under s. 11 (d) of the Charter? If so, can it be saved under s. 1? Decision: Appeal allowed. The clause violates s. 11(d) and is not saved under s. 1. Ratio: (Dickson): By creating a reverse onus on the accused, s.8 of the Act violates 11(d) of the charter b/c they could be found guilty on a balance of probabilities. Violates right to burden of proof BRD (stems from not wanting to convict the innocent). Lays out two part Oakes test: 1. State¶s objective must be pressing and substantial 2. The means chosen must be reasonable and proportional. o i) Rational Connection - The measures must be designed to met the objective o ii) Minimal Impairment - Means should impair as little as possible the right in question o iii) Effects Balance - Proportionality b/w limiting measures and the objective. Found to be unconstitutional as there is no quantum of narcotics that shows the pressing need where reverse onus comes into effect. Fails rational connection test (2i) o o

R. v. Oakes Facts: Oakes was in possession of eight 1-gram vials of cannabis resin in the form of hashish oil. Issue: Does reverse onus of NCA violates section 11 (d) of the Charter? Reasons: The government of Canada places a persuasive burden on the accused to disprove the trafficking. Reverse Onus. Presumptions evidentiary shortcuts, such as B an E, or sec 212 pimping. For Oakes to win this case, he would have to testify to show that he possessed the hash, and use it, not traffic it. TEST: Reverse Onus Justified If 1. the magnitude of the evil sought to be suppressed, which may be measured by the gravity of the harm resulting from the offence or by the frequency of the occurrence of the offence or by both criteria; 2. The difficulty of the prosecution making proof of the presumed fact; 3. The relative ease with which the accused may prove or disprove the presumed fact.

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2nd Test: The rational connection test, to be reasonable, the proven fact must rationally tend to prove the presumed fact (ie- possession to intention to traffic). OAKES TEST The Court has emphasized that the OAKES test is not a mechanical exercise, but one that attempts to balance the interests at stake within a given context. TEST In order to establish that a limit is reasonable and demonstrably justified in a free and democratic society, two criteria must be established. 1. Sufficient Importance The government must show that its objective is sufficiently important to warrant a violation of a right or freedom. The objective must be pressing and substantial before it can be characterized as sufficiently important to justify the restriction. 2. Proportionality The government must prove that the violation of the right or freedom is proportionate to its objective, and reasonable and demonstrably justified in a free and democratic society. This involves a proportionality test where courts balance the interests of society with those of individuals and groups. a. Rational Connection The violation must be rationally connected to the objective (it must be necessary to achieve the government s objective) The measures adopted must be rationally connected to the achievement of the objective in question they must not be arbitrary, unfair, or based on irrational considerations. b. Minimal Impairment The means, even if rationally connected, should impair as little as possible, the right of freedom in question. The violation must minimally impair the right or freedom (the government did not go overboard in achieving its objective) Are there alternative modes of furthering Parliament s objective that infringe the right to a lesser extent? The legislation cannot be overbroad or unduly vague. c. Detriments versus Benefits The detriments of the violation must not outweigh its benefits (the solution must not be worse than the problem). Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? The legislation may not produce effects of such severity so as to make the impairment unjustifiable. In other words, we will accept a greater infringement for a greater objective. We will not tolerate as much an infringement that is based on a meaningless objective. If the legislation fails any of the above branches, it is unconstitutional. Otherwise it passes the Oakes test and remains valid.

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3.
a.

Legal Principles, The rule of Law, and the Trial Process
The Principle of Legality

(1) Fair Notice ( and in Hall read on bail release) S. 7: VAGUNESS AND OVERBREADTH

R v. Heywood [1994] (SCC) (leading case on overbreadth) Facts: Accused charged under s. 179(1)(b) of the CC, which made it an offence for a person with past sexual violence conviction to be found loitering in or near a school ground, playground, public park or bathing area. Issues: Is the statute overbroad and/or too vague? Decision: The majority strikes down the provision as unconstitutional on the grounds of overbreadth. Ratio: In the case of overbreadth the law is much too sweeping to achieve its objective. Look at whether or not the means are necessary to achieve the objective of the state. In this case the definition of geography, the temporal aspect, the number of persons it encompasses and that the prohibitions may be enforced without notice make the offence overbroad. Do support s. 161 of the CC (enacted after the CA ruling in this case). (From Code: Both concepts of vagueness and overbeadth are rooted in libertarian ideals in that they ensure that not too many people are caught and have their rights restricted) Dissent: Restriction is directly related to prevention. Ignorance of the law is never an excuse. Canadian Foundation for Children, Youth and the Law v. AG Canada (2004) (SCC) Facts: s. 43 of the CC authorizing use of force by parents and schoolteachers by way of correction toward a pupil or child if the force does not exceed what is reasonable under the circumstances. Correction and reasonable the problem words here Issues: Is s. 43 void because of vagueness or overbreadth? Decision: SCC majority upholds the legislation. Ratio: On vagueness: o o o The purpose of the vagueness provision is to provide precision to delineate the zone of risk and prevent discretionary law enforcement. s. 43 clearly states who can punish children and that they can do so only for corrective purposes. Issue then is the reasonableness of the force applied. McLachlin reads in limitations on the statute based on social science evidence (1. not to cause harm or raise a reasonable prospect of bodily harm; 2. Not to be applied to teenagers, or Page | 290

children under two; 3.Objects cannot be used; 4. Cannot involve slaps or blows to the head; 5. Teachers may use force to remove children or secure compliance but not as corporal punishment). o Therefore a consistent picture of s.43 develops and so it is not overly vague. o (*Note: Code cites this as an ex. of the courts as law makers and seemed to not approve). Dissent: Arbour and Deschamps dissent that this is an inappropriate function of the courts and that by decreasing the scope of defence, you increase scope of offence (McLachlin responds that it is the job of the courts to interpret statutes).

Bail: Judicial Interim Release Detention prior to trial involves a violation of the presumption of innocence. This presumption involves: o An accused is deemed to be innocent prior to trial o An accused is entitled to a trial to test the accusations o The status of innocent is only removed if the state can prove their offence on a high standard Bail thus provides a means of abiding by the presumption of innocence. Charter rights: o 11(d) presumption of innocence o 11(e) right not to be denied reasonable bail without just cause qualified right! S.495 and its speedy release provisions are designed to help comply with these charter rights

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2 kinds of bail hearings: 1. s. 515 (for all but 469 offences): in front of JP or ProvC judge - the onus is on the Crown to prove the necessity to keep the accused in custody or to append conditions to his release 2. s. 522 (469 offences): reverse onus - the accused must justify his release and the hearing has to be in front of a superior court judge.

Statutory Structure 503: where arrested without release, taken before Justice (see above section) 515(1): order of release unless guilty plea by accused accepted, accused shall be released on his giving an undertaking w/o conditions, unless prosecutor shows why another order should be made. Presumption is in favour of bail ( shall ) 515(6) qualifies this presumption by creating reverse onuses Page | 291

Exception for s.469 offences, which are the exclusive jurisdiction of the Sup. Ct. See provisions in s.522. - 522: same as 515 except in Sup Ct., and reverse onus on accused to bring a bail hearing. 515(2): Generally, the accused should be released unconditionally (giving undertaking) unless Crown can justify another order (no release, or the addition of conditions). - (a) basic undertaking with restrictions - (b) recognizance, without sureties, in any amount but without deposit - (c) recognizance, with sureties, in any amount but without deposit - (d) recog without sureties, but with deposit of any amount (on Crown consent) - (e) where not resident (200 km), cash deposit, with or without sureties. 515(2.1): power of justice to name particular persons as the sureties in the order 515(2.2): right to appear by teleconference at bail hearing 515(4): conditions authorized (burden on Crown to request and justify): (a) report to officer; (b) don g leave territory; etc., (4.1) prohibition on possessing firearms; (4.2) prohibit communication with victim, witness, etc. 515(5): reasons must be given if detention is determined to be justified, so that review is possible 515(6): Reverse onus on accused: justice shall order detention unless accused shows cause for no detention, in certain offences: - (a)(i) charged with indictable offence while on release from a different indictable - (ii) criminal organizations charge - (iii) terrorism offences - (iv, v) security of official secrets offences - (b) indictable offence and not ordinarily resident of Canada - (c) failure to appear or failure to comply with previous bail orders (any offence) - (d) drug offences carrying a life in prison possibility: trafficking, importing, cultivating 515 (7, 8): if onus on accused per 515(6) and accused has been released, the same types of release are available, but accused must show why conditions shouldn t be imposed. 515.1: Variation of undertaking or recognizance With written consent the Crown can vary conditions where released by police or J after bail hearing

522: murder (s.469) bail provisions. Key features: (1) is heard in Sup Ct, not prov. ct. (2) automatic reverse onus on accused (4) no review of sup. ct. bail under s.520; must go to CA per s.680. The 515(10) substantive tests are adopted

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The Substantive Test for Release (In cases of s.469 indictables, s.522(1) applies on the same grounds) 515(10): justifications for detention in custody (& intrusive conditions upon release) (a) Primary: Risk of Flight: to ensure attendance in court. Applied where accused is a flight risk. o Factors include roots in community, prior non-compliance with bail, nature of offence and penalty, strength of evidence. - (b) Secondary: Public Safety: to ensure the protection or safety of the public, including victims/witnesses, having regard to all circumstances, including substantial likelihood that accused will commit offence if released, & that this cannot be dealt with using bail conditions. o Factors include prior criminal record, nature of offence and penalty (livelihood crime?), whether motive continues if released, history of risk to public, opportunity to tamper with evidence, etc. o Most problematic: presumes that the accused is the person who committed the offence - (c) Tertiary: Public Interest: where detention is necessary in order to maintain confidence in the administration of justice, having regard to all circumstances, including apparent strength of Crown case, gravity & circumstances of offence, etc. o broad construal struck down in Morales. In R. v. Hall (2002) any other just cause clause in the reenacted provision invalid but the where detention is necessary to maintain confidence in administration of justice clause was narrowly upheld *Crown must show that one of these elements can t be dealt with by bail conditions *If s.522 reverse onus, accused must satisfy all of these Adjournment of Bail Hearings 516: justice has power to adjourn bail hearing for up to three days Publication ban 517: publication ban, mandatory on application by the accused, discretionary on Crown application. Lasts until the prelim. Does not cover identity of the accused or outcome of the proceedings. Evidentiary Rules and Procedure in Bail Hearings 518(a): justice may make inquiries on oath or otherwise of and concerning the accused, as he considers appropriate. Like the inquisitorial system. Hearsay will be admissible. Qualifies right to silence. 518(e): justice may determine what evidence he thinks is credible. Allows hearsay. 518(b): the accused shall not be asked questions about the defence, unless by defence counsel, and no cross-examination by the Crown of accused unless accused testifies about the offence.

518(c): character evidence relevant: Crown may lead various antecedents, and judge may ask the accused questions on this whether or not he chooses to testify. 515(c)(iv) can be questions about the circumstances of the offence, often relates to the 515(c) public interest rationale. With
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518(e), this can be done on hearsay! Crown can addice any relevant evidence: prior criminal record, prior breaches of bail to show circumstances of alleged offence.
--- this is why you d want a 517 publication ban Conditions of Release: s. 515(4), (4.1), (4.2)

515 (4)(a) report to police 515 (4)(d) not communicating with victim, witness, etc. 515 (4)(f) Basket clause: Justice can impose any reasonable condition he/she wants - broad, but not unfettered, discretion. Must relate in some way to purpose for release/detention under s 515(10) (Keenan & Stalker).
 Each case must be decided on the merits; cannot use schedule or simply defer to Crown (Major).

Release hearing: show compliance with conditions 519(1)(b): in addition to authorizing immediate release, justice can authorize release once certain conditions are fulfilled you get remanded if you can t show you ve complied. Bail Reviews Recall that 515(5) says reasons must be given. This is why. 520: gives accused right to appeal the 515 order in Superior Ct. at any time before trial. (3) allows you to be present, but present is not necessary (JOP not lost) (7)(e) gives reviewing justice powers to make new orders under s.515. Can adduce fresh evidence, re: change in circumstance etc.. Applicant bears burden of showing why change should be made. (8) accused permitted to bring successive review applications (30 day wait), since reasons justifying conditions may change 521: same as 520, except Crown brings application and bears onus. 523(1): procedure: (1) bail order runs until the end of trial (2) continuously available bail review - important power (a) judge may modify or vacate the order (e.g. if accused is misbehavin ) (b) prelim judge may modify or vacate order (e.g. if Crown s case looked good at bail hearing but is revealed to be weak) (c) any remand judge can also review the order with accused and Crown consent Page | 294



These provisions do not apply to s 469 indictables, which fall under s 680 (review by Superior Court)

Bail Revocation Hearing upon Breach 524: bail conditions can be revoked; judge can issue warrant for arrest, or police officer can arrest without warrant if RPG to believe conditions have been/will be breached, or has committed an indictable offence. Review of Detention where Trial Delayed 525: automatic bail review if your case hasn t reached judge within 30 days for summary offences or 90 days for indictables. Judge can t grant bail because of delays. Note: accused always has incentive to seek own bail hearings in light of 11(b) CCRF. (9) judge can give directions to expedite trial where delay has occurred. This is a prospective remedy, done before an 11(b) breach happens.

Bail Pending Appeal s. 679: where accused has been convicted - no presumption of innocence; onus on accused for obtaining bail pending appeal much higher: - Appeal non-frivolous - Accused will surrender into custody following appeal - Detention not necessary for public interest s. 816 : Where appeal after summary conviction, superior court serving as summary convictions appeal court is enabled to release accused on bail. Section unclear re: who bears onus. s. 261: Appeal court can stay conditions: allows CA to stay driving license suspension pending appeal of impaired driving condition.
Case law R. v. Hall (2002, SCC) maintain confidence is constitutional

Facts: vicious murder in small town. Local media created significant public concern and fear that a killer was at large. H charged with murder. At bail hearing, primary and secondary grounds were not of interest, as H was local and had never left town. Judge denied bail on tertiary grounds, however, saying it was necessary to maintain public confidence in the admin of justice in view of the highly-charged atmosphere after the murder, the strength of the evidence, and other 515(10)(c) elements. Issue: does the wording of the new 515(10)(c) pass constitutional muster? Held: Yes, but certain portions severed.

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Reasons: McLachlin: The phrase involving any other just cause being shown is struck because it leaves too much room for untrammeled discretion. Without restricting the generality of the foregoing is struck as well. This leaves necessary to maintain public confidence in the administration of justice . This is not a mere catch-all, but gives distinct and sufficiently precise reasons for denying bail. The provision s purpose is important in a case like this, where the Crown s case is strong and the crime heinous. S.1 analysis: this provision is not vague, since it is much narrower than public interest and limited to reasonable community perception of the public interest. It is not overbroad because the judge must determine whether denial of bail is necessary to a specific goal of maintaining public confidence; further, there s four enumerated factors. Further, it s rationally connected and minimally rights-impairing. Dissent: the tertiary ground is a proper factor, but is subsumed and exhausted in the primary and tertiary factors, and once you re done those, you re just resorting to some vague and imprecise notion of public fear.

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(2) Strict Construction
4: THE RULE OF STRICT CONSTRUCTION If a penal law provision is ambiguous (capable of more than one meaning), you give it the less restrictive meaning (ie there is a presumption that is more presumptive of liberty). The accused should have benefit of less restrictive provision. 1) Interpretation Act (explicitly devoted to the subject of how we interpret these statutes. The key section is s. 12: ³every enactment is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.´ IE, you try and look at the statute to interpret what Parliament means by the statute. Try and glean the intent instead of what the words might exactly mean. Bell ExpresVu Ltd. Partnership v. Rex, et al. (2002) (SCC) Holding: Iacobucci sets out guidelines for statutory interpretation. From Driedger¶s book: o o An ambiguity must be ³real.´ There must be ³reasonably capable of more than one meaning.´ 3 rules of interpretation: o 1) Plain reading ± read it as is, plain and grammatically. o 2) Contextual interpretation ± look at other statutes around it. o 3) Statutory intent ± examine the broad principles Only after going through this test do you apply strict constructionism.

o

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R. v. Goulis (1981) (OCA) Facts: When filing for bankruptcy, the defendant did not disclose assets consisting of 1173 pairs of shoes. Is charged by the Crown under s. 350(a)(ii) of code for concealing with intent to defraud. Trial judge, followed first step of Driedger¶s rules, then proceeded to a strict constructionist interpretation. Issue: Does the word ³conceal´ in the above section of the CC refer to an active, positive act, or merely a lack of disclosure? Holding: The word conceals does refer to a positive act and not merely a lack of disclosure. CA reaches this conclusion by going further then trial judge and looking at surrounding statutory language (³removes,´ ³disposes of´) which shows that the word ³conceals´ as intended by Parliament refers to a positive act of concealment. Trial judge did first step, but not other two. Other two made it clear, so no need for strict constructionism. R v. Paré (1987) (SCC) Facts: Paré sexually assaults Duranleau. Then gets up and gets dressed. Duranleau tells Pare he plans to tell his mother. While holding his hand on Duranleau¶s chest, Pare forms intent and then murders the st nd st boy. Question as to whether it is 1 degree or 2 degree murder. 1 degree doubles time served before st parole. Under the CC, guilty of 1 degree murder ³while committing´ sexual assault. CA acquits of first nd degree and substitutes 2 . Issue: What is the correct interpretation of ³while committing?´ Must the events be simultaneous? Holding: The murder and assault were part of a single, continuing transaction and therefore the appeal should be allowed and the conviction of 1st degree murder restored. If the offence is committed as part of a continuous sequence of events, then in constitutes ³while committing.´ Ratio: (Wilson) Court concedes that a strict interpretation would indicate temporal simultaneity as necessary to convict of 1st degree murder. However points out in R. v. Stevens that ³while committing´ could also refer to ³a close temporal and causative link between the two.´ In determining which of the two to adopt, must try to determine Parliamentary intent. Parliament must have meant the latter, narrow interpretation as the former, strict interpretation creates the following problems: How is the assault defined (he put his pants back on after ejaculating, but kept his hands on the boy) o It would seem to say that thinking about murdering for two minutes before doing so makes the offence less, though instinctively it should make it worse (or at least no less serious). Therefore adopt narrow interpretation, assault part of one continuous sequence of events. o (*Note: Code has issues with reasoning. Mainly, they didn¶t have to try and make it fit under 231(5)(b) when the first degree offence is already covered in 231(2) as pre-meditation and 231(5)(e) as forcible confinement.)

R.Mac (2001) (page 27)

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(3) The Common Law Offences Look at Consent making act lawful (Jobidon and cuerrier)

(b) Neutral and Impartial Adjudication
(1) The Judge (2) The Jury See page 63-64

( ) The Presumption of Innocence (Burdens of Proof and Presumptions)
Woolmington v. D.P.P. [1935] (House of Lords) (innocence) Facts: Woolmington convicted of murder. Judge instructed jury that all the prosecutor had to do was prove the actus reus beyond a reasonable doubt. The burden then shifted to the defendant to negative the intent to kill. Defendant had met evidentiary burden of raising doubt. Issue: What is burden of proof? Holding: Prosecution must prove each element of the offence beyond a reasonable doubt. Ratio: It is a ³golden thread´ of the Criminal Law that the duty of the prosecution is to prove guilt BRD (subject to any statutory exception). For a judge to instruct otherwise takes the decision out of the hands of a jury.

Section 11(d) of the Charter provides that any person charged with an offence has the right presumed innocent until proven guilty according to law.

to be

Presumption of innocence is inextricably intertwined with proof beyond a reasonable doubt standard. A reasonable doubt is a doubt that is based on reason or common sense (not sympathy), it is logically connected to the evidence or a lack of evidence. It does not require absolute certainty. At the same time, it requires more than probable guilt. In the end, if the trier of fact is sure that the accused committed the offence then it should convict, as this is proof beyond a reasonable doubt. R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.), (reasonable doubt) This case sets out what the standard of proof beyond a reasonable doubt is Held: 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

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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. Starr [2000] Facts: In charge, judge stressed it did not require proof of absolute certainty and that reasonable doubt had no special connotation. Issues: Was judge in error? What should the description of reasonable doubt be? Holding: Judge was in error. Judge must characterize proof BRD as not only being more than probability but less than absolute certainty, but also BRD as, being much closer to absolute certainty than to probability. See also oaks (1986) (2b3) (burden of proof)

(d) The Principle of a Case to Meet(The Preliminary Inquiry and Directed Verdict) R. v. Charemski (1988) R. V. Arcuri 2001
The purpose of a PI is to protect the accused from a needless and improper exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. At the PI the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present. 537 (1.1) Gives judge the power to end any questioning that is repetitive, abusive s. 539: Mandatory publication bans by the defence is given as a right and a Crown has to persuade. s. 542. The media is precluded from publishing a confession made at the Preliminary Trial S. 549: Option to waive Preliminary Inquiry S. 550: Gives the Judge the power to make an order to direct the witness to appear in court

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Recent Amendments:

1) For a preliminary inquiry to occur the accused or the Crown must now make a formal request, per the rules of the court (s. 536(4));

2) The requesting party must provide a statement to the court and the other party setting out the issues on which the requesting party wants evidence to be given (536.3);

2) Parties can agree to limit the hearing to specific issues, and such agreement will be filed with the court (ss. 536.4(2) & 536.5);

2) Credible and trustworthy evidence in written form (i.e. written reports etc.) can be admitted (s. 540(7)), with reasonable notice (s. 540(8)), but the opposing party may request that the court require the witness to appear for questioning (s. 540(9)).

Entitlement wrt Preliminary Inquiries:
469 offences - treason, alarming Her Majesty, intimidating Parliament or a legislature, inciting to mutiny, seditious offences, piracy, piratical acts, or murder; -- those charged with s. 469 offences must have a preliminary inquiry followed by a trial by judge and jury (ss. 536(2), 469, 471) unless the preliminary is waived on consent of parties (s. 549); 553 offences (absolute jurisdiction) - those charged with s. 553 offences are not entitled to a preliminary inquiry, they must have a trial in provincial court (but see s. 555(2)); indictable offences - those charged with indictable offences, other than 553, are entitled to a preliminary inquiry, including hybrid offences where the Crown elects to proceed by indictment (s. 536(2)); summary offences - no entitlement, trial in provincial court by Prov. Crt Judge (s. 536(2));
536. (1) Where an accused is before a justice other than a provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction under section 553, the justice shall remand the accused to appear before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed. (2) If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words:

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555. (2) Where an accused is before a provincial court judge charged with an offence mentioned in paragraph 553(a) or subparagraph 553(b)(i), and, at any time before the provincial court judge makes an adjudication, the evidence establishes that the subject-matter of the offence is a testamentary instrument or that its value exceeds five thousand dollars, the provincial court judge shall put the accused to his or her election in accordance with subsection 536(2).

Why Choose a Preliminary Inquiry for the defence
 There are discovery benefits besides Stinchcombe. Preliminary trials tend is to encourage discovery (prior to Stinchcombe) and to provide a check against the Crown s case in order to assess the strength of the case. Better judges in Superior Court but higher sentences. You would get more lenient sentences charges in provincial court. An accused may choose to have a preliminary trial under 536(2): To avoid waiting for trial, to get an opportunity to attack the complainant, ask gentle probing questions to get a complete roadmap to where the defence can turn in cross examination; if you come off Gentle and kind you can get the client in a false sense of comfort. . Clayton Ruby for defence lawyers a preliminary trial is akin to what X-rays are to Doctors. You can paint the Crown s witnesses in a corner with regard to their story. Every time a witness tells their story there is a tendency that it my have slight variations, so the prelim is an opportunity to commit the witness to their story and to impeach them on cross examination. Another reason to get a PI if a witness absconds, dies, s.715 allows for preliminary testimony to be used at trial if it can be shown that the witness is , ill, absent from Canada, dead then you can read their testimony in. PI also useful to sober up the defendant as to their probable guilt if the crown has a strong case; in this way you can make sure the client is confronted with the reality of the situation that he faces. Accused may be discharged of an offence if in the judge s opinion that on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence [see. S.548(1)(b)]

 









Reasons why Crown will want a Preliminary Hearing
    Will allow the Crown to see the gaps in the case, the strength of their witnesses. Crown will want it for evidence preservation, such as testimony from a witness who may not show up at trial. Gives the opportunity to show the accused that the witnesses will testify and that the case is sound therefore crown can have the leverage when negotiating a plea agreement. Crown may not want a PI b/c of limited funds, time; may not want their witness to be subject to the vulnerable attacks of defence counsel, and they may not want that witness to testify twice.

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Why would an accused choose NOT to have a PI
  If there is a flaw in the crown s position the crown can get an opportunity to investigate further and make adjustments. If the police under-charges the client a judge may conclude that the charges are more severe and charge the accused with these charges instead. Evidence given on PI may lead the judge to conclude that there were charges that should be brought in addition to what the accused was charged for. [See s.548(1)(a)] The judge at the PI could add new charges if the evidence reveals so on the same transaction.

Preferring the Indictment:
Waiver of preliminary inquiry or committal will send case to Superior Court, where the information is replaced by Indictment which then serves as the charging document (see s. 566(1)) Crown drafts ( prefers ) Indictment under authority of s. 574(1), can include those offences that accused was committed to stand trial on (a) and any other charges founded on the facts disclosed by the evidence at the preliminary inquiry (b) Attorney General may personally prefer a direct Indictment, sending an accused to trial in Superior Court without a preliminary inquiry (s. 577(b)) In the provincial court s.504 it s an information whether a summary or indictable offence. Once the accused is ordered to stand trial in the sup court, the crown will then file an indictment in superior court under s. 566(1) Under S.574(1)(a) the prosecution is limited to what the accused was committed to stand trial on multiple information documents as long as the person is ordered to stand trial on that charge. But under (b) new charges may be added. 574. (1) Subject to subsection (3), the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of (a) any charge on which that person was ordered to stand trial; or (b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial. [Here the Crown can add new charges in the superior court if there is new evidence on the facts disclosed on the preliminary inquiry]

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Direct Indictments: [READ P. 480]

Generally the prosecutor is restricted to laying new offences based on evidence that arose on a preliminary inquiry too or based on evidence. 577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if (a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or (b) in any other case, a judge of the court so orders Example of use of s.577 was in the case of Bernardo.

Order to stand trial or discharge at a Preliminary Inq.: CCC
548. (1) When all the evidence has been taken by the justice, he shall (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction Despite the language in s.548 [if in his opinion] it is read more narrowly by the courts and the test is the same that applies at trial if an accused brings a motion for a directed verdict [in criminal proceedings] or a non suit [In civil proceedings]. I.E whether on the evidence that no trier of fact could reasonably convict the accused. R v. Arcuri (2001)S.C.C. [s.548 [ if in his opinion ]] RE: Preliminary Inq. Facts: Accused charged with 1st degree murder of Enio Mora who was to all appearances his close friend. Witness saw a car similar to that of the accused parked near his farm and two men dumping clothes that had the deceased s blood on it. The tracks at the murder scene in a nearby barn matched the accused s shoe size and the clothes were of his size. The entire Crown s evidence was circumstantial. Accused also had some witnesses testified to his being with them at around the time of the incident, in an effort to show that he didn t have opportunity to commit the murder. Accused appeals his conviction.

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Issue: Whether the evidence was sufficient to committing the accused to trial? Statute: Section 548(1) states that, after all the evidence has been taken, the justice shall commit the accused to trial "if in his opinion there is sufficient evidence", and discharge the accused "if in his opinion on the whole of the evidence no sufficient case is made out". Ratio: where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e., including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

Test: The question to be asked by a preliminary inquiry judge is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty":

The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

Dec: Appeal Dismissed. ANALYSIS OF R v. Arcuri:

Test for Committal of an accused to stand trial: S. 548(1)
The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict or an extradition judge considering whether to commit an individual for extradition, namely: Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: (U.S.A. v. Shephard), Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": Shephard. The test is the same whether the evidence is direct or circumstantial:

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The Test In Application: [I.e. whether to commit the accused to stand trial]
The nature of the judge's task, however, varies according to the type of evidence that the Crown has advanced.

Where the Crown's case is based entirely on direct evidence:
The judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed.

Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

If proof of some elements depends on circumstantial evidence:
The question then becomes whether the remaining elements of the offence may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established.

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

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Summary wrt committing an accused to stand trial:
Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true.

However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e., including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt.

Task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. NB: If the judge errs or acts unfair at the PI the only remedy for the accused is to seek a prerogative writ: Certiorari-jurisdiction error, injunction/prohibition, or mandamus, to review the exercise of statutory authority of a decision maker. There is a supervisory jurisdiction vested in the superior courts to review the actions of the PI judge.

4.

The Parties and the System

(a) The Prosecutor See page 172-175 + R. v. Stinchcombe (1991) = code of professional conduct
R v. Stinchcombe [1991] S.C.C Unanimous

Facts: The appellant was a Calgary llb charged with appropriating certain financial instruments from a client, Jack Abrams.  Stinchcombe s former secretary gave evidence at the preliminary inquiry which was favorable to the defence but the content of the testimony was not before the TJ and not in the record.

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After the prelim but b4 trial, the secretary was interviewed by the RCMP and a tape-recorded statement was taken but the Crown did not inform defence counsel of the content of the statement. Also, a later written statement was taken by another PO who interviewed her. A request for disclosure of both statements was refused. On the day of trial, defence counsel learned conclusively that the Crown indicated that she would not be called as a witness. Defence then moves before the TJ for an order compelling disclosure or to have the W be called but the TJ dismissed the application.

Issue: What is the crown s obligation to make disclosure to the defence?

Ratio: The Crown is under a general duty at common law to disclose to the defence all material evidence whether favorable to the accused or not. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant and has discretion wrt the case of disclosing information which may reveal the identity of informers.

All relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not.

Held: this obligation to disclose is not absolute; it is subject to the discretion of counsel for the Crown; and this discretion extends both to the withholding of information and to the timing of disclosure; discretion must also be exercised with respect to the relevance of information. [Need not produce what is clearly irrelevant].In the case of informers the Crown has a duty to protect their identity.

The discretion of Crown counsel is reviewable by the TJ who on review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege

4 EXAM: The right to make full answer and defence is a principle of fundamental justice protected by s. 7 and it includes a right to disclosure

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The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

Initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge.

The obligation to disclose is a continuing one and disclosure must be completed when additional information is received.

Subject to the discretion to the crown s discretion (wrt relevancy), all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses.

There is no reciprocal obligation to disclose on the part of the defence.

There is an obligation of the Crown to advise a self-represented of his obligation to disclose.

Dec: Appeal allowed and new trial ordered at which the statements should be produced.

Crown Disclosure Duty (per Stinchcombe):
The right to make full answer and defence is a principle of fundamental justice protected by s. 7 and it includes a right to disclosure. The Crown is required to disclose all relevant information in its possession to the defence.

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This obligation to disclose is on the state and as such the Crown is under a duty to seek it from the police and the police is under a duty to hand it over to the Crown. [R v. TLA]

Relevance is a low threshold, if something is logically probative of a fact in issue then it is relevant and must be disclosed.

Right is triggered by a defence request, but the Crown must appraise unrepresented accused persons of the right and courts must not accept a plea from such an individual without inquiring to ensure that accused knows of right

Timing - disclosure should be provided before an accused is called on to elect his or her mode of trial or to plea.

Form - should include all witness statements, if no formal statements given, police notes of statements or a will say statement setting out name of witness and anticipated evidence.

Withholding disclosure - prosecutors are entitled to withhold or delay disclosure in certain limited circumstances: ‡ ‡ ‡ need not disclose what is clearly irrelevant; need not disclose privileged information, I.e. informant s identity etc. may delay disclosure to protect an ongoing investigation;

NB: The decision to either withhold or delay must, however, be disclosed - so that the defence may seek review. It is the trial judge s function to decide such disputes.

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Crown Policy Standards:

Charge screening is the subject of policy statements by the responsible ministries across the country. Wording varies, but standard is essentially the same: charges should not be pursued where there is no reasonable chance , prospect , or likelihood of conviction. NB: In Ontario, in theory, screening entails two inquiries by prosecutors: First, whether there is a reasonable prospect of conviction; [If none then the charges should b withdrawn] Second, if there is, whether it would nevertheless be in the public interest to discontinue the prosecution. Tort Liability for malicious prosecution: This is another check on prosecutorial action According to the Supreme Court of Canada, before deciding to pursue a criminal charge, The Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt Proulx v. Quebec, [2001] 3 S.C.R. 9 para. 31. This is essentially the same standard adopted by the responsible government ministries across Canada. Pursuing a criminal charge where this standard is not satisfied makes a prosecutor vulnerable to a malicious prosecution claim in tort. There is a huge cost award to the Crown if the accused loses an action malicious prosecution.

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the classification of offences (page 62-63) Today the code distinguishes between indictable offences, those triable only by way of summary conviction proceedings, and those triable on indictment or by way of summary conviction proceedings. Offences triable on indictment Indictable offences are divided into three categories: the most serious offences are given into the exclusive jurisdiction (no other court can try these cases) of the superior Court of criminal justice (sec 468-469). The least serious indictable cases are absolutely (it is not dependent on the accused s election) within the jurisdiction of a Magistrate (sec 553) The great bulk of indictable offences remaining, the accused is entitled to be choose the mode of trial whether by a provincial court judge without a jury, a judge without a jury or a court composed of a judge with a jury (sec 536 (2))

A an accused who does not elect a mode of trial will be deemed to have elected trial by judge and jury (sec 565(1)(c)). Notwithstanding the election of the accused to be tried by a Magistrate, the Magistrate may decide that the matter should be proceeded with by a judge or jury (sec 555). The Attorney General may also override an accused s decision and compel a jury where the offence is punishable by more than 5 years (sec 568). There are detailed, recently amended provisions which allow an accused to change his mind and to reelect the mode of trial (sec 560-565)/ Summary conviction offences Part xxvii of the code - summary conviction offences procedure - trial before a provincial judge without a jury and without a preliminary inquiry - maximum penalty 2000 dollars or 6 month imprisonment or both (sec 787(1)). Crown election offences In some instances the Crown may choose to try by way of summary conviction or indictment. In 1994 the legislature increased the penalty for several hybrid offences when proceeded by way of summary conviction to 18 month (eg. Sec 287 causing biodily harm, sec 271 sexual assault . only when prosecutor elects to proceed by indictment, does the accused have the choice under sec 464. The prosecutor should indicate the nature of the proceedings prior to trial.

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See question on page 63.

The role of the victim
Victims of Crime Act (relevant provisions) Victims Bill of Rights ( in my jurisdiction) Sec 722 Criminal Code of Canada

The procedural frame work (5)

Classification of offences - page 62-63

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